Occupational Safety and Health Administration June 2, 2021
(OSHA): Emergency Temporary Standards (ETS) Scott D. Szymendera
and COVID-19
Analyst in Disability Policy

The Occupational Safety and Health Administration (OSHA) does not currently have a specific
standard that protects health care or other workers from airborne or aerosol transmission of

disease or diseases transmitted by airborne droplets. Some in Congress, and some groups
representing health care, meat and poultry processing, and other workers, are calling on OSHA to promulgate an emergency
temporary standard (ETS) to protect workers from exposure to SARS-CoV-2, the virus that causes Coronavirus Disease 2019
(COVID-19). 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, however, has rarely used this authority in the past—not since the courts struck down its ETS on asbestos in 1983.
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
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
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
occupational safety health plan in Michigan (MIOSHA) has promulgated an ETS to specifically address COVID-19 in
workplaces. In January 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.
Provisions in various COVID-19 relief bills in the 116th Congress (H.R. 925, H.R. 6139, H.R. 6201, H.R. 6379, H.R. 6559,
H.R. 6800, S. 3475, S. 3584, and S. 3677) would have required OSHA to promulgate an ETS to address COVID-19 exposure
in the workplace. The OSHA ETS provisions were not included in the COVID-19 relief legislation enacted into law (P.L.
116-127 and P.L. 116-260). There has been no legislation in the 117th Congress to require OSHA to promulgate a COVID-19
ETS.
On January 21, 2021, President Joe Biden issued an executive order directing OSHA to review whet her a COVID-19 ETS is
necessary and, if necessary, issue an ETS by March 15, 2021. To date, OSHA has not issued a COVID-19 ETS.
As of January 14, 2021, OSHA had issued citations from 315 inspections related to COVID-19 resulting in a total of
$4,034,288 in proposed civil penalties. These citations have been issued for violations of the OSH Act’s General Duty Clause
and other existing OSHA standards, such as those for respiratory protection that may apply to COVID-19. Senators Elizabeth
Warren and Cory Booker have raised concerns about the low amount of penalties being assessed for COVID-19-related
violations.
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 supersedes earlier OSHA guidance that had required employers to
record and report adverse reactions to the vaccine if vaccination was a condition of employment.

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Appendixes
Appendix. .................................................................................................................... 23

Contacts
Author Information ....................................................................................................... 25

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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
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
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,
requires that al 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
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
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
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
or enforcement.
State Plans
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 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
covered by OSHA. Currently, 21 states and Puerto Rico have state plans that cover al employers,
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 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
least as effective as OSHA’s standards. State plans do not have jurisdiction over federal agencies
and general y do not cover maritime workers and private sector workers at military bases or other
federal facilities.
Promulgation of OSHA Standards
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
employer and employee groups.6 OSHA is not required, however, to respond to a petition for a

1 29 U.S.C. §655. T he 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).
2 29 U.S.C. §654(a)(1).
3 29 U.S.C. §667.
4 For additional information on Occupational Safety and Health Administration (OSHA) state plans, see CRS Report
R43969, OSHA State Plans: In Brief, with Exam ples from California and Arizona .
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
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
of the two statutory standing advisory committees—the National Advisory Committee on
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
Notice and Comment
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
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
Federal Register and 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
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
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 Federal Register a statement of the
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
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 general y apply to OSHA rulemaking
include the Paperwork Reduction Act,11 Regulatory Flexibility Act,12 Congressional Review
Act,13 Information Quality Act,14 and Smal Business Regulatory Enforcement Fairness Act
(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
Health, or a state or political subdivision.”
7 T he 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)]. T he 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
provides OSHA the authority to establish additional advisory committees.
8 T he 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, The Federal Rulem aking Process: An Overview.
9 29 U.S.C. §655(b).
10 29 U.S.C §655(e).
11 44 U.S.C. §§3501-3520.
12 5 U.S.C. §§601-612.
13 5 U.S.C. §§801-808.
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
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-
330, Workplace Safety and Health).
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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
OSHA Rulemaking Time Line
OSHA rulemaking for new standards has historical y been a relatively time-consuming process.
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
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
Request for Information or Advance Notice of Proposed Rulemaking in the Federal Register or
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
these 59 standards, the average time until promulgation of the standard was 39 months (3 years, 3
months).
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
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
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
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 Federal Register, the
estimated length of time until the standard is promulgated ranges from 26 months (2 years, 2
months) to 63 months (5 years, 3 months). Table 1 provides OSHA’s estimated time lines for six
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
Preliminary rulemaking activities
12-36 months
2
Developing the proposed rule
12-36 months
3
Publishing the Notice of Proposed Rulemaking (NPRM)
2-3 months
4
Developing and analyzing the rulemaking record, including public comments
and hearings
6-24 months
5
Developing the final rule, including Office of Information and Regulatory
Affairs (OIRA) submission
18-36 months
6
Publishing the final rule (promulgating the new standard)
2-3 months
Total estimated duration
52-138 months
Estimated duration from NPRM to final rule
26-63 months
Source: Congressional Research Service (CRS) with data from Occupational Safety and Health Administration
(OSHA), Directorate of Standards and Guidance, The OSHA Rulemaking Process, October 15, 2012, at
https://www.osha.gov/OSHA_FlowChart.pdf.

16 Executive Order 12866, “Regulatory Planning and Review,” 58 Federal Register 51735, October 4, 1993.
17 GAO-12-330, Workplace Safety and Health.
18 OSHA, Directorate of Standards and Guidance, The OSHA Rulemaking Process, October 15, 2012, at
https://www.osha.gov/OSHA_FlowChart.pdf.
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Judicial Review
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
60 days of its promulgation, a petition chal enging 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
petition for judicial review does not automatical y stay the implementation or enforcement of the
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
promulgated.20
Emergency Temporary Standards
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
promulgate an ETS without supplying any notice or opportunity for public comment or public
hearings. An ETS is immediately effective upon publication in the Federal Register. Upon
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
superseded by a permanent standard, which OSHA must promulgate within six months of
publishing the ETS in the Federal Register.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
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.
ETS Requirements
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:
 that employees are exposed to grave danger from exposure to substances or
agents determined to be toxic or physical y harmful or from new hazards, and
 that such emergency standard is necessary to protect employees from such
danger.
Grave Danger Determination
The term grave danger, 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
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

