Occupational Exposure to COVID-19 in Healthcare Settings, 16426-16431 [2022-06080]
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a. In paragraph (a) introductory text,
remove the phrase ‘‘see § 120.14’’ and
add in its place ‘‘see § 120.61’’;
■ b. In paragraph (a)(1), remove the
phrase ‘‘see § 120.15’’ and add in its
place ‘‘see § 120.62’’;
■ c. In paragraph (a)(2), remove the
phrase ‘‘see § 120.16’’ and add in its
place ‘‘see § 120.63’’;
■ d. In paragraph (b)(2)(iii), remove the
phrase ‘‘see § 120.39’’ and add in its
place ‘‘see § 120.64’’;
■ e. In paragraph (b)(2)(v), remove the
reference ‘‘§ 120.40’’ and add in its
place ‘‘§ 120.66’’; and
■ f. In paragraph (b)(2)(vi), remove ‘‘see
§ 120.39’’ and ‘‘parts’’ and add in their
places ‘‘see § 120.64’’ and ‘‘part,’’
respectively.
■
§ 129.3
[Amended]
§ 130.4
[Amended]
51. In § 130.4, remove the reference
‘‘§§ 120.6 and 120.9’’ and add in its
place ‘‘§§ 120.31 and 120.32’’.
■
Bonnie D. Jenkins,
Under Secretary for Arms Control and
International Security, Department of State.
[FR Doc. 2022–05629 Filed 3–22–22; 8:45 am]
BILLING CODE 4710–25–P
DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1910
[Docket No. OSHA–2020–0004]
RIN 1218–AD36
45. In § 129.3, in paragraph (d),
remove the phrase ‘‘see § 120.40’’ and
add in its place ‘‘see § 120.66’’.
■
§ 129.4
Occupational Exposure to COVID–19 in
Healthcare Settings
Occupational Safety and Health
Administration (OSHA), Labor.
ACTION: Notice of limited reopening of
comment period; notice of informal
hearing.
AGENCY:
[Amended]
46. In § 129.4, in paragraph (a)(1),
remove the phrase ‘‘see § 120.44’’ and
add in its place ‘‘see § 120.39’’.
■
§ 129.5
[Amended]
47. In § 129.5:
a. In paragraph (b), remove the phrase
‘‘see § 120.44’’ and add in its place ‘‘see
§ 120.39’’; and
■ b. In paragraph (c)(2), remove the
reference ‘‘§ 120.1(c)(2)’’ and add in its
place ‘‘§ 120.16(c)’’.
■
■
§ 129.6
[Amended]
48. In § 129.6, in paragraphs (a)(2)(i)
and (iii), remove the reference
‘‘§ 120.27’’ and add in its place
‘‘§ 120.6’’.
■
§ 129.8
[Amended]
49. In § 129.8:
a. In paragraph (a), remove the phrase
‘‘see § 120.40’’ and add in its place ‘‘see
§ 120.66’’;
■ b. In paragraph (c)(1)(i), remove the
reference ‘‘§ 120.27’’ and add in its
place ‘‘§ 120.6’’;
■ c. In paragraph (c)(2), remove the
phrase ‘‘see § 120.37’’ and add in its
place ‘‘see § 120.65’’; and
■ d. In paragraph (d)(1), remove
‘‘§ 120.27’’ and ‘‘government’’ and add
in their places ‘‘§ 120.6’’ and
‘‘Government,’’ respectively.
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■
■
PART 130—POLITICAL
CONTRIBUTIONS, FEES AND
COMMISSIONS
50. The authority citation for part 130
continues to read as follows:
■
Authority: Sec. 39, Pub. L. 94–329, 90
Stat. 767 (22 U.S.C. 2779); 22 U.S.C. 2651a;
E.O. 13637, 78 FR 16129.
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OSHA is partially reopening
the comment period to allow for
additional public comment on specific
topics and is scheduling an informal
public hearing on its interim final rule
establishing an Emergency Temporary
Standard (ETS), ‘‘Occupational
Exposure to COVID–19.’’ The public
hearing will begin on April 27, 2022.
DATES: Comments: Written comments in
response to OSHA’s limited reopening
of the comment period must be
submitted in Docket No. OSHA–2020–
0004 on or before April 22, 2022.
Informal public hearing: The hearing
will begin on April 27, 2022, and will
be held virtually. If necessary, the
hearing will continue on subsequent
days. Additional information on how to
access the informal hearing will be
posted when available at https://
www.osha.gov/coronavirus/healthcare/
rulemaking. To testify at the hearing,
interested persons must electronically
submit their Notice of Intention to
Appear (NOITA) by April 6, 2022.
ADDRESSES:
Notices of Intention to Appear:
Notices of intention to appear at the
hearing (NOITA) must be submitted
electronically at https://www.osha.gov/
coronavirus/healthcare/rulemaking.
Follow the instructions online for
making electronic submissions. See
‘‘Notices of Intention to Appear’’ in the
SUPPLEMENTARY INFORMATION section of
this document for additional
requirements for NOITAs.
SUMMARY:
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Written comments: You may submit
comments and attachments, identified
by Docket No. OSHA–2020–0004,
electronically at www.regulations.gov,
which is the Federal e-Rulemaking
Portal. Follow the instructions online
for making electronic submissions. After
accessing ‘‘all documents and
comments’’ in the docket (Docket No.
OSHA–2020–0004), check the
‘‘proposed rule’’ box in the column
headed ‘‘Document Type,’’ find the
document posted on the date of
publication of this hearing notice, and
click the ‘‘Comment Now’’ link. When
uploading multiple attachments to
www.regulations.gov, please number all
of your attachments because
www.regulations.gov will not
automatically number the attachments.
This will be very useful in identifying
all attachments in the preamble. For
example, Attachment 1—title of your
document, Attachment 2—title of your
document, Attachment 3—title of your
document. For assistance with
commenting and uploading documents,
please see the Frequently Asked
Questions on www.regulations.gov.
Instructions: All submissions must
include the agency’s name and the
docket number for this rulemaking
(Docket No. OSHA–2020–0004). All
comments, including any personal
information you provide, are placed in
the public docket without change and
may be made available online at
www.regulations.gov. Therefore, OSHA
cautions commenters about submitting
information they do not want made
available to the public, or submitting
materials that contain personal
information (either about themselves or
others), such as Social Security
Numbers and birthdates.
Docket: To read or download
comments and other materials
submitted in the docket, or to view the
hearing schedule and procedures when
available, go to Docket No. OSHA–
2020–0004 at www.regulations.gov. All
comments and submissions are listed in
the www.regulations.gov index;
however, some information (e.g.,
copyrighted material) may not be
publicly available to read or download
through that website. All documents
submitted to www.regulations.gov,
including copyrighted material, are
available for inspection through the
OSHA Docket Office. Documents
submitted to the docket by OSHA or
stakeholders are assigned document
identification numbers (Document ID)
for easy identification and retrieval. The
full Document ID is the docket number
plus a unique four-digit code. OSHA is
identifying supporting information in
this rulemaking by author name and
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publication year, when appropriate.
This information can be used to search
for a supporting document in the docket
at www.regulations.gov. Contact the
OSHA Docket Office at (202) 693–2350
(TTY number: (877) 889–5627) for
assistance in locating docket
submissions. Please note that NOITAs
will be gathered outside the docket and
OSHA will add a list of individuals who
have submitted NOITAs to the docket
after the submission deadline has
passed.
FOR FURTHER INFORMATION CONTACT:
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For press inquiries: Contact Frank
Meilinger, Director, Office of
Communications, Occupational Safety
and Health Administration, U.S.
Department of Labor; telephone: (202)
693–1999; email: OSHAComms@
dol.gov.
For general information and technical
inquiries: Contact Andrew Levinson,
Acting Director, Directorate of
Standards and Guidance, Occupational
Safety and Health Administration, U.S.
Department of Labor; telephone: (202)
693–1950; email: ETS@dol.gov.
For Hearing Inquiries: Contact Amy
Tryon, Division of Occupational Safety
and Health, Office of the Solicitor, U.S.
Department of Labor; telephone: (202)
693–8081; email: ETS@dol.gov.
SUPPLEMENTARY INFORMATION: On June
21, 2021, OSHA published an ETS to
protect healthcare and healthcare
support service workers from
occupational exposure to COVID–19 in
settings where people with COVID–19
are reasonably expected to be present
(86 FR 32376). Although the ETS took
effect immediately, OSHA also
requested comment on whether it
should become permanent, as well as on
all other aspects of the ETS. OSHA
received 481 comments concerning the
ETS during the comment period, which
was to end on July 21, 2021, but was
extended to August 20, 2021, in
response to requests from the public (86
FR 38232). To read or download
comments and other materials
submitted in the docket, go to Docket
No. OSHA–2020–0004 at
www.regulations.gov. In accordance
with 29 U.S.C. 655(c)(3), the agency is
now preparing to promulgate a final
standard.
I. Additional Information and Request
for Comment
OSHA is seeking public comment on
certain specific topics and questions for
the development of a final standard.
