Occupational Safety and Health Administration (OSHA): COVID-19 Emergency Temporary Standards (ETS) on Health Care Employment and Vaccinations and Testing for Large Employers

Changes from January 14, 2022 to January 26, 2022

This page shows textual changes in the document between the two versions indicated in the dates above. Textual matter removed in the later version is indicated with ~~red strikethrough~~ and textual matter added in the later version is indicated with blue.

Occupational Safety and Health Administration January January 1426, 2022 , 2022
(OSHA): COVID-19 Emergency Temporary
Scott D. Szymendera
Standards (ETS) on Health Care Employment
Analyst in Disability Policy Analyst in Disability Policy

and Vaccinations and Testing for Large

Employers
On June 21, 2021, the Occupational Safety and Health Administration (OSHA) promulgated an Emergency Temporary On June 21, 2021, the Occupational Safety and Health Administration (OSHA) promulgated an Emergency Temporary
Standard (ETS) for the prevention of the transmission of SARS-CoV-2, the virus that causes COVID-19 in health care Standard (ETS) for the prevention of the transmission of SARS-CoV-2, the virus that causes COVID-19 in health care
employment settings. On December 27, 2021, OSHA announced that it was withdrawing all provisions of this ETS, with the employment settings. On December 27, 2021, OSHA announced that it was withdrawing all provisions of this ETS, with the
exception of certain COVID-19 reporting requirements. exception of certain COVID-19 reporting requirements.
On November 5, 2021, OSHA promulgated a separate ETS that requires employers with 100 or more employees to require On November 5, 2021, OSHA promulgated a separate ETS that requires employers with 100 or more employees to require
that all employees either be fully vaccinated against COVID-19 by January 4, 2022, or test negative for COVID-19 weekly in that all employees either be fully vaccinated against COVID-19 by January 4, 2022, or test negative for COVID-19 weekly in
order to work onsite.order to work onsite.
~~On November 6, 2021, the U.S. Court~~ After earlier actions by the U.S. Courts of Appeals for the Fifth of Appeals for the Fifth ~~Circuit ordered a stay on~~and Sixth Circuits, on January 13, 2022, the U.S. Supreme Court granted a stay of the OSHA COVID-19 vaccination the OSHA COVID-19 vaccination
and testing ETS pending additional judicial and testing ETS pending additional judicial review by~~review and reaffirmed this stay on November 12, 2021.~~
~~On December 17, 2021,~~ the U.S. Court of Appeals for the Sixth Circuit the U.S. Court of Appeals for the Sixth Circuit ~~dissolved the stay. After this ruling~~. On January 25, 2022, OSHA , OSHA
~~announced that it would not issue any citations for noncompliance with any provision of the ETS until January 10, 2022, and~~
~~for noncompliance with the testing requirements of the ETS until February 9, 2022, provided employers are exercising good~~
~~faith efforts to comply with the ETS. On January 13, 2022, the U.S. Supreme Court granted a stay on the OSHA COVID-19~~
~~vaccination and testing ETS pending additional judicial review by the U.S. Court of Appeals for the Sixth Circuit~~announced that it was withdrawing all provisions of this ETS. The ETS will continue to serve as a proposed permanent standard subject to normal rulemaking. .
The Occupational Safety and Health Act of 1970 (OSH Act) gives OSHA the ability to promulgate an ETS that would remain The Occupational Safety and Health Act of 1970 (OSH Act) gives OSHA the ability to promulgate an ETS that would remain
in effect for up to six months without going through the normal review and comment process of rulemaking. OSHA, in effect for up to six months without going through the normal review and comment process of rulemaking. OSHA,
however, has rarely used this authority prior to the COVID-19 pandemic—not since the courts struck down its ETS on however, has rarely used this authority prior to the COVID-19 pandemic—not since the courts struck down its ETS on
asbestos in 1983. asbestos in 1983.
~~The OSHA COVID-19 vaccination and testing ETS requires all employers with 100 or more employees to either require all~~
~~employees to be vaccinated to work onsite or permit unvaccinated employees to provide weekly negative COVID-19 tests~~
~~and wear face coverings to work onsite. Employers must provide employees with paid time off to receive COVID-19~~
~~vaccines and recover from any side effects. However, employers are not required to pay for COVID-19 tests or face~~
~~coverings. The vaccine and testing requirements of the ETS are effective January 4, 2022.~~
~~While the COVID-19 vaccination and testing ETS applies only to employers with 100 or more employees, all employers are~~
All employers are required to comply with the general duty clause of the OSH Act as well as existing OSHA standards on respiratory protection required to comply with the general duty clause of the OSH Act as well as existing OSHA standards on respiratory protection
and recordkeeping that may apply to the current COVID-19 pandemic. Pursuant to guidance issued by OSHA on May 22, and recordkeeping that may apply to the current COVID-19 pandemic. Pursuant to guidance issued by OSHA on May 22,
2021, employers are not required to record or report any injuries or illnesses caused by the COVID-19 vaccine. This guidance 2021, employers are not required to record or report any injuries or illnesses caused by the COVID-19 vaccine. This guidance
supersedes earlier OSHA guidance that had required employers to record and report adverse reactions to the vaccine if supersedes earlier OSHA guidance that had required employers to record and report adverse reactions to the vaccine if
vaccination was a condition of employment. vaccination was a condition of employment.
The California Division of Occupational Safety and Health (Cal/OSHA), which operates California’s state occupational The California Division of Occupational Safety and Health (Cal/OSHA), which operates California’s state occupational
safety and health plan, has had an aerosol transmissible disease (ATD) standard since 2009. This standard includes, among safety and health plan, has had an aerosol transmissible disease (ATD) standard since 2009. This standard includes, among
other provisions, the requirement that employers provide covered employees with respirators, rather than surgical masks, other provisions, the requirement that employers provide covered employees with respirators, rather than surgical masks,
when these workers interact with ATDs, such as known or suspected COVID-19 cases. In addition, according to the when these workers interact with ATDs, such as known or suspected COVID-19 cases. In addition, according to the
Cal/OSHA ATD standard, certain procedures require the use of powered air purifying respirators (PAPR). Cal/OSHA has Cal/OSHA ATD standard, certain procedures require the use of powered air purifying respirators (PAPR). Cal/OSHA has
also promulgated an ETS to specifically address COVID-19 exposure in the workplace. The agency that operates the state also promulgated an ETS to specifically address COVID-19 exposure in the workplace. The agency that operates the state
occupational safety health plan in Michigan (MIOSHA) has promulgated an ETS, which was later rescinded and replaced occupational safety health plan in Michigan (MIOSHA) has promulgated an ETS, which was later rescinded and replaced
with the OSHA COVID-19 ETS for health care employers, to specifically address COVID-19 in workplaces. In January with the OSHA COVID-19 ETS for health care employers, to specifically address COVID-19 in workplaces. In January
~~Congressional Research Service~~

~~OSHA: ETS and COVID-19~~

2021, the Virginia state plan (VOSH) promulgated a permanent standard to supersede its ETS, and in May 2021, the Oregon 2021, the Virginia state plan (VOSH) promulgated a permanent standard to supersede its ETS, and in May 2021, the Oregon
state plan (Oregon OSHA) replaced its ETS with a permanent standard. state plan (Oregon OSHA) replaced its ETS with a permanent standard.
~~States with state occupational safety and health plans must adopt and enforce all OSHA standards, including the COVID-19~~
~~vaccination and testing ETS for large employers.~~

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Occupational Safety and Health Administration
Standards
Section 6 of the Occupational Safety and Health Act of 1970 (OSH Act) grants the Occupational Section 6 of the Occupational Safety and Health Act of 1970 (OSH Act) grants the Occupational
Safety and Health Administration (OSHA) of the Department of Labor the authority to Safety and Health Administration (OSHA) of the Department of Labor the authority to
promulgate, modify, or revoke occupational safety and health standards that apply to private promulgate, modify, or revoke occupational safety and health standards that apply to private
sector employers, the United States Postal Service, and the federal government as an employer.1 sector employers, the United States Postal Service, and the federal government as an employer.1
In addition, Section 5(a)(1) of the OSH Act, commonly referred to as the general duty clause, In addition, Section 5(a)(1) of the OSH Act, commonly referred to as the general duty clause,
requires that all employers under OSHA’s jurisdiction provide workplaces free of “recognized requires that all employers under OSHA’s jurisdiction provide workplaces free of “recognized
hazards that are causing or are likely to cause death or serious physical harm” to their hazards that are causing or are likely to cause death or serious physical harm” to their
employees.2 OSHA has the authority to enforce employer compliance with its standards and with employees.2 OSHA has the authority to enforce employer compliance with its standards and with
the general duty clause through the issuance of abatement orders, citations, and civil monetary the general duty clause through the issuance of abatement orders, citations, and civil monetary
penalties. The OSH Act does not cover state or local government agencies or units. Thus, certain penalties. The OSH Act does not cover state or local government agencies or units. Thus, certain
entities that may be affected by Coronavirus Disease 2019 (COVID-19), such as state and local entities that may be affected by Coronavirus Disease 2019 (COVID-19), such as state and local
government hospitals, local fire departments and emergency medical services, state prisons and government hospitals, local fire departments and emergency medical services, state prisons and
county jails, and public schools, are not covered by the OSH Act or subject to OSHA regulation county jails, and public schools, are not covered by the OSH Act or subject to OSHA regulation
or enforcement. or enforcement.
State Plans
Section 18 of the OSH Act authorizes states to establish their own occupational safety and health Section 18 of the OSH Act authorizes states to establish their own occupational safety and health
plans and preempt standards established and enforced by OSHA.3 OSHA must approve state plans and preempt standards established and enforced by OSHA.3 OSHA must approve state
plans if they are “at least as effective” as OSHA’s standards and enforcement.4 If a state adopts a plans if they are “at least as effective” as OSHA’s standards and enforcement.4 If a state adopts a
state plan, it must also cover state and local government entities, such as public schools, not state plan, it must also cover state and local government entities, such as public schools, not
covered by OSHA. Currently, 21 states and Puerto Rico have state plans that cover all employers, covered by OSHA. Currently, 21 states and Puerto Rico have state plans that cover all employers,
and 5 states and the U.S. Virgin Islands have state plans that cover only state and local and 5 states and the U.S. Virgin Islands have state plans that cover only state and local
government employers not covered by the OSH Act.5 In the remaining states, state and local government employers not covered by the OSH Act.5 In the remaining states, state and local
government employers are not covered by OSHA standards or enforcement. State plans may government employers are not covered by OSHA standards or enforcement. State plans may
incorporate OSHA standards by reference, or states may adopt their own standards that are at incorporate OSHA standards by reference, or states may adopt their own standards that are at
least as effective as OSHA’s standards. State plans do not have jurisdiction over federal agencies least as effective as OSHA’s standards. State plans do not have jurisdiction over federal agencies
and generally do not cover maritime workers and private sector workers at military bases or other and generally do not cover maritime workers and private sector workers at military bases or other
federal facilities. federal facilities.
Promulgation of OSHA Standards
OSHA may promulgate occupational safety and health standards on its own initiative or in OSHA may promulgate occupational safety and health standards on its own initiative or in
response to petitions submitted to the agency by various government agencies, the public, or response to petitions submitted to the agency by various government agencies, the public, or
employer and employee groups.6 OSHA is not required, however, to respond to a petition for a employer and employee groups.6 OSHA is not required, however, to respond to a petition for a

1 29 U.S.C. §655. The provisions of the Occupational Safety and Health Act of 1970 (OSH Act) are extended to the 1 29 U.S.C. §655. The provisions of the Occupational Safety and Health Act of 1970 (OSH Act) are extended to the
legislative branch as an employer by the Congressional Accountability Act (P.L. 104-1). legislative branch as an employer by the Congressional Accountability Act (P.L. 104-1).
2 29 U.S.C. §654(a)(1). 2 29 U.S.C. §654(a)(1).
3 29 U.S.C. §667. 3 29 U.S.C. §667.
4 For additional information on Occupational Safety and Health Administration (OSHA) state plans, see CRS Report 4 For additional information on Occupational Safety and Health Administration (OSHA) state plans, see CRS Report
R43969, R43969, OSHA State Plans: In Brief, with Examples from California and Arizona. .
5 Information on specific state plans is available from the OSHA website at https://www.osha.gov/stateplans. 5 Information on specific state plans is available from the OSHA website at https://www.osha.gov/stateplans.
6 Per Section 6(b)(1) of the OSH Act [29 §655(b)(1)], a petition may be submitted by “an interested person, a 6 Per Section 6(b)(1) of the OSH Act [29 §655(b)(1)], a petition may be submitted by “an interested person, a
representative of any organization of employers or employees, a nationally recognized standards-producing representative of any organization of employers or employees, a nationally recognized standards-producing
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standard or to promulgate a standard in response to a petition. OSHA may also consult with one standard or to promulgate a standard in response to a petition. OSHA may also consult with one
of the two statutory standing advisory committees—the National Advisory Committee on of the two statutory standing advisory committees—the National Advisory Committee on
Occupational Safety and Health (NACOSH) or the Advisory Committee on Construction Safety Occupational Safety and Health (NACOSH) or the Advisory Committee on Construction Safety
and Health (ACCSH)—or an ad-hoc advisory committee for assistance in developing a standard.7 and Health (ACCSH)—or an ad-hoc advisory committee for assistance in developing a standard.7
Notice and Comment
OSHA’s rulemaking process for the promulgation of standards is largely governed by the OSHA’s rulemaking process for the promulgation of standards is largely governed by the
provisions of the Administrative Procedure Act (APA) and Section 6(b) of the OSH Act.8 Under provisions of the Administrative Procedure Act (APA) and Section 6(b) of the OSH Act.8 Under
the APA informal rulemaking process, federal agencies, including OSHA, are required to provide the APA informal rulemaking process, federal agencies, including OSHA, are required to provide
notice of proposed rules through the publication of a Notice of Proposed Rulemaking in the notice of proposed rules through the publication of a Notice of Proposed Rulemaking in the
Federal Register and to provide the public a period of time to comment on the proposed rules. and to provide the public a period of time to comment on the proposed rules.
Section 7(b) of the OSH Act mirrors the APA in that it requires notice and comment in the Section 7(b) of the OSH Act mirrors the APA in that it requires notice and comment in the
rulemaking process.9 After publishing a proposed standard, the public must be given a period of rulemaking process.9 After publishing a proposed standard, the public must be given a period of
at least 30 days to provide comments. In addition, any person may submit written objections to at least 30 days to provide comments. In addition, any person may submit written objections to
the proposed standard and may request a public hearing on the standard. the proposed standard and may request a public hearing on the standard.
Statement of Reasons
Section 6(e) of the OSH Act requires OSHA to publish in the Section 6(e) of the OSH Act requires OSHA to publish in the Federal Register a statement of the a statement of the
reasons the agency is taking action whenever it promulgates a standard, conducts other reasons the agency is taking action whenever it promulgates a standard, conducts other
rulemaking, or takes certain additional actions, including issuing an order, compromising on a rulemaking, or takes certain additional actions, including issuing an order, compromising on a
penalty amount, or settling an issued penalty.10 penalty amount, or settling an issued penalty.10
Other Relevant Laws and Executive Order 12866
In addition to the APA and OSH Act, other federal laws that generally apply to OSHA rulemaking In addition to the APA and OSH Act, other federal laws that generally apply to OSHA rulemaking
include the Paperwork Reduction Act,11 Regulatory Flexibility Act,12 Congressional Review include the Paperwork Reduction Act,11 Regulatory Flexibility Act,12 Congressional Review
Act,13 Information Quality Act,14 and Small Business Regulatory Enforcement Fairness Act Act,13 Information Quality Act,14 and Small Business Regulatory Enforcement Fairness Act
(SBREFA).15 Also, Executive Order 12866, issued by President Clinton in 1993, requires (SBREFA).15 Also, Executive Order 12866, issued by President Clinton in 1993, requires