19 29 U.S.C. §655(f).
20 OSHA, Directorate of Standards and Guidance, The OSHA Rulemaking Process, October 15, 2012, at
https://www.osha.gov/OSHA_FlowChart.pdf.
21 29 U.S.C §655(c)(2).
22 U.S. Congress, Senate Labor and Public Welfare, Subcommittee on Labor, Legislative History of the Occupational
Safety and Health Act of 1970 (S. 2193, P.L. 91-596), committee print, prepared by Subcommittee on Labor, 91 st
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 chal enges to previous ETS promulgations,
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 Asbestos Info. Ass’n v. OSHA issued a stay and
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
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
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 necessary to protect
employees from that danger. In Asbestos Info. Ass’n, the court invalidated the asbestos ETS for
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
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
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
The court determined that “fear of a successful judicial chal enge to enforcement of OSHA’s
permanent standard regarding respirator use hardly justifies resort to the most dramatic weapon in
OSHA’s enforcement arsenal.”26
Although OSHA has not promulgated an ETS since the 1983 asbestos standard, it has since
determined the necessity of an ETS. 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 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 National Institute for Occupational Safety and Health (NIOSH) and
other researchers found that airborne exposure to diacetyl was linked to the lung disease
bronchiolitis obliterans, now 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 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 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
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

23 727 F.2d at 415, 425-427 (5th Cir. 1984).
24 727 F.2d at 427 (5th Cir. 1984).
25 727 F.2d at 427 (5th Cir. 1984). T he ET S mandated a permissible exposure limit (PEL) for asbestos of two asbestos
fibers per cubic centimeter of air (2.0 f/cc).
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
Health (NIOSH), NIOSH Alert: Preventing Lung Disease in Workers who Use or Make Flavorings, DHHS (NIOSH)
publication no. 2004–110, December 2003, at https://www.cdc.gov/niosh/docs/2004-110/.
28 GAO-12-330, Workplace Safety and Health.
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promulgating the ETS. As shown earlier in this report, six months is wel outside of historical and
currently expected time frames for developing and promulgating a standard under the notice and
comment provisions of the APA and OSH Act, as wel as under other relevant federal laws and
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 realistical y
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
do not clearly address this question.
OSHA has used its ETS authority sparingly in its history and not since the asbestos ETS
promulgated in 1983. As shown in Table A-1, in the nine times OSHA has issued an ETS, the
courts have fully vacated or stayed the ETS in four cases and partial y vacated the ETS in one
case.29 Of the five cases that were not chal enged or that were fully or partial y upheld by the
courts, OSHA issued a permanent standard 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 cases, 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 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
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
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
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
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)
procedures would not be in the best interest of employees, whom the Act is designed to protect.
Such lengthy procedures could al too easily consume al of the temporary standard’s six months
life.”33

29 Mark A. Rothstein, “Substantive and Procedural Obstacles to OSHA Rulemaking: Reproductive Hazards as an
Example,” Boston College Environmental Affairs Law Review, vol. 12, no. 4 (August 1985), p. 673.
30 For example, OSHA promulgated the Acrylonitrile (vinyl cyanide) ET S on January 17, 1978, and the permanent
standard on October 3, 1978, with an effective date of November 2, 1978. T he preamble to the permanent standard
published in the Federal Register does not include information on the status of the ET S during the time between its
expiration and the promulgation of the permanent standard. OSHA, “Occupational Exposure to Acrylonitrile (Vinyl
Cyanide),” 43 Federal Register 45762, October 3, 1978.
31 489 F.2d. 120 (5th Cir. 1974).
32 489 F.2d. at 127 (5th Cir. 1974).
33 489 F.2d. at 127 (5th Cir. 1974).
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OSHA Standards Related to COVID-19
Current OSHA Standards
Currently, no OSHA standard directly covers exposure to airborne or aerosol diseases in the
workplace. As a result, OSHA is limited in its ability to enforce protections for health care and
other workers who may be exposed to SARS-CoV-2, the virus that causes COVID-19.34
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.35 In addition, OSHA’s standards
for the use of personal protective equipment (PPE) may apply in cases in which workers require
eye, face, hand, or respiratory protection against COVID-19 exposure.36
As of January 14, 2021, OSHA had issued citations following 315 inspections related to COVID-
19, resulting in a total of $4,034,288 in proposed civil penalties.37 The majority of these citations
were issued to health care, nursing, and long-term care providers, including three Department of
Veterans Affairs facilities—hospitals in Indianapolis, IN, and Lyons, NJ, and a community living
center in Queens, NY.38 Citations were issued for violations of OSHA’s respiratory protection,
injury and il ness reporting, and recordkeeping standards. Two employers in the meat processing
industry—Smithfield Packaged Foods in Sioux Fal s, SD, and JBS Foods locations in Greeley,
CO, and Green Bay, WI—were cited for General Duty Clause violations. These were the only
General Duty Clause citations issued by OSHA for activities related to COVID-19.
In a letter to OSHA, Senators Elizabeth Warren and Cory Booker raised concerns over the
amount of penalties issued to Smithfield Packaged Foods and the Greeley, Colorado location of
JBS Foods.39 The Senators asked OSHA why these employers were each cited for single serious
violations of the General Duty Clause rather than multiple violations for each area of the facilities
in which social distancing measures were not implemented. They also asked why OSHA did not
issue penalties for wil ful or repeated violations that carry maximum penalties of $134,937 per
violation rather than the maximum penalty of $13,494 for serious or other than serious
violations.40 None of the employers cited for COVID-19-related violations were issued penalties
for wil ful or repeated violations.

