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Federal Register / Vol. 86, No. 116 / Monday, June 21, 2021 / Rules and Regulations
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rather than should, take action to protect their employees. For these reasons, OSHA finds that nonmandatory guidance efforts are not sufficient, by themselves or in conjunction with General Duty Clause enforcement, to protect employees covered by this ETS from being infected by, and suffering death or serious health consequences from, COVID19.
d. A Uniform Nationwide Response to the Pandemic Is Necessary To Protect Workers OSHA is charged by Congress with protecting the health and safety of American workers. Yet OSHAs previous approach proved ineffective in meeting that charge. While some states and localities stepped in to fill the gaps in employee protection, these approaches do not provide consistent protection to workers and have, in some cases, been relaxed prematurely, leading to additional outbreaks Hatef et al., April 2021. In some states there are no workplace requirements at all. OSHA
has determined that a Federal standard is needed to ensure sufficient protection for employees in all states in the settings covered by this ETS; clarity and consistency about the obligations employers have to protect their employees in these settings; and a level playing field among employers.
As the pandemic has continued in the United States, there has been increasing recognition of the need for a more consistent national approach GAO, September 2020; Budryk, November 17, 2020; Horsley, May 1, 2020. One of the justifications for OSHA standards has always been to level the playing field so that employers who proactively protect their workforces are not placed at a competitive disadvantage Am.
Textile Mfrs. Inst. v. Donovan, 452 U.S.
490, 521 n.38 1981. Many employers have advised OSHA that they would welcome a nationwide ETS for that reason. For example, in its October 9, 2020 petition for a COVID19 ETS, ORCHSE Strategies, LLC explained that it is imperative that OSHA issue an ETS to provide employers one standardized set of requirements to address safety and health for their workers ORCHSE, October 9, 2020.
This group of prominent business representatives explained that an ETS
would eliminate confusion and unnecessary burden on workplaces that are struggling to understand how best to protect their employees in the face of confusing and differing requirements across states and localities. While noting that OSHA could not pre-empt a State from keeping its own rule assuming it is at least as effective as OSHAs
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standard, they also observed that historically, the impact of federal rulemaking in similar situations e.g., HazCom has been that most, if not all, of the States ultimately adhere to the federal requirements . . . . That can only be accomplished if OSHA takes the lead id.. Without an ETS, they continue, employers are left on their own to determine the preventive measures that need to be undertaken id..
Given that thousands of healthcare employees each week continue to be infected with COVID19, many of whom will become hospitalized or die, OSHA recognizes that a patchwork approach to worker safety has not been successful in mitigating this infectious disease outbreak, and that an ETS is necessary to provide clear and consistent protection to covered employees across the country.
e. OSHAs Other Previous Rationales for Not Promulgating an ETS No Longer Apply In addition to asserting that existing standards, guidance, and the General Duty Clause would provide sufficient tools to address COVID19 hazards to employees, OSHA had previously cited the need to respond to evolving scientific knowledge about the virus as part of its rationale for not issuing an ETS during the late spring of 2020.
Knowledge of the nature of COVID19
was undoubtedly less certain at the beginning of the pandemic when OSHA
made its initial determination that an ETS was not necessary. There have been recent changes in CDC
recommendations for vaccinated people outside the healthcare context.
However, for unvaccinated workers, since the summer of 2020 there has been considerable stability in the guidance from the CDC and other health organizations regarding the basic precautions that are essential to protect unvaccinated people from exposure to COVID19 while indoors. And the CDC
still recommends these precautions to protect vaccinated workers in healthcare settings. For example, the CDCs COVID19 guidance on How to Protect Yourself & Others CDC, March 8, 2021
includes the same guidance it issued in July 2020 regarding the basic protections of face coverings, distancing, barriers, and hand hygiene.
Moreover, OSHAs previous concern that an ETS would unintentionally enshrine requirements that are subsequently proven ineffective in reducing transmissionhas proven to be overstated. Moreover, even after issuing an ETS OSHA retains the flexibility to update the ETS to adjust to
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the subsequent evolution of CDC
workplace guidance. The major development in infection control over the last yearthe development, authorization, and growing distribution and use of COVID19 vaccinesis addressed in the ETS. Going forward, further developments can be addressed through OSHAs authority to modify the ETS if needed, or to withdraw it entirely if vaccination and other efforts end the current emergency. Nothing in the D.C.
Circuits decision in In re Am. Fedn of Labor & Cong. of Indus. Orgs., No. 20
1158, 2020 WL 3125324 AFLCIO, June 11, 2020; rehearing en banc denied July 28, 2020 precludes OSHAs decision to promulgate an ETS now. To the contrary, at an early phase of the pandemic, when its most severe effects had not yet been experienced, the court decided not to second-guess OSHAs decision to hold off on regulation in order to see if its non-regulatory enforcement tools could be used to provide adequate protection against the virus. OSHAs decision not to issue an ETS is entitled to considerable deference, the court explained, noting the the unprecedented nature of the COVID19 pandemic and concluding merely that OSHA reasonably determined that an ETS is not necessary at this time. Id., with emphasis added.
Finally, it is worth noting that OSHAs conclusion as to the ineffectiveness of the current approachi.e., relying on existing enforcement tools and voluntary guidanceis supported by a report issued by the DOL Office of Inspector General, dated February 25, 2021, which concluded after an investigation that OSHAs prior approach to addressing the hazards of COVID19 leaves employees across the country at increased risk of COVID19 infection DOL OIG, February 25, 2021. The DOL
OIG report specifically recommended that OSHA reconsider its prior decision not to issue an ETS to provide the necessary protection to employees from the hazards of COVID19.
f. Even in Combination, the Guidance and General Duty Clause Are Still Inadequate Early in the pandemic, OSHA took the position that existing standards, together with the combination of nonmandatory guidance and General Duty Clause citations, would be sufficient to protect employees so that specific mandatory requirements would not be necessary. In theory, where existing standards did not address an issue directly, the remaining regulatory gap could be filled by guidance from OSHA,
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