Occupational Safety and Health Administration December 10, 2021
(OSHA): COVID-19 Emergency Temporary
Scott D. Szymendera
Standards (ETS) on Health Care Employment
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
Standard (ETS) for the prevention of the transmission of SARS-CoV-2, the virus that causes COVID-19 in health care
employment settings.
On November 5, 2021, OSHA promulgated an additional 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
order to work onsite.
On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit ordered a stay on the OSHA COVID-19 vaccination
and testing ETS pending additional judicial review and reaffirmed this stay on November 12, 2021.
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 OSHA COVID-19 ETS for health care employers requires health care employers to develop COVID-19 plans and
protect employees from COVID-19 exposure through health screenings, personal protective equipment (PPE), building
ventilation, and physical distancing and barriers. The ETS requires health care employers to remove any employees with
COVID-19 from the workplace while providing them with certain benefits. Health care employers are not required to
mandate that their employees receive a COVID-19 vaccine but must provide reasonable time off for employees to receive a
vaccine and recover from any vaccine-related side effects. The ETS includes new COVID-19 recordkeeping and reporting
requirements for health care employers and permits health care employers to forgo the medical evaluation and fit-testing
requirements of OSHA’s respiratory protection standard when providing respirators to employees in certain circumstances.
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 ETS for health care employers applies only to health care employers, and the COVID-19 vaccination
and testing ETS applies only to employers with 100 or more employees, all employers are 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, 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.
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, which was later rescinded and replaced
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with the OSHA COVID-19 ETS for health care employers, 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.
States with state occupational safety and health plans must adopt and enforce all OSHA standards, including the ETS for
health care employers and 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
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 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
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 all 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 generally 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. 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).
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 Examples 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 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
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 generally apply to OSHA rulemaking
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
(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 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
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 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, The Federal Rulemaking 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 historically 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.

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.
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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 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
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
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 physically 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.
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.
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, 91st
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,
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 challenge to enforcement of OSHA’s
permanent standard regarding respirator use hardly justifies resort to the most dramatic weapon in
OSHA’s enforcement arsenal.”26
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). The ETS 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 well 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 well 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 realistically
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. As shown in Table A-1, in the 11 times
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
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
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
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 all too easily consume all of the temporary standard’s six months
life.”33
OSHA COVID-19 ETS for Health Care Employers
On June 21, 2021, OSHA promulgated an ETS for the prevention of COVID-19 in health care
employment.34 The ETS requires a covered employer to create a COVID-19 plan, includes
provisions for the prevention of COVID-19 in the workplace, requires new recordkeeping in

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) 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
published in the Federal Register 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
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).
34 OSHA, “Occupational Exposure to COVID-19; Emergency Temporary Standard,” 86 Federal Register 32376, June
21, 2021.
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COVID-19 cases, and (in certain circumstances) permits employers to forgo the medical
evaluation and fit-testing requirements of the OSHA respiratory protection standard. The ETS
became effective with its publication in the Federal Register, with covered employers required to
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
employers must comply with the physical distancing, building ventilation, training, and mini-
respiratory-protection provisions by July 21, 2021. While the Federal Register announcement
does 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 months. The publication of the COVID-19 ETS
in the Federal Register also included a request for comments on the ETS and on whether the ETS
should become a permanent standard. In the preamble to the ETS, OSHA states 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.35 The ETS is not retroactive.
Petitions for Judicial Review
On June 24, 2021, National Nurses United filed a petition for judicial review of the COVID-19
ETS in the U.S. Court of Appeals for the Ninth Circuit.36 Also on June 24, 2021, the United Food
and Commercial Workers (UFCW) and AFL-CIO filed a petition for judicial review of the
COVID-19 ETS in the U.S. Court of Appeals for the District of Columbia Circuit. In its petition
the UFCW and AFL-CIO state as grounds for review that the ETS “fails to protect employees
outside the healthcare industry who face a similar grave danger from occupational exposure to
COVID-19.”37 On July 8, 2021, National Nurses United voluntarily withdrew its petition for
judicial review of the COVID-19 ETS.
Justification for the COVID-19 ETS for Health Care Employers
In the preamble to the ETS published in the Federal Register, OSHA provides a justification for
the ETS by addressing 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 a COVID-19 ETS for health care employment, OSHA states that the agency
“has determined that healthcare employees face a grave danger from the new hazard of workplace
exposures to SARS-CoV-2 except under a limited number of situations (e.g., a fully vaccinated
workforce in a breakroom).”38 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 health consequences of COVID-19, including mortality and short-term and
long-term health consequences from COVID-19, even in cases determined by the
Centers for Disease Control and Prevention (CDC) to be “mild;”

