COVID-19 and Emergency Temporary Standards: Right for the Nation?
Image: The Virginia Capitol in Richmond, Virginia.
In protecting workers from occupational exposure to COVID-19, the industrial hygiene and occupational health toolbox provides many options regarding means through which to build a COVID-19 response program, among them:
- training, education, and outreach, such as AIHA’s Back to Work Safely Guidelines
- guidance from OSHA, NIOSH, and other parts of CDC
- OSHA’s General Duty Clause, which requires employers to provide a workplace free of hazards that are likely to cause serious harm or death
While each of these tools are useful, some industry experts, politicians, and observers believe another should be added: an emergency temporary standard (ETS) to protect workers from occupational exposure to COVID-19. But whether such a standard truly is necessary is the subject of intense debate.
In recent months, Members of the U.S. House and Senate have introduced bills that would require OSHA to issue an ETS to protect employees from occupational exposure to SARS–CoV–2. In May, the House passed the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act (H.R.6800), which would also require OSHA to issue an ETS on COVID-19. Although top congressional leaders have been vocal in their support for an ETS, backing has come mostly from the Democratic Party, with several Republicans recommending that OSHA simply continue to issue guidance. Meanwhile, OSHA’s leadership has not specifically commented on an ETS, but appears to favor guidance over new standards.
“Guidance has allowed the agency a more nimble response to the ever-changing understanding of the virus,” said Loren Sweatt, who currently heads OSHA in the absence of an officially appointed director, at a congressional hearing in May. “As our medical professionals and scientists learn more about the virus, guidance can be easily updated, while regulations are very cumbersome to revise. Guidance also allows us to speak more specifically to particular types of workplaces and controls than would be practicable in a generally applicable rule,” she elaborated.
However, the lack of an ETS is, to some observers, symbolic of OSHA’s perceived absence during the pandemic, and overshadows the agency’s daily tips, guidance documents, and other activities. Therefore, calls for an ETS continue, and some states aren’t waiting for OSHA to officially adopt the measure. Of those states, Virginia has emerged as a leader.
On May 29, Virginia Governor Ralph Northam signed an Executive Order, requiring the state’s Department of Labor and Industry to issue “emergency regulations and standards to control, prevent, and mitigate the spread of COVID-19 in the workplace.” About a month later, Virginia’s Safety and Health Codes Board began meeting to review a proposed ETS. As of this writing, the Board is expected to meet sometime during the week of July 13 and to approve the new standard. If so, it will be the first in the nation to issue such a standard.
The standard is expected to require, among other things, employers to assess their workplace and job tasks to determine whether their employees' COVID-19 exposure risks are “very high,” “high,” “medium,” or “lower,” as defined in the standard. Employers would also likely be required to develop and implement policies and procedures for returning employees to work who are suspected or known to have COVID-19.
If approved, the standard would go into effect shortly afterwards, and would likely expire when repealed by the Board, when superseded by a permanent standard, or after six months.
Many other states have been taking cues from Virginia. For instance, Oregon recently released a proposed timeline for developing two emergency temporary standards: one for healthcare and closely related industries, and another for the general workplace. The drafts of these rules are expected to be issued in late July, with a possible adoption and effective date of September 1, 2020.
Ultimately, it will take all the tools we have as an industry and the combined involvement of virtually everyone in the world to overcome the myriad challenges posed by COVID-19. AIHA is contributing by producing its Back to Work Safely guidance documents, hosting and participating in educational webinars, and supporting the dissemination of critical information to occupational health and safety professionals, businesses, workers, nonprofits, and governments. For additional information, please visit AIHA’s Coronavirus Outbreak Resource Center.
both states are osha state plan states (18b) which means they--in an important way--substitute for federal osha even in the private sector. since many states are under federal osha jurisdiction they would face significant legal obstacles were they to attempt to adopt a similar standard... thus the importance of a national osha standard.By james celenza on July 30, 2020 12:43pm
Was the bloodborne pathogen regulation needed ?
The significant reduction in hepatitis b and other employee infections is testimony to the need Aerosol transmitted disease need similar regulationBy Stephen larson on July 25, 2020 11:03am
I would like to see some guidance for the workforce on the type of respiratory protection that is effective for different types of work. I see workers using all types of respiratory protection that were never on the market 5 years ago, are these adequate? Does anyone know where there is guidance for the work LCe?By Doris Wunsch on July 17, 2020 3:37pm