34 OSHA has a standard on blood-borne pathogens (29 C.F.R. §1910.1030) but does not have a standard on pathogens
transmitted by airborne droplets.
35 29 U.S.C. §654(a)(1).
36 29 C.F.R. §§1910.133, 1910.134, and 1910.138.
37 OSHA, Inspections with COVID-Related Citations, as of January 14, 2021, https://www.osha.gov/enforcement/
covid-19-data/inspections-covid-related-citations. In some cases, multiple citations were issued to the same employer.
38 OSHA has the authority to issue citations to executive branch agencies but does not have the authority to issue civil
monetary penalties to these agencies.
39 Letter from Senators Elizabeth Warren and Cory Booker to Loren Sweatt, Principal Deputy Assistant Secretary of
Labor, Occupational Safety and Health Administration, September 22, 2020, https://www.warren.senate.gov/imo/
media/doc/Letter%20from%20Senators%20Warren,%20Booker%20to%20OSHA%209 -22-20.pdf.
40 OSHA citations are classified as “serious,” “other than serious,” “willful,” or “repeated.” T he maximum amounts of
OSHA penalties are subject to annual inflationary adjustments.
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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.41 Surgical masks, procedure masks, and dust
masks are not considered respirators. NIOSH certifies respirators pursuant to federal
regulations.42 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
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
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
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
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.43
Respirators designed for certain medical and surgical uses are subject to both certification by
NIOSH (for oil protection and efficiency) and regulation by the Food and Drug Administration
(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 afforded the user, it may al ow unfiltered air from the user
into a sterile field. On March 2, 2020, FDA issued an Emergency Use Authorization (EUA) to
approve for use in medical settings certain NIOSH-certified respirators not previously regulated
by FDA.44
CDC Interim Guidance on Respiratory Protection
On March 10, 2020, the Centers for Disease Control and Prevention (CDC) updated its interim
guidance for the protection of health care workers against exposure to COVID-19 to permit health
care workers caring for known or suspected COVID-19 cases to use “facemasks” when
respirators are not available or are in limited supply.45 This differs from the CDC’s 2007

41 29 C.F.R. §1910.134.
42 42 C.F.R. Part 84.
43 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.
44 Letter from RADM Denise M. Hinton, chief scientist, Food and Drug Administration (FDA), to Robert R. Redfield,
Director, CDC, March 2, 2020, at https://www.fda.gov/media/135763/download. T he list of respirators approved under
this Emergency Use Authorization (EUA) is in Appendix B to this letter, updated at https://www.fda.gov/media/
135921/download.
45 Although the interim guidance does not specifically define the term facemask, it does differentiate between a
facemask and a respirator such that any recommendation to use a facemask does not require the use of a respirator.
CDC, Interim Infection Prevention and Control Recom m endations for Patients with Suspected or Conf irm ed
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guidelines for control of infectious agents in health care settings, which required the use of
respirators for treatment of known or suspected cases.46 CDC states that respirators should be
prioritized for use in medical procedures likely to generate respiratory aerosols. Before this
interim guidance was released, Representative Bobby Scott, chair of the House Committee on
Education and Labor, and Representative Alma Adams, chair of the Subcommittee on Workforce
Protections, sent a letter to then-Secretary of Health and Human Services (HHS) Alex Azar
expressing their opposition to this change in the interim standard.47
Medical Evaluation and Fit Testing
The OSHA respiratory protection standard requires that the employer provide a medical
evaluation to the employee to determine if the employee is physiological y able to use a
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
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
when worn.48 Once an employee has been fit tested for a respirator, he or she is required to be fit
tested annual y 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
seal of the respirator to his or her face in accordance with the procedures provided in Appendix B
of the standard.49 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
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-
19 pandemic, OSHA has issued five sets of temporary enforcement guidance to permit the
following exceptions to the respiratory protection standard:
1. Employers may suspend annual fit testing of respirators for employees that have
already been fit tested on the same model respirator;50

Coronavirus Disease 2019 (COVID-19) in Health care Settings, updated March 10, 2020, at https://www.cdc.gov/
coronavirus/2019-ncov/infection-control/control-recommendations.html.
46 CDC, 2007 Guideline for Isolation Precautions: Preventing Transmission of Infectious Agents in Health care
Settings, updated July 2019, at https://www.cdc.gov/infectioncontrol/pdf/guidelines/isolation-guidelines-H.pdf.
47 Letter from Representative Robert C. “Bobby” Scott, chairman, House Committee on Education and Labor, and
Representative Alma S. Adams, chair, Subcommitt ee on Workforce Protections, to T he Honorable Alex M. Azar II,
Secretary of HHS, March 9, 2020, at https://edlabor.house.gov/imo/media/doc/
Azar%20Redfield%20Letter_SIGNED%202020-03-09.pdf.
48 29 C.F.R. §1910.134 Appendix A. Powered air purifying respirators (PAPR) that do not require a seal to the user’s
face do not need to be fit tested.
49 29 C.F.R. §1910.134 Appendix B.
50 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/
temporary-enforcement-guidance-healthcare-respiratory-protection-annual-fit; and OSHA Expanded Tem porary
Enforcem ent Guidance on Respiratory Protection Fit-Testing for N95 Filtering Facepieces in All Industries During the
Coronavirus Disease 2019 (COVID-19) Pandem ic, April 8, 2020, at https://www.osha.gov/memos/2020-04-08/
expanded-temporary-enforcement-guidance-respiratory-protection-fit-testing-n95.
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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);51
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
B of the enforcement guidance document:
 Australia,
 Brazil,
 European Union,
 Japan,
 Mexico,
 People’s Republic of China, and
 Republic of Korea.52
4. Employers may permit the re-use of respirators decontaminated in accordance
with CDC decontamination guidance;53 and
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.54
OSHA Infectious Disease Standard Rulemaking
In 2010, OSHA published a Request for Information in the Federal Register seeking public
comments on strategies to control exposure to infectious diseases in health care workplaces.55
After collecting public comments and holding public meetings, OSHA completed the SBREFA
process in 2014. Since then, however, no public actions have occurred on this rulemaking. Since
spring 2017, this rulemaking has been listed as a “long-term action” in the Department of Labor’s
semiannual regulatory agenda.

