Occupational Safety and Health Administration (OSHA): Emergency Temporary Standards (ETS) and COVID-19

Abstract

The Occupational Safety and Health Administration (OSHA) does not currently have a specific standard that protects healthcare or other workers from airborne or aerosol transmission of disease or diseases transmitted by airborne droplets. Some in Congress, and some groups representing healthcare and other workers, are calling on OSHA to promulgate an emergency temporary standard (ETS) to protect workers from exposure to SARS-Cov-2, the virus that causes Coronavirus Disease 2019 (COVID-19). The Occupational Safety and Health Act of 1970 (OSH Act) gives OSHA the ability to promulgate an ETS that would remain in effect for up to six months without going through the normal review and comment process of rulemaking. OSHA, however, has rarely used this authority in the past—not since the courts struck down its ETS on asbestos in 1983. The California Division of Occupational Safety and Health (Cal/OSHA), which operates California’s state occupational safety and health plan, has had an aerosol transmissible disease (ATD) standard since 2009. This standard includes, among other provisions, the requirement that employers provide covered employees with respirators, rather than surgical masks, when these workers interact with ATDs, such as known or suspected COVID-19 cases. Also, according to the Cal/OSHA ATD standard, certain procedures require the use of powered air purifying respirators (PAPR). Both OSHA and Cal/OSHA have issued enforcement guidance to address situations when the shortage of respirators may impede an employer’s ability to comply with existing standards. H.R. 6139, the COVID-19 Health Care Worker Protection Act of 2020, would require OSHA to promulgate an ETS on COVID-19 that incorporates both the Cal/OSHA ATD standard and the Centers for Disease Control and Prevention’s (CDC’s) 2007 guidelines on occupational exposure to infectious agents in healthcare settings. The CDC’s 2007 guidelines generally require stricter controls than its interim guidance on COVID-19 exposure. The provisions of H.R. 6139 were incorporated into the version of H.R. 6201, the Families First Coronavirus Response Act, as introduced in the House. However, the OSHA ETS provisions were not included in the version of legislation that passed the House and the Senate and was signed into law as P.L. 116-127. A group representing hospitals claims that because SARS-Cov-2 is primarily transmitted by airborne droplets and surface contacts, surgical masks are sufficient protection for workers coming into routine contact with COVID-19 cases, and that the shortage of respirators may adversely impact some hospitals’ patient capacities. H.R. 6379, as introduced by the House, also includes a requirement for an OSHA ETS and permanent standard to address COVID-19 exposure