organization, the Secretary of Health and Human Services (HHS), the National Institute for Occupational Safety and organization, the Secretary of Health and Human Services (HHS), the National Institute for Occupational Safety and
Health, or a state or political subdivision.” Health, or a state or political subdivision.”
7 The National Advisory Committee on Occupational Safety and Health (NACOSH) was established by Section 7(a) of 7 The National Advisory Committee on Occupational Safety and Health (NACOSH) was established by Section 7(a) of
the OSH Act [29 U.S.C. §656(a)]. The Advisory Committee on Construction Safety and Health (ACCSH) was the OSH Act [29 U.S.C. §656(a)]. The Advisory Committee on Construction Safety and Health (ACCSH) was
established by Section 107 of the Contract Work Hours and Safety Act (P.L. 87-581). Section 7(b) of the OSH Act established by Section 107 of the Contract Work Hours and Safety Act (P.L. 87-581). Section 7(b) of the OSH Act
provides OSHA the authority to establish additional advisory committees. provides OSHA the authority to establish additional advisory committees.
8 The Administrative Procedure Act (APA) is codified at 5 U.S.C. §§500-596. For detailed information on federal 8 The Administrative Procedure Act (APA) is codified at 5 U.S.C. §§500-596. For detailed information on federal
agency rulemaking and the APA, see CRS Report RL32240, agency rulemaking and the APA, see CRS Report RL32240, The Federal Rulemaking Process: An Overview. .
9 29 U.S.C. §655(b). 9 29 U.S.C. §655(b).
10 29 U.S.C. §655(e). 10 29 U.S.C. §655(e).
11 44 U.S.C. §§3501-3520. 11 44 U.S.C. §§3501-3520.
12 5 U.S.C. §§601-612. 12 5 U.S.C. §§601-612.
13 5 U.S.C. §§801-808. 13 5 U.S.C. §§801-808.
14 44 U.S.C. §3516 note. 14 44 U.S.C. §3516 note.
15 5 U.S.C. §601 note. For information on these additional laws that apply to OSHA rulemaking, see U.S. Government 15 5 U.S.C. §601 note. For information on these additional laws that apply to OSHA rulemaking, see U.S. Government
Accountability Office (GAO), Accountability Office (GAO), Workplace Safety and Health: Multiple Challenges Lengthen OSHA’s Standard Setting, ,
GAO-12-330, April 2012, Appendix II, at https://www.gao.gov/products/GAO-12-330 (hereinafter cited as GAO-12-GAO-12-330, April 2012, Appendix II, at https://www.gao.gov/products/GAO-12-330 (hereinafter cited as GAO-12-
330, 330, Workplace Safety and Health). ).
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agencies to submit certain regulatory actions to the Office of Management and Budget (OMB) agencies to submit certain regulatory actions to the Office of Management and Budget (OMB)
and Office of Information and Regulatory Affairs (OIRA) for review before promulgation.16 and Office of Information and Regulatory Affairs (OIRA) for review before promulgation.16
OSHA Rulemaking Time Line
OSHA rulemaking for new standards has historically been a relatively time-consuming process. OSHA rulemaking for new standards has historically been a relatively time-consuming process.
In 2012, at the request of Congress, the Government Accountability Office (GAO) reviewed 59 In 2012, at the request of Congress, the Government Accountability Office (GAO) reviewed 59
significant OSHA standards promulgated between 1981 (after the enactments of the Paperwork significant OSHA standards promulgated between 1981 (after the enactments of the Paperwork
Reduction Act and Regulatory Flexibility Act) and 2010.17 For these standards, OSHA’s average Reduction Act and Regulatory Flexibility Act) and 2010.17 For these standards, OSHA’s average
time between beginning formal consideration of the standard—either through publishing a time between beginning formal consideration of the standard—either through publishing a
Request for Information or Advance Notice of Proposed Rulemaking in the Request for Information or Advance Notice of Proposed Rulemaking in the Federal Register or or
placing the rulemaking on its semiannual regulatory agenda—and promulgation of the standard placing the rulemaking on its semiannual regulatory agenda—and promulgation of the standard
was 93 months (7 years, 9 months). Once the Notice of Proposed Rulemaking was published for was 93 months (7 years, 9 months). Once the Notice of Proposed Rulemaking was published for
these 59 standards, the average time until promulgation of the standard was 39 months (3 years, 3 these 59 standards, the average time until promulgation of the standard was 39 months (3 years, 3
months). months).
In 2012, OSHA’s Directorate of Standards and Guidance published a flowchart of the OSHA In 2012, OSHA’s Directorate of Standards and Guidance published a flowchart of the OSHA
rulemaking process on the agency’s website.18 This flowchart includes estimated duration ranges rulemaking process on the agency’s website.18 This flowchart includes estimated duration ranges
for a variety of rulemaking actions, beginning with pre-rule activities—such as developing the for a variety of rulemaking actions, beginning with pre-rule activities—such as developing the
idea for the standard and meeting with stakeholders—and ending with promulgation of the idea for the standard and meeting with stakeholders—and ending with promulgation of the
standard. The flowchart also includes an estimated duration range for post-promulgation standard. The flowchart also includes an estimated duration range for post-promulgation
activities, such as judicial review. The estimated time from the start of preliminary rulemaking to activities, such as judicial review. The estimated time from the start of preliminary rulemaking to
the promulgation of a standard ranges from 52 months (4 years, 4 months) to 138 months (11 the promulgation of a standard ranges from 52 months (4 years, 4 months) to 138 months (11
years, 6 months). After a Notice of Proposed Rulemaking is published in the years, 6 months). After a Notice of Proposed Rulemaking is published in the Federal Register, the , the
estimated length of time until the standard is promulgated ranges from 26 months (2 years, 2 estimated length of time until the standard is promulgated ranges from 26 months (2 years, 2
months) to 63 months (5 years, 3 monthsmonths) to 63 months (5 years, 3 months)). Table 1 provides OSHA’s estimated time lines for six provides OSHA’s estimated time lines for six
major pre-rulemaking and rulemaking activities leading to the promulgation of a standard. major pre-rulemaking and rulemaking activities leading to the promulgation of a standard.
Table 1. OSHA Rulemaking Process: Estimated Durations of Activities
Stage
Activities
Estimated Duration
1 1
Preliminary rulemaking activities Preliminary rulemaking activities
12-36 months 12-36 months
2 2
Developing the proposed rule Developing the proposed rule
12-36 months 12-36 months
3 3
Publishing the Notice of Proposed Rulemaking (NPRM) Publishing the Notice of Proposed Rulemaking (NPRM)
2-3 months 2-3 months
4 4
Developing and analyzing the rulemaking record, including public comments Developing and analyzing the rulemaking record, including public comments
and hearings and hearings
6-24 months 6-24 months
5 5
Developing the final rule, including Office of Information and Regulatory Developing the final rule, including Office of Information and Regulatory
Affairs (OIRA) submission Affairs (OIRA) submission
18-36 months 18-36 months
6 6
Publishing the final rule (promulgating the new standard) Publishing the final rule (promulgating the new standard)
2-3 months 2-3 months
Total estimated duration Total estimated duration
52-138 months 52-138 months
Estimated duration from NPRM to final rule Estimated duration from NPRM to final rule
26-63 months 26-63 months
Source: Congressional Research Service (CRS) with data from Occupational Safety and Health Administration Congressional Research Service (CRS) with data from Occupational Safety and Health Administration
(OSHA), Directorate of Standards and Guidance, (OSHA), Directorate of Standards and Guidance, The OSHA Rulemaking Process, October 15, 2012. , October 15, 2012.

16 Executive Order 12866, “Regulatory Planning and Review,” 5816 Executive Order 12866, “Regulatory Planning and Review,” 58 Federal Register 51735, October 4, 1993. 51735, October 4, 1993.
17 GAO-12-330, 17 GAO-12-330, Workplace Safety and Health. .
18 OSHA, Directorate of Standards and Guidance, 18 OSHA, Directorate of Standards and Guidance, The OSHA Rulemaking Process, October 15, 2012. , October 15, 2012.
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Judicial Review
Both the APA and the OSH Act provide for judicial review of OSHA standards. Section 7(f) of Both the APA and the OSH Act provide for judicial review of OSHA standards. Section 7(f) of
the OSH Act provides that any person who is “adversely affected” by a standard may file, within the OSH Act provides that any person who is “adversely affected” by a standard may file, within
60 days of its promulgation, a petition challenging the standard with the U.S. Court of Appeals 60 days of its promulgation, a petition challenging the standard with the U.S. Court of Appeals
for the circuit in which the person lives or maintains his or her principal place of business.19 A for the circuit in which the person lives or maintains his or her principal place of business.19 A
petition for judicial review does not automatically stay the implementation or enforcement of the petition for judicial review does not automatically stay the implementation or enforcement of the
standard. However, the court may order such a stay. OSHA estimates that post-promulgation standard. However, the court may order such a stay. OSHA estimates that post-promulgation
activities, including judicial review, can take between four and 12 months after the standard is activities, including judicial review, can take between four and 12 months after the standard is
promulgated.20 promulgated.20
Emergency Temporary Standards
Section 6(c) of the OSH Act provides the authority for OSHA to issue an Emergency Temporary Section 6(c) of the OSH Act provides the authority for OSHA to issue an Emergency Temporary
Standard (ETS) without having to go through the normal rulemaking process. OSHA may Standard (ETS) without having to go through the normal rulemaking process. OSHA may
promulgate an ETS without supplying any notice or opportunity for public comment or public promulgate an ETS without supplying any notice or opportunity for public comment or public
hearings. An ETS is immediately effective upon publication in the hearings. An ETS is immediately effective upon publication in the Federal Register. Upon . Upon
promulgation of an ETS, OSHA is required to begin the full rulemaking process for a permanent promulgation of an ETS, OSHA is required to begin the full rulemaking process for a permanent
standard with the ETS serving as the proposed standard for this rulemaking. An ETS is valid until standard with the ETS serving as the proposed standard for this rulemaking. An ETS is valid until
superseded by a permanent standard, which OSHA must promulgate within six months of superseded by a permanent standard, which OSHA must promulgate within six months of
publishing the ETS in the publishing the ETS in the Federal Register.21 An ETS must include a statement of reasons for the .21 An ETS must include a statement of reasons for the
action in the same manner as required for a permanent standard. State plans are required to adopt action in the same manner as required for a permanent standard. State plans are required to adopt
or adhere to an ETS, although the OSH Act is not clear on how quickly a state plan must come or adhere to an ETS, although the OSH Act is not clear on how quickly a state plan must come
into compliance with an ETS. into compliance with an ETS.
ETS Requirements
Section 6(c)(1) of the OSH Act requires that both of the following determinations be made in Section 6(c)(1) of the OSH Act requires that both of the following determinations be made in
order for OSHA to promulgate an ETS: order for OSHA to promulgate an ETS:
 that employees are exposed to grave danger from exposure to substances or  that employees are exposed to grave danger from exposure to substances or
agents determined to be toxic or physically harmful or from new hazards, and agents determined to be toxic or physically harmful or from new hazards, and
 that such emergency standard is necessary to protect employees from such  that such emergency standard is necessary to protect employees from such
danger. danger.
Grave Danger Determination
The term The term grave danger, used in the first mandatory determination for an ETS, is not defined in , used in the first mandatory determination for an ETS, is not defined in
statute or regulation. The legislative history demonstrates the intent of Congress that the ETS statute or regulation. The legislative history demonstrates the intent of Congress that the ETS
process “not be utilized to circumvent the regular standard-setting process,” but the history is process “not be utilized to circumvent the regular standard-setting process,” but the history is
unclear as to how Congress intended the term grave danger to be defined.22 unclear as to how Congress intended the term grave danger to be defined.22

19 29 U.S.C. §655(f). 19 29 U.S.C. §655(f).
20 OSHA, Directorate of Standards and Guidance, 20 OSHA, Directorate of Standards and Guidance, The OSHA Rulemaking Process, October 15, 2012. , October 15, 2012.
21 29 U.S.C. §655(c)(2). The statute is not clear on what happens if OSHA is unable to promulgate a permanent 21 29 U.S.C. §655(c)(2). The statute is not clear on what happens if OSHA is unable to promulgate a permanent
standard within six months. For additional information see the section “ETS Duration” later in this report. standard within six months. For additional information see the section “ETS Duration” later in this report.
22 U.S. Congress, Senate Labor and Public Welfare, Subcommittee on Labor, 22 U.S. Congress, Senate Labor and Public Welfare, Subcommittee on Labor, Legislative History of the Occupational
Safety and Health Act of 1970 (S. 2193S. 2193, P.L. 91-596), committee print, prepared by Subcommittee on Labor, 91st , committee print, prepared by Subcommittee on Labor, 91st
Cong., 1 sess., June 1971, 52-531 (Washington: GPO, 1971), p. 1218. Cong., 1 sess., June 1971, 52-531 (Washington: GPO, 1971), p. 1218.
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In addition, although the federal courts have ruled on challenges to previous ETS promulgations, In addition, although the federal courts have ruled on challenges to previous ETS promulgations,
the courts have provided no clear guidance as to what constitutes a grave danger. In 1984, the the courts have provided no clear guidance as to what constitutes a grave danger. In 1984, the
U.S. Court of Appeals for the Fifth Circuit in U.S. Court of Appeals for the Fifth Circuit in Asbestos Info. Ass’n v. OSHA issued a stay and issued a stay and
invalidated OSHA’s November 1983 ETS lowering the permissible exposure limit for asbestos in invalidated OSHA’s November 1983 ETS lowering the permissible exposure limit for asbestos in
the workplace.23 In its decision, the court stated that “gravity of danger is a policy decision the workplace.23 In its decision, the court stated that “gravity of danger is a policy decision
committed to OSHA, not to the courts.”24 The court, however, ultimately rejected the ETS, in part committed to OSHA, not to the courts.”24 The court, however, ultimately rejected the ETS, in part
on the grounds that OSHA did not provide sufficient support for its claim that 80 workers would on the grounds that OSHA did not provide sufficient support for its claim that 80 workers would
ultimately die because of exposures to asbestos during the six-month life of the ETS. ultimately die because of exposures to asbestos during the six-month life of the ETS.
Necessity Determination
In addition to addressing a grave danger to employees, an ETS must also be In addition to addressing a grave danger to employees, an ETS must also be necessary to protect to protect
employees from that danger. In employees from that danger. In Asbestos Info. Ass’n, the court invalidated the asbestos ETS for , the court invalidated the asbestos ETS for
the additional reason that OSHA had not demonstrated the necessity of the ETS. The court cited, the additional reason that OSHA had not demonstrated the necessity of the ETS. The court cited,
among other factors, the duplication between the respirator requirements of the ETS and OSHA’s among other factors, the duplication between the respirator requirements of the ETS and OSHA’s
existing standards requiring respirator use. The court dismissed OSHA’s argument that the ETS existing standards requiring respirator use. The court dismissed OSHA’s argument that the ETS
was necessary because the agency felt that the existing respiratory standards were “unenforceable was necessary because the agency felt that the existing respiratory standards were “unenforceable
absent actual monitoring to show that ambient asbestos particles are so far above the permissible absent actual monitoring to show that ambient asbestos particles are so far above the permissible
limit that respirators are necessary to bring employees’ exposure within the PEL of 2.0 f/cc.”25 limit that respirators are necessary to bring employees’ exposure within the PEL of 2.0 f/cc.”25
The court determined that “fear of a successful judicial challenge to enforcement of OSHA’s The court determined that “fear of a successful judicial challenge to enforcement of OSHA’s
permanent standard regarding respirator use hardly justifies resort to the most dramatic weapon in permanent standard regarding respirator use hardly justifies resort to the most dramatic weapon in
OSHA’s enforcement arsenal.”26 OSHA’s enforcement arsenal.”26
In 2006, the agency considered a petition from the United Food and Commercial Workers In 2006, the agency considered a petition from the United Food and Commercial Workers
(UFCW) and International Brotherhood of Teamsters (IBT) for an ETS on diacetyl, a compound (UFCW) and International Brotherhood of Teamsters (IBT) for an ETS on diacetyl, a compound
then commonly used as an artificial butter flavoring in microwave popcorn and a flavoring in then commonly used as an artificial butter flavoring in microwave popcorn and a flavoring in
other food and beverage products. The UFCW and IBT petitioned OSHA for the ETS after the other food and beverage products. The UFCW and IBT petitioned OSHA for the ETS after the
National Institute for Occupational Safety and Health (NIOSH) and other researchers found that National Institute for Occupational Safety and Health (NIOSH) and other researchers found that
airborne exposure to diacetyl was linked to the lung disease airborne exposure to diacetyl was linked to the lung disease bronchiolitis obliterans, now , now
commonly referred to as “popcorn lung.”27 According to GAO’s 2012 report on OSHA’s commonly referred to as “popcorn lung.”27 According to GAO’s 2012 report on OSHA’s
standard-setting processes, OSHA informed GAO that although the agency may have been able to standard-setting processes, OSHA informed GAO that although the agency may have been able to
issue an ETS based on the grave danger posed by diacetyl, the actions taken by the food and issue an ETS based on the grave danger posed by diacetyl, the actions taken by the food and
beverage industries, including reducing or removing diacetyl from products, made it less likely beverage industries, including reducing or removing diacetyl from products, made it less likely
that the necessity requirement could be met.28 that the necessity requirement could be met.28
ETS Duration
Section 6(c)(2) of the OSH Act provides that an ETS is effective until superseded by a permanent Section 6(c)(2) of the OSH Act provides that an ETS is effective until superseded by a permanent
standard promulgated pursuant to the normal rulemaking provisions of the OSH Act. Section standard promulgated pursuant to the normal rulemaking provisions of the OSH Act. Section
6(c)(3) of the OSH Act requires OSHA to promulgate a permanent standard within six months of 6(c)(3) of the OSH Act requires OSHA to promulgate a permanent standard within six months of