51 OSHA, Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the Coronavirus Disease
2019 (COVID-19) Pandem ic, 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.
52 OSHA, Enforcement Guidance for Use of Respiratory Protection Equipment Certified under Standards of Other
Countries or Jurisdictions During the Coronavirus Disease 2019 (COVID-19) Pandem ic, April 3, 2020, at
https://www.osha.gov/memos/2020-04-03/enforcement-guidance-use-respiratory-protection-equipment-certified-under.
53 OSHA, Enforcement Guidance on Decontamination of Filtering Facepiece Respirators in Healthcare During the
Coronavirus Disease 2019 (COVID-19) Pandem ic, April 24, 2021, at https://www.osha.gov/memos/2020-04-24/
enforcement -guidance-decontamination-filtering-facepiece-respirators-healthcare; and CDC, Im plem enting Filtering
Facepiece Respirator (FFR) Reuse, Including Reuse after Decontam ination, When There Are Known Shortages of N95
Respirators, October 19, 2021, at https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/decontamination-
reuse-respirators.html.
54 OSHA, Temporary Enforcement Guidance—Tight-Fitting Powered Air Purifying Respirators (PAPRs) Used During
the Coronavirus Disease 2019 (COVID-19) Pandem ic, October 2, 2021, at https://www.osha.gov/memos/2020-10-02/
temporary-enforcement-guidance-tight-fitting-powered-air-purifying-respirators.
55 OSHA, “Infectious Diseases,” 75 Federal Register 24835, May 6, 2010.
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Executive Order Requiring Updated OSHA Guidance and
Consideration of an ETS
On January 21, 2021, President Joe Biden issued an executive order concerning COVID-19 in the
workplace.56 This executive order requires that OSHA take the following actions:
 in consultation with other agencies, issue revised COVID-19 guidance within
two weeks;
 review the necessity of a COVID-19 ETS and, if necessary, issue an ETS by
March 15, 2021;
 review OSHA enforcement related to COVID-19 and identify changes that could
be made to better protect workers and ensure equity in enforcement;
 launch a national enforcement program to focus on violations that put the largest
number of workers at serious risk of COVID-19 or violate anti-retaliation
principles;
 conduct a multilingual outreach campaign in consultation with labor unions,
community groups, and industries to inform workers of their rights under current
law, with an emphasis on communities hit hardest by the COVID-19 pandemic;
 coordinate with state plans to ensure that workers covered by such plans are
adequately protected from COVID-19 consistent with any OSHA guidance or
ETS; and
 consult with states that do not operate state plans to improve protections for state
and government employees.
The executive order also includes requirements for the Mine Safety and Health Administration to
determine the necessity of an ETS for mineworkers and, if necessary, issue such an ETS as soon
as practicable. The order also directs the heads of other federal agencies to explore ways to
protect workers not covered by the OSH Act from COVID-19 in the workplace.
State Occupational Safety and Health Standards
Although no OSHA standard specifical y covers aerosol or airborne disease transmission or
COVID-19, two states, California and Michigan, have issued temporary standards under their
state plans that directly address COVID-19 exposure. 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.
California: Cal/OSHA Aerosol Transmissible Disease Standard
The California Division of Occupational Safety and Health (Cal/OSHA), under its state plan,
promulgated its aerosol transmissible disease (ATD) standard in 2009.57 The ATD standard covers

56 Executive Order, “Executive Order on Protecting Worker Health and Safety,” January 21, 2021,
https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/21/executive-order-protecting-worker-health-
and-safety/.
57 Aerosol Transmissible Diseases, Cal. Code Regs. tit. 8, §5199, available at https://www.dir.ca.gov/title8/5199.html.
T he California state plan covers all state and local government agencies and all private sector workers in the state, with
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most health care workers (including emergency medical services and police transport or detention
of infected persons) and laboratory workers, as wel as workers in correctional 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 isolation.
This classification subjects the virus to stricter control standards than diseases requiring only
droplet precautions, such as seasonal influenza.58 The key requirements of the ATD standard
include
 written ATD exposure control plan and procedures;
 training of al employees on COVID-19 exposure, use of PPE, and procedures if
exposed to COVID-19;
 engineering and work practice controls to control COVID-19 exposure, including
the use of airborne isolation rooms;
 provision of medical services to exposed employees, including post-exposure
evaluation of employees and treatment and vaccines, if available;
 the removal, without penalty to the employees, of exposed employees,
 specific requirements for laboratory workers, and
 PPE requirements.
Cal/OSHA Aerosol Transmissible Disease PPE Requirements
The Cal/OSHA ATD standard requires that employers provide employees PPE, including gloves,
gowns or coveral s, eye protection, and respirators certified by NIOSH at least at the N95 level
whenever workers
 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;
 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;
 are present during aerosol generating procedures on cadavers of cases or
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.
In addition, a powered air purifying respirator (PAPR) with a high-efficiency particulate air
(HEPA) filter must be used whenever a worker performs a high-hazard procedure on a known or
suspected COVID-19 case.59 High-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”—they include intubation, airway suction, and caring for

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
contractors.
58 Cal. Code Regs. tit. 8, §5199 Appendix A.
59 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.
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patients on positive pressure ventilation.60 Emergency medical services (EMS) workers may use
N100, R100, or P100 respirators in place of PAPRs.
Cal/OSHA Interim Guidance on COVID-19
Cal/OSHA has issued interim guidance in response to shortages of respirators in the state due to
the COVID-19 pandemic response.61 Under this interim guidance, if the supply of N95 respirators
or PAPRs are insufficient to meet current or anticipated needs, surgical masks may be used for
low-hazard patient contacts that would otherwise require the use of respirators, and respirators
may be used for high-hazard procedures that would otherwise require the use of PAPRs.
Cal/OSHA COVID-19 ETS
On November 19, 2020, the California Occupational Safety and Health Standards Board
approved an ETS to specifical y address COVID-19 exposure in the workplace.62 This ETS
became effective on November 30, 2020, and is to remain in effect for 180 days and can be
extended for up to two periods of 90 days each. California Executive Orders N-40-20 and N-71-
20 each extended the ETS by 60 days such that the ETS now expires on September 30, 2021. The
Cal/OSHA ETS applies to al covered employers in 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 employer-provided housing and
transportation.
Michigan: MIOSHA COVID-19 Emergency Rules
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),
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
six months through October 14, 2021. These rules were amended, effective May 24, 2021, based
on updated CDC guidance, and the amended rules wil remain in effect through October 14,
2021.63 The Michigan emergency rules apply to al employers covered by the state plan.
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
specifical y address COVID-19 exposures in the workplace. These rules were reissued to correct

