Occupational Safety and Health Administration (OSHA): COVID-19 Emergency Temporary Standards (ETS) on Health Care Employment and Vaccinations and Testing for Large Employers

Occupational Safety and Health

Administration (OSHA): COVID-19

Emergency Temporary Standards (ETS) on

Health Care Employment and Vaccinations

and Testing for Large Employers

Updated March 24, 2022

Congressional Research Service

https://crsreports.congress.gov

R46288

SUMMARY

Occupational Safety and Health Administration

(OSHA): COVID-19 Emergency Temporary

Standards (ETS) on Health Care Employment

and Vaccinations and Testing for Large

Employers

R46288

March 24, 2022

Scott D. Szymendera

Analyst in Disability Policy

On June 21, 2021, the Occupational Safety and Health Administration (OSHA) promulgated an Emergency Temporary

Standard (ETS) for the prevention of the transmission of SARS-CoV-2, the virus that causes COVID-19 in health care

employment settings. On December 27, 2021, OSHA announced that it was withdrawing all provisions of this ETS, with the

exception of certain COVID-19 reporting requirements.

On November 5, 2021, OSHA promulgated a separate ETS that requires employers with 100 or more employees to require

that all employees either be fully vaccinated against COVID-19 by January 4, 2022, or test negative for COVID-19 weekly in

order to work onsite. After earlier actions by the U.S. Courts of Appeals for the Fifth and Sixth Circuits, on January 13, 2022,

the U.S. Supreme Court granted a stay of the OSHA COVID-19 vaccination and testing ETS pending additional judicial

review by the U.S. Court of Appeals for the Sixth Circuit. On January 25, 2022, OSHA announced that it was withdrawing

all provisions of this ETS. The ETS will continue to serve as a proposed permanent standard subject to normal rulemaking.

The Occupational Safety and Health Act of 1970 (OSH Act) gives OSHA the ability to promulgate an ETS that would remain

in effect for up to six months without going through the normal review and comment process of rulemaking. OSHA,

however, has rarely used this authority prior to the COVID-19 pandemic—not since the courts struck down its ETS on

asbestos in 1983.

All employers are required to comply with the general duty clause of the OSH Act as well as existing OSHA standards on

respiratory protection and recordkeeping that may apply to the current COVID-19 pandemic. Pursuant to guidance issued by

OSHA on May 22, 2021, employers are not required to record or report any injuries or illnesses caused by the COVID-19

vaccine. This guidance supersedes earlier OSHA guidance that had required employers to record and report adverse reactions

to the vaccine if vaccination was a condition of employment.

The California Division of Occupational Safety and Health (Cal/OSHA), which operates California’s state occupational

safety and health plan, has had an aerosol transmissible disease (ATD) standard since 2009. This standard includes, among

other provisions, the requirement that employers provide covered employees with respirators, rather than surgical masks,

when these workers interact with ATDs, such as known or suspected COVID-19 cases. In addition, according to the

Cal/OSHA ATD standard, certain procedures require the use of powered air purifying respirators (PAPR). Cal/OSHA has

also promulgated an ETS to specifically address COVID-19 exposure in the workplace. The agency that operates the state

occupational safety health plan in Michigan (MIOSHA) has promulgated an ETS, which was later rescinded and replaced

with the OSHA COVID-19 ETS for health care employers, to specifically address COVID-19 in workplaces. In January

2021, the Virginia state plan (VOSH) promulgated a permanent standard to supersede its ETS, which was later revoked, and

in May 2021, the Oregon state plan (Oregon OSHA) replaced its ETS with a permanent standard.

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OSHA: ETS and COVID-19

Contents

Occupational Safety and Health Administration Standards............................................................. 1

State Plans ................................................................................................................................. 1

Promulgation of OSHA Standards ............................................................................................ 1

Notice and Comment .......................................................................................................... 2

OSHA Rulemaking Time Line ............................................................................................ 3

Judicial Review ......................................................................................................................... 4

Emergency Temporary Standards ............................................................................................. 4

ETS Requirements .............................................................................................................. 4

ETS Duration ...................................................................................................................... 5

OSHA COVID-19 ETS for Health Care Employers—Withdrawn ................................................. 6

Recordkeeping and Reporting ................................................................................................... 7

OSHA ETS on COVID-19 Vaccination and Testing—Withdrawn ................................................. 8

Petitions for Judicial Review and Withdrawal by OSHA ......................................................... 8

Other OSHA Standards Related to COVID-19 ............................................................................... 9

OSHA Respiratory Protection Standard .................................................................................... 9

National Institute for Occupational Safety and Health Certification .................................. 9

Medical Evaluation and Fit Testing .................................................................................. 10

Temporary OSHA Enforcement Guidance on the Respiratory Protection Standard ........ 10

COVID-19 Recordkeeping.......................................................................................................11

Initial OSHA Recordkeeping Guidance ............................................................................ 12

Injuries and Illnesses Caused by the COVID-19 Vaccine Are Not Subject to

Recording and Reporting Requirements ........................................................................ 13

Whistleblower Protections ...................................................................................................... 13

State Occupational Safety and Health Standards .......................................................................... 14

California: Cal/OSHA Aerosol Transmissible Disease Standard ............................................ 15

Cal/OSHA Aerosol Transmissible Disease PPE Requirements ........................................ 15

Cal/OSHA COVID-19 ETS .................................................................................................... 16

Michigan: MIOSHA COVID-19 Emergency Rules—Rescinded ........................................... 16

Oregon: Oregon OSHA COVID-19 Permanent Administrative Rules ................................... 17

Virginia: VOSH COVID-19 Permanent Standard—Revoked................................................. 17

Tables

Table 1. OSHA Rulemaking Process: Estimated Durations of Activities ....................................... 3

Table A-1. OSHA Emergency Temporary Standards (ETS) .......................................................... 18

Table A-2. State Occupational Safety and Health Standards That Apply to COVID-19 ............... 20

Appendixes

Appendix. ...................................................................................................................................... 18

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OSHA: ETS and COVID-19

Contacts

Author Information........................................................................................................................ 21

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Occupational Safety and Health Administration

Standards

Section 6 of the Occupational Safety and Health Act of 1970 (OSH Act) grants the Occupational

Safety and Health Administration (OSHA) of the Department of Labor the authority to

promulgate, modify, or revoke occupational safety and health standards that apply to private

sector employers, the United States Postal Service, and the federal government as an employer. 1

In addition, Section 5(a)(1) of the OSH Act, commonly referred to as the general duty clause,

requires that all employers under OSHA’s jurisdiction provide workplaces free of “recognized

hazards that are causing or are likely to cause death or serious physical harm” to their

employees.2 OSHA has the authority to enforce employer compliance with its standards and with

the general duty clause through the issuance of abatement orders, citations, and civil monetary

penalties. The OSH Act does not cover state or local government agencies or units. Thus, certain

entities that may be affected by Coronavirus Disease 2019 (COVID-19), such as state and local

government hospitals, local fire departments and emergency medical services, state prisons and

county jails, and public schools, are not covered by the OSH Act or subject to OSHA regulation

or enforcement.

State Plans

Section 18 of the OSH Act authorizes states to establish their own occupational safety and health

plans and preempt standards established and enforced by OSHA.3 OSHA must approve state

plans if they are “at least as effective” as OSHA’s standards and enforcement.4 If a state adopts a

state plan, it must also cover state and local government entities, such as public schools, not

covered by OSHA. Currently, 21 states and Puerto Rico have state plans that cover all employers,

and 5 states and the U.S. Virgin Islands have state plans that cover only state and local

government employers not covered by the OSH Act.5 In the remaining states, state and local

government employers are not covered by OSHA standards or enforcement. State plans may

incorporate OSHA standards by reference, or states may adopt their own standards that are at

least as effective as OSHA’s standards. State plans do not have jurisdiction over federal agencies

and generally do not cover maritime workers and private sector workers at military bases or other

federal facilities.

