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Federal Register / Vol. 86, No. 116 / Monday, June 21, 2021 / Rules and Regulations disease hazard like COVID19.
Accordingly, OSHA has not yet identified any instance in which the Sanitation standard could be applied in the agencys COVID19 enforcement efforts. Thus, OSHAs efforts to enforce existing standards to address the COVID19 hazard have been significantly hindered by the absence of any specific requirements in these standards related to some of the most important COVID19-mitigation measures. The COVID19 ETS addresses this issue by clearly mandating each of these necessary protections.
Second, because existing standards do not contain provisions specifically targeted at the COVID19 hazard, it may be difficult for employers and employees to determine what particular COVID19 safety measures are required by existing standards, or how the separate standards are expected to work together as applied to COVID19. As explained in more detail in the Need for Specific Provisions Section V of the preamble, the infection control practices required to address COVID19
are most effective when used together, layering their protective impact.
Because no such layered framework is currently enforced nationally, the existing standards leave large gaps in employee protection from COVID19.
An ETS with a national scope that contains provisions specifically addressing the COVID19 hazards facing healthcare workers will provide clearer instructions to the average employer than the piecemeal application of existing standards. The ETS bundles all of the relevant requirements, providing a roadmap for employers and employees to use when developing a plan and implementing protections, so that employers and employees in the settings covered by this standard know what is required to protect employees from COVID19.
More certainty will lead to more compliance, and more compliance will lead to improved protection of employees.
Third, requirements in some existing standards may be appropriate for other situations but simply do not contemplate COVID19 hazards. For example, as noted above, the Sanitation standard at 1910.141 requires employers to provide warm water, soap, and towels that can be used for hand washing, an important protective action against COVID19, and generally requires that places of employment be kept clean, but it does not specify disinfection as a cleaning procedure, even though disinfection is an important precaution against COVID19
transmission. Nor does it require the
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provision of hand sanitizer where hand washing facilities cannot be made readily available. Similarly, existing standards do not address facemasks for a hazard such as COVID19, which protect other workers source control as well as provide some degree of protection to the wearer. The ETS, developed in direct response to the COVID19 hazard and associated pandemic, provides this needed specificity so the employers covered by the ETS understand exactly what is required during this unprecedented public health emergency.
Fourth, the existing recordkeeping and reporting regulations are not adequate to help the employer or the agency assess the full scope of COVID
19 workplace exposures. The recordkeeping regulations were not written with the nature of COVID19
transmission or illness in mind. In order to adequately understand and thereby control the spread of COVID19 in the workplace, it is critical that the employer has a record of all cases of COVID19 occurring among employees;
however, such information is outside of the scope of OSHAs existing recordkeeping requirements, which are limited to injuries or illnesses that the employer knows to be work-related. The existing regulations are premised on the assumption that employers can easily identify injuries or illnesses that are work-related, but COVID19
transmission can occur in the workplace, the community, or the household, and it can be difficult to identify the point of transmission. In numerous investigations, OSHA has identified employee illnesses or deaths from COVID19 that were not reflected in the employers required recordkeeping logs because the employer was not able to determine whether the illness or death was workrelated. The COVID19 log required by the ETS will provide a fuller picture of the prevalence of SARSCoV2 in the workplace by requiring employers to record employee cases without a workrelatedness determination.
Furthermore, even where workrelatedness can be determined, the existing reporting regulations are also inadequate in ensuring OSHA has the full picture of the impact of COVID19
in the settings covered by this standard because the regulations only require employers to report in-patient hospitalizations that occur within 24
hours of the work-related incident and to report fatalities that occur within thirty days of the work-related incident.
But many COVID19 infections will not result in hospitalization or death until well after these limited reporting
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periods; consequently they are not required to be reported to OSHA, which limits the agencys ability to fully understand the impact of COVID19 on the workforce. In order to adequately understand and thereby control the spread of COVID19 in the workforce, it is critical that the employer has a record of all cases of COVID19 occurring among employees and that OSHA is timely informed of all work-related COVID19 in-patient hospitalizations and fatalities.
OSHAs existing recordkeeping and reporting requirements are also inadequate for addressing the COVID
19 hazard in the workplaces covered by the ETS because the current reporting structure does not require employers to notify employees of possible exposures in the workplace. While the recordkeeping requirements require employers to make illness and injury records available to employees, 29 CFR
1910.35b2, they do not create an affirmative duty requiring employers to notify employees when they may have been exposed to another employee with the disease. Given the transmissibility of COVID19, timely notification of an exposure is critical to curbing further spread of COVID19 and protecting employees from the COVID19 hazard.
Thus, OSHAs existing recordkeeping and reporting requirements are not tailored to address hazards associated with COVID19 in the workplaces covered by the ETS. As a result, they do not enable OSHA, employers, or employees to accurately identify and address such hazards. The ETS
addresses that issue by requiring employers to record each instance identified by the employer in which an employee is COVID19 positive, regardless of whether the instance is connected to exposure to COVID19 at work; requiring employers to report work-related, COVID19 in-patient hospitalizations and fatalities, regardless of when the exposure in the work environment occurred; and imposing an affirmative duty requiring employers to notify employees of COVID19 exposure.
In conclusion, OSHAs experience has demonstrated that existing standards alone are inadequate to address the COVID19 hazard. The limitations and inadequacies explained above prevent OSHA from requiring all of the layers of controls necessary to protect employees from COVID19 under these existing standards, even in situations that are clearly hazardous to employees. Thus, OSHA finds that its existing standards are not sufficient to protect employees from the grave danger posed by COVID
19.

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