23 727 F.2d at 415, 425-427 (5th Cir. 1984). 23 727 F.2d at 415, 425-427 (5th Cir. 1984).
24 727 F.2d at 427 (5th Cir. 1984). 24 727 F.2d at 427 (5th Cir. 1984).
25 727 F.2d at 427 (5th Cir. 1984). The ETS mandated a permissible exposure limit (PEL) for asbestos of two asbestos 25 727 F.2d at 427 (5th Cir. 1984). The ETS mandated a permissible exposure limit (PEL) for asbestos of two asbestos
fibers per cubic centimeter of air (2.0 f/cc). fibers per cubic centimeter of air (2.0 f/cc).
26 727 F.2d at 427 (5th Cir. 1984). 26 727 F.2d at 427 (5th Cir. 1984).
27 See, for example, Centers for Disease Control and Prevention (CDC): National Institute for Occupational Safety and 27 See, for example, Centers for Disease Control and Prevention (CDC): National Institute for Occupational Safety and
Health (NIOSH), Health (NIOSH), NIOSH Alert: Preventing Lung Disease in Workers who Use or Make Flavorings, DHHS (NIOSH) , DHHS (NIOSH)
publication no. 2004-110, December 2003, at https://www.cdc.gov/niosh/docs/2004-110/. publication no. 2004-110, December 2003, at https://www.cdc.gov/niosh/docs/2004-110/.
28 GAO-12-330, 28 GAO-12-330, Workplace Safety and Health. .
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promulgating the ETS. As shown earlier in this report, six months is well outside of historical and promulgating the ETS. As shown earlier in this report, six months is well outside of historical and
currently expected time frames for developing and promulgating a standard under the notice and currently expected time frames for developing and promulgating a standard under the notice and
comment provisions of the APA and OSH Act, as well as under other relevant federal laws and comment provisions of the APA and OSH Act, as well as under other relevant federal laws and
executive orders. This dichotomy between the statutory mandate to promulgate a standard and the executive orders. This dichotomy between the statutory mandate to promulgate a standard and the
time lines that, based on historical precedent, other provisions in the OSH Act might realistically time lines that, based on historical precedent, other provisions in the OSH Act might realistically
require for such promulgation raises the question of whether or not OSHA could extend an ETS’s require for such promulgation raises the question of whether or not OSHA could extend an ETS’s
duration without going through the normal rulemaking process. The statute and legislative history duration without going through the normal rulemaking process. The statute and legislative history
do not clearly address this question. do not clearly address this question.
OSHA has used its ETS authority sparingly in its history. As shown OSHA has used its ETS authority sparingly in its history. As shown inin Table A-1, inin the 11 times the 11 times
OSHA has issued an ETS, the courts have fully vacated or stayed the ETS in four cases and OSHA has issued an ETS, the courts have fully vacated or stayed the ETS in four cases and
partially vacated the ETS in one case.29 In five of the seven ETSs that were not challenged, were partially vacated the ETS in one case.29 In five of the seven ETSs that were not challenged, were
fully or partially upheld by the courts, or are still active, OSHA issued a permanent standard fully or partially upheld by the courts, or are still active, OSHA issued a permanent standard
either within the six months required by the statute or within several months of the six-month either within the six months required by the statute or within several months of the six-month
period and always within one year of the promulgation of the ETS.30 Each of these five cases, period and always within one year of the promulgation of the ETS.30 Each of these five cases,
however, occurred before 1980, after which a combination of additional federal laws and court however, occurred before 1980, after which a combination of additional federal laws and court
decisions added additional procedural requirements to the OSHA rulemaking process. OSHA did decisions added additional procedural requirements to the OSHA rulemaking process. OSHA did
not attempt to extend the ETS’s expiration date in any of these cases. not attempt to extend the ETS’s expiration date in any of these cases.
Although the courts have not ruled directly on an attempt by OSHA to solely extend the life of an Although the courts have not ruled directly on an attempt by OSHA to solely extend the life of an
ETS, in 1974, the U.S. Court Appeals for the Fifth Circuit held in ETS, in 1974, the U.S. Court Appeals for the Fifth Circuit held in Florida Peach Growers Ass’n v.
United States Department of Labor that OSHA was within its authority to amend an ETS without that OSHA was within its authority to amend an ETS without
going through the normal rulemaking process.31 The court stated that “it is inconceivable that going through the normal rulemaking process.31 The court stated that “it is inconceivable that
Congress, having granted the Secretary the authority to react quickly in fast-breaking emergency Congress, having granted the Secretary the authority to react quickly in fast-breaking emergency
situations, intended to limit his ability to react to developments subsequent to his initial situations, intended to limit his ability to react to developments subsequent to his initial
response.”32 The court also recognized the difficulty OSHA may have in promulgating a standard response.”32 The court also recognized the difficulty OSHA may have in promulgating a standard
within six months due to the notice and comment requirements of the OSH Act, stating that in the within six months due to the notice and comment requirements of the OSH Act, stating that in the
case of OSHA seeking to amend an ETS to expand its focus, “adherence to subsection (b) case of OSHA seeking to amend an ETS to expand its focus, “adherence to subsection (b)
procedures would not be in the best interest of employees, whom the Act is designed to protect. procedures would not be in the best interest of employees, whom the Act is designed to protect.
Such lengthy procedures could all too easily consume all of the temporary standard’s six months Such lengthy procedures could all too easily consume all of the temporary standard’s six months
life.”33 life.”33
OSHA COVID-19 ETS for Health Care Employers—
Withdrawn
On June 21, 2021, OSHA promulgated an ETS for the prevention of COVID-19 in health care On June 21, 2021, OSHA promulgated an ETS for the prevention of COVID-19 in health care
employment.34 The ETS required a covered employer to create a COVID-19 plan, included employment.34 The ETS required a covered employer to create a COVID-19 plan, included

29 Mark A. Rothstein, “Substantive and Procedural Obstacles to OSHA Rulemaking: Reproductive Hazards as an 29 Mark A. Rothstein, “Substantive and Procedural Obstacles to OSHA Rulemaking: Reproductive Hazards as an
Example,” Example,” Boston College Environmental Affairs Law Review, vol. 12, no. 4 (August 1985), p. 673. , vol. 12, no. 4 (August 1985), p. 673.
30 For example, OSHA promulgated the Acrylonitrile (vinyl cyanide) ETS on January 17, 1978, and the permanent 30 For example, OSHA promulgated the Acrylonitrile (vinyl cyanide) ETS on January 17, 1978, and the permanent
standard on October 3, 1978, with an effective date of November 2, 1978. The preamble to the permanent standard standard on October 3, 1978, with an effective date of November 2, 1978. The preamble to the permanent standard
published in the published in the Federal Register does not include information on the status of the ETS during the time between its does not include information on the status of the ETS during the time between its
expiration and the promulgation of the permanent standard. OSHA, “Occupational Exposure to Acrylonitrile (Vinyl expiration and the promulgation of the permanent standard. OSHA, “Occupational Exposure to Acrylonitrile (Vinyl
Cyanide),” 43Cyanide),” 43 Federal Register 45762, October 3, 1978. 45762, October 3, 1978.
31 489 F.2d. 120 (5th Cir. 1974). 31 489 F.2d. 120 (5th Cir. 1974).
32 489 F.2d. at 127 (5th Cir. 1974). 32 489 F.2d. at 127 (5th Cir. 1974).
33 489 F.2d. at 127 (5th Cir. 1974). 33 489 F.2d. at 127 (5th Cir. 1974).
34 OSHA, “Occupational Exposure to COVID-19; Emergency Temporary Standard,” 8634 OSHA, “Occupational Exposure to COVID-19; Emergency Temporary Standard,” 86 Federal Register 32376, June 32376, June
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provisions for the prevention of COVID-19 in the workplace, required new recordkeeping in provisions for the prevention of COVID-19 in the workplace, required new recordkeeping in
COVID-19 cases, and (in certain circumstances) permitted employers to forgo the medical COVID-19 cases, and (in certain circumstances) permitted employers to forgo the medical
evaluation and fit-testing requirements of the OSHA respiratory protection standard. The ETS evaluation and fit-testing requirements of the OSHA respiratory protection standard. The ETS
became effective with its publication in the became effective with its publication in the Federal Register, with covered employers required to , with covered employers required to
comply with all provisions of the ETS—with the exceptions of the physical distancing, building comply with all provisions of the ETS—with the exceptions of the physical distancing, building
ventilation, training, and mini-respiratory-protection provisions—by July 6, 2021. Covered ventilation, training, and mini-respiratory-protection provisions—by July 6, 2021. Covered
employers were required to comply with the physical distancing, building ventilation, training, employers were required to comply with the physical distancing, building ventilation, training,
and mini-respiratory-protection provisions by July 21, 2021. and mini-respiratory-protection provisions by July 21, 2021.
On December 27, 2021, OSHA announced that it was withdrawing all provisions of the ETS for On December 27, 2021, OSHA announced that it was withdrawing all provisions of the ETS for
health care employers, with the exceptions of certain recordkeeping requirements.35 In the health care employers, with the exceptions of certain recordkeeping requirements.35 In the
withdrawal announcement, OSHA cited the fact that six months had elapsed since the withdrawal announcement, OSHA cited the fact that six months had elapsed since the
promulgation of the ETS and that the agency was not able to promulgate a permanent standard promulgation of the ETS and that the agency was not able to promulgate a permanent standard
during this six-month period. during this six-month period.
Recordkeeping and Reporting36
Under the recordkeeping and reporting provisions of the ETS, which remain in force, health care Under the recordkeeping and reporting provisions of the ETS, which remain in force, health care
employers with more than 10 employees must take the following actions: employers with more than 10 employees must take the following actions:
 Establish and maintain a log of COVID-19 cases among employees, regardless of  Establish and maintain a log of COVID-19 cases among employees, regardless of
whether or not they are connected to workplace exposures;37 whether or not they are connected to workplace exposures;37
 Provide, by the end of the next business day upon request, the individual  Provide, by the end of the next business day upon request, the individual
COVID-19 log entry of an employee to that employee and any person who has COVID-19 log entry of an employee to that employee and any person who has
the written consent of the employee;38 the written consent of the employee;38
 Provide, by the end of the next business day upon request, a version of the  Provide, by the end of the next business day upon request, a version of the
COVID-19 log with personally identifiable information of employees removed to COVID-19 log with personally identifiable information of employees removed to
any employees or their personal or authorized representatives;39 any employees or their personal or authorized representatives;39
 Provide, by the end of the next business day, all COVID-19 records to OSHA;40  Provide, by the end of the next business day, all COVID-19 records to OSHA;40
 Report to OSHA any work-related COVID-19 fatality within eight hours of  Report to OSHA any work-related COVID-19 fatality within eight hours of
learning of the fatality;41 and learning of the fatality;41 and
 Report to OSHA any work-related COVID-19 inpatient hospitalization within 24  Report to OSHA any work-related COVID-19 inpatient hospitalization within 24
hours of learning of the hospitalization.42 hours of learning of the hospitalization.42

