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

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

Workers at Risk: Regulatory Dysfunction at OSHA

This white paper explores the causes of the Occupational Safety and Health Administration (OSHA)’s regulatory dysfunctions and describes their negative impacts on OSHA and America’s Workers. With the decreasing power of unions to organize and press employers to implement strong health and safety programs, employees in every occupation rely on OSHA to protect them from occupational hazards. Yet, in the last decade, OSHA has dropped more standards from its regulatory agenda than it has finalized, largely due to insufficient budge authority. And the agency’s enforcement program has assessed such paltry fines for even fatality-related violations of the law that many employers see no incentive in addressing hazards, much less developing precautionary health and safety programs. After describing OSHA’s problems in detail, this paper outlines a number of reforms that could enhance the agency’s performance. Although certain aspects of the Occupational Safety and Health Act could use improvement, the recommendations in this paper focus on regulatory reform—administrative actions that OSHA could implement in the short term.The Kay Bailey Hutchison Center for Energy, Law, and Busines

Biden’s Vaccination Mandate Plan: A Scatter-shot of Legal Solutions

The current COVID-19 pandemic is dominated by one trait. Data shows that nearly all COVID-19 related deaths in the United States are suffered by people who are not vaccinated. Hospitalizations are similarly unbalanced, with unvaccinated patients making up between 95% to 99.9% of the population of COVID-19 patients in hospitals. In response, on September 9, 2021, President Joe Biden announced an action plan addressing the COVID-19 pandemic. The first part of the plan focused on increasing the population of domestically-vaccinated individuals. This first part of the plan can be divided into five policy goals. Four of those plan’s policy goals reference employers and employees, and the fifth consists of a request for large entertainment venues to require their customers provide proof of vaccination. Of the remaining four parts of the plan, the first and fourth call for section Occupational Safety and Health (OSHA) emergency temporary standards (ETS): one for employers with more than a hundred workers, and one requiring employers to give workers paid time off in order to get vaccinated. The second policy consists of an Executive Order requiring COVID-19 vaccination for federal employees and another Executive Order aimed at increasing vaccinations for federal contractors. The third policy is made up of a set of Centers for Medicare & Medicaid Services (CMS) emergency regulations expanding earlier vaccination requirements to a greater number of health care settings

A Survey of Residual Cancer Risks Permitted by Health, Safety and Environmental Policy

The authors describe permitted U.S. residual cancer risks, focusing on numerical levels specifically and implicitly authorized by statute or regulation. They also discuss potential changes