Promulgation of OSHA Standards

OSHA may promulgate occupational safety and health standards on its own initiative or in

response to petitions submitted to the agency by various government agencies, the public, or

employer and employee groups.6 OSHA is not required, however, to respond to a petition for a

1 29 U.S.C. §655. The provisions of the Occupational Safety and Health Act of 1970 (OSH Act) are extended to the

legislative branch as an employer by the Congressional Accountability Act (P.L. 104-1).

2 29 U.S.C. §654(a)(1).

3 29 U.S.C. §667.

4 For additional information on Occupational Safety and Health Administration (OSHA) state plans, see CRS Report

R43969, OSHA State Plans: In Brief, with Examples from California and Arizona.

5 Information on specific state plans is available from the OSHA website at https://www.osha.gov/stateplans.

6 Per Section 6(b)(1) of the OSH Act [29 §655(b)(1)], a petition may be submitted by “an interested person, a

representative of any organization of employers or employees, a nationally recognized standards-producing

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standard or to promulgate a standard in response to a petition. OSHA may also consult with one

of the two statutory standing advisory committees—the National Advisory Committee on

Occupational Safety and Health (NACOSH) or the Advisory Committee on Construction Safety

and Health (ACCSH)—or an ad-hoc advisory committee for assistance in developing a standard.7

Notice and Comment

OSHA’s rulemaking process for the promulgation of standards is largely governed by the

provisions of the Administrative Procedure Act (APA) and Section 6(b) of the OSH Act.8 Under

the APA informal rulemaking process, federal agencies, including OSHA, are required to provide

notice of proposed rules through the publication of a Notice of Proposed Rulemaking in the

Federal Register and to provide the public a period of time to comment on the proposed rules.

Section 7(b) of the OSH Act mirrors the APA in that it requires notice and comment in the

rulemaking process.9 After publishing a proposed standard, the public must be given a period of

at least 30 days to provide comments. In addition, any person may submit written objections to

the proposed standard and may request a public hearing on the standard.

Statement of Reasons

Section 6(e) of the OSH Act requires OSHA to publish in the Federal Register a statement of the

reasons the agency is taking action whenever it promulgates a standard, conducts other

rulemaking, or takes certain additional actions, including issuing an order, compromising on a

penalty amount, or settling an issued penalty.10

Other Relevant Laws and Executive Order 12866

In addition to the APA and OSH Act, other federal laws that generally apply to OSHA rulemaking

include the Paperwork Reduction Act,11 Regulatory Flexibility Act,12 Congressional Review

Act,13 Information Quality Act,14 and Small Business Regulatory Enforcement Fairness Act

(SBREFA).15 Also, Executive Order 12866, issued by President Clinton in 1993, requires

organization, the Secretary of Health and Human Services (HHS), the National Institute for Occupational Safety and

Health, or a state or political subdivision.”

7 The National Advisory Committee on Occupational Safety and Health (NACOSH) was established by Section 7(a) of

the OSH Act [29 U.S.C. §656(a)]. The Advisory Committee on Construction Safety and Health (ACCSH) was

established by Section 107 of the Contract Work Hours and Safety Act (P.L. 87-581). Section 7(b) of the OSH Act

provides OSHA the authority to establish additional advisory committees.

8 The Administrative Procedure Act (APA) is codified at 5 U.S.C. §§500-596. For detailed information on federal

agency rulemaking and the APA, see CRS Report RL32240, The Federal Rulemaking Process: An Overview.

9 29 U.S.C. §655(b).

10 29 U.S.C. §655(e).

11 44 U.S.C. §§3501-3520.

12 5 U.S.C. §§601-612.

13 5 U.S.C. §§801-808.

14 44 U.S.C. §3516 note.

15 5 U.S.C. §601 note. For information on these additional laws that apply to OSHA rulemaking, see U.S. Government

Accountability Office (GAO), Workplace Safety and Health: Multiple Challenges Lengthen OSHA’s Standard Setting,

GAO-12-330, April 2012, Appendix II, at https://www.gao.gov/products/GAO-12-330 (hereinafter cited as GAO-12330, Workplace Safety and Health).

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agencies to submit certain regulatory actions to the Office of Management and Budget (OMB)

and Office of Information and Regulatory Affairs (OIRA) for review before promulgation.16

OSHA Rulemaking Time Line

OSHA rulemaking for new standards has historically been a relatively time-consuming process.

In 2012, at the request of Congress, the Government Accountability Office (GAO) reviewed 59

significant OSHA standards promulgated between 1981 (after the enactments of the Paperwork

Reduction Act and Regulatory Flexibility Act) and 2010.17 For these standards, OSHA’s average

time between beginning formal consideration of the standard—either through publishing a

Request for Information or Advance Notice of Proposed Rulemaking in the Federal Register or

placing the rulemaking on its semiannual regulatory agenda—and promulgation of the standard

was 93 months (7 years, 9 months). Once the Notice of Proposed Rulemaking was published for

these 59 standards, the average time until promulgation of the standard was 39 months (3 years, 3

months).

In 2012, OSHA’s Directorate of Standards and Guidance published a flowchart of the OSHA

rulemaking process on the agency’s website.18 This flowchart includes estimated duration ranges

for a variety of rulemaking actions, beginning with pre-rule activities—such as developing the

idea for the standard and meeting with stakeholders—and ending with promulgation of the

standard. The flowchart also includes an estimated duration range for post-promulgation

activities, such as judicial review. The estimated time from the start of preliminary rulemaking to

the promulgation of a standard ranges from 52 months (4 years, 4 months) to 138 months (11

years, 6 months). After a Notice of Proposed Rulemaking is published in the Federal Register, the

estimated length of time until the standard is promulgated ranges from 26 months (2 years, 2

months) to 63 months (5 years, 3 months). Table 1 provides OSHA’s estimated time lines for six

major pre-rulemaking and rulemaking activities leading to the promulgation of a standard.

Table 1. OSHA Rulemaking Process: Estimated Durations of Activities

Stage

Activities

Estimated Duration

1

Preliminary rulemaking activities

12-36 months

2

Developing the proposed rule

12-36 months

3

Publishing the Notice of Proposed Rulemaking (NPRM)

2-3 months

4

Developing and analyzing the rulemaking record, including public comments

and hearings

6-24 months

Developing the final rule, including Office of Information and Regulatory

Affairs (OIRA) submission

18-36 months

Publishing the final rule (promulgating the new standard)

2-3 months

5

6

Total estimated duration

52-138 months

Estimated duration from NPRM to final rule

26-63 months

Source: Congressional Research Service (CRS) with data from Occupational Safety and Health Administration

(OSHA), Directorate of Standards and Guidance, The OSHA Rulemaking Process, October 15, 2012.

16 Executive Order 12866, “Regulatory Planning and Review,” 58 Federal Register 51735, October 4, 1993.

17 GAO-12-330, Workplace Safety and Health.

18 OSHA, Directorate of Standards and Guidance, The OSHA Rulemaking Process, October 15, 2012.

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Judicial Review

Both the APA and the OSH Act provide for judicial review of OSHA standards. Section 7(f) of

the OSH Act provides that any person who is “adversely affected” by a standard may file, within

60 days of its promulgation, a petition challenging the standard with the U.S. Court of Appeals

for the circuit in which the person lives or maintains his or her principal place of business.19 A

petition for judicial review does not automatically stay the implementation or enforcement of the

standard. However, the court may order such a stay. OSHA estimates that post-promulgation

activities, including judicial review, can take between four and 12 months after the standard is

promulgated.20

Emergency Temporary Standards

Section 6(c) of the OSH Act provides the authority for OSHA to issue an Emergency Temporary

Standard (ETS) without having to go through the normal rulemaking process. OSHA may

promulgate an ETS without supplying any notice or opportunity for public comment or public

hearings. An ETS is immediately effective upon publication in the Federal Register. Upon

promulgation of an ETS, OSHA is required to begin the full rulemaking process for a permanent

standard with the ETS serving as the proposed standard for this rulemaking. An ETS is valid until

superseded by a permanent standard, which OSHA must promulgate within six months of

publishing the ETS in the Federal Register.21 An ETS must include a statement of reasons for the

action in the same manner as required for a permanent standard. State plans are required to adopt

or adhere to an ETS, although the OSH Act is not clear on how quickly a state plan must come

into compliance with an ETS.

