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Federal Register / Vol. 86, No. 116 / Monday, June 21, 2021 / Rules and Regulations
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Enforcement of existing standards and section 5a1 of the OSH Act the General Duty Clause, as well as development of rapid guidance to provide a flexible response to new and evolving information about the virus.
On June 11, 2020, the U.S. Court of Appeals for the D.C. Circuit issued a one paragraph per curiam order denying the AFLCIOs petition, finding that OSHAs decision not to issue an ETS
is entitled to considerable deference, and in light of the unprecedented nature of the COVID19 pandemic, as well as the regulatory tools that the OSHA has at its disposal to ensure that employers are maintaining hazard-free work environments, . . . OSHA
reasonably determined that an ETS is not necessary at this time. In re Am.
Fedn of Labor & Cong. of Indus. Orgs., No. 201158, 2020 WL 3125324 AFL
CIO, June 11, 2020, rehearing en banc denied AFLCIO, July 28, 2020.13
Following OSHAs decision in May 2020 not to issue an ETS, some states and local health departments determined enforceable regulation was necessary, leading to the adoption of a variety of state and local executive orders and emergency regulations with specific worker protection requirements.
Virginia, Oregon, California, Michigan, and Washington have issued their own ETSs, see Section VII, Additional Requirements, for a full discussion of OSHA-approved State Plans, and many additional states and localities have issued other kinds of requirements, guidelines, and protective ordinances for workers. Other states and localities have not. The resulting patchwork of state and local regulations led to inadequate and varying levels of protection for workers across the country, and has caused problems for many employees and businesses. As a result, on October 9, 2020, ORCHSE
13 On October 29, 2020, a group of petitioners including the American Federation of Teachers AFT, the American Federation of State, County and Municipal Employees, the Washington State Nurses Association, and the United Nurses Association of California/Union of Health Care Professionals filed a separate petition for a writ of mandamus from the U.S. Court of Appeals for the Ninth Circuit to compel OSHA to issue a permanent standard to protect healthcare workers from the risks of infectious diseases AFT, October 29, 2020.
On December 31, 2020, OSHA filed a response brief asserting that the petitioners were not entitled to the requested writ of mandamus DOL, December 31, 2020. OSHA explained that, while the agency has been considering the need for an infectious disease standard for healthcare workers since at least 2009, it has not yet made a final determination on the necessity of such a standard, and that the agencys limited resources at this time are best directed toward responding to the broader COVID
19 crisis. The Ninth Circuit granted the parties request to stay the case because OSHA now intends to prioritize the infectious disease rulemaking.

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Strategies, LLC since acquired by the National Safety Council NSCa group of more than 100 large mostly Fortune 500 companies in over 28
industriespetitioned OSHA to issue an ETS, recognizing that OSHA had provided very well prepared and thoughtful guidance, but concluding an ETS is still needed and that the lack of a uniform response has caused confusion and unnecessary burden on already struggling workplaces ORCHSE, October 9, 2020.
Notwithstanding the patchwork efforts at the state and local level, the country experienced a significant increase in COVID19 deaths and infections. When OSHA decided not to promulgate an ETS in May 2020, the COVID19 death toll in the United States was reaching 100,000 CDC, May 28, 2020. Since then, an additional 500,000 Americans have died from COVID19 CDC, May 24, 2021a.
Despite a decrease in recent weeks, the death rate remains high 7-day moving average death rate of 500 on May 23, 2021 CDC, May 24, 2021b, and thousands of Americans are hospitalized with COVID19 every day CDC, May 24, 2021c.
As of May 23, 2021, the agency had issued 689 citations for COVID19related violations of existing OSHA
requirements, primarily of healthcare facilities including nursing homes.
Violations have included, among other things, failure to properly develop written respiratory protection programs;
failure to provide a medical evaluation, respirator fit test, training on the proper use of a respirator, and personal protective equipment; failure to report an injury, illness, or fatality; failure to record an injury or illness on OSHA
recordkeeping forms; and failure to comply with the General Duty Clause of the OSH Act. In addition, OSHA issued over 230 Hazard Alert Letters HALs, including over 100 HALs to employers in healthcare settings e.g., hospitals, ambulatory care, and nursing and residential care facilities, where it found COVID19-related hazards during workplace inspections, but did not believe it had sufficient basis to cite the employer for violating an existing OSHA standard or the General Duty Clause.
On January 21, 2021, President Biden issued Executive Order 13999, entitled Protecting Worker Health and Safety 86 FR 7211. In it, he declared that:
Ensuring the health and safety of workers is a national priority and a moral imperative.
Healthcare workers and other essential workers, many of whom are people of color and immigrants, have put their lives on the line during the coronavirus disease 2019

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COVID19 pandemic. It is the policy of my Administration to protect the health and safety of workers from COVID19. The Federal Government must take swift action to reduce the risk that workers may contract COVID19 in the workplace.

He further directed OSHA to take a number of steps to better protect workers from the COVID19 hazard, including issuing revised guidance on workplace safety, launching a national emphasis program to focus OSHA
enforcement efforts on COVID19, conduct a multilingual outreach program, and evaluate its COVID19
enforcement policies id.. In addition, the President directed OSHA to consider whether any emergency temporary standards on COVID19, including with respect to masks in the workplace, are necessary, and if such standards are determined to be necessary, issue them by March 15, 2021 id.. OSHA began working on the issue at once, and shortly after Secretary Walsh took office on March 23, he ordered OSHA to ensure its analysis addressed the latest information regarding the state of vaccinations and virus variants Rolfson and Rozen, April 6, 2021. In accordance with the executive order and Secretary Walshs directive, OSHA has reviewed its May 2020 decision not to issue an ETS. For the reasons explained below, OSHA
does not believe its prior approach enforcement of existing standards and the General Duty Clause coupled with the issuance of nonbinding guidance has proven over time to be adequate to reduce the risk that workers may contract COVID19 in healthcare settings. Given the grave danger presented by the hazard, OSHA now finds that this standard is necessary to protect the healthcare employees who face the highest risk of contracting COVID19 at work. See Natl Cable &
Telecomm. Assn v. Brand X internet Svcs, 545 U.S. 967, 981 2005 noting that an agency must consider the wisdom of its policy on a continuing basis . . . for example, in response to changed factual circumstances, or a change in administrations; Asbestos Info. Assn, 727 F.2d at 423 5th Cir.
1984 failure to act does not conclusively establish that a situation is not an emergency . . . when there is a grave danger to workers, to hold that because OSHA did not act previously it cannot do so now only compounds the consequences of the Agencys failure to act..
References American Federation of Labor and Congress of Industrial Organizations. 2020, March 6. To Address the Outbreak of COVID

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