OSHA’s rulemaking hearing for a permanent standard to protect healthcare workers from COVID-19 begins this morning at 9:30 a.m. The hearing will be conducted remotely and you can view today’s hearing here. The hearing is currently scheduled to last 4 days: the rest of this week — April 27, 28, 29 and Monday, May 2. While the healthcare worker Emergency Temporary Standard issued last June forms the official proposal for a permanent standard, OSHA also requested further comment in a Federal Register notice issued March 23.
Tune in to the hearing. As former OSHA head David Michaels always tells his George Washington University public health students, “OSHA regulatory hearings are like Halley’s Comet. They don’t come around very often, but when they do, they’re something to see.”
“OSHA regulatory hearings are like Halley’s Comet. They don’t come around very often, but when they do, they’re something to see.” – Dr. David Michaels
Those In Favor of Protecting Healthcare Workers
Numerous labor unions and public health associations are scheduled to testify in support of a strong standard, Healthcare workers will also testify as part of their union delegatinos.
All supporters emphasize the need for OSHA to recognize that COVID-19 is easily transmitted through airborne exposure and requirements for respiratory protection (and improved ventilation) needs to reflect that. It is only recently that the Centers for Disease Control and Prevention has half-heartedly recognized airborne transmission and the need for healthcare workers to use N95 or better respirators, rather than surgical masks that provide minimal protection.
A group of more than 100 public and occupational health experts (including me) sent a comment letter to OSHA supporting the establishment of a strong and permanent standard. As their press releases describes,
Explaining that healthcare workers remain at high risk for COVID-19, the experts call on OSHA to require measures that would be more protective than the Emergency Temporary Standard (ETS) that OSHA issued last June. The letter states that the original OSHA ETS had failed to fully recognize and protect healthcare workers against aerosol exposure which left many healthcare workers without fully protective respiratory protection “putting them, their co-workers, patients and their families at risk of exposure, illness, and death.”
Specifically, the experts’ comments called for
- Protecting healthcare workers from exposure to airborne particles, including requirements for employers to follow the hierarchy of controls, including engineering controls, to provide clean indoor air involving ventilation, filtration and/or application germicidal ultraviolet technology;
- Respiratory protection programs requiring NIOSH-certified respirators;
- Paid sick leave (medical removal benefits);
- Enhanced recording and reporting of cases.
The experts’ letter, along with the comments of labor unions and many public health associations, also oppose OSHA’s proposal to provide a “safe harbor” to employers who comply with CDC guidance instead of the OSHA standard, pointing out “the inadequacy of many of CDC’s recommendations” and the fact that
some of CDC’s recommendations are not set through a transparent process and often prioritize political considerations and supply considerations over the best available scientific evidence about how best to protect workers….The extended delay in CDC’s recognition of the importance of airborne transmission of SARS-CoV-2, despite robust evidence, is a prime example of CDC’s failure to update its recommendations to incorporate the best available scientific evidence.
“The extended delay in CDC’s recognition of the importance of airborne transmission of SARS-CoV-2, despite robust evidence, is a prime example of CDC’s failure to update its recommendations to incorporate the best available scientific evidence.” — Public health experts’ comments to OSHA
Dr. David Michaels, who co-authored the comments (along with former AFL-CIO health and safety director Peg Seminario) is scheduled to testify at 1:00 on April 28. Seminario will testify as part of the AFL-CIO delegation at 9:30 this morning.
The AFL-CIO documented that COVID-19 presents a significant risk to health care workers, a fact that justifies an OSHA standard. The labor federation also documents the high toll that health care workers have paid during the pandemic.
And the crisis for health care workers has not passed. Although the numbers are severely undercounted, thousands of health care workers have died due to work-related COVID-19 infections, and healthcare workers remain at high risk. While worker infection status in acute care hospitals is severely underreported, there is much better information on nursing homes.
CDC reports that among nursing home workers in skilled nursing facilities, a total of 339,753 cases were reported with a peak in infections in mid-January (week ending January 16, 2022) when 68,861 COVID-19 cases were reported among nursing home staff for one week. The spike in infections among nursing home workers during the omicron surge was fast and enormous. In just a three-week period, infections among nursing home workers increased more than 500%—from 13,350 infections for the week ending December 26, 2021 to the nearly 69,000 weekly infections at the peak in mid-January. This was the fastest, exponential increase among these workers since early in the pandemic.
The AFL also notes that workers need not only workforce protections, based on the industrial hygiene hierarchy of controls, but also the right to get trained, participate in creating a program as well as receive information on infections in their workplace.
The AFL-CIO is scheduled to testify at 9:30 this morning.
The American Public Health Association notes that “a uniform national standard from OSHA even more urgent” considering “the fact that 26 states have passed laws stripping state and local public health officials of the power to enforce public health mandates such as vaccination, quarantine, and masking. This puts public health decision making into the hands of elected officials instead of qualified, independent, science trained public health officials.” APHA is scheduled to testify at 9:30 on April 28.
Dr. Robert Harrison, Clinical Professor of Medicine at the University of California, San Francisco, responded to the tired old corporate criticism that OSHA standards are are bureaucratic, inflexible and unnecessary, pointing out that
The California regulatory experience in health care has proven that OSHA standards can be sensible, clear and drive better performance on the ground for worker protection. The overall goal of an OSHA standard is not the “gotcha” principle, as it will always be true that there will never be enough OSHA workplace inspections to visit the tens of thousands of health care employers. Rather, the California OSHA standards lay out a clear roadmap with enough specificity that employers can and largely follow follow requirements to protect workers from harm. The most recent experience with the California [airborne transmissible disease standard] and COVID ETS standards has shown that OSHA standards are feasible, are well understood by both employers and employees and protect workers from infection and exposure.
Harrison is scheduled to testify at 1:00 on April 28.
Those Who Oppose Safe Workplaces for Healthcare Workers
In addition to the American Hospital Association, the Federation of American Hospitals, Washington State Hospital Association, North Carolina Healthcare Association and Kaiser Permanente oppose the standard or advocate for a weak standard. The AHA asserts:
With the constantly evolving, science-based CDC guidance and recommendations, CMS’ vaccination requirement and existing OSHA general standards, we strongly believe that an inconsistent and overly strict OSHA COVID-19 health care standard is not necessary, would cause confusion and will ultimately lower hospital employees’ morale and worsen unprecedented personnel shortages in hospitals,”
Given the devastating morale problems plaguing health care workers due to COVID-19 illnesses and deaths due to unsafe working conditions, does the American Hospital Association really expect OSHA to believe that a standard designed to protect their lives will lower employees’ morale?