21, 2021. 21, 2021.
35 OSHA, 35 OSHA, Statement on the Status of the OSHA COVID-19 Healthcare ETS, December 27, 2021, , December 27, 2021,
at https://www.osha.gov/coronavirus/ets. In its withdrawal announcement, OSHA states that the recordkeeping and https://www.osha.gov/coronavirus/ets. In its withdrawal announcement, OSHA states that the recordkeeping and
reporting requirements are authorized by Section 8 of the OSH Act (29 U.S.C. §657) and thus are not subject to the six-reporting requirements are authorized by Section 8 of the OSH Act (29 U.S.C. §657) and thus are not subject to the six-
month time limit of the ETS. month time limit of the ETS.
36 For additional information on OSHA’s COVID-19 recordkeeping and reporting requirements for employers not 36 For additional information on OSHA’s COVID-19 recordkeeping and reporting requirements for employers not
covered by the ETS, see the section “COVID-19 Recordkeeping” later in this report. covered by the ETS, see the section “COVID-19 Recordkeeping” later in this report.
37 29 C.F.R. §502(q)(2)(ii). 37 29 C.F.R. §502(q)(2)(ii).
38 29 C.F.R. §502(q)(3)(ii). 38 29 C.F.R. §502(q)(3)(ii).
39 29 C.F.R. §502(q)(3)(iii). 39 29 C.F.R. §502(q)(3)(iii).
40 29 C.F.R. §502(q)(3)(iv). 40 29 C.F.R. §502(q)(3)(iv).
41 29 C.F.R. §502(r)(1)(i). 41 29 C.F.R. §502(r)(1)(i).
42 29 C.F.R. §502(r)(1)(ii). 42 29 C.F.R. §502(r)(1)(ii).
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OSHA ETS on COVID-19 Vaccination and Testing—
~~Stayed by U.S. Supreme Court~~Withdrawn
On November 5, 2021, OSHA promulgated an ETS on COVID-19 vaccination and testing for all On November 5, 2021, OSHA promulgated an ETS on COVID-19 vaccination and testing for all
large employers.43 This ETS large employers.43 This ETS ~~requires~~required that all employers with 100 or more employees develop that all employers with 100 or more employees develop
written policies requiring that employees be fully vaccinated against COVID-19. As an written policies requiring that employees be fully vaccinated against COVID-19. As an
alternative, employers alternative, employers ~~may~~could develop written policies that allow employees to choose to either be develop written policies that allow employees to choose to either be
fully vaccinated against COVID-19 or provide proof of weekly negative COVID-19 tests and fully vaccinated against COVID-19 or provide proof of weekly negative COVID-19 tests and
wear face coverings while in the workplace. Employers wear face coverings while in the workplace. Employers ~~are~~would not not be required to pay for COVID-19 required to pay for COVID-19
tests or pay for or provide face coverings. Employers tests or pay for or provide face coverings. Employers ~~must~~were to develop vaccination and testing plans develop vaccination and testing plans
within 30 days of the publication of the ETS (December 5, 2021) and within 30 days of the publication of the ETS (December 5, 2021) and ~~must~~ enforce the enforce the
requirements for testing of unvaccinated employees within 60 days (January 4, 2022).44 requirements for testing of unvaccinated employees within 60 days (January 4, 2022).44
While the While the Federal Register announcement announcement ~~does~~did not specify a specific duration for the COVID-19 not specify a specific duration for the COVID-19
ETS, per the OSH Act, an ETS is effective until replaced by a permanent standard within six ETS, per the OSH Act, an ETS is effective until replaced by a permanent standard within six
months. The publication of the COVID-19 ETS in the months. The publication of the COVID-19 ETS in the Federal Register also included a request also included a request
for comments on the ETS and on whether the ETS should become a permanent standard. In the for comments on the ETS and on whether the ETS should become a permanent standard. In the
preamble to the ETS, OSHA preamble to the ETS, OSHA ~~provides~~provided that all state plans must adopt the ETS within 30 days of its that all state plans must adopt the ETS within 30 days of its
publication and notify OSHA within 15 days of the actions they plan to take to adopt the ETS.publication and notify OSHA within 15 days of the actions they plan to take to adopt the ETS.
~~The ETS is not retroactive.~~
Petitions for Judicial Review
and Withdrawal by OSHA Petitions for judicial review of the COVID-19 vaccination and testing ETS Petitions for judicial review of the COVID-19 vaccination and testing ETS ~~have been~~were filed by 27 filed by 27
states and numerous employers in the U.S. Courts of Appeals for the First, Fourth, Fifth, Sixth, states and numerous employers in the U.S. Courts of Appeals for the First, Fourth, Fifth, Sixth,
Seventh, Eighth, Ninth, Eleventh, and District of Columbia Circuits.45 In addition, labor unions Seventh, Eighth, Ninth, Eleventh, and District of Columbia Circuits.45 In addition, labor unions
and employee groups and employee groups ~~have~~ filed petitions for judicial review in the Second, Third, Fourth, Ninth, filed petitions for judicial review in the Second, Third, Fourth, Ninth,
Tenth, and District of Columbia Circuits. Tenth, and District of Columbia Circuits.
On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit ordered that the COVID-19 On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit ordered that the COVID-19
vaccination and ETS be stayed pending judicial review. This stay was reaffirmed by the court on vaccination and ETS be stayed pending judicial review. This stay was reaffirmed by the court on
November 12, 2021, and November 12, 2021, and ~~applies~~applied nationally.46 nationally.46
On November 16, 2021, the United States Judicial Panel on Multidistrict Litigation consolidated On November 16, 2021, the United States Judicial Panel on Multidistrict Litigation consolidated
the petitions for judicial review of the COVID-19 vaccination and testing ETS and randomly the petitions for judicial review of the COVID-19 vaccination and testing ETS and randomly
assigned these consolidated cases to the U.S. Court of Appeals for the Sixth Circuit.47 On December 17, 2021, the court dissolved the stay.
43 OSHA, “COVID-19 Vaccination and Testing; Emergency Temporary Standard,” 8643 OSHA, “COVID-19 Vaccination and Testing; Emergency Temporary Standard,” 86 Federal Register 61402, 61402,
November 5, 2021. November 5, 2021.
44 After the U.S. Court of Appeals for the Sixth Circuit dissolved the stay on the ETS, OSHA announced that it would 44 After the U.S. Court of Appeals for the Sixth Circuit dissolved the stay on the ETS, OSHA announced that it would
not issue citations for noncompliance with any provision of the ETS until January 10, 2022, and for noncompliance not issue citations for noncompliance with any provision of the ETS until January 10, 2022, and for noncompliance
with the testing requirements until February 9, 2022, provided employers are making good faith efforts to comply with with the testing requirements until February 9, 2022, provided employers are making good faith efforts to comply with
the ETS (OSHA, “Litigation Update,” December 17, 2022, the ETS (OSHA, “Litigation Update,” December 17, 2022, at https://www.osha.gov/coronavirus/ets2#litigation). https://www.osha.gov/coronavirus/ets2#litigation).
45 The states of Louisiana, Mississippi, South Carolina, Texas and Utah (Fifth Circuit); Idaho, Kansas, Kentucky, Ohio, 45 The states of Louisiana, Mississippi, South Carolina, Texas and Utah (Fifth Circuit); Idaho, Kansas, Kentucky, Ohio,
Oklahoma, Tennessee, and West Virginia (Sixth Circuit); Indiana (Seventh Circuit); Alaska, Arizona, Arkansas, Iowa, Oklahoma, Tennessee, and West Virginia (Sixth Circuit); Indiana (Seventh Circuit); Alaska, Arizona, Arkansas, Iowa,
Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming (Eighth Circuit); and Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming (Eighth Circuit); and
Alabama, Florida, and Georgia (Eleventh Circuit) Alabama, Florida, and Georgia (Eleventh Circuit) ~~are~~were plaintiffs in these cases. plaintiffs in these cases.
46 For additional information on judicial review of the OSHA COVID-19 vaccination and testing ETS, see CRS Legal 46 For additional information on judicial review of the OSHA COVID-19 vaccination and testing ETS, see CRS Legal
Sidebar LSB10658, Sidebar LSB10658, Fifth Circuit Stays OSHA Vaccination and Testing Standard. .
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~~assigned these consolidated cases to the U.S. Court of Appeals for the Sixth Circuit.47 On~~
~~December 17, 2021, the court dissolved the stay.~~
47 In Re: Occupational Safety and Health Administration, Interim Final Rule: COVID-19 Vaccination and Testing; Congressional Research Service 8 OSHA: ETS and COVID-19 On December 17, 2021, numerous states and other petitioners requested that the U.S. Supreme On December 17, 2021, numerous states and other petitioners requested that the U.S. Supreme
Court review the ETS by filing an application for a stay of the ETS and an alternative petition for Court review the ETS by filing an application for a stay of the ETS and an alternative petition for
writ of certiorari before judgment. On January 13, 2022, U.S. Supreme Court granted a stay writ of certiorari before judgment. On January 13, 2022, U.S. Supreme Court granted a stay
pending additional judicial review by the U.S. Court of Appeals for the Sixth Circuit.48 pending additional judicial review by the U.S. Court of Appeals for the Sixth Circuit.48
~~Congressional Action~~
~~On December 8, 2021, the Senate passed S.J.Res. 29, a joint resolution of disapproval of the~~
~~COVID-19 vaccination and testing ETS, under the provisions of the Congressional Review Act.49~~
~~The House of Representatives has not acted on this joint resolution. If this joint resolution is~~
~~enacted into law, which requires either the signature of the President or the overriding of a~~
~~presidential veto, the ETS would immediately cease to have any effect, and OSHA would be~~
~~prohibited from promulgating any rule that is “substantially the same” as the ETS unless~~
~~specifically permitted by a law enacted after the date of the joint resolution.50~~
~~Justification for the COVID-19 Vaccination and Testing ETS~~
~~In the preamble to the COVID-19 vaccination and testing published in the Federal Register,~~
~~OSHA provides a justification for the ETS. Specifically, OSHA cites the requirements in the OSH~~
~~Act that employees are exposed to grave danger from exposure to SARS-CoV-2 and that an ETS~~
~~is necessary to protect employees from such danger.~~
~~Grave Danger Determination~~
~~In its justification for the COVID-19 vaccination and testing ETS, OSHA states that it has found~~
~~that “employees can be exposed to the virus in almost any work setting; that exposure to SARS-~~
~~CoV-2 can lead to infection … and that infection in turn can cause death or serious impairment of~~
~~health, especially in those who are unvaccinated.”51~~
~~OSHA’s determination that COVID-19 meets the grave danger standard required for an ETS rests~~
~~on evidence and research on the following factors:~~
~~ the grave danger that all unvaccinated workers, with some exceptions, face from~~
~~SARS-Cov-2, including death and severe health effects;~~
~~ the increase in infectiousness and transmission, and possible increase in severity~~
~~of health effects from the B.1.617.2 (Delta) variant, which at the time accounted~~
~~for 99% of the COVID-19 circulating in the United States; and~~

47 ~~In Re: Occupational Safety and Health Administration, Interim Final Rule: COVID-19 Vaccination and Testing;~~
~~Emergency Temporary Standard, 86 Fed. Reg. 61402, Issued on November 4, 2021, MCP No. 165 (J.P.M.L. November~~
~~16, 2021).~~
48 ~~National Federation of Independent Business, et al. v. Department of Labor, Occupational Safety and Health~~
~~Administration, et al.~~ and Ohio, et al. v. Department of Labor, Occupational Safety and Health Administration, et al.
~~Nos. 21A244 and 21A247 (U.S.~~On January January 1325, 2022, OSHA announced that it was withdrawing the COVID-19 vaccination and testing ETS but that the ETS would continue to serve as a proposed permanent standard subject to the normal rulemaking process.49 Other OSHA Standards Related to COVID-19 While the COVID-19 ETS applies only to health care employers, all employers are required to comply with other OSHA standards that, while not specific to COVID-19, may cover situations related to the prevention of COVID-19 transmission in the workplace. OSHA may enforce the general duty clause in the absence of a standard if it can be determined that an employer has failed to provide a worksite free of “recognized hazards” that are “causing or are likely to cause death or serious physical harm” to workers.50 In addition, OSHA’s standards for the use of PPE may apply in cases in which workers require eye, face, hand, or respiratory protection against COVID-19 exposure.51 OSHA Respiratory Protection Standard National Institute for Occupational Safety and Health Certification The OSHA respiratory protection standard requires the use of respirators certified by NIOSH in cases in which engineering controls, such as ventilation or enclosure of hazards, are insufficient to protect workers from breathing contaminated air.52 Surgical masks, procedure masks, and dust masks are not considered respirators. NIOSH certifies respirators pursuant to federal regulations.53~~, 2022).~~
~~49 For additional information on the Congressional Review Act, see CRS In Focus IF10023,~~ ~~The Congressional Review~~
~~Act (CRA)~~.
~~50 5 U.S.C. §801(b).~~
~~51 OSHA, “COVID-19 Vaccination and Testing; Emergency Temporary Standard,” p. 61411.~~
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~~ evidence of pre-symptomatic and asymptomatic transmission of COVID-19.52~~
~~Necessity Determination~~
~~OSHA states that vaccination is the most effective strategy to control the spread of COVID-19~~
~~and that vaccination has advantages over non-pharmaceutical control strategies such as social~~
~~distancing.53 However, OSHA estimated that approximately 39% of workers who are covered by~~
~~the COVID-19 vaccination and testing ETS are not fully vaccinated against COVID-19.54 In~~
~~some states, laws or executive orders prohibit employers from implementing vaccine mandates~~
~~for their employees, necessitating a national standard to overcome these barriers to vaccination~~
~~and create a uniform national policy on vaccination.~~
~~OSHA justifies allowing employers to allow employees to opt out of getting vaccinated against~~
~~COVID-19 by submitting to weekly COVID-19 testing and wearing face coverings in the~~
~~workplace by stating that the “exigent circumstances” of the COVID-19 pandemic require OSHA~~
~~to promulgate an ETS without having the opportunity to fully study the “potential spectrum of~~
~~impacts on employers and employees, including the economic and health impacts, that would~~
~~occur if OSHA imposed a strict vaccination mandate with no alternative compliance option.”55~~
~~OSHA notes that as part of the process of promulgating a permanent standard on vaccination~~
~~required by Section 6(c) of the OSH Act, the agency is soliciting public comments on whether a~~
~~vaccine mandate without any options of alternative means of compliance is warranted.56~~
~~Employers Covered by the COVID-19 Vaccination and Testing ETS~~
~~The COVID-19 vaccination and testing ETS covers all employers with 100 or more employees at~~
~~any time the ETS is in effect with the following exceptions:57~~
~~ workplaces covered by the vaccination rules provided in the “Guidance for~~
~~Federal Contractors and Subcontractors” issued by the Safer Federal Workforce~~
~~Task Force, including executive branch agencies with the exception of the U.S.~~
~~Postal Service;58 and~~
~~ work settings covered by the COVID-19 ETS for health care employers.~~
~~When determining the number of employees for an employer, all employees are counted,~~
~~including those at multiple worksites owned by the employer; part-time and seasonal employees;~~
~~and persons working remotely, from home, or otherwise not working in a physical office.59~~

~~52 Ibid., at pp. 61408-61424.~~
~~53 Ibid., at p. 61434.~~
~~54 Ibid., at p. 61431.~~
~~55 Ibid., at p. 61436.~~
~~56 The request for comments is included in the preamble to the ETS at pp. 61403-61404.~~
~~57 29 C.F.R. §§1910.501(b)(1) and (2). The ETS is part of the OSHA standards for general industry. The OSHA~~
~~standards for employers in marine terminals, longshoring, construction, and agriculture incorporate the provisions of~~
~~the ETS by reference.~~
~~58 Safer Federal Workforce Task Force,~~ ~~COVID-19 Workplace Safety: Guidance for Federal Contractors and~~
~~Subcontractors, September 24, 2021, https://www.saferfederalworkforce.gov/downloads/~~
~~Draft%20contractor%20guidance%20doc_20210922.pdf.~~
~~59 OSHA, “COVID-19 Vaccination and Testing, Emergency Temporary Standard,” pp. 61513-61514.~~
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~~OSHA: ETS and COVID-19~~

~~In the preamble to the COVID-19 vaccination and testing ETS, OSHA provides the following~~
~~reasons why the ETS does not apply to employers with fewer than 100 employees:~~
~~ the agency lacks confidence in the feasibility of small employers to comply with~~
~~the ETS;~~
~~ the 100-employee threshold allows the ETS to cover two-thirds of private sector~~
~~workers in the United States;~~
~~ the 100-employee threshold will allow the ETS to cover the largest workplace~~
~~facilities, where the deadliest COVID-19 outbreaks can occur; and~~
~~ an employee threshold for compliance has been used by federal agencies, such as~~
~~the Equal Employment Opportunity Commission, and by Congress in enacting~~
~~legislation such as the Family First Coronavirus Response Act (P.L. 116-127),~~
~~Affordable Care Act (P.L. 111-148), and Family and Medical Leave Act (P.L.~~
~~103-3).60~~
~~The COVID-19 vaccination and testing ETS does not apply to workers who~~
~~ do not work in settings where other people, such as coworkers or customers, are~~
~~present;~~
~~ work from home; or~~
~~ work exclusively outdoors.61~~
~~However, these workers are counted when determining if an employee meets the 100-employee~~
~~threshold.~~
~~Key Elements of the COVID-19 Vaccination and Testing ETS~~
~~Mandatory Vaccination Policy~~
~~A covered employer is required to establish, implement, and enforce a written mandatory~~
~~vaccination policy. This policy must require the vaccination of all covered employees, as soon as~~
~~practicable, with the following exceptions:~~
~~ employees for whom a vaccine is medically contraindicated,~~
~~ employees for whom a delay in vaccination is medically necessary, and~~
~~ employees who are legally entitled to reasonable accommodations under federal~~
~~law because they have disabilities or religious beliefs that conflict with the~~
~~vaccine requirement.62~~
~~An employee is considered to be fully vaccinated when two weeks has elapsed from the final~~
~~dose of a COVID-19 vaccine that is approved or authorized for emergency use by the FDA, listed~~
~~for emergency use by the World Health Organization, or administered in the United States as part~~
~~of a clinical trial.63~~

~~60 Ibid., at pp. 61512-61513.~~
~~61 29 C.F.R. §1910.501(b)(3).~~
~~62 29 C.F.R. §§1910.501(c) and (d)(1).~~
~~63 29 C.F.R. §1910.501(c).~~
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~~OSHA: ETS and COVID-19~~

~~A covered employer may, but is not required to, establish, implement, and enforce a written~~
~~policy that permits any employee to choose between being fully vaccinated or providing proof of~~
~~a negative COVID-19 test at least once every seven days and wearing a face covering in the~~
~~workplace.64 The employer is not required to provide or pay for the COVID-19 testing or face~~
~~covering.65~~
~~A COVID-19 test used to permit an employee to work without being fully vaccinated must be~~
~~cleared, approved, or authorized by the FDA, including in an EUA, to detect current SARS-CoV-~~
~~2 infection. The test must be administered in accordance with its instructions. The test cannot be~~
~~self-administered and self-read unless observed by the employer or a telehealth provider.66~~
~~Determination of Vaccination Status~~
~~Covered employers must require their employees to provide proof of vaccination status. Any~~
~~employee who does not submit acceptable proof of full vaccination is considered to be~~
~~unvaccinated.67 The following are acceptable forms of proof of vaccination status:~~
~~ record of immunization from a health care provider or pharmacy;~~
~~ copy of the COVID-19 Vaccine Record Card;~~
~~ medical records documenting the vaccination;~~
~~ copy of immunization records from a public health, state, or tribal immunization~~
~~information service;~~
~~ any other official documentation that contains the type of vaccine administered,~~
~~the dates of administration, and the name of the person or site that administered~~
~~the vaccine.68~~
~~An employee who is unable to provide acceptable proof of vaccination may provide a signed~~
~~statement attesting to his or her vaccination status and that he or she has lost or is otherwise~~
~~unable to provide acceptable proof of vaccination. The attestation statement of the employee must~~
~~include the following language:~~
~~I declare (or certify, verify, or state) that this statement about my vaccination status is true~~
~~and accurate. I understand that knowingly providing false information regarding my~~
~~vaccination status on this form may subject me to criminal penalties.69~~
~~Employers are required to maintain records of employee vaccination and rosters of vaccinated~~
~~employees for the duration of the time the ETS is in effect.70 An employer who has determined~~
~~the vaccination status of an employee before the effective date of the ETS is not required to~~
~~receive additional documentation from the employee.71~~