Accordingly, the agency is partially
reopening the comment period for the
ETS to allow for additional comment on
the topics identified below. OSHA
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encourages commenters to explain why
they prefer or disfavor particular policy
choices, and include any relevant
studies, experiences, anecdotes, or other
information that may help support the
comment. OSHA seeks comments on the
following topics:
A. Potential Changes From the ETS
The following is a list of potential
rulemaking outcomes that would depart
from the provisions of the ETS such that
OSHA has decided to provide this
additional notice and an opportunity to
comment. OSHA has not made any
decisions about these potential
provisions or approaches, nor is this
intended to list all of the potential
changes from the ETS. Other changes
may result after due consideration of all
comments and hearing testimony.
A.1—Alignment with CDC
Recommendations for Healthcare
Infection Control Practices: Evolving
CDC recommendations have resulted in
inconsistencies between those
recommendations and some of the
Healthcare ETS provisions (e.g.,
isolation and return-to-work guidance).
A number of commenters requested that
OSHA align its ETS more closely with
various CDC recommendations. OSHA
is considering doing so, but notes that,
in some cases, CDC recommendations
have continued to evolve even after the
close of the comment period. OSHA is
considering whether it is appropriate to
align its final rule with some or all of
the CDC recommendations that have
changed between the close of the
original comment period for this rule
and the close of this comment period.
OSHA seeks comment on this approach.
A.2—Additional Flexibility for
Employers: Some employers expressed
concern that the provisions of the
Healthcare ETS were overly
prescriptive. The ETS, while rooted in
a programmatic approach (e.g., COVID–
19 plan, hazard assessment, policies and
procedures to minimize the risk of
transmission of COVID–19), also
specified how employers were required
to implement particular policies and
procedures (e.g., criteria for medical
removal and return to work, cleaning,
ventilation, barriers, aerosol-generating
procedures). OSHA is considering
restating various provisions as broader
requirements without the level of detail
included in the Healthcare ETS and
providing a ‘‘safe harbor’’ enforcement
policy for employers who are in
compliance with CDC guidance
applicable during the period at issue.
OSHA seeks comment on this approach.
A.3—Removal of Scope Exemptions
(e.g., ambulatory care facilities where
COVID–19 patients are screened out;
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home healthcare): A final standard will
be adopted under Section 6(b) of the
OSH Act, which requires a finding of
significant risk from exposure to
COVID–19, rather than the finding of
grave danger OSHA made in issuing the
Healthcare ETS under Section 6(c) of
the OSH Act. Section 6(b) requires that
the standard substantially reduce or
eliminate significant risk of material
impairment of health to the extent
feasible. In view of this different risk
finding, OSHA is considering whether
the scope of the final standard should
cover employers regardless of screening
procedures for non-employees and/or
vaccination status of employees to
ensure that all workers are protected to
the extent there is a significant risk.
OSHA seeks comment on this approach.
A.4—Tailoring Controls to Address
Interactions with People with Suspected
or Confirmed COVID–19: OSHA is
considering the need for COVID–19specific infection control measures in
areas where healthcare employees are
not reasonably expected to encounter
people with suspected or confirmed
COVID–19. This could include
eliminating certain requirements that
were included in the Healthcare ETS
and that applied to all areas of covered
healthcare settings. For example, OSHA
could consider imposing cleaning
requirements or medical removal
provisions only with respect to staff
exposed to COVID–19 patients or
eliminating facemask requirements for
staff not exposed to COVID–19 patients.
If OSHA did restrict infection control
requirements to particular areas of a
facility or particular staff, it could
consider balancing that narrower scope
with a new ‘‘outbreak provision’’ to
ensure that healthcare employers would
still have a duty to address an outbreak
quickly if an outbreak occurs among
staff in the areas normally subject to
fewer requirements. For example, an
outbreak could trigger a broad
performance requirement for the
employer to implement additional
infection control measures to stop the
outbreak, or it could trigger more
specific requirements, such as
employer-provided testing and/or
medical removal of staff with COVID–19
even if they do not interact with
COVID–19 patients. OSHA seeks
comment on these approaches,
including comment on how OSHA
should define an ‘‘outbreak’’ if it were
to implement that approach (the CDC
discusses ‘‘outbreaks’’ at https://
www.cdc.gov/coronavirus/2019-ncov/
php/contact-tracing/contact-tracingplan/outbreaks.html).
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A.5—Vaccination
A.5.1—Booster Doses: In the ETS,
certain requirements take account of
whether individuals are ‘‘fully
vaccinated,’’ which is defined in
paragraph (b) of the ETS as meaning ‘‘2
weeks or more following the final dose
of a COVID–19 vaccine.’’ Subsequent to
the publication of the ETS, the Advisory
Committee on Immunization Practices
(ACIP) has recommended additional
doses and booster doses. CDC has also
adopted the concept of ‘‘up to date’’ to
describe vaccination recommendations
beyond the primary vaccination series.
OSHA is considering how these ACIP
and CDC recommendations might
impact the requirements in the ETS that
take account of individuals’ vaccination
status (e.g., fully vaccinated, up to date)
and seeks comment on this issue.
A.5.2—Employer Support of
Employee Vaccination: OSHA is not
considering at this time requiring
mandatory vaccination for employees
covered by this standard.
Æ The Healthcare ETS included a
provision requiring employers to inform
employees about the safety, efficacy,
and benefits of vaccination and provide
reasonable time and paid leave to each
employee for vaccination and side
effects experienced following
vaccination. OSHA is considering an
adjustment to the requirement that
would include paid time up to 4 hours,
including travel time, for employees to
receive a vaccine and paid sick leave to
recover from side effects and seeks
comment on the approach.
Æ OSHA is considering requiring
employer support for employees who
wish to stay up to date on vaccination
and boosters in accordance with ACIP
and CDC recommendations. OSHA
seeks comment on the approach.
Æ OSHA is considering whether to
limit the provisions that provide
support for vaccination to employees
not covered by the Centers for Medicare
& Medicaid Services (CMS) vaccination
rule (86 FR 61555) and seeks comment
on this approach. The CMS vaccination
rule requires healthcare staff in facilities
regulated by CMS to be vaccinated. The
majority of healthcare employees
covered by this final rule work in
facilities covered by the CMS
vaccination rule and are subject to the
CMS requirements.
A.5.3—Requirements for Vaccinated
Workers: During the initial comment
period, stakeholders raised questions
about whether the Healthcare ETS
requirements should be relaxed or
eliminated based on the vaccination
status of the individual worker
involved, the general vaccination rate of
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the entire staff, and/or the general
vaccination rate of the community.
OSHA is considering suggestions that
requirements be relaxed:
Æ For masking, barriers, or physical
distancing for vaccinated workers in
all areas of healthcare settings, not
just where there is no reasonable
expectation that someone with
suspected or confirmed COVID–19
will be present
Æ in healthcare settings where a high
percentage of staff is vaccinated
(OSHA also is accepting comment on
what that percentage should be)
Æ for exposure notification for
vaccinated employees
OSHA seeks comment on these
approaches.
A.6—Limited Coverage of
Construction Activities in Healthcare
Settings: OSHA did not expressly
include employers that engage in
construction work in hospitals, longterm care facilities and other settings
that are covered by the ETS. The
construction industry was not included
in OSHA’s industrial profile for the rule.
OSHA is considering clarifying this
coverage and seeks comment on this
approach. For example, OSHA is
considering the same coverage for
workers engaged in construction work
inside a hospital (e.g., installing new
ventilation or new equipment or adding
a new wall) as for workers engaged in
maintenance work or custodial tasks in
the same facility. OSHA could consider
exceptions for construction work in
isolated wings or other spaces where
construction employees would not be
exposed to patients or other staff.
A.7—Recordkeeping and Reporting:
New Cap for COVID–19 Log Retention
Period: The COVID–19 log and reporting
provisions, 29 CFR 1910.502(q)(2)(ii),
(q)(3)(ii)–(iv), and (r), have remained in
effect because OSHA found good cause
to forgo notice and comment in light of
the grave danger presented by the
pandemic. See 86 FR 32559. Now that
OSHA is re-opening the comment
period for the final rule, the agency also
seeks additional comment on
1910.502(q) and (r). In general, OSHA is
focused on whether any adjustments to
those paragraphs should be made in
light of experiences involving the Delta
or Omicron variants. In addition, the
agency proposes to cap the record
retention period for the COVID–19 log at
one year from the date of the last entry
in the log, rather than the current
approach in which that retention period
is tied to the duration of the standard
(see 29 CFR 1910.502(q)(2)(ii)(C)).
A.8—Triggering Requirements Based
on the Level of Community
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Transmission: When employees are
treating people with suspected or
confirmed COVID–19, the ETS requires
certain control strategies (e.g., PPE)
regardless of community transmission
levels. Under the CDC’s current
guidance for healthcare workers,1 many
requirements for those workers are
triggered based on the level of
community transmission of COVID–19
(e.g., controls needed in areas of
substantial or high transmission,
controls not needed in areas of low or
moderate transmission). OSHA is
considering linking regulatory
requirements to measures of local risk,
such as CDC’s community transmission
used in CDC’s guidance for healthcare
settings or the CDC’s COVID–19
Community Levels used in CDC’s
guidance for prevention measures in
community settings.2 OSHA is seeking
comment on that approach, including
impacts of such an approach on
compliance and enforcement.
