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Federal Register / Vol. 86, No. 116 / Monday, June 21, 2021 / Rules and Regulations technique, but rather a general explanation of why the standard is necessary. Id. at 107.
ETSs are, by design, temporary in nature. Under section 6c3, an ETS
serves as a proposal for a permanent standard in accordance with section 6b of the OSH Act permanent standards, and the Act calls for the permanent standard to be finalized within six months after publication of the ETS. 29
U.S.C. 655c3; see Fla. Peach Growers Assn., 489 F.2d at 124. The ETS is effective until superseded by a standard promulgated in accordance with section 6c3. 29 U.S.C.
655c2.
It is crucial to note that the language of section 6c1 is not discretionary:
The Secretary shall provide for an ETS when OSHA makes the prerequisite findings of grave danger and necessity.
Pub. Citizen Health Research Grp., 702
F.2d at 1156 noting the mandatory language of section 6c. OSHA is entitled to great deference in its determinations, and it must also account for the fact that the interests at stake are not merely economic interests in a license or a rate structure, but personal interests in life and health. Id. quoting Wellford v.
Ruckelshaus, 439 F.2d 598, 601 D.C.
Cir. 1971.
IV. Rationale for the ETS

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A. Grave Danger I. Introduction On January 31, 2020, the Secretary of Health and Human Services HHS
declared COVID19 to be a public health emergency in the U.S. under section 319 of the Public Health Service Act. The World Health Organization declared COVID19 to be a global health emergency on the same day. President Donald Trump declared the COVID19
outbreak to be a national emergency on March 13, 2020 The White House, March 13, 2020. HHS renewed its declaration of COVID19 as a public health emergency effective April 21, 2021 HHS, April 15, 2021.2
Consistent with these declarations, and in carrying out its legal duties under the OSH Act, OSHA has determined that healthcare employees face a grave danger from the new hazard of workplace exposures to SARSCoV
2 except under a limited number of situations e.g., a fully vaccinated workforce in a breakroom.3 The virus is 2 HHS declarations of public health emergencies last for 90 days and then can be considered for renewal https www.phe.gov/emergency/news/
healthactions/phe/Pages/default.aspx.
3 References in this preamble to healthcare employees and healthcare workers indicate those
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both a physically harmful agent and a new hazard, and it can cause severe illness, persistent health effects, and death morbidity and mortality, respectively from the subsequent development of the disease, COVID19.4
OSHA bases its grave danger determination on evidence demonstrating the lethality of the disease, the serious physical and psychiatric health effects of COVID19
morbidity in mild-to-moderate as well as in severe cases, and the transmissibility of the disease in healthcare settings where people with COVID19 are reasonably expected to be present. The protections of this ETS
which will apply, with some exceptions, to healthcare settings where people may share space with COVID19
patients or interact with others who doare designed to protect employees from infection with SARSCoV2 and from the dire, sometimes fatal, consequences of such infection.
The fact that COVID19 is not a uniquely work-related hazard does not change the determination that it is a grave danger to which employees are exposed, nor does it excuse employers from their duty to protect employees from the occupational transmission of SARSCoV2. The OSH Act is intended to assure so far as possible every working man and woman in the Nation safe and healthful working conditions, 29 U.S.C. 651b, and there is nothing in the Act to suggest that its protections do not extend to hazards which might occur outside of the workplace as well as within. Indeed, COVID19 is not the first hazard that OSHA has regulated that occurs both inside and outside the workplace. For example, the hazard of noise is not unique to the workplace, but the Fourth Circuit has upheld OSHAs Occupational Noise Exposure standard, 29 CFR 1910.95 Forging Industry Assn v. Secretary, 773 F.2d 1437, 1444 4th Cir. 1985. Diseases caused by bloodborne pathogens, including HIV/AIDS and hepatitis B, are also not unique to the workplace, but the Seventh Circuit upheld the majority of OSHAs Bloodborne Pathogens standard, 29 CFR 1910.1030 Am.
Dental Assn v. Martin, 984 F.2d 823
7th Cir. 1993. Moreover, employees have more freedom to control their employees covered by the protections in the ETS, including employees providing healthcare support services.
4 OSHA is defining the grave danger as workplace exposure to SARSCoV2, the virus that causes the development of COVID19. COVID19 is the disease that can occur in people exposed to SARS
CoV2, and that leads to the health effects described in this section. This distinction applies despite OSHAs use of these two terms interchangeably in some parts of this preamble.

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environment outside of work, and to make decisions about their behavior and their contact with others to better minimize their risk of exposure.
However, during the workday, while under the control of their employer, healthcare employees providing care directly to known or suspected COVID
19 patients are required to have close contact with infected individuals, and other employees in those settings also work in an environment in which they have little control over their ability to limit contact with individuals who may be infected with COVID19 even when not engaged in direct patient care.
Accordingly, even though SARSCoV2
is a hazard to which employees are exposed both inside and outside the workplace, healthcare employees in workplaces where individuals with suspected or confirmed COVID19
receive care have limited ability to avoid exposure resulting from a work setting where those individuals are present. OSHA has a mandate to protect employees from hazards they are exposed to at work, even if they may be exposed to similar hazards before and after work.
As described above in Section III, Legal Authority, grave danger indicates a risk that is more than significant Intl Union, United Auto., Aerospace, & Agr. Implement Workers of Am., UAW v. Donovan, 590 F. Supp.
747, 75556 D.D.C. 1984; Indus. Union Dept, AFLCIO v. Am. Petroleum Inst., 448 U.S. 607, 640 n.45, 655 1980
stating that a rate of 1 worker in 1,000
workers suffering a given health effect constitutes a significant risk. Grave danger, according to one court, refers to the danger of incurable, permanent, or fatal consequences to workers, as opposed to easily curable and fleeting effects on their health Fla. Peach Growers Assn, Inc. v. U. S. Dept of Labor, 489 F.2d 120, 132 5th Cir.
1974. Fleeting effects were described as nausea, excessive salivation, perspiration, or blurred vision and were considered so minor that they often went unreported, which is in contrast to the adverse health effects of cases of COVID19, which are formally referenced as ranging from mild to critical. 5 Beyond this, however, the determination of what constitutes a risk worthy of Agency action is a policy consideration that belongs, in the first instance, to the Agency Asbestos Info.
5 Definitions of severity of COVID19 illness used in this document are found in the National Institutes of Healths COVID19 treatment guidelines https www.covid19treatment guidelines.nih.gov/overview/clinical-spectrum/
NIH, December 17, 2020.

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