[Federal Register Volume 86, Number 116 (Monday, June 21, 2021)]
[Rules and Regulations]
[Pages 32376-32628]
[FR Doc No: 2021-12428]

Vol. 86

Monday,

No. 116

June 21, 2021

Part II

Department of Labor

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Occupational Safety and Health Administration

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29 CFR Part 1910

Occupational Exposure to COVID-19; Emergency Temporary Standard;
Interim Final Rule

Federal Register / Vol. 86 , No. 116 / Monday, June 21, 2021 / Rules
and Regulations

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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; Emergency Temporary Standard

AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.

ACTION: Interim final rule; request for comments.

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SUMMARY: The Occupational Safety and Health Administration (OSHA) is
issuing an emergency temporary standard (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. During the period of the emergency standard, covered
healthcare employers must develop and implement a COVID-19 plan to
identify and control COVID-19 hazards in the workplace. Covered
employers must also implement other requirements to reduce transmission
of COVID-19 in their workplaces, related to the following: Patient
screening and management; Standard and Transmission-Based Precautions;
personal protective equipment (PPE), including facemasks or
respirators; controls for aerosol-generating procedures; physical
distancing of at least six feet, when feasible; physical barriers;
cleaning and disinfection; ventilation; health screening and medical
management; training; anti-retaliation; recordkeeping; and reporting.
The standard encourages vaccination by requiring employers to provide
reasonable time and paid leave for employee vaccinations and any side
effects. It also encourages use of respirators, where respirators are
used in lieu of required facemasks, by including a mini respiratory
protection program that applies to such use. Finally, the standard
exempts from coverage certain workplaces where all employees are fully
vaccinated and individuals with possible COVID-19 are prohibited from
entry; and it exempts from some of the requirements of the standard
fully vaccinated employees in well-defined areas where there is no
reasonable expectation that individuals with COVID-19 will be present.

DATES:
    Effective dates: The rule is effective June 21, 2021. The
incorporation by reference of certain publications listed in the rule
is approved by the Director of the Federal Register as of June 21,
2021.
    Compliance dates: Compliance dates for specific provisions are in
29 CFR 1910.502(s). Employers must comply with all requirements of this
section, except for requirements in paragraphs (i), (k), and (n) by
July 6, 2021. Employers must comply with the requirements in paragraphs
(i), (k), and (n) by July 21, 2021.
    Comments due: Written comments, including comments on any aspect of
this ETS and whether this ETS should become a final rule, must be
submitted by July 21, 2021 in Docket No. OSHA-2020-0004. Comments on
the information collection determination described in Section VII.K of
the preamble (OMB Review under the Paperwork Reduction Act of 1995) may
be submitted by August 20, 2021 in Docket Number OSHA-2021-003.

ADDRESSES: In accordance with 28 U.S.C. 2112(a), the agency designates
Edmund C. Baird, Associate Solicitor of Labor for Occupational Safety
and Health, Office of the Solicitor, U.S. Department of Labor, to
receive petitions for review of the ETS. Service can be accomplished by
email to<EMAIL_ADDRESS>    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 online instructions for making electronic submissions.
    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 or other material in the
docket, 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) is not publicly
available to read or download through that website. All comments and
submissions, 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 ETS by author name and
publication year, when appropriate. This information can be used to
search for a supporting document in the docket at http://www.regulations.gov. Contact the OSHA Docket Office at<PHONE_NUMBER>
(TTY number:<PHONE_NUMBER>) for assistance in locating docket
submissions.

FOR FURTHER INFORMATION CONTACT:
    General information and press inquiries: Contact Frank Meilinger,
Director, Office of Communications, U.S. Department of Labor; telephone
(202) 693-1999; email<EMAIL_ADDRESS>    For technical inquiries: Contact Andrew Levinson, Directorate of
Standards and Guidance, U.S. Department of Labor; telephone (202) 693-
1950.

SUPPLEMENTARY INFORMATION: The preamble to the ETS on occupational
exposure to COVID-19 follows this outline:

Table of Contents

I. Executive Summary
II. History of COVID-19
III. Pertinent Legal Authority
IV. Rationale for the ETS
    A. Grave Danger
    B. Need for the ETS
V. Need for Specific Provisions of the ETS
VI. Feasibility
    A. Technological Feasibility
    B. Economic Feasibility
VII. Additional Requirements
VIII. Summary and Explanation of the ETS
Authority and Signature

I. Executive Summary

    This ETS is based on the requirements of the Occupational Safety
and Health Act (OSH Act or Act) and legal precedent arising under the
Act. Under section 6(c)(1) of the OSH Act, 29 U.S.C. 655(c)(1), OSHA
shall issue an ETS if the agency determines that employees are exposed
to grave danger from exposure to substances or agents determined to be
toxic or physically harmful or from new hazards, and an ETS is
necessary to protect employees from such danger. These legal
requirements are more fully discussed in Pertinent Legal Authority
(Section III of this preamble).
    For the first time in its 50-year history, OSHA faces a new hazard
so grave that it has killed nearly 600,000

people in the United States in barely over a year, and infected
millions more (CDC, May 24, 2021a). And the impact of this new illness
has been borne disproportionately by the healthcare and healthcare
support workers tasked with caring for those infected by this disease.
As of May 24, 2021, over 491,816 healthcare workers have contracted
COVID-19, and more than 1,600 of those workers have died (CDC, May 24,
2021b). OSHA has determined that employee exposure to this new hazard,
SARS-CoV-2 (the virus that causes COVID-19), presents a grave danger to
workers in all healthcare settings in the United States and its
territories where people with COVID-19 are reasonably expected to be
present. This finding of grave danger is based on the science of how
the virus spreads and the elevated risk in workplaces where COVID-19
patients are cared for, as well as the adverse health effects suffered
by those diagnosed with COVID-19, as discussed in Grave Danger (Section
IV.A. of this preamble).
    OSHA has also determined that an ETS is necessary to protect
healthcare and healthcare support employees in covered healthcare
settings from exposures to SARS-CoV-2, as discussed in Need for the ETS
(Section IV.B. of this preamble). Workers face a particularly elevated
risk of exposure to SARS-CoV-2 in settings where patients with
suspected or confirmed COVID-19 receive treatment or where patients
with undiagnosed illnesses come for treatment (e.g., emergency rooms,
urgent care centers), especially when providing care or services
directly to those patients. Through its enforcement efforts to date,
OSHA has encountered significant obstacles, revealing that existing
standards, regulations, and the OSH Act's General Duty Clause are
inadequate to address the COVID-19 hazard for employees covered by this
ETS. The agency has determined that a COVID-19 ETS is necessary to
address these inadequacies. Additionally, as states and localities have
taken increasingly more divergent approaches to COVID-19 workplace
regulation--ranging from states with their own COVID-19 ETSs to states
with no workplace protections at all--it has become clear that a
Federal standard is needed to ensure sufficient protection for
healthcare employees in all states.
    The development of safe and highly effective vaccines and the on-
going nationwide distribution of these vaccines are encouraging
milestones in the nation's response to COVID-19. OSHA recognizes the
promise of vaccines to protect workers, but as of the time of the
promulgation of the ETS, vaccination has not eliminated the grave
danger presented by the SARS-CoV-2 virus to the entire healthcare
workforce. Indeed, approximately a quarter of healthcare workers have
not yet completed COVID-19 vaccination (King et al., April 24, 2021).
Nonetheless, vaccination is critical in combatting COVID-19, and the
standard requires employers to provide paid leave to employees so that
they can be vaccinated and recover from any side effects. Additionally,
certain workplaces and well-defined areas where all employees are fully
vaccinated are exempted from all of the standard's requirements, and
certain fully vaccinated workers are exempted from several of the
standard's requirements. OSHA will continue to monitor trends in COVID-
19 infections and deaths as more of the workforce and the general
population become vaccinated and the pandemic continues to evolve.
Where OSHA finds a grave danger from the virus no longer exists for the
covered workforce (or some portion thereof), or new information
indicates a change in measures necessary to address the grave danger,
OSHA will update the ETS, as appropriate.
    To protect workers in the meantime, however, a multi-layered
approach to controlling occupational exposures to SARS-CoV-2 in
healthcare workplaces is required. As discussed in the Need for
Specific Provisions (Section V of this preamble), OSHA relied on the
best available science for its decisions concerning appropriate
provisions for the ETS and its determinations regarding the kind and
degree of protective actions needed to protect against exposure to
SARS-CoV-2 at work and the feasibility of instituting these provisions.
More specifically, the agency's analysis demonstrates that an effective
COVID-19 control program must utilize a suite of overlapping controls
in a layered approach to protect workers from workplace exposure to
SARS-CoV-2. OSHA emphasizes that the infection control practices
required by the ETS are most effective when used together; however,
they are also each individually protective.
    The agency has also evaluated the feasibility of this ETS and has
determined that the requirements of the ETS are both economically and
technologically feasible, as outlined in Feasibility (Section VI of
this preamble). Table I.-1, which is derived from material presented in
Section VI of this preamble, provides a summary of OSHA's best estimate
of the costs and benefits of the rule using a discount rate of 3
percent. The specific requirements of the ETS are outlined and
described in the Summary and Explanation (Section VIII of this
preamble). OSHA requests comments on the provisions of the ETS and
whether it should be adopted as a permanent standard.

[GRAPHIC] [TIFF OMITTED] TR21JN21.000

II. History of COVID-19

    The global pandemic of respiratory disease (coronavirus disease
2019 or ``COVID-19'') caused by a novel coronavirus (SARS-CoV-2) has
been taking an enormous toll on individuals, workplaces, and
governments around the world since early 2020. According to the World
Health Organization (WHO), as of May 24, 2021, there had been
166,860,081 confirmed cases of COVID-19 globally, resulting in more
than 3,459,996 deaths (WHO, May 24, 2021). In the United States as of
the same date, the CDC reported over 32,947,548 cases in the United
States and over 587,342 deaths due to the disease (CDC, May 24, 2021a;
CDC, May 24, 2021c). Among healthcare workers specifically, as of May
24, 2021, 491,816 healthcare workers in the United States had
contracted COVID-19, and at least 1,611 of those workers had died; both
of those figures are likely an undercount (CDC, May 24, 2021b).
    The first confirmed case of COVID-19 was identified in the Hubei
Province of China in December of 2019 (Chen et al., August 6, 2020). On
December 31, 2019, China reported to the WHO that it had identified
several influenza-like cases of unknown cause in Wuhan, China (WHO,
January 5, 2020). Soon, COVID-19 infections had spread throughout Asia,
Europe, and North and South America. By February 2020, 58 other
countries had reported COVID-19 cases (WHO, March 1, 2020). By March
2020, widespread local transmission of the virus was established in 88
countries. Because of the widespread transmission and severity of the
disease, along with what the WHO described as alarming levels of
inaction, the WHO officially declared COVID-19 a pandemic on March 11,
2020 (WHO, March 11, 2020).
    The first reported case of COVID-19 in the United States was in the
state of Washington, on January 21, 2020, in a person who had returned
from Wuhan, China on January 15, 2020 (CDC, January 21, 2020). On
January 31, 2020, the COVID-19 outbreak was declared to be a U.S.
public health emergency (US DHHS, January 31, 2020). After the initial
report of the virus in January 2020, a steep increase in COVID-19 cases
in the U.S. was observed though March and early April. In the six weeks
between March 1, 2020 and April 12, 2020, the 7-day moving average of
new cases rose from only 57 to 31,779 (CDC, May 24, 2021d). The
President declared the COVID-19 outbreak a national emergency on March
13, 2020 (The White House, March 13, 2020). As of March 19, 2020, all
50 states and the District of Columbia had declared emergencies related
to the pandemic