ETS Requirements

Section 6(c)(1) of the OSH Act requires that both of the following determinations be made in

order for OSHA to promulgate an ETS:





that employees are exposed to grave danger from exposure to substances or

agents determined to be toxic or physically harmful or from new hazards, and

that such emergency standard is necessary to protect employees from such

danger.

Grave Danger Determination

The term grave danger, used in the first mandatory determination for an ETS, is not defined in

statute or regulation. The legislative history demonstrates the intent of Congress that the ETS

process “not be utilized to circumvent the regular standard-setting process,” but the history is

unclear as to how Congress intended the term grave danger to be defined.22

19 29 U.S.C. §655(f).

20 OSHA, Directorate of Standards and Guidance, The OSHA Rulemaking Process, October 15, 2012.

21 29 U.S.C. §655(c)(2). The statute is not clear on what happens if OSHA is unable to promulgate a permanent

standard within six months. For additional information see the section “ETS Duration” later in this report.

22 U.S. Congress, Senate Labor and Public Welfare, Subcommittee on Labor, Legislative History of the Occupational

Safety and Health Act of 1970 (S. 2193, P.L. 91-596), committee print, prepared by Subcommittee on Labor, 91st

Cong., 1 sess., June 1971, 52-531 (Washington: GPO, 1971), p. 1218.

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In addition, although the federal courts have ruled on challenges to previous ETS promulgations,

the courts have provided no clear guidance as to what constitutes a grave danger. In 1984, the

U.S. Court of Appeals for the Fifth Circuit in Asbestos Info. Ass’n v. OSHA issued a stay and

invalidated OSHA’s November 1983 ETS lowering the permissible exposure limit for asbestos in

the workplace.23 In its decision, the court stated that “gravity of danger is a policy decision

committed to OSHA, not to the courts.”24 The court, however, ultimately rejected the ETS, in part

on the grounds that OSHA did not provide sufficient support for its claim that 80 workers would

ultimately die because of exposures to asbestos during the six-month life of the ETS.

Necessity Determination

In addition to addressing a grave danger to employees, an ETS must also be necessary to protect

employees from that danger. In Asbestos Info. Ass’n, the court invalidated the asbestos ETS for

the additional reason that OSHA had not demonstrated the necessity of the ETS. The court cited,

among other factors, the duplication between the respirator requirements of the ETS and OSHA’s

existing standards requiring respirator use. The court dismissed OSHA’s argument that the ETS

was necessary because the agency felt that the existing respiratory standards were “unenforceable

absent actual monitoring to show that ambient asbestos particles are so far above the permissible

limit that respirators are necessary to bring employees’ exposure within the PEL of 2.0 f/cc.”25

The court determined that “fear of a successful judicial challenge to enforcement of OSHA’s

permanent standard regarding respirator use hardly justifies resort to the most dramatic weapon in

OSHA’s enforcement arsenal.”26

In 2006, the agency considered a petition from the United Food and Commercial Workers

(UFCW) and International Brotherhood of Teamsters (IBT) for an ETS on diacetyl, a compound

then commonly used as an artificial butter flavoring in microwave popcorn and a flavoring in

other food and beverage products. The UFCW and IBT petitioned OSHA for the ETS after the

National Institute for Occupational Safety and Health (NIOSH) and other researchers found that

airborne exposure to diacetyl was linked to the lung disease bronchiolitis obliterans, now

commonly referred to as “popcorn lung.”27 According to GAO’s 2012 report on OSHA’s

standard-setting processes, OSHA informed GAO that although the agency may have been able to

issue an ETS based on the grave danger posed by diacetyl, the actions taken by the food and

beverage industries, including reducing or removing diacetyl from products, made it less likely

that the necessity requirement could be met.28

ETS Duration

Section 6(c)(2) of the OSH Act provides that an ETS is effective until superseded by a permanent

standard promulgated pursuant to the normal rulemaking provisions of the OSH Act. Section

6(c)(3) of the OSH Act requires OSHA to promulgate a permanent standard within six months of

23 727 F.2d at 415, 425-427 (5th Cir. 1984).

24 727 F.2d at 427 (5th Cir. 1984).

25 727 F.2d at 427 (5th Cir. 1984). The ETS mandated a permissible exposure limit (PEL) for asbestos of two asbestos

fibers per cubic centimeter of air (2.0 f/cc).

26 727 F.2d at 427 (5th Cir. 1984).

27 See, for example, Centers for Disease Control and Prevention (CDC): National Institute for Occupational Safety and

Health (NIOSH), NIOSH Alert: Preventing Lung Disease in Workers who Use or Make Flavorings, DHHS (NIOSH)

publication no. 2004-110, December 2003, at https://www.cdc.gov/niosh/docs/2004-110/.

28 GAO-12-330, Workplace Safety and Health.

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promulgating the ETS. As shown earlier in this report, six months is well outside of historical and

currently expected time frames for developing and promulgating a standard under the notice and

comment provisions of the APA and OSH Act, as well as under other relevant federal laws and

executive orders. This dichotomy between the statutory mandate to promulgate a standard and the

time lines that, based on historical precedent, other provisions in the OSH Act might realistically

require for such promulgation raises the question of whether or not OSHA could extend an ETS’s

duration without going through the normal rulemaking process. The statute and legislative history

do not clearly address this question.

OSHA has used its ETS authority sparingly in its history. As shown in Table A-1, in the 11 times

OSHA has issued an ETS, the courts have fully vacated or stayed the ETS in four cases and

partially vacated the ETS in one case.29 In five of the seven ETSs that were not challenged, were

fully or partially upheld by the courts, or are still active, OSHA issued a permanent standard

either within the six months required by the statute or within several months of the six-month

period and always within one year of the promulgation of the ETS.30 Each of these five cases,

however, occurred before 1980, after which a combination of additional federal laws and court

decisions added additional procedural requirements to the OSHA rulemaking process. OSHA did

not attempt to extend the ETS’s expiration date in any of these cases.

Although the courts have not ruled directly on an attempt by OSHA to solely extend the life of an

ETS, in 1974, the U.S. Court Appeals for the Fifth Circuit held in Florida Peach Growers Ass’n v.

United States Department of Labor that OSHA was within its authority to amend an ETS without

going through the normal rulemaking process.31 The court stated that “it is inconceivable that

Congress, having granted the Secretary the authority to react quickly in fast-breaking emergency

situations, intended to limit his ability to react to developments subsequent to his initial

response.”32 The court also recognized the difficulty OSHA may have in promulgating a standard

within six months due to the notice and comment requirements of the OSH Act, stating that in the

case of OSHA seeking to amend an ETS to expand its focus, “adherence to subsection (b)

procedures would not be in the best interest of employees, whom the Act is designed to protect.

Such lengthy procedures could all too easily consume all of the temporary standard’s six months

life.”33

OSHA COVID-19 ETS for Health Care Employers—

Withdrawn

On June 21, 2021, OSHA promulgated an ETS for the prevention of COVID-19 in health care

employment.34 The ETS required a covered employer to create a COVID-19 plan, included

29 Mark A. Rothstein, “Substantive and Procedural Obstacles to OSHA Rulemaking: Reproductive Hazards as an

Example,” Boston College Environmental Affairs Law Review, vol. 12, no. 4 (August 1985), p. 673.

