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 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 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.

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

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 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—Withdrawn

On June 21, 2021, OSHA promulgated an ETS for the prevention of COVID-19 in health care employment.³⁴ The ETS required a covered employer to create a COVID-19 plan, included provisions for the prevention of COVID-19 in the workplace, required new recordkeeping in COVID-19 cases, and (in certain circumstances) permitted employers to forgo the medical 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 were required to comply with the physical distancing, building ventilation, training, and mini-respiratory-protection provisions by July 21, 2021.

On December 27, 2021, OSHA announced that it was withdrawing all provisions of the ETS for health care employers, with the exceptions of certain recordkeeping requirements.³⁵ In the withdrawal announcement, OSHA cited the fact that six months had elapsed since the promulgation of the ETS and that the agency was not able to promulgate a permanent standard during this six-month period. On March 23, 2022, OSHA announced that it was reopening, for 30 days, the comment period for a proposed permanent COVID-19 standard for health care employers based on the ETS and would hold a virtual public hearing on a proposed permanent standard on April 27, 2022.³⁶

Recordkeeping and Reporting³⁷

Under the recordkeeping and reporting provisions of the ETS, which remain in force, health care employers with more than 10 employees must take the following actions:

• Establish and maintain a log of COVID-19 cases among employees, regardless of whether or not they are connected to workplace exposures;³⁸
• Provide, by the end of the next business day upon request, the individual COVID-19 log entry of an employee to that employee and any person who has the written consent of the employee;³⁹
• Provide, by the end of the next business day upon request, a version of the COVID-19 log with personally identifiable information of employees removed to any employees or their personal or authorized representatives;⁴⁰
• Provide, by the end of the next business day, all COVID-19 records to OSHA;⁴¹
• Report to OSHA any work-related COVID-19 fatality within eight hours of learning of the fatality;⁴² and
• Report to OSHA any work-related COVID-19 inpatient hospitalization within 24 hours of learning of the hospitalization.⁴³

OSHA ETS on COVID-19 Vaccination and Testing—Withdrawn

On November 5, 2021, OSHA promulgated an ETS on COVID-19 vaccination and testing for all large employers.⁴⁴ This ETS required that all employers with 100 or more employees develop written policies requiring that employees be fully vaccinated against COVID-19. As an alternative, employers could 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 would not be required to pay for COVID-19 tests or pay for or provide face coverings. Employers were to develop vaccination and testing plans within 30 days of the publication of the ETS (December 5, 2021) and enforce the requirements for testing of unvaccinated employees within 60 days (January 4, 2022).⁴⁵

While the Federal Register announcement did 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 provided 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.

Petitions for Judicial Review and Withdrawal by OSHA

Petitions for judicial review of the COVID-19 vaccination and testing ETS were 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.⁴⁶ In addition, labor unions and employee groups 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 applied nationally.⁴⁷

On November 16, 2021, the United States Judicial Panel on Multidistrict Litigation consolidated the petitions for judicial review of the COVID-19 vaccination and testing ETS and randomly assigned these consolidated cases to the U.S. Court of Appeals for the Sixth Circuit.⁴⁸ On December 17, 2021, the court dissolved the stay.

On December 17, 2021, numerous states and other petitioners requested that the U.S. Supreme Court review the ETS by filing an application for a stay of the ETS and an alternative petition for writ of certiorari before judgment. On January 13, 2022, U.S. Supreme Court granted a stay pending additional judicial review by the U.S. Court of Appeals for the Sixth Circuit.⁴⁹

On January 25, 2022, OSHA announced that it was withdrawing the COVID-19 vaccination and testing ETS but that the ETS would continue to serve as a proposed permanent standard subject to the normal rulemaking process.⁵⁰

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.⁵¹ 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.⁵²

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.⁵³ Surgical masks, procedure masks, and dust masks are not considered respirators. NIOSH certifies respirators pursuant to federal regulations.⁵⁴ For nonpowered respirators, such as filtering face piece respirators commonly used in health care and construction, NIOSH classifies respirators based on their efficiency at filtering airborne particles and their ability to protect against oil particles. Under the NIOSH classification system, the letter (N, R, or P) indicates the level of oil protection as follows: N—no oil protection; R—oil resistant; and P—oil proof. The number following the letter indicates the efficiency rating of the respirator as follows: 95—filters 95% of airborne particles; 97—filters 97% of airborne particles; and 100—filters 99.7% of airborne particles. Thus an N95 respirator, the most common type, is one that does not protect against oil particles and filters out 95% of airborne particles. An R or P respirator can be used in place of an N respirator.

A respirator that is past its manufacturer-designated shelf life is no longer considered to be certified by NIOSH. However, in response to potential shortages in respirators, NIOSH has tested and approved certain models of respirators for certified use beyond their manufacturer-designated shelf lives.⁵⁵

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.⁵⁶

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.⁵⁷ 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.⁵⁸ 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;⁵⁹
• 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);⁶⁰
• 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.⁶¹
• 4. employers may permit the re-use of respirators decontaminated in accordance with CDC decontamination guidance;⁶² 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.⁶³

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.⁶⁴ 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 medical care beyond first aid.⁶⁵ 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.⁶⁶ 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.⁶⁷ 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.⁶⁸ 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)."⁶⁹

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.⁷⁰ 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:

• 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.⁷¹ 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 2022.⁷²

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.⁷³ Commonly referred to as the whistleblower protection provision, this provision protects any employee who takes any of the following actions:

• files a complaint with OSHA related to a violation of the OSH Act;
• causes an OSHA proceeding, such as an investigation, to be instituted;
• testifies or is about to testify in any OSHA proceeding; and
• exercises on his or her own behalf, or on behalf of others, any other rights afforded by the OSH Act.⁷⁴

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.⁷⁵ 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.⁷⁶

In the 116^th 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.⁷⁷ 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 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 2009.⁷⁸ 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.⁷⁹ 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;
• 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.⁸⁰ 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.⁸¹ 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.⁸² 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 expired on January 14, 2022, but was extended with some revisions through April 14, 2022.

Michigan: MIOSHA COVID-19 Emergency Rules—Rescinded

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, 2021.⁸³ 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 for health care employers. After OSHA's withdrawal of the COVID-19 ETS for health care employers, this ETS is no longer in force in Michigan.

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.⁸⁴ 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 multiple temporary amendments to the rules, some of which were incorporated into permanent amendments to the administrative rules on December 21, 2021.

Virginia: VOSH COVID-19 Permanent Standard—Revoked

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-19.⁸⁵ 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.⁸⁶ On January 12, 2021, the Virginia Safety and Health Codes Board voted to promulgate a permanent COVID-19 standard that supersedes the ETS.⁸⁷ On March 21, 2022, the Virginia Safety and Health Codes Board revoked the permanent COVID-19 standard.⁸⁸

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