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Federal Register / Vol. 86, No. 116 / Monday, June 21, 2021 / Rules and Regulations
voluntary for the workers covered by this standard. Without a national standard, the patchwork of inconsistent requirements has proven both ineffective at a national level and burdensome to employers operating across jurisdictions, increasing compliance costs and potentially limiting the ability to implement protective measures at scale See ORCHSE, October 9, 2020. Congress has charged OSHA with protecting Americas workforce, and an ETS is the only measure capable of providing adequate protection to the workers covered by this standard from the grave danger posed by COVID19.

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a. The Current Standards and Regulations Are Inadequate In updated enforcement guidance issued in March 2021 OSHA, March 12, 2021, OSHA identified a number of current standards and regulations that might apply when workers have occupational exposure to SARSCoV2
Interim Enforcement Response Plan OSHA, March 12, 2021.15 In addition to the standards listed there, OSHA has also cited the Hazard communication standard 29 CFR 1910.1200 during COVID19 investigations. Accordingly, the complete list of potentially applicable standards and regulations follows:
29 CFR part 1904, Recording and Reporting Occupational Injuries and Illnesses. This regulation requires certain employers to keep records of work-related fatalities, injuries, and illnesses and report them to the government in specific circumstances.
29 CFR 1910.132, General requirementsPersonal Protective Equipment PPE. This standard requires that appropriate PPE, including PPE for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, be provided, used, and maintained in a sanitary and reliable condition.
29 CFR 1910.134, Respiratory protection. This standard requires that 15 The Interim Enforcement Response Plan also suggests that while OSHAs Bloodborne Pathogens standard 29 CFR 1910.1030 does not typically apply to respiratory secretions that may contain SARSCoV2, the provisions of the standard offer a framework that may help control some sources of the virus, including exposures to body fluids e.g., respiratory secretions not covered by the standard.
While this is true for some of the controls required by that standard, such as laundering and cleaning, it does not contain requirements to implement necessary controls to protect employees against airborne transmission of SARSCoV2, such as distancing, barriers, and ventilation. And in any event, it imposes no obligations unless blood or other potentially infectious materials as defined in the standard are present.

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employers provide, and ensure the use of, appropriate respiratory protection when necessary to protect employee health.
29 CFR 1910.141, Sanitation. This standard applies to permanent places of employment and contains, among other requirements, general housekeeping and waste disposal requirements.
29 CFR 1910.145, Specification for accident prevention signs and tags. This standard requires the use of biological hazard signs and tags, in addition to other types of accident prevention signs and tags.
29 CFR 1910.1020, Access to employee exposure and medical records. This standard requires that employers provide employees and their designated representatives access to relevant exposure and medical records.
29 CFR 1910.1200, Hazard communication. This standard requires employers to keep Safety Data Sheets SDS for chemical hazards, provide SDSs to employees and their representatives when requested, and train employees about those hazards.
The standard does not apply to biological hazards, but hazard communication becomes an issue for the SARSCoV2 virus when chemicals are used to disinfect surfaces. OSHA
notes that, when such chemicals are used in the workplace, the employer is required to comply with the hazard communication standard. The agency has not incorporated hazard communication requirements in the ETS, but has included related training and notification requirements. Section 1910.1200 compliance is only peripherally related to protection against SARSCoV2 hazards, employers are generally aware of those requirements, and the requirements of 1910.1200 are enforceable without being repeated in the ETS.
Through its enforcement efforts to date, OSHA has encountered significant obstacles demonstrating that existing standards and regulations are inadequate to address the COVID19
hazard for healthcare workers, and has determined that a COVID19 ETS is necessary to address these inadequacies.
As discussed in further detail below, OSHA has determined that some of the above-listed standardsincluding Sanitation at 1910.141are in practice too difficult to apply to the COVID19
hazard and have never been cited in COVID enforcement; other standards such as Respiratory Protection at 1910.134 and general PPE at 1910.132are more clearly applicable to the COVID19 hazard, but for a variety of reasons have offered little protection to the vast majority of
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employees who are not directly caring for patients with suspected or confirmed COVID19. Current CDC guidance does not indicate that respirators are generally needed outside of direct patient care, but CDC does support the protective measures the ETS would require for the workers it covers Howard, May 22, 2021.
Finally, the remaining listed standards and regulationsfor recordkeeping and reporting, accident prevention signs and tags, access to employee records, and hazard communicationwhile applicable to the COVID19 hazard and important in the overall scheme of workplace safety, do not require employers to implement specific measures to protect workers from COVID19. Further, as addressed in more detail below, even applicable regulations like the reporting requirements did not contemplate a hazard like COVID19, and have proven to be difficult to apply to it. Thus, for the reasons elaborated in further detail below, OSHA has determined that its existing standards and regulations are insufficient to adequately address the grave danger posed by COVID19 to healthcare workers.
First, most of the safety measures known to reduce the hazard of COVID
19 transmission are not explicitly required by existing standards: none expressly requires measures such as facilitating vaccination, facemasks, physical distancing, physical barriers, cleaning and disinfection when appropriate, improved ventilation to reduce virus transmission, isolation of sick employees, minimizing exposures in the highest hazard settings such as aerosol-generating procedures on patients with suspected or confirmed COVID19, patient screening and management, notification to employees potentially exposed to people with COVID19, or training on these requirements. For example, although OSHAs existing Respiratory Protection and PPE standards require respirators and PPE such as gloves and face shields in some settings covered by the ETS, they do not require all of the other layers of protection required by the ETS
that are necessary to mitigate the spread of COVID19 in the workplace. See Need for Specific Provisions Section V
of the preamble.
Similarly, while the Sanitation standard at 1910.141a3 requires places of employment to be kept clean to the extent that the nature of the work allows, the standard does not require disinfection of potentially contaminated surfaces nor does it speak to the level or frequency with which cleaning is required to protect against an infectious
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