[Federal Register Volume 90, Number 9 (Wednesday, January 15, 2025)]
[Rules and Regulations]
[Pages 3665-3667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-00632]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket No. OSHA-2020-0004]
RIN 1218-AD36
Occupational Exposure to COVID-19 in Healthcare Settings
AGENCY: Occupational Safety and Health Administration (OSHA), Labor
ACTION: Final rule; termination of rulemaking
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SUMMARY: OSHA is terminating its COVID-19 rulemaking.
DATES:
Effective dates: The termination of the rulemaking is effective
January 15, 2025.
Compliance dates: There are no relevant compliance dates.
ADDRESSES: In accordance with 28 U.S.C. 2112(a), the Agency designates
Edmund C. Baird, Associate Solicitor of Labor for Occupational Safety
and Health, Office of the Solicitor, U.S. Department of Labor, to
receive petitions for review of this final agency action. Service can
be accomplished by email to zzSOLCovid19ruleterm@dol.gov.
Docket: To read or download comments or other material in the
docket, go to Docket No. OSHA-2020-0004 at www.regulations.gov index;
however, some information (e.g., copyrighted material) is not publicly
available to read or download through that website. All comments and
submissions, including copyrighted material, are available for
inspection through the OSHA Docket Office. Documents submitted to the
docket by OSHA or stakeholders are assigned document identification
numbers (Document ID) for easy identification and retrieval. The full
Document ID is the docket number plus a unique four-digit code. For
example, the Document ID number for OSHA's COVID-19 Healthcare ETS is
OSHA-2020-0004-1033. Some Document ID numbers also include one or more
attachments.
When citing exhibits in the docket, OSHA includes the term
``Document ID'' followed by the last four digits of the Document ID
number. For example, document OSHA-2020-0004-1033 would appear as
Document ID 1033. Citations also include the attachment number or other
attachment identifier, if applicable, page numbers (designated ``p.''
or ``Tr.'' for pages from a hearing transcript), and in a limited
number of cases a footnote number (designated ``Fn.''). In a citation
that contains two or more Document ID numbers, the Document ID numbers
are separated by semi-colons (e.g., ``Document ID 1231, Attachment 1,
p. 6; 1383, Attachment 1, p. 2'').
This information can be used to search for a supporting document in
the docket at www.regulations.gov. Contact the OSHA Docket Office at
(202) 693-2350 (TTY number: 877-889-5627) for assistance in locating
docket submissions.
FOR FURTHER INFORMATION CONTACT:
For press inquiries: Contact Frank Meilinger, Director, Office of
Communications, Occupational Safety and Health Administration, U.S.
Department of Labor; telephone (202) 693-1999; email oshacomms@dol.gov.
For general information: Contact Andrew Levinson, Director,
Directorate of Standards and Guidance, Occupational Safety and Health
Administration, U.S. Department of Labor; telephone (202) 693-1950;
email: osha.dsg@dol.gov.
For copies of this Federal Register document: Electronic copies of
this Federal Register notice are available at http://www.regulations.gov. This notice, as well as news releases and other
relevant information, are also available at OSHA's web page at
www.osha.gov.
SUPPLEMENTARY INFORMATION: On June 21, 2021, OSHA issued an Emergency
Temporary Standard (ETS) to protect workers in healthcare settings,
finding that COVID-19 presented a grave danger to those workers and
that the ETS was necessary to protect them (86 FR 32376).\1\ As of that
date, nearly a half million healthcare workers had contracted COVID-19
and more than 1600 of those workers had died. Under the Occupational
Safety and Health Act of 1970 (OSH Act or Act) (29 U.S.C. 655(c)(3)),
the ETS served as a proposed rule for a rulemaking on occupational
exposure to COVID-19 in healthcare settings. OSHA is now terminating
the rulemaking via this rule because the public health emergency is
over and any ongoing risk by COVID-19 or other coronavirus hazards
faced by healthcare workers would be better addressed at this time in a
rulemaking addressing infectious diseases more broadly.
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\1\ OSHA defined the grave danger as workplace exposure to SARS-
CoV-2, the virus that causes the development of COVID-19. COVID-19
is the disease that can occur in people exposed to SARS-CoV-2, and
that leads to the health effects that were described in the ETS (see
86 FR 32381, FN 4). As in the ETS, OSHA uses the two terms
interchangeably in this notice because it is consistent with common
usage in the regulated community.
