under normal circumstances. Then, as a sensitivity analysis, the agency
also presents results using a 56 percent overall effectiveness rate,
which corresponds to an overall higher rate of community spread of 40
percent.\112\ These alternative effectiveness and preventiveness rates
are used to derive estimates of the number of COVID-19 infections and
deaths prevented by the ETS among HCWs.
---------------------------------------------------------------------------

    \112\ The 56 percent overall effectiveness rate was selected for
the sensitivity analysis because it is the mathematical result of
doubling the community spread from 20% to 40%. This equation shows
the overall effectiveness rate equals the preventiveness rate
(0.925) time the non-community spread, which is 60 percent, or 100
percent minus 40 percent [0.56 = 0.925 * (1-0.4)].
---------------------------------------------------------------------------

    Applying the 75 percent ETS effectiveness rate to the baseline
estimates, along with a vaccination rate of 75 percent for HCWs, yields
benefits of the ETS of 295,284 confirmed COVID-19 HCW infections and
776 deaths prevented over a six-month period as a result of the ETS
(see Table VI.B.4142). Applying the 56 percent ETS effectiveness
sensitivity rate to the March/April estimates yields benefits of
221,463 confirmed COVID-19 HCW infections and 466 deaths prevented over
the six-month period as a result of the ETS.
g. Monetizing ETS Health Benefits
    OSHA here provides estimates of the monetized value of the COVID-19
infections and fatalities prevented as a result of the ETS. These
estimates are included solely to facilitate the type of analysis
required by E.O. 12866 because the OSH Act, as interpreted by the
courts, prohibits OSHA from using cost-benefit analysis as a basis for
regulatory decisions. See, e.g., Pub. Citizen Health Research Grp. v.
U.S. Dept. of Labor, 557 F.3d 165, 177 (3d Cir. 2009) (``the Supreme
Court has conclusively ruled that economic feasibility does not involve
a cost-benefit analysis''), citing Am. Textile Mfrs. Inst., Inc. v.
Donovan, 452 U.S. 490, 513 (1981).
    OSHA has developed estimates of monetized benefits under important
baseline assumptions of partial worker vaccination at the time the ETS
takes effect resulting in an average worker vaccination rate of 75
percent for HCWs over the course of the ETS. This is not an endpoint
prediction of vaccination rates, but rather an approximate average rate
attained over the course of the ETS. This is an assumption of what the
estimated total vaccination rates will be for HCWs under age 65 about
three or four months into the ETS, given that some vaccines take two to
six weeks to be fully effective after the first shot.
Value of Each ETS Fatality Avoided
    The agency's methodology for monetizing benefits is based on
relevant academic literature and approaches OSHA and other regulatory
agencies have taken in the past for similar regulatory actions.\113\
---------------------------------------------------------------------------

    \113\ See, for example, the discussion in the FEA in support of
the 2016 silica final rule (OSHA-2010-0034-4247; ``Benefits and Net
Benefits'') (OSHA, March 25, 2016).
---------------------------------------------------------------------------

    To estimate the monetary value of each COVID-19-related fatality
prevented as a result of the ETS, OSHA relies on estimates developed
from the willingness of affected individuals to pay to avoid a marginal
increase in their risk of dying.\114\ While a willingness-to-pay (WTP)
approach clearly has theoretical merit, it should be noted that

an individual's willingness to pay to reduce the risk of death may tend
to underestimate the total societal willingness to pay, which could
include the willingness of others--particularly immediate family--to
pay to reduce that individual's risk of fatality.\115\
---------------------------------------------------------------------------

    \114\ This is the procedure that OMB recommends in Circular A-4.
See (OMB, 2003), pp. 18-19.
    \115\ See, for example, Thaler and Rosen (1976), Sunstein
(January, 2004), or Viscusi et al., (January 1, 1988). For a view
that such underestimation of the social willingness to pay would be
offset, more or less, by an analogous social underestimation of
costs, see Bergstrom (March, 2006).
---------------------------------------------------------------------------

    For estimates using the WTP concept, OSHA relied on existing
studies of the imputed value of fatalities avoided based on the theory
of compensating wage differentials in the labor market. These studies
rely on certain critical assumptions for their accuracy, particularly
that workers understand the risks to which they are exposed and that
workers have legitimate choices between high- and low-risk jobs. Actual
labor markets only imperfectly reflect these assumptions.\116\ A number
of academic studies, as summarized in Viscusi and Aldy (August, 2003),
have shown a correlation between higher job risk and higher wages,
suggesting that employees demand monetary compensation in return for a
greater risk of injury or fatality. The estimated trade-off between
lower wages and marginal reductions in fatal occupational risk--that
is, workers' willingness to pay for marginal reductions in such risk--
yields an imputed value of an avoided fatality: The willingness-to-pay
amount for a reduction in risk divided by the reduction in
risk.117 118 OSHA has used this approach in many recent
proposed and final rules.\119\
---------------------------------------------------------------------------

    \116\ On the former assumption, see the discussion in the FEA in
support of the 2016 silica final rule (OSHA-2010-0034-4247; p. II-5
to II-7) (OSHA, March 25, 2016). On the latter, see, for example,
the discussion of wage compensation for risk for union versus
nonunion workers in Dorman and Hagstrom (October 1, 1998).
    \117\ For example, if workers are willing to pay $100 each for a
1/100,000 reduction in the probability of dying on the job, then the
imputed value of an avoided fatality would be $100 divided by 1/
100,000, or $10,000,000. Another way to consider this result would
be to assume that 100,000 workers made this trade-off. On average,
one life would be saved at a cost of $10,000,000.
    \118\ Note that, consistent with the economics literature, most
of the available value-of-a statistical-life (VSL) estimates are for
reducing the risk of an acute (immediate) fatality. They do not
include an individual's willingness to pay to avoid an illness prior
to fatality, which is separately estimated in the following section.
    \119\ See, for example, the preliminary economic analysis for
the proposed hexavalent chromium rule (Document ID OSHA-H054A-2006-
0064-1466 (OSHA, 2004)), the benefits analysis for the final
hexavalent chromium rule (Document ID OSHA-H054A-2006-0064-2530
(OSHA, 2016b)), and the preambles for the proposed and final
respirable crystalline silica rules (78 FR 56274; 81 FR 16286).
---------------------------------------------------------