30 For example, OSHA promulgated the Acrylonitrile (vinyl cyanide) ETS on January 17, 1978, and the permanent

standard on October 3, 1978, with an effective date of November 2, 1978. The preamble to the permanent standard

published in the Federal Register does not include information on the status of the ETS during the time between its

expiration and the promulgation of the permanent standard. OSHA, “Occupational Exposure to Acrylonitrile (Vinyl

Cyanide),” 43 Federal Register 45762, October 3, 1978.

31 489 F.2d. 120 (5th Cir. 1974).

32 489 F.2d. at 127 (5th Cir. 1974).

33 489 F.2d. at 127 (5th Cir. 1974).

34 OSHA, “Occupational Exposure to COVID-19; Emergency Temporary Standard,” 86 Federal Register 32376, June

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provisions for the prevention of COVID-19 in the workplace, required new recordkeeping in

COVID-19 cases, and (in certain circumstances) permitted employers to forgo the medical

evaluation and fit-testing requirements of the OSHA respiratory protection standard. The ETS

became effective with its publication in the Federal Register, with covered employers required to

comply with all provisions of the ETS—with the exceptions of the physical distancing, building

ventilation, training, and mini-respiratory-protection provisions—by July 6, 2021. Covered

employers were required to comply with the physical distancing, building ventilation, training,

and mini-respiratory-protection provisions by July 21, 2021.

On December 27, 2021, OSHA announced that it was withdrawing all provisions of the ETS for

health care employers, with the exceptions of certain recordkeeping requirements.35 In the

withdrawal announcement, OSHA cited the fact that six months had elapsed since the

promulgation of the ETS and that the agency was not able to promulgate a permanent standard

during this six-month period. On March 23, 2022, OSHA announced that it was reopening, for 30

days, the comment period for a proposed permanent COVID-19 standard for health care

employers based on the ETS and would hold a virtual public hearing on a proposed permanent

standard on April 27, 2022.36

Recordkeeping and Reporting37

Under the recordkeeping and reporting provisions of the ETS, which remain in force, health care

employers with more than 10 employees must take the following actions:











Establish and maintain a log of COVID-19 cases among employees, regardless of

whether or not they are connected to workplace exposures;38

Provide, by the end of the next business day upon request, the individual

COVID-19 log entry of an employee to that employee and any person who has

the written consent of the employee;39

Provide, by the end of the next business day upon request, a version of the

COVID-19 log with personally identifiable information of employees removed to

any employees or their personal or authorized representatives;40

Provide, by the end of the next business day, all COVID-19 records to OSHA;41

Report to OSHA any work-related COVID-19 fatality within eight hours of

learning of the fatality;42 and

21, 2021.

35 OSHA, Statement on the Status of the OSHA COVID-19 Healthcare ETS, December 27, 2021, at

https://www.osha.gov/coronavirus/ets. In its withdrawal announcement, OSHA states that the recordkeeping and

reporting requirements are authorized by Section 8 of the OSH Act (29 U.S.C. §657) and thus are not subject to the sixmonth time limit of the ETS.

36 OSHA, “Occupational Exposure to COVID-19; Emergency Temporary Standard,” 87 Federal Register 16426,

March 23, 2022.

37 For additional information on OSHA’s COVID-19 recordkeeping and reporting requirements for employers not

covered by the ETS, see the section “COVID-19 Recordkeeping” later in this report.

38 29 C.F.R. §502(q)(2)(ii).

39 29 C.F.R. §502(q)(3)(ii).

40 29 C.F.R. §502(q)(3)(iii).

41 29 C.F.R. §502(q)(3)(iv).

42 29 C.F.R. §502(r)(1)(i).

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

Report to OSHA any work-related COVID-19 inpatient hospitalization within 24

hours of learning of the hospitalization.43

OSHA ETS on COVID-19 Vaccination and Testing—

Withdrawn

On November 5, 2021, OSHA promulgated an ETS on COVID-19 vaccination and testing for all

large employers.44 This ETS required that all employers with 100 or more employees develop

written policies requiring that employees be fully vaccinated against COVID-19. As an

alternative, employers could develop written policies that allow employees to choose to either be

fully vaccinated against COVID-19 or provide proof of weekly negative COVID-19 tests and

wear face coverings while in the workplace. Employers would not be required to pay for COVID19 tests or pay for or provide face coverings. Employers were to develop vaccination and testing

plans within 30 days of the publication of the ETS (December 5, 2021) and enforce the

requirements for testing of unvaccinated employees within 60 days (January 4, 2022).45

While the Federal Register announcement did not specify a specific duration for the COVID-19

ETS, per the OSH Act, an ETS is effective until replaced by a permanent standard within six

months. The publication of the COVID-19 ETS in the Federal Register also included a request

for comments on the ETS and on whether the ETS should become a permanent standard. In the

preamble to the ETS, OSHA provided that all state plans must adopt the ETS within 30 days of its

publication and notify OSHA within 15 days of the actions they plan to take to adopt the ETS.

Petitions for Judicial Review and Withdrawal by OSHA

Petitions for judicial review of the COVID-19 vaccination and testing ETS were filed by 27 states

and numerous employers in the U.S. Courts of Appeals for the First, Fourth, Fifth, Sixth, Seventh,

Eighth, Ninth, Eleventh, and District of Columbia Circuits.46 In addition, labor unions and

employee groups filed petitions for judicial review in the Second, Third, Fourth, Ninth, Tenth,

and District of Columbia Circuits.

On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit ordered that the COVID-19

vaccination and ETS be stayed pending judicial review. This stay was reaffirmed by the court on

November 12, 2021, and applied nationally.47

43 29 C.F.R. §502(r)(1)(ii).

44 OSHA, “COVID-19 Vaccination and Testing; Emergency Temporary Standard,” 86 Federal Register 61402,

November 5, 2021.

45 After the U.S. Court of Appeals for the Sixth Circuit dissolved the stay on the ETS, OSHA announced that it would

not issue citations for noncompliance with any provision of the ETS until January 10, 2022, and for noncompliance

with the testing requirements until February 9, 2022, provided employers are making good faith efforts to comply with

the ETS (OSHA, “Litigation Update,” December 17, 2022, at https://www.osha.gov/coronavirus/ets2#litigation).

46 The states of Louisiana, Mississippi, South Carolina, Texas and Utah (Fifth Circuit); Idaho, Kansas, Kentucky, Ohio,

Oklahoma, Tennessee, and West Virginia (Sixth Circuit); Indiana (Seventh Circuit); Alaska, Arizona, Arkansas, Iowa,

Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming (Eighth Circuit); and

Alabama, Florida, and Georgia (Eleventh Circuit) were plaintiffs in these cases.

47 For additional information on judicial review of the OSHA COVID-19 vaccination and testing ETS, see CRS Legal

Sidebar LSB10658, Fifth Circuit Stays OSHA Vaccination and Testing Standard.

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On November 16, 2021, the United States Judicial Panel on Multidistrict Litigation consolidated

the petitions for judicial review of the COVID-19 vaccination and testing ETS and randomly

assigned these consolidated cases to the U.S. Court of Appeals for the Sixth Circuit.48 On

December 17, 2021, the court dissolved the stay.