~~64 29 C.F.R. §1910.501(d)(2).~~
~~65 29 C.F.R. §§1910.501(g)(1) Note 1 and (i) Note 2.~~
~~66 29 C.F.R. §1910.501(c).~~
~~67 29 C.F.R. §1910.501(e)(3).~~
~~68 29 C.F.R. §1910.501(e)(2).~~
~~69 29 C.F.R. §1910.501(e)(2)(vi).~~
~~70 29 C.F.R. §1910.501(e)(4).~~
~~71 29 C.F.R. §1910.501(e)(5).~~
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~~Employer Support and Paid Leave for Vaccination~~
~~Covered employers must provide employees paid leave of up to four hours for the employee to~~
~~travel to and from a vaccination site and receive each vaccination dose, for a total of eight hours~~
~~of leave. The employee is not required to pay for travel expenses.72~~
~~Covered employers must provide paid sick leave, which can include the use of an employee’s~~
~~accrued sick leave, to allow employees reasonable time off of work to recover from the side~~
~~effects of each vaccine dose.73~~
~~COVID-19 Testing for Employees Not Fully Vaccinated~~
~~Covered employers must ensure that all employees who are not fully vaccinated, either because~~
~~of a medical or religious exemption from the vaccine requirements or as part of an employer’s~~
~~policy that allows testing in lieu of vaccination, are tested for COVID-19 as follows:~~
~~ an employee who reports, at least once every seven days, to a workplace where~~
~~other people are present must be tested at least once every seven days and present~~
~~the result of the test to the employer within seven days of providing the last test~~
~~result to the employer; and~~
~~ an employee who reports, less than once every seven days, to a workplace where~~
~~other people are present must be tested within seven days of returning to such a~~
~~workplace and must present the test result to the employer before returning to~~
~~such a workplace.74~~
~~An employer may not require any employee to be tested for COVID-19 within 90 days following~~
~~a positive COVID-19 test or diagnosis.75 Employers must keep records of employee COVID-19~~
~~tests for the duration of time the ETS is in effect.76~~
~~An employer is not required to provide or pay for COVID-19 tests for employees or provide any~~
~~paid time off for testing.77 A COVID-19 test used to permit an employee to work without being~~
~~fully vaccinated must be cleared, approved, or authorized by the FDA, including in an EUA, to~~
~~detect current SARS-CoV-2 infection. The test must be administered in accordance with its~~
~~instructions. The test cannot be self-administered and self-read unless observed by the employer~~
~~or a telehealth provider.78~~
~~Employee Notification of Positive COVID-19 Test and Removal~~
~~Covered employers must require that all employees notify them of any positive COVID-19 test or~~
~~diagnosis. Employers must remove any employees with positive COVID-19 tests or diagnoses~~
~~from the workplace until one of the following takes place:~~

~~72 29 C.F.R. §1910.501(f)(1).~~
~~73 29 C.F.R. §1910.501(f)(2).~~
~~74 29 C.F.R. §1910.501(g)(1).~~
~~75 29 C.F.R. §501(g)(3).~~
~~76 29 C.F.R. §501(g)(4).~~
~~77 29 C.F.R. §1910.501(g)(1) Note 1.~~
~~78 29 C.F.R. §1910.501(c).~~
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~~ the employee receives a negative result on a COVID-19 nucleic acid~~
~~amplification test (NAAT), such as a reverse-transcription polymerase chain~~
~~reaction (RT-PCR) test, following an antigen test;~~
~~ the employee meets the criteria to return to work provided in the CDC document~~
~~COVID-19: Isolation If You Are Sick; Separate Yourself from Others If You Have~~
~~COVID-19, updated February 18, 2021;79 or~~
~~ the employee receives a recommendation to return to work from a licensed health~~
~~care provider.80~~
~~The employer is not required to provide any paid leave to employees who are removed from work~~
~~due to a positive COVID-19 test or diagnosis and covered by this ETS.81 This differs from the~~
~~medical removal provisions of the COVID-19 ETS for health care employers, which includes~~
~~paid medical removal.82~~
~~Face Coverings~~
~~Covered employers must require that all employees who are not fully vaccinated wear face~~
~~coverings when indoors in the workplace or when in a work vehicle with another person, except~~
~~when wearing a face covering is not feasible or creates a hazard.83 A face covering must~~
~~ completely cover the nose and mouth;~~
~~ be made of two or more layers of breathable fabric that is tightly woven such that~~
~~light does not pass through when held up to a light source;~~
~~ be secured with ties, ear loops, or elastic bands that go behind the head or is a~~
~~gaiter with either two layers of fabric or folded into two layers;~~
~~ fit snugly over the nose, mouth, and chin with no large gaps on the outside of the~~
~~face;~~
~~ have no slits, holes, exhalation valves, or other openings; and~~
~~ be replaced when wet, soiled, or damaged.84~~
~~An employer may not prevent any employee from wearing a face covering unless the employer~~
~~can demonstrate that wearing a face covering would create a hazard of injury or death, such as~~
~~interfering with the safe operation of equipment.85 An employer may not prohibit customers from~~
~~wearing face coverings.86~~

~~79 CDC, Isolation If You Are Sick; Separate Yourself from Others If You Have COVID-19, updated February 18, 2021,~~
~~https://www.osha.gov/sites/default/files/CDC's_Isolation_Guidance.pdf.~~
~~80 29 C.F.R. §1910.501(h)(2).~~
~~81 29 C.F.R. §1910.501(h)(2) Note 1.~~
~~82 29 C.F.R. §1910.502(l)(5)(iii).~~
~~83 29 C.F.R. §1910.501(i)(1).~~
~~84 29 C.F.R. §§1910.501(c), (i)(1), and (2).~~
~~85 29 C.F.R. §1910.501(i)(3).~~
~~86 29 C.F.R. §1910.501(i)(5).~~
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~~OSHA: ETS and COVID-19~~

~~An employer must permit employees to wear respirators and may provide respirators to~~
~~employees. If respirators are worn, the employer must comply with the mini-respiratory~~
~~protection provision of the COVID-19 ETS for health care employment.87~~
~~Information Provided to Employees~~
~~Covered employers must provide all employees with the following information, in appropriate~~
~~language and literacy levels:~~
~~ the requirements of the COVID-19 vaccination and testing ETS and employer~~
~~policies to comply with the ETS;~~
~~ the CDC document “Key Things to Know about COVID-19 Vaccines;”88~~
~~ the anti-retaliation and whistleblower protection provisions of the OSH Act and~~
~~OSHA standards; and~~
~~ the prohibitions of Title 18, Section 1001, of the U.S. Code and Section 17(g) of~~
~~the OSH Act89 which provide criminal penalties for knowingly supplying false~~
~~statements or documents.90~~
~~Reporting COVID-19 Fatalities and Hospitalizations to OSHA~~
~~Covered employers must report each work-related COVID-19 fatality to OSHA within eight~~
~~hours of the employer learning about the fatality and each work-related COVID-19 inpatient~~
~~hospitalization within 24 hours.91 A work-related COVID-19 fatality or hospitalization is one that~~
~~results from a COVID-19 exposure in the workplace.92~~
~~Availability of Records~~
~~Covered employers must make the following records available to specified individuals or~~
~~organizations in the following manner:~~
~~ an employee’s vaccine documentation and COVID-19 test results, by the end of~~
~~the following business day, to the employee or a person with the written consent~~
~~of the employee;~~
~~ the aggregate number of fully vaccinated employees and total number of~~
~~employees at a workplace, by the end of the next business day, to an employee or~~
~~employee representative;~~
~~ the employer’s written vaccine policy and aggregate number of fully vaccinated~~
~~employees and total number of employees, within four hours, to OSHA; and~~

~~87 29 C.F.R. §1910.501(i)(4), incorporating 29 C.F.R. §1910.504 by reference.~~
~~88 CDC, Key Things to Know about COVID-19 Vaccines, October 7, 2021, https://www.cdc.gov/coronavirus/2019-~~
~~ncov/vaccines/keythingstoknow.html.~~
~~89 29 U.S.C. §666(f).~~
~~90 29 C.F.R. §501(j).~~
~~91 29 C.F.R. §501(k).~~
~~92 OSHA, “COVID-19 Vaccination and Testing, Emergency Temporary Standard,” pp. xxx (p. 454)~~
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~~ all documents and records required by the COVID-19 vaccination and testing~~
~~ETS, by the end of the next business day, to OSHA.93~~
~~Other OSHA Standards Related to COVID-19~~
~~While the COVID-19 ETS applies only to health care employers, all employers are required to~~
~~comply with other OSHA standards that, while not specific to COVID-19, may cover situations~~
~~related to the prevention of COVID-19 transmission in the workplace. OSHA may enforce the~~
~~general duty clause in the absence of a standard if it can be determined that an employer has~~
~~failed to provide a worksite free of “recognized hazards” that are “causing or are likely to cause~~
~~death or serious physical harm” to workers.94 In addition, OSHA’s standards for the use of PPE~~
~~may apply in cases in which workers require eye, face, hand, or respiratory protection against~~
~~COVID-19 exposure.95~~
~~OSHA Respiratory Protection Standard~~
~~National Institute for Occupational Safety and Health Certification~~
~~The OSHA respiratory protection standard requires the use of respirators certified by NIOSH in~~
~~cases in which engineering controls, such as ventilation or enclosure of hazards, are insufficient~~
~~to protect workers from breathing contaminated air.96 Surgical masks, procedure masks, and dust~~
~~masks are not considered respirators. NIOSH certifies respirators pursuant to federal~~
~~regulations.97~~ For nonpowered respirators, such as filtering face piece respirators commonly used For nonpowered respirators, such as filtering face piece respirators commonly used
in health care and construction, NIOSH classifies respirators based on their efficiency at filtering in health care and construction, NIOSH classifies respirators based on their efficiency at filtering
airborne particles and their ability to protect against oil particles. Under the NIOSH classification airborne particles and their ability to protect against oil particles. Under the NIOSH classification
system, the letter (N, R, or P) indicates the level of oil protection as follows: N—no oil system, the letter (N, R, or P) indicates the level of oil protection as follows: N—no oil
protection; R—oil resistant; and P—oil proof. The number following the letter indicates the protection; R—oil resistant; and P—oil proof. The number following the letter indicates the
efficiency rating of the respirator as follows: 95—filters 95% of airborne particles; 97—filters efficiency rating of the respirator as follows: 95—filters 95% of airborne particles; 97—filters
97% of airborne particles; and 100—filters 99.7% of airborne particles. Thus an N95 respirator, 97% of airborne particles; and 100—filters 99.7% of airborne particles. Thus an N95 respirator,
the most common type, is one that does not protect against oil particles and filters out 95% of the most common type, is one that does not protect against oil particles and filters out 95% of
airborne particles. An R or P respirator can be used in place of an N respirator. airborne particles. An R or P respirator can be used in place of an N respirator.
~~A respirator that is past its manufacturer-designated shelf life is no longer considered to be~~
~~certified by NIOSH. However, in response to potential shortages in respirators, NIOSH has tested~~
~~and approved certain models of respirators for certified use beyond their manufacturer-designated~~
~~shelf lives.98~~
~~Respirators designed for certain medical and surgical uses are subject to both certification by~~
~~NIOSH (for oil protection and efficiency) and regulation by the FDA as medical devices. In~~
~~general, respirators with exhalation valves cannot be used in surgical and certain medical settings~~

~~93 29 C.F.R. §501(l).~~
~~94 29 U.S.C. §654(a)(1).~~
~~95 29 C.F.R. §§1910.133, 1910.134, and 1910.138.~~
~~96 29 C.F.R. §1910.134.~~
~~97 42 C.F.R. Part 84.~~
~~98 NIOSH,~~ ~~Release of Stockpiled Filtering Facepiece Respirators Beyond the Manufacturer-Designated Shelf Life:~~
~~Considerations for the COVID-19 Response, February 28, 2020, at https://www.cdc.gov/coronavirus/2019-ncov/~~
~~release-stockpiled-N95.html.~~
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Emergency Temporary Standard, 86 Fed. Reg. 61402, Issued on November 4, 2021, MCP No. 165 (J.P.M.L. November 16, 2021). 48 National Federation of Independent Business, et al. v. Department of Labor, Occupational Safety and Health Administration, et al. and Ohio, et al. v. Department of Labor, Occupational Safety and Health Administration, et al. Nos. 21A244 and 21A247 (U.S. January 13, 2022). 49 OSHA, Statement on the Status of the COVID-19 Vaccination and Testing ETS, January 25, 2022, at https://www.osha.gov/coronavirus/ets2. 50 29 U.S.C. §654(a)(1). 51 29 C.F.R. §§1910.133, 1910.134, and 1910.138. 52 29 C.F.R. §1910.134. 53 42 C.F.R. Part 84. Congressional Research Service 9 OSHA: ETS and COVID-19 A respirator that is past its manufacturer-designated shelf life is no longer considered to be certified by NIOSH. However, in response to potential shortages in respirators, NIOSH has tested and approved certain models of respirators for certified use beyond their manufacturer-designated shelf lives.54 Respirators designed for certain medical and surgical uses are subject to both certification by NIOSH (for oil protection and efficiency) and regulation by the FDA as medical devices. In general, respirators with exhalation valves cannot be used in surgical and certain medical settings because, although the presence of an exhalation valve does not affect the respirator’s protection because, although the presence of an exhalation valve does not affect the respirator’s protection
afforded the user, it may allow unfiltered air from the user into a sterile field. On March 2, 2020, afforded the user, it may allow unfiltered air from the user into a sterile field. On March 2, 2020,
FDA issued an EUA to approve for use in medical settings certain NIOSH-certified respirators FDA issued an EUA to approve for use in medical settings certain NIOSH-certified respirators
not previously regulated by FDA.not previously regulated by FDA.9955
Medical Evaluation and Fit Testing
The OSHA respiratory protection standard requires that the employer provide a medical The OSHA respiratory protection standard requires that the employer provide a medical
evaluation to the employee to determine if the employee is physiologically able to use a evaluation to the employee to determine if the employee is physiologically able to use a
respirator. This medical evaluation must be completed before any fit testing. For respirators respirator. This medical evaluation must be completed before any fit testing. For respirators
designed to fit tightly against the face, the specific type and model of respirator that an employee designed to fit tightly against the face, the specific type and model of respirator that an employee
is to use must be fit tested in accordance with the procedures provided in Appendix A of the is to use must be fit tested in accordance with the procedures provided in Appendix A of the
OSHA respiratory protection standard to ensure there is a complete seal around the respirator OSHA respiratory protection standard to ensure there is a complete seal around the respirator
when worn.when worn.~~100~~56 Once an employee has been fit tested for a respirator, he or she is required to be fit Once an employee has been fit tested for a respirator, he or she is required to be fit
tested annually or whenever the model of respirator, but not the actual respirator itself, is tested annually or whenever the model of respirator, but not the actual respirator itself, is
changed. Each time an individual uses a respirator, he or she is required to perform a check of the changed. Each time an individual uses a respirator, he or she is required to perform a check of the
seal of the respirator to his or her face in accordance with the procedures provided in Appendix B seal of the respirator to his or her face in accordance with the procedures provided in Appendix B
of the standard.of the standard.~~101~~57 On March 14, 2020, OSHA issued guidance permitting employers to suspend On March 14, 2020, OSHA issued guidance permitting employers to suspend
annual fit testing of respirators for employees that have already been fit tested on the same model annual fit testing of respirators for employees that have already been fit tested on the same model
respirator. respirator.
Temporary OSHA Enforcement Guidance on the Respiratory Protection
Standard
In response to shortages of respirators and other PPE during the national response to the COVID- In response to shortages of respirators and other PPE during the national response to the COVID-
19 pandemic, OSHA has issued five sets of temporary enforcement guidance to permit the 19 pandemic, OSHA has issued five sets of temporary enforcement guidance to permit the
following exceptions to the respiratory protection standard: following exceptions to the respiratory protection standard:
1. employers may suspend annual fit testing of respirators for employees that have 1. employers may suspend annual fit testing of respirators for employees that have
already been fit tested on the same model respirator; already been fit tested on the same model respirator;~~102~~
~~2. employers may permit the use of expired respirators and the extended use or~~
~~reuse of respirators, provided the respirator maintains its structural integrity and~~
~~is not damaged, soiled, or contaminated (e.g., with blood, oil, or paint);103~~
~~3. employers may permit the use of respirators not certified by NIOSH, but~~
~~approved under standards used by the following countries or jurisdictions, in~~