A.9—Evolution of SARS–CoV–2 into a
Second Novel Strain: It is possible that
a future variant of SARS–CoV–2 will
have sufficient genetic drift to be
designated another novel coronavirus
strain but still results in a disease that
is similar to the current illness (e.g., a
hypothetical ‘‘COVID–22’’). OSHA is
considering specifying that this final
standard would apply not only to
COVID–19, but also to subsequent
related strains of the virus that are
transmitted through aerosols and pose
similar risks and health effects. OSHA
seeks comment on this approach and
alternatives to addressing the potential
for new strains related to SARS–CoV–2.
B. Additional Information/Data
Requested
OSHA recognizes that the majority of
the comment period occurred prior to
when the Delta and Omicron variants
became prevalent in the United States.
OSHA requests new studies or data
related to the Delta and Omicron
variants since the close of the initial
comment period in August 2021,
particularly with respect to:
B.1: The average number of days
healthcare workers have taken away
from work resulting from a COVID–
1 Centers for Disease Control and Prevention
(CDC). (2022, February 2). Interim Infection
Prevention and Control Recommendations for
Healthcare Personnel During the Coronavirus
Disease 2019 (COVID–19) Pandemic. https://
www.cdc.gov/coronavirus/2019-ncov/hcp/infectioncontrol-recommendations.html.
2 See Centers for Disease Control and Prevention
(CDC). (2022, February 2); see also Centers for
Disease Control and Prevention (CDC). (2022,
March 4). COVID–19 Community Levels. https://
www.cdc.gov/coronavirus/2019-ncov/science/
community-levels.html.
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19 infection or quarantine and the
percentage of healthcare workers
who have taken days away from
work due to a COVID–19 infection
or quarantine
B.2: The health effects for fully
vaccinated employees, and fully
vaccinated and boosted employees,
who test positive for COVID–19,
including data on days away from
work, hospitalizations, long COVID,
and fatalities
B.3: The percentage of healthcare
workers who are at elevated risk of
severe COVID–19 infections (e.g.,
resulting in hospitalization or
extended days away from work),
including for age-related or
immunocompromised reasons (not
based solely on vaccination status)
B.4: The rate of infection, long COVID,
hospitalization, and death among
healthcare workers compared to
those rates among the general adult
population
B.5: The health effects and transmission
rate of new and emerging variants
and sub-lineages of variants,
including Omicron BA.2
Additionally, OSHA requests data and
information on:
B.6: The vaccination rate among
healthcare workers, including the
rate of healthcare workers who are
fully vaccinated and boosted
B.7: The clinical indicators that will
reliably predict the degree of
protection afforded by prior
infection (i.e., infection-acquired
immunity), and how long such
protection lasts
B.8: Vaccine efficacy and how such
efficacy decreases over time
B.9: The appropriate periodicity of
additional vaccine doses and
booster doses
B.10: Unintended consequences, such as
decreases in staffing retention, or
other impacts, such as increases in
staffing retention, due to the
potential alternatives raised in this
notice
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C. Information for Economic Analysis
C.1 Industry Profile: For the
Healthcare ETS Industry Profile, OSHA
based the number of Affected
Employees for Affected Industries on
whether employees performed
healthcare services or healthcare
support services under the ETS. If
employees did not perform healthcare
services or healthcare support services,
OSHA did not consider them Affected
Employees. See 86 FR 32485. While this
approach covered the appropriate North
American Industry Classification
System (NAICS), the approach may have
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resulted in an underestimate of Affected
Employees. As stated in 29 CFR
1910.502(a), ‘‘this section applies to all
settings where any employee provides
healthcare services or healthcare
support services.’’ To address this
potential underestimate for the final
rule, OSHA is considering revising its
approach to base the number of Affected
Employees on setting, rather than
occupation. OSHA seeks comment on
this potential approach.
C.1.1—Covered Industries
C.1.1A: OSHA acknowledged in the
Healthcare ETS that it did not
‘‘determine[ ] how many non-hospital
ambulatory care providers will screen
patients for COVID–19 infections and
symptoms, and therefore might be fully
exempt from the standard under
paragraph (a)(2)(iii)’’ of the ETS (86 FR
at 32485). While OSHA included in the
Healthcare ETS Industry Profile several
NAICS outside of healthcare where
embedded clinics are prevalent, such as
schools, OSHA did not include a
number of industries that may have
settings with embedded clinics (e.g.,
embedded clinics in manufacturing
facilities) in the industry profile. The
Healthcare ETS applies to these
embedded clinics, as OSHA made clear
both in the regulatory text and the
Summary and Explanation for the ETS.
See 29 CFR 1910.502(a)(3)(i); 86 FR at
32563. To address this, OSHA is
considering including these industries
in the final rule’s industry profile.
OSHA notes that compliance with the
final rule for these industries would
most likely result in minimal costs or no
costs because, under the Healthcare
ETS, OSHA anticipated that many
embedded clinics will be fully exempt
under the non-hospital ambulatory care
exception; and, if the rule applies, it
will apply only with respect to
embedded clinics and not the entire
facility. OSHA seeks comment on this
potential approach.
C.1.1B: As discussed above, OSHA
noted in the Healthcare ETS that it did
not determine ‘‘how many non-hospital
ambulatory care providers will screen
patients for COVID–19 infections and
symptoms, and therefore be fully
exempt from this rule under paragraph
(a)(2)(iii)’’ (86 FR at 32485). OSHA also
noted that ‘‘[t]o the extent that providers
meet these exemption criteria, they will
incur no costs for compliance with
respect to these settings,’’ and that
‘‘[t]herefore, for this subset of
establishments, the costs presented in
OSHA’s analysis will be dramatic
overestimates (i.e., OSHA assumes full
costs where costs should be zero).’’ (Id.)
For the final rule, OSHA is considering
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estimating the number of employers
subject to this exemption, if it remains
in the standard, but seeks information
and data to support such an estimate.
C.1.2 Telework Employees: In the
Healthcare ETS, OSHA accounted for
reduced employee exposure due to
telework for benefits, but did not
explicitly account for telework in the
number of employees affected by the
final rule in the Industry Profile. This
may have resulted in an overestimate of
several employee-based costs, like the
costs of respirators and personal
protective equipment, because OSHA
may have overestimated the number of
employees affected by the final rule. In
the Vaccination and Testing ETS, OSHA
adjusted its telework estimates to reflect
then-current teleworking conditions (see
86 FR 61462–61467). OSHA is
considering making similar adjustments
to the final Healthcare rule to estimate
the current number of employees who
telework. OSHA seeks comment on this
potential approach.
C.2 Costs
C.2.1—One-time costs: OSHA
requests comments on the extent to
which some costs (e.g., costs associated
with initial training, upgrading
ventilation, rule familiarization,
COVID–19 Plan development,
respiratory protection program
development) have already been
incurred to comply with the ETS. OSHA
further requests comments on the extent
to which employers and other entities
will bear ongoing costs (e.g., ongoing
costs associated with training, PPE,
respirators and the respiratory
protection program, medical removal
protection, COVID–19 plan monitoring
and modification, and ventilation
maintenance) under a final rule.
C.2.2—Age Group 65–74
C.2.2A: OSHA had not included
employees in the age group 65–74 in the
economic analysis of the Healthcare
ETS out of concern that the populationwide average of workers in this age
bracket would overcount the number of
such workers in this sector. See 86 FR
at 61470 n. 32. OSHA is rethinking this
approach for the Healthcare final rule
and seeks comment on including this
age group in the analysis of both costs
and benefits.
C.2.2B: OSHA will likely update its
estimates to reflect the current baseline
of vaccinated employees (for example,
to incorporate the effects of the CMS
vaccine-mandate rule on vaccination
rates). OSHA will likely rely on the
most recent CDC COVID–19 data
tracker, as it did for the Healthcare ETS
and the Vaccination and Testing ETS,
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and may also rely on estimates or data
from CMS or other credible sources, to
update its estimates. OSHA seeks
comment on whether there is other data
OSHA should rely on.
C.2.3—Ancillary Costs
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C.2.3A: In the Healthcare ETS, OSHA
offset the cost to employers associated
with medical removal and vaccination
support with tax credits employers
would receive. OSHA is considering
how to adjust its methodology in the
final rule given the expiration of these
tax credits and seeks data and
information on this issue. OSHA notes
that it could take an approach similar to
the one it took in the Vaccination and
Testing ETS, i.e., by estimating the
number of employers that would (and
would not) incur costs because
employees could be required to use
accrued sick leave benefits for medical
removal and vaccination support
(Compare 86 FR 32512 (including
footnote 61) with 86 FR 61480).
C.2.3B: OSHA is considering updating
the manner in which it estimates side
effects associated with vaccine doses
using CDC estimates (86 FR 32513 &
n.63). OSHA is considering following an
approach similar to the one it followed
in the Vaccination and Testing ETS (86
FR 61480) where OSHA calculated the
estimated time off using a more recent
study that surveyed workers at a statewide healthcare system who had been
vaccinated.3 OSHA seeks data and
information on this issue.
C.3 Benefits Data Sources: For the
final rule, OSHA is considering using
CDC COVID–19 case and fatality data
which was unavailable when the
Healthcare ETS was initially issued, and
seeks comment on this issue. OSHA
based the Vaccination and Testing ETS
impact analysis on the CDC data which
tabulates the respective number of cases
and fatalities for the unvaccinated and
vaccinated populations.