On December 17, 2021, numerous states and other petitioners requested that the U.S. Supreme

Court review the ETS by filing an application for a stay of the ETS and an alternative petition for

writ of certiorari before judgment. On January 13, 2022, U.S. Supreme Court granted a stay

pending additional judicial review by the U.S. Court of Appeals for the Sixth Circuit.49

On January 25, 2022, OSHA announced that it was withdrawing the COVID-19 vaccination and

testing ETS but that the ETS would continue to serve as a proposed permanent standard subject to

the normal rulemaking process.50

Other OSHA Standards Related to COVID-19

While the COVID-19 ETS applies only to health care employers, all employers are required to

comply with other OSHA standards that, while not specific to COVID-19, may cover situations

related to the prevention of COVID-19 transmission in the workplace. OSHA may enforce the

general duty clause in the absence of a standard if it can be determined that an employer has

failed to provide a worksite free of “recognized hazards” that are “causing or are likely to cause

death or serious physical harm” to workers.51 In addition, OSHA’s standards for the use of PPE

may apply in cases in which workers require eye, face, hand, or respiratory protection against

COVID-19 exposure.52

OSHA Respiratory Protection Standard

National Institute for Occupational Safety and Health Certification

The OSHA respiratory protection standard requires the use of respirators certified by NIOSH in

cases in which engineering controls, such as ventilation or enclosure of hazards, are insufficient

to protect workers from breathing contaminated air.53 Surgical masks, procedure masks, and dust

masks are not considered respirators. NIOSH certifies respirators pursuant to federal

regulations.54 For nonpowered respirators, such as filtering face piece respirators commonly used

in health care and construction, NIOSH classifies respirators based on their efficiency at filtering

airborne particles and their ability to protect against oil particles. Under the NIOSH classification

system, the letter (N, R, or P) indicates the level of oil protection as follows: N—no oil

48 In Re: Occupational Safety and Health Administration, Interim Final Rule: COVID-19 Vaccination and Testing;

Emergency Temporary Standard, 86 Fed. Reg. 61402, Issued on November 4, 2021, MCP No. 165 (J.P.M.L. November

16, 2021).

49 National Federation of Independent Business, et al. v. Department of Labor, Occupational Safety and Health

Administration, et al. and Ohio, et al. v. Department of Labor, Occupational Safety and Health Administration, et al.

Nos. 21A244 and 21A247 (U.S. January 13, 2022).

50 OSHA, Statement on the Status of the COVID-19 Vaccination and Testing ETS, January 25, 2022, at

https://www.osha.gov/coronavirus/ets2.

51 29 U.S.C. §654(a)(1).

52 29 C.F.R. §§1910.133, 1910.134, and 1910.138.

53 29 C.F.R. §1910.134.

54 42 C.F.R. Part 84.

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protection; R—oil resistant; and P—oil proof. The number following the letter indicates the

efficiency rating of the respirator as follows: 95—filters 95% of airborne particles; 97—filters

97% of airborne particles; and 100—filters 99.7% of airborne particles. Thus an N95 respirator,

the most common type, is one that does not protect against oil particles and filters out 95% of

airborne particles. An R or P respirator can be used in place of an N respirator.

A respirator that is past its manufacturer-designated shelf life is no longer considered to be

certified by NIOSH. However, in response to potential shortages in respirators, NIOSH has tested

and approved certain models of respirators for certified use beyond their manufacturer-designated

shelf lives.55

Respirators designed for certain medical and surgical uses are subject to both certification by

NIOSH (for oil protection and efficiency) and regulation by the FDA as medical devices. In

general, respirators with exhalation valves cannot be used in surgical and certain medical settings

because, although the presence of an exhalation valve does not affect the respirator’s protection

afforded the user, it may allow unfiltered air from the user into a sterile field. On March 2, 2020,

FDA issued an EUA to approve for use in medical settings certain NIOSH-certified respirators

not previously regulated by FDA.56

Medical Evaluation and Fit Testing

The OSHA respiratory protection standard requires that the employer provide a medical

evaluation to the employee to determine if the employee is physiologically able to use a

respirator. This medical evaluation must be completed before any fit testing. For respirators

designed to fit tightly against the face, the specific type and model of respirator that an employee

is to use must be fit tested in accordance with the procedures provided in Appendix A of the

OSHA respiratory protection standard to ensure there is a complete seal around the respirator

when worn.57 Once an employee has been fit tested for a respirator, he or she is required to be fit

tested annually or whenever the model of respirator, but not the actual respirator itself, is

changed. Each time an individual uses a respirator, he or she is required to perform a check of the

seal of the respirator to his or her face in accordance with the procedures provided in Appendix B

of the standard.58 On March 14, 2020, OSHA issued guidance permitting employers to suspend

annual fit testing of respirators for employees that have already been fit tested on the same model

respirator.

Temporary OSHA Enforcement Guidance on the Respiratory Protection

Standard

In response to shortages of respirators and other PPE during the national response to the COVID19 pandemic, OSHA has issued five sets of temporary enforcement guidance to permit the

following exceptions to the respiratory protection standard:

55 NIOSH, Release of Stockpiled Filtering Facepiece Respirators Beyond the Manufacturer-Designated Shelf Life:

Considerations for the COVID-19 Response, February 28, 2020, at https://www.cdc.gov/coronavirus/2019-ncov/

release-stockpiled-N95.html.

56 Letter from RADM Denise M. Hinton, chief scientist, FDA, to Robert R. Redfield, Director, CDC, March 2, 2020, at

https://www.fda.gov/media/135763/download.

57 29 C.F.R. §1910.134 Appendix A. PAPRs that do not require a seal to the user’s face do not need to be fit tested.

58 29 C.F.R. §1910.134 Appendix B.

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1. employers may suspend annual fit testing of respirators for employees that have

already been fit tested on the same model respirator;59

2. employers may permit the use of expired respirators and the extended use or

reuse of respirators, provided the respirator maintains its structural integrity and

is not damaged, soiled, or contaminated (e.g., with blood, oil, or paint);60

3. employers may permit the use of respirators not certified by NIOSH, but

approved under standards used by the following countries or jurisdictions, in

accordance with the protection equivalency tables provided in Appendices A and

B of the enforcement guidance document:

 Australia,

 Brazil,

 European Union,

 Japan,

 Mexico,

 People’s Republic of China, and

 Republic of Korea.61

4. employers may permit the re-use of respirators decontaminated in accordance

with CDC decontamination guidance;62 and

5. employers may permit the use of NIOSH-approved tight-fitting PAPRs in place

of respirators when respirator fit testing is not feasible due to supply issues.63

COVID-19 Recordkeeping

Sections 8(c) and 24(a) of the OSH Act require employers to maintain records of occupational

injuries and illnesses in accordance with OSHA regulations.64 OSHA’s reporting and

59 OSHA, Temporary Enforcement Guidance—Health Care Respiratory Protection Annual Fit-Testing for N95

Filtering Facepieces During the COVID-19 Outbreak, March 14, 2020, at https://www.osha.gov/memos/2020-03-14/

temporary-enforcement-guidance-healthcare-respiratory-protection-annual-fit; and OSHA Expanded Temporary

Enforcement Guidance on Respiratory Protection Fit-Testing for N95 Filtering Facepieces in All Industries During the

Coronavirus Disease 2019 (COVID-19) Pandemic, April 8, 2020, at https://www.osha.gov/memos/2020-04-08/

expanded-temporary-enforcement-guidance-respiratory-protection-fit-testing-n95.

60 OSHA, Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the Coronavirus Disease

2019 (COVID-19) Pandemic, April 3, 2020, at https://www.osha.gov/memos/2020-04-03/enforcement-guidancerespiratory-protection-and-n95-shortage-due-coronavirus. Under this guidance, employers are required to address in

their written respiratory protection plans when respirators are contaminated and not available for use or reuse.

61 OSHA, Enforcement Guidance for Use of Respiratory Protection Equipment Certified under Standards of Other

Countries or Jurisdictions During the Coronavirus Disease 2019 (COVID-19) Pandemic, April 3, 2020, at

https://www.osha.gov/memos/2020-04-03/enforcement-guidance-use-respiratory-protection-equipment-certified-under.

62 OSHA, Enforcement Guidance on Decontamination of Filtering Facepiece Respirators in Healthcare During the

Coronavirus Disease 2019 (COVID-19) Pandemic, April 24, 2021, at https://www.osha.gov/memos/2020-04-24/

enforcement-guidance-decontamination-filtering-facepiece-respirators-healthcare; and CDC, Implementing Filtering

Facepiece Respirator (FFR) Reuse, Including Reuse after Decontamination, When There Are Known Shortages of N95

Respirators, October 19, 2021, at https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/decontaminationreuse-respirators.html.

