As COVID-19 cases continue to spike following the Thanksgiving holiday and a widely available vaccine is still months away, calls for the Occupational Safety and Health Administration (OSHA) to issue a COVID-19-related Emergency Temporary Standard (ETS) have increased. If action to implement an ETS is not taken during the waning days of the Trump administration, President-elect Biden has promised to immediately begin the process.
Since the COVID-19 ETS likely will apply to most workplaces across the country, this article evaluates two current proposals that a Biden ETS is expected to be modeled on: the California OSHA’s (Cal/OSHA’s) ETS already in effect, and the standard included in H.R. 6800, the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act.
Cal/OSHA Emergency Safety Standard
On November 19, the California Occupational Safety and Health Standards Board approved an ETS to specifically address COVID-19 exposure in the workplace. The regulation went into effect November 30, after the California Office of Administrative Law adopted the proposed emergency regulation implementing COVID-19 workplace safety protocols. The ETS will remain in effect for 180 days and can be extended for up to another 180 days. The ETS applies to all employees and places of employment within the state and provides for broader protections than Cal/OSHA’s aerosol transmissible disease (ATD) standard, which has been in place since 2009.
Under the Cal/OSHA ETS:
Written COVID-19 Prevention Program – Employers are required to maintain a written COVID-19 Prevention Program (Program). The Program must include a system for communicating information to employees, practices for identifying and evaluating COVID-19 hazards, processes for investigating and responding to COVID-19 cases in the workplace, methods for correcting COVID-19 hazards, a plan for training and instruction, requirements for physical distancing and face coverings and plans for other engineering controls, administrative controls and personal protective equipment (PPE) requirements. Additionally, the Program must address reporting, recordkeeping and access requirements, rules on exclusion of workers exposed to COVID-19 from the workplace and return-to-work criteria.
Multiple cases and COVID-19 outbreaks –When a local health department
identifies a workplace as a location of a COVID-19 outbreak, or when three or more COVID-19 cases in a workplace emerge within 14 days, employers must provide free COVID-19 testing to all employees present at the work site. Employers also must provide follow-up tests one week later, with additionalfollow-up tests being continued at least once per week until the workplace is no longer considered a location of an outbreak. Employers must notify the local health department of the outbreak immediately (within 48 hours) after the employer knows, or would have known through diligent inquiry, that the cases have emerged.
Major outbreaks are defined as 20 or more COVID-19 cases in an exposed workplace within a 30-day period. In these instances, employers must provide twice-a-week testing to all employees who were present at the exposed workplace during the 30-day period and who remain at the workplace. Additional steps for major outbreaks include filtering recirculated air with the highest-compatible filtering efficiency, determining the need for a respiratory-protection program or changes to an existing program, evaluating the need to halt some or all operations at the workplace until hazards have been corrected and taking any other control measures that may be deemed necessary by Cal/OSHA.
Employer-provided housing and transportation – The ETS includes additional requirements to address COVID-19 exposure for employers who provide housing units to employees and employers who provide transportation to and from work.
Could similar regulations be coming to your workplace soon?
While we won’t know the results of this ruling until we see them, Cal/OSHA’s current chief, Doug Parker, is a member of the Biden administration’s transition team focused on the Department of Labor, putting an architect of the ETS in a position to implement the state’s rules at the national level. We anticipate guidance from OSHA on any ETS, and TCIA is committed to providing information and resources to our members to help their businesses comply with these new regulations.
HEROES Act safety standard
Another model that a Biden administration may consider for an ETS can be found in the House-passed HEROES Act, which includes a provision mandating federal OSHA to issue a COVID-19-related ETS covering workers “at occupational risk” or exposure to the virus within seven days of enactment.
The bill mandates the OSHA ETS to include provisions requiring employers to develop and implement infection-control plans based on guidance from the Centers for Disease Control and Prevention (CDC) and other experts. Additionally, the ETS must require employers to record and report each work-related COVID-19 infection and death. OSHA would be required to implement a permanent infectious-
disease standard within 24 months following passage of the legislation.
The OSHA ETS is required to include anti-retaliation provisions prohibiting employers from adopting policies that discriminate or retaliate against employees for:
• reporting any violations of the ETS or eventual permanent rulemaking,
or raising a good-faith concern about a workplace infectious-
disease hazard to the employer, the media or local, state or federal government agencies;
• seeking assistance or intervention from the employer or a government agency with respect to such a report;
• voluntarily using PPE with a higher level of protection than that provided by the employer; or
• exercising their rights under the Occupational Safety and Health Act.
The bill would allow states to issue their own emergency standards, so long as the standards are at least as effective in protecting workers from exposure, and the ETS would remain in effect until the final infectious-
disease standard mandated by the legislation takes effect. While the HEROES Act passed the House in May, the vote was largely along partisan lines. The Senate, which has not taken up the bill, is not expected to consider the legislation.
As discussions and negotiations regarding a national ETS continue, TCIA will follow any developments and will continue to keep members informed of any coming changes that may impact their businesses.
Basil Thomson is a senior associate at Ulman Public Policy, TCIA’s Washington, D.C.-based advocacy and lobbying partner.
Want to know more? Click here to email Aiden O’Brien, TCIA’s advocacy & standards manager, to continue the conversation.