9958 54 NIOSH, Release of Stockpiled Filtering Facepiece Respirators Beyond the Manufacturer-Designated Shelf Life: Considerations for the COVID-19 Response, February 28, 2020, at https://www.cdc.gov/coronavirus/2019-ncov/release-stockpiled-N95.html. 55 Letter from RADM Denise M. Hinton, chief scientist, FDA, to Robert R. Redfield, Director, CDC, March 2, 2020, at Letter from RADM Denise M. Hinton, chief scientist, FDA, to Robert R. Redfield, Director, CDC, March 2, 2020, at
https://www.fda.gov/media/135763/download. https://www.fda.gov/media/135763/download.
~~100~~56 29 C.F.R. §1910.134 Appendix A. PAPRs that do not require a seal to the user’s face do not need to be fit tested. 29 C.F.R. §1910.134 Appendix A. PAPRs that do not require a seal to the user’s face do not need to be fit tested.
~~101~~57 29 C.F.R. §1910.134 Appendix B. 29 C.F.R. §1910.134 Appendix B.
~~102~~58 OSHA, OSHA, Temporary Enforcement Guidance—Health Care Respiratory Protection Annual Fit-Testing for N95
Filtering Facepieces During the COVID-19 Outbreak, March 14, 2020, at https://www.osha.gov/memos/2020-03-14/, March 14, 2020, at https://www.osha.gov/memos/2020-03-14/
temporary-enforcement-guidance-healthcare-respiratory-protection-annual-fit; and OSHA temporary-enforcement-guidance-healthcare-respiratory-protection-annual-fit; and OSHA Expanded Temporary
Enforcement Guidance on Respiratory Protection Fit-Testing for N95 Filtering Facepieces in All Industries During the
Coronavirus Disease 2019 (COVID-19) Pandemic, April 8, 2020, at https://www.osha.gov/memos/2020-04-08/, April 8, 2020, at https://www.osha.gov/memos/2020-04-08/
~~expanded-temporary-enforcement-guidance-respiratory-protection-fit-testing-n95.~~
~~103 OSHA,~~ ~~Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the Coronavirus Disease~~
~~2019 (COVID-19) Pandemic, April 3, 2020, at https://www.osha.gov/memos/2020-04-03/enforcement-guidance-~~
~~respiratory-protection-and-n95-shortage-due-coronavirus. Under this guidance, employers are required to address in~~
~~their written respiratory protection plans when respirators are contaminated and not available for use or reuse.~~
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Congressional Research Service 10 OSHA: ETS and COVID-19 2. employers may permit the use of expired respirators and the extended use or reuse of respirators, provided the respirator maintains its structural integrity and is not damaged, soiled, or contaminated (e.g., with blood, oil, or paint);59 3. employers may permit the use of respirators not certified by NIOSH, but approved under standards used by the following countries or jurisdictions, in accordance with the protection equivalency tables provided in Appendices A and accordance with the protection equivalency tables provided in Appendices A and
B of the enforcement guidance document: B of the enforcement guidance document:
 Australia,  Australia,
 Brazil,  Brazil,
 European Union,  European Union,
 Japan,  Japan,
 Mexico,  Mexico,
 People’s Republic of China, and  People’s Republic of China, and
 Republic of Korea. Republic of Korea.~~104~~60
4. employers may permit the re-use of respirators decontaminated in accordance 4. employers may permit the re-use of respirators decontaminated in accordance
with CDC decontamination guidance; with CDC decontamination guidance;~~105~~61 and and
5. employers may permit the use of NIOSH-approved tight-fitting PAPRs in place 5. employers may permit the use of NIOSH-approved tight-fitting PAPRs in place
of respirators when respirator fit testing is not feasible due to supply issues. of respirators when respirator fit testing is not feasible due to supply issues.~~106~~62
COVID-19 Recordkeeping
Sections 8(c) and 24(a) of the OSH Act require employers to maintain records of occupational Sections 8(c) and 24(a) of the OSH Act require employers to maintain records of occupational
injuries and illnesses in accordance with OSHA regulations.injuries and illnesses in accordance with OSHA regulations.~~107~~63 OSHA’s reporting and OSHA’s reporting and
recordkeeping regulations require that employers with 10 or more employees must keep records recordkeeping regulations require that employers with 10 or more employees must keep records
of work-related injuries and illnesses that result in lost work time for employees or that require of work-related injuries and illnesses that result in lost work time for employees or that require
medical care beyond first aid.medical care beyond first aid.~~108~~64 Employers must also report to OSHA, within eight hours, any Employers must also report to OSHA, within eight hours, any
workplace fatality and, within 24 hours, any injury or illness that results in in-patient workplace fatality and, within 24 hours, any injury or illness that results in in-patient
hospitalization, amputation, or loss of an eye. Employers in certain industries determined by hospitalization, amputation, or loss of an eye. Employers in certain industries determined by
~~OSHA to have lower occupational safety and health hazards are listed in the regulations as being~~
~~exempt from the recordkeeping requirements but not the requirement to report to OSHA serious~~
~~injuries, illnesses, and deaths.109 Offices of physicians, dentists, other health practitioners and~~
~~outpatient medical clinics are included in the industries that are exempt from the recordkeeping~~
~~requirements.~~

~~104~~ expanded-temporary-enforcement-guidance-respiratory-protection-fit-testing-n95. 59 OSHA, Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the Coronavirus Disease 2019 (COVID-19) Pandemic, April 3, 2020, at https://www.osha.gov/memos/2020-04-03/enforcement-guidance-respiratory-protection-and-n95-shortage-due-coronavirus. Under this guidance, employers are required to address in their written respiratory protection plans when respirators are contaminated and not available for use or reuse. 60 OSHA, OSHA, Enforcement Guidance for Use of Respiratory Protection Equipment Certified under Standards of Other
Countries or Jurisdictions During the Coronavirus Disease 2019 (COVID-19) Pandemic, April 3, 2020, at , April 3, 2020, at
https://www.osha.gov/memos/2020-04-03/enforcement-guidance-use-respiratory-protection-equipment-certified-under. https://www.osha.gov/memos/2020-04-03/enforcement-guidance-use-respiratory-protection-equipment-certified-under.
~~105~~61 OSHA, OSHA, Enforcement Guidance on Decontamination of Filtering Facepiece Respirators in Healthcare During the
Coronavirus Disease 2019 (COVID-19) Pandemic, April 24, 2021, at https://www.osha.gov/memos/2020-04-24/, April 24, 2021, at https://www.osha.gov/memos/2020-04-24/
enforcement-guidance-decontamination-filtering-facepiece-respirators-healthcare; and CDC, enforcement-guidance-decontamination-filtering-facepiece-respirators-healthcare; and CDC, Implementing Filtering
Facepiece Respirator (FFR) Reuse, Including Reuse after Decontamination, When There Are Known Shortages of N95
Respirators, October 19, 2021, at https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/decontamination-, October 19, 2021, at https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/decontamination-
reuse-respirators.html. reuse-respirators.html.
~~106~~62 OSHA, OSHA, Temporary Enforcement Guidance—Tight-Fitting Powered Air Purifying Respirators (PAPRs) Used During
the Coronavirus Disease 2019 (COVID-19) Pandemic, October 2, 2021, at https://www.osha.gov/memos/2020-10-02/c, October 2, 2021, at https://www.osha.gov/memos/2020-10-02/
temporary-enforcement-guidance-tight-fitting-powered-air-purifying-respirators. temporary-enforcement-guidance-tight-fitting-powered-air-purifying-respirators.
~~107~~63 29 U.S.C. §§657(c) and 673(a). 29 U.S.C. §§657(c) and 673(a).
~~108~~64 OSHA’s reporting and recordkeeping regulations are at Title 29, Part 1904, of the OSHA’s reporting and recordkeeping regulations are at Title 29, Part 1904, of the Code of Federal Regulations. .
~~109 The list of exempted industries is at Title 29, Subpart B, Appendix A, of the Code of Federal Regulations. States~~
~~with state occupational safety and health plans may require employers in these exempted industries to comply with the~~
~~recordkeeping requirements.~~
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Congressional Research Service 11 OSHA: ETS and COVID-19 OSHA to have lower occupational safety and health hazards are listed in the regulations as being exempt from the recordkeeping requirements but not the requirement to report to OSHA serious injuries, illnesses, and deaths.65 Offices of physicians, dentists, other health practitioners and outpatient medical clinics are included in the industries that are exempt from the recordkeeping requirements.
OSHA regulations require the employer to determine if an employee’s injury or illness is related OSHA regulations require the employer to determine if an employee’s injury or illness is related
to his or her work and thus subject to the recordkeeping requirements.to his or her work and thus subject to the recordkeeping requirements.~~110~~66 The regulations provide The regulations provide
a a presumption that an injury or illness that occurs in the workplace is work-related and recordable presumption that an injury or illness that occurs in the workplace is work-related and recordable
unless one of the exemptions provided in the regulations applies.unless one of the exemptions provided in the regulations applies.~~111~~67 One of the listed exemptions One of the listed exemptions
is “The illness is the common cold or flu (Note: contagious diseases such as tuberculosis, is “The illness is the common cold or flu (Note: contagious diseases such as tuberculosis,
brucellosis, hepatitis A, or plague are considered work-related if the employee is infected at brucellosis, hepatitis A, or plague are considered work-related if the employee is infected at
work).”work).”~~112~~68
Because of the nature of COVID-19 transmission, which can occur outside of work as well as in Because of the nature of COVID-19 transmission, which can occur outside of work as well as in
the workplace, it can be difficult to determine the exact source of any person’s COVID-19 the workplace, it can be difficult to determine the exact source of any person’s COVID-19
transmission. Absent any specific guidance, this may make it difficult for employers to determine transmission. Absent any specific guidance, this may make it difficult for employers to determine
if an employee’s COVID-19 is subject to the recordkeeping requirements. if an employee’s COVID-19 is subject to the recordkeeping requirements.
Initial OSHA Recordkeeping Guidance
On April 10, 2020, OSHA issued enforcement guidance on how cases of COVID-19 should be On April 10, 2020, OSHA issued enforcement guidance on how cases of COVID-19 should be
treated under the recordkeeping requirements.treated under the recordkeeping requirements.~~113~~69 This guidance stated that COVID-19 cases were This guidance stated that COVID-19 cases were
recordable if they were work-related. recordable if they were work-related.
Under this guidance, employers in the following industry groups were to fully comply with the Under this guidance, employers in the following industry groups were to fully comply with the
recordkeeping regulations, including the requirement to determine if COVID-19 cases were recordkeeping regulations, including the requirement to determine if COVID-19 cases were
work-related: work-related:
 health care;  health care;
 emergency response, including firefighting, emergency medical services, and law  emergency response, including firefighting, emergency medical services, and law
enforcement; and enforcement; and
 correctional institutions.  correctional institutions.
For all other employers, OSHA required employers to determine if COVID-19 cases were work- For all other employers, OSHA required employers to determine if COVID-19 cases were work-
related and subject to the recordkeeping requirements only if both of the following two conditions related and subject to the recordkeeping requirements only if both of the following two conditions
were met: were met:
1. There was objective evidence that a COVID-19 case may have been work- 1. There was objective evidence that a COVID-19 case may have been work-
related. This could have included, for example, a number of cases developing related. This could have included, for example, a number of cases developing
among workers who worked closely together without an alternative explanation. among workers who worked closely together without an alternative explanation.
2. The evidence of work-relatedness was reasonably available to the employer. For 2. The evidence of work-relatedness was reasonably available to the employer. For
purposes of this guidance, examples of reasonably available evidence included purposes of this guidance, examples of reasonably available evidence included
~~information given to the employer by employees, as well as information that an~~
~~employer learned regarding its employees’ health and safety in the ordinary~~
~~course of managing its business and employees.~~

~~110 29 C.F.R. §1904.5.~~
~~111 29 C.F.R. §1905.5(a).~~
~~112 29 C.F.R. §1904.5(b)(2)(viii).~~
~~113~~ 65 The list of exempted industries is at Title 29, Subpart B, Appendix A, of the Code of Federal Regulations. States with state occupational safety and health plans may require employers in these exempted industries to comply with the recordkeeping requirements. 66 29 C.F.R. §1904.5. 67 29 C.F.R. §1905.5(a). 68 29 C.F.R. §1904.5(b)(2)(viii). 69 OSHA, OSHA, Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), April 10, 2020, , April 10, 2020,
at https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19. https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19.
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~~OSHA: ETS and COVID-19~~

Updated OSHA Recordkeeping Guidance
OSHA issued new guidance, effective May 26, 2020, on recordkeeping of COVID-19 cases.OSHA issued new guidance, effective May 26, 2020, on recordkeeping of COVID-19 cases.~~114~~70
This new guidance rescinds the previous guidance issued by OSHA on April 10, 2020. Under this This new guidance rescinds the previous guidance issued by OSHA on April 10, 2020. Under this
new guidance, all employers, regardless of type of industry or employment, are subject to the new guidance, all employers, regardless of type of industry or employment, are subject to the
recordkeeping and reporting regulations for work-related cases of COVID-19. To determine if an recordkeeping and reporting regulations for work-related cases of COVID-19. To determine if an
employer has made a reasonable determination that a case of COVID-19 was work-related, employer has made a reasonable determination that a case of COVID-19 was work-related,
OSHA says it will consider the following factors: OSHA says it will consider the following factors:
 the reasonableness of the employer’s investigation of the COVID-19 case and its  the reasonableness of the employer’s investigation of the COVID-19 case and its
transmission to the employee, transmission to the employee,
 the evidence that is available to the employer, and  the evidence that is available to the employer, and
 the evidence that COVID-19 was contracted at work.  the evidence that COVID-19 was contracted at work.
The guidance provides examples of evidence that can be used to demonstrate that a COVID-19 The guidance provides examples of evidence that can be used to demonstrate that a COVID-19
case was or was not work-related, such as if an employee had frequent close contact with case was or was not work-related, such as if an employee had frequent close contact with
members of the public in an area with ongoing community transmission of COVID-19. members of the public in an area with ongoing community transmission of COVID-19.
Injuries and Illnesses Caused by the COVID-19 Vaccine Are Not Subject to
Recording and Reporting Requirements
OSHA guidance, issued in the form of questions and answers on the OSHA COVID-19 OSHA guidance, issued in the form of questions and answers on the OSHA COVID-19
Frequently Asked Questions webpage on May 22, 2021, provides that the agency will not require Frequently Asked Questions webpage on May 22, 2021, provides that the agency will not require
any employers to record or report any injuries or illness resulting from the COVID-19 vaccine any employers to record or report any injuries or illness resulting from the COVID-19 vaccine
even if vaccination is a condition of employment. This guidance is to remain in effect through even if vaccination is a condition of employment. This guidance is to remain in effect through
May 2022.May 2022.~~115~~71
Whistleblower Protections
Section 11(c) of the OSH Act prohibits any person from retaliating or discriminating against any Section 11(c) of the OSH Act prohibits any person from retaliating or discriminating against any
employee who exercises certain rights provided by the OSH Act.employee who exercises certain rights provided by the OSH Act.~~116~~72 Commonly referred to as the Commonly referred to as the
whistleblower protection provision, this provision protects any employee who takes any of the whistleblower protection provision, this provision protects any employee who takes any of the
following actions: following actions:
 files a complaint with OSHA related to a violation of the OSH Act;  files a complaint with OSHA related to a violation of the OSH Act;
 causes an OSHA proceeding, such as an investigation, to be instituted;  causes an OSHA proceeding, such as an investigation, to be instituted;
~~ testifies or is about to testify in any OSHA proceeding; and~~
~~ exercises on his or her own behalf, or on behalf of others, any other rights~~
~~afforded by the OSH Act.117~~