63 OSHA, Temporary Enforcement Guidance—Tight-Fitting Powered Air Purifying Respirators (PAPRs) Used During

the Coronavirus Disease 2019 (COVID-19) Pandemic, October 2, 2021, at https://www.osha.gov/memos/2020-10-02/

temporary-enforcement-guidance-tight-fitting-powered-air-purifying-respirators.

64 29 U.S.C. §§657(c) and 673(a).

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recordkeeping regulations require that employers with 10 or more employees must keep records

of work-related injuries and illnesses that result in lost work time for employees or that require

medical care beyond first aid.65 Employers must also report to OSHA, within eight hours, any

workplace fatality and, within 24 hours, any injury or illness that results in in-patient

hospitalization, amputation, or loss of an eye. Employers in certain industries determined by

OSHA to have lower occupational safety and health hazards are listed in the regulations as being

exempt from the recordkeeping requirements but not the requirement to report to OSHA serious

injuries, illnesses, and deaths.66 Offices of physicians, dentists, other health practitioners and

outpatient medical clinics are included in the industries that are exempt from the recordkeeping

requirements.

OSHA regulations require the employer to determine if an employee’s injury or illness is related

to his or her work and thus subject to the recordkeeping requirements.67 The regulations provide a

presumption that an injury or illness that occurs in the workplace is work-related and recordable

unless one of the exemptions provided in the regulations applies.68 One of the listed exemptions is

“The illness is the common cold or flu (Note: contagious diseases such as tuberculosis,

brucellosis, hepatitis A, or plague are considered work-related if the employee is infected at

work).”69

Because of the nature of COVID-19 transmission, which can occur outside of work as well as in

the workplace, it can be difficult to determine the exact source of any person’s COVID-19

transmission. Absent any specific guidance, this may make it difficult for employers to determine

if an employee’s COVID-19 is subject to the recordkeeping requirements.

Initial OSHA Recordkeeping Guidance

On April 10, 2020, OSHA issued enforcement guidance on how cases of COVID-19 should be

treated under the recordkeeping requirements.70 This guidance stated that COVID-19 cases were

recordable if they were work-related.

Under this guidance, employers in the following industry groups were to fully comply with the

recordkeeping regulations, including the requirement to determine if COVID-19 cases were

work-related:







health care;

emergency response, including firefighting, emergency medical services, and law

enforcement; and

correctional institutions.

For all other employers, OSHA required employers to determine if COVID-19 cases were workrelated and subject to the recordkeeping requirements only if both of the following two conditions

were met:

65 OSHA’s reporting and recordkeeping regulations are at Title 29, Part 1904, of the Code of Federal Regulations.

66 The list of exempted industries is at Title 29, Subpart B, Appendix A, of the Code of Federal Regulations. States

with state occupational safety and health plans may require employers in these exempted industries to comply with the

recordkeeping requirements.

67 29 C.F.R. §1904.5.

68 29 C.F.R. §1905.5(a).

69 29 C.F.R. §1904.5(b)(2)(viii).

70 OSHA, Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), April 10, 2020, at

https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19.

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1. There was objective evidence that a COVID-19 case may have been workrelated. This could have included, for example, a number of cases developing

among workers who worked closely together without an alternative explanation.

2. The evidence of work-relatedness was reasonably available to the employer. For

purposes of this guidance, examples of reasonably available evidence included

information given to the employer by employees, as well as information that an

employer learned regarding its employees’ health and safety in the ordinary

course of managing its business and employees.

Updated OSHA Recordkeeping Guidance

OSHA issued new guidance, effective May 26, 2020, on recordkeeping of COVID-19 cases.71

This new guidance rescinds the previous guidance issued by OSHA on April 10, 2020. Under this

new guidance, all employers, regardless of type of industry or employment, are subject to the

recordkeeping and reporting regulations for work-related cases of COVID-19. To determine if an

employer has made a reasonable determination that a case of COVID-19 was work-related,

OSHA says it will consider the following factors:







the reasonableness of the employer’s investigation of the COVID-19 case and its

transmission to the employee,

the evidence that is available to the employer, and

the evidence that COVID-19 was contracted at work.

The guidance provides examples of evidence that can be used to demonstrate that a COVID-19

case was or was not work-related, such as if an employee had frequent close contact with

members of the public in an area with ongoing community transmission of COVID-19.

Injuries and Illnesses Caused by the COVID-19 Vaccine Are Not Subject to

Recording and Reporting Requirements

OSHA guidance, issued in the form of questions and answers on the OSHA COVID-19

Frequently Asked Questions webpage on May 22, 2021, provides that the agency will not require

any employers to record or report any injuries or illness resulting from the COVID-19 vaccine

even if vaccination is a condition of employment. This guidance is to remain in effect through

May 2022.72

Whistleblower Protections

Section 11(c) of the OSH Act prohibits any person from retaliating or discriminating against any

employee who exercises certain rights provided by the OSH Act.73 Commonly referred to as the

71 OSHA, Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), May 19,

2020, at https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirusdisease-2019-covid-19.

72 OSHA, COVID-19: Frequently Asked Questions, at https://www.osha.gov/coronavirus/faqs#vaccine. This guidance

supersedes previous guidance, issued on April 21, 2021, that required employers to record and report injuries and

illnesses from the COVID-19 vaccine if the employers required the vaccine as a condition of employment.

73 29 U.S.C. §660(c). OSHA also enforces whistleblower provisions in 22 other federal statutes. Information on statutes

with whistleblower provisions enforced by OSHA is at OSHA, Whistleblower Statutes Summary Chart, October 17,

2009, at https://www.whistleblowers.gov/sites/wb/files/2019-12/WB-Statute-Summary-Chart-10.8-Final.pdf.

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whistleblower protection provision, this provision protects any employee who takes any of the

following actions:









files a complaint with OSHA related to a violation of the OSH Act;

causes an OSHA proceeding, such as an investigation, to be instituted;

testifies or is about to testify in any OSHA proceeding; and

exercises on his or her own behalf, or on behalf of others, any other rights

afforded by the OSH Act.74

Other rights afforded by the OSH Act that are covered by the whistleblower protection provision

include the right to inform the employer about unsafe work conditions; the right to access

material safety data sheets or other information required to be made available by the employer;

and the right to report a work-related injury, illness, or death to OSHA.75 In limited cases, the

employee has the right to refuse to work if conditions reasonably present a risk of serious injury

or death and there is not sufficient time to eliminate the danger through other means.76

In the 116th Congress, the COVID-19 Every Worker Protection Act of 2020 (H.R. 6559/S. 3677)

would have required OSHA to promulgate an ETS and required the ETS and permanent standard

promulgated pursuant to the legislation to expand the protections for whistleblowers. The

following additional activities taken by employees would have granted them protection from

retaliation and discrimination from employers and agents of employers:







reporting to the employer; a local, state, or federal agency; or the media or on a

social media platform the following:

 a violation of the ETS or permanent standard promulgated pursuant to

the legislation,

 a violation of the infectious disease control plan required by the ETS or

permanent standard, or

 a good-faith concern about an infectious disease hazard in the workplace;

seeking assistance from the employer or a local, state, or federal agency with

such a report; and

using personally supplied PPE with a higher level of protection than offered by

the employer.

State Occupational Safety and Health Standards

States have the authority to establish their own occupational safety and health plans and preempt

standards established and enforced by OSHA.77 OSHA must approve state plans if they are “at

least as effective” as OSHA’s standards and enforcement. If a state adopts a state plan, it must

also cover state and local government entities, such as public schools, not covered by OSHA.

State plans may incorporate OSHA standards by reference, or states may adopt their own

74 29 C.F.R. §1977.3. Public sector employees, except employees of the U.S. Postal Service, are not protected by the

whistleblower provision but may be covered by whistleblower provisions in other federal and state statutes.

