OSHA has long been concerned about the Risk of infectious diseases to the American workforce. Even before the COVID-19 pandemic, the agency had designs on creating regulations addressing the spread and exposure of infectious diseases in the workplace.

An infectious disease rule would likely expand on OSHA’s longstanding General Industry Standard on Bloodborne Pathogens (29 CFR 1910.1030), as amended pursuant to the 2000 Needlestick Safety and Prevention Act. That regulation was implemented to protect workers from health hazards related to blood and other bodily tissues and fluids that are potentially infectious. It includes exposure control plans, engineering and work practice controls, hepatitis B vaccinations, hazard communication and training and recordkeeping.

Potential exposure

The standard also has requirements for employers whose workers have potentially been exposed. Electrical and construction stakeholders have argued that this regulation doesn’t apply to them. However, in a letter of interpretation, the agency indicated, “Employees engaged in construction activities who are occupationally exposed to the hazard of blood-borne pathogens (such as those workers designated as responsible for providing first aid or medical assistance) are afforded protection under several construction standards as well as the General Duty Clause.”

The standard acknowledges that, when there is a possibility of encountering a blood-borne pathogen, the proper PPE, such as gloves, masks, gowns, eye protection or resuscitation equipment for rendering first aid or medical assistance, must be used to reduce hazards to workers.

Emergency Temporary Standard 

When the COVID-19 pandemic hit, OSHA responded by establishing an Emergency Temporary Standard (ETS) in the name of a public health crisis. Initially, the agency set vaccine and testing requirements for all employers with more than 100 employees. However, that provision was withdrawn over questions of legal authority. Vaccines and testing were stricken as an enforceable portion of the ETS.

Most of the ETS has expired, but some safeguards remain for healthcare workers because those in this profession have the most likelihood of encountering someone with the virus. The ETS also imposed requirements for environments where employees provide healthcare or support services, which, like the Bloodborne Pathogens standard, can apply to the electrical and construction industries.

Permanent standard ahead?

A permanent standard will likely include many safeguards in the ETS and recommendations and guidelines to protect workers from exposure to all infectious diseases. It will also likely feature airborne and droplet precautions, engineering control measures, PPE, respiratory protection, hazard assessment and control, training and education, recordkeeping and reporting.

Although construction and electrical are considered low-risk industries, an infectious disease standard will likely still be very influential. The Construction Industry Safety Coalition (CISC) argued against expanding the ETS to include the industry. 

In a letter to OSHA, the CISC wrote, “The construction industry has been at the forefront of efforts to implement proactive mitigation measures specific to COVID-19. Any attempts by OSHA to expand the ETS to cover construction is not supported by the evidence and would be impermissible under the Occupational Safety and Health Act of 1970.” This sentiment is shared on a permanent regulation, as well.

According to a blog post by Ogletree Deakins, Washington, D.C., a large labor and employment law firm representing management in all types of employment-related legal matters: “OSHA’s permanent standard would fill the void left from other agencies like the U.S. Centers for Disease Control and Prevention, which in the last several months has diluted its COVID-19 recommendations. The messaging from these relaxed recommendations was amplified in the fall when President Biden publicly declared that the pandemic was over in the weeks before the midterm elections. Overall, OSHA’s self-imposed expeditious timeline seemed to be out of place in an environment that was less concerned about regulating COVID-19.”

A rulemaking pertaining to the spread of infectious diseases was expected to have been issued earlier this year, but it was not. At this point, it is uncertain when OSHA will issue a final rule. Given that it is an election year, a release between now and December is unlikely. However, it remains part of the agency’s regulatory priorities.

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