(NGA, March 19, 2020; NGA, December 4, 2020; Ayanian, June 3, 2020).
    The U.S. Food and Drug Administration (FDA) issued or expanded
emergency use authorizations (EUAs) for three COVID-19 vaccines between
December 2020 and May 2021. Currently, everyone in the United States
age 12 and older is eligible to receive a COVID-19 vaccine. As of May
24, 2021, the CDC reported that 163,907,827 people had received at
least one dose of vaccine and 130,615,797 people were fully vaccinated,
representing 45 percent and 32.8 percent of the total U.S. population,
respectively (CDC, May 24, 2021e). Vaccination rates are higher among
people ages 65 and older than among the rest of the population.
    Despite the relatively rapid distribution of vaccines in many areas
of the U.S., a substantial proportion of the working age population
remains unvaccinated and susceptible to COVID-19 infection, including
approximately a quarter of all healthcare and healthcare support
workers (King et al., April 24, 2021). And, as discussed in more detail
in Grave Danger (Section IV.A. of this preamble), because workers in
healthcare settings where COVID-19 patients are treated continue to
have regular exposure to SARS-CoV-2 and any variants that develop, they
remain at an elevated risk of contracting COVID-19 regardless of
vaccination status. Therefore, OSHA has determined that a grave danger
to healthcare and healthcare support workers remains, despite the
fully-vaccinated status of some workers, and that an ETS is necessary
to address this danger (see Grave Danger and Need for the ETS (Sections
IV.A. and IV.B. of this preamble)).
References
Ayanian, JZ. (2020, June 3). Taking shelter from the COVID storm.
JAMA Health Forum. https://jamanetwork.com/channels/health-forum/fullarticle/2766931. (Ayanian, June 3, 2020).
Centers for Disease Control and Prevention (CDC). (2020, January
21). First travel-related case of 2019 novel coronavirus detected in
United States. https://www.cdc.gov/media/releases/2020/p0121-novel-coronavirus-travel-case.html. (CDC, January 21, 2020).
Centers for Disease Control and Prevention (CDC). (2021a, May 24).
COVID data tracker. Trends in number of COVID-19 cases and deaths in
the US reported to CDC, by state/territory: Trends in Total COVID-19
Deaths in the United States Reported to CDC. https://covid.cdc.gov/covid-data-tracker/#trends_dailytrendscases. (CDC, May 24, 2021a)
Centers for Disease Control and Prevention (CDC). (2021b, May 24).
Cases & Deaths among Healthcare Personnel. https://covid.cdc.gov/covid-data-tracker/#health-care-personnel. (CDC, May 24, 2021b)
Centers for Disease Control and Prevention (CDC). (2021c, May 24).
COVID data tracker. Trends in number of COVID-19 cases and deaths in
the US reported to CDC, by state/territory: Trends in Total COVID-19
Cases in the United States Reported to CDC. https://covid.cdc.gov/covid-data-tracker/#trends_dailytrendscases. (CDC, May 24, 2021c).
Centers for Disease Control and Prevention (CDC). (2021d, May 24).
COVID data tracker. Trends in number of COVID-19 cases and deaths in
the US reported to CDC, by state/territory: Daily Trends in Number
of COVID-19 Cases in the United States Reported to CDC. https://covid.cdc.gov/covid-data-tracker/#trends_dailytrendscases. (CDC, May
24, 2021d).
Centers for Disease Control and Prevention (CDC). (2021e, May 24).
COVID-19 Vaccinations in the United States. https://covid.cdc.gov/covid-data-tracker/#vaccinations. (CDC, May 24, 2021e).
Chen, Y.-T, et al., (2020, August 6). An examination on the
transmission of COVID-19 and the effect of response strategies: A
comparative analysis. International Journal of Environmental
Research and Public Health 17(16):5687. https://www.mdpi.com/1660-4601/17/16/5687. (Chen et al., August 6, 2020).
King, WC, et al., (2021, April 24). COVID-19 vaccine hesitancy
January-March 2021 among 18-64 year old US adults by employment and
occupation. medRxiv; https://www.medrxiv.org/content/10.1101/2<IP_ADDRESS>55821v3. (King et al., April 24, 2021).
National Governor's Association (NGA). (2020, March 19).
Coronavirus:what you need to know. https://www.nga.org/coronavirus/.
(NGA, March 19, 2020).
National Governor's Association (NGA). (2020, December 4). Summary
of state pandemic mitigation actions. https://www.nga.org/coronavirus-mitigation-actions/. (NGA, December 4, 2020).
The White House. (2020, March 13). Proclamation on declaring a
national emergency concerning the novel coronavirus disease (COVID-
19) outbreak. https://web.archive.org/web/20200313234554/https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/. (The White House, March 13, 2020).
United States Department of Health and Human Services (US DHHS).
(2020, January 31). Determination that a public health emergency
exists. https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx. (US DHHS, January 31, 2020).
World Health Organization (WHO). (2020, January 5). Emergencies
preparedness, response--Pneumonia of unknown cause--China. Disease
outbreak news. https://www.who.int/csr/don/05-january-2020-pneumonia-of-unkown-cause-china/en/. (WHO, January 5, 2020).
World Health Organization (WHO). (2020, March 1). Coronavirus
disease 2019 (COVID-19) situation report--41. https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200301-sitrep-41-covid-19.pdf?sfvrsn=6768306d_2. (WHO, March 1, 2020).
World Health Organization (WHO). (2020, March 11). Coronavirus
disease 2019 (COVID-19) situation report--51. https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200311-sitrep-51-covid-19.pdf?sfvrsn=1ba62e57_10. (WHO, March 11, 2020).
World Health Organization (WHO). (2021, May 24). WHO Coronavirus
Disease (COVID-19) Dashboard. https://covid19.who.int/table. (WHO,
May 24, 2021).

III. Pertinent Legal Authority

    The purpose of the Occupational Safety and Health Act of 1970 (OSH
Act), 29 U.S.C. 651 et seq., is ``to assure so far as possible every
working man and woman in the Nation safe and healthful working
conditions and to preserve our human resources.'' 29 U.S.C. 651(b). To
this end, Congress authorized the Secretary of Labor (Secretary) to
promulgate and enforce occupational safety and health standards under
sections 6(b) and (c) of the OSH Act.\1\ 29 U.S.C. 655(b). These
provisions provide bases for issuing occupational safety and health
standards under the Act. Once OSHA has established as a threshold
matter that a health standard is necessary under section 6(b) or (c)--
i.e., to reduce a significant risk of material health impairment, or a
grave danger to employee health--the Act gives the Secretary ``almost
unlimited discretion to devise means to achieve the congressionally
mandated goal'' of protecting employee health, subject to the
constraints of feasibility. See United Steelworkers of Am. v. Marshall,
647 F.2d 1189, 1230 (D.C. Cir. 1981). A standard's individual
requirements need only be ``reasonably related'' to the purpose of
ensuring a safe and healthful working environment. Id. at 1237, 1241;
see also Forging Industry Ass'n v. Sec'y of Labor, 773 F.2d 1436, 1447
(4th Cir. 1985). OSHA's authority to regulate employers is hedged by
constitutional considerations and, pursuant to section 4(b)(1) of the
OSH Act, the regulations and enforcement policies of other

federal agencies. Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235, 241
(2002).
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    \1\ The Secretary has delegated most of his duties under the OSH
Act to the Assistant Secretary of Labor for Occupational Safety and
Health. Secretary's Order 08-2020, 85 FR 58393 (Sept. 18, 2020).
This section uses the terms Secretary and OSHA interchangeably.
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    The OSH Act reflects Congress's determination that the costs of
compliance with the Act and OSHA standards are part of the cost of
doing business and OSHA may foreclose employers from shifting those
costs to employees. See Am. Textile Mfrs. Inst., Inc. v. Donovan, 452
U.S. 490, 514 (1981); Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1239-
40 (9th Cir. 1984); see also Sec'y of Labor v. Beverly Healthcare-
Hillview, 541 F.3d 193 (3d Cir. 2008). Furthermore, the Act and its
legislative history ``both demonstrate unmistakably'' OSHA's authority
to require employers to temporarily remove workers from the workplace
to prevent exposure to a health hazard. United Steelworkers of Am., 647
F.2d at 1230.
    The OSH Act states that the Secretary ``shall'' issue an emergency
temporary standard (ETS) if he finds that the ETS is necessary to
address a grave danger to workers. See 29 U.S.C. 655(c). In particular,
the Secretary shall provide, without regard to the requirements of
chapter 5, title 5, United States Code, for an emergency temporary
standard to take immediate effect upon publication in the Federal
Register if he determines that employees are exposed to grave danger
from exposure to substances or agents determined to be toxic or
physically harmful or from new hazards, and that such emergency
standard is necessary to protect employees from such danger. 29 U.S.C.
655(c)(1).
    A separate section of the OSH Act, section 8(c), authorizes the
Secretary to prescribe regulations requiring employers to make, keep,
and preserve records that are necessary or appropriate for the
enforcement of the Act. 29 U.S.C. 657(c)(1). Section 8(c) also provides
that the Secretary shall require employers to keep records of, and
report, work-related deaths and illnesses. 29 U.S.C. 657(c)(2).
    The ETS provision, section 6(c)(1), exempts the Secretary from
procedural requirements contained in the OSH Act and the Administrative
Procedure Act, including those for public notice, comments, and a
rulemaking hearing. See, e.g., 29 U.S.C. 655(b)(3); 5 U.S.C. 552, 553.
For that reason, ETSs have been referred to as the ``most dramatic
weapon in [OSHA's] arsenal.'' Asbestos Info. Ass'n/N. Am. v. OSHA, 727
F.2d 415, 426 (5th Cir. 1984).
    The Secretary must issue an ETS in situations where employees are
exposed to a ``grave danger'' and immediate action is necessary to
protect those employees from such danger. 29 U.S.C. 655(c)(1); Pub.
Citizen Health Research Grp. v. Auchter, 702 F.2d 1150, 1156 (D.C. Cir.
1983). The determination of what exact level of risk constitutes a
``grave danger'' is a ``policy consideration that belongs, in the first
instance, to the Agency.'' Asbestos Info. Ass'n, 727 F.2d at 425
(accepting OSHA's determination that eighty lives at risk over six
months was a grave danger); Indus. Union Dep't, AFL-CIO v. Am.
Petroleum Inst., 448 U.S. 607, 655 n.62 (1980). However, a ``grave
danger'' represents a risk greater than the ``significant risk'' that
OSHA must show in order to promulgate a permanent standard under
section 6(b) of the OSH Act, 29 U.S.C. 655(b). Int'l Union, United
Auto., Aerospace, & Agr. Implement Workers of Am., UAW v. Donovan, 590
F. Supp. 747, 755-56 (D.D.C. 1984), adopted, 756 F.2d 162 (D.C. Cir.
1985); see also Indus. Union Dep't, AFL-CIO, 448 U.S. at 640 n.45
(noting the distinction between the standard for risk findings in
permanent standards and ETSs).
    In determining the type of health effects that may constitute a
``grave danger'' under the OSH Act, the Fifth Circuit emphasized ``the
danger of incurable, permanent, or fatal consequences to workers, as
opposed to easily curable and fleeting effects on their health.'' Fla.
Peach Growers Ass'n, Inc. v. U.S. Dep't of Labor, 489 F.2d 120, 132
(5th Cir. 1974). Although the findings of grave danger and necessity
must be based on evidence of ``actual, prevailing industrial
conditions,'' see Int'l Union, 590 F. Supp. at 751, OSHA need not wait
for deaths to occur before promulgating an ETS, see Fla. Peach Growers
Ass'n., 489 F.2d at 130. When OSHA determines that exposure to a
particular hazard would pose a grave danger to workers, OSHA can assume
an exposure to a grave danger wherever that hazard is present in a
workplace. Dry Color Mfrs. Ass'n, Inc. v. Department of Labor, 486 F.2d
98, 102 n.3 (3d Cir. 1973). In demonstrating that an ETS is necessary,
the Fifth Circuit considered whether OSHA had shown that there were no
other means of addressing the risk than an ETS. Asbestos Info. Ass'n,
727 F.2d at 426 (holding that necessity had not been proven where OSHA
could have increased enforcement of already-existing standards to
address the grave risk to workers from asbestos exposure).
    On judicial review of an ETS, OSHA is entitled to great deference
on the determinations of grave danger and necessity required under
section 6(c)(1). See, e.g., Pub. Citizen Health Research Grp., 702 F.2d
at 1156; Asbestos Info. Ass'n, 727 F.2d at 422 (judicial review of
these legislative determinations requires deference to the agency); cf.
American Dental Ass'n v. Martin, 984 F.2d 823, 831 (7th Cir. 1993)
(``the duty of a reviewing court of generalist judges is merely to
patrol the boundary of reasonableness''). These determinations are
``essentially legislative and rooted in inferences from complex
scientific and factual data.'' Pub. Citizen Health Research Grp., 702
F.2d at 1156. The agency is not required to support its conclusions
``with anything approaching scientific certainty'' and has the
``prerogative to choose between conflicting evidence.'' Indus. Union
Dep't, AFL-CIO, 448 U.S. at 656; Asbestos Info. Ass'n, 727 F.2d at 425.
    The determinations of the Secretary in issuing standards under
section 6 of the OSH Act, including ETSs, must be affirmed if supported
by ``substantial evidence in the record considered as a whole.'' 29
U.S.C. 655(f). The Supreme Court described substantial evidence as ``
`such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.' '' Am. Textile Mfrs. Inst., 452 U.S. at 522-
23 (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951)).
The Court also noted that `` `the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an
administrative agency's finding from being supported by substantial
evidence.' '' Am. Textile Mfrs. Inst., 452 U.S. at 523 (quoting Consolo
v. FMC, 383 U.S. 607, 620 (1966)). The Fifth Circuit, recognizing the
size and complexity of the rulemaking record before it in the case of
OSHA's ETS for organophosphorus pesticides, stated that a court's
function in reviewing an ETS to determine whether it meets the
substantial evidence standard is ``basically [to] determine whether the
Secretary carried out his essentially legislative task in a manner
reasonable under the state of the record before him.'' Fla Peach
Growers Ass'n., 489 F.2d at 129.
    Although Congress waived the ordinary rulemaking procedures in the
interest of ``permitting rapid action to meet emergencies,'' section
6(e) of the OSH Act, 29 U.S.C. 655(e), requires OSHA to include a
statement of reasons for its action when it issues any standard. Dry
Color Mfrs., 486 F.2d at 105-06 (finding OSHA's statement of reasons
inadequate). By requiring the agency to articulate its reasons for
issuing an ETS, the requirement acts as ``an essential safeguard to
emergency temporary standard-setting.'' Id. at 106. However, the Third
Circuit noted that it did not require justification of ``every
substance, type of use or production