75 For additional information on other rights covered by the whistleblower protection provision, see OSHA, January 9,

2019, Investigator’s Desk Aid to the Occupational Safety and Health Act (OSH Act) Whistleblower Protection

Provision, pp. 5-7, at https://www.osha.gov/sites/default/files/11cDeskAid.pdf.

76 29 C.F.R. §1977.12(b)(2).

77 29 U.S.C. §667.

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standards that are at least as effective as OSHA’s standards. If a state has a standard that is stricter

than an OSHA standard, the state standard would apply.

Two states, California and Michigan, have issued temporary standards under their state plans that

directly address COVID-19 exposure, with Michigan’s temporary standards rescinded and

replaced by the OSHA COVID-19 ETS for health care employers. In addition, Oregon and

Virginia have issued permanent COVID-19 standards, and California has had a permanent state

standard covering aerosol transmission of diseases since 2009. Table A-2 in the Appendix to this

report provides a summary of these state standards.

California: Cal/OSHA Aerosol Transmissible Disease Standard

The California Division of Occupational Safety and Health (Cal/OSHA), under its state plan,

promulgated its aerosol transmissible disease (ATD) standard in 2009.78 The ATD standard covers

most health care workers (including emergency medical services and police transport or detention

of infected persons) and laboratory workers, as well as workers in correctional facilities,

homeless shelters, and drug treatment programs. Under the ATD standard, SARS-CoV-2, the

virus that causes COVID-19, is classified as a disease or pathogen requiring airborne isolation.

This classification subjects the virus to stricter control standards than diseases requiring only

droplet precautions, such as seasonal influenza.79 The key requirements of the ATD standard

include















written ATD exposure control plan and procedures;

training of all employees on COVID-19 exposure, use of PPE, and procedures if

exposed to COVID-19;

engineering and work practice controls to control COVID-19 exposure, including

the use of airborne isolation rooms;

provision of medical services to exposed employees, including post-exposure

evaluation of employees and treatment and vaccines, if available;

the removal, without penalty to the employees, of exposed employees,

specific requirements for laboratory workers, and

PPE requirements.

Cal/OSHA Aerosol Transmissible Disease PPE Requirements

The Cal/OSHA ATD standard requires that employers provide employees PPE, including gloves,

gowns or coveralls, eye protection, and respirators certified by NIOSH at least at the N95 level

whenever workers







enter or work in an airborne isolation room or area with a case or suspected case;

are present during procedures or services on a case or suspected case;

repair, replace, or maintain air systems or equipment that may contain pathogens;

78 Aerosol Transmissible Diseases, Cal. Code Regs. tit. 8, §5199, available at https://www.dir.ca.gov/title8/5199.html.

The California state plan covers all state and local government agencies and all private sector workers in the state, with

the exception of maritime workers; workers on military bases and in national parks, monuments, memorials, and

recreation areas; workers on federally recognized Native American reservations and trust lands; and U.S. Postal Service

contractors.

79 Cal. Code Regs. tit. 8, §5199 Appendix A.

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







decontaminate an area that is or was occupied by a case or suspected case;

are present during aerosol generating procedures on cadavers of cases or

suspected cases;

transport a case or suspected case within a facility or within a vehicle when the

patient is not masked; or

are working with a viable virus in the laboratory.

In addition, a PAPR with a high-efficiency particulate air (HEPA) filter must be used whenever a

worker performs a high-hazard procedure on a known or suspected COVID-19 case.80 Highhazard procedures are those in which “the potential for being exposed to aerosol transmissible

pathogens is increased due to the reasonably anticipated generation of aerosolized pathogens”—

they include intubation, airway suction, and caring for patients on positive pressure ventilation.81

Emergency medical services (EMS) workers may use N100, R100, or P100 respirators in place of

PAPRs.

Cal/OSHA COVID-19 ETS

On November 19, 2020, the California Occupational Safety and Health Standards Board

approved an ETS to specifically address COVID-19 exposure in the workplace.82 This ETS

became effective on November 30, 2020. The Cal/OSHA ETS applies to all covered employers in

the state, including state and local government entities, and provides for broader protections than

the Cal/OSHA ATD standard. The Cal/OSHA ETS includes specific provisions that apply to

employer-provided housing and transportation. On June 17, 2021, the California Occupational

Safety and Health Standards Board voted to amend the Cal/OSHA ETS to permit fully vaccinated

employees to work indoors without facemasks or face coverings and all employees, regardless of

vaccination status, to work outdoors without facemasks or face coverings. The amended

Cal/OSHA ETS expired on January 14, 2022, but was extended with some revisions through

April 14, 2022.

Michigan: MIOSHA COVID-19 Emergency Rules—Rescinded

On October 14, 2020, the director of the Michigan Department of Labor and Economic

Opportunity, which operates Michigan’s state occupational safety and health plan (MIOSHA),

promulgated emergency rules, with a duration of six months, to address workplace exposure to

COVID-19. On April 10, 2021, the MIOSHA emergency rules were extended for an additional

six months through October 14, 2021. These rules were amended, effective May 24, 2021, based

on updated CDC guidance, and the amended rules were to remain in effect through October 14,

2021.83 On June 22, 2021, the Michigan Department of Labor and Economic Opportunity

rescinded the MIOSHA COVID-19 emergency rules and replaced them with the OSHA COVID80 A PAPR uses a mechanical device to draw in room air and filter it before expelling that air over the user’s face. In

general, PAPRs do not require a tight seal to the user’s face and do not need to be fit tested.

81 Cal. Code Regs. tit. 8, §5199(b).

82 COVID-19 Prevention, Cal. Code Regs. tit. 8, §§3205-3205.4, available at https://www.dir.ca.gov/dosh/coronavirus/

ETS.html.

83 Emergency Rules: Coronavirus 2019 (COVID-19), available at https://www.michigan.gov//documents/leo/

Final_MIOSHA_Rules_705164_7.pdf. The Michigan state plan covers all state and local government agencies and all

private sector workers in the state, with the exception of maritime workers, U.S. Postal Service contractors, workers at

businesses owned or operated by tribal members at Indian reservations, and aircraft cabin crew members.

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19 ETS for health care employers. After OSHA’s withdrawal of the COVID-19 ETS for health

care employers, this ETS is no longer in force in Michigan.

Oregon: Oregon OSHA COVID-19 Permanent

Administrative Rules

On November 6, 2020, the Oregon Department of Consumer and Business Services, which

operates Oregon’s state plan (Oregon OSHA), adopted temporary administrative rules to

specifically address COVID-19 exposures in the workplace. These rules were set to expire on

May 4, 2021. On May 4, 2021, permanent administrative rules became effective.84 These

permanent rules will remain in effect until repealed or revised by Oregon OSHA. Since the

promulgation of the permanent administrative rules, Oregon has adopted multiple temporary

amendments to the rules, some of which were incorporated into permanent amendments to the

administrative rules on December 21, 2021.

Virginia: VOSH COVID-19 Permanent Standard—Revoked

On July 15, 2020, the Virginia Safety and Health Codes Board adopted an ETS to specifically

protect employees from exposure to SARS-CoV-2, the virus that causes COVID-19.85 This ETS,

promulgated under Virginia’s state occupational safety and health plan (VOSH), was the first

state standard to specifically address COVID-19 in the workplace.86 On January 12, 2021, the

Virginia Safety and Health Codes Board voted to promulgate a permanent COVID-19 standard

that supersedes the ETS.87 On March 21, 2022, the Virginia Safety and Health Codes Board

revoked the permanent COVID-19 standard.88

84 Addressing COVID-19 Workplace Risks, Or. Admin. R. 437-001-0744, available at https://osha.oregon.gov/

OSHARules/div1/437-001-0744.pdf. The Oregon state plan covers all state and local government agencies and all

private sector workers in the state, with the exception of maritime workers, private sector establishments within the

boundaries of Indian reservations and federal military reservations, employment at Crater Lake National Park and the

U.S. Department of Energy Albany Research Center, U.S. Postal Service contractors, and aircraft cabin crew members

during flight operations.

