OSHA acting head gives update on emergency temporary standard on COVID-19 vaccination, testing

First published by Safety+Health an NSC publication

Washington — OSHA is working “expeditiously” on an emergency temporary standard on COVID-19 vaccination and testing, acting agency administrator Jim Frederick said during an Oct. 7 webinar hosted by the National Safety Council.

Frederick didn’t provide a time frame for when the ETS might be issued.

“We’re considering the scope and the terms of the potential ETS as described by [President Joe Biden],” Frederick said. “We know that the pandemic will continue to evolve, and we’ll continue to monitor vaccination trend data, variants of the virus and other factors that will guide our continued efforts to ensure workers are protected from the virus while they’re on the job.”

Biden announced Sept. 9 that OSHA is developing an ETS that will require employers with at least 100 workers to “ensure their workforces are fully vaccinated or show a negative test at least once a week.”

Frederick acknowledged that the “expedited nature” of an ETS “unfortunately” doesn’t allow for public comment before its publication. However, he said the ETS essentially serves as a proposed rule and would allow for comments that could guide the drafting of a permanent standard, if OSHA chooses to issue one.

“We do hear everyone,” Frederick said. “We have heard issues from every source possible and are certainly taking into account everything that we can as we move through the process.”

McCraren Compliance offers many opportunities in safety training to help circumvent accidents. Please take a moment to visit our calendar of classes to see what we can do to help your safety measures from training to consulting.

OSHA revises its National Emphasis Program, updates Interim Enforcement Response Plan for COVID-19

First published by OSHA

Photo property of OSHA

WASHINGTON, DC – The U.S. Department of Labor’s Occupational Safety and Health Administration has revised its National Emphasis Program (NEP) for COVID-19. The agency launched the NEP on March 12, 2021, to focus on companies that put the largest number of workers at serious risk of contracting the coronavirus, and on employers that engage in retaliation against employees who complain about unsafe or unhealthful conditions or exercise other rights under the Occupational Safety and Health Act.

Based on an evaluation of inspection and illness data, the revised NEP (DIR 2021-03 (CPL 03), adjusts the targeted industries to those most at risk for COVID-19 exposure, but still includes healthcare and non-healthcare, such as meat and poultry processing. The revised NEP also removes an appendix that provided a list of Secondary Target Industries for the former COVID-19 NEP. For inspections in healthcare, the revised NEP refers compliance safety and health officers (CSHOs) to the new directive, DIR 2021-02 (CPL 02), Inspection Procedures for the COVID-19 Emergency Temporary Standard, issued on June 28, 2021.

Inspections in non-healthcare establishments will follow procedures outlined in the Updated Interim Enforcement Response Plan published July 7, 2021. The updated interim enforcement response plan (IERP) replaces the memorandum dated March 12, 2021. Updates in the July 2021 IERP include:

  • Enforcing protections for workers in non-healthcare industries who are unvaccinated or not fully vaccinated;
  • Where respirator supplies and services are readily available, OSHA will stop exercising enforcement discretion for temporary noncompliance with the Respiratory Protection standard based on employers’ claims of supply shortages due to the COVID-19 pandemic;
  • OSHA will no longer exercise enforcement discretion for the same requirements in other health standards, where full compliance may have been difficult for some non-healthcare employers due to the COVID-19 pandemic;
  • Updated instructions and guidance for OSHA area offices and CSHOs for handling COVID-19-related complaints, referrals and severe illness reports;
  • Ensuring workers are protected from retaliation; and
  • References to the revised NEP for COVID-19.

The goals of the IERP are to identify exposures to COVID-19 hazards, ensure appropriate control measures are implemented, and address violations of OSHA standards (other than the ETS) and the General Duty Clause. The updated IERP will remain in effect until further notice and is intended to be time-limited to the current COVID-19 public health crisis.

The ETS became effective June 21, 2021. Healthcare employers must comply with most provisions by July 6, 2021, and with training, ventilation, and barrier provisions by July 21, 2021.

Learn more about the COVID-19 Healthcare ETS.

