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Federal Register / Vol. 86, No. 116 / Monday, June 21, 2021 / Rules and Regulations California, 140 S. Ct. 1891, 191314
2020. As OSHA indicated when it made the decision, the determination was based on the conditions and information available to the agency at that time and was subject to change as additional information indicated the need for an ETS. In light of the agencys express qualifications and the surrounding context, any employer reliance would have been unjustified and cannot outweigh the countervailing urgent need to protect healthcare workers from the grave danger posed by COVID19.
Multiple developments support a change in approach. First, as noted above, although the rates of death and hospitalization from COVID19 have decreased in recent weeks as vaccines have become more widely available, COVID19 continues to pose a grave danger to healthcare employees in settings where the risk of exposure to an infected person is elevated because of the nature of the work performed. In addition, some variability in infection rates in a pandemic is to be expected.
While the curves of new infections and deaths can bend down after peaks, they often reverse course only to reach additional peaks in the future Moore et al., April 30, 2020. Several new mutationsor variantsof the virus, preliminarily understood to be more contagious than the original, are now spreading in this country.
Second, as discussed in more detail in Grave Danger Section IV.A of this preamble, while vaccines have been authorized for use for several months, and the nationwide effort to fully vaccinate all Americans is ongoing, more work is needed to build confidence among Americans in the vaccines so that enough people are protected to bring the virus under control, and to ensure that employees can get vaccinated without the risk of losing their jobs or losing pay. The standard is therefore necessary to facilitate vaccination among healthcare workers by requiring employers to provide reasonable time and paid leave . . . to each employee for vaccination and any side effects experienced following vaccination paragraph m.
The standard also further encourages vaccination by fully exempting welldefined hospital ambulatory care settings where all employees are fully vaccinated and all non-employees are screened and denied entry if they are suspected or confirmed to have COVID
19 paragraph a2iv and home healthcare settings where all employees are fully vaccinated and all nonemployees at that location are screened
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prior to employee entry so that people with suspected or confirmed COVID19
are not present paragraph a2v. In addition, the standard encourages vaccination by exempting fully vaccinated employees from the requirements for facemasks, physical distancing, and barriers in welldefined areas where there is no reasonable expectation that any person with suspected or confirmed COVID19
will be present paragraph a4.
Further, OSHAs actual enforcement experience over the past yearwhich had only just begun when OSHA
announced its previous views on the need for an ETShas demonstrated that existing enforcement options do not adequately protect healthcare employees from the grave danger posed by COVID19. As of May 23, 2021, OSHA and its State Plan partners have received more than 67,000 COVIDrelated complaints since March of 2020
OSHA, May 23, 2021. OSHA has received more complaints about healthcare settings than any other industry.14 Although the number of employee complaints has gone down in recent months since COVID19 vaccines have become more widely available, OSHA continues to receive hundreds of employee complaints every month, including many that concern healthcare settings, asking for investigations of workplaces where employees do not believe they are being adequately protected from COVID19 and indicating that their employers do not follow the guidance issued by the agency and the CDC.
The following narratives are just a few recent examples of the kinds of complaints OSHA continues to receive from healthcare employees on a regular basis:
5/21/21 Doctors office failed to remove employee with COVID19
symptoms.
5/21/21 Assisted living facility for the elderly failed to notify employees that they were exposed to residents with COVID19.
5/19/21 Doctors office did not maintain distancing for employees, did not notify employees of exposure to COVID19, and did not remove 14 As a result of these complaints, federal OSHA
has conducted 2,305 inspections State Plans have conducted 7,203 inspections as of May 23, 2021.
On March 12, 2021, OSHA issued a National Emphasis program to ensure that OSHA continues to devote a high percentage of its inspection resources to COVID19, with a target of roughly 1,600 inspections a year. These can be the result of complaints or programmed inspections targeted at high hazard industries. However, as described below, the effectiveness of the NEP will be hampered without the ETS given the inadequacy of OSHAs current enforcement tools.

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employees with COVID19 symptoms from the workplace.
5/19/21 Doctors office did not ensure that technician wore gloves during COVID19 treatment.
5/10/21 Clinic did not follow guidance for patient screening or removal from the workplace of potentially infected employee.
5/7/21 Psychiatric facility did not properly clean rooms of COVID19
positive patients, did not train employees to properly remove infectious disease PPE when exiting COVID19 positive areas to other areas of the facility, and allows employees who have tested positive for COVID19
to continue to work at the workplace.
5/6/21 Hospital failed to promptly remove employee with COVID19 from the workplace, notify other employees of their exposure to the COVID19, and did not require employees to wear facemasks.
5/3/21 Doctors office required employees to reuse isolation gowns to an extent not consistent with CDC
guidance.
This ETS addresses numerous issues raised in these complaints, including physical distancing, PPE, cleaning and disinfection, and measures to keep contagious co-workers away from the workplace.
Based on its thorough review of OSHAs existing approach to protecting employees from COVID19, OSHA finds that existing OSHA standards, the General Duty Clause, and nonmandatory guidance issued by OSHA
are not adequate to protect healthcare employees from COVID19. Similarly, the numerous guidance products published by other entities, such as CDC, are not sufficiently effective at protecting these employees because such guidance is not enforceable and there is no penalty for noncompliance.
OSHA has determined that each of these tools, as well any combination of them, is inadequate to address COVID-related hazards in the settings covered by this standard, thereby establishing the need for this ETS.
This inadequacy has also been reflected in the number of states and localities that have issued their own mandatory standards in recognition that existing measures including nonmandatory guidance, compliance assistance, and enforcement of existing standards have failed to adequately protect workers from COVID19. While these state and local requirements may have had positive effects where they have been implemented, they are no replacement for a national standard that would establish definitively that COVID19 safety measures are no longer
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