Quiero saber acerca de...

khammond on DSKJM1Z7X2PROD with RULES2

32382

Federal Register / Vol. 86, No. 116 / Monday, June 21, 2021 / Rules and Regulations
Assn/N. Am. v. OSHA, 727 F.2d 415, 425 5th Cir. 1984.
In the context of ordinary 6b rulemaking, the Supreme Court has said that the OSH Act is not a mathematical straitjacket, nor does it require the agency to support its findings with anything approaching scientific certainty, particularly when operating on the frontiers of scientific knowledge Indus. Union Dept, AFL
CIO v. Am. Petroleum Inst., 448 U.S.
607, 656, 100 S. Ct. 2844, 2871, 65 L.
Ed. 2d 1010 1980. Courts reviewing OSHAs determination of grave danger do so with great deference Pub.
Citizen Health Research Grp. v.
Auchter, 702 F.2d 1150, 1156 D.C. Cir.
1983. In one case, the Fifth Circuit, in reviewing an OSHA ETS for asbestos, declined to question the agencys finding that 80 worker lives at risk over six months constituted a grave danger Asbestos Info. Assn/N. Am., 727 F.2d at 424. In stark contrast, as of May 24, 2021, 1,611 healthcare personnel have died out of 491,816 healthcare COVID
19 cases where healthcare personnel status and death status is known by the CDC May 24, 2021a. This is likely an undercount of cases and deaths as the healthcare personnel status is not known for 81.63% of cases and death status is unknown in 20.42% of cases where healthcare personnel status is known. OSHA estimates that this rule would save almost 800 worker lives over the course of the next six months as noted in Table I.-1 in the Executive Summary. Here, the mortality and morbidity risk to employees from COVID19 is so dire that the grave danger from exposures to SARSCoV2
is clear.
OSHAs previous ETSs addressed physically harmful agents that had been familiar to the agency for many years prior to the ETS. In most cases, the ETSs were issued in response to new information about substances that had been used in workplaces for decades e.g., Vinyl Chloride 39 FR 12342 April 5, 1974; Benzene 42 FR 22516 May 3, 1977; 1,2-Dibromo-3-chloropropane 42 FR 45536 Sept. 9, 1977. In some cases, the hazards of the toxic substance were already so well established that OSHA promulgated an ETS simply to update an existing standard e.g., Vinyl cyanide 43 FR 2586 Jan. 17, 1978. In no case did OSHA claim that an ETS
was required to address a grave danger from a substance that had only recently come into existence. Thus, no court has had occasion to separately examine OSHAs authority under section 6c of the OSH Act 29 U.S.C. 655c to address a grave danger from a new hazard. Yet by any measure, SARS

VerDate Sep<11>2014

21:53 Jun 17, 2021

Jkt 253001

CoV2 is a new hazard. Unlike any of the hazards addressed in previous ETSs, SARSCoV2 was not known to exist until January 2020. Since then, more than 3 million people have died worldwide and nearly 600,000 people have died in the U.S. alone WHO, May 24, 2021; CDC, May 24, 2021b. This monumental tragedy is largely handled by healthcare employees who provide care for those who are ill and dying, leading to introduction of the virus not only in their daily lives in the community but also in their workplace, and more than a thousand healthcare workers have died from COVID19.
Clearly, exposure to SARSCoV2 is a new hazard that presents a grave danger to workers in the U.S.
In the following sections within Grave Danger, OSHA summarizes the best available scientific evidence on employee exposure to SARSCoV2 and shows how that evidence establishes COVID19 to be a grave danger to healthcare employees. OSHAs determination that there is a grave danger to healthcare employees rests on the severe health consequences of COVID19, the high risk to employees of developing the disease as a result of transmission of SARSCoV2 in the workplace, and that these workplace settings provide direct care to known or suspected COVID19 cases. With respect to the health consequences of COVID19, OSHA finds a grave danger to employees based on mortality data showing unvaccinated people of working age 1864 years old have a 1
in 217 chance of dying when they contract the disease May 24, 2021c;
May 24, 2021d. When broken down by age range, that includes a 1 in 788
chance of dying for those aged 3039, a 1 in 292 chance of dying for those aged 4049, and as much as a 1 in 78 chance of dying for those aged 5064 May 24, 2021c; May 24, 2021d. Furthermore, workers in racial and ethnic minority groups are often over-represented in many healthcare occupations and face higher risks for SARSCoV2 exposure and infection, as noted in a study on workers in Massachusetts Hawkins, June 15, 2020 and discussed in more detail in the section Observed Disparities in Risk Based on Race and Ethnicity, below. While vaccination greatly reduces adverse health outcomes to healthcare workers, it does not eliminate the grave danger faced by vaccinated healthcare workers in settings where patients with suspected or confirmed COVID19 receive treatment CDC, April 27, 2021;
Howard, May 22, 2021.
OSHA also finds a grave danger based on the severity and prevalence of other
PO 00000

Frm 00008

Fmt 4701

Sfmt 4700

health effects caused by COVID19, short of death. While some SARSCoV
2 infections are asymptomatic, even the cases labeled mild by the CDC
involve symptoms that far exceed in severity the group of symptoms dismissed in the Florida Peach Growers Assn decision as not rising to the level of grave danger required by the OSH Act i.e., minor cases of nausea, excessive salivation, perspiration, or blurred vision 489 F.2d at 132. Even mild cases of COVID19where hypoxia low oxygen in the tissues is not presentrequire isolation and may require medical intervention and multiple weeks of recuperation, while severe cases of COVID19 typically require hospitalization and a long recovery period see the section on Health Effects, below. For example, in a study of 1,733 patients, three quarters of remaining hospitalized cases and approximately half of all symptomatic cases resulted in the individual continuing to experience at least one symptom e.g., fatigue, breathing difficulties at least six months after initial infection Huang et al., January 8, 2021; Klein et al., February 15, 2021. These cases might be referred to as long COVID because symptoms persist long after recovery from the initial illness, and could potentially be significant enough to negatively affect an individuals ability to work or perform other everyday activities.
Finally, OSHA concludes that the serious and potentially fatal consequences of COVID19 pose a particular threat to employees, as the nature of SARSCoV2 transmission readily enables the virus to spread when employees are working in spaces shared with others e.g., co-workers, patients, visitors, a common characteristic of healthcare settings where direct care is provided. While not every setting is represented in the evidence that OSHA
has assembled, the best available evidence illustrates that clusters and outbreaks 6 of COVID19 have occurred in a wide variety of occupations in healthcare settings. The scientific 6 Outbreaks are generally defined as an increase, often sudden, in the number of cases of a disease above what is normally expected in a limited geographic area. Clusters are generally defined as an unusual number of cases grouped in one place that is more than expected to occur CDC, May 18, 2012. Researchers investigating outbreaks and have to decide how to define the geographic area, while researchers investigating clusters may use a variety of strategies to determine what is unusual. While the terms are slightly different, their overall significance to the grave danger discussion is the same. For the studies and reports relied upon in this section, OSHA will generally use whichever term is used in the study or report itself.

E:FRFM21JNR2.SGM

21JNR2