The Biden administration has just thrown the most its most important assets in the fight against COVID-19 under the bus. Monday evening, OSHA announced “that it is withdrawing the non-recordkeeping portions of the healthcare ETS.” That ETS, or Emergency Temporary Standard, was issued by OSHA last June to protect healthcare workers from contracting COVID-19.
The healthcare ETS was a comprehensive standard requiring covered healthcare employers to conduct a hazard assessment, and develop and implement a written COVID-19 plan to mitigate virus spread. It also required healthcare employers to provide employees with N95 respirators or other personal protective equipment. It contained physical distancing and barrier requirements, as well as requirements for enhanced ventilation and employee training. It also had requirements covering health screening and medical management in addition to paid leave for vaccinations.
The Wrong Decision at the Wrong Time
This decision to pull the rug out from underneath the nation’s millions of nurses, doctors and other healthcare workers on the front lines of the fight against COVID-19 could not have come at a worse time.
Hospitals, filled with mostly unvaccinated people, are being overrun with the Omicron variant while healthcare workers — tired of the never-ending work and death — are burning out and quitting. Worse, they are getting sick and dying at increasing rates.
While the federal government generally does not track workers who get infected or die from COVID contracted on the job, CDC and the Center for Medicaid and Medicare Services (CMS) keep close track of nursing home residents and employees.
Tragically, CDC has just reported that COVID-19 infections among nursing home employees have doubled over the past few weeks, while COVID-19 deaths among nursing home employees have quadrupled. For the week ending December 26, 2021, CDC reported 10,353 infections among nursing home workers- almost a doubling in cases from the 5,312 cases CDC reports for the week ending December 12. CDC reported 58 nursing home worker deaths for the week ending December 26, up from 15 deaths the week ending December 12.
With the healthcare emergency standard no longer in place, how many more nursing home workers and healthcare workers will become infected on the job and die every day?
Now, with the healthcare emergency standard no longer in place, how many more nursing home workers and healthcare workers will become infected on the job and die every day?
And all of this comes at the same time that CDC is reducing isolation guidelines to seven days for healthcare workers and even less time “if there are staffing shortages.”
The AFL-CIO, American Federation of Teachers, National Nurses United, AFSCME, the United Food and Commercial Workers, the United Steelworkers, the Retail, Wholesale and Department Store Union-UFCW, and SEIU issued a strong statement yesterday condemning OSHA’s action:
With the omicron variant surging and no permanent standard in place, our front-line heroes are in grave danger of COVID-19 infection. Workplace COVID-19 outbreaks are exploding; recent data show the number of infections doubled and deaths nearly quadrupled among nursing home workers alone.
The ETS made clear to healthcare employers that proven prevention measures limiting airborne exposures to COVID-19 are absolutely necessary and would be fully enforced to keep workers from getting sick and being removed from work. These include improved ventilation, patient screening and respirators, and providing paid leave when workers are infected and must quarantine.
As the National Nurses United explains, this is a vicious cycle. Quarantine policy are being changed in the face of nursing shortages, but the policy changes from CDC and OSHA just drive more nurses out of the job:
Our employers claim there is a ‘nursing shortage,’ and that’s why they must flout optimal isolation times, but we know there are plenty of registered nurses in this country. There is only a shortage of nurses willing to work in the unsafe conditions created by hospital employers and this government’s refusal to impose lifesaving standards. So this is a vicious cycle where weakening protections just drives more nurses away from their jobs.
Why Was the Healthcare Worker ETS Withdrawn?
OSHA’s statement explains that it withdrew the ETS because “OSHA anticipates a final rule cannot be completed in a timeframe approaching the one contemplated by the OSH Act.”
As I explained last week, Section 6(c)(3) of the Occupational Safety and Health Act (OSHAct) states that the ETS shall serve as a proposal for a final standard that shall be issued “no later than six months after publication of the emergency standard.” But Section 6(c)(2) of the OSHAct states that an ETS is to remain in effect until a final standard is issued. Although this vague language has never been tested in court, OSHA (until Monday night) had considered Section 6(c)(3) as the controlling language.