60 Cal. Code Regs. tit. 8, §5199(b).
61 California Division of Occupational Safety and Health (Cal/OSHA), Cal/OSHA Interim Guidance on COVID-19 for
Health Care Facilities: Severe Respirator Supply Shortages, August 6, 2020, at https://www.dir.ca.gov/dosh/
coronavirus/Cal-OSHA-Guidance-for-respirator-shortages.pdf.
62 COVID-19 Prevention, Cal. Code Regs. tit. 8, §§3205-3205.4, available at https://www.dir.ca.gov/dosh/coronavirus/
ET S.html.
63 Emergency Rules: Coronavirus 2019 (COVID-19), available at https://www.michigan.gov//documents/leo/
Final_MIOSHA_Rules_705164_7.pdf. T he 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
businesses owned or operated by tribal members at Indian reservations, and aircraft cabin crew members.
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“scriveners’ errors” on December 16, 2020, and were set to expire on May 4, 2021. On May 4,
2021, permanent administrative rules became effective.64 These permanent rules wil remain in
effect until repealed or revised by Oregon OSHA. However, the rules require Oregon OSHA 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 July 2021. After
the first consultations, ongoing consultations are required every two months until the rules are
repealed.
In addition to rules that apply to al employers, the appendices to the Oregon OSHA rules also
include mandatory guidance that apply to the following industries and employers:
 restaurants, bars, brewpubs, and public tasting rooms at breweries, wineries, and
distil eries;
 retail stores;
 personal services providers such as hair salons;
 construction operations;
 transit agencies;
 professional and Division I, PAC-12, Big Sky, and West Coast Conference sports;
 fitness-related organizations;
 K-12 educational institutions (public or private);
 child care and early education providers;
 veterinary clinics;
 fire and emergency medical services;
 law enforcement; and
 jails and custodial institutions.
Virginia: VOSH COVID-19 Permanent Standard
On July 15, 2020, the Virginia Safety and Health Codes Board adopted an ETS to specifical y
protect employees from exposure to SARS-CoV-2, the virus that causes COVID-19.65 On January
12, 2021, the Virginia Safety and Health Codes Board voted to promulgate a permanent COVID-
19 standard that supersedes the ETS.66

64 Addressing COVID-19 Workplace Risks, Or. Admin. R. 437-001-0744, available at https://osha.oregon.gov/
OSHARules/div1/437-001-0744.pdf. T he 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
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
during flight operations.
65 Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19, 16 Va. Admin. Code §25-220, available
at https://www.doli.virginia.gov/wp-content/uploads/2020/07/RIS-filed-RT D-Final-ET S-7.24.2020.pdf. T his ET S was
effective upon publication in a Richmond, VA, newspaper during the week of July 27, 2020.
66 Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19, 16 Va. Admin. Code §25-220,
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. T his permanent standard is effective on January 27, 2021.
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This ETS, promulgated under Virginia’s state occupational safety and health plan (VOSH), was
the first state standard to specifical y address COVID-19 in the workplace.67 As an ETS, 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
the Virginia Safety and Health Codes Board, whichever came first. The VOSH permanent
standard applies to al state and local government agencies and al covered private sector
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,
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.68 While the standard is
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
emergency, the Virginia Safety and Health Codes Board must meet to determine if there is a
continued need for the standard.
Congressional Activity in the 116th Congress to
Require an OSHA Emergency Temporary Standard
on COVID-19
On March 5, 2020, Representative Bobby Scott, chair of the House Committee on Education and
Labor, and Representative Alma Adams, chair of the Subcommittee on Workforce Protections,
sent a letter to then-Secretary of Labor Eugene Scalia cal ing on OSHA to promulgate an ETS to
address COVID-19 exposure among health care workers.69 This letter followed a January 2020
letter requesting that OSHA reopen its rulemaking on the infectious disease standard and begin to
formulate for possible future promulgation an ETS to address COVID-19 exposure.70 Senator
Patty Murray, then-ranking member of the Senate Committee on Health, Education, Labor, and
Pensions and a group of Democratic Senators sent a similar letter to the Secretary of Labor
cal ing for an OSHA ETS.71
In addition, in March 2020, David Michaels, who served as the Assistant Secretary of Labor for
Occupational Safety and Health during the Obama Administration, wrote an op-ed in The Atlantic

67 T he Virginia state plan covers all state and local government agencies and all private sector workers in th e state, 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 Southeastern Power
Administration Kerr-Philpott System, and aircraft cabin crew members.
68 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
of Labor and Industry, January 7, 2021, http://www.doli.virginia.gov/wp-content/uploads/2021/01/Virginia-Poultry-
Federation-Comments-on-Permanent-DOLI-Standard-1.7.21.pdf.
69 Letter from Representative Scott, chairman, House Committee on Education and Labor, and Representative Adams,
chair, Subcommittee on Worker Protections, to T he Honorable Eugene Scalia, Secretary of Labor, March 5, 2020, at
https://edlabor.house.gov/imo/media/doc/2020-03-05%20OSHA%20ET S%20Letter.pdf.
70 Letter from Representative Scott, chairman, House Committee on Education and Labor, and Representative Adams,
chair, Subcommittee on Worker Protections, to T he Honorable Eugene Scalia, Secretary of Labor, January 30, 2020, at
https://edlabor.house.gov/imo/media/doc/2020-01-30%20RCS%20to%20DOL%20Corona%20Letter_SIGNED1.pdf .
71 Letter from Senator Patty Murray, ranking member, Senate Committee on Health, Education, Labor, and Pensions,
Senator Robert Menendez, and Senator T ammy Baldwin, et al. to T he Honorable Eugene Scalia, Secretary of Labor,
March 9, 2020, at https://www.baldwin.senate.gov/imo/media/doc/20200309%20OSHA%20ET S%20Letter.pdf.
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cal ing on OSHA to promulgate a COVID-19 ETS.72 On March 6, 2020, the AFL-CIO and 22
other unions petitioned OSHA for an ETS on infectious diseases that would cover al workers
with potential exposures.73 OSHA formal y denied the AFL-CIO petition on May 29, 2020,
claiming that an ETS is not necessary to protect employees from infectious diseases general y, or
from COVID-19.74 National Nurses United submitted a similar petition requesting that OSHA
promulgate an ETS based largely on the Cal/OSHA ATD standard.75 On May 4, 2020, the Center
for Food Safety and Food Chain Workers Al iance submitted a petition requesting that OSHA
promulgate an ETS to protect meat and poultry processing workers from COVID-19 exposure in
the workplace.76 On May 18, 2020, the AFL-CIO petitioned the U.S. Court of Appeals for the
D.C. Circuit for a writ of mandamus to compel OSHA to promulgate a COVID-19 ETS.77 The
circuit court denied this petition on June 11, 2020.
H.R. 6139, the COVID-19 Health Care Worker Protection Act
of 2020
On March 9, 2020, Representative Bobby Scott introduced H.R. 6139, the COVID-19 Health
Care Worker Protection Act of 2020. This bil would have required OSHA to promulgate a
COVID-19 ETS within one month of enactment. The ETS would have been required to cover
health care workers and any workers in sectors determined by the CDC or OSHA to be at an
elevated risk of COVID-19 exposure. The ETS would have been required to include an exposure
control plan provision and be, at a minimum, based on CDC’s 2007 guidance and any updates to
this guidance. The ETS would also have been required to provide no less protection than any state
standard on novel pathogens, thus requiring OSHA to include the elements of the Cal/OSHA ATD
standard and ETS, the MIOSHA emergency rule, the Oregon OSHA temporary administrative
rules, and the VOSH COVID-19 standard in this ETS. Title II of the bil provided that hospitals
and skil ed nursing facilities that receive Medicare funding and that are owned by state or local
government units and not subject to state plans would be required to comply with the ETS.
Similar provisions are included in S. 3475.
P.L. 116-127, the Families First Coronavirus Response Act
The provisions of H.R. 6139 were included as Division C of H.R. 6201, the Families First
Coronavirus Response Act, as introduced in the House. The American Hospital Association
(AHA) issued an alert to its members expressing its opposition to the OSHA ETS provisions in