technique,'' but rather a ``general explanation'' of why the standard
is necessary. Id. at 107.
    ETSs are, by design, temporary in nature. Under section 6(c)(3), an
ETS serves as a proposal for a permanent standard in accordance with
section 6(b) of the OSH Act (permanent standards), and the Act calls
for the permanent standard to be finalized within six months after
publication of the ETS. 29 U.S.C. 655(c)(3); see Fla. Peach Growers
Ass'n., 489 F.2d at 124. The ETS is effective ``until superseded by a
standard promulgated in accordance with'' section 6(c)(3). 29 U.S.C.
655(c)(2).
    It is crucial to note that the language of section 6(c)(1) is not
discretionary: The Secretary ``shall'' provide for an ETS when OSHA
makes the prerequisite findings of grave danger and necessity. Pub.
Citizen Health Research Grp., 702 F.2d at 1156 (noting the mandatory
language of section 6(c)). OSHA is entitled to great deference in its
determinations, and it must also account for ``the fact that `the
interests at stake are not merely economic interests in a license or a
rate structure, but personal interests in life and health.' '' Id.
(quoting Wellford v. Ruckelshaus, 439 F.2d 598, 601 (D.C. Cir. 1971)).

IV. Rationale for the ETS

A. Grave Danger

I. Introduction
    On January 31, 2020, the Secretary of Health and Human Services
(HHS) declared COVID-19 to be a public health emergency in the U.S.
under section 319 of the Public Health Service Act. The World Health
Organization declared COVID-19 to be a global health emergency on the
same day. President Donald Trump declared the COVID-19 outbreak to be a
national emergency on March 13, 2020 (The White House, March 13, 2020).
HHS renewed its declaration of COVID-19 as a public health emergency
effective April 21, 2021 (HHS, April 15, 2021).\2\
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    \2\ HHS declarations of public health emergencies last for 90
days and then can be considered for renewal (https://www.phe.gov/emergency/news/healthactions/phe/Pages/default.aspx).
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    Consistent with these declarations, and in carrying out its legal
duties under the OSH Act, OSHA has determined that healthcare employees
face a grave danger from the new hazard of workplace exposures to SARS-
CoV-2 except under a limited number of situations (e.g., a fully
vaccinated workforce in a breakroom).\3\ The virus is both a physically
harmful agent and a new hazard, and it can cause severe illness,
persistent health effects, and death (morbidity and mortality,
respectively) from the subsequent development of the disease, COVID-
19.\4\ OSHA bases its grave danger determination on evidence
demonstrating the lethality of the disease, the serious physical and
psychiatric health effects of COVID-19 morbidity (in mild-to-moderate
as well as in severe cases), and the transmissibility of the disease in
healthcare settings where people with COVID-19 are reasonably expected
to be present. The protections of this ETS--which will apply, with some
exceptions, to healthcare settings where people may share space with
COVID-19 patients or interact with others who do--are designed to
protect employees from infection with SARS-CoV-2 and from the dire,
sometimes fatal, consequences of such infection.
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    \3\ References in this preamble to healthcare employees and
healthcare workers indicate those employees covered by the
protections in the ETS, including employees providing healthcare
support services.
    \4\ OSHA is defining the grave danger as workplace exposure to
SARS-CoV-2, the virus that causes the development of COVID-19.
COVID-19 is the disease that can occur in people exposed to SARS-
CoV-2, and that leads to the health effects described in this
section. This distinction applies despite OSHA's use of these two
terms interchangeably in some parts of this preamble.
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    The fact that COVID-19 is not a uniquely work-related hazard does
not change the determination that it is a grave danger to which
employees are exposed, nor does it excuse employers from their duty to
protect employees from the occupational transmission of SARS-CoV-2. The
OSH Act is intended to ``assure so far as possible every working man
and woman in the Nation safe and healthful working conditions,'' 29
U.S.C. 651(b), and there is nothing in the Act to suggest that its
protections do not extend to hazards which might occur outside of the
workplace as well as within. Indeed, COVID-19 is not the first hazard
that OSHA has regulated that occurs both inside and outside the
workplace. For example, the hazard of noise is not unique to the
workplace, but the Fourth Circuit has upheld OSHA's Occupational Noise
Exposure standard, 29 CFR 1910.95 (Forging Industry Ass'n v. Secretary,
773 F.2d 1437, 1444 (4th Cir. 1985)). Diseases caused by bloodborne
pathogens, including HIV/AIDS and hepatitis B, are also not unique to
the workplace, but the Seventh Circuit upheld the majority of OSHA's
Bloodborne Pathogens standard, 29 CFR 1910.1030 (Am. Dental Ass'n v.
Martin, 984 F.2d 823 (7th Cir. 1993)). Moreover, employees have more
freedom to control their environment outside of work, and to make
decisions about their behavior and their contact with others to better
minimize their risk of exposure. However, during the workday, while
under the control of their employer, healthcare employees providing
care directly to known or suspected COVID-19 patients are required to
have close contact with infected individuals, and other employees in
those settings also work in an environment in which they have little
control over their ability to limit contact with individuals who may be
infected with COVID-19 even when not engaged in direct patient care.
Accordingly, even though SARS-CoV-2 is a hazard to which employees are
exposed both inside and outside the workplace, healthcare employees in
workplaces where individuals with suspected or confirmed COVID-19
receive care have limited ability to avoid exposure resulting from a
work setting where those individuals are present. OSHA has a mandate to
protect employees from hazards they are exposed to at work, even if
they may be exposed to similar hazards before and after work.
    As described above in Section III, Legal Authority, ``grave
danger'' indicates a risk that is more than ``significant'' (Int'l
Union, United Auto., Aerospace, & Agr. Implement Workers of Am., UAW v.
Donovan, 590 F. Supp. 747, 755-56 (D.D.C. 1984); Indus. Union Dep't,
AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 640 n.45, 655 (1980)
(stating that a rate of 1 worker in 1,000 workers suffering a given
health effect constitutes a ``significant'' risk)). ``Grave danger,''
according to one court, refers to ``the danger of incurable, permanent,
or fatal consequences to workers, as opposed to easily curable and
fleeting effects on their health'' (Fla. Peach Growers Ass'n, Inc. v.
U. S. Dep't of Labor, 489 F.2d 120, 132 (5th Cir. 1974)). Fleeting
effects were described as nausea, excessive salivation, perspiration,
or blurred vision and were considered so minor that they often went
unreported, which is in contrast to the adverse health effects of cases
of COVID-19, which are formally referenced as ranging from ``mild'' to
``critical.'' \5\ Beyond this, however, ``the determination of what
constitutes a risk worthy of Agency action is a policy consideration
that belongs, in the first instance, to the Agency'' (Asbestos Info.