35 OSHA, “Occupational Exposure to COVID-19,” p. 32560.
36 National Nurses United v. OSHA, Docket No. 21-71142 (9th Cir. June 24, 2021).
37 United Food and Commercial Workers and American Federation of Labor and Congress of Industrial Organizations
v. OSHA, et al., Docket No. 21-1143 (D.C. Cir. June 24, 2021).
38 OSHA, “Occupational Exposure to COVID-19,” p. 32381.
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 the elevated risk of COVID-19 transmission in the workplace due to common
elements of workplaces such as shared work spaces; and
 the risk of COVID-19 transmission in health care settings where known or
suspected infectious patients are receiving medical treatment.39
Necessity Determination
Inadequacy of Current Standards and Guidance
OSHA states that an ETS is necessary as it is the only means the agency has to control COVID-19
exposure in health care workplaces. The agency states that current OSHA standards—such as
those covering respiratory protection, personal protective equipment (PPE), sanitation, and hazard
communication—do not provide sufficient protection to health care employees exposed to known
or suspected infectious persons. OSHA also states that its own guidance and that provided by
other agencies such as the CDC do not provide sufficient protections to employers as such
guidance is voluntary and not enforceable. OSHA claims that there is a need for a uniform set of
requirements for health care employers in all states regardless of whether the state has adopted its
own COVID-19 standards and cites a petition filed by the occupational safety consulting firm
ORCHSE Strategies requesting an ETS as evidence that some employers favor the uniform set of
national requirements provided by an ETS.40
Inadequacy of the General Duty Clause
OSHA asserts that the general duty clause provides inadequate protections to employees. Unlike
the ETS, the general duty clause does not contain specific requirements for employers. In
addition, OSHA claims that there is a “heavier” burden of proof that the agency must meet for
enforcement of the general duty clause versus enforcement of a standard or ETS.41 Enforcement
of the general duty clause is also limited by the inability to require specific hazard abatements and
the inability to assess higher civil monetary penalties for egregious or willful violations. OSHA
also states that the general duty clause does not provide complete protection at multi-employer
worksites, such as hospitals, where several employers may control workplace safety conditions
and thus may be liable for violations.
Vaccines and the Need for an ETS
OSHA argues in the preamble to its ETS that the development, availability, and overall success of
the COVID-19 vaccines in the United States do not obviate the need for an ETS but rather serve
as evidence of the need for an ETS. OSHA states that it has a statutory responsibility to protect all
workers, including those who are unvaccinated, regardless of the reason for those workers’
vaccine refusals. OSHA claims that the ETS encourages vaccination among health care workers,
as many as 25% of whom may not be fully vaccinated, by exempting fully vaccinated workers
from certain requirements in the ETS and by requiring that employers provide paid time off for
employees to receive the COVID-19 vaccine, thus eliminating what the agency cites as a major
barrier to vaccination.42 In addition, OSHA asserts that the ETS will provide additional
protections to non-vaccinated employees, including those who are unable to be vaccinated due to

39 OSHA, “Occupational Exposure to COVID-19,” pp. 32382-32383.
40 OSHA, “Occupational Exposure to COVID-19,” p. 32422.
41 OSHA, “Occupational Exposure to COVID-19,” p. 32418.
42 OSHA, “Occupational Exposure to COVID-19,” p. 32423.
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medical or other reasons and those with compromised immune systems that may limit the
effectiveness of the vaccine. Finally, OSHA states that while more evidence is needed to
determine the overall effectiveness and duration of the effectiveness of the vaccines and the
impact of new variants of COVID-19 on vaccine effectiveness, the ETS will continue to provide
protections to workers regardless of vaccine status or efficacy.
Employers Covered by the COVID-19 ETS for Health Care
Employers
The COVID-19 ETS for health care workers applies to all settings where employees provide
health care services or health care support services, unless exempted in the ETS or otherwise
exempt from OSHA coverage.43 Health care services is defined in the ETS as “services that are
provided to individuals by professional healthcare practitioners (e.g., doctors, nurses, emergency
medical personnel, oral health professionals) for the purpose of promoting, maintaining,
monitoring, or restoring health.”44 Health care support services are those that facilitate the
provision of health care services and include such activities as patient admissions, food service,
facility maintenance, and housekeeping.
Employers in the following workplace settings and situations are exempt from the ETS:
 the provision of first aid other than by a licensed health care worker;
 the dispensing of prescriptions in retail pharmacies;
 non-hospital ambulatory care settings where all non-employees are screened
prior to entry and known or suspected COVID-19 cases are not permitted entry;
 well-defined hospital ambulatory care settings where all employees are fully
vaccinated against COVID-19 and all non-employees are screened prior to entry
and known or suspected COVID-19 cases are not permitted entry;
 home health care settings where all employees are fully vaccinated against
COVID-19 and all non-employees are screened prior to entry and known or
suspected COVID-19 cases are not present;
 health care support services performed offsite, such as offsite laundry services;
and
 telehealth services without direct patient contact.45
In cases in which health care services are provided in a traditional non-health-care setting, such as
a medical clinic inside of a workplace, the ETS applies only to the health care setting and not the
rest of the facility. Similarly, if emergency health care is provided in a non-health-care setting,
such as emergency medical services responding to a non-health-care facility, the ETS applies only
to the provision of the emergency health care.