72 David Michaels, “What T rump Could Do Right Now to Keep Workers Safe From the Coronavirus,” The Atlantic,
March 2, 2020, at https://www.theatlantic.com/ideas/archive/2020/03/use-osha-help-stem-covid-19-pandemic/607312/.
73 Letter from Richard L. T rumka, president, AFL-CIO, to T he Honorable Eugene Scalia, Secretary of Labor, March 6,
2020, at https://aflcio.org/statements/petition-secretary-scalia-osha-emergency-temporary-standard-infectious-disease.
74 Letter from Loren Sweatt, Principal Deputy Assistant Secretary of Labor, to Richard L. T rumka, president, AFL -
CIO, May 29, 2020.
75 Letter from Bonnie Castillo, executive director, National Nurses United, to T he Honorable Eugene Scalia, Secretary
of Labor, and T he Honorable Loren Sweatt, Principal Deputy Assistant Secretary of Labor for Occupational Safety and
Health, March 4, 2020, at https://act.nationalnursesunited.org/page/-/files/graphics/NNUPetitionOSHA03042020.pdf.
76 Center for Food Safety and Food Chain Workers Alliance, Rulemaking Petition to the United States Department of
Labor, Occupational Safety and Health Adm inistration , May 4, 2020, at https://www.centerforfoodsafety.org/files/
2020-05-04-osha-ets-petition_58890.pdf.
77 In re: American Federation of Labor and Congress of Industrial Organizations, D.C. Cir., No. 19 -1158, May 18,
2020. T his petition was filed in the U.S. Court of Appeals as Section 6(f) of the OSH Act [29 U.S.C. §655(f)] grant s
this court exclusive jurisdiction to provide judicial review of OSHA standards.
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the bil .78 Specifical y, the AHA opposed the requirement that the ETS be based on the CDC’s
2007 guidance. The AHA stated that unlike severe acute respiratory syndrome (SARS), which
was transmitted through the air, COVID-19 transmission is through droplets and surface contacts.
Thus, the requirement of the 2007 CDC guidance that N95 respirators, rather than surgical masks,
be used for patient contact is not necessary to protect health care workers from COVID-19, and
the use of surgical masks is consistent with World Health Organization guidance. The AHA also
claimed that shortages of available respirators could reduce the capacity of hospitals to treat
COVID-19 patients, due to a lack of respirators for staff. The OSHA ETS provisions were not
included in the version of the legislation that was passed by the House and the Senate and signed
into law as P.L. 116-127.
H.R. 6379, the Take Responsibility for Workers and Families Act
Division D of H.R. 6379, the Take Responsibility for Workers and Families Act, as introduced in
the House on March 23, 2020, included the requirement that OSHA promulgate an ETS on
COVID-19 within seven days of enactment and a permanent COVID-19 standard within 24
months of enactment to cover health care workers, firefighters and emergency response workers,
and workers in other occupations that CDC or OSHA determines to have an elevated risk of
COVID-19 exposure. Division D of H.R. 6379 would have amended the OSH Act, for the
purposes of the ETS only, such that state and local government employers in states without state
plans would be covered by the ETS. The provisions of Division D of H.R. 6379 were also
included in S. 3584, the COVID-19 Workers First Protection Act of 2020, as introduced in the
Senate.
This legislation would have specifical y provided that the ETS would remain in force until the
permanent standard is promulgated and would explicitly exempt the ETS from the Regulatory
Flexibility Act, Paperwork Reduction Act, and Executive Order 12866. OSHA would have been
granted enforcement discretion in cases in which it is not feasible for an employer to fully comply
with the ETS (such as a case in which PPE is unavailable) if the employer is exercising due
diligence to comply and implementing alternative means to protect employees.
Like the provisions in H.R. 6139 and the version of H.R. 6201 introduced in the House, the ETS
and permanent standard under H.R. 6379 would have been required to include an exposure
control plan and provide no less protection than any state standard on novel pathogens, thus
requiring OSHA to include the elements of the Cal/OSHA ATD standard and ETS, the VOSH
COVID-19 standard, and the MIOSHA emergency rules in this ETS and permanent standard.
Although the ETS provisions in H.R. 6139 and H.R. 6201 would have required that the ETS be
based on the 2007 CDC guidance, specific reference to the 2007 guidance was not included in
this legislation. Rather, under H.R. 6379, the ETS and permanent standard would have had to
incorporate, as appropriate, “guidelines issued by the Centers for Disease Control and Prevention,
and the National Institute for Occupational Safety and Health, which are designed to prevent the
transmission of infectious agents in health care settings” and scientific research on novel
pathogens.
States with occupational safety and health plans would have been required to adopt the ETS, or
their own ETS at least as effective as the federal ETS, no more than 14 days after the legislation’s
enactment.