OSHA also seeks information and
data on cases, illnesses,
hospitalizations, and fatalities that are
specific to employees that would be
subject to the final rule (i.e., those in the
healthcare field). OSHA notes that it is
aware of one potential source that
measured deaths in healthcare
occupations during the first year of the
pandemic.4
3 Levi ML et al. (2021, September 25). COVID–19
mRNA vaccination, reactogenicity, work-related
absences and the impact on operating room staffing:
A cross-sectional study. Perioperative Care and
Operating Room Management preprint. https://
doi.org/10.1016/j.pcorm.2021.100220.
4 Kaiser Health News and the Guardian. (2021,
April). Lost on the Frontline. The Guardian. https://
www.theguardian.com/us-news/ng-interactive/
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OSHA is considering using all sources
of data on which it relied in the
Healthcare ETS and the Vaccination and
Testing ETS, as well some new data
sources it did not rely on, including, for
example:
• CDC Daily Tracker: Daily Tracker
Home,5
• Demographic Trends of COVID–19
cases and deaths in the US reported to
CDC,6 7 8
• Rates of COVID–19 Cases and
Deaths by Vaccination Status,9
• Rates of laboratory-confirmed
COVID–19 hospitalizations by
vaccination status,10
• United States COVID–19 Cases,
Deaths, and Laboratory Testing (NAATs)
by State, Territory, and Jurisdiction,11
• Nationwide COVID–19 InfectionInduced Antibody Seroprevalence,12 13
• Kaiser Health News/UK Guardian,14
• US Census: Current Population
Statistics,15
• The National Panel Study of
COVID–19 (NPSC19),16 17
2020/aug/11/lost-on-the-frontline-covid-19coronavirus-us-healthcare-workers-deathsdatabase.
5 CDC Daily Tracker: Daily Tracker Home: https://
covid.cdc.gov/covid-data-tracker/#datatrackerhome.
6 COVID–19 Weekly Cases and Deaths per
100,000 Population by Age, Race/Ethnicity, and
Sex: https://covid.cdc.gov/covid-data-tracker/
#demographicsovertime.
7 Demographic Trends of COVID–19 cases and
deaths in the U.S. reported to CDC: https://
covid.cdc.gov/covid-data-tracker/#demographics.
8 Trends in COVID–19 Cases and Deaths in the
United States, by County-level Population Factors
Maps, charts, and data provided by CDC: https://
covid.cdc.gov/covid-data-tracker/#pop-factors_
7daynewcases.
9 Rates of COVID–19 Cases and Deaths by
Vaccination Status: https://covid.cdc.gov/coviddata-tracker/#rates-by-vaccine-status.
10 https://covid.cdc.gov/covid-data-tracker/
#covidnet-hospitalizations-vaccination.
11 https://covid.cdc.gov/covid-data-tracker/
#cases_casesper100klast7days.
12 Nationwide COVID–19 Infection-Induced
Antibody Seroprevalence (Commercial
laboratories): https://covid.cdc.gov/covid-datatracker/#national-lab.
13 Nationwide COVID–19 Infection- and
Vaccination-Induced Antibody Seroprevalence
(Blood donations): https://covid.cdc.gov/coviddata-tracker/#nationwide-blood-donorseroprevalence.
14 Kaiser Health News and the Guardian. (2021,
April). Lost on the Frontline. The Guardian. https://
www.theguardian.com/us-news/ng-interactive/
2020/aug/11/lost-on-the-frontline-covid-19coronavirus-us-healthcare-workers-deathsdatabase.
15 https://www.census.gov/programs-surveys/cps/
data.html.
16 https://www.brookings.edu/blog/up-front/2020/
08/13/the-covid-19-public-health-and-economiccrises-leave-vulnerable-populations-exposed/.
17 https://static1.squarespace.com/static/
57c9d7602994ca1ac7d06b71/t/
60243c4a2c291024fa12e979/1612987471528/UW_
IRP_Grooms_Feb_2021.pdf.
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• Census Bureau Household Pulse
Survey,18
• National Center for Health
Statistics,19
• American Community Survey,20
and
• Optum Clinformatics Data Mart.21
C.4 Small Business: In developing
the Final Regulatory Flexibility Analysis
(FRFA), OSHA is seeking comments on
whether there are specific issues
regarding small covered healthcare
entities (i.e., small businesses, small
non-profits, and small government
jurisdictions) that OSHA should
consider, particularly with respect to
the technical or economic feasibility of
complying with a possible revised rule.
C.5—Assumptions
C.5.1 Vaccine Efficacy: For the
Healthcare ETS, OSHA accounted for
vaccine efficacy in its benefits analysis.
For the final rule, OSHA is considering
accounting for booster efficacy using the
CDC Data Tracker, which was the same
source for determining vaccine efficacy.
OSHA seeks comment on this potential
approach and data on which to update
its estimates.
C.5.2 Frequency, Severity, and
Distribution of Infections: There was
‘‘still some uncertainty surrounding the
frequency and severity of COVID–19
infections and their distribution’’ when
the Healthcare ETS was issued (86 FR
32545), so OSHA focused that economic
analysis on hospitalizations and
fatalities. More time and data have
brought more certainty regarding other
outcomes, so for the final rule OSHA is
considering also accounting in its
economic analysis for COVID–19-related
long-term effects (i.e., long COVID),
hospitalization, and shorter illness (due
to variants, increased vaccinations, and
improved treatments). Additionally,
OSHA is considering using an approach
similar to that in the Vaccination and
Testing ETS, where OSHA took account
of breakthrough cases and fatalities in
vaccinated employees when it assessed
the health impacts. OSHA seeks
comment and data on these potential
modifications.
II. Informal Public Hearing—Purpose,
Rules, and Procedures
One commenter requested that OSHA
hold a public hearing on the
18 Household Pulse Survey: Measuring Social and
Economic Impacts during the Coronavirus
Pandemic: https://www.census.gov/programssurveys/household-pulse-survey.html.
19 https://www.cdc.gov/nchs/data_access/ftp_
data.htm.
20 https://www.census.gov/programs-surveys/acs/
data.html.
21 https://web.uri.edu/optum/.
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Federal Register / Vol. 87, No. 56 / Wednesday, March 23, 2022 / Rules and Regulations
rulemaking. See OSHA–2020–0004–
1034, Attachment 1. OSHA has agreed
to do so. OSHA invites interested
persons to participate in this rulemaking
by providing oral testimony and
documentary evidence at the informal
public hearing to provide the agency
with the best available evidence to use
in developing the final rule.
Pursuant to 29 CFR 1911.15(a) and 5
U.S.C. 553(c), members of the public
have an opportunity at the informal
public hearing to provide oral testimony
and evidence on issues raised by the
proposal. An administrative law judge
(ALJ) presides over each OSHA hearing
and will resolve any procedural matters
relating to the hearing.
OSHA’s regulation governing public
hearings (29 CFR 1911.15) establishes
the purpose and procedures of informal
public hearings. Although the presiding
officer of the hearing is an ALJ and
questioning of witnesses may be
allowed on crucial issues, the
proceeding is largely informal and
essentially legislative in purpose.
Therefore, the hearing provides
interested persons with an opportunity
to make oral presentations in the
absence of rigid procedures that could
impede or protract the rulemaking
process. The hearing is not an
adjudicative proceeding subject to the
Federal Rules of Evidence. Instead, it is
an informal administrative proceeding
convened for the purpose of gathering
and clarifying information. Accordingly,
questions of relevance, procedure, and
participation generally will be resolved
in favor of developing a clear, accurate,
and complete record within the
available time frame.
The available time frame for this
rulemaking is short as the agency hopes
to complete the rulemaking as quickly
as possible. OSHA remains aware of the
dangers to healthcare workers exposed
to COVID–19, as well as the potential
for new variants and the surges of
patients with COVID–19 that could
follow in healthcare. Pursuant to 29 CFR
1911.4, the Assistant Secretary may, on
reasonable notice, issue additional or
alternative procedures to expedite the
proceedings.
Although the ALJ presiding over the
hearing makes no decision or
recommendation on the merits of the
proposal, the ALJ has the responsibility
and authority necessary to ensure that
the hearing progresses at a reasonable
pace and in an orderly manner. To
ensure a full and fair hearing, the ALJ
has the power to regulate the course of
the proceedings; dispose of procedural
requests, objections, and comparable
matters; confine presentations to matters
pertinent to the issues the proposed rule
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raises; use appropriate means to regulate
the conduct of persons present at the
hearing; question witnesses and permit
others to do so; limit such questioning;
and leave the record open for a
reasonable time after the hearing for the
submission of additional data, evidence,
comments, and arguments from those
who participated in the hearing (29 CFR
1911.16).
At the close of the hearing, there will
be a post-hearing comment period
during which stakeholders may submit
final briefs, arguments, summations,
and additional data and information to
OSHA.
III. Notice of Intention To Appear at the
Hearing
Interested persons who intend to
provide oral testimony or documentary
evidence at the hearing must file a
written NOITA prior to the hearing and
in accordance with the instructions in
the ADDRESSES section earlier in this
document. To testify at the hearing,
interested persons must electronically
submit their NOITA on or before April
6, 2022. The NOITA must provide the
following information:
(1) Name, address, email address, and
telephone number of each individual
who will give oral testimony;
(2) Name of the establishment or
organization each individual represents,
if any;
(3) Occupational title and position of
each individual testifying; and
(4) A brief statement of the position
each individual will take with respect to
the issues raised by the ETS (e.g., ‘‘I
generally support/oppose the whole
standard,’’ ‘‘the requirement for
[specific provision] should be
removed,’’ ‘‘the scope of the rule should
be changed to include/exclude . . .’’).