43 Per Section 3(5) of the OSH Act (29 C.F.R. §652(5)), OSHA does not have jurisdiction over the activities of state or
local governments as employers. State and local government employers must, however, be covered by any state
occupational safety and health plan approved pursuant to Section 18 of the OSH Act (29 U.S.C. §667). Because state
occupational safety and health plans must be at least as effective as federal OSHA requirements, these state and local
government employees would be covered by the stricter federal OSHA requirements.
44 29 C.F.R. §1910.502(b).
45 29 C.F.R. §1910.502(a)(2).
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Key Elements of the COVID-19 ETS for Health Care Employers
COVID-19 Plan
Each employer covered by the ETS is required to develop and implement a COVID-19 plan.46
For covered employers with 10 or more employees, the plans must be in writing. In developing
and implementing the COVID-19 plan, an employer must
 assign at least one COVID-19 safety coordinator, knowledgeable in infection
control, to monitor and ensure compliance with the COVID-19 plan;
 conduct a workplace-specific hazard assessment;
 involve non-managerial employees and their representatives in the development
and implementation of the COVID-19 plan and the hazard assessment;
 monitor the effectiveness and update the COVID-19 plan;
 address the hazards identified in the hazard assessment;
 include policies to minimize the risk of COVID-19 transmission for each
employee; and
 communicate and coordinate COVID-19 prevention policies with other
employers at multi-employer worksites.
Patient Screening and Management
In settings in which direct patient care is provided, the covered employer must limit access to the
facility and screen and triage patients, clients, vendors, visitors, and other non-employees for
COVID-19.47 Covered employers must also comply with the CDC’s guidance document Interim
Infection Prevention and Control Recommendations for Healthcare Personnel During the
Coronavirus Disease 2019 (COVID-19) Pandemic, updated on February 23, 2021.48
Standard and Transmission-Based Precautions
Covered employers must comply with the CDC’s guidance document 2007 Guideline for
Isolation Precautions: Preventing Transmission of Infectious Agents in Healthcare Settings, as
updated in July 2019.49

46 29 C.F.R. §1910.502(c).
47 29 C.F.R. §1910.502(d).
48 CDC, Interim Infection Prevention and Control Recommendations for Healthcare Personnel During the Coronavirus
Disease 2019 (COVID-19) Pandemic, updated February 23, 2021, https://www.cdc.gov/coronavirus/2019-ncov/hcp/
infection-control-recommendations.html.
49 CDC, 2007 Guideline for Isolation Precautions: Preventing Transmission of Infectious Agents in Health Care
Settings, updated July 2019, https://www.cdc.gov/infectioncontrol/pdf/guidelines/isolation-guidelines-H.pdf.
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PPE50
Facemasks
Covered employers must provide employees with facemasks that are cleared by the Food and
Drug Administration (FDA), authorized by an FDA Emergency Use Authorization (EUA), or
described in an FDA enforcement policy and ensure their proper use, covering the nose and
mouth, whenever employees are indoors or occupying a vehicle with other people for work
purposes.51 The covered employer must provide sufficient masks to ensure that each employee
may change his or her mask at least once per day when soiled and when necessary for patient care
purposes. Facemasks are not required to be worn when employees are alone or eating or drinking
and separated from other persons. When it is important to see the employee’s mouth, such as
when communicating with a person who is deaf, an employee may wear an alternative face
covering such as a face shield. An employee can also be exempted from wearing a facemask due
to a disability, for religious reasons, or if the employer can demonstrate that wearing a facemask
would put the employee at risk of serious injury or death.
Respirators and Other PPE When Exposed to Known or Suspected COVID-19
Cases
Covered employers must provide employees who have contact with known or suspected COVID-
19 cases with respirators, gloves, isolation gowns or protective clothing, and eye protection.
Respirators must be provided and used in accordance with OSHA’s respiratory protection
standard.52 When an employee is performing an aerosol-generating procedure, such as intubation,
on a known or suspected COVID-19 case, the employer is encouraged, but not required, to
provide the employee with an elastomeric respirator or powered-air purifying respirator (PAPR).53
Covered employers must also comply with PPE requirements in CDC’s guidance document 2007
Guideline for Isolation Precautions: Preventing Transmission of Infectious Agents in Healthcare
Settings, as updated in July 2019.54
Aerosol-Generating Procedures
Whenever an aerosol-generating procedure is performed on a known or suspected COVID-19
case, the covered employer must ensure that only the minimum number of essential persons are
present during the procedure and that the procedure is performed in an existing airborne infection
isolation room (AIIR), if available.55 An AIIR is a permanent or temporary negative air pressure
room with air handling capacity designed to isolate a patient. After the aerosol-generating
procedure is completed, all surfaces and equipment in the room must be cleaned and disinfected.

