The COVID-19 pandemic has shown the need for comprehensive guidelines to protect workers from infectious diseases has never been more apparent. OSHA’s General Duty Clause (29 USC 654) and protections laid out in the agency’s Bloodborne Pathogens Standard (CFR-29 1910.30) have been helpful; however, they do not specifically address diseases transmitted by contact, droplets or airborne particles. Therefore, finalizing a permanent infectious disease standard has become a top priority for OSHA.
OSHA believes that a new standard targeting transmission-based infection control is necessary because recommendations on infectious hazards from the Centers for Disease Control and Prevention are nonregulatory. Unfortunately, workers in healthcare and other high-risk environments are exposed to infectious diseases such as COVID-19, influenza, tuberculosis, MRSA and other yet-to-be-discovered threats. However, the pandemic has demonstrated that workers across all industries can become exposed to the same hazards.
A lot of groundwork was done on H1N1 flu under the Obama administration. During that time, OSHA put forth significant effort in developing a new standard that would require health facilities and other high-risk work environments to permanently implement infection-control programs to protect their workers and the general public.
According to OSHA’s Infectious Disease Rulemaking, Introduction, “The Agency has thus far published an Infectious Diseases Request for Information, held stakeholder meetings, conducted site visits, and completed the Small Business Regulatory Enforcement Fairness Act of 1996 process. Feedback from these sources helped the agency to further refine its development of a Notice of Proposed Rulemaking regarding an Infectious Diseases standard.”
The rulemaking process was put on hold during the past four years. The proposed Heroes Act (H.R. 6800) of 2020 would have required OSHA to adopt an emergency temporary standard to protect workers in hospitals, meatpacking plants, retail stores and other workplaces during the pandemic. Much to the disappointment of many labor groups, the bill didn’t make it through the Senate. In fact, a number of union and labor groups from a diverse cross section of industry sectors have even initiated litigation against the federal government to accelerate the issuance of an infectious disease standard, or at least a temporary emergency COVID-19 regulation.
Despite the former administration’s reluctance to move forward on an emergency COVID-19 standard or take further actions on infectious diseases, businesses were cited for virus-related infractions. Before President Trump departed the White House, OSHA announced the issuance of $2.8 million in fines for violations that included failure to create a written respiratory protection program; provide respirator fit-testing, medical evaluations and training on proper PPE and respirator use; report an injury, illness or fatality; and document an injury or illness on OSHA recordkeeping forms.
Once President Biden took office, he reinvigorated efforts to establish an emergency COVID-19 standard, requesting OSHA have a draft in place by March 15, 2021. In response, OSHA launched a temporary National Emphasis Program.
Furthermore, 14 states have already adopted their own versions of an emergency standard: California, Illinois, Kentucky, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Virginia and Washington. Some occupational safety requirements they set forth include conducting risk assessments, improving ventilation, adhering to social distancing rules, wearing face coverings and maintaining an infection-prevention plan. Additionally, California and Oregon initiated work on a permanent infectious disease regulation. California currently has an airborne transmissible disease standard; however, it is limited to correctional institutions, healthcare facilities, laboratories and certain public services.
State-level efforts may provide the framework and principles for a federal iteration. In the past, requirements being considered for the potential OSHA standard included written worker infection-control plans, medical surveillance and vaccination and a medical removal protection benefit paid to employees removed from duty due to infection.
Hopefully for all workers’ safety, an effective infectious-diseases standard will be in place soon. According to David Michaels, former assistant secretary of labor for occupational safety and health, in a recent interview with Hospital Employee Health, “There is no question that an OSHA infectious-disease standard would prevent illnesses and deaths among healthcare workers.”