McCraren Compliance offers many opportunities in safety training to help circumvent accidents. Please take a moment to visit our calendar of classes to see what we can do to help your safety measures from training to consulting.

On Safety: What an ETS and National Emphasis Program on COVID-19 are likely to look like

First published by Safety+Health an NSC publication.

A lot of rumors are floating around regarding a potential OSHA emergency temporary standard and a National Emphasis Program enforcement action related to COVID-19. Rumors I’ve heard include that there are two versions of an ETS, that a draft is available for internal review and that OSHA is developing an NEP to accompany the ETS.

I think it’s a bit too soon for OSHA to have a draft ETS done, but perhaps one is very close. Based on past practice with a newly issued standard, OSHA will use an NEP to focus on compliance with any potential ETS. Under an Executive Order signed by President Joe Biden on Jan. 21, an ETS, if deemed necessary by the agency, must be issued by March 15. That ETS likely would follow the OSHA COVID-19 guidelines that were updated and rereleased Jan. 29.

The requirements in the NEP would mirror the requirements of the ETS. The following are likely to be addressed by OSHA in the ETS and NEP, and should be implemented at worksites:

  • A written infectious disease or exposure control program that covers:
    • Physical distancing criteria
    • Sanitation (including vacuuming of workplaces)
    • Personal hygiene
    • Testing and screening – following local guidance
    • Engineering controls, including barriers and ventilation – negative pressure and increased ventilation in areas such as conference rooms
    • Employee and manager training
    • Use of face coverings and respirators (N95 in health care) and use of personal protective equipment (gowns, gloves, faceshields and goggles, as appropriate)
    • Identification of where exposures may occur (site risk assessment)
    • Procedures for communicating to employees
    • Isolation/separation of employees showing any signs or symptoms of exposure
    • Use of Environmental Protection Agency-approved cleaning materials and proper PPE for those doing any cleaning
    • Whistleblower/retaliation protection
    • Recordkeeping
  • A designated program coordinator
  • Process/procedures for handling customers or visitors

Concerning vaccination, OSHA likely will not require employees to be vaccinated and will allow employees to opt out from being vaccinated. This is based on the fact that OSHA has allowed employees to decline hepatitis B vaccines under the standard on bloodborne pathogens (1910.1030). However, some process or procedure for making vaccines available to employees at no cost will likely be included.

As for employer coverage under the scope of an ETS and NEP, OSHA may defer to the Centers for Disease Control and Prevention, as well as use any and all data OSHA is able to acquire (including recent enforcement data). Initially, an NEP will likely focus on hospitals, assisted-living facilities, nursing homes, health clinics, meat processing (beef, pork and poultry), and warehousing/distribution operations where there are a lot of people. An NEP could provide an enforcement opening if there are outbreaks in other industries.

If employers are thinking this will only apply to health care, they would be mistaken. My advice would be for employers to coordinate with their state and local health departments and look at the risk of COVID-19 in their respective areas. If the risk is “medium to high,” they should have an infectious disease or exposure control program in place. The scope could vary for their program based on the level of risk in their community or history of exposure in their workplace. The unknown is what to do where the risk is low? Low-risk establishments should still have an infectious disease or exposure control program, but it could be scaled back – again, companies facing a low risk should coordinate with their state and local health departments – and all efforts should be documented.

This article represents the views of the authors and should not be construed as a National Safety Council endorsement.

Richard Fairfax (CIH, retired 2017) joined OSHA in January 1978 and retired from the agency in 2013. At OSHA, he was a practicing field industrial hygienist, as well as the deputy director and director of enforcement programs. In 2008, Richard served as acting director of construction and, in 2010, was designated deputy assistant secretary – overseeing all field, enforcement and training operations. From 1993 through 2010, Richard wrote an industrial hygiene column entitled, “OSHA Compliance Issues” for the Journal of Occupational and Environmental Hygiene. He still serves on the Editorial Review Board. Richard now works part time for NSC-ORC HSE.

McCraren Compliance offers many opportunities in safety training to help circumvent accidents. Please take a moment to visit our calendar of classes to see what we can do to help your safety measures from training to consulting.