OSHA rulemaking is never easy. Even for an infectious disease that continues to kill over 400 Americans every day.
OSHA is expected to soon issue a permanent standard to protect healthcare workers from COVID-19. The standard, coming 2 1/2 years after the COVID-19 pandemic started, will replace OSHA’s Emergency Temporary Standard that was issued in June 2021 and effectively rescinded by OSHA 6 months later. OSHA is now left with only the slower, legally burdensome General Duty Clause, and its housekeeping and respirator standards to enforce safe working conditions for healthcare workers exposed to COVID-19 hazards.
To re-implement protection for healthcare workers, OSHA announced last January that it would issue a COVID-19 healthcare worker standard within 6-9 months, but sticking to predicted regulatory deadlines is almost unheard of for OSHA, despite its best intentions.
And CDC isn’t helping.
CDC Adds Complications
In any regulatory action involving infectious diseases, OSHA is forced into an awkward dance with the Centers for Disease Control and Prevention, “the nation’s leading science-based, data-driven, service organization that protects the public’s health.” But despite being the nation’s leading science-based blah, blah, blah, there are problem with CDC guidance when it comes to worker protection.
First, CDC issues extensive infection control guidance, but that guidance, unlike OSHA standards, is voluntary. CDC cannot cite or penalize healthcare employers for non-compliance.
In addition, worker advocates would dispute whether CDC adequately protects workers’ health. While the National Institute for Occupational Safety and Health (NIOSH) falls under CDC’s umbrella, NIOSH is not generally allowed to play a leading role in establishing CDC guidance that affects healthcare workers.
Nevertheless, to ensure federal government consistency, OSHA’s regulatory and enforcement actions cannot be in conflict with CDC’s guidance and CDC generally carries a bigger stick than OSHA when it comes to hashing out potential conflicts. So if CDC unexpectedly changes its guidance in the middle of OSHA’s rulemaking, OSHA is sent rushing back to the drawing board to make appropriate modifications. Issuance of OSHA’s original COVID ETS, for example, was repeatedly delayed because CDC would change its infection control guidance.
While communication between OSHA and CDC is much better now than in the early days of COVID, according to OSHA staff, the two agencies still have to perform a delicate balancing act before OSHA can issue new regulations. That act became a bit more complicated at the end of September when CDC updated — and weakened — its COVID-19 infection control guidelines for healthcare settings.
Some of the changes include:
- no longer recommending universal masking for source control except where community transmission is high.
- weakening the requirements for personal protective equipment (including respiratory protection), except where community transmission is high, for patients presenting with suspected or confirmed COVID-19, or for certain high risk procedures.
The phrase “except when community transmission is high” may seem like a stopgap assurance in case things get bad in some parts of the country. But if you look at the statistics, that guidance seems a bit premature. Things are already bad in most of the country.
As of today, CDC calculates that transmission of COVID-19 is still “high” in 57% of American counties and “substantial” in over 25%. CDC also reports that 21 nursing home workers died of COVID the week ending September 25 and 49 died the week of August 4.
In addition, the country as a whole is still experiencing a high death rate from COVID. Between 300 and 500 people continue to die every day from COVID-19. While this is considerably better than the height of the COVID-19 pandemic, if extrapolated over a year, this would result in four to five times the annual number of flu deaths in an average year. In addition, they’re coming out just as we enter Fall, which means that more people will be heading indoors where transmission is more likely to occur.
As of today, CDC calculates that transmission of COVID-19 is still “high” in 57% of American counties and “substantial” in over 25%. CDC also reports that 21 nursing home workers died of COVID the week ending September 25 and 49 died the week ending August 4.
Finally, Dr. Anthony Fauci, President Biden’s chief medical advisor for the pandemic, recently predicted that “As we get into this coming late fall and winter … it is likely we will see another variant emerge.” And many of the variants that could emerge are more likely to escape immunity acquired from previous infections or vaccinations.
Aside from its effect on workers, some experts think the new CDC guidance will be disastrous for nursing home patients:
Dr. Jeremy S. Faust, an emergency medicine physician at Brigham and Women’s Hospital, called the change “terrible policy” and “a life-threatening change for at-risk individuals….It’s one thing to de-escalate pandemic mitigation in low-risk settings. To do so in nursing homes is a hostile act towards a vulnerable population, given current ground conditions. The only explanation I can imagine is pressure from groups—nursing home business owners…who believe this is in their best interest, and myopic analyses by CDC staffers.