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Events Leading to This Agency Action Terminating the Rulemaking
OSHA issued the healthcare ETS under section 6(c) of the Act (29
U.S.C. 655(c)) (Occupational Exposure to COVID-19; Emergency Temporary
Standard, 86 FR 32376 (June 21, 2021), codified at 29 CFR 1910.502,
1910.504-.505, and 1910.509). Pursuant to section 6(c)(3) (29 U.S.C.
655(c)(3)), an ETS initiates rulemaking proceedings under section 6(b)
and the ETS ``as published shall also serve as a proposed rule for the
proceeding.'' (Id. Sec. 655(c)).
When the COVID-19 pandemic started in 2020, OSHA initially
responded to COVID-19 in the workplace by creating guidance documents
and using its existing enforcement tools. The agency pursued a two-
pronged strategy: (1) enforcing existing standards such as those for
Personal Protective Equipment (PPE), Respiratory Protection, and
Bloodborne Pathogens, as well as the General Duty Clause of the OSH Act
(29 U.S.C. 654(a)(1)), and (2) working proactively to assist employers
by developing guidance documents addressing how to reduce occupational
COVID-19 hazards.
On January 21, 2021, President Biden issued Executive Order 13999
directing OSHA to consider whether ``any emergency temporary emergency
standards on COVID-19'' were necessary (86 FR 7211). On June 21, 2021,
the agency promulgated the COVID-19 ETS applicable to healthcare.\2\
Because, under the OSH Act, this ETS also served as a proposal for a
final standard, OSHA received 481 unique public comments on the ETS
during the first open comment period between June 2021 and August 2021
(Docket OSHA-2020-0004).\3\
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\2\ In the same June 2021 Federal Register document in which
OSHA implemented this ETS, OSHA also promulgated recordkeeping and
reporting provisions pursuant to section 8(c)(1)-(3) (29 U.S.C.
657(c)(1)-(3)). For these, OSHA invoked an independent exemption
from APA notice and comment requirement to make permanent the COVID-
19 log and reporting provisions at 29 CFR 1910.502(q)(2)(ii),
(q)(3)(ii)-(iv), and (r). OSHA found good cause under 5 U.S.C.
553(b)(3)(B) to forgo notice and comment given the grave danger
presented by the pandemic. (See 86 FR 32559). Those requirements are
therefore permanent and remain in effect.
\3\ OSHA extended the original comment period by an additional
30 days to give stakeholders more time to opine on the ETS and a
possible permanent standard (86 FR 38232).
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Following the issuance of the ETS, OSHA received petitions urging
the agency to adopt a permanent standard to protect healthcare workers
from COVID-19 from the American Nurses Association, the International
Association of Fire Chiefs, the Service Employees International Union
(SEIU), and National Nurses United (NNU) (Document ID 1518; 1519; 1521;
1522; 1524; 2175). Over forty unions and organizations supported the
NNU petition urging OSHA to adopt a permanent standard for COVID-19 in
healthcare establishments and to also issue a separate, broader
Infectious Diseases standard.
On December 27, 2021, OSHA announced on its website that it would
be unable to finalize a COVID-19 standard for healthcare ``in a
timeframe approaching the one contemplated by the OSH Act'' (see
Document ID 2491) and since the end of December 2021, OSHA has not
enforced the ETS beyond the recordkeeping and reporting requirements in
29 CFR 1910.502(q) and (r). Instead, OSHA has relied on existing
standards and the General Duty Clause of the OSH Act (29 U.S.C. 654(a))
to protect workers in workplaces that were previously covered by the
ETS. OSHA emphasized in the website announcement that the agency
``continues to work expeditiously to issue a final standard that will
protect healthcare workers from COVID-19 hazards and will do so as it
also considers its broader infectious disease rulemaking.''
On January 5, 2022, several labor organizations, including NNU,
filed a petition with the United States Court of Appeals for the
District of Columbia Circuit seeking a writ of mandamus compelling OSHA
to issue a permanent COVID-19 standard for healthcare within 30 days
and to continue enforcement of the ETS in the meantime. On August 26,
2022, the court issued a decision denying NNU's petition in part and
dismissing it in part for lack of jurisdiction, while also noting that
the ETS would continue to serve as a proposed rule for the rulemaking
proceedings (In re National Nurses United, 47 F.4th 746, 754 (D.C. Cir.
