The Occupational Safety and Health Administration announced a rule Thursday outlining steps that employers must take to protect workers from the risk of COVID-19, but it will apply only to the health care industry, not to other high-risk workplaces, as the Biden administration initially indicated.
“The science tells us that health care workers, particularly those who come into regular contact with the virus, are most at risk at this point in the pandemic,” Labor Secretary Marty Walsh said on a call with reporters. “So following an extensive review of the science and data, OSHA determined that a health care specific safety requirement will make the biggest impact.”
The rule will require health care employers to provide protective equipment like masks, to screen and triage patients for the risk of COVID-19 and to ensure adequate ventilation and distancing, among other measures. It will also require those employers to provide adequate paid time off for workers to receive vaccinations and manage their side effects.
Fully vaccinated workers will not be required to wear masks and practice social distancing.
Walsh, whose department includes OSHA, said the administration was issuing optional guidance to employers outside health care that would focus on workplaces in the manufacturing, meat processing, grocery and retail industries.
Groups focused on workers’ issues criticized the decision to limit the rule, known as an emergency standard, to health care employers, arguing that the virus continues to pose serious risks to other workers.
“We know that workers in many industries outside of health care faced elevated risks of COVID,” Debbie Berkowitz, a senior OSHA official during the Obama administration who is now at the National Employment Law Project, wrote in an email. “Especially in low-wage industries like meat processing that is disproportionally Black and brown workers.”
She added: “We need to make sure these workers are still protected with mitigation measures.”
Berkowitz and others had expressed hope that President Joe Biden would chart a different course from his predecessor, under whom OSHA declined to issue a standard related to COVID-19.
During the Trump administration, OSHA adopted a policy of largely limiting COVID-related inspections to a small number of high-risk industries like health care and emergency response. It did not include meatpacking — which studies indicated was a major source of virus transmission — in this high-risk group.
Some worker groups gave OSHA credit under former President Donald Trump for enforcing safety rules in the health care industry, including proposed penalties of over $1 million for violations at dozens of health care facilities and nursing homes. But critics accused the agency of largely failing to fine meat processors for lax safety standards, such as failure to ensure workers were adequately distanced from one another.
Walsh indicated that the risks to most workers outside health care had eased as cases had fallen and vaccination rates had risen. He also indicated that guidance by the Centers for Disease Control and Prevention last month advising those who have been vaccinated that they generally need not wear a mask indoors played a role in OSHA’s decision to forgo a broader COVID-19 standard.
“OSHA has tailored the rule that reflects the reality on the ground, the success of the vaccine efforts, plus the latest guidance from CDC and the changing nature of pandemic,” Walsh said on the call.
David Michaels, a head of OSHA during the Obama administration, said the CDC guidance had made a broader OSHA rule more difficult to enact. “To justify an emergency standard, OSHA has to show there’s a grave danger,” Michaels said. “For that to happen, the CDC would have needed to clarify its recommendation and say that for many workers, there remains a grave danger.”
Without such clarification, said Michaels, now a professor at the George Washington University School of Public Health, employer groups would probably have challenged any new OSHA rule in court, arguing that the CDC guidance indicated that a rule was unnecessary.
Michaels said that the new standard was an overdue step but that it was disappointing that no COVID-specific standard was issued for industries like meatpacking, corrections and retail. “If exposure is not controlled in these workplaces, they will continue to be important drivers of infections,” he said.
Jim Frederick, acting head of OSHA, said on the call that the agency had power even without issuing broader COVID rules, through its so-called general duty clause, to enforce protections for workers outside the health care industry and that it would continue to do so.
He said many meatpacking facilities, along with other workplaces, had been inspected under an OSHA program applying added scrutiny to high-risk industries.
OSHA submitted a draft of an emergency standard for review by a White House regulatory office in April, and the administration has spent weeks meeting with worker and industry groups about its likely impact.
“As far as the meetings that took place,” Frederick said, “we’re a participant in those meetings, we receive those comments and take those into account in the overall work that’s being done by the agency.”
Employers will have two weeks to comply with most of the rule’s provisions.
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