There is universal agreement that it is impossible for OSHA to go through all of the procedures needed to issue a final standard in 6 months. While the OSHAct is not clear about what happens when OSHA fails to issue a permanent standard in 6 months, most experts agreed that the only “crime” OSHA had committed was missing an impossible deadline.
And generally the Courts are accepting of agencies’ failure to meet impossible deadlines — this one written into law 50 years ago in a much different world. As University of California Hastings Law School Professor Dorit Reiss explained in a Tweet earlier this month, “One little secret of administrative law is that for practically every agency congress sets deadlines that are unrealistic with the level of funding and personnel it provides an agency. Most judges – at least well informed ones – know that, and treat deadlines accordingly.”
Whether it was legal concerns over how extending the healthcare ETS would impact the current legal battle over the vax-or-test standard, or opaque political considerations, or some other invisible problem, one thing is clear: this decision was not made in the interest of healthcare worker safety.
So OSHA’s withdrawal of the healthcare worker standard was a choice, not a requirement. So what happened in the week between the 6 month marker and Monday afternoon? That is not completely clear, but whether it was legal concerns over how extending the healthcare ETS would impact the current legal battle over the vax-or-test standard, opaque political considerations, or some other invisible problem, one thing is clear: this decision was not made in the interest of healthcare worker safety.
What Now For Healthcare Workers?
OSHA warns that “With the rise of the Delta variant this fall, and now the spread of the Omicron variant this winter, OSHA believes the danger faced by healthcare workers continues to be of the highest concern and measures to prevent the spread of COVID-19 are still needed to protect them.”
But don’t worry. The agency urges employers to comply anyway and tries to reassure us that it will “continue to work expeditiously to issue a final standard that will protect healthcare workers from COVID-19 hazards.” And, “As OSHA works towards a permanent regulatory solution, OSHA will vigorously enforce the general duty clause and its general standards, including the Personal Protective Equipment (PPE) and Respiratory Protection Standards.”
This is — to use the official regulatory terminology — bullshit.
A Final OSHA Standard
First, it is not completely clear what “final standard” OSHA is referring to. In 2009, during the H1N1 flu pandemic, OSHA began work on a comprehensive infectious disease standard that would make CDC guidance mandatory and enforceable by OSHA. That standard was not finished by the end of the Obama administration, and the Trump administration relegated it to the back burner of the “long term regulatory agenda.
Is this the permanent standard that OSHA is referring to, or do the mean a permanent COVID-only standard.
In any case, it doesn’t really matter. Because issuing a permanent standard to address the current crisis raging in this nation’s hospitals and nursing homes is a clear non-starter to anyone who knows anything about OSHA rulemaking. Due to the requirements of the OSHAct, additional legislation passed by Congress since 1970, and Executive Orders issued over the past 40 years — as well as OSHA’s tiny and shrinking budget — permanent standard take many years, or even decades, to issue. In 2011, the Government Accountability Office estimated that it takes an average of 7 years to issue a final OSHA standard. But recent major standards, like silica and beryllium, have taken almost 20 years to issue.
Bottom line: there is no possible way that OSHA can issue a permanent COVID standard, or general infectious disease standard in time to meet the current crisis.
Bottom line: there is no possible way that OSHA can issue a permanent COVID standard, or general infectious disease standard in time to meet the current crisis.
Current Standards and the General Duty Clause
The rest of OSHA’s statement — pledging to rely on current standards and the General Duty Clause to protect workers — sounds strikingly similar to testimony by Loren Sweatt, Trump’s Acting OSHA Assistant Secretary, before the House Education and Labor Committee in May 2020:
It is important to recognize OSHA also has existing standards that serve as the basis for its COVID-19 enforcement. Those standards include rules regarding respiratory protection, personal protective equipment (PPE), eye and face protection, sanitation, and hazard communication. In addition to those existing authorities, OSHA also has the ability to take appropriate action against employers under the OSH Act’s “general duty clause.”