78 Emily Kopp, “Hospitals want to kill a policy shielding nurses from COVID-19 because there aren’t enough masks,”
Roll Call, March 3, 2020, at https://www.rollcall.com/2020/03/13/hospitals-want -to-kill-a-policy-shielding-nurses-
from-covid-19-because-there-arent-enough-masks/. T his alert is available to American Hospital Association (AHA)
members on the AHA website at https://www.aha.org.
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H.R. 6559, the COVID-19 Every Worker Protection Act of 2020
H.R. 6559, the COVID-19 Every Worker Protection Act of 2020, was introduced in the House by
Representative Bobby Scott on April 21, 2020. This legislation included the ETS and permanent
standard provisions of Division D of H.R. 6379 and S. 3584 and would have required that these
standards cover health care workers, emergency medical responders, and “other employees at
occupational risk” of COVID-19 exposure. This legislation also added two provisions that would
clarify the requirements for employers to record work-related COVID-19 infections and
strengthen the protections against retaliation and discrimination offered to whistleblowers.
Similar provisions were included in S. 3677 and were incorporated into H.R. 6800, the Heroes
Act, and H.R. 925, the revised HEROES Act, as passed by the House.
COVID-19 Recordkeeping
Sections 8(c) and 24(a) of the OSH Act require employers to maintain records of occupational
injuries and il nesses in accordance with OSHA regulations.79 OSHA’s reporting and
recordkeeping regulations require that employers with 10 or more employees must keep records
of work-related injuries and il nesses that result in lost work time for employees or that require
medical care beyond first aid.80 Employers must also report to OSHA, within 8 hours, any
workplace fatality, and within 24 hours, any injury or il ness that results in in-patient
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, il nesses, and deaths.81 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 il ness is related
to his or her work and thus subject to the recordkeeping requirements.82 The regulations provide a
presumption that an injury or il ness that occurs in the workplace is work-related and recordable,
unless one of the exemptions provided in the regulations applies.83 One of the listed exemptions is
“The il ness is the common cold or flu (Note: contagious diseases such as tuberculosis,
brucel osis, hepatitis A, or plague are considered work-related if the employee is infected at
work).”84
Because of the nature of COVID-19 transmission, which can occur in the community as wel as
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
if an employee’s COVID-19 is subject to the recordkeeping requirements.

79 29 U.S.C. §§657(c) and 673(a).
80 OSHA’s reporting and recordkeeping regulations are at 29 C.F.R. Part 1904.
81 T he list of exempted industries is at 29 C.F.R. Subpart B, Appendix A. States with state occupational safety and
health plans may require employers in these exempted industries t o comply with the recordkeeping requirements.
82 29 C.F.R. §1904.5.
83 29 C.F.R. §1905.5(a).
84 29 C.F.R. §1904.5(b)(2)(viii).
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Initial OSHA Recordkeeping Guidance
On April 10, 2020, OSHA issued enforcement guidance on how cases of COVID-19 should be
treated under the recordkeeping requirements.85 This guidance stated that COVID-19 cases were
recordable if they were work-related.
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
work-related:
 health care;
 emergency response, including firefighting, emergency medical services, and law
enforcement; and
 correctional institutions.
For al 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
were met:
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
among workers who worked closely together without an alternative explanation.
2. The evidence of work-relatedness was reasonably available to the employer. For
purposes of this guidance, examples of reasonably available evidence included
information given to the employer by employees, as wel as information that an
employer learned regarding its employees’ health and safety in the ordinary
course of managing its business and employees.
Updated OSHA Recordkeeping Guidance
OSHA issued new guidance, effective May 26, 2020, on recordkeeping of COVID-19 cases.86
This new guidance rescinds the previous guidance issued by OSHA on April 10, 2020. Under this
new guidance, al employers, regardless of type of industry or employment, are subject to the
recordkeeping and recording 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,
OSHA says it wil consider the following factors:
 the reasonableness of the employer’s investigation of the COVID-19 case and its
transmission to the employee;
 the evidence that is available to the employer; and
 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
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.

85 OSHA, Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), April 10, 2020, at
https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19.
86 OSHA, Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), May 19,
2020, at https://www.osha.gov/memos/2020-05-19/revised-enforcement -guidance-recording-cases-coronavirus-
disease-2019-covid-19.
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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
Frequently Asked Questions webpage on May 22, 2021, provides that the agency wil not require
any employers to record or report any injuries or il ness resulting from the COVID-19 vaccine
even if vaccination is a condition of employment. This guidance is to remain in effect through
May 2022.87
H.R. 6559
H.R. 6559 would have required that the ETS and permanent standard established pursuant to the
legislation include the requirement for the recording and reporting of al COVID-19 cases in
accordance with OSHA regulations in place at the time of enactment. By referencing the
regulations in place, this provision would have served to supersede OSHA’s guidance from April
10, 2020, and apply the requirement, currently provided in the guidance effective May 26, 2020,
to determine the work-relatedness of COVID-19 cases to al employers covered by the
recordkeeping regulations.
Whistleblower Protections
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.88 Commonly referred to as the
whistleblower protection provision, this provision protects any employee who takes any of the
following actions:
 files a complaint with OSHA related to a violation of the OSH Act;
 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.89
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
material safety data sheets or other information required to be made available by the employer;
and the right to report a work-related injury, il ness, or death to OSHA.90 In limited cases, the
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.91

87 OSHA, COVID-19: Frequently Asked Questions, at https://www.osha.gov/coronavirus/faqs#vaccine. T his guidance
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 employer required the vaccine as a condition of employment .
88 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, Whistleblower Statutes Sum m ary Chart, October 17,
2009, at https://www.whistleblowers.gov/sites/wb/files/2019-12/WB-Statute-Summary-Chart -10.8-Final.pdf.
89 29 C.F.R. §1977.3. Public-sector employees, except employees of the United States Post al Service, are not protected
by the whistleblower provision, but may be covered by whistleblower provisions in other federal and state statutes.
90 For additional information on other rights covered by the whistleblower protection provision, see OSHA, Jan uary 9,
2019, Investigator’s Desk Aid to the Occupational Safety and Health Act (OSH Act) Whistleblower Protection
Provision, pp. 5-7, at https://www.osha.gov/sites/default/files/11cDeskAid.pdf.
91 29 C.F.R. §1977.12(b)(2).
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H.R. 6559 would have required that the ETS and permanent standard promulgated pursuant to the
legislation expand the protections for whistleblowers. The following additional activities taken by
employees would grant them protection from 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
social media platform; the following:
 a violation of the ETS or permanent standard promulgated pursuant to the
legislation;
 a violation of the infectious disease control plan required by the ETS or
permanent standard; or
 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
such a report; and
 using personal y supplied PPE with a higher level of protection than offered by
the employer.
H.R. 6800, The Heroes Act
The provisions of H.R. 6559, including the provisions relating to recordkeeping and
whistleblower protections, were included as Title III of Division L of H.R. 6800, The Heroes Act.
H.R. 6800, was passed by the House on May 15, 2020. In a letter to Speaker of the House Nancy
Pelosi, the AHA expressed its opposition to the ETS provisions in The Heroes Act citing the
potential for confusion that new regulations could bring and the “ongoing global lack of supplies,
equipment and testing capability” faced by hospitals.92 The AHA also stated that the provision
that would require the ETS to be based on state standards “suggests that the federal government is
surrendering its responsibility to appropriately regulate the nation to a state government agency
without consideration of whether that state’s decisions are appropriate for implementation
anywhere and everywhere.”
H.R. 925, The Heroes Act (Revised)
The provisions of H.R. 6559 and H.R. 6800 were included in the House Amendment to the Senate
Amendment to H.R. 925, the revised Heroes Act, passed by the House on October 1, 2020.
P.L. 116-260, Consolidated Appropriations Act, 2021
Division N of the Consolidated Appropriations Act, 2021 (P.L. 116-260), included numerous
provisions related to COVID-19. However, no provisions related to an OSHA ETS were included
in this legislation.