~~114~~70 OSHA, OSHA, Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), May 19, , May 19,
2020, 2020, at https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-
2019-covid-19. 2019-covid-19.
~~115~~71 OSHA, OSHA, COVID-19: Frequently Asked Questions, , at https://www.osha.gov/coronavirus/faqs#vaccine. This guidance https://www.osha.gov/coronavirus/faqs#vaccine. This guidance
supersedes previous guidance, issued on April 21, 2021, that required employers to record and report injuries and supersedes previous guidance, issued on April 21, 2021, that required employers to record and report injuries and
illnesses from the COVID-19 vaccine if the employers required the vaccine as a condition of employment. illnesses from the COVID-19 vaccine if the employers required the vaccine as a condition of employment.
~~116~~72 29 U.S.C. §660(c). OSHA also enforces whistleblower provisions in 22 other federal statutes. Information on 29 U.S.C. §660(c). OSHA also enforces whistleblower provisions in 22 other federal statutes. Information on
statutes with whistleblower provisions enforced by OSHA is at OSHA, statutes with whistleblower provisions enforced by OSHA is at OSHA, Whistleblower Statutes Summary Chart, ,
October 17, 2009, October 17, 2009, at https://www.whistleblowers.gov/sites/wb/files/2019-12/WB-Statute-Summary-Chart-10.8-Final.pdf. https://www.whistleblowers.gov/sites/wb/files/2019-12/WB-Statute-Summary-Chart-10.8-Final.pdf.
~~117 29 C.F.R. §1977.3. Public sector employees, except employees of the U.S. Postal Service, are not protected by the~~
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Congressional Research Service 13 OSHA: ETS and COVID-19  testifies or is about to testify in any OSHA proceeding; and  exercises on his or her own behalf, or on behalf of others, any other rights afforded by the OSH Act.73
Other rights afforded by the OSH Act that are covered by the whistleblower protection provision Other rights afforded by the OSH Act that are covered by the whistleblower protection provision
include the right to inform the employer about unsafe work conditions; the right to access include the right to inform the employer about unsafe work conditions; the right to access
material safety data sheets or other information required to be made available by the employer; material safety data sheets or other information required to be made available by the employer;
and the right to report a work-related injury, illness, or death to OSHA.and the right to report a work-related injury, illness, or death to OSHA.~~118~~74 In limited cases, the In limited cases, the
employee has the right to refuse to work if conditions reasonably present a risk of serious injury employee has the right to refuse to work if conditions reasonably present a risk of serious injury
or death and there is not sufficient time to eliminate the danger through other means.or death and there is not sufficient time to eliminate the danger through other means.~~119~~75
In the 116th Congress, the COVID-19 Every Worker Protection Act of 2020 (H.R. 6559/S. 3677) In the 116th Congress, the COVID-19 Every Worker Protection Act of 2020 (H.R. 6559/S. 3677)
would have required OSHA to promulgate an ETS and required the ETS and permanent standard would have required OSHA to promulgate an ETS and required the ETS and permanent standard
promulgated pursuant to the legislation to expand the protections for whistleblowers. The promulgated pursuant to the legislation to expand the protections for whistleblowers. The
following additional activities taken by employees would have granted them protection from following additional activities taken by employees would have granted them protection from
retaliation and discrimination from employers and agents of employers: retaliation and discrimination from employers and agents of employers:
 reporting to the employer; a local, state, or federal agency; or the media or on a  reporting to the employer; a local, state, or federal agency; or the media or on a
social media platform the following: social media platform the following:
 a violation of the ETS or permanent standard promulgated pursuant to  a violation of the ETS or permanent standard promulgated pursuant to
the legislation, the legislation,
 a violation of the infectious disease control plan required by the ETS or  a violation of the infectious disease control plan required by the ETS or
permanent standard, or permanent standard, or
 a good-faith concern about an infectious disease hazard in the workplace;  a good-faith concern about an infectious disease hazard in the workplace;
 seeking assistance from the employer or a local, state, or federal agency with  seeking assistance from the employer or a local, state, or federal agency with
such a report; and such a report; and
 using personally supplied PPE with a higher level of protection than offered by  using personally supplied PPE with a higher level of protection than offered by
the employer. the employer.
State Occupational Safety and Health Standards
States have the authority to establish their own occupational safety and health plans and preempt States have the authority to establish their own occupational safety and health plans and preempt
standards established and enforced by OSHA.standards established and enforced by OSHA.~~120~~76 OSHA must approve state plans if they are “at OSHA must approve state plans if they are “at
least as effective” as OSHA’s standards and enforcement. If a state adopts a state plan, it must least as effective” as OSHA’s standards and enforcement. If a state adopts a state plan, it must
also cover state and local government entities, such as public schools, not covered by OSHA. also cover state and local government entities, such as public schools, not covered by OSHA.
State plans may incorporate OSHA standards by reference, or states may adopt their own State plans may incorporate OSHA standards by reference, or states may adopt their own
standards that are at least as effective as OSHA’s standards. If a state has a standard that is stricter standards that are at least as effective as OSHA’s standards. If a state has a standard that is stricter
than an OSHA standard, the state standard would apply. than an OSHA standard, the state standard would apply.
Two states, California and Michigan, have issued temporary standards under their state plans that Two states, California and Michigan, have issued temporary standards under their state plans that
directly address COVID-19 exposure, with Michigan’s temporary standards rescinded and directly address COVID-19 exposure, with Michigan’s temporary standards rescinded and
~~replaced by the OSHA COVID-19 ETS for health care employers. In addition, Oregon and~~
~~Virginia have issued permanent COVID-19 standards, and California has had a permanent state~~
~~standard covering aerosol transmission of diseases since 2009. Table A-2 in the Appendix to this~~
~~report provides a summary of these state standards.~~

73 29 C.F.R. §1977.3. Public sector employees, except employees of the U.S. Postal Service, are not protected by the whistleblower provision but may be covered by whistleblower provisions in other federal and state statutes. whistleblower provision but may be covered by whistleblower provisions in other federal and state statutes.
~~118~~74 For additional information on other rights covered by the whistleblower protection provision, see OSHA, January 9, For additional information on other rights covered by the whistleblower protection provision, see OSHA, January 9,
2019, 2019, Investigator’s Desk Aid to the Occupational Safety and Health Act (OSH Act) Whistleblower Protection
Provision, pp. 5-7, , pp. 5-7, at https://www.osha.gov/sites/default/files/11cDeskAid.pdf. https://www.osha.gov/sites/default/files/11cDeskAid.pdf.
~~119~~75 29 C.F.R. §1977.12(b)(2). 29 C.F.R. §1977.12(b)(2).
~~120~~76 29 U.S.C. §667. 29 U.S.C. §667.
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link to page 25 OSHA: ETS and COVID-19 replaced by the OSHA COVID-19 ETS for health care employers. In addition, Oregon and Virginia have issued permanent COVID-19 standards, and California has had a permanent state standard covering aerosol transmission of diseases since 2009. Table A-2 in the Appendix to this report provides a summary of these state standards. ~~OSHA: ETS and COVID-19~~

California: Cal/OSHA Aerosol Transmissible Disease Standard
The California Division of Occupational Safety and Health (Cal/OSHA), under its state plan, The California Division of Occupational Safety and Health (Cal/OSHA), under its state plan,
promulgated its aerosol transmissible disease (ATD) standard in 2009.promulgated its aerosol transmissible disease (ATD) standard in 2009.~~121~~77 The ATD standard The ATD standard
covers most health care workers (including emergency medical services and police transport or covers most health care workers (including emergency medical services and police transport or
detention of infected persons) and laboratory workers, as well as workers in correctional detention of infected persons) and laboratory workers, as well as workers in correctional
facilities, homeless shelters, and drug treatment programs. Under the ATD standard, SARS-CoV-facilities, homeless shelters, and drug treatment programs. Under the ATD standard, SARS-CoV-
2, the virus that causes COVID-19, is classified as a disease or pathogen requiring airborne 2, the virus that causes COVID-19, is classified as a disease or pathogen requiring airborne
isolation. This classification subjects the virus to stricter control standards than diseases requiring isolation. This classification subjects the virus to stricter control standards than diseases requiring
only droplet precautions, such as seasonal influenza.only droplet precautions, such as seasonal influenza.~~122~~78 The key requirements of the ATD standard The key requirements of the ATD standard
include include
 written ATD exposure control plan and procedures;  written ATD exposure control plan and procedures;
 training of all employees on COVID-19 exposure, use of PPE, and procedures if  training of all employees on COVID-19 exposure, use of PPE, and procedures if
exposed to COVID-19; exposed to COVID-19;
 engineering and work practice controls to control COVID-19 exposure, including  engineering and work practice controls to control COVID-19 exposure, including
the use of airborne isolation rooms; the use of airborne isolation rooms;
 provision of medical services to exposed employees, including post-exposure  provision of medical services to exposed employees, including post-exposure
evaluation of employees and treatment and vaccines, if available; evaluation of employees and treatment and vaccines, if available;
 the removal, without penalty to the employees, of exposed employees,  the removal, without penalty to the employees, of exposed employees,
 specific requirements for laboratory workers, and  specific requirements for laboratory workers, and
 PPE requirements.  PPE requirements.
Cal/OSHA Aerosol Transmissible Disease PPE Requirements
The Cal/OSHA ATD standard requires that employers provide employees PPE, including gloves, The Cal/OSHA ATD standard requires that employers provide employees PPE, including gloves,
gowns or coveralls, eye protection, and respirators certified by NIOSH at least at the N95 level gowns or coveralls, eye protection, and respirators certified by NIOSH at least at the N95 level
whenever workers whenever workers
 enter or work in an airborne isolation room or area with a case or suspected case;  enter or work in an airborne isolation room or area with a case or suspected case;
 are present during procedures or services on a case or suspected case;  are present during procedures or services on a case or suspected case;
 repair, replace, or maintain air systems or equipment that may contain pathogens;  repair, replace, or maintain air systems or equipment that may contain pathogens;
 decontaminate an area that is or was occupied by a case or suspected case;  decontaminate an area that is or was occupied by a case or suspected case;
 are present during aerosol generating procedures on cadavers of cases or  are present during aerosol generating procedures on cadavers of cases or
suspected cases; suspected cases;
~~ transport a case or suspected case within a facility or within a vehicle when the~~
~~patient is not masked; or~~
~~ are working with a viable virus in the laboratory.~~

~~121~~77 Aerosol Transmissible Diseases, Cal. Code Regs. tit. 8, §5199, available at https://www.dir.ca.gov/title8/5199.html. , Cal. Code Regs. tit. 8, §5199, available at https://www.dir.ca.gov/title8/5199.html.
The California state plan covers all state and local government agencies and all private sector workers in the state, with The California state plan covers all state and local government agencies and all private sector workers in the state, with
the exception of maritime workers; workers on military bases and in national parks, monuments, memorials, and the exception of maritime workers; workers on military bases and in national parks, monuments, memorials, and
recreation areas; workers on federally recognized Native American reservations and trust lands; and U.S. Postal Service recreation areas; workers on federally recognized Native American reservations and trust lands; and U.S. Postal Service
contractors. contractors.
~~122~~78 Cal. Code Regs. tit. 8, §5199 Appendix A. Cal. Code Regs. tit. 8, §5199 Appendix A.
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 transport a case or suspected case within a facility or within a vehicle when the patient is not masked; or  are working with a viable virus in the laboratory. In addition, a PAPR with a high-efficiency particulate air (HEPA) filter must be used whenever a In addition, a PAPR with a high-efficiency particulate air (HEPA) filter must be used whenever a
worker performs a worker performs a high-hazard procedure on a known or suspected COVID-19 case. on a known or suspected COVID-19 case.~~123~~79 High- High-
hazard procedures are those in which “the potential for being exposed to aerosol transmissible hazard procedures are those in which “the potential for being exposed to aerosol transmissible
pathogens is increased due to the reasonably anticipated generation of aerosolized pathogens”—pathogens is increased due to the reasonably anticipated generation of aerosolized pathogens”—
they include intubation, airway suction, and caring for patients on positive pressure ventilation.they include intubation, airway suction, and caring for patients on positive pressure ventilation.~~124~~80
Emergency medical services (EMS) workers may use N100, R100, or P100 respirators in place of Emergency medical services (EMS) workers may use N100, R100, or P100 respirators in place of
PAPRs. PAPRs.
Cal/OSHA COVID-19 ETS
On November 19, 2020, the California Occupational Safety and Health Standards Board On November 19, 2020, the California Occupational Safety and Health Standards Board
approved an ETS to specifically address COVID-19 exposure in the workplace.approved an ETS to specifically address COVID-19 exposure in the workplace.~~125~~81 This ETS This ETS
became effective on November 30, 2020. The Cal/OSHA ETS applies to all covered employers in became effective on November 30, 2020. The Cal/OSHA ETS applies to all covered employers in
the state, including state and local government entities, and provides for broader protections than the state, including state and local government entities, and provides for broader protections than
the Cal/OSHA ATD standard. The Cal/OSHA ETS includes specific provisions that apply to the Cal/OSHA ATD standard. The Cal/OSHA ETS includes specific provisions that apply to
employer-provided housing and transportation. On June 17, 2021, the California Occupational employer-provided housing and transportation. On June 17, 2021, the California Occupational
Safety and Health Standards Board voted to amend the Cal/OSHA ETS to permit fully vaccinated Safety and Health Standards Board voted to amend the Cal/OSHA ETS to permit fully vaccinated
employees to work indoors without facemasks or face coverings and all employees, regardless of employees to work indoors without facemasks or face coverings and all employees, regardless of
vaccination status, to work outdoors without facemasks or face coverings. The amended vaccination status, to work outdoors without facemasks or face coverings. The amended
Cal/OSHA ETS Cal/OSHA ETS ~~expires~~expired on January 14, 2022 on January 14, 2022.
, but was extended with some revisions through April 14, 2022. Michigan: MIOSHA COVID-19 Emergency Rules
On October 14, 2020, the director of the Michigan Department of Labor and Economic On October 14, 2020, the director of the Michigan Department of Labor and Economic
Opportunity, which operates Michigan’s state occupational safety and health plan (MIOSHA), Opportunity, which operates Michigan’s state occupational safety and health plan (MIOSHA),
promulgated emergency rules, with a duration of six months, to address workplace exposure to promulgated emergency rules, with a duration of six months, to address workplace exposure to
COVID-19. On April 10, 2021, the MIOSHA emergency rules were extended for an additional COVID-19. On April 10, 2021, the MIOSHA emergency rules were extended for an additional
six months through October 14, 2021. These rules were amended, effective May 24, 2021, based six months through October 14, 2021. These rules were amended, effective May 24, 2021, based
on updated CDC guidance, and the amended rules were to remain in effect through October 14, on updated CDC guidance, and the amended rules were to remain in effect through October 14,
2021.2021.~~126~~82 On June 22, 2021, the Michigan Department of Labor and Economic Opportunity On June 22, 2021, the Michigan Department of Labor and Economic Opportunity
rescinded the MIOSHA COVID-19 emergency rules and replaced them with the OSHA COVID-rescinded the MIOSHA COVID-19 emergency rules and replaced them with the OSHA COVID-
19 ETS for health care employers. After OSHA’s withdrawal of the COVID-19 ETS for health 19 ETS for health care employers. After OSHA’s withdrawal of the COVID-19 ETS for health
care employers, this ETS is no longer in force in Michigan. care employers, this ETS is no longer in force in Michigan.
~~Oregon: Oregon OSHA COVID-19 Permanent~~
~~Administrative Rules~~
~~On November 6, 2020, the Oregon Department of Consumer and Business Services, which~~
~~operates Oregon’s state plan (Oregon OSHA), adopted temporary administrative rules to~~

~~123~~79 A PAPR uses a mechanical device to draw in room air and filter it before expelling that air over the user’s face. In A PAPR uses a mechanical device to draw in room air and filter it before expelling that air over the user’s face. In
general, PAPRs do not require a tight seal to the user’s face and do not need to be fit tested. general, PAPRs do not require a tight seal to the user’s face and do not need to be fit tested.
~~124~~ 80 Cal. Code Regs. tit. 8, §5199(b). Cal. Code Regs. tit. 8, §5199(b).
~~125~~81 COVID-19 Prevention, Cal. Code Regs. tit. 8, §§3205-3205.4, available at https://www.dir.ca.gov/dosh/coronavirus/, Cal. Code Regs. tit. 8, §§3205-3205.4, available at https://www.dir.ca.gov/dosh/coronavirus/
ETS.html. ETS.html.
~~126~~82 Emergency Rules: Coronavirus 2019 (COVID-19), available at https://www.michigan.gov//documents/leo/, available at https://www.michigan.gov//documents/leo/
Final_MIOSHA_Rules_705164_7.pdf. The Michigan state plan covers all state and local government agencies and all Final_MIOSHA_Rules_705164_7.pdf. The Michigan state plan covers all state and local government agencies and all
private sector workers in the state, with the exception of maritime workers, U.S. Postal Service contractors, workers at private sector workers in the state, with the exception of maritime workers, U.S. Postal Service contractors, workers at
businesses owned or operated by tribal members at Indian reservations, and aircraft cabin crew members. businesses owned or operated by tribal members at Indian reservations, and aircraft cabin crew members.
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2316 OSHA: ETS and COVID-19 Oregon: Oregon OSHA COVID-19 Permanent Administrative Rules On November 6, 2020, the Oregon Department of Consumer and Business Services, which operates Oregon’s state plan (Oregon OSHA), adopted temporary administrative rules to