The June 2021 version of OSHA convincingly countered that argument in the preamble to the healthcare worker ETS, explaining in great detail that “Through its enforcement efforts to date, OSHA has encountered significant obstacles, revealing that existing standards, regulations, and the OSH Act’s General Duty Clause are inadequate to address the COVID-19 hazard for employees covered by this ETS.”
OSHA has already convincingly argued in the Preamble to the healthcare worker emergency standard that no other solutions are adequate to protect healthcare workers from contracting COVID-19 in the workplace.
OSHA has existing standard covering respiratory protection and workplace sanitation, but the preamble states clearly that “OSHA has determined that its existing standards and regulations are insufficient to adequately address the grave danger posed by COVID-19 to healthcare workers.”
most of the safety measures known to reduce the hazard of COVID-19 transmission are not explicitly required by existing standards: none expressly requires measures such as facilitating vaccination, facemasks, physical distancing, physical barriers, cleaning and disinfection (when appropriate), improved ventilation to reduce virus transmission, isolation of sick employees, minimizing exposures in the highest hazard settings such as aerosol-generating procedures on patients with suspected or confirmed COVID-19, patient screening and management, notification to employees potentially exposed to people with COVID-19, or training on these requirements. For example, although OSHA’s existing Respiratory Protection and PPE standards require respirators and PPE such as gloves and face shields in some settings covered by the ETS, they do not require all of the other layers of protection required by the ETS that are necessary to mitigate the spread of COVID-19 in the workplace.
OSHA’s General Duty Clause, Section 5(a)(1) of the OSHAct, requires employers to maintain a safe workplace and can be used to cite employers who expose employees to hazardous conditions that are not covered by any specific OSHA standard. But in the preamble to the healthcare worker standard, OSHA spends many pages explaining why recent history has shown that “the General Duty Clause Is inadequate to meet the current crisis.”
OSHA has attempted to use the General Duty Clause to protect employees from COVID-19-related hazards, OSHA has found that there are significant challenges associated with this approach and therefore this ETS is necessary to protect the workers covered by this standard from the grave danger posed by COVID-19. While the General Duty Clause can be used in many contexts, in OSHA’s experience over the past year, the clause falls short of the agency’s mandate to protect employees from the hazards of COVID-19 in the settings covered by the standard.
A standard is tFor that reason, OSHA issued the ETS:
As an initial matter, the General Duty Clause does not provide employers with specific requirements to follow or a roadmap for implementing appropriate abatement measures. The ETS, however, provides a clear statement of what OSHA expects employers to do to protect workers, thus facilitating better compliance. The General Duty Clause is so named because it imposes a general duty to keep the workplace free of recognized serious hazards; the ETS, in contrast, lays out clear requirements for COVID-19 plans, facemasks, distancing, barriers, cleaning, personal protective equipment, and training, among other things, and identifies the settings in which they are required. Conveying obligations as clearly and specifically as possible provides employers with enhanced notice of how to comply with their OSH Act obligations to protect workers from COVID-19 hazards.
Specifically, OSHA states that “some important worker-protective elements of the ETS (such as payment for medical removal) would be virtually impossible for OSHA to require and enforce under the General Duty Clause.” OSHA goes on to explain that “OSHA’s burden of proof for establishing a General Duty Clause violation is heavier than for standards violations,” and that the ETS “will enable OSHA to issue more meaningful penalties for willful or egregious violations.”
OSHA is hoping that the short existence of the dearly departed healthcare worker ETS will make it will be easier to enforce many of the standard’s specific elements under the General Duty Clause. We shall see. This is uncharted legal territory.
2021: Vaccinations or Bust
Looking back at the last year of the worker protection efforts of the Biden Administration, it is clear that the administration has mistakenly put all of its marbles on simply vaccinating its way out of the pandemic.
2021 began well for workers. On day two of his administration, President Biden issued an executive order, calling for OSHA to issue a comprehensive COVID-19 Emergency Temporary Standard by March 15 — decisively reversing the Trump administrations workplace laissez-faire worker protection policy that had doomed so many workers to preventable infection and death.