The agency will consider the
information in each submission when
setting the hearing schedule. Before the
hearing, OSHA will make the hearing
procedures and hearing schedule
available at https://www.osha.gov/
coronavirus/healthcare/rulemaking and
in the docket. OSHA emphasizes that
the hearing is open to the public;
however, only individuals who file a
NOITA may testify at the hearing.
IV. Certification of the Hearing Record
and Agency Final Determination
Following the close of the hearing and
the post-hearing comment period, the
ALJ will certify the record to the
Assistant Secretary of Labor for
Occupational Safety and Health. The
record will consist of all of the written
comments, oral testimony, and
documentary evidence received during
the proceeding. The ALJ, however, will
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16431
not make or recommend any decisions
as to the content of the final standard.
Following certification of the record,
OSHA will review all the evidence
received into the record and will issue
the final rule based on the record as a
whole.
Authority and Signature
This document was prepared under
the direction of Douglas L. Parker,
Assistant Secretary of Labor for
Occupational Safety and Health, U.S.
Department of Labor, 200 Constitution
Avenue NW, Washington, DC 20210. It
is issued under the authority of sections
4, 6, and 8 of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 653,
655, 657); Secretary of Labor’s Order No.
8–2020 (85 FR 58393 (Sept. 18, 2020));
29 CFR part 1911; and 5 U.S.C. 553.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational
Safety and Health.
[FR Doc. 2022–06080 Filed 3–22–22; 8:45 am]
BILLING CODE 4510–26–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG–2022–0180]
Safety Zone; March Madness
Fireworks Display, New Orleans, LA
Coast Guard, DHS.
Notification of enforcement of
regulation.
AGENCY:
ACTION:
The Coast Guard will enforce
a temporary safety zone for a fireworks
display located on the navigable waters
of the Lower Mississippi River between
Mile Marker (MM) 94.5 to 95.5. This
action is needed to provide for the
safety of life on these navigable
waterways during the event. During the
enforcement periods, the operator of any
vessel in the regulated area must
comply with directions from the
Captain of the Port or designated
representative.
DATES: The regulations in 33 CFR
165.845 will be enforced from 9:30 p.m.
to 11 p.m. on April 3, 2022.
FOR FURTHER INFORMATION CONTACT: If
you have questions about this
notification of enforcement, call or
email Lieutenant Commander William
Stewart, Sector New Orleans, U.S. Coast
Guard; telephone 504–365–2246, email
William.A.Stewart@uscg.mil.
SUPPLEMENTARY INFORMATION: The Coast
Guard will enforce safety zone located
SUMMARY:
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]]>Agencies
[Federal Register Volume 87, Number 56 (Wednesday, March 23, 2022)]
[Rules and Regulations]
[Pages 16426-16431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-06080]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket No. OSHA-2020-0004]
RIN 1218-AD36
Occupational Exposure to COVID-19 in Healthcare Settings
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Notice of limited reopening of comment period; notice of
informal hearing.
-----------------------------------------------------------------------
SUMMARY: OSHA is partially reopening the comment period to allow for
additional public comment on specific topics and is scheduling an
informal public hearing on its interim final rule establishing an
Emergency Temporary Standard (ETS), ``Occupational Exposure to COVID-
19.'' The public hearing will begin on April 27, 2022.
DATES: Comments: Written comments in response to OSHA's limited
reopening of the comment period must be submitted in Docket No. OSHA-
2020-0004 on or before April 22, 2022.
Informal public hearing: The hearing will begin on April 27, 2022,
and will be held virtually. If necessary, the hearing will continue on
subsequent days. Additional information on how to access the informal
hearing will be posted when available at https://www.osha.gov/coronavirus/healthcare/rulemaking. To testify at the hearing,
interested persons must electronically submit their Notice of Intention
to Appear (NOITA) by April 6, 2022.
ADDRESSES:
Notices of Intention to Appear: Notices of intention to appear at
the hearing (NOITA) must be submitted electronically at https://www.osha.gov/coronavirus/healthcare/rulemaking. Follow the instructions
online for making electronic submissions. See ``Notices of Intention to
Appear'' in the SUPPLEMENTARY INFORMATION section of this document for
additional requirements for NOITAs.
Written comments: You may submit comments and attachments,
identified by Docket No. OSHA-2020-0004, electronically at
www.regulations.gov, which is the Federal e-Rulemaking Portal. Follow
the instructions online for making electronic submissions. After
accessing ``all documents and comments'' in the docket (Docket No.
OSHA-2020-0004), check the ``proposed rule'' box in the column headed
``Document Type,'' find the document posted on the date of publication
of this hearing notice, and click the ``Comment Now'' link. When
uploading multiple attachments to www.regulations.gov, please number
all of your attachments because www.regulations.gov will not
automatically number the attachments. This will be very useful in
identifying all attachments in the preamble. For example, Attachment
1_title of your document, Attachment 2_title of your document,
Attachment 3_title of your document. For assistance with commenting
and uploading documents, please see the Frequently Asked Questions on
www.regulations.gov.
Instructions: All submissions must include the agency's name and
the docket number for this rulemaking (Docket No. OSHA-2020-0004). All
comments, including any personal information you provide, are placed in
the public docket without change and may be made available online at
www.regulations.gov. Therefore, OSHA cautions commenters about
submitting information they do not want made available to the public,
or submitting materials that contain personal information (either about
themselves or others), such as Social Security Numbers and birthdates.
Docket: To read or download comments and other materials submitted
in the docket, or to view the hearing schedule and procedures when
available, go to Docket No. OSHA-2020-0004 at www.regulations.gov. All
comments and submissions are listed in the www.regulations.gov index;
however, some information (e.g., copyrighted material) may not be
publicly available to read or download through that website. All
documents submitted to www.regulations.gov, including copyrighted
material, are available for inspection through the OSHA Docket Office.
Documents submitted to the docket by OSHA or stakeholders are assigned
document identification numbers (Document ID) for easy identification
and retrieval. The full Document ID is the docket number plus a unique
four-digit code. OSHA is identifying supporting information in this
rulemaking by author name and
[[Page 16427]]
publication year, when appropriate. This information can be used to
search for a supporting document in the docket at www.regulations.gov.
Contact the OSHA Docket Office at (202) 693-2350 (TTY number: (877)
889-5627) for assistance in locating docket submissions. Please note
that NOITAs will be gathered outside the docket and OSHA will add a
list of individuals who have submitted NOITAs to the docket after the
submission deadline has passed.
FOR FURTHER INFORMATION CONTACT:
For press inquiries: Contact Frank Meilinger, Director, Office of
Communications, Occupational Safety and Health Administration, U.S.
Department of Labor; telephone: (202) 693-1999; email:
[email protected].
For general information and technical inquiries: Contact Andrew
Levinson, Acting Director, Directorate of Standards and Guidance,
Occupational Safety and Health Administration, U.S. Department of
Labor; telephone: (202) 693-1950; email: [email protected].
For Hearing Inquiries: Contact Amy Tryon, Division of Occupational
Safety and Health, Office of the Solicitor, U.S. Department of Labor;
telephone: (202) 693-8081; email: [email protected].
SUPPLEMENTARY INFORMATION: On June 21, 2021, OSHA published an ETS to
protect healthcare and healthcare support service workers from
occupational exposure to COVID-19 in settings where people with COVID-
19 are reasonably expected to be present (86 FR 32376). Although the
ETS took effect immediately, OSHA also requested comment on whether it
should become permanent, as well as on all other aspects of the ETS.
OSHA received 481 comments concerning the ETS during the comment
period, which was to end on July 21, 2021, but was extended to August
20, 2021, in response to requests from the public (86 FR 38232). To
read or download comments and other materials submitted in the docket,
go to Docket No. OSHA-2020-0004 at www.regulations.gov. In accordance
with 29 U.S.C. 655(c)(3), the agency is now preparing to promulgate a
final standard.
I. Additional Information and Request for Comment
OSHA is seeking public comment on certain specific topics and
questions for the development of a final standard. Accordingly, the
agency is partially reopening the comment period for the ETS to allow
for additional comment on the topics identified below. OSHA encourages
commenters to explain why they prefer or disfavor particular policy
choices, and include any relevant studies, experiences, anecdotes, or
other information that may help support the comment. OSHA seeks
comments on the following topics:
A. Potential Changes From the ETS
The following is a list of potential rulemaking outcomes that would
depart from the provisions of the ETS such that OSHA has decided to
provide this additional notice and an opportunity to comment. OSHA has
not made any decisions about these potential provisions or approaches,
nor is this intended to list all of the potential changes from the ETS.
Other changes may result after due consideration of all comments and
hearing testimony.