Ass'n/N. Am. v. OSHA, 727 F.2d 415, 425 (5th Cir. 1984)).
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    \5\ Definitions of severity of COVID-19 illness used in this
document are found in the National Institutes of Health's COVID-19
treatment guidelines (https://www.covid19treatmentguidelines.nih.gov/overview/clinical-spectrum/)
(NIH, December 17, 2020).
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    In the context of ordinary 6(b) rulemaking, the Supreme Court has
said that the OSH Act is not a ``mathematical straitjacket,'' nor does
it require the agency to support its findings ``with anything
approaching scientific certainty,'' particularly when operating on the
``frontiers of scientific knowledge'' (Indus. Union Dep't, AFL-CIO v.
Am. Petroleum Inst., 448 U.S. 607, 656, 100 S. Ct. 2844, 2871, 65 L.
Ed. 2d 1010 (1980)). Courts reviewing OSHA's determination of grave
danger do so with ``great deference'' (Pub. Citizen Health Research
Grp. v. Auchter, 702 F.2d 1150, 1156 (D.C. Cir. 1983)). In one case,
the Fifth Circuit, in reviewing an OSHA ETS for asbestos, declined to
question the agency's finding that 80 worker lives at risk over six
months constituted a grave danger (Asbestos Info. Ass'n/N. Am., 727
F.2d at 424). In stark contrast, as of May 24, 2021, 1,611 healthcare
personnel have died (out of 491,816 healthcare COVID-19 cases where
healthcare personnel status and death status is known by the CDC) (May
24, 2021a). This is likely an undercount of cases and deaths as the
healthcare personnel status is not known for 81.63% of cases and death
status is unknown in 20.42% of cases where healthcare personnel status
is known. OSHA estimates that this rule would save almost 800 worker
lives over the course of the next six months as noted in Table I.-1 in
the Executive Summary. Here, the mortality and morbidity risk to
employees from COVID-19 is so dire that the grave danger from exposures
to SARS-CoV-2 is clear.
    OSHA's previous ETSs addressed physically harmful agents that had
been familiar to the agency for many years prior to the ETS. In most
cases, the ETSs were issued in response to new information about
substances that had been used in workplaces for decades (e.g., Vinyl
Chloride (39 FR 12342 (April 5, 1974)); Benzene (42 FR 22516 (May 3,
1977)); 1,2-Dibromo-3-chloropropane (42 FR 45536 (Sept. 9, 1977))). In
some cases, the hazards of the toxic substance were already so well
established that OSHA promulgated an ETS simply to update an existing
standard (e.g., Vinyl cyanide (43 FR 2586 (Jan. 17, 1978)). In no case
did OSHA claim that an ETS was required to address a grave danger from
a substance that had only recently come into existence. Thus, no court
has had occasion to separately examine OSHA's authority under section
(6)(c) of the OSH Act (29 U.S.C. 655(c)) to address a grave danger from
a ``new hazard.'' Yet by any measure, SARS-CoV-2 is a new hazard.
Unlike any of the hazards addressed in previous ETSs, SARS-CoV-2 was
not known to exist until January 2020. Since then, more than 3 million
people have died worldwide and nearly 600,000 people have died in the
U.S. alone (WHO, May 24, 2021; CDC, May 24, 2021b). This monumental
tragedy is largely handled by healthcare employees who provide care for
those who are ill and dying, leading to introduction of the virus not
only in their daily lives in the community but also in their workplace,
and more than a thousand healthcare workers have died from COVID-19.
Clearly, exposure to SARS-CoV-2 is a new hazard that presents a grave
danger to workers in the U.S.
    In the following sections within Grave Danger, OSHA summarizes the
best available scientific evidence on employee exposure to SARS-CoV-2
and shows how that evidence establishes COVID-19 to be a grave danger
to healthcare employees. OSHA's determination that there is a grave
danger to healthcare employees rests on the severe health consequences
of COVID-19, the high risk to employees of developing the disease as a
result of transmission of SARS-CoV-2 in the workplace, and that these
workplace settings provide direct care to known or suspected COVID-19
cases. With respect to the health consequences of COVID-19, OSHA finds
a grave danger to employees based on mortality data showing
unvaccinated people of working age (18-64 years old) have a 1 in 217
chance of dying when they contract the disease (May 24, 2021c; May 24,
2021d). When broken down by age range, that includes a 1 in 788 chance
of dying for those aged 30-39, a 1 in 292 chance of dying for those
aged 40-49, and as much as a 1 in 78 chance of dying for those aged 50-
64 (May 24, 2021c; May 24, 2021d). Furthermore, workers in racial and
ethnic minority groups are often over-represented in many healthcare
occupations and face higher risks for SARS-CoV-2 exposure and
infection, as noted in a study on workers in Massachusetts (Hawkins,
June 15, 2020) and discussed in more detail in the section ``Observed
Disparities in Risk Based on Race and Ethnicity,'' below. While
vaccination greatly reduces adverse health outcomes to healthcare
workers, it does not eliminate the grave danger faced by vaccinated
healthcare workers in settings where patients with suspected or
confirmed COVID-19 receive treatment (CDC, April 27, 2021; Howard, May
22, 2021).
    OSHA also finds a grave danger based on the severity and prevalence
of other health effects caused by COVID-19, short of death. While some
SARS-CoV-2 infections are asymptomatic, even the cases labeled ``mild''
by the CDC involve symptoms that far exceed in severity the group of
symptoms dismissed in the Florida Peach Growers Ass'n decision as not
rising to the level of grave danger required by the OSH Act (i.e.,
minor cases of nausea, excessive salivation, perspiration, or blurred
vision) (489 F.2d at 132). Even ``mild'' cases of COVID-19--where
hypoxia (low oxygen in the tissues) is not present--require isolation
and may require medical intervention and multiple weeks of
recuperation, while severe cases of COVID-19 typically require
hospitalization and a long recovery period (see the section on ``Health
Effects,'' below). For example, in a study of 1,733 patients, three
quarters of remaining hospitalized cases and approximately half of all
symptomatic cases resulted in the individual continuing to experience
at least one symptom (e.g., fatigue, breathing difficulties) at least
six months after initial infection (Huang et al., January 8, 2021;
Klein et al., February 15, 2021). These cases might be referred to as
``long COVID'' because symptoms persist long after recovery from the
initial illness, and could potentially be significant enough to
negatively affect an individual's ability to work or perform other
everyday activities.
    Finally, OSHA concludes that the serious and potentially fatal
consequences of COVID-19 pose a particular threat to employees, as the
nature of SARS-CoV-2 transmission readily enables the virus to spread
when employees are working in spaces shared with others (e.g., co-
workers, patients, visitors), a common characteristic of healthcare
settings where direct care is provided. While not every setting is
represented in the evidence that OSHA has assembled, the best available
evidence illustrates that clusters and outbreaks \6\ of COVID-19 have
occurred in a wide variety of occupations in healthcare settings. The
scientific

evidence of SARS-CoV-2 transmission, presented below, makes clear that
the virus can be spread wherever an infectious person is present and
shares space with other people, and OSHA therefore expects transmission
across healthcare workplaces where known or suspected COVID-19 patients
are treated (see Dry Color Mfrs. Ass'n, Inc. v. Dep't of Labor, 486
F.2d 98, 102 n.3 (3d Cir. 1973) (holding that when OSHA determines a
substance poses a grave danger to workers, OSHA can assume an exposure
to a grave danger wherever that substance is present in a workplace)).
OSHA's conclusion that there is a grave danger to which employees are
specifically exposed is further supported by evidence demonstrating the
widespread prevalence of the disease across the country generally. As
of May 2021, over 32 million cases of COVID-19 have been reported in
the United States (CDC, May 24, 2021e). Over 1 in 11 people of working
age have been reported infected (cases for individuals age 18-64, CDC,
May 24, 2021d; estimated number of people ages 15-64, Census Bureau,
June 25, 2020). And data shows that employees across a myriad of
workplace settings have suffered death and serious illness from COVID-
19 through the duration of the pandemic (WSDH and WLNI, December 17,
2020; Allan-Blitz et al., December 11, 2020; Marshall et al., June 30,
2020).\7\ From May 18, 2021 to May 24, 2021, COVID-19 resulted in 4,216
cases and nine deaths for healthcare personnel each day (CDC, May 18,
2021; CDC, May 24, 2021a). Thus, COVID-19 continues to present a grave
danger to the nation's healthcare employees.
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    \6\ ``Outbreaks'' are generally defined as an increase, often
sudden, in the number of cases of a disease above what is normally
expected in a limited geographic area. ``Clusters'' are generally
defined as an unusual number of cases grouped in one place that is
more than expected to occur (CDC, May 18, 2012). Researchers
investigating outbreaks and have to decide how to define the
geographic area, while researchers investigating clusters may use a
variety of strategies to determine what is ``unusual.'' While the
terms are slightly different, their overall significance to the
grave danger discussion is the same. For the studies and reports
relied upon in this section, OSHA will generally use whichever term
is used in the study or report itself.
    \7\ Of note, on February 25, 2021, the Superior Court of
California issued a decision denying a motion for a preliminary
injunction seeking to restrain the California Occupational Safety
and Health Standards Board from enforcing a COVID-19 ETS promulgated
on November 30, 2020 (Nat'l Retail Fed'n v. Cal. Dep't of Indus.
Relations, Div. of Occupational Safety & Health, Case Nos. CGC-20-
588367, CPF-21-517344 (Cal. Super. Ct., Feb. 25, 2021)). In its
decision, the court found that COVID-19 presents an emergency to
employees, noting that any argument to the contrary was ``fatuous''
(id. at 17). The court found that ``the virus spreads any place
where persons gather and come into contact with one another--whether
it happens to be an office building, a meatpacking plant, a wedding
reception, a business conference, or an event in the Rose Garden of
the White House. Workplaces, where employees often spend eight hours
a day or more in close proximity to one another, are no exception,
which of course is why the pandemic has emptied innumerable office
buildings, stores, shopping centers, restaurants, and bars around
the world'' (id. at 17-18 (emphasis in original) (footnotes
omitted)).
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References
Allan-Blitz, LT et al., (2020, December 11). High frequency and
prevalence of community-based asymptomatic SARS-CoV-2
infection.medRxivpre-print. https://www.medrxiv.org/content/10.1101/2<IP_ADDRESS>46249v1. (Allan-Blitz et al., December 11, 2020).
Centers for Disease Control and Prevention (CDC). (2021, April 27).
Updated healthcare infection prevention and control recommendation
in response to COVID-19 vaccination. https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-after-vaccination.html.
(CDC, April 27, 2021).
Centers for Disease Control and Prevention (CDC). (2021, May 18).
COVID Data Tracker: Cases & deaths among healthcare personnel.
https://covid.cdc.gov/covid-data-tracker/#health-care-personnel.
(CDC, May 18, 2021).
Centers for Disease Control and Prevention (CDC). (2021a, May 24).
Cases & Deaths among Healthcare Personnel. https://covid.cdc.gov/covid-data-tracker/#health-care-personnel. (CDC, May 24, 2021a).
Centers for Disease Control and Prevention (CDC). (2021b, May 24).
COVID data tracker. Trends in number of COVID-19 cases and deaths in
the US reported to CDC, by state/territory: Trends in Total COVID-19
Deaths in the United States Reported to CDC. https://covid.cdc.gov/covid-data-tracker/#trends_dailytrendscases. (CDC, May 24, 2021b).
Centers for Disease Control and Prevention (CDC). (2021c, May 24).
Demographic Trends of COVID-19 cases and deaths in the US reported
to CDC: Deaths by age group. https://covid.cdc.gov/covid-data-tracker/#demographics (CDC, May 24, 2021c).
Centers for Disease Control and Prevention (CDC). (2021d, May 24).
Demographic Trends of COVID-19 cases and deaths in the US reported
to CDC: Cases by age group. https://covid.cdc.gov/covid-data-tracker/#demographics (CDC, May 24, 2021d).
Centers for Disease Control and Prevention (CDC). (2021e, May 24).
COVID data tracker. Trends in number of COVID-19 cases and deaths in
the US reported to CDC, by state/territory: Trends in Total COVID-19
Cases in the United States Reported to CDC. https://covid.cdc.gov/covid-data-tracker/#trends_dailytrendscases. (CDC, May 24, 2021e).
Census Bureau. (2020, June 25). Annual estimates of the resident
population for selected age groups by sex for the United States:
April 2010 to July 1, 2019. https://www2.census.gov/programs-surveys/popest/tables/2010-2019/national/asrh/nc-est2019-agesex.xlsx. (Census Bureau, June 25, 2020).
Hawkins, D. (2020, June 15). Differential occupational risk for
COVID-19 and other infection exposure according to race and
ethnicity. American Journal of Industrial Medicine 63:817-820.
https://doi.org/10.1002/ajim.23145. (Hawkins, June 15, 2020).
Howard, J. (2021). ``Response to request for an assessment by the
National Institute for Occupational Safety and Health, Centers for
Disease Control and Prevention, U.S. Department of Health and Human
Services, of the current hazards facing healthcare workers from
Coronavirus Disease-2019 (COVID-19).'' (Howard, May 22, 2021).
Huang, C et al., (2021, January 8). 6-month consequences of COVID-19
in patients discharged from hospital: A cohort study. The Lancet
397:220-232. https://doi.org/10.1016/S0140-6736(20)32656-8. (Huang
et al., January 8, 2021).
Klein, H et al., (2021, February 15). Onset, duration and unresolved
symptoms, including smell and taste changes, in mild COVID-19
infections: A cohort study in Israeli patients. Clinical
Microbiology and Infection 27(5):769-774. https://doi.org/10.1016/j.cmi.2021.02.008. (Klein et al., February 15, 2021).
Marshall, K et al., (2020, June 30). Exposure before issuance of
stay-at-home orders among persons with laboratory-confirmed COVID-
19--Colorado, March 2020. Morbidity and Mortality Weekly Report:
69(26):847-9. (Marshall et al., June 30, 2020).
United States Department of Health and Human Services (US DHHS).
(2021, April 15). Renewal of Determination That A Public Health
Emergency Exists. https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVID-15April2021.aspx. (HHS, April 15, 2021).
Washington State Department of Health and Washington State
Department of Labor and Industries (WSDH and WDLI). (2020, December
17). COVID-19 confirmed cases by industry sector. Publication Number
421-002. https://www.doh.wa.gov/Portals/1/Documents/1600/coronavirus/data-tables/IndustrySectorReport.pdf. (WSDH and WDLI,
December 17, 2020).
The White House. (2020, March 13). Proclamation on declaring a
national emergency concerning the novel coronavirus disease (COVID-
19) outbreak. https://web.archive.org/web/20200313234554/https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/. (The White House, March 13, 2020).
World Health Organization (WHO). (2021, May 24). WHO Coronavirus
Disease (COVID-19) Dashboard. https://covid19.who.int/table. (WHO,
May 24, 2021).
II. Nature of the Disease
a. Health and Other Adverse Effects of COVID-19
Death From COVID-19
    COVID-19 is a potentially fatal disease. As of May 24, 2021, there
had been 587,432 deaths from the disease out of 32,947,548 million
infections in the United States alone (CDC, May 24, 2021a; CDC, May 24,
2021b). For the U.S. population as a whole (i.e., unlinked to known
SARS-CoV-2