50 For additional information on OSHA’s standards for respiratory PPE, see the section “OSHA Respiratory Protection
Standard” later in this report.
51 29 C.F.R. §1910.502(f)(1).
52 29 C.F.R. §1910.134.
53 29 C.F.R. §1910.502(f)(3) note 1.
54 CDC, 2007 Guideline for Isolation Precautions.
55 29 C.F.R. §502(g).
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Physical Distancing
Except in brief situations in which people are moving, such as in a hallway, covered employers
must ensure that employees are separated from all other persons by at least six feet when indoors
unless such separation is not feasible for a specific task, such as direct patient care.56 When six
feet of distancing is not feasible, covered employers must ensure as much separation between
employees and other persons as possible.
Physical Barriers
In fixed workspaces where six feet of separation between employees and other persons is not
possible, such as appointment check-in desks, covered employers must separate persons with
fixed barriers that are cleanable or disposable and sufficiently sized to block the pathway between
the persons’ faces.57
Cleaning and Disinfection
In patient care areas and resident rooms and on medical devices and equipment, covered
employers must conduct cleaning and disinfection in accordance with the CDC’s guidance
documents Interim Infection Prevention and Control Recommendations for Healthcare Personnel
During the Coronavirus Disease 2019 (COVID-19) Pandemic, updated February 23, 2021,58 and
Guidelines for Environmental Infection Control in Health-Care Facilities, updated July 2019.59
In all other areas, the covered employer must clean high-touch surfaces and equipment at least
daily in accordance with manufacturers’ instructions.60 If a known COVID-19 case has been in
the workplace in the previous 24 hours, the covered employer must clean and disinfect any areas
likely to have been contaminated in accordance with the CDC’s guidance document COVID-19:
Cleaning and Disinfecting Your Facility; Every Day and When Someone Is Sick, updated April 5,
2021.61
Covered employers must also provide hand sanitizer that is at least 60% alcohol or accessible
hand washing facilities.62
Building Ventilation
Covered employers who own or control buildings with existing heating, ventilation, and air
conditioning (HVAC) systems must ensure that
 the HVAC system is used in accordance with the manufacturer’s instructions and
design specifications;

56 29 C.F.R. §502(h).
57 29 C.F.R. §502(i).
58 CDC, Interim Infection Prevention and Control Recommendations for Healthcare Personnel During the Coronavirus
Disease 2019 (COVID-19) Pandemic.
59 29 C.F.R. §502(j)(1); CDC, Guidelines for Environmental Infection Control in Health-Care Facilities, updated July
2019, https://www.cdc.gov/infectioncontrol/pdf/guidelines/environmental-guidelines-P.pdf.
60 29 C.F.R. §502(j)(2).
61 CDC, COVID-19: Cleaning and Disinfecting Your Facility; Every Day and When Someone Is Sick, updated April 5,
2021, https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html.
62 29 C.F.R. §502(j)(3).
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 the amount of outside air circulating through the system and the number of air
changes per hour are maximized, to the extent possible;
 all air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or
higher or, if MERV-13-rated filters are not compatible with the HVAC system,
the highest compatible MERV-rated filters are used;
 all air filters are maintained and replaced as necessary; and
 all intake ports for outside air are cleaned and maintained.63
Covered employers with existing AIIRs must maintain and operate these rooms in accordance
with design and construction criteria.64
Health Screening and Medical Management
Screening
Covered employers must screen all employees for COVID-19 before each workday and work
shift. Screening can be conducted by employee self-screening or by the employer.65 If a COVID-
19 test is used as part of the screening, it must be provided at no cost to the employee.
Employee Notification to Employer of COVID-19 or Symptoms
Covered employers must require employees to notify them when they:
 test positive for or is diagnosed with COVID-19;
 are told by health care providers that they are suspected to have COVID-19;
 are experiencing an unexplained loss of taste and/or smell; or
 are experiencing a fever of 100.4 degrees Fahrenheit or more and a new
unexplained cough with shortness of breath.66
Employer Notification to Employees of COVID-19 in the Workplace
Covered employers must make the following notifications within 24 hours of receiving
information that a COVID-19 case was in the workplace:
 notify each employee who was not wearing a respirator and other appropriate
PPE and was in close contact with the COVID-19 case with the dates the contact
occurred; and
 notify all other employees and other employers with employees in the facility
who were not wearing respirators and other appropriate PPE and were in a well-
defined area of the workplace (such as a patient care floor) with the COVID-19
case during the period beginning two days before the case became sick or, if
asymptomatic, submitted a sample for testing and lasting until the case was
isolated.67

63 29 C.F.R. §502(k)(1).
64 29 C.F.R. §502(k)(2).
65 29 C.F.R. §502(l)(1).
66 29 C.F.R. §502(l)(2).
67 29 C.F.R. §502(l)(3).
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Notifications must be made without revealing the name, contact information, or occupation of
any employee. Notification does not need to be made in cases in which a medical facility
routinely provides services to known or suspected COVID-19 cases, such as COVID-19 testing
centers, emergency departments, and inpatient COVID-19 wards.
Medical Removal
Covered employers must immediately remove from the workplace any employee who tests
positive for or is diagnosed with COVID-19 and make a return to work decision on that employee
in accordance with the CDC’s guidance documents COVID-19: Isolation If You Are Sick;
Separate Yourself from Others If You Have COVID-19, updated February 18, 2021,68 and COVID-
19: Return to Work Criteria for Healthcare Personnel with SARS-CoV-2 Infection (Interim
Guidance), updated February 16, 2021.69
Covered employers must immediately remove from the workplace any employee who:
 is told by a health care provider that he or she is suspected to have COVID-19,
 is experiencing an unexplained loss of taste and/or smell, or
 is experiencing a fever of 100.4 degrees Fahrenheit or more and a new
unexplained cough with shortness of breath.70
Covered employers may make return-to-work decisions on such employees in accordance with
the two CDC guidance documents referenced above or permit return to work when the employee
tests negative on a COVID-19 polymerase chain reaction (PCR) test provided by the employer at
no cost to the employee. If the employee refuses to be tested, he or she forfeits all medical
removal protections (discussed in the next section of this report) and must remain out of work
until the covered employer makes a return to work determination in accordance with the two
CDC guidance documents referenced above.
Covered employers are required to immediately remove from the workplace any employee who
was not wearing a respirator and other appropriate PPE and was in close contact with a COVID-
19 case in the workplace, except in workplaces that routinely provide services to COVID-19
cases.71 Such an employee must remain out of work for 14 days or until seven days after testing
negative on a COVID-19 PCR test administered by the employer at no cost to the employee and
administered at least five days after the close contact with the COVID-19 case. If the employee
refuses to be tested, he or she forfeits all medical removal protections (discussed in the next
section of this report). A covered employer is not required to remove from the workplace an
employee who was not wearing a respirator and other appropriate PPE and was in close contact
with a COVID-19 case in the workplace if that employee is asymptomatic for COVID-19 and is
fully vaccinated against COVID-19 or had COVID-19 and recovered in the past three months.