A.1--Alignment with CDC Recommendations for Healthcare Infection
Control Practices: Evolving CDC recommendations have resulted in
inconsistencies between those recommendations and some of the
Healthcare ETS provisions (e.g., isolation and return-to-work
guidance). A number of commenters requested that OSHA align its ETS
more closely with various CDC recommendations. OSHA is considering
doing so, but notes that, in some cases, CDC recommendations have
continued to evolve even after the close of the comment period. OSHA is
considering whether it is appropriate to align its final rule with some
or all of the CDC recommendations that have changed between the close
of the original comment period for this rule and the close of this
comment period. OSHA seeks comment on this approach.
A.2--Additional Flexibility for Employers: Some employers expressed
concern that the provisions of the Healthcare ETS were overly
prescriptive. The ETS, while rooted in a programmatic approach (e.g.,
COVID-19 plan, hazard assessment, policies and procedures to minimize
the risk of transmission of COVID-19), also specified how employers
were required to implement particular policies and procedures (e.g.,
criteria for medical removal and return to work, cleaning, ventilation,
barriers, aerosol-generating procedures). OSHA is considering restating
various provisions as broader requirements without the level of detail
included in the Healthcare ETS and providing a ``safe harbor''
enforcement policy for employers who are in compliance with CDC
guidance applicable during the period at issue. OSHA seeks comment on
this approach.
A.3--Removal of Scope Exemptions (e.g., ambulatory care facilities
where COVID-19 patients are screened out; home healthcare): A final
standard will be adopted under Section 6(b) of the OSH Act, which
requires a finding of significant risk from exposure to COVID-19,
rather than the finding of grave danger OSHA made in issuing the
Healthcare ETS under Section 6(c) of the OSH Act. Section 6(b) requires
that the standard substantially reduce or eliminate significant risk of
material impairment of health to the extent feasible. In view of this
different risk finding, OSHA is considering whether the scope of the
final standard should cover employers regardless of screening
procedures for non-employees and/or vaccination status of employees to
ensure that all workers are protected to the extent there is a
significant risk. OSHA seeks comment on this approach.
A.4--Tailoring Controls to Address Interactions with People with
Suspected or Confirmed COVID-19: OSHA is considering the need for
COVID-19-specific infection control measures in areas where healthcare
employees are not reasonably expected to encounter people with
suspected or confirmed COVID-19. This could include eliminating certain
requirements that were included in the Healthcare ETS and that applied
to all areas of covered healthcare settings. For example, OSHA could
consider imposing cleaning requirements or medical removal provisions
only with respect to staff exposed to COVID-19 patients or eliminating
facemask requirements for staff not exposed to COVID-19 patients. If
OSHA did restrict infection control requirements to particular areas of
a facility or particular staff, it could consider balancing that
narrower scope with a new ``outbreak provision'' to ensure that
healthcare employers would still have a duty to address an outbreak
quickly if an outbreak occurs among staff in the areas normally subject
to fewer requirements. For example, an outbreak could trigger a broad
performance requirement for the employer to implement additional
infection control measures to stop the outbreak, or it could trigger
more specific requirements, such as employer-provided testing and/or
medical removal of staff with COVID-19 even if they do not interact
with COVID-19 patients. OSHA seeks comment on these approaches,
including comment on how OSHA should define an ``outbreak'' if it were
to implement that approach (the CDC discusses ``outbreaks'' at https://www.cdc.gov/coronavirus/2019-ncov/php/contact-tracing/contact-tracing-plan/outbreaks.html).
[[Page 16428]]
A.5--Vaccination
A.5.1--Booster Doses: In the ETS, certain requirements take account
of whether individuals are ``fully vaccinated,'' which is defined in
paragraph (b) of the ETS as meaning ``2 weeks or more following the
final dose of a COVID-19 vaccine.'' Subsequent to the publication of
the ETS, the Advisory Committee on Immunization Practices (ACIP) has
recommended additional doses and booster doses. CDC has also adopted
the concept of ``up to date'' to describe vaccination recommendations
beyond the primary vaccination series. OSHA is considering how these
ACIP and CDC recommendations might impact the requirements in the ETS
that take account of individuals' vaccination status (e.g., fully
vaccinated, up to date) and seeks comment on this issue.
A.5.2--Employer Support of Employee Vaccination: OSHA is not
considering at this time requiring mandatory vaccination for employees
covered by this standard.
[cir] The Healthcare ETS included a provision requiring employers
to inform employees about the safety, efficacy, and benefits of
vaccination and provide reasonable time and paid leave to each employee
for vaccination and side effects experienced following vaccination.
OSHA is considering an adjustment to the requirement that would include
paid time up to 4 hours, including travel time, for employees to
receive a vaccine and paid sick leave to recover from side effects and
seeks comment on the approach.
[cir] OSHA is considering requiring employer support for employees
who wish to stay up to date on vaccination and boosters in accordance
with ACIP and CDC recommendations. OSHA seeks comment on the approach.
[cir] OSHA is considering whether to limit the provisions that
provide support for vaccination to employees not covered by the Centers
for Medicare & Medicaid Services (CMS) vaccination rule (86 FR 61555)
and seeks comment on this approach. The CMS vaccination rule requires
healthcare staff in facilities regulated by CMS to be vaccinated. The
majority of healthcare employees covered by this final rule work in
facilities covered by the CMS vaccination rule and are subject to the
CMS requirements.
A.5.3--Requirements for Vaccinated Workers: During the initial
comment period, stakeholders raised questions about whether the
Healthcare ETS requirements should be relaxed or eliminated based on
the vaccination status of the individual worker involved, the general
vaccination rate of the entire staff, and/or the general vaccination
rate of the community. OSHA is considering suggestions that
requirements be relaxed:
[cir] For masking, barriers, or physical distancing for vaccinated
workers in all areas of healthcare settings, not just where there is no
reasonable expectation that someone with suspected or confirmed COVID-
19 will be present
[cir] in healthcare settings where a high percentage of staff is
vaccinated (OSHA also is accepting comment on what that percentage
should be)
[cir] for exposure notification for vaccinated employees
OSHA seeks comment on these approaches.
A.6--Limited Coverage of Construction Activities in Healthcare
Settings: OSHA did not expressly include employers that engage in
construction work in hospitals, long-term care facilities and other
settings that are covered by the ETS. The construction industry was not
included in OSHA's industrial profile for the rule. OSHA is considering
clarifying this coverage and seeks comment on this approach. For
example, OSHA is considering the same coverage for workers engaged in
construction work inside a hospital (e.g., installing new ventilation
or new equipment or adding a new wall) as for workers engaged in
maintenance work or custodial tasks in the same facility. OSHA could
consider exceptions for construction work in isolated wings or other
spaces where construction employees would not be exposed to patients or
other staff.
A.7--Recordkeeping and Reporting: New Cap for COVID-19 Log
Retention Period: The COVID-19 log and reporting provisions, 29 CFR
1910.502(q)(2)(ii), (q)(3)(ii)-(iv), and (r), have remained in effect
because OSHA found good cause to forgo notice and comment in light of
the grave danger presented by the pandemic. See 86 FR 32559. Now that
OSHA is re-opening the comment period for the final rule, the agency
also seeks additional comment on 1910.502(q) and (r). In general, OSHA
is focused on whether any adjustments to those paragraphs should be
made in light of experiences involving the Delta or Omicron variants.
In addition, the agency proposes to cap the record retention period for
the COVID-19 log at one year from the date of the last entry in the
log, rather than the current approach in which that retention period is
tied to the duration of the standard (see 29 CFR
1910.502(q)(2)(ii)(C)).
A.8--Triggering Requirements Based on the Level of Community
Transmission: When employees are treating people with suspected or
confirmed COVID-19, the ETS requires certain control strategies (e.g.,
PPE) regardless of community transmission levels. Under the CDC's
current guidance for healthcare workers,\1\ many requirements for those
workers are triggered based on the level of community transmission of
COVID-19 (e.g., controls needed in areas of substantial or high
transmission, controls not needed in areas of low or moderate
transmission). OSHA is considering linking regulatory requirements to
measures of local risk, such as CDC's community transmission used in
CDC's guidance for healthcare settings or the CDC's COVID-19 Community
Levels used in CDC's guidance for prevention measures in community
settings.\2\ OSHA is seeking comment on that approach, including
impacts of such an approach on compliance and enforcement.
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\1\ Centers for Disease Control and Prevention (CDC). (2022,
February 2). Interim Infection Prevention and Control
Recommendations for Healthcare Personnel During the Coronavirus
Disease 2019 (COVID-19) Pandemic. https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-recommendations.html.
\2\ See Centers for Disease Control and Prevention (CDC). (2022,
February 2); see also Centers for Disease Control and Prevention
(CDC). (2022, March 4). COVID-19 Community Levels. https://www.cdc.gov/coronavirus/2019-ncov/science/community-levels.html.
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A.9--Evolution of SARS-CoV-2 into a Second Novel Strain: It is
possible that a future variant of SARS-CoV-2 will have sufficient
genetic drift to be designated another novel coronavirus strain but
still results in a disease that is similar to the current illness
(e.g., a hypothetical ``COVID-22''). OSHA is considering specifying
that this final standard would apply not only to COVID-19, but also to
subsequent related strains of the virus that are transmitted through
aerosols and pose similar risks and health effects. OSHA seeks comment
on this approach and alternatives to addressing the potential for new
strains related to SARS-CoV-2.