92 Letter from T homas P. Nickels, executive vice president, American Hospital Association, to Hon. Nancy Pelosi,
Speaker, U.S. House of Representatives, May 14, 2020, at https://www.aha.org/system/files/media/file/2020/05/web-
AHALettertoHouseonHEROESAct051420final.pdf.
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Congressional Activity in the 117th Congress
There has been no legislation introduced in the 117th Congress that would require OSHA to
promulgate a COVID-19 ETS. On April 26, 2021, Representatives Debbie Dingel , Rashida
Tlaib, and Andy Levin wrote a letter to President Biden cal ing for immediate action on a
COVID-19 ETS and an explanation as to why an ETS has not yet been promulgated by OSHA.93
On May 24, 2021, minority members of the House Committee on Education and Labor—citing
the availability of the COVID-19 vaccine and CDC guidance that fully vaccinated persons may
resume certain activities, including indoor activities, without wearing face coverings—wrote a
letter to Secretary of Labor Marty Walsh urging the Department of Labor to stop work on a
proposed COVID-19 ETS.94

93 Representatives Debbie Dingell, Rashida T laib, and Andy Levin, letter to President Joe Biden, April 26, 2021,
https://debbiedingell.house.gov/uploadedfiles/4.26.21_dingell_tlaib_levin_nurse_osha_letter_ -_signed.pdf.
94 Representatives Virginia Foxx et al., letter to Secretary of Labor Marty Walsh, May 24, 2021, https://republicans-
edlabor.house.gov/uploadedfiles/05.24.21_osha_ets_letter.pdf.
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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
Asbestos
36 Federal Register
Not chal enged
—
23207 (December 7,
1971)
1973
Organophosphorous
38 Federal Register
Vacated
Florida Peach Growers
pesticides
10715 (May 1, 1973);
Ass'n v. United States
amended by 38 Federal
Department of Labor,
Register 17214 (June
489 F.2d 120 (5th Cir.
29, 1973)
1974)
1973
Fourteen carcinogens
38 Federal Register
Twelve upheld, two
Dry Color Mfrs. Ass'n v.
10929 (May 3, 1973)
vacated
Department of Labor,
486 F.2d 98 (3d Cir.
1973)
1974
Vinyl chloride
39 Federal Register
Not chal enged
—
12342 (April 5, 1974)
1976
Diving operations
41 Federal Register
Stayed
Taylor Diving & Salvage
24271 (June 15, 1976)
Co. v. Department of
Labor, 537 F.2d 819
(5th Cir. 1976)
1977
Benzene
42 Federal Register
Stayed
Industrial Union Dep't v.
22515 (May 3, 1977)
Bingham, 570 F.2d 965
(D.C. Cir. 1977)
1977
1,2 Dibromo-3-
42 Federal Register
Not chal enged
—
chloropropane (DBCP) 45535 (September 9,
1977)
1978
Acrylonitrile (vinyl
43 Federal Register
Stay denied
Vistron v. OSHA, 6
cyanide)
2585 (January 17,
OSHC 1483 (6th Cir.
1978)
1978)
1983
Asbestos
48 Federal Register
Stayed
Asbestos Info. Ass'n v.
51086 (November 4,
OSHA, 727 F.2d 415
1983)
(5th Cir. 1984)
Source: CRS with data from Mark A. Rothstein, “Substantive and Procedural Obstacles to OSHA Rulemaking:
Reproductive Hazards as an Example,” Boston Col ege Environmental Affairs Law Review, vol. 12, no. 4 (August
1985), p. 673.

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Table A-2. State Occupational Safety and Health Standards That Apply to COVID-19
Covered
State
Standard
Employers
Issued
Expires
California
Aerosol
Health care,
July 6, 2009
Permanent
(Cal/OSHA)
Transmissible
laboratories,
Disease (ATD)a
corrections
facilities, homeless
shelters, and drug
treatment centers
COVD-19
Al employers
November 30, 2020 September 30, 2021
Preventionb
Michigan (MIOSHA)
Emergency Rules:
Al employers, with
October 14, 2020,
October 14, 2021
Coronavirus 2019
additional rules for
April 10, 2021
(COVID-19)c
specific industries
(extended)
May 24, 2021
(amended)
Oregon (Oregon
Addressing COVID-
Al employers, with
November 6, 2020
Permanentf
OSHA)
19 Workplace
additional rules for
(ETS), reissued
Risksd
specific industries
December 11, 2020
May 4, 2021
(permanent
standard)
Virginia (VOSH)
Infectious Disease
Al employers
July 27, 2020 (ETS),
Permanentg
Prevention: SARS-
January 12, 2021
CoV-2 Virus that
(permanent
Causes COVID-19e
standard)
Source: Congressional Research Service (CRS).
a. Available at https://www.dir.ca.gov/title8/5199.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.
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-
Prevention-of-COVID-19-16VAC25-220-1.15.2021.pdf.
f.
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
July 2021. After the first consultations, ongoing consultations are required every two months until the rules
are repealed.
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
to determine if there is a continued need for the standard.

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Author Information

Scott D. Szymendera

Analyst in Disability Policy

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should n ot be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
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copy or otherwise use copyrighted material.

Congressional Research Service
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