68 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.
69 29 C.F.R. §§502(l)(4)(i) and (l)(6); CDC, COVID-19: Return to Work Criteria for Healthcare Personnel with SARS-
CoV-2 Infection (Interim Guidance), updated September 10, 2021, https://www.cdc.gov/coronavirus/2019-ncov/hcp/
return-to-work.html.
70 29 C.F.R. §§502(l)(4)(ii) and (l)(6).
71 29 C.F.R. §502(l)(4)(iii).
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Covered employers may require employees subject to medical removal to work remotely or in
isolation if suitable work is available.72
Medical Removal Protection Benefits
Covered employers who require employees who have been removed from the workplace to work
remotely or in isolation must continue to provide those employees with their regular pay and
benefits.73
The medical removal protection provisions do not apply to covered employers with 10 or fewer
employees on June 21, 2021.74 All other covered employers must provide all of the fringe benefits
normally provided to the employee and the following pay to the removed employee:
 for covered employers with 500 or fewer employees, the employee’s full amount
of normal pay, up to $1,400 per week, for the first two weeks, followed by two-
thirds of the employee’s normal pay, up to $200 per day, for all remaining weeks;
and
 for covered employers with more than 500 employees, the employee’s full
amount of normal pay, up to $1,400 per week, for the entire removal period.75
The amount that a covered employer must pay to a removed employee is reduced by any public
or employer-provided payments (such as sick leave) received by the employee during the
employee’s removal.76
Upon return to the workplace, a removed employee is entitled to all employment rights and
benefits, including the right to his or her previous job.77
Vaccination
Each covered employer is required to provide employees with a reasonable amount of paid leave
to receive a COVID-19 vaccine and recover from any vaccine-related side effects.78 Covered
employers are not required to mandate that their employees receive a COVID-19 vaccine.
Training
Covered employers must provide training on COVID-19 prevention, in appropriate languages and
at appropriate literacy levels, to all employees.79 Training must be conducted by a person
knowledgeable about the subject matter, and employees must have the opportunity to ask
questions during the training. Covered employers must ensure that trained employees understand
at least the following:
 how COVID-19 is transmitted and how to reduce transmission through hand
hygiene and covering the nose and mouth, the signs and symptoms of COVID-

72 29 C.F.R. §502(l)(4)(iv).
73 29 C.F.R. §502(l)(5)(ii).
74 29 C.F.R. §502(l)(5)(i).
75 29 C.F.R. §502(l)(5)(iii).
76 29 C.F.R. §502(l)(5)(iv).
77 29 C.F.R. §502(l)(5)(v).
78 29 C.F.R. §502(m).
79 29 C.F.R. §502(n).
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19, the risk factors for severe illness from COVID-19, and when to seek medical
attention;
 patient screening and management policies and procedures;
 workplace tasks that could result in transmission of COVID-19;
 policies and procedures to prevent COVID-19 transmission that are applicable to
an employee’s duties;
 agreements between multiple employers in a workplace related to shared spaces
and equipment;
 policies and procedures for the use of PPE;
 cleaning and disinfecting policies and procedures;
 paid leave available from the employer or under federal, state, or local law for
COVID-19 and available workplace flexibility policies;
 the names of the safety coordinators identified in the required COVID-19 plan;
 the requirements of the COVID-19 ETS; and
 how employees can receive copies of the COVID-19 ETS, employer policies and
procedures developed under the ETS, and the written COVID-19 plan, if
applicable.
Covered employers are required to provide retraining to an employee when that employee takes
on new job tasks, workplace policies or procedures change, or there is evidence that the employee
has not retained the information from the previous training.
Anti-Retaliation80
Covered employers must notify all employees of their rights to the protections offered by the
COVID-19 ETS and that employers are prohibited from discharging or discriminating against
employees for exercising these rights.81
Recordkeeping and Reporting82
The recordkeeping and reporting provisions of the COVID-19 ETS do not apply to covered
employers with 10 or fewer employees on June 21, 2021.83 All other covered employers must
retain all versions of their COVID-19 plans and maintain logs of all COVID-19 cases among
employees, regardless of whether the COVID-19 transmission occurred in the workplace.84 All
versions of the COVID-19 plan and the COVID-19 log (with identifying information redacted)
must be provided, within one business day of being requested, to any employee or the personal or
authorized representative of any employee. An employee and his or her authorized representative
may examine his or her unredacted personal entry in the COVID-19 log. Covered employers must