But shortly afterward, the administration did a course correction. Spring came and went and it became increasingly clear that the White House had chosen to focus on vaccinations as the main way out of the pandemic, despite efforts by labor unions and worker protection experts who emphasized that other measures — ventilation, masking, distancing, etc.– were also important to fully protect workers. But to the White House, just simply waiting for everyone to get vaccinated apparently appeared much simpler, faster, cleaner and cheaper than all of those other masking, distancing and ventilation requirements.
To the White House, just simply waiting for everyone to get vaccinated apparently appeared much simpler, faster, cleaner and cheaper than all of those other masking, distancing and ventilation requirements.
In June, OSHA finally issued an Emergency Temporary Standard, but it covered only healthcare workers, leaving everyone else to the whims of OSHA’s General Duty Clause. And despite increasing evidence over the past year — including the devastating Delta and Omicron variants — that vaccinations are important, but not sufficient measure to protect workers, the administration has continued to subordinate other protective measures to the sole goal of getting workers vaccinated. ,
Soon after issuance of the healthcare worker standard, the rise of Delta, combined with political opposition to vaccination, as well as increasing numbers of breakthrough infections made it clear that while vaccinations — and then boosters — were vitally important measures, they were not enough to protect workers. The same requirements that were included in the healthcare worker ETS — respirators/masks, improved ventilation, distancing, medical surveillance, paid quarantines, etc, — are essential to protect all workers.
But instead of broadening protections for all workers, the Administration doubled down on vaccinations, issuing OSHA’s vaccinate-or-test Emergency Temporary Standard in early November, only to see it blocked by a Court of Appeals the next day, and then revived earlier this month — at least until the most conservative, pro-business Supreme Court in almost a century makes a final determination.
And should the Supreme Court decide to kill OSHA’s vax-or-test standard (and the CMS regulation that requires healthcare workers to be vaccinated in facilities that participate in Medicare or Medicaid), healthcare workers will be left with no effective legal protections. Workers will be back to square on in the face of a much more infectious variant.
As the AFL-CIO’s statement concluded:
Our message to every employer is this: While vaccines and boosters help prevent serious disease and death, COVID-19 is life-threatening, especially to healthcare and medical workers, and all proven protective measures must remain in place. The administration’s pursuit of a broader infectious disease standard, something we’ve championed for years, will empower us to fight the next pandemic. But to protect workers now, we need to build on the emergency COVID-19 standard by making it permanent, not scrapping it altogether.
An Agency That’s Lost its North Star?
What we are left with is the nation’s worker protection agency — and entire administration — that appears not to care about workers or even understand what it’s doing from day to day. Having helped run OSHA for 8 years, it pains me to say this, but the agency seems to have lost direction when it comes to protecting workers against COVID.
I know the leadership and many of the staff, so I know that they are hard-working knowledgeable professionals who have dedicated their lives to ensuring worker safety. In other words, it seems clear that the leadership of OSHA is no longer steering the workplace safety and health ship. And those steering the ship have little knowledge, interest or expertise in worker protection.
OSHA’s leadership and staff are hard-working knowledgeable professionals who have dedicated their lives to ensuring worker safety. It seems clear that the leadership of OSHA is no longer steering the workplace safety and health ship.
Carrying the analogy further, this is a ship that will never reach port. It zigs. It zags. It drifts. And now it seems to be steaming full speed ahead, back in the direction from where it set sail.
First the President commits to a comprehensive standard covering all workers, then the siren call of vaccination lures the White House into protecting only healthcare workers and ignoring protection of most “essential workers”. Then, betrayed by the vaccination panacea, the administration turns to vaccine mandates (or vax-or-test mandates), but shuts out at-risk workers in small businesses. Old arguments about the inadequacy of existing standards and the General Duty Clause are declared inoperative, while a lengthy years (or decades) long regulatory process has emerged as the new remedy.
Meanwhile, behind all of the political and legal machinations, workers continue to go to work without sufficient legally enforceable protections, and our nation’s front line healthcare workers face increasing rates of burnout, illness and death with far less protection than they had a few days ago.
As one poet sums it up: “Things fall apart; the center cannot hold. Mere anarchy is loosed upon the world.”
Can anyone blame workers for losing faith that our federal government cares about their lives?