B. Additional Information/Data Requested
OSHA recognizes that the majority of the comment period occurred
prior to when the Delta and Omicron variants became prevalent in the
United States. OSHA requests new studies or data related to the Delta
and Omicron variants since the close of the initial comment period in
August 2021, particularly with respect to:
B.1: The average number of days healthcare workers have taken away from
work resulting from a COVID-
[[Page 16429]]
19 infection or quarantine and the percentage of healthcare workers who
have taken days away from work due to a COVID-19 infection or
quarantine
B.2: The health effects for fully vaccinated employees, and fully
vaccinated and boosted employees, who test positive for COVID-19,
including data on days away from work, hospitalizations, long COVID,
and fatalities
B.3: The percentage of healthcare workers who are at elevated risk of
severe COVID-19 infections (e.g., resulting in hospitalization or
extended days away from work), including for age-related or
immunocompromised reasons (not based solely on vaccination status)
B.4: The rate of infection, long COVID, hospitalization, and death
among healthcare workers compared to those rates among the general
adult population
B.5: The health effects and transmission rate of new and emerging
variants and sub-lineages of variants, including Omicron BA.2
Additionally, OSHA requests data and information on:
B.6: The vaccination rate among healthcare workers, including the rate
of healthcare workers who are fully vaccinated and boosted
B.7: The clinical indicators that will reliably predict the degree of
protection afforded by prior infection (i.e., infection-acquired
immunity), and how long such protection lasts
B.8: Vaccine efficacy and how such efficacy decreases over time
B.9: The appropriate periodicity of additional vaccine doses and
booster doses
B.10: Unintended consequences, such as decreases in staffing retention,
or other impacts, such as increases in staffing retention, due to the
potential alternatives raised in this notice
C. Information for Economic Analysis
C.1 Industry Profile: For the Healthcare ETS Industry Profile, OSHA
based the number of Affected Employees for Affected Industries on
whether employees performed healthcare services or healthcare support
services under the ETS. If employees did not perform healthcare
services or healthcare support services, OSHA did not consider them
Affected Employees. See 86 FR 32485. While this approach covered the
appropriate North American Industry Classification System (NAICS), the
approach may have resulted in an underestimate of Affected Employees.
As stated in 29 CFR 1910.502(a), ``this section applies to all settings
where any employee provides healthcare services or healthcare support
services.'' To address this potential underestimate for the final rule,
OSHA is considering revising its approach to base the number of
Affected Employees on setting, rather than occupation. OSHA seeks
comment on this potential approach.
C.1.1--Covered Industries
C.1.1A: OSHA acknowledged in the Healthcare ETS that it did not
``determine[ ] how many non-hospital ambulatory care providers will
screen patients for COVID-19 infections and symptoms, and therefore
might be fully exempt from the standard under paragraph (a)(2)(iii)''
of the ETS (86 FR at 32485). While OSHA included in the Healthcare ETS
Industry Profile several NAICS outside of healthcare where embedded
clinics are prevalent, such as schools, OSHA did not include a number
of industries that may have settings with embedded clinics (e.g.,
embedded clinics in manufacturing facilities) in the industry profile.
The Healthcare ETS applies to these embedded clinics, as OSHA made
clear both in the regulatory text and the Summary and Explanation for
the ETS. See 29 CFR 1910.502(a)(3)(i); 86 FR at 32563. To address this,
OSHA is considering including these industries in the final rule's
industry profile. OSHA notes that compliance with the final rule for
these industries would most likely result in minimal costs or no costs
because, under the Healthcare ETS, OSHA anticipated that many embedded
clinics will be fully exempt under the non-hospital ambulatory care
exception; and, if the rule applies, it will apply only with respect to
embedded clinics and not the entire facility. OSHA seeks comment on
this potential approach.
C.1.1B: As discussed above, OSHA noted in the Healthcare ETS that
it did not determine ``how many non-hospital ambulatory care providers
will screen patients for COVID-19 infections and symptoms, and
therefore be fully exempt from this rule under paragraph (a)(2)(iii)''
(86 FR at 32485). OSHA also noted that ``[t]o the extent that providers
meet these exemption criteria, they will incur no costs for compliance
with respect to these settings,'' and that ``[t]herefore, for this
subset of establishments, the costs presented in OSHA's analysis will
be dramatic overestimates (i.e., OSHA assumes full costs where costs
should be zero).'' (Id.) For the final rule, OSHA is considering
estimating the number of employers subject to this exemption, if it
remains in the standard, but seeks information and data to support such
an estimate.
C.1.2 Telework Employees: In the Healthcare ETS, OSHA accounted for
reduced employee exposure due to telework for benefits, but did not
explicitly account for telework in the number of employees affected by
the final rule in the Industry Profile. This may have resulted in an
overestimate of several employee-based costs, like the costs of
respirators and personal protective equipment, because OSHA may have
overestimated the number of employees affected by the final rule. In
the Vaccination and Testing ETS, OSHA adjusted its telework estimates
to reflect then-current teleworking conditions (see 86 FR 61462-61467).
OSHA is considering making similar adjustments to the final Healthcare
rule to estimate the current number of employees who telework. OSHA
seeks comment on this potential approach.
C.2 Costs
C.2.1--One-time costs: OSHA requests comments on the extent to
which some costs (e.g., costs associated with initial training,
upgrading ventilation, rule familiarization, COVID-19 Plan development,
respiratory protection program development) have already been incurred
to comply with the ETS. OSHA further requests comments on the extent to
which employers and other entities will bear ongoing costs (e.g.,
ongoing costs associated with training, PPE, respirators and the
respiratory protection program, medical removal protection, COVID-19
plan monitoring and modification, and ventilation maintenance) under a
final rule.
C.2.2--Age Group 65-74
C.2.2A: OSHA had not included employees in the age group 65-74 in
the economic analysis of the Healthcare ETS out of concern that the
population-wide average of workers in this age bracket would overcount
the number of such workers in this sector. See 86 FR at 61470 n. 32.
OSHA is rethinking this approach for the Healthcare final rule and
seeks comment on including this age group in the analysis of both costs
and benefits.
C.2.2B: OSHA will likely update its estimates to reflect the
current baseline of vaccinated employees (for example, to incorporate
the effects of the CMS vaccine-mandate rule on vaccination rates). OSHA
will likely rely on the most recent CDC COVID-19 data tracker, as it
did for the Healthcare ETS and the Vaccination and Testing ETS,
[[Page 16430]]
and may also rely on estimates or data from CMS or other credible
sources, to update its estimates. OSHA seeks comment on whether there
is other data OSHA should rely on.
C.2.3--Ancillary Costs
C.2.3A: In the Healthcare ETS, OSHA offset the cost to employers
associated with medical removal and vaccination support with tax
credits employers would receive. OSHA is considering how to adjust its
methodology in the final rule given the expiration of these tax credits
and seeks data and information on this issue. OSHA notes that it could
take an approach similar to the one it took in the Vaccination and
Testing ETS, i.e., by estimating the number of employers that would
(and would not) incur costs because employees could be required to use
accrued sick leave benefits for medical removal and vaccination support
(Compare 86 FR 32512 (including footnote 61) with 86 FR 61480).
C.2.3B: OSHA is considering updating the manner in which it
estimates side effects associated with vaccine doses using CDC
estimates (86 FR 32513 & n.63). OSHA is considering following an
approach similar to the one it followed in the Vaccination and Testing
ETS (86 FR 61480) where OSHA calculated the estimated time off using a
more recent study that surveyed workers at a state-wide healthcare
system who had been vaccinated.\3\ OSHA seeks data and information on
this issue.
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\3\ Levi ML et al. (2021, September 25). COVID-19 mRNA
vaccination, reactogenicity, work-related absences and the impact on
operating room staffing: A cross-sectional study. Perioperative Care
and Operating Room Management preprint. https://doi.org/10.1016/j.pcorm.2021.100220.
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C.3 Benefits Data Sources: For the final rule, OSHA is considering
using CDC COVID-19 case and fatality data which was unavailable when
the Healthcare ETS was initially issued, and seeks comment on this
issue. OSHA based the Vaccination and Testing ETS impact analysis on
the CDC data which tabulates the respective number of cases and
fatalities for the unvaccinated and vaccinated populations.
OSHA also seeks information and data on cases, illnesses,
hospitalizations, and fatalities that are specific to employees that
would be subject to the final rule (i.e., those in the healthcare
field). OSHA notes that it is aware of one potential source that
measured deaths in healthcare occupations during the first year of the
pandemic.\4\
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\4\ Kaiser Health News and the Guardian. (2021, April). Lost on
the Frontline. The Guardian. https://www.theguardian.com/us-news/ng-interactive/2020/aug/11/lost-on-the-frontline-covid-19-coronavirus-us-healthcare-workers-deaths-database.
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OSHA is considering using all sources of data on which it relied in
the Healthcare ETS and the Vaccination and Testing ETS, as well some
new data sources it did not rely on, including, for example:
CDC Daily Tracker: Daily Tracker Home,\5\
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\5\ CDC Daily Tracker: Daily Tracker Home: https://covid.cdc.gov/covid-data-tracker/#datatracker-home.
---------------------------------------------------------------------------
Demographic Trends of COVID-19 cases and deaths in the US
reported to CDC,6 7 8
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\6\ COVID-19 Weekly Cases and Deaths per 100,000 Population by
Age, Race/Ethnicity, and Sex: https://covid.cdc.gov/covid-data-tracker/#demographicsovertime.