infections) as of May 24, 2021, 1.8 out of every 1,000 people have died
from COVID-19 (CDC, May 24, 2021a). COVID-19 was the third leading
cause of death in the United States in 2020 among those aged 45 to 84,
trailing only heart disease and cancer (Woolf, January 12, 2021).
During the surges in the spring and fall/winter of 2020, COVID-19 was
the leading cause of death. Despite a decrease in recent weeks, the
death rate remains high (7-day moving average death rate of 500 on May
23, 2021) (CDC, May 24, 2021c). Not only are healthcare employees
included in these staggering figures, they are exposed to COVID-19 at a
much higher frequency than the general population while providing
direct care for both sick and dying COVID-19 patients during their most
infectious moments.
    The impact of morbidity and mortality on healthcare employees might
also be underreported. The information associated with cases and deaths
are incomplete. Only 18.37% of cases were reported with information on
whether or not the infected individual was a healthcare employee (CDC,
May 24, 2021d). For those who were identified as healthcare personnel,
only 79.58% of these cases noted whether the individual survived the
illness (CDC, May 24, 2021d). Despite the incomplete data, the toll on
healthcare personal is clear. As of May 24, 2021, CDC reported 491,816
healthcare personnel cases (10% of cases that included information on
healthcare personnel status) and 1,611 fatalities (0.4% of healthcare
employee cases with known death status). This number is staggering when
compared with, for example, the 2018-2019 influenza season, during
which only 0.1% of known influenza infections were estimated to be
fatal for the entire population (CDC, October 5, 2020).
    The risk of mortality and morbidity from COVID-19 has changed, and
may continue to change over time. Viruses mutate and those mutations
can result in variants of concern that may be more transmissible, cause
more severe illness, or impact diagnostics, treatments, or vaccines
(CDC, May 5, 2021). For example, the UK's New and Emerging Respiratory
Virus Threats Advisory Group (NERVTAG) issued a report on how risk
might have changed with the development of a new variant there called
``B.1.1.7'' (February 11, 2021). The group determined that analysis
from multiple different datasets indicated that B.1.1.7 infections
resulted in an increased risk of hospitalization and death compared
with the ancestral virus and other variants in circulation. Challen et
al., (March 10, 2021) found that B.1.1.7 increased mortality risk by
64%. As virus mutations result in variants of concern, the
effectiveness of medical countermeasures such as therapeutics and
vaccines might be affected. Lastly, depending on the variant, potential
immune escape properties of the virus may increase a person's
susceptibility to reinfection.
Severe and Critical Cases of COVID-19
    Apart from mortality, COVID-19 causes significant morbidity that
can result in incurable, permanent, and non-fleeting consequences. As
discussed below, people who become ill with COVID-19 might require
hospitalization and specialized treatment, and can suffer respiratory
failure, blood clots, long-term cardiovascular effects, organ damage,
and significant neurological and psychiatric effects. Approximately
6.7% of COVID-19 cases are severe and require hospitalization and more
specialized care (total hospitalizations and total cases, CDC, May 24,
2021e; CDC, May 24, 2021f). Given that this is a novel virus, long-term
effects are still unknown. A severe case of COVID-19 is described as
when the patient presents with hypoxia and is in need of oxygen therapy
(NIH, April 21, 2021a). Cases become critical when respiratory failure,
septic shock, and/or multiple organ dysfunction occurs.
    The majority of the data currently available on the health outcomes
for hospitalized patients is derived from the first surge of the
pandemic between March and May of 2020. However, newer data indicates
that health outcomes for hospitalized patients have changed over the
course of the pandemic. A study from Emory University reviewed COVID-19
patient data from a large multi-hospital healthcare network and
compared the data from the first surge early in the pandemic (March 1
to May 30, 2020) with the second surge that occurred in the summer of
2020 (June 1 to September 13, 2020) (Meena et al., March 1, 2021). The
study found that during the second surge, ICU admission decreased from
38% to 30%, ventilator use decreased from 26% to 15%, and mortality
decreased from 15% to 9%. The study authors postulated that improved
patient outcomes during the second stage may have resulted in part from
aggressive anticoagulation therapies to prevent venous thromboembolism.
    Similar findings were reported in a retrospective study of 20,736
COVID-19 patients admitted to 107 hospitals in 31 states from March
through November 2020 (Roth et al., May 3, 2021). The proportions of
patients placed on mechanical ventilation dropped from 23.3% in March
and April 2020 to 13.9% in September through November 2020. During
those same respective time periods, mortality rates dropped from 19.1%
to 10.8%. The reasons for the reductions in mechanical ventilation and
mortality are not known, but study authors postulated that reductions
in mechanical ventilation may have resulted from increased use of
noninvasive ventilation, high flow nasal oxygen, and prone positioning.
They hypothesized that the high patient count and staff unfamiliarity
with infection control procedures that were being rapidly implemented
in March and April could have accounted for the high mortality rate
during that period. In addition, the authors noted that changes in
pharmacology treatments occurred during that time period, but their
impact on improved outcomes is not known.
    This data on improvements in health outcomes between earlier and
later stages of the pandemic is significant, but also demonstrates that
overall health outcomes for hospitalized COVID-19 patients still remain
poor. Even with these improvements in health outcomes, COVID-19 still
results in considerable loss of life and significant adverse health
outcomes for patients hospitalized with COVID-19. The COVID-19-
Associated Hospitalization Surveillance Network (COVID-NET), which
conducts population-based surveillance in select U.S. counties,
reported a cumulative hospitalization rate of 1 in 255 people between
the ages of 18 and 49 as well as 1 in 123 people between the ages of 50
and 64 between March 1, 2020, and May 15, 2021 (CDC, May 24, 2021g).
    Patients hospitalized with COVID-19 frequently need supplemental
oxygen and supportive management of the disease's most common
complications, which are discussed in further detail below and include
pneumonia, respiratory failure, acute respiratory distress syndrome
(ARDS), acute kidney injury, sepsis, myocardial injury, arrhythmias,
and blood clots. Among 35,302 inpatients in a nationwide U.S. study,
median length of stay was 6 days overall (Rosenthal, et al., December
10, 2020). When cases required treatment in the ICU, ICU stays were on
median 5 days in addition to time spent hospitalized outside of the
ICU. The Roth et al., (May 3, 2021) study described above reported that
mean length of hospital stays decreased from 10.7 days in April and May
2020 to 7.5 days from September to November 2020, and the respective
values for ICU stays over the same time period decreased from 13.9 days
to 6.6 days. As discussed