2022)). The court determined that while the OSH Act created an
obligation for OSHA to follow the issuance of an ETS with a notice and
comment rulemaking process, ``that process may result in a
determination that no permanent standard is necessary.'' (Id.)
While the NNU case was ongoing, OSHA continued its efforts to
finalize a permanent COVID-19 standard for healthcare. However, after
the ETS comment period closed on August 20, 2021, the available COVID-
19 scientific literature, approaches to controls, and CDC guidance
evolved significantly, based in part on the emergence of the Delta and
Omicron variants. OSHA determined that it needed to reopen the record
to ensure that the agency relied on the best available evidence and
that the public had an opportunity to provide and comment on new data
and information. On March 23, 2022, OSHA published a Federal Register
notice announcing a limited re-opening of the comment period for 30
days (until April 22, 2022) and announcing public hearings beginning on
April 27, 2022 (87 FR 16426, March 23, 2022).
The reopening of the comment period and the hearing and post-
hearing comment period allowed OSHA to revise and provide notice of
potential changes to policy options and regulatory provisions to
reflect up-to-date science, control approaches, and perspectives, as
well as supporting analyses required for a final standard. At the
closing of the comment period on April 22, 2022, OSHA had received
approximately 250 additional comments.
The public hearings were held April 27-29 and May 2, 2022.
Participating stakeholders included labor organizations, workers,
employers, industry/trade groups, professional associations, public
health experts, and
concerned individuals, with some 39 organizations or individuals
presenting their perspectives in the hearings (Document ID 2153; 2156;
2168; 2171). The presiding Administrative Law Judge permitted
stakeholders to submit post-hearing comments and briefs until May 23,
2022. OSHA received nearly 150 additional comments from stakeholders
during the post-hearing comment period. In total, over the three
different comment periods, OSHA received 873 timely public comments on
this rulemaking.
OSHA submitted a draft final COVID-19 rule to the White House
Office of Management and Budget (OMB) on December 7, 2022. On April 10,
2023, President Biden signed into law House Joint Resolution 7, which
terminated the national emergency related to the COVID-19 pandemic.
While the COVID-19 draft remained under review at OMB, OSHA pushed
ahead with development of an Infectious Diseases standard for
healthcare workers.
Basis for Terminating the Rulemaking
OSHA always intended for an Infectious Diseases standard for
healthcare workers to supplant any COVID-19 healthcare standard, and
that a COVID-19 standard would be an interim measure pending the
completion of the Infectious Diseases healthcare standard. OSHA
concludes that the most effective and efficient use of agency resources
to protect healthcare workers from occupational exposure to COVID-19,
as well as a host of other infectious diseases, is to focus its
resources on the completion of an Infectious Diseases rulemaking for
healthcare rather than a disease-specific standard.
In addition, even if OSHA were to finalize a separate COVID-19
standard at this time, the agency would need to conduct an additional
review and possibly supplement the record again before it could issue a
final rule to ensure the rule reflects the most current science. For
example, guidance from the Centers for Disease Control and Prevention
and other experts has changed since OSHA submitted its draft rule to
OMB. Moreover, focusing on a separate COVID-19 standard would likely
consume agency staff time and other agency resources in a way that
would inhibit the promulgation of a more broadly protective Infectious
Diseases healthcare standard. For these independently sufficient
reasons, OSHA is terminating this rulemaking. In sum, the agency will
have a greater impact at this time by adopting a standard that would
provide protections to healthcare workers from occupational exposure to
many different infectious diseases, including COVID-19 and future
variants.
List of Subjects in 29 CFR Part 1910
COVID-19, Disease, Health facilities, Health, Health care,
Incorporation by reference, Occupational health and safety, Public
health, Quarantine, Reporting and recordkeeping requirements,
Respirators, SARS-CoV-2, Telework, Vaccines, Viruses.
Authority and Signature
Douglas L. Parker, Assistant Secretary of Labor for Occupational
Safety and Health, authorized the preparation of this document under
the authority granted by sections 4, 6, and 8 of the Occupational
Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); 5 U.S.C. 553,
Secretary of Labor's Order No. 8-2020 (85 FR 58393), and 29 CFR part
1911.
Signed at Washington, DC.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2025-00632 Filed 1-13-25; 11:15 am]
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