In acknowledged underestimates, the Centers for Disease Control and Prevention (CDC) reports tens of thousands of healthcare workers have acquired COVID-19 and hundreds have died. With CDC guidelines nonregulatory, politicized, and too often ignored during the pandemic, the question arises: Could an enforceable infectious disease standard by the Occupational Safety and Health Administration (OSHA) have saved lives during the pandemic?
David Michaels, PhD, former OSHA chief during the Obama administration, told Hospital Employee Health, “There is no question that an OSHA infectious disease standard would prevent illnesses and deaths among healthcare workers.”1
Michaels moved the standard forward to the rulemaking agenda by the end of his tenure. OSHA’s infectious disease standard was in the legislative pipeline, but it fell into political limbo after the 2016 presidential election led to a new antiregulatory environment. The recently proposed Heroes Act (H.R. 6800) would require OSHA to issue an emergency temporary standard to protect workers in hospitals, meatpacking plants, retail stores, and other workplaces during the pandemic. Although stuck in the Senate, the proposed law also would prohibit employers from retaliating against workers for sounding the alarm about unsafe conditions.2
As originally proposed, the standard would include a Worker Infection Control Plan (WICP). Employers would have been required to create a WICP for those at risk of occupational exposures to infectious diseases during patient care and other duties. In a provision that seems particularly germane to the situation, the standard called for worker protections to be reviewed and updated to meet the threat of new and emerging infectious diseases.
With President-elect Joe Biden emphasizing unions and worker safety during his campaign, labor advocates anticipate the OSHA standard and other occupational protections will be priorities under the new administration. Hospital groups have opposed OSHA regulations as burdensome, and the agency itself has said in recent congressional testimony that it currently has sufficient regulatory authority under its general duty clause to protect healthcare workers from COVID-19.3
In that regard, OSHA recently announced $2.8 million in fines have been levied based on 179 inspections for violations relating to coronavirus as of Nov. 5, 2020.4 OSHA inspections have resulted in the agency citing employers for violations, including failures to:
- Create a written respiratory protection program;
- Provide respirator fit-testing, medical evaluations, and training on the proper use of PPE and respirators;
- Report an injury, illness, or fatality;
- Record an injury or illness on OSHA recordkeeping forms.4
Nevertheless, the Washington State Nurses Association and several other labor unions recently sued OSHA, demanding an infectious disease standard to protect healthcare workers.
“OSHA lacks a standard addressing occupational exposure to infectious diseases transmitted by contact (such as MRSA or norovirus), droplets (such as H1N1 and SARS-CoV-2), or the air (such as measles),” the lawsuit alleges. “In fact, OSHA currently has only one standard that directly addresses workplace infectious diseases: the Bloodborne Pathogens standard (29 CFR § 1910.1030), which covers only infectious diseases transmitted by blood. … OSHA has a duty to issue a safety and health standard to protect healthcare workers from the significant risk of harm from infectious diseases. The record of the risk to public health from HAIs [healthcare-acquired infections], even in ordinary times, is clear. The risks are especially high during pandemics like H1N1 in 2009 and now COVID-19.”5
- Evans G. Nurses call for OSHA regulation as pandemic takes bitter toll. Hospital Employee Health, August 2020. https://www.reliasmedia.com/articles/146517-nurses-call-for-osha-regulation-as-pandemic-takes-bitter-toll
- HR 6800. The Heroes Act. 116th Congress (2019-2020). Last action July 23, 2020. https://www.congress.gov/bill/116th-congress/house-bill/6800
- Occupational Safety and Health Administration. Testimony of Principal Deputy Assistant Secretary Loren Sweatt before the House Education and Labor’s Workforce Protections Subcommittee on OSHA’s efforts to protect workers from COVID-19. May 28, 2020. https://www.osha.gov/news/testimonies/05282020
- Occupational Safety and Health Administration. Updated: U.S. Department of Labor’s OSHA announces $2,851,533 in coronavirus violations. Nov. 17, 2020. https://www.osha.gov/news/newsreleases/national/11172020
- In Re American Federation of Teachers; American Federation of State; County and Municipal Employees; Washington State Nurses Association; United Nurses Association of California v. Occupational Safety and Health Administration; United States Department of Labor. Petition for Writ of mandamus, United States Court of Appeals for the Ninth Circuit. Oct. 29, 2020. https://democracyforward.org/wp-content/uploads/2020/10/AFT-et.al-v.-OSHA_Petition-asFILED_10.29.20.pdf