80 For additional information on OSHA’s enforcement of anti-retaliation and whistleblower protection provisions, see
the section “Whistleblower Protections” later in this report.
81 29 C.F.R. §502(o).
82 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.
83 29 C.F.R. §502(q)(1).
84 29 C.F.R. §502(q).
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report to OSHA any employment-related COVID-19 fatalities or inpatient hospitalizations in the
same manner as any other employment-related fatalities or inpatient hospitalizations.85
Mini-Respiratory Protection
The PPE provision of the COVID-19 ETS permits covered employers to provide their employees
with respirators when respirators are not specifically required by the ETS. Under OSHA’s
respiratory protection standard, employers must provide a medical evaluation to each employee
who is provided a respirator to ensure that such employee may safely use the respirator and must
ensure that the fit of each type of respirator used by an employee is properly tested to ensure a
tight seal around the face (referred to as fit testing).86
Under the mini-respiratory-protection provision of the COVID-19 ETS, employers who provide
respirators to their employees when respirators are not specifically required may forgo the
medical evaluation and fit-testing requirements of the respiratory protection standard.87 Such
covered employers must ensure that employees are trained in respirator use; conduct their own
user-seal tests of the respirators before each use; and comply with appropriate procedures for the
storage, reuse, and discontinuation of respirators.88 When respirators are required by the COVID-
19 ETS, employers must comply with all elements of the OSHA respiratory protection standard,
including medical evaluation and fit testing.
OSHA ETS on COVID-19 Vaccination and Testing
On November 5, 2021, OSHA promulgated an ETS on COVID-19 vaccination and testing for all
large employers.89 This ETS requires that all employers with 100 or more employees develop
written policies requiring that employees be fully vaccinated against COVID-19. As an
alternative, employers may 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
wear face coverings while in the workplace. Employers are not required to pay for COVID-19
tests or pay for or provide face coverings. Employers must develop vaccination and testing plans
within 30 days of the publication of the ETS (December 5, 2021) and must enforce the
requirements for testing of unvaccinated employees within 60 days (January 4, 2022).
While the Federal Register announcement does 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
months. The publication of the COVID-19 ETS in the Federal Register also included a request
for comments on the ETS and on whether the ETS should become a permanent standard. In the
preamble to the ETS, OSHA provides that all state plans must adopt the ETS within 30 days of its

85 29 C.F.R. §502(q). OSHA regulations at Title 29, Section 1904.39, of the Code of Federal Regulations require
employers to report to OSHA any employment-related fatalities within eight hours and any employment-related
inpatient hospitalizations within 24 hours.
86 For additional information on OSHA’s respiratory protection standard, see the section “OSHA Respiratory
Protection Standard” later in this report.
87 29 C.F.R. §504.
88 In a user-seal check, the user of the respirator checks the fit and seal of the respirator to his or her face by exhaling or
inhaling to determine if any air passes between the face and respirator.
89 OSHA, “COVID-19 Vaccination and Testing; Emergency Temporary Standard,” 86 Federal Register 61402,
November 5, 2021.
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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
Petitions for judicial review of the COVID-19 vaccination and testing ETS have been filed by 27
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.90 In addition, labor unions
and employee groups have filed petitions for judicial review in the Second, Third, Fourth, Ninth,
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
vaccination and ETS be stayed pending judicial review. This stay was reaffirmed by the court on
November 12, 2021, and applies nationally.91
On November 16, 2021, the United State Judicial Panel on Multidistrict Litigation consolidated
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.92
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.93
The House of Representatives has not yet 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.94
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.

90 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,
Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming (Eighth Circuit); and
Alabama, Florida, and Georgia (Eleventh Circuit) are plaintiffs in these cases.
91 For additional information on judicial review of the OSHA COVID-19 vaccination and testing ETS, see CRS Legal
Sidebar LSB10658, Fifth Circuit Stays OSHA Vaccination and Testing Standard.
92 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).
93 For additional information on the Congressional Review Act, see CRS In Focus IF10023, The Congressional Review
Act (CRA).
94 5 U.S.C. §801(b).
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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.”95
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 now accounts for 99%
of the COVID-19 circulating in the United States; and
 evidence of pre-symptomatic and asymptomatic transmission of COVID-19.96
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.97 However, OSHA estimates that approximately 39% of workers who are covered by
the COVID-19 vaccination and testing ETS are not fully vaccinated against COVID-19.98 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.”99
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.100
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:101

95 OSHA, “COVID-19 Vaccination and Testing; Emergency Temporary Standard,” p. 61411.
96 Ibid., at pp. 61408-61424.
97 Ibid., at p. 61434.
98 Ibid., at p. 61431.
99 Ibid., at p. 61436.
100 The request for comments is included in the preamble to the ETS at pp. 61403-61404.
101 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
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 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;102 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.103
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).104
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.105
However, these workers are counted when determining if an employee meets the 100-employee
threshold.