85 Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19, 16 Va. Admin. Code §25-220, available

at https://www.doli.virginia.gov/wp-content/uploads/2020/07/RIS-filed-RTD-Final-ETS-7.24.2020.pdf. This ETS was

effective upon publication in a Richmond, VA, newspaper during the week of July 27, 2020.

86 The Virginia state plan covers all state and local government agencies and all private sector workers in the state, with

the exception of maritime workers, U.S. Postal Service contractors, workers at military bases or other federal enclaves

in which the federal government has civil jurisdiction, workers at the U.S. Department of Energy’s Southeastern Power

Administration Kerr-Philpott System, and aircraft cabin crew members.

87 Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19, 16 Va. Admin. Code §25-220,

available at http://www.doli.virginia.gov/wp-content/uploads/2021/01/Final-Standard-for-Infectious-DiseasePrevention-of-COVID-19-16VAC25-220-1.15.2021.pdf. This permanent standard is effective on January 27, 2021.

88 The revocation is effective March 23, 2022, with its publication in the Richmond Times-Dispatch.

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Appendix.

Table A-1. OSHA Emergency Temporary Standards (ETS)

Year

Subject of ETS

Federal Register

Citation of ETS

Result of Judicial

Review

Judicial Review

Case Citation

1971

Asbestos

36 Federal Register

23207 (December 7,

1971)

Not challenged

—

1973

Organophosphorous

pesticides

38 Federal Register

10715 (May 1, 1973);

amended by 38 Federal

Register 17214 (June

29, 1973)

Vacated

Florida Peach Growers

Ass'n v. United States

Department of Labor,

489 F.2d 120 (5th Cir.

1974)

1973

Fourteen carcinogens

38 Federal Register

10929 (May 3, 1973)

Twelve upheld, two

vacated

Dry Color Mfrs. Ass'n v.

Department of Labor,

486 F.2d 98 (3d Cir.

1973)

1974

Vinyl chloride

39 Federal Register

12342 (April 5, 1974)

Not challenged

—

1976

Diving operations

41 Federal Register

24271 (June 15, 1976)

Stayed

Taylor Diving & Salvage

Co. v. Department of

Labor, 537 F.2d 819

(5th Cir. 1976)

1977

Benzene

42 Federal Register

22515 (May 3, 1977)

Stayed

Industrial Union Dep't v.

Bingham, 570 F.2d 965

(D.C. Cir. 1977)

1977

1,2 Dibromo-3chloropropane (DBCP)

42 Federal Register

45535 (September 9,

1977)

Not challenged

—

1978

Acrylonitrile (vinyl

cyanide)

43 Federal Register

2585 (January 17,

1978)

Stay denied

Vistron v. OSHA, 6

OSHC 1483 (6th Cir.

1978)

1983

Asbestos

48 Federal Register

51086 (November 4,

1983)

Stayed

Asbestos Info. Ass'n v.

OSHA, 727 F.2d 415

(5th Cir. 1984)

2021

COVID-19 for health

care employers

86 Federal Register

32376 (June 21, 2021)

Petitions for review

filed on June 24, 2021.

ETS withdrawn by

OSHA on December

27, 2021.

United Food and

Commercial Workers

and American Federation

of Labor and Congress of

Industrial Organizations

v. OSHA, et al., Docket

No. 21-1143 (D.C.

Cir. June 24, 2021)

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OSHA: ETS and COVID-19

Year

2021

Subject of ETS

COVID-19 vaccination

and testing

Federal Register

Citation of ETS

Result of Judicial

Review

Judicial Review

Case Citation

86 Federal Register

61402 (November 5,

2021)

Stay ordered by U.S.

Court of Appeals for

the Fifth Circuit on

November 6, 2021,

and reaffirmed on

November 12, 2021.

Stay dissolved by U.S.

Court of Appeals for

Sixth Circuit on

December 17, 2021.

Stay ordered by U.S.

Supreme Court on

January 13, 2022.

ETS withdrawn by

OSHA on January 25,

2022.

Numerous petitions

for judicial review

consolidated as

National Federation of

Independent Business, et

al. v. Department of

Labor, Occupational

Safety and Health

Administration, et al.,

(Docket No. 21A244),

and Ohio, et al. v.

Department of Labor,

Occupational Safety and

Health Administration, et

al. (Docket No.

21A247), before the

U.S. Supreme Court.

Source: CRS with data from Mark A. Rothstein, “Substantive and Procedural Obstacles to OSHA Rulemaking:

Reproductive Hazards as an Example,” Boston College Environmental Affairs Law Review, vol. 12, no. 4 (August

1985), p. 673.

a. For additional information on judicial review of the OSHA COVID-19 vaccination and testing ETS, see CRS

Legal Sidebar LSB10658, Fifth Circuit Stays OSHA Vaccination and Testing Standard.

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OSHA: ETS and COVID-19

Table A-2. State Occupational Safety and Health Standards That Apply to COVID-19

Covered

Employers

State

Standard

Issued

Expires

California

(Cal/OSHA)

Aerosol

Transmissible

Disease (ATD)a

Health care,

laboratories,

corrections

facilities, homeless

shelters, and drug

treatment centers

July 6, 2009

Permanent

COVD-19

Preventionb

All employers

November 30, 2020

June 17, 2021

(amended)

January 5, 2022

(amended)

April 14, 2022

Michigan (MIOSHA)

Emergency Rules:

Coronavirus 2019

(COVID-19)c

All employers, with

additional rules for

specific industries

October 14, 2020,

April 10, 2021

(extended)

May 24, 2021

(amended)

Rescinded on June

22, 2021, and

replaced with

OSHA COVID-19

ETS for health care

employers, which

expired with

OSHA’s withdrawal

of the ETS

Oregon (Oregon

OSHA)

Addressing COVID19 Workplace

Risksd

All employers, with

additional rules for

specific industries

November 6, 2020

(ETS), reissued

December 11, 2020

May 4, 2021

(permanent

standard)

December 21, 2021

(amended)

Permanente

Virginia (VOSH)

Infectious Disease

Prevention: SARSCoV-2 Virus that

Causes COVID-19f

All employers

July 27, 2020 (ETS),

January 12, 2021

(permanent

standard)

Revoked effective

March 23, 2022

Source: Congressional Research Service (CRS).

a. Available at https://www.dir.ca.gov/title8/5199.html.

b. Available at https://www.dir.ca.gov/dosh/coronavirus/ETS.html.

c. Available at https://www.michigan.gov//documents/leo/Final_MIOSHA_Rules_705164_7.pdf.

d. Available at https://osha.oregon.gov/OSHARules/div1/437-001-0744.pdf.

e. Oregon OSHA is required to consult with state agencies and other stakeholders to determine when the

permanent rules can be amended or repealed, with the first of these consultations to occur no later than

July 2021. After the first consultations, ongoing consultations are required every two months until the rules

are repealed.

f.

Available at http://www.doli.virginia.gov/wp-content/uploads/2021/01/Final-Standard-for-Infectious-DiseasePrevention-of-COVID-19-16VAC25-220-1.15.2021.pdf.

g. Within 14 days of expiration of the governor’s COVID-19 state of emergency and the commissioner of

health’s COVID-19 declaration of public emergency, the Virginia Safety and Health Codes Board must meet

to determine if there is a continued need for the standard.

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OSHA: ETS and COVID-19

Author Information

Scott D. Szymendera

Analyst in Disability Policy

Disclaimer

This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan

shared staff to congressional committees and Members of Congress. It operates solely at the behest of and

under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other

than public understanding of information that has been provided by CRS to Members of Congress in

connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not

subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in

its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or

material from a third party, you may need to obtain the permission of the copyright holder if you wish to

copy or otherwise use copyrighted material.

Congressional Research Service

R46288 · VERSION 42 · UPDATED

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