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Federal Register / Vol. 86, No. 116 / Monday, June 21, 2021 / Rules and Regulations
19: A Petition for an OSHA Emergency Temporary Standard for Infectious Disease. AFLCIO, March 6, 2020.
American Federation of Labor and Congress of Industrial Organizations. 2020, May 18. Emergency Petition For A Writ Of Mandamus, and Request For Expedited Briefing And Disposition, No. 191158.
AFLCIO, May 18, 2020.
American Federation of Labor and Congress of Industrial Organizations, USCA Case 201158, Document 1846700. 2020, June 11. AFLCIO, June 11, 2020.
American Federation of Labor and Congress of Industrial Organizations. Denial of Petition for Rehearing En Banc on Behalf Of American Federation of Labor and Congress of Industrial Organizations.
USCA Case 201158, Document 1853761. 2020, July 28. AFLCIO, July 28, 2020.
American Federation of Teachers, et al., Petition For A Writ Of Mandamus, No.
2073203 9th Cir., October 29, 2020.
2020, October 29. AFT, October 29, 2020.
Carome, M. 2020, March 13. Letter requesting an immediate OSHA
emergency temporary standard for infectious disease. Carome, March 13, 2020.
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_dailytrends cases. CDC, May 24, 2021a.
Centers for Disease Control and Prevention CDC. 2021b, May 24. COVID data tracker.Trends in number of COVID19
cases and deaths in the US reported to CDC, by state/territory Daily Trends in Number of COVID19 Deaths in the United States Reported to CDC. https
covid.cdc.gov/covid-data-tracker/
trends_dailytrendscases. CDC, May 24, 2021b.
Centers for Disease Control and Prevention CDC. 2021c, May 24. COVID data tracker. New Admissions of Patients with Confirmed COVID19, United States.
https covid.cdc.gov/covid-data-tracker/
new-hospital-admissions. CDC, May 24, 2021c.
Centers for Disease Control and Prevention CDC. 2020, May 28. United States Coronavirus COVID19 Death Toll Surpasses 100,000. https www.cdc.gov/
media/releases/2020/s0528-coronavirusdeath-toll.html. CDC, May 28, 2020.
DeVito, J. 2020, March 12. Grant OSHA
emergency standard for COVID19 to protect frontline workers. DeVito, March 12, 2020.
Murray, P, Brown, S, Heinrich, M, Brown, S, Blumenthal, R, Markey, EJ, Van Hollen, C, Durbin, RJ, Smith, T, Whitehouse, S, Wyden, R, King Jr., AS, Kaine, T, Reed, J, Menedez, R, Gillibrand, K, Duckworth, T, Warren, E, Hassan, MW, Casey Jr., RP, Sanders, B, Udall, T, Hirono, MK, Harris, KD, Feinstein, D, Klobuchar, A, Booker, CA, Shaheen, J, Cardin, B. 2020, April
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29. COVID19 ETS Petition.Murray et al., April 29, 2020.
National Nurses United NNU. 2020, March 4. National Nurses United Petitions OSHA for an Emergency Temporary Standard on Emerging Infectious Diseases in Response to COVID19.
NNU, March 4, 2020.
Occupational Safety and Health Administration OSHA. 2020, March 18. Letter from Loren Sweatt to Congressman Robert C. Bobby Scott.
OSHA, March 18, 2020.
Occupational Safety and Health Administration OSHA. 2020, May 29.
Letter from Loren Sweatt to AFLCIO
President Richard Trumka. OSHA, May 29, 2020.
Owen, M. 2020, March 19. Grant OSHA
emergency standard to protect frontline workers from COVID19. Owen, March 19, 2020 .
ORCHSE Strategies. 2020, October 9.
Petition to the U.S. Department of LaborOccupational Safety and Health Administration OSHA for an Emergency Temporary Standard ETS
for Infectious Disease. ORCHSE, October 9, 2020.
Pellerin, C. 2020. Grant OSHA emergency standard to protect frontline workers from COVID19. Pellerin, March 19, 2020.
Public Citizen. 2020, March 13. Support for AFLCIOs Petition for an OSHA
Emergency Temporary Standard for Infectious Disease to Address the Epidemic of Novel Coronavirus Disease.
Public Citizen, March 13, 2020.
Rolfson, B, Rozen, C. 2021, April 6. Labor Chief Walsh Puts Hold on OSHA Virus Rule for More Analysis. Bloomberg Law.
https news.bloomberglaw.com/safety/
labor-chief-walsh-puts-hold-on-oshavirus-rule-for-more-analysis. Rolfson and Rozen, April 6, 2021.
Scott, RC and Adams, AS. 2020, January 30.
Prioritize OSHAs Work on Infectious Diseases Standard/Immediate Issue of Temporary Standard. Scott and Adams, January 30, 2020.
Solt, BE. 2020. COVID19 ETS Petition.
Solt, April 28, 2020.
United States Department of Labor DOL.
2020, May 29. In Re: American Federation Of Labor And Congress Of Industrial Organizations. Department Of Labors Response to the Emergency Petition for a Writ of Mandamus, No. 20
1158 D.C. Cir., May 29, 2020. DOL, May 29, 2020.
United States Department of Labor DOL.
2020, December 31. American Federation of Teachers, et al., Department of Labors Opposition to the Petition for a Writ of Mandamus, No. 20
73203 9th Cir., December 31, 2020.
DOL, December 31, 2020.
Wellington, M. 2020, March 12. Grant OSHA emergency standard for COVID
19 to protect front-line workers.
Wellington, March 12, 2020.
Yborra, G. 2020, March 19. Grant OSHA
emergency standard to protect frontline workers from COVID19. Yborra, March 19, 2020.

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II. No Other Agency Action Is Adequate To Protect Employees Against Grave Danger For the first time in its 50-year history, OSHA faces a new hazard so grave that it has killed almost 600,000
people in the United States in barely over a year, and infected millions more.
COVID19 can be spread to employees whenever an infected person exhales.
Those employees, once infected, could end up unable to breathe without ventilators or suffer from failure of multiple body organs, and are at risk of death or long-term debilitation. The COVID19 pandemic has taken a particularly heavy toll on workers in healthcare providing frontline care to patients with suspected or confirmed COVID19, creating the precise situation that section 6c1 of the OSH
Act was enacted to address. This ETS is necessary to protect these employees from the grave danger posed by COVID
19.
When OSHA decided not to issue an ETS last spring, the agency had preliminarily determined that sufficient employee protection against COVID19
could be provided through enforcement of existing workplace standards and the General Duty Clause of the OSH Act, coupled with the issuance of industryspecific, non-mandatory guidance.
However, in doing so OSHA indicated that its conclusion that an ETS was not necessary was specific to the information available to the agency at that time, and that the agency would continue to monitor the situation and take additional steps as appropriate see, e.g., OSHA, March 18, 2020, Letter to Congressman Scott stating We currently see no additional benefit from an ETS in the current circumstances relating to COVID19. OSHA is continuing to monitor this quickly evolving situation and will take the appropriate steps to protect workers from COVID19 in coordination with the overall U.S. government response effort. emphasis supplied; DOL May 29, 2020 at 20 stating OSHA has determined this steep threshold of necessity is not met here, at least not at this time. emphasis supplied.
OSHAs subsequent experience has shown that a new approach is needed to protect healthcare workers from the grave danger posed by the COVID19
pandemic.
At the outset, employers do not have a reliance interest in OSHAs prior decision not to issue an ETS on May 29, 2020, which did not alter the status quo or require employers to change their behavior. See Dept of Homeland Security v. Regents of the Univ. of
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