the ETS by reference.
102 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.
103 OSHA, “COVID-19 Vaccination and Testing, Emergency Temporary Standard,” pp. 61513-61514.
104 Ibid., at pp. 61512-61513.
105 29 C.F.R. §1910.501(b)(3).
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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.106
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.107
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.108 The employer is not required to provide or pay for the COVID-19 testing or face
covering.109
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.110
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.111 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;

106 29 C.F.R. §§1910.501(c) and (d)(1).
107 29 C.F.R. §1910.501(c).
108 29 C.F.R. §1910.501(d)(2).
109 29 C.F.R. §§1910.501(g)(1) Note 1 and (i) Note 2.
110 29 C.F.R. §1910.501(c).
111 29 C.F.R. §1910.501(e)(3).
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 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.112
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.113
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.114 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.115
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.116
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.117
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.118

112 29 C.F.R. §1910.501(e)(2).
113 29 C.F.R. §1910.501(e)(2)(vi).
114 29 C.F.R. §1910.501(e)(4).
115 29 C.F.R. §1910.501(e)(5).
116 29 C.F.R. §1910.501(f)(1).
117 29 C.F.R. §1910.501(f)(2).
118 29 C.F.R. §1910.501(g)(1).
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An employer may not require any employee to be tested for COVID-19 within 90 days following
a positive COVID-19 test or diagnosis.119 Employers must keep records of employee COVID-19
tests for the duration of time the ETS is in effect.120
An employer is not required to provide or pay for COVID-19 tests for employees or provide any
paid time off for testing.121 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.122
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:
 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;123 or
 the employee receives a recommendation to return to work from a licensed health
care provider.124
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.125 This differs from the
medical removal provisions of the COVID-19 ETS for health care employers, which includes
paid medical removal.126
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.127 A face covering must
 completely cover the nose and mouth;

119 29 C.F.R. §501(g)(3).
120 29 C.F.R. §501(g)(4).
121 29 C.F.R. §1910.501(g)(1) Note 1.
122 29 C.F.R. §1910.501(c).
123 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.
124 29 C.F.R. §1910.501(h)(2).
125 29 C.F.R. §1910.501(h)(2) Note 1.
126 29 C.F.R. §1910.502(l)(5)(iii).
127 29 C.F.R. §1910.501(i)(1).
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 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.128
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.129 An employer may not prohibit customers from
wearing face coverings.130
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.131
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;”132
 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 Act133 which provide criminal penalties for knowingly supplying false
statements or documents.134
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.135 A work-related COVID-19 fatality or hospitalization is one that
results from a COVID-19 exposure in the workplace.136

128 29 C.F.R. §§1910.501(c), (i)(1), and (2).
129 29 C.F.R. §1910.501(i)(3).
130 29 C.F.R. §1910.501(i)(5).
131 29 C.F.R. §1910.501(i)(4), incorporating 29 C.F.R. §1910.504 by reference.
132 CDC, Key Things to Know about COVID-19 Vaccines, October 7, 2021, https://www.cdc.gov/coronavirus/2019-
ncov/vaccines/keythingstoknow.html.
133 29 U.S.C. §666(f).
134 29 C.F.R. §501(j).
135 29 C.F.R. §501(k).
136 OSHA, “COVID-19 Vaccination and Testing, Emergency Temporary Standard,” pp. xxx (p. 454)
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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
 all documents and records required by the COVID-19 vaccination and testing
ETS, by the end of the next business day, to OSHA.137
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.138 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.139
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.140 Surgical masks, procedure masks, and dust
masks are not considered respirators. NIOSH certifies respirators pursuant to federal
regulations.141 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,

137 29 C.F.R. §501(l).
138 29 U.S.C. §654(a)(1).
139 29 C.F.R. §§1910.133, 1910.134, and 1910.138.
140 29 C.F.R. §1910.134.
141 42 C.F.R. Part 84.
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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.142
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
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
not previously regulated by FDA.143
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 physiologically 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.144 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
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.145 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;146

142 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.
143 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.
144 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.
145 29 C.F.R. §1910.134 Appendix B.
146 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/
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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);147
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.148
4. employers may permit the re-use of respirators decontaminated in accordance
with CDC decontamination guidance;149 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.150
COVID-19 Recordkeeping
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.151 OSHA’s reporting and
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

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/
expanded-temporary-enforcement-guidance-respiratory-protection-fit-testing-n95.
147 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.
148 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
https://www.osha.gov/memos/2020-04-03/enforcement-guidance-use-respiratory-protection-equipment-certified-under.
149 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/
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-
reuse-respirators.html.
150 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/
temporary-enforcement-guidance-tight-fitting-powered-air-purifying-respirators.
151 29 U.S.C. §§657(c) and 673(a).
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medical care beyond first aid.152 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
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.153 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
to his or her work and thus subject to the recordkeeping requirements.154 The regulations provide
a 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.155 One of the listed exemptions
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
work).”156
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
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.
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.157 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 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
were met:

152 OSHA’s reporting and recordkeeping regulations are at Title 29, Part 1904, of the Code of Federal Regulations.
153 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.
154 29 C.F.R. §1904.5.
155 29 C.F.R. §1905.5(a).
156 29 C.F.R. §1904.5(b)(2)(viii).
157 OSHA, Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), April 10, 2020,
https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19.
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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 well 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.158
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
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,
OSHA says it will 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.
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 will not require
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
May 2022.159
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.160 Commonly referred to as the