~~OSHA: ETS and COVID-19~~

specifically address COVID-19 exposures in the workplace. These rules were set to expire on specifically address COVID-19 exposures in the workplace. These rules were set to expire on
May 4, 2021. On May 4, 2021, permanent administrative rules became effective.May 4, 2021. On May 4, 2021, permanent administrative rules became effective.~~127~~83 These These
permanent rules will remain in effect until repealed or revised by Oregon OSHA. Since the permanent rules will remain in effect until repealed or revised by Oregon OSHA. Since the
promulgation of the permanent administrative rules, Oregon has adopted promulgation of the permanent administrative rules, Oregon has adopted ~~three~~multiple temporary amendments to the rules, some of which were incorporated into permanent amendments to the administrative rules ~~temporary~~
~~amendments to the rules, with the most recent amendment issued on September 14, 2021, to bring~~
~~Oregon into compliance with the provisions of the OSHA COVID-19 ETS for health care~~
~~employers. While the administrative rules are permanent, the amendments expire on December~~
~~26, 2021.~~
on December 21, 2021. Virginia: VOSH COVID-19 Permanent Standard
On July 15, 2020, the Virginia Safety and Health Codes Board adopted an ETS to specifically On July 15, 2020, the Virginia Safety and Health Codes Board adopted an ETS to specifically
protect employees from exposure to SARS-CoV-2, the virus that causes COVID-19.protect employees from exposure to SARS-CoV-2, the virus that causes COVID-19.~~128~~84 On On
January 12, 2021, the Virginia Safety and Health Codes Board voted to promulgate a permanent January 12, 2021, the Virginia Safety and Health Codes Board voted to promulgate a permanent
COVID-19 standard that supersedes the ETS.COVID-19 standard that supersedes the ETS.~~129~~85
This ETS, promulgated under Virginia’s state occupational safety and health plan (VOSH), was This ETS, promulgated under Virginia’s state occupational safety and health plan (VOSH), was
the first state standard to specifically address COVID-19 in the workplace.the first state standard to specifically address COVID-19 in the workplace.~~130~~86 As an ETS, the As an ETS, the
VOSH standard was to expire within six months of its effective date, upon expiration of the VOSH standard was to expire within six months of its effective date, upon expiration of the
governor’s state of emergency, when superseded by a permanent standard, or when repealed by governor’s state of emergency, when superseded by a permanent standard, or when repealed by
the Virginia Safety and Health Codes Board, whichever came first. The VOSH permanent the Virginia Safety and Health Codes Board, whichever came first. The VOSH permanent
standard applies to all state and local government agencies and all covered private sector standard applies to all state and local government agencies and all covered private sector
employees in the state and does not contain additional requirements for any specific industries. employees in the state and does not contain additional requirements for any specific industries.
Among the concerns raised by groups opposed to the VOSH permanent standard was that, Among the concerns raised by groups opposed to the VOSH permanent standard was that,
because the standard is permanent, employers would be required to comply with the COVID-19 because the standard is permanent, employers would be required to comply with the COVID-19
prevention requirements even after the COVID-19 pandemic has ended.prevention requirements even after the COVID-19 pandemic has ended.~~131~~87 While the standard is While the standard is
permanent, a provision in the standard requires that within 14 days of expiration of the governor’s permanent, a provision in the standard requires that within 14 days of expiration of the governor’s
COVID-19 state of emergency and the commissioner of health’s COVID-19 declaration of public COVID-19 state of emergency and the commissioner of health’s COVID-19 declaration of public
~~emergency, the Virginia Safety and Health Codes Board must meet to determine if there is a~~
~~continued need for the standard.~~

~~127~~83 Addressing COVID-19 Workplace Risks, , Or. Admin. R. 437-001-0744, available at https://osha.oregon.gov/Or. Admin. R. 437-001-0744, available at https://osha.oregon.gov/
OSHARules/div1/437-001-0744.pdf. The Oregon state plan covers all state and local government agencies and all OSHARules/div1/437-001-0744.pdf. The Oregon state plan covers all state and local government agencies and all
private sector workers in the state, with the exception of maritime workers, private sector establishments within the private sector workers in the state, with the exception of maritime workers, private sector establishments within the
boundaries of Indian reservations and federal military reservations, employment at Crater Lake National Park and the boundaries of Indian reservations and federal military reservations, employment at Crater Lake National Park and the
U.S. Department of Energy Albany Research Center, U.S. Postal Service contractors, and aircraft cabin crew members U.S. Department of Energy Albany Research Center, U.S. Postal Service contractors, and aircraft cabin crew members
during flight operations. during flight operations.
~~128~~84 Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19, 16 Va. Admin. Code §25-220, available , 16 Va. Admin. Code §25-220, available
at https://www.doli.virginia.gov/wp-content/uploads/2020/07/RIS-filed-RTD-Final-ETS-7.24.2020.pdf. This ETS was at https://www.doli.virginia.gov/wp-content/uploads/2020/07/RIS-filed-RTD-Final-ETS-7.24.2020.pdf. This ETS was
effective upon publication in a Richmond, VA, newspaper during the week of July 27, 2020. effective upon publication in a Richmond, VA, newspaper during the week of July 27, 2020.
~~129~~85 Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19, 16 Va. Admin. Code §25-220, , 16 Va. Admin. Code §25-220,
available at http://www.doli.virginia.gov/wp-content/uploads/2021/01/Final-Standard-for-Infectious-Disease-available at http://www.doli.virginia.gov/wp-content/uploads/2021/01/Final-Standard-for-Infectious-Disease-
Prevention-of-COVID-19-16VAC25-220-1.15.2021.pdf. This permanent standard is effective on January 27, 2021. Prevention-of-COVID-19-16VAC25-220-1.15.2021.pdf. This permanent standard is effective on January 27, 2021.
~~130~~86 The Virginia state plan covers all state and local government agencies and all private sector workers in the state, The Virginia state plan covers all state and local government agencies and all private sector workers in the state,
with the exception of maritime workers, U.S. Postal Service contractors, workers at military bases or other federal with the exception of maritime workers, U.S. Postal Service contractors, workers at military bases or other federal
enclaves in which the federal government has civil jurisdiction, workers at the U.S. Department of Energy’s enclaves in which the federal government has civil jurisdiction, workers at the U.S. Department of Energy’s
Southeastern Power Administration Kerr-Philpott System, and aircraft cabin crew members. Southeastern Power Administration Kerr-Philpott System, and aircraft cabin crew members.
~~131~~87 See, for example, letter from Hobey Bauhan, President, Virginia Poultry Federation, to Princy Doss, Director of See, for example, letter from Hobey Bauhan, President, Virginia Poultry Federation, to Princy Doss, Director of
Policy, Planning and Public Information, and Jay Withrow, Director, Division of Legal Support, Virginia Department Policy, Planning and Public Information, and Jay Withrow, Director, Division of Legal Support, Virginia Department
of Labor and Industry, January 7, 2021, of Labor and Industry, January 7, 2021,
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2417 OSHA: ETS and COVID-19 emergency, the Virginia Safety and Health Codes Board must meet to determine if there is a continued need for the standard. Congressional Research Service 18

OSHA: ETS and COVID-19

Appendix.
Table A-1. OSHA Emergency Temporary Standards (ETS)
Federal Register
Result of Judicial
Judicial Review
Year
Subject of ETS
Citation of ETS
Review
Case Citation
1971 1971
Asbestos Asbestos
36 36 Federal Register
Not challenged Not challenged
— —
23207 (December 7, 23207 (December 7,
1971) 1971)
1973 1973
Organophosphorous Organophosphorous
38 38 Federal Register
Vacated Vacated
Florida Peach Growers
pesticides pesticides
10715 (May 1, 1973); 10715 (May 1, 1973);
Ass'n v. United States
amended by 38 amended by 38 Federal
Department of Labor,
Register 17214 (June 17214 (June
489 F.2d 120 (5th Cir. 489 F.2d 120 (5th Cir.
29, 1973) 29, 1973)
1974) 1974)
1973 1973
Fourteen carcinogens Fourteen carcinogens
38 38 Federal Register
Twelve upheld, two Twelve upheld, two
Dry Color Mfrs. Ass'n v.
10929 (May 3, 1973) 10929 (May 3, 1973)
vacated vacated
Department of Labor,
486 F.2d 98 (3d Cir. 486 F.2d 98 (3d Cir.
1973) 1973)
1974 1974
Vinyl chloride Vinyl chloride
39 39 Federal Register
Not challenged Not challenged
— —
12342 (April 5, 1974) 12342 (April 5, 1974)
1976 1976
Diving operations Diving operations
41 41 Federal Register
Stayed Stayed
Taylor Diving & Salvage
24271 (June 15, 1976) 24271 (June 15, 1976)
Co. v. Department of
Labor, 537 F.2d 819 , 537 F.2d 819
(5th Cir. 1976) (5th Cir. 1976)
1977 1977
Benzene Benzene
42 42 Federal Register
Stayed Stayed
Industrial Union Dep't v.
22515 (May 3, 1977) 22515 (May 3, 1977)
Bingham, 570 F.2d 965 , 570 F.2d 965
(D.C. Cir. 1977) (D.C. Cir. 1977)
1977 1977
1,2 Dibromo-3- 1,2 Dibromo-3-
42 42 Federal Register
Not challenged Not challenged
— —
chloropropane (DBCP) 45535 (September 9, chloropropane (DBCP) 45535 (September 9,
1977) 1977)
1978 1978
Acrylonitrile (vinyl Acrylonitrile (vinyl
43 43 Federal Register
Stay denied Stay denied
Vistron v. OSHA, 6 , 6
cyanide) cyanide)
2585 (January 17, 2585 (January 17,
OSHC 1483 (6th Cir. OSHC 1483 (6th Cir.
1978) 1978)
1978) 1978)
1983 1983
Asbestos Asbestos
48 48 Federal Register
Stayed Stayed
Asbestos Info. Ass'n v.
51086 (November 4, 51086 (November 4,
OSHA, 727 F.2d 415 , 727 F.2d 415
1983) 1983)
(5th Cir. 1984) (5th Cir. 1984)
2021 2021
COVID-19 for health COVID-19 for health
86 86 Federal Register
Petitions for review Petitions for review
United Food and
care employers care employers
32376 (June 21, 2021) 32376 (June 21, 2021)
filed on June 24, 2021. filed on June 24, 2021.
Commercial Workers
ETS withdrawn by ETS withdrawn by
and American Federation
OSHA on December OSHA on December
of Labor and Congress of
27, 2021. 27, 2021.
Industrial Organizations
v. OSHA, et al., Docket , Docket
No. 21-1143 (D.C. No. 21-1143 (D.C.
Cir. June 24, 2021) Cir. June 24, 2021)
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OSHA: ETS and COVID-19

Federal Register
Result of Judicial
Judicial Review
Year
Subject of ETS
Citation of ETS
Review
Case Citation
2021 2021
COVID-19 vaccination COVID-19 vaccination
86 86 Federal Register
Stay ordered by U.S. Stay ordered by U.S.
Numerous petitions Numerous petitions
and testing and testing
61402 (November 5, 61402 (November 5,
Court of Appeals for Court of Appeals for
for judicial review for judicial review
2021) 2021)
the Fifth Circuit on the Fifth Circuit on
consolidated as consolidated as
November 6, 2021, November 6, 2021,
National Federation of
and reaffirmed on and reaffirmed on
Independent Business, et
November 12, 2021. November 12, 2021.
al. v. Department of
Stay dissolved by U.S. Stay dissolved by U.S.
Labor, Occupational
Court of Appeals for Court of Appeals for
Safety and Health
Sixth Circuit on Sixth Circuit on
Administration, et al., ,
December 17, 2021. December 17, 2021.
(Docket No. 21A244), (Docket No. 21A244),
and and Ohio, et al. v.
Stay ordered by U.S. Stay ordered by U.S.
Department of Labor,
Supreme Court on Supreme Court on
Occupational Safety and
January 13, 2022. January 13, 2022.
Health Administration, et
ETS withdrawn by al. (Docket No. (Docket No.
OSHA on January 25, 21A247), before the 21A247), before the
2022. U.S. Supreme Court. U.S. Supreme Court.
Source: CRS with data from Mark A. Rothstein, “Substantive and Procedural Obstacles to OSHA Rulemaking: CRS with data from Mark A. Rothstein, “Substantive and Procedural Obstacles to OSHA Rulemaking:
Reproductive Hazards as an Example,” Reproductive Hazards as an Example,” Boston College Environmental Affairs Law Review, vol. 12, no. 4 (August , vol. 12, no. 4 (August
1985), p. 673. 1985), p. 673.
a. For additional information on judicial review of the OSHA COVID-19 vaccination and testing ETS, see CRS a. For additional information on judicial review of the OSHA COVID-19 vaccination and testing ETS, see CRS
Legal Sidebar LSB10658, Legal Sidebar LSB10658, Fifth Circuit Stays OSHA Vaccination and Testing Standard. .
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link to page link to page 3225 link to page link to page 3225 link to page link to page 3225 link to page link to page 3225 link to page link to page 3225 OSHA: ETS and COVID-19

Table A-2. State Occupational Safety and Health Standards That Apply to COVID-19
Covered
State
Standard
Employers
Issued
Expires
California California
Aerosol Aerosol
Health care, Health care,
July 6, 2009 July 6, 2009
Permanent Permanent
(Cal/OSHA) (Cal/OSHA)
Transmissible Transmissible
laboratories, laboratories,
Disease (ATD Disease (ATD)a
corrections corrections
facilities, homeless facilities, homeless
shelters, and drug shelters, and drug
treatment centers treatment centers
COVD-19 COVD-19
All employers All employers
November 30, 2020 November 30, 2020 ~~January~~April 14, 2022 14, 2022
Preventio Preventionb
June 17, 2021 June 17, 2021
(amended) (amended)
January 5, 2022 (amended) Michigan (MIOSHA) Michigan (MIOSHA)
Emergency Rules: Emergency Rules:
All employers, with All employers, with
October 14, 2020, October 14, 2020,
Rescinded on June Rescinded on June
Coronavirus 2019 Coronavirus 2019
additional rules for additional rules for
April 10, 2021 April 10, 2021
22, 2021, and 22, 2021, and
(COVID- (COVID-19)c
specific industries specific industries
(extended) (extended)
replaced with replaced with
May 24, 2021 May 24, 2021
OSHA COVID-19 OSHA COVID-19
(amended) (amended)
ETS for health care ETS for health care
employers, which employers, which
expired with expired with
OSHA’s withdrawal OSHA’s withdrawal
of the ETS. of the ETS.
Oregon (Oregon Oregon (Oregon
Addressing COVID- Addressing COVID-
All employers, with All employers, with
November 6, 2020 November 6, 2020
Permanentf Permanentf
OSHA) OSHA)
19 Workplace 19 Workplace
additional rules for additional rules for
(ETS), reissued (ETS), reissued
Ri Risksd
specific industries specific industries
December 11, 2020 December 11, 2020
May 4, 2021 May 4, 2021
(permanent (permanent
standard) standard)
December 21, 2021 (amended) Virginia (VOSH) Virginia (VOSH)
Infectious Disease Infectious Disease
All employers All employers
July 27, 2020 (ETS), July 27, 2020 (ETS),
Permanentg Permanentg
Prevention: SARS- Prevention: SARS-
January 12, 2021 January 12, 2021
CoV-2 Virus that CoV-2 Virus that
(permanent (permanent
Causes COVID- Causes COVID-19e
standard) standard)
Source: Congressional Research Service (CRS). Congressional Research Service (CRS).
a. Available at https://www.dir.ca.gov/title8/5199.html. a. Available at https://www.dir.ca.gov/title8/5199.html.
b. Available at https://www.dir.ca.gov/dosh/coronavirus/ETS.html. b. Available at https://www.dir.ca.gov/dosh/coronavirus/ETS.html.
c. Available at https://www.michigan.gov//documents/leo/Final_MIOSHA_Rules_705164_7.pdf. c. Available at https://www.michigan.gov//documents/leo/Final_MIOSHA_Rules_705164_7.pdf.
d. Available at https://osha.oregon.gov/OSHARules/div1/437-001-0744.pdf. d. Available at https://osha.oregon.gov/OSHARules/div1/437-001-0744.pdf.
e. Available at http://www.doli.virginia.gov/wp-content/uploads/2021/01/Final-Standard-for-Infectious-Disease-e. Available at http://www.doli.virginia.gov/wp-content/uploads/2021/01/Final-Standard-for-Infectious-Disease-
Prevention-of-COVID-19-16VAC25-220-1.15.2021.pdf. Prevention-of-COVID-19-16VAC25-220-1.15.2021.pdf.
f. f.
Oregon OSHA is required to consult with state agencies and other stakeholders to determine when the Oregon OSHA is required to consult with state agencies and other stakeholders to determine when the
permanent rules can be amended or repealed, with the first of these consultations to occur no later than permanent rules can be amended or repealed, with the first of these consultations to occur no later than
July 2021. After the first consultations, ongoing consultations are required every two months until the rules July 2021. After the first consultations, ongoing consultations are required every two months until the rules
are repealed. are repealed.
g. Within 14 days of expiration of the governor’s COVID-19 state of emergency and the commissioner of g. Within 14 days of expiration of the governor’s COVID-19 state of emergency and the commissioner of
health’s COVID-19 declaration of public emergency, the Virginia Safety and Health Codes Board must meet health’s COVID-19 declaration of public emergency, the Virginia Safety and Health Codes Board must meet
to determine if there is a continued need for the standard. to determine if there is a continued need for the standard.

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OSHA: ETS and COVID-19

Author Information

Scott D. Szymendera Scott D. Szymendera

Analyst in Disability Policy Analyst in Disability Policy

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
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Congressional Research Service Congressional Research Service
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