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Federal Register / Vol. 86, No. 116 / Monday, June 21, 2021 / Rules and Regulations while subsection a2 creates a specific duty to comply with standards for the good of all employees on a multiemployer worksite.. For example, if a janitorial services contractor were to send one employee who is COVID19
positive into a healthcare setting and knowingly allow that employee to work around employees of other employers, the janitorial services contractor who created the hazard could not be issued a General Duty Clause citation because none of that employers own employees would have been exposed to the hazard.
This limitation of the General Duty Clause can prevent OSHA from citing the employer on a multi-employer worksite who may be the most responsible for an existing COVID19
hazard or best positioned to mitigate that hazard.
For all of the reasons described above, OSHA finds that the General Duty Clause is not an adequate enforcement tool to protect the employees covered by this standard from the grave danger posed by COVID19.

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c. OSHA and Other Entity Guidance Is Insufficient OSHA has issued numerous nonmandatory guidance products to advise employers on how to protect workers from SARSCoV2 infection. See https www.osha.gov/coronavirus Even the most comprehensive guidance makes clear, as it must, that the guidance itself imposes no new legal obligations, and that its recommendations are advisory in nature. See OSHAs online guidance, Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID19 in the Workplace January 29, 2021; and OSHAs earlier 35-page booklet, Guidance on Preparing Workplaces for Covid-19 March 9, 2020. This guidance, as well as guidance materials issued by other government agencies and organizations, including the CDC, the Centers for Medicare & Medicaid Services CMS, the Institute of Medicine IOM, and the World Health Organization WHO, help protect employees to the extent that employers voluntarily choose to implement the practices they recommend.17 Unfortunately, OSHAs 17 Although the Centers for Medicare & Medicaid Services CMS has issued regulations requiring healthcare employers that accept payment through Medicare and Medicaid to implement nationally recognized infection control practices see 42 CFR
Pts. 400699, those regulations do not obviate the need for this ETS. As a preliminary matter, not all healthcare workplaces covered by the ETS accept Medicare and Medicaid, and those that do not are not required to comply with the CMS regulations.
Furthermore, OSHA has important enforcement tools that CMS lacks: OSHA can enforce a standard
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experience shows that does not happen consistently or rigorously enough, resulting in inadequate protection for employees.
As documented in numerous peerreviewed scientific publications, CDC, IOM, and WHO have recognized a lack of compliance with non-mandatory recommended infection-control practices Siegel et al., 2007; IOM, 2009;
WHO, 2009. OSHA was aware of these findings when it previously concluded that an ETS was not necessary, but at the time of that conclusion, the agency erroneously believed that it would be able to effectively use the nonmandatory guidance as a basis for establishing the mandatory requirements of the General Duty Clause, and informing employers of their compliance obligations under existing standards. As explained above, that has not proven to be an effective strategy. Moreover, when OSHA made its initial necessity determination at the beginning of the pandemic, it made an assumption that given the unprecedented nature of the COVID19
pandemic, there would be an unusual level of widespread voluntary compliance by the regulated community with COVID19-related safety guidelines see, e.g., DOL, May 29, 2020
at 20 observing that never in the last century have the American people been as mindful, wary, and cautious about a health risk as they are now with respect to COVID19, and that many protective measures are being implemented voluntarily, as reflected in a plethora of industry guidelines, company-specific plans, and other sources.
Since that time, however, developments have led OSHA to conclude that the same uneven compliance documented by CDC, IOM, and WHO is also occurring for the COVID19 guidance issued by OSHA
and other agencies. This was evidenced by a cross-sectional study performed from late summer to early fall of 2020
in New York and New Jersey that found non-compliance and widespread inconsistencies in COVID19 response by responding to complaints, conducting random unannounced inspections, and issuing citations with penalties, whereas compliance with CMS
regulations is generally validated through periodic accreditation surveys. The joint effect of the CMS
regulations and a new ETS would improve the breadth, quality and implementation of infection control programs in a manner that the CMS
regulations cannot do, and have not done, alone.
Indeed, that has been OSHAs experience in enforcing its existing standards against healthcare employers that overlap with CMS requirements, such as the Respirator, PPE, and Bloodborne Pathogens standards. Thus, the ETS is necessary to provide additional coverage and enforcement tools above and beyond the CMS regulations.

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programs Koshy et al., February 4, 2021. Several other factors have also been found to contribute to uneven implementation of controls to prevent the spread of COVID19. For example, there has been a reported rise of COVID fatigue or pandemic fatiguei.e., a decrease in voluntary use of COVID19 mitigation measures over time Silva and Martin, November 14, 2020; Meichtry et al., October 26, 2020; Belanger and Leander, December 9, 2020. In addition, the fear of financial loss; skepticism about the danger posed by COVID19; and even a simple human tendency, called psychological reactance, to resist curbs on personal freedoms, i.e., an urge to do the opposite of what somebody tells you to do, may also play a role in the uneven implementation of COVID
19 mitigation measures Belanger and Leander, December 9, 2020; Markman, April 20, 2020.
The high number of COVID19related complaints and reports also suggests a lack of widespread compliance with existing voluntary guidance. Although the number of employee complaints is declining, OSHA continues to receive hundreds of complaints every month, including complaints alleging that healthcare employers are not consistently following non-mandatory CDC guidance to protect employees. If guidance were followed more strictly, or if there were enough voluntary compliance with steps to prevent illness, OSHA would expect to see a significant reduction in COVID19-related complaints from employees.
The dramatic increases in the percentage of the population that contracted the virus toward the end of 2020 and in early 2021 indicated a continued risk of COVID19 spread in workplace settings for more information on the prevalence of COVID19 see Grave Danger Section IV.A of the preamble despite OSHAs publication of numerous specific and comprehensive guidance documents.
OSHA has found that neither reliance on voluntary action by employers nor OSHA non-mandatory guidance is an adequate substitute for specific, mandatory workplace standards at the federal level. Public Citizen v. Auchter, 702 F.2d 1150 at 1153 voluntary action by employers alerted and responsive to new health data is not an adequate substitute for government action. The ETS is one aspect of the national response to the pandemic that is needed to improve compliance with infection control measures by establishing clear, enforceable measures that put covered employers on notice that they must,
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