in more detail above, improvements in infection control and treatment
interventions might be responsible for the improved outcome, but the
specific reason is not known, and the numbers of individuals
hospitalized with COVID-19 remains high.
    The pneumonia associated with the SARS-CoV-2 virus can become
severe, resulting in respiratory failure and ARDS, a life-threatening
lung injury. In a U.S. study of 35,302 COVID-19 inpatients, 55.8%
suffered respiratory failure with 8.1% experiencing ARDS (Rosenthal, et
al., December 10, 2020). Thus, the need for oxygen therapy is a key
reason for hospitalization. The specific therapy received during
hospitalization often depends on the severity of lung distress and can
include supplemental oxygen, noninvasive ventilation, intubation for
invasive mechanical ventilation, and extracorporeal membrane
oxygenation when mechanical ventilation is insufficient (NIH, April 21,
2021a).
    Although COVID-19 was initially considered to be primarily a
respiratory disease, adverse effects in numerous organs have now been
reported. For example, in a New York City area study of 9,657 COVID-19
patients, 39.9% of patients developed acute kidney injury (AKI), a
sudden episode of kidney failure or kidney damage; of the approximately
40% of patients who developed AKI, 17% required dialysis (Ng et al.,
September 19, 2020). AKI similarly occurred in 33.9% of 35,302
inpatients in a nationwide U.S. study (Rosenthal et al., December 10,
2020). For patients who experience AKI associated with COVID-19, a
study of patients in the New York area reported a median length of stay
in the hospital of 11.6 days for patients who did not require dialysis,
but for those who did, the median length of stay almost tripled to 29.2
days (Ng et al., September 19, 2020). Many critically ill COVID-19
patients require renal replacement therapy (NIH, April 21, 2021a). For
example, one study including 67 U.S. hospitals found that 20.6% of
critically ill COVID-19 patients developed AKI that requires renal
replacement therapy (Gupta et al., 2021).
    COVID-19 is also capable of causing viral sepsis, a condition where
the immune response dysregulates and causes life-threatening harm to
organs (e.g., lungs, brain, kidneys, heart, and liver). In Rosenthal et
al.'s, (December 10, 2020) U.S. study through May 31, 2020, 33.7% of
COVID-19 inpatients developed sepsis. A study of 18-49 year olds in the
COVID-NET surveillance system found that 16.6% of patients in that age
range developed sepsis (Owusu et al., December 3, 2020). In a study of
VA hospitals, sepsis was found to be the most common complication that
resulted in readmission within 60 days of being discharged (Donnelly et
al., January 19, 2020).
    COVID-19 patients have also been reported to experience a number of
adverse cardiac complications, including arrhythmias, myocardial injury
with elevated troponin levels, and myocarditis (Caforio, December 2,
2020). Acute ischemic heart disease occurred in 8% of 35,302 inpatients
in a nationwide U.S. study (Rosenthal et al., December 10, 2020).
Patients hospitalized with COVID-19 may also experience shock, a
critical condition caused by a sudden drop in blood pressure that can
lead to fatal cardiac complications. Shock occurred in 4,028 of 35,302
(11.4%) inpatients in a nationwide U.S. study (Rosenthal et al.,
December 10, 2020). And a study of 70 COVID-19 patients in a Freiburg
ICU found that shock was a complicating factor in 24% of fatal cases
(Rieg et al., November 12, 2020). A New York City area study reported
that 21.5% of the study's 9,657 patients experience serious drops in
blood pressure that required medical intervention during their hospital
stay (Ng et al., September 19, 2020).
    In addition to its adverse effects on specific organs, COVID-19 may
cause patients to develop a hypercoagulable state, a condition in which
blood clots can develop in someone's legs and embolize to their lungs,
further worsening oxygenation. Blood clots in COVID-19 patients have
also been reported in arteries, resulting in strokes--even in young
people--as well as heart attacks and acute ischemia from lack of oxygen
in limbs in which arterial clots have occurred (Cuker and Peyvandi,
November 19, 2020; Oxley et al., May 14, 2020). Blood clots have been
reported even in COVID-19 patients on prophylactic-dose
anticoagulation. A systematic review of more than 28,000 COVID-19
patients found that venous thromboembolism (deep vein thrombosis,
pulmonary embolism or catheter-related thrombosis) occurred in 14% of
hospitalized patients overall and 22.7% of ICU patients (Nopp et al.,
September 25, 2020). Pulmonary embolism was reported in 3.5% of non-ICU
and 13.7% of ICU patients. Embolism and thrombosis can cause death.
COVID-19 poses such a threat of blood clots that NIH guidelines now
recommend that hospitalized non-pregnant adults with COVID-19 should
receive prophylactic dose anticoagulation (NIH, April 21, 2021a).
    These health effects are particularly relevant to healthcare
workers because there is evidence that healthcare workers are more
likely to develop more severe COVID-19 symptoms than workers in non-
healthcare settings. While the reason for this is not certain, one
cause could be that healthcare workers are exposed to higher viral
loads (more viral particles entering the body) because of the nature of
their work often involving frequent and sustained close contact with
COVID-19 patients. For example, a British study compared healthcare
workers to other ``essential'' and ``non-essential'' workers and found
that healthcare workers were more than 7 times as likely to experience
severe COVID-19 disease following infection (i.e., disease requiring
hospitalization) than infected non-essential workers (Mutambudzi et
al., 2020).
Mild to Moderate Cases of COVID-19
    Even the less severe health effects of COVID-19 cover a wide range
of symptoms and severity, from serious illness to milder symptomatic
illness to asymptomatic cases. The most common symptoms include fever
or chills, cough, shortness of breath or difficulty breathing, fatigue,
muscle or body aches, headache, developing a loss of taste or smell,
sore throat, congestion or runny nose, nausea, vomiting, and/or
diarrhea (CDC, February 22, 2021).
    Approximately 80% of symptomatic COVID-19 cases are mild to
moderate (Wu and McGoogan, April 7, 2020), which is defined as having
any symptom of COVID-19 but without substantially decreased oxygen
levels, shortness of breath, or difficulty breathing (NIH, April 21,
2021b). Moderate cases, however, also show evidence of lower
respiratory disease, although these cases largely do not require
admission into hospitals (CDC, February 16, 2021). While deaths and
severe health consequences of COVID-19 are sufficiently robust in
support of OSHA's finding that COVID-19 presents a grave danger, even
many of the typical mild or moderate cases surpass the Florida Peach
Growers threshold of ``fleeting effects . . . so minor that they often
went unreported'' (supra). Mild and moderate cases can be treated at
home but may still require medical intervention (typically through
telehealth visits) (Wu and McGoogan, April 7, 2020). Individuals with
mild cases often need at least one to two weeks to recover enough to
resume work, but effects can potentially last for months. Fatigue,
headache, and muscle aches are among the most commonly-reported
symptoms in people who are

not hospitalized (CDC, February 16, 2021), and their effects are not
fleeting and often linger. In a multistate telephone survey of 292
adults with COVID-19, the majority of whom did not eventually require
hospitalization, 274 (94%) of the survey respondents were symptomatic
at the time of their SARS-CoV-2 test, reporting illness for a median of
three days prior to the positive test (Tenforde et al., July 24, 2020).
Around one third of symptomatic respondents (95 of 274) reported that
they still had not returned to their usual state of health 2-3 weeks
after testing positive. Even among the young adults (aged 18-34 years)
with no chronic medical conditions, nearly one in five had not returned
to their usual state of health 2-3 weeks after testing.
    Even though these cases rarely result in hospitalization,
individuals with mild to moderate cases of COVID-19 are also
significantly impacted by their illness as a result of CDC isolation
recommendations. According to the current CDC criteria, a person with
symptomatic COVID-19 should generally discontinue isolation only when
all three of the following conditions have been met: (1) At least 10
days have passed since symptom onset; (2) at least 24 hours have passed
since experiencing a fever without the use of fever-reducing
medications; and (3) other symptoms have improved (other than loss of
taste or smell) (CDC, February 18, 2021). And the CDC notes with
respect to the first criteria that individuals with severe illness or
with compromised immunity might require up to 20 days of isolation.
Even those with mild or moderate cases of COVID-19 may be prevented by
their illness from working from home during the period of isolation.
Longer-Term Health Effects
    Recovery from acute infection with the SARS-CoV-2 virus can be
prolonged. Three categories of patients in particular are known to
require ongoing care after resolution of their acute viral infection:
Those with a severe illness requiring hospitalization (especially ICU
care); those with a specific medical complication from the infection,
such as a stroke; and those with milder acute illnesses who experience
persistent symptoms such as fatigue and breathlessness. The lingering
of, or development of, related health effects after a SARS-CoV-2
infection is known as post-acute sequelae. Dr. Francis Collins,
Director of the National Institutes of Health, testified that recovery
can be prolonged even in previously healthy young adults with milder
infections. Some people experience persistent symptoms for weeks or
even months after the acute infection (Collins, April 28, 2021). Post-
Acute COVID-19 syndrome has been proposed as a diagnostic term for
these patients, although the term ``long COVID'' is more common outside
the medical community. According to the CDC, the most common symptoms
of Post-Acute COVID-19 syndrome are fatigue, shortness of breath,
cough, and joint and chest pain (CDC, April 8, 2020). Other symptoms
reported by these patients include decreased memory and concentration,
depression, muscle pain, headache, intermittent fever, and racing heart
(CDC, April 8, 2021). Additional common symptoms, as reported by Dr.
Collins, are abnormal sleep patterns and persistent loss of taste or
smell (Collins, April 28, 2021). The cause of these long-term effects
and effective treatments have yet to be established. The report from
the Pulmonary Breakout Session of the National Institute of Allergy and
Infectious Diseases (NIAID) Workshop on Post-Acute Sequelae of COVID-19
stated that the ``burden of post-acute sequelae overall could be
enormous'' (NIAID, December 4, 2020). Dr. John Brooks, the chief
medical officer for the CDC's COVID-19 response, said he expected long-
term symptoms would affect ``on the order of tens of thousands in the
United States and possibly hundreds of thousands'' (Belluck, December
5, 2020). Dr. Collins testified that longer-term health impairments may
occur in up to 30% of recovered COVID-19 patients (Collins, April 28,
2021).
    Prolonged illness is common in patients who required
hospitalization because of COVID-19, and particularly in those who
required ICU admission. In a large nationwide U.S. study, 18.5% of
hospitalized patients were discharged to a long-term care or
rehabilitation facility (Rosenthal et al., December 10, 2020). Of 1,250
patients in a Michigan study, 12.6% were discharged to a skilled
nursing or rehabilitation facility and 15.1% of hospital survivors were
re-hospitalized within 60 days of discharge (Chopra et al., November
11, 2020). Of the 195 who were employed prior to hospitalization, 23%
were unable to return to work due to health reasons and 26% of those
who returned to work required reduced hours or modified duties (Chopra
et al., November 11, 2020). Those who returned to work did so a median
of 27 days after hospital discharge (Chopra et al., November 11, 2020).
Existing evidence indicates that COVID-19 patients requiring ICU care
and mechanical ventilation may experience Post Intensive Care Syndrome
(PICS), which is a constellation of cognitive dysfunction, psychiatric
conditions, and/or physical disability that persists after patients
leave the ICU (Society of Critical Care Medicine, 2013). In a study at
3 months post-discharge of 19 COVID-19 patients who required mechanical
ventilation while hospitalized, 89% reported pain or discomfort, 47%
experienced decreased mobility, and 42% experienced anxiety/depression
(Valent, October 10, 2020). The authors noted that these results are
similar to those reported in follow-up studies of patients who survived
ARDS due to other viral infections. Many employees hospitalized with
COVID-19 may require a long period of recovery should this trajectory
continue to hold. In a 5-year follow-up of 67 previously-employed ARDS
survivors, 34 had not returned to work within one year of discharge and
21 had not returned at five years (Kamdar, February 1, 2018). ARDS is a
serious complication that may have an impact on employees' ability to
return to work after a COVID-19 diagnosis.
    Several studies conducted outside the U.S. have also noted the
persistence of COVID-19 symptoms after hospital discharge. In a study
of 1,733 discharged patients in China, 76% reported at least one
symptom of COVID-19 six months after hospital discharge with 63%
experiencing persistent fatigue or muscle weakness (Huang et al.,
January 8, 2021). Similarly, an Irish study found 52% of 128 patients
reported persistent fatigue a median of 10 weeks after initial symptoms
first appeared (Townsend et al., November 9, 2020). A study of 991
pregnant women (5% hospitalized) in the U.S. found that the median time
for symptoms to resolve was 37 days and that 25% had persistent
symptoms (mainly cough, fatigue, headache, and shortness of breath)
eight weeks after onset (Afshar et al., December, 2020). A study of 86
previously-hospitalized Austrian patients observed that 88% had CT
scans still indicating lung damage at 6 weeks after their hospital
discharge; at 12 weeks, 56% of CT scans still revealed damage (European
Respiratory Society, September 7, 2020). A study of 152 previously-
hospitalized patients with laboratory-confirmed COVID-19 disease who
required at least 6 liters of oxygen during admission found that 30 to
40 days after discharge, 74% reported shortness of breath and 13.5%
still required oxygen at home (Weerahandi et al., August 14, 2020). A
UK study found that among 100