158 OSHA, Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), May 19,
2020, https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-
2019-covid-19.
159 OSHA, COVID-19: Frequently Asked Questions, 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
illnesses from the COVID-19 vaccine if the employers required the vaccine as a condition of employment.
160 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 Summary Chart,
October 17, 2009, https://www.whistleblowers.gov/sites/wb/files/2019-12/WB-Statute-Summary-Chart-10.8-Final.pdf.
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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.161
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, illness, or death to OSHA.162 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.163
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
promulgated pursuant to the legislation to expand the protections for whistleblowers. The
following additional activities taken by employees would have granted 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 personally supplied PPE with a higher level of protection than offered by
the employer.
State Occupational Safety and Health Standards
States have the authority to establish their own occupational safety and health plans and preempt
standards established and enforced by OSHA.164 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
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

161 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.
162 For additional information on other rights covered by the whistleblower protection provision, see OSHA, January 9,
2019, Investigator’s Desk Aid to the Occupational Safety and Health Act (OSH Act) Whistleblower Protection
Provision, pp. 5-7, https://www.osha.gov/sites/default/files/11cDeskAid.pdf.
163 29 C.F.R. §1977.12(b)(2).
164 29 U.S.C. §667.
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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.
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
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.
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 2009.165 The ATD standard
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
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.166 The key requirements of the ATD standard
include
 written ATD exposure control plan and procedures;
 training of all 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 coveralls, 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;

165 Aerosol Transmissible Diseases, 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 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.
166 Cal. Code Regs. tit. 8, §5199 Appendix A.
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 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 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.167 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 patients on positive pressure ventilation.168
Emergency medical services (EMS) workers may use N100, R100, or P100 respirators in place of
PAPRs.
Cal/OSHA COVID-19 ETS
On November 19, 2020, the California Occupational Safety and Health Standards Board
approved an ETS to specifically address COVID-19 exposure in the workplace.169 This ETS
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 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
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
vaccination status, to work outdoors without facemasks or face coverings. The amended
Cal/OSHA ETS expires on January 14, 2022.
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 were to remain in effect through October 14,
2021.170 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-
19 ETS health care employers. The OSHA ETS will remain in force in Michigan through

167 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.
168 Cal. Code Regs. tit. 8, §5199(b).
169 COVID-19 Prevention, Cal. Code Regs. tit. 8, §§3205-3205.4, available at https://www.dir.ca.gov/dosh/coronavirus/
ETS.html.
170 Emergency Rules: Coronavirus 2019 (COVID-19), 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
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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December 22, 2021. The Michigan emergency rules apply to all 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
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.171 These
permanent rules will remain in effect until repealed or revised by Oregon OSHA. Since the
promulgation of the permanent administrative rules, Oregon has adopted three 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.
Virginia: VOSH COVID-19 Permanent Standard
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-19.172 On
January 12, 2021, the Virginia Safety and Health Codes Board voted to promulgate a permanent
COVID-19 standard that supersedes the ETS.173
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.174 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 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.
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

171 Addressing COVID-19 Workplace Risks, 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
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.
172 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-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.
173 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. This permanent standard is effective on January 27, 2021.
174 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
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.
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prevention requirements even after the COVID-19 pandemic has ended.175 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.

175 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,
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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 challenged
—
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 challenged
—
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 challenged
—
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)
2021
COVID-19 for health
86 Federal Register
Petitions for review
United Food and
care employers
32376 (June 21, 2021)
filed on June 24, 2021
Commercial Workers
and American Federation
of Labor and Congress of
Industrial Organizations
v. OSHA, et al., Docket
No. 21-1143 (D.C.
Cir. June 24, 2021)
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Federal Register
Result of Judicial
Judicial Review
Year
Subject of ETS
Citation of ETS
Review
Case Citation
2021
COVID-19 vaccination
86 Federal Register
Stay ordered by U.S.
Numerous petitions
and testing
61402 (November 5,
Court of Appeals for
for judicial review,
2021)
the Fifth Circuit on
including BST Holdings
November 6, 2021,
v. OSHA, Docket No.
and reaffirmed on
21-60845 (5th Cir.
November 12, 2021.
Nov. 5, 2021),
consolidated to U. S.
Court of Appeals for
the Sixth Circuit.a
Source: CRS with data from 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.
a. For additional information on judicial review of the OSHA COVID-19 vaccination and testing ETS, see CRS
Legal Sidebar LSB10658, Fifth Circuit Stays OSHA Vaccination and Testing Standard.

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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
All employers
November 30, 2020 January 14, 2022
Preventionb
June 17, 2021
(amended)
Michigan (MIOSHA)
Emergency Rules:
All employers, with
October 14, 2020,
Rescinded on June
Coronavirus 2019
additional rules for
April 10, 2021
22, 2021, and
(COVID-19)c
specific industries
(extended)
replaced with
May 24, 2021
OSHA COVID-19
(amended)
ETS for health care
employers, which
expires in Michigan
on December 22,
2021
Oregon (Oregon
Addressing COVID-
All 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
All 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 not 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
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Congressional Research Service
R46288 · VERSION 35 · UPDATED
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