\7\ Demographic Trends of COVID-19 cases and deaths in the U.S.
reported to CDC: https://covid.cdc.gov/covid-data-tracker/#demographics.
\8\ Trends in COVID-19 Cases and Deaths in the United States, by
County-level Population Factors
Maps, charts, and data provided by CDC: https://covid.cdc.gov/covid-data-tracker/#pop-factors_7daynewcases.
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Rates of COVID-19 Cases and Deaths by Vaccination
Status,\9\
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\9\ Rates of COVID-19 Cases and Deaths by Vaccination Status:
https://covid.cdc.gov/covid-data-tracker/#rates-by-vaccine-status.
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Rates of laboratory-confirmed COVID-19 hospitalizations by
vaccination status,\10\
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\10\ https://covid.cdc.gov/covid-data-tracker/#covidnet-hospitalizations-vaccination.
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United States COVID-19 Cases, Deaths, and Laboratory
Testing (NAATs) by State, Territory, and Jurisdiction,\11\
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\11\ https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days.
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Nationwide COVID-19 Infection-Induced Antibody
Seroprevalence,12 13
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\12\ Nationwide COVID-19 Infection-Induced Antibody
Seroprevalence (Commercial laboratories): https://covid.cdc.gov/covid-data-tracker/#national-lab.
\13\ Nationwide COVID-19 Infection- and Vaccination-Induced
Antibody Seroprevalence (Blood donations): https://covid.cdc.gov/covid-data-tracker/#nationwide-blood-donor-seroprevalence.
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Kaiser Health News/UK Guardian,\14\
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\14\ Kaiser Health News and the Guardian. (2021, April). Lost on
the Frontline. The Guardian. https://www.theguardian.com/us-news/ng-interactive/2020/aug/11/lost-on-the-frontline-covid-19-coronavirus-us-healthcare-workers-deaths-database.
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US Census: Current Population Statistics,\15\
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\15\ https://www.census.gov/programs-surveys/cps/data.html.
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The National Panel Study of COVID-19
(NPSC19),16 17
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\16\ https://www.brookings.edu/blog/up-front/2020/08/13/the-covid-19-public-health-and-economic-crises-leave-vulnerable-populations-exposed/.
\17\ https://static1.squarespace.com/static/57c9d7602994ca1ac7d06b71/t/60243c4a2c291024fa12e979/1612987471528/UW_IRP_Grooms_Feb_2021.pdf.
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Census Bureau Household Pulse Survey,\18\
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\18\ Household Pulse Survey: Measuring Social and Economic
Impacts during the Coronavirus Pandemic: https://www.census.gov/programs-surveys/household-pulse-survey.html.
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National Center for Health Statistics,\19\
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\19\ https://www.cdc.gov/nchs/data_access/ftp_data.htm.
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American Community Survey,\20\ and
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\20\ https://www.census.gov/programs-surveys/acs/data.html.
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Optum Clinformatics Data Mart.\21\
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\21\ https://web.uri.edu/optum/.
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C.4 Small Business: In developing the Final Regulatory Flexibility
Analysis (FRFA), OSHA is seeking comments on whether there are specific
issues regarding small covered healthcare entities (i.e., small
businesses, small non-profits, and small government jurisdictions) that
OSHA should consider, particularly with respect to the technical or
economic feasibility of complying with a possible revised rule.
C.5--Assumptions
C.5.1 Vaccine Efficacy: For the Healthcare ETS, OSHA accounted for
vaccine efficacy in its benefits analysis. For the final rule, OSHA is
considering accounting for booster efficacy using the CDC Data Tracker,
which was the same source for determining vaccine efficacy. OSHA seeks
comment on this potential approach and data on which to update its
estimates.
C.5.2 Frequency, Severity, and Distribution of Infections: There
was ``still some uncertainty surrounding the frequency and severity of
COVID-19 infections and their distribution'' when the Healthcare ETS
was issued (86 FR 32545), so OSHA focused that economic analysis on
hospitalizations and fatalities. More time and data have brought more
certainty regarding other outcomes, so for the final rule OSHA is
considering also accounting in its economic analysis for COVID-19-
related long-term effects (i.e., long COVID), hospitalization, and
shorter illness (due to variants, increased vaccinations, and improved
treatments). Additionally, OSHA is considering using an approach
similar to that in the Vaccination and Testing ETS, where OSHA took
account of breakthrough cases and fatalities in vaccinated employees
when it assessed the health impacts. OSHA seeks comment and data on
these potential modifications.
II. Informal Public Hearing--Purpose, Rules, and Procedures
One commenter requested that OSHA hold a public hearing on the
[[Page 16431]]
rulemaking. See OSHA-2020-0004-1034, Attachment 1. OSHA has agreed to
do so. OSHA invites interested persons to participate in this
rulemaking by providing oral testimony and documentary evidence at the
informal public hearing to provide the agency with the best available
evidence to use in developing the final rule.
Pursuant to 29 CFR 1911.15(a) and 5 U.S.C. 553(c), members of the
public have an opportunity at the informal public hearing to provide
oral testimony and evidence on issues raised by the proposal. An
administrative law judge (ALJ) presides over each OSHA hearing and will
resolve any procedural matters relating to the hearing.
OSHA's regulation governing public hearings (29 CFR 1911.15)
establishes the purpose and procedures of informal public hearings.
Although the presiding officer of the hearing is an ALJ and questioning
of witnesses may be allowed on crucial issues, the proceeding is
largely informal and essentially legislative in purpose. Therefore, the
hearing provides interested persons with an opportunity to make oral
presentations in the absence of rigid procedures that could impede or
protract the rulemaking process. The hearing is not an adjudicative
proceeding subject to the Federal Rules of Evidence. Instead, it is an
informal administrative proceeding convened for the purpose of
gathering and clarifying information. Accordingly, questions of
relevance, procedure, and participation generally will be resolved in
favor of developing a clear, accurate, and complete record within the
available time frame.
The available time frame for this rulemaking is short as the agency
hopes to complete the rulemaking as quickly as possible. OSHA remains
aware of the dangers to healthcare workers exposed to COVID-19, as well
as the potential for new variants and the surges of patients with
COVID-19 that could follow in healthcare. Pursuant to 29 CFR 1911.4,
the Assistant Secretary may, on reasonable notice, issue additional or
alternative procedures to expedite the proceedings.
Although the ALJ presiding over the hearing makes no decision or
recommendation on the merits of the proposal, the ALJ has the
responsibility and authority necessary to ensure that the hearing
progresses at a reasonable pace and in an orderly manner. To ensure a
full and fair hearing, the ALJ has the power to regulate the course of
the proceedings; dispose of procedural requests, objections, and
comparable matters; confine presentations to matters pertinent to the
issues the proposed rule raises; use appropriate means to regulate the
conduct of persons present at the hearing; question witnesses and
permit others to do so; limit such questioning; and leave the record
open for a reasonable time after the hearing for the submission of
additional data, evidence, comments, and arguments from those who
participated in the hearing (29 CFR 1911.16).
At the close of the hearing, there will be a post-hearing comment
period during which stakeholders may submit final briefs, arguments,
summations, and additional data and information to OSHA.
III. Notice of Intention To Appear at the Hearing
Interested persons who intend to provide oral testimony or
documentary evidence at the hearing must file a written NOITA prior to
the hearing and in accordance with the instructions in the ADDRESSES
section earlier in this document. To testify at the hearing, interested
persons must electronically submit their NOITA on or before April 6,
2022. The NOITA must provide the following information:
(1) Name, address, email address, and telephone number of each
individual who will give oral testimony;
(2) Name of the establishment or organization each individual
represents, if any;
(3) Occupational title and position of each individual testifying;
and
(4) A brief statement of the position each individual will take
with respect to the issues raised by the ETS (e.g., ``I generally
support/oppose the whole standard,'' ``the requirement for [specific
provision] should be removed,'' ``the scope of the rule should be
changed to include/exclude . . .'').
The agency will consider the information in each submission when
setting the hearing schedule. Before the hearing, OSHA will make the
hearing procedures and hearing schedule available at https://www.osha.gov/coronavirus/healthcare/rulemaking and in the docket. OSHA
emphasizes that the hearing is open to the public; however, only
individuals who file a NOITA may testify at the hearing.
IV. Certification of the Hearing Record and Agency Final Determination
Following the close of the hearing and the post-hearing comment
period, the ALJ will certify the record to the Assistant Secretary of
Labor for Occupational Safety and Health. The record will consist of
all of the written comments, oral testimony, and documentary evidence
received during the proceeding. The ALJ, however, will not make or
recommend any decisions as to the content of the final standard.
Following certification of the record, OSHA will review all the
evidence received into the record and will issue the final rule based
on the record as a whole.
Authority and Signature
This document was prepared under the direction of Douglas L.
Parker, Assistant Secretary of Labor for Occupational Safety and
Health, U.S. Department of Labor, 200 Constitution Avenue NW,
Washington, DC 20210. It is issued under the authority of sections 4,
6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C.
653, 655, 657); Secretary of Labor's Order No. 8-2020 (85 FR 58393
(Sept. 18, 2020)); 29 CFR part 1911; and 5 U.S.C. 553.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2022-06080 Filed 3-22-22; 8:45 am]
BILLING CODE 4510-26-P