hospitalized patients (32% required ICU care), 72% of the ICU patients
and 60% of the non-ICU patients reported fatigue a mean of 48 days
after discharge (Halpin et al., July 27, 2020). Breathlessness was also
common, affecting 65.6% of ICU patients and 42.6% of non-ICU patients.
    In a New York City study, of the 638 COVID-19 patients who required
dialysis for AKI while hospitalized, only 108 survived. Of those 108,
33 still needed dialysis at discharge (Ng et al., September 19, 2020).
A study of Chinese patients reported that 11% of 333 hospitalized
patients with COVID-19 pneumonia developed AKI (Pei et al., June,
2020). Only half (45.7%) experienced complete recovery of kidney
function with a median follow up of 12 days. A similar study in Spain
also found only half (45.72%) experienced complete recovery with a
median follow up of 11 days (Procaccini et al., February 14, 2021). A
Hong Kong study provided a longer follow-up period including 30 and 90
days after the initial AKI event. At 7, 30, and 90 days after the
initial AKI event, recovery was observed in 84.6, 87.3% and 92.1%,
respectively (Teoh et al., 2021). A study in New York City found that
77.1% of patients with AKI experienced complete recovery during the
follow up period, excluding those who died or were sent to hospice
(Charytan et al., January 25, 2021). While 88% of these AKI cases were
in March and April with a final follow-up date of August 25, it is
uncertain how long it took for recovery to occur.
    Long-term cardiovascular effects also appear to be common after
SARS-CoV-2 infections, even among those who did not require hospital
care. A German study evaluated the presence of myocardial injury in 100
patients a median of 71 days after COVID-19 diagnosis (Puntmann et al.,
July 27, 2020). While only a third (33%) of study participants required
hospitalization, cardiovascular magnetic resonance (CMR) imaging was
abnormal in 78%. In the U.S., a study of COVID-19 cases in college
athletes, of whom 16 of 54 (30%) were asymptomatic, identified abnormal
findings in 27 (56.3%) of the 48 athletes who completed both imaging
studies, with 39.5% consistent with resolving pericardial inflammation
(Brito et al., November 4, 2020). A small number remained symptomatic
with fatigue and shortness of breath at 5 weeks and were referred to
cardiac rehabilitation (Lowry, November 12, 2020).
    A database for clinicians in the UK to report COVID-19 patients
with neurological complications revealed that 62% of the initial 125
patients enrolled presented with a cerebrovascular event including
ischemic strokes and intracerebral hemorrhages (Varatharaj et al., June
25, 2020). A UK study comparing COVID-19 ischemic stroke and
intracerebral cases with similar non-COVID-19 cases found a fatality
rate of 19.8% for COVID-19 patients in comparison to a fatality rate of
6.9% for non-COVID-19 patients (Perry et al., 2021). As discussed
above, PICS, involving prolonged impairments in cognition, physical
health, and/or mental health, may also occur. Other neurologic
diagnoses, including encephalopathy, Guillain-Barre syndrome, and a
range of other less-common diagnoses, may cause morbidity that persists
during recovery (Elkind et al., April 9, 2021; Sharifian-Dorche et al.,
August 7, 2020). A recent autopsy study of brain tissue from 18 COVID-
19 patients reported the presence of small blood vessel inflammation
and damage in multiple different brain areas (Lee et al., February 4,
2021). Persistent abnormalities in brain imaging have also been
reported in patients after discharge (Lu et al., August 3, 2020). A
study of 509 hospitalized patients in the Chicago area early in the
pandemic reported that a third had encephalopathy, resulting in
symptoms such as confusion or decreased levels of consciousness (Liotta
et al., October 5, 2020). Encephalopathy was associated with worse
functional outcomes at discharge (only 32% were able to handle their
own affairs without assistance) and higher deaths in the 30 days post-
discharge.
    COVID-19 also impacts mental health, both as a result of the toll
of living and working through such a disruptive pandemic, but also
because of actual medical impacts the virus might have on the brain
itself. As de Erausquin et al., (January 5, 2021) notes, SARS-CoV-2 is
a suspected neurotropic virus and ``neurotropic respiratory viruses
have long been known to result in chronic brain pathology including
emerging cognitive decline and dementia, movement disorders, and
psychotic illness. Because brain inflammation accompanies the most
common neurodegenerative disorders and may contribute to major
psychiatric disorders, the neurological and psychiatric sequelae of
COVID[hyphen]19 need to be carefully tracked.'' An international
consortium guided by WHO is attempting to determine these long-term
neurodegenerative consequences more definitively, with follow up
studies ending in 2022 (de Erausquin et al., January 5, 2021).
    In the short term, a number of studies have already demonstrated
the potential mental health effects caused by COVID-19. In the UK
database mentioned above, 21 of 125 COVID-19 patients had new
psychiatric diagnoses, including 10 who became psychotic and others
with dementia-like symptoms or depression (Varatharaj et al., June 25,
2020). An Italian study screened 402 adults with COVID-19 for
psychiatric symptoms with clinical interviews and self-report
questionnaires at one month follow-up after hospital treatment for
COVID-19. Patients rated in the psychopathological range as follows:
28% for post-traumatic stress disorder (PTSD), 31% for depression, 42%
for anxiety, 20% for obsessive-compulsive symptoms, and 40% for
insomnia. Overall, 56% scored in the pathological range in at least one
clinical dimension (Mazza et al., July 30, 2020). The TriNetX analytics
network was used to capture de-identified data from electronic health
records of a total of 69.8 million patients from 54 healthcare
organizations in the United States (Taquet et al., November 9, 2020).
Of those patients, 62,354 adults were diagnosed with COVID-19 between
January 20 and August 1, 2020. Within 14 to 90 days after being
diagnosed with COVID-19, 5.8% of those patients received a first
recorded diagnosis of psychiatric illness, which was measured as
significantly greater than psychiatric onset incidence during the same
time period after diagnoses of other medical issues including influenza
(2.8%), other respiratory diseases (3.4%), skin infections (3.3%),
cholelithiasis (3.2%), urolithiasis (2.5%), and fractures (2.5%). At
the NIAID Workshop on Post-Acute Sequelae of COVID-19, medical
personnel discussed their experiences treating COVID-19 patients in the
Johns Hopkins Post-Acute COVID-19 Team (PACT) Clinic. Among 49 patients
in the Clinic, more than 50% had some form of cognitive impairment 3
months after acute illness (Parker, December 3, 2020). Both ICU and
non-ICU patients were affected, but impairment was more pronounced in
ICU survivors (Parker, December 3, 2020). The medical personnel also
reported mental health impairments among patients treated at the PACT
Clinic.
    The studies and evidence discussed above give some indication of
the many serious long-term health effects COVID-19 patients might
experience, including respiratory, cardiovascular, neurological, and
psychiatric complications. However, the full extent of the long-term
health consequences of COVID-19 is unknown because the

virus has only been transmitted between humans since the end of 2019.
Therefore, to fully appreciate the likely long-term risks to
individuals with COVID-19, it is important to consider the long-term
impacts of similar coronaviruses found among human populations where
there has been more time to gather data.
    The previous SARS outbreak in 2002 to 2003, caused by the SARS-CoV-
1 virus, is one such example, and it indicates long-term impacts to
infection survivors, which might result from the viral infection,
medications used, or a combination of those factors. Patients who
survived a SARS-CoV-1 infection report that they have a reduced quality
of life at least 6 months after illness (Hui et al., October 1, 2005).
These patients were found to have reduced exercise capacity; some had
abnormal chest radiographs and lung function, and weak respiratory
muscles at least 6 months after illness (Hui et al., October 1, 2005).
Survivors reported experiencing depression, insomnia, anxiety, PTSD,
chronic fatigue, and decreased lung capacity with patient follow up as
long as four years after infection (Lam et al., December 14, 2009; Lee
et al., April 1, 2007; Hui et al., October 1, 2005). Long term studies
have revealed that some survivors of SARS-CoV-1 infections have chronic
pulmonary and skeletal damage after a 15 year follow up (Zhang et al.,
February 14, 2020). Zhang et al., found that approximately half of the
area of ground glass opacities present after infection in a 2003 CT
scan (9.4%) remained after 15 years (4.6%). The study also found
significant femoral head loss (25.52%) remained in 2018. Bone loss was
likely an indirect effect caused by the high pulse steroid therapies
used to treat the infection in many patients with severe disease.
Survivors also suffer long-term neurologic complications, deficits in
cognitive function, musculoskeletal pain, fatigue, depression, and
disordered sleep up to at least three years after infection (Moldofsky
and Patcai, March 24, 2011).
Individuals at Increased Risk From COVID-19
    Many members of the workforce are at increased risk of death and
severe disease from COVID-19 because of their age or pre-existing
health conditions. Comorbidities are fairly common among adults of
working age in the U.S. For instance, 46.1% of individuals with cancer
are in the 20-64 year old age range (NCI, April 29, 2015), and over 40%
of working age adults are obese (Hales et al., February 2020).
Furthermore, over a quarter of those between 65 and 74 years old remain
in the workforce, as well as almost 10% of those 75 and older (BLS, May
29, 2019). In hospitals and other health services (e.g., physician
offices, residential care facilities), 1,078,000 workers are employed
who are 65 years old and older (BLS, January 22, 2021). Individuals who
are at increased risk of severe infection (hospitalization, admission
to the ICU, or death) include: Individuals who have cancer, chronic
kidney disease, chronic lung disease (e.g., chronic obstructive
pulmonary disease (COPD), asthma (moderate-to-severe), interstitial
lung disease, cystic fibrosis, and pulmonary hypertension), serious
heart conditions, obesity, pregnancy, sickle cell disease, type 2
diabetes, and individuals who are over 65 years of age,
immunocompromised and/or smokers (CDC, May 13, 2021). Of 5,700 COVID-19
patients hospitalized from March 1 to April 4, 2020 in the New York
City area, the most common comorbidities were hypertension (56.6%),
obesity (41.7%), and diabetes (33.8%), excluding age (Richardson et
al., April 22, 2020).
Observed Disparities in Risk Based on Race and Ethnicity
    During the COVID-19 pandemic, research has found that employees in
racial and ethnic minority groups, and especially Black and Latinx
employees, have often faced substantially higher risks of SARS-CoV-2
exposure and infection through the workplace than have non-Hispanic
White employees (Hawkins, June 15, 2020; Hertel-Fernandez et al., June
2020; Roberts et al., November 26, 2020). Among the general U.S.
population, American Indian, Alaskan Native, Latinx, and Black
populations are more likely than White populations to be infected with
SARS-CoV-2 (CDC, April 23, 2021). Once infected, people in these
demographics are also more likely than their White counterparts to be
hospitalized for and/or die from COVID-19 (CDC, April 23, 2021). These
observed disparities in risk of infection, risk of adverse health
consequences, and risk of death may be attributable to a number of
factors, including that people from racial and ethnic minority groups
are often disproportionately represented in essential frontline
occupations that require close contact with the public and that offer
limited ability to work from home or take paid sick days. Disease
severity is also likely exacerbated by long-standing healthcare
inequities (CDC, April 19, 2021).
    Hawkins (June 15, 2020) compared data on worker demographics from
the Bureau of Labor Statistics' 2019 Current Population Survey and
O*NET (a Department of Labor database that contains detailed
occupational information on the nature of work for more than 900
occupations across the U.S.) to determine occupation-specific COVID-19
risks. The model found that among O*NET's 57 physical and social
factors related to work, the two predictive variables of COVID-19 risk
were frequency of exposure to diseases and physical proximity to other
people. The author found that Black individuals were overwhelmingly
employed in essential industries and that people of color--which in
this study included Black, Asian, and Hispanic populations--were more
likely than White individuals to work in essential occupations (e.g.,
healthcare and social assistance, personal care aids) that were
identified as having greater disease exposure risk characteristics. A
similar evaluation of workers employed in frontline industries (e.g.,
healthcare) found that people of color--defined in this study to
include individuals who are Black, Hispanic, Asian-American/Pacific
Islander, or some category other than White--are well represented in
these types of work (Rho et al., April 7, 2020). These studies suggest
that people in racial and ethnic minority groups are greatly
represented among the American workforce in jobs associated with
greater risk of exposure to SARS-CoV-2, including those in healthcare
and related industries.
    Through April 2021, infection rates compared to White, Non-Hispanic
persons in the United States are 60% greater for American Indian or
Alaskan Native persons, 100% greater for Latinx persons, and 10%
greater for Black persons (CDC, April 23, 2021). This disparity is also
reflected in studies addressing infections by occupation, race, and
ethnicity. In a large study of healthcare employees in Los Angeles,
researchers found that increased risk of infection was significantly
related to whether an employee was Latinx or Black (Ebinger et al.,
February 12, 2021). Another study of frontline healthcare workers in
the U.S. and UK found that Black, Asian, and minority ethnic workers
were more likely to report a positive COVID-19 test than non-Hispanic,
White workers (Nguyen et al., September 1, 2020). The study also found
that Black, Asian, and minority ethnic healthcare workers were more
likely to report reuse of or inadequate PPE, were more likely to work
in higher-risk clinical settings (e.g., in-patient hospitals or nursing
homes), and were more likely to care for patients with