For healthcare workers caring for patients with confirmed or suspected SARS CoV-2, CDC continues to recommends the use of an N95 or higher respirator and gloves, gown and eye protection. However, despite the fact that COVID-19 is clearly an airborne disease, CDC continues to only recommending standard precautions and still refuses to recommend airborne precautions for the care of patients with suspected or confirmed SARS-CoV-2. Standard Precautions include
Hospital and Republican Opposition
The American Hospital Association and Republicans in Congress continue to strongly oppose issuance of an OSHA COVID-19 standard. Commenting on OSHA’s regulatory proposal, the AHA argued that:
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 that much of the “unprecedented personnel shortages in hospitals” are due to the unprecedented number of illnesses and deaths among healthcare workers as a result of COVID-19, it challenges credibility to believe that an OSHA standard that protects healthcare workers would lower employee morale and increase their exodus. But the AHA has a long history of opposing any OSHA action to protect healthcare workers, stretching back to the 1980’s when that association opposed OSHA’s bloodborne pathogens standard and to the current day as the AHA opposes legislation to force OSHA to issue a workplace violence standard.
Meanwhile, Congresswoman Virginia Foxx (R-NC), Ranking Member of the House Education and Labor Committee, wrote a letter to OSHA Assistant Secretary Doug Parker urging him to “abandon” the healthcare worker standard. Foxx argues that President Biden himself declared the pandemic over, although even if true, a pandemic is not required for OSHA to issue standards protecting workers who continue to be at risk from a hazard.
Republicans can’t resist employing the same old tired Republican anti-regulatory tropes that they repeat to oppose every OSHA standard since the beginning of OSHA’s existence
Foxx, who sees socialist under every Democratic bed, can’t resist employing the same old tired Republican anti-regulatory tropes that they repeat to oppose every OSHA standard since the beginning of OSHA’s existence:
Our health care industry is strained enough as it is without the Biden administration demanding additional and burdensome COVID-19 requirements. It is overdue for Washington bureaucrats to stop using the pandemic as a pretense to increase top-down federal control over the workplace….OSHA’s exploitation of the pandemic as an excuse to increase federal control over the workplace is damaging to America’s workers and job creators.
Foxx gave OSHA an October 11 deadline to confirm “that OSHA is not working on issuing a permanent COVID-19 standard for the healthcare industry.” I’m not holding my breath.
Also, you’ll be happy to note, Foxx will be the Chair of the Education and Labor Committee should Republicans take control of the House of Representatives after the November mid-term elections.
So, is CDC’s new guidance related to political pressure coming from the healthcare industry and Republicans in Congress?
I wouldn’t rule it out. CDC is known for caving to political pressure as it did in March of 2020 when, in the face of respirator shortages, it weakened its respirator guidance. Prior to early March, for example, CDC guidance had recommended that health care workers use N-95 respirators (or better). But facing a shortage of N-95s, CDC reversed that guidance, falsely assuring healthcare workers that N-95s weren’t needed and allowing them to wear surgical masks except during high-risk procedures. This came, despite strong evidence that the virus was likely airborne and able to evade the inadequate protection provided by surgical masks.
The AHA used the exact same respirator/airborne arguments that same week to successfully oppose a House bill that would have directed OSHA to issue an ETS to protect healthcare workers.
Despite current improvements in COVID transmission, hospitalization and death rates, the disease remains a major problem and the major cause of death in the United States. Experts expect those numbers to worsen as winter approaches, and it is not unlikely that a new, more transmissible variant will emerge. Healthcare workers are on the cutting edge of all infectious diseases, especially those that reach epidemic or pandemic proportions. And untold thousands of healthcare workers have died from COVID-19, many because healthcare facilities were unable or unwilling to support measures to protect them, and because federal agencies tasked with protecting workers were slow to act.
OSHA is on the verge of finally issuing a long-overdue standard to protect healthcare workers from COVID-19. On the drawing board, but making slow progress, are standards that to protect healthcare workers from all infectious diseases, and from workplace violence.
To ensure the safety of healthcare workers, Congress needs to substantially increase OSHA’s regulatory budget, OSHA and CDC need to summarily dismiss AHA opposition for the lies and pro-corporate ideology that it is, and CDC and the White House need to support OSHA’s role as the “nation’s leading science-based, data-driven, service organization that protects workers’ health.”