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Federal Register / Vol. 86, No. 116 / Monday, June 21, 2021 / Rules and Regulations
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. This is true a fortiori here in the current national crisis where OSHA must act to ensure employees are adequately protected from the new hazard presented by the COVID19
pandemic see 29 U.S.C 655c1.
Having made the determination of grave danger, as well as the determination that an ETS is necessary to protect these employees from exposure to SARSCoV2 see Need for the ETS, in Section IV.B. of this preamble, OSHA is required to issue this standard to protect these employees from getting sick and dying from COVID19 acquired at work. See 29
U.S.C. 655c1.

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References Centers for Disease Control and Prevention CDC. 2020, December 10. COVID19
racial and ethnic health disparities.
https www.cdc.gov/coronavirus/2019ncov/community/health-equity/racialethnic-disparities/index.html. CDC, December 10, 2020.
Centers for Disease Control and Prevention CDC. 2021, May 26. Health disparities: race and Hispanic origin.
https www.cdc.gov/nchs/nvss/vsrr/
covid19/health_disparities.htm. CDC, May 26, 2021.
Centers for Disease Control and Prevention CDC. 2021a, May 24. COVID data tracker.Trends in number of COVID19
cases and deaths in the US reported to CDC, by state/territory: Trends in Total COVID19 Deaths in the United States Reported to CDC. https covid.cdc.gov/
covid-data-tracker/trends_
dailytrendscases. CDC, May 24, 2021a.
Centers for Disease Control and Prevention CDC. 2021b, May 24. Demographic Trends of COVID19 cases and deaths in the US reported to CDC: Deaths by age group. https covid.cdc.gov/covid-datatracker/demographics. CDC, May 24, 2021b.
Centers for Disease Control and Prevention CDC. 2021c, May 24. COVID data tracker.Trends in number of COVID19
cases and deaths in the US reported to CDC, by state/territory: Trends in Total COVID19 Cases in the United States Reported to CDC. https covid.cdc.gov/
covid-data-tracker/trends_
dailytrendscases.CDC, May 24, 2021c.
Escobar, GJ et al., 2021, February 9. Racial disparities in COVID19 testing and outcomes. Annals of Internal Medicine.
doi: 10.7326/M206979. Escobar et al., February 9, 2021.
Gross, CP et al., 2020, October. Racial and ethnic disparities in population-level
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COVID19 mortality. Journal of General Internal Medicine 3510: 30973099.
doi: 10.1007/s1160602006081w.
Gross et al., October 2020.
McLaren, J. 2020, June. Racial disparity in COVID19 deaths: Seeking economic roots with Census data. NBER Working Paper Series. Working Paper 27407. doi:
10.3386/w27407. McLaren, June 2020.

B. Need for the ETS
This ETS is necessary to protect the healthcare workers with the highest risk of contracting COVID19 at work.
Healthcare workers face a particularly elevated risk of contracting COVID19
in settings where patients with suspected or confirmed COVID19
receive treatment, especially those healthcare workers providing direct care to patients. The ETS is necessary to protect these workers through requirements including patient screening and management, respirators and other personal protective equipment PPE, limiting exposure to aerosol-generating procedures, physical distancing, physical barriers, cleaning, disinfection, ventilation, health screening and medical management, access to vaccination, and antiretaliation provisions and medical removal protection.
I. Events Leading to the ETS
Since January 2020, OSHA has received numerous petitions and supporting letters from members of Congress, unions, advocacy groups, and one group of large employers urging the agency to take immediate action by issuing an ETS to protect healthcare employees from exposure to the virus that causes COVID19 Scott and Adams, January 30, 2020; NNU, March 4, 2020; AFLCIO, March 6, 2020;
Wellington, March 12, 2020; DeVito, March 12, 2020; Carome, March 13, 2020; Murray et al., April 29, 2020; Solt, April 28, 2020; Public Citizen, March 13, 2020; Pellerin, March 19, 2020;
Yborra, March 19, 2020; Owen, March 19, 2020; ORCHSE, October 9, 2020.
These petitions and supporting letters asserted that many employees have been infected because of workplace exposures to the virus that causes COVID19 and immediate, legally enforceable action is necessary for protection. OSHA quickly began issuing detailed guidance documents and alerts beginning in March 2020 that helped employers determine employee risk levels of COVID19 exposure and made recommendations for appropriate controls.
On March 18, 2020, then-OSHA
Principal Deputy Assistant Secretary Loren Sweatt responded to an inquiry from Congressman Robert C. Bobby
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Scott, Chairman of the House Committee on Education and Labor, regarding OSHAs response to the COVID19 outbreak OSHA, March 18, 2020. In the letter, she stated that OSHA had a number of existing enforcement tools it was using to address COVID19, including existing standards such as Personal Protective Equipment PPE, Respiratory Protection, and Bloodborne Pathogens, as well as the General Duty Clause, 29
U.S.C. 654a1. She also stated that OSHA was working proactively to assist employers by developing guidance documents. And, given the existing enforcement tools, we currently see no additional benefit from an ETS in the current circumstances relating to COVID19, and OSHA can best meet the needs of Americas workers by being able to rapidly respond in a flexible environment. However, she noted that OSHA would continue to monitor this quickly evolving situation and will take appropriate steps to protect workers from COVID19 in coordination with the overall U.S. government response effort.
Shortly after OSHAs announcement that it did not intend to pursue an ETS
at that time, the American Federation of Labor and Congress of Industrial Organizations AFLCIO, the countrys largest federation of labor unions, filed an emergency petition with the U.S.
Court of Appeals for the D.C. Circuit, for a writ of mandamus to compel OSHA to issue an ETS for COVID19, arguing that OSHAs failure to issue legally enforceable COVID19-specific rules endangered workers AFLCIO, May 18, 2020. On May 29, 2020, OSHA denied the AFLCIOs pending March 6
petition to OSHA for an ETS 12 and simultaneously filed a response brief with the D.C. Circuit, arguing the AFL
CIO was not entitled to a writ of mandamus DOL, May 29, 2020. The agency stated that the union had not clearly and indisputably demonstrated that an ETS was necessary and expressed its view that an ETS was not necessary at that time because of the agencys two-pronged strategy for addressing COVID19 in the workplace:
12 The AFLCIO had petitioned OSHA on March 6 to issue an ETS to protect working people from occupational exposure to infectious diseases broadly, including COVID19 AFLCIO, March 6, 2020. In OSHAs May 29, 2020 denial, the agency concluded that it lacked compelling evidence to find that an undefined category of infectious diseases generally posed a grave danger for which an ETS was necessary OSHA, May 29, 2020. With respect to COVID19 specifically, the agency made no conclusion as to whether the disease posed a grave danger to workers, but concluded, as it had in the earlier March 18, 2020 response to congressional inquiry, that a COVID19 ETS was not necessary at that time id..

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