suspected or documented COVID-19. These studies illustrate that racial
and ethnic minorities are likely to be at increased risk of
occupational SARS-CoV-2 exposures and related infections.
    In addition to an increased likelihood of exposures and potential
infection, Native American, Alaskan Native, Latinx, and Black
populations all have increased risk of hospitalization and/or death
from COVID-19 in comparison to White populations (CDC, April 23, 2021).
Chen et al., (January 22, 2021) studied increased mortality risk
between different racial and ethnic minority groups and occupations for
working age Californians in pre-pandemic and pandemic time frames.
Measured mortality risks increased during the pandemic for all races
and ethnicities, but White populations had lower increased risk (6%
increase) compared to Asian populations (18%), Black populations (28%)
and Latinx populations (36%). A similar disparity in excess mortality
was also observed between races and ethnicities within the same
occupational sector (Chen et al., January 22, 2021). In the ``health or
emergency'' sector, risk ratios were far greater for Asian (1.40),
Black (1.27), and Latinx (1.32) workers in comparison to White workers
(1.02).
    Health equity is a major concern in assessing the pandemic's
effects (CDC, April 19, 2021). Some of the factors that contribute to
increased risk of morbidity and mortality from COVID-19 include:
Discrimination, healthcare access/utilization, economic issues, and
housing (CDC, April 23, 2021). And although racial and ethnic minority
groups are more likely to be exposed to and infected with SARS-CoV-2,
research indicates that testing for the virus is not markedly higher
for these demographic groups (Rubin-Miller et al., September 16, 2020).
Rubin-Miller et al., note that there may be barriers to testing that
decrease access or delay testing to a greater degree than in White
populations. These barriers to testing can delay needed medical care
and lead to worse outcomes. And even when able to seek care, other
barriers may exist. In discussing widespread health inequities, studies
have noted that American Indian communities lacked sufficient
facilities to respond to COVID-19 (Hatcher et al., August 28, 2020; van
Dorn et al., April 18, 2020).
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b. Transmission of SARS-CoV-2
    SARS-CoV-2 is a highly transmissible virus. Since the first case
was detected in the U.S., there have been over 32 million reported
cases of COVID-19, affecting every state and territory, with thousands
more infected each day. According to the CDC, the primary way the SARS-
CoV-2 virus spreads from an infected person to others is through the
respiratory droplets that are produced when an infected person coughs,
sneezes, sings, talks, or breathes (CDC, May 7, 2021).\8\ Infection
could then occur when another person breathes in the virus. Most
commonly this occurs when people are in close contact with one another
in indoor spaces (within approximately six feet for at least fifteen
minutes) (CDC, May, 2021).
---------------------------------------------------------------------------

    \8\ On May 7, 2021, the CDC updated its guidance regarding
airborne transmission (CDC, May 7, 2021; https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/sars-cov-2-transmission.html). OSHA notes that this change does not alleviate
the need for any of the controls in this ETS. Because OSHA has
determined that the controls in this ETS are necessary to address a
grave danger as quickly as possible, the agency determined that it
was appropriate to issue the ETS while it continues to evaluate the
new evidence to determine whether additional controls may be
necessary at a later date.
---------------------------------------------------------------------------

    The best available current scientific evidence demonstrates that
the farther a person is away from the source of the respiratory
droplets, the fewer infectious viral particles will reach that person's
eyes, nose, or mouth because gravity pulls the droplets to the ground
(see the Need for Specific Provisions, Section V of the preamble, on
Physical Distancing). For example, a systematic review of SARS-CoV-2
(up to early May 2020) and similar coronaviruses (i.e., SARS-CoV-1 (a
virus related to SARS-CoV-2) and Middle Eastern Respiratory Syndrome
(MERS) (a disease caused by a virus that is similar to SARS-CoV-2 and
spreads through droplet transmission)) found 38 studies, containing
18,518 individuals, to use in a meta-analysis that found that the risk
of viral infection decreased significantly as distance increased (Chu
et al., June 27, 2020). A second COVID-19 study from Thailand reviewed
physical distancing information collected from 1,006 individuals who
had an exposure to infected individuals (Doung-ngern et al., September
14, 2020). The study revealed that the group with direct physical
contact and the group within one meter but without physical contact
were equally likely to become infected with SARS-CoV-2. However, the
group that remained more than one meter away had an 85% lower infection
risk than the other two groups. The studies' findings on physical
distancing combined with expert opinion firmly establish the importance
of droplet transmission as a driver of SARS-CoV-2 infections and COVID-
19 disease.
    COVID-19 may also be spread through airborne particles under
certain conditions (Schoen, May 2020; CDC, May 7, 2020; Honein et al.,
December 11, 2020). That airborne transmission can occur during
aerosol-generating procedures (AGPs) in healthcare (such as when
intubating an infected patient) is a reasonable concern (see CDC, March
12, 2020). CDC provides recommendations for infection prevention and
control practices when caring for a patient with suspected or confirmed
SARS-CoV-2 infection that include the use of a respirator (CDC,
February 23, 2021). There are several studies examining the risks
associated with AGPs. For example, a publication detailing one of the
first known SARS-CoV-2 occupational transmission events in U.S.
healthcare providers reported a statistically significant increased
risk from AGPs (Heinzerling et al., April 17, 2020). However, the
currently available information specifically related to SARS-CoV-2
exposure during AGPs is limited (Harding et al., June 1, 2020).
    Data from the Respiratory Protection Effectiveness Trial (ResPECT),
designed to assess effectiveness of PPE to prevent respiratory
infections, were analyzed to identify risk factors for endemic
coronavirus infections among healthcare personnel (Cummings et al.,
July 9, 2020). This study found that AGPs may double the risk of
infection among healthcare providers. Although the infectious agents
studied were surrogate coronaviruses and not the SARS-CoV-2 virus, the
study indicates increased risk from such procedures for infections from
the coronavirus family, and thus the study is relevant. In addition, a
systematic review of research on transmission of acute respiratory
infections from patients to healthcare employees focused on
publications from the first SARS virus outbreak (Tran et al., April 26,
2012). Risks of SARS-CoV-1 infection in those performing AGPs were
several times higher than in healthcare workers not exposed to AGPs.
Workers may also be exposed to the SARS-CoV-2 virus during AGPs
conducted outside of the hospital setting, including certain dental
surgical procedures (Leong et al., December 2020), cardiopulmonary
resuscitation (CPR) provided by homecare workers (Payne and Peache,
February 4, 2021), and endoscopy (Teng et al., September 16, 2020;
Sagami et al., January 2021).
    Risk from AGPs during autopsies is evident from reports of staff
infections during autopsies on decedents infected with tuberculosis,
which is a well-known airborne infectious agent (Nolte et al., December
14, 2020). Additionally, research that measured airborne particles
released during the use of an oscillating saw with variable saw blade
frequencies and different saw blade contact loads concluded that, even
in the best-case scenario tested on dry bone, the number of aerosol
particles produced was still high enough to provide a potential health
risk to forensic practitioners (Pluim et al., June 6, 2018). Other
reports from healthcare settings have raised the possibility of spread
of airborne particles from suspected or confirmed COVID-19 patients,
absent AGPs. For example, infectious viral particles were collected
from in the room of a COVID-19 patient from distances as far as 4.8
meters away in non-AGP hospital settings (Lednicky et al., September
11, 2020), and transmission via aerosol was suspected in a
Massachusetts hospital (Klompas et al., February 9, 2021). For more
discussion of this subject, see the Need for Specific Provisions
(Section V of the preamble) on Respirators.
    The extent to which COVID-19 may spread through airborne particles
in other contexts is less clear. CDC has noted that in some
circumstances airborne particles can remain suspended in the air and be
breathed in by others, and travel distances beyond 6 feet (for example,
during choir practice, in restaurants, or in fitness classes) in
situations that would not be defined as involving close contact:

    With increasing distance from the source, the role of inhalation
likewise increases. Although infections through inhalation at
distances greater than six feet from an infectious source are less
likely than at closer distances, the phenomenon has been repeatedly
documented under certain preventable circumstances. These
transmission events have involved the presence of an infectious
person exhaling virus indoors for an extended time (more than 15
minutes and in some cases hours) leading to virus concentrations in
the air space sufficient to transmit infections to people more than
6 feet away, and in some cases to people who have passed through
that space soon after the infectious person left.

(CDC, May 7, 2021).
    In general, enclosed environments, particularly those without good
ventilation, increase the risk of airborne transmission (CDC, May 7,
2021; Tang et al., August 7, 2020; Fennelly, July 24, 2020). In one
scientific brief, CDC provides a basic overview of how airborne
transmission occurs in indoor spaces. Once respiratory droplets are
exhaled, CDC explains, they move outward from the source and their
concentration decreases through fallout from the air (largest droplets
first, smaller later) combined with dilution of the remaining smaller
droplets and particles into the growing volume of air they encounter
(CDC, May 7, 2020). Without adequate ventilation, continued exhalation
can cause the amount of infectious smaller droplets and particles
produced by people with COVID-19 to become concentrated enough in the
air to spread the virus to other people (CDC, May 7, 2020). For
example, an investigation of a cluster of cases among meat processing
employees in Germany found that inadequate ventilation within the
facility, including low air exchange rates and constant air
recirculation, was one key factor that led to transmission of SARS-CoV-
2 within the workplace (Gunther et al., October 27, 2020). An
epidemiological investigation of a cluster of COVID-19 cases in an
indoor athletic court in Slovenia demonstrated that the humid and warm
environment of the setting, combined with the turbulent air flow that
resulted from the physical activity of the players, allowed COVID-19
particles to remain suspended in the air for hours (Brlek et al., June
16, 2020). A cluster of cases in a restaurant in China also suggested
transmission of SARS-CoV-2 via airborne particles because of little
mixing of air throughout the restaurant (Li et al., November 3, 2020).
Infections have been observed with as little as five minutes of
exposure in an enclosed room (Kwon et al., November 23, 2020). Outdoor
settings (i.e., open air or structures with one wall) typically have a
lower risk of transmission (Bulfone et al., November 29, 2020), which
is likely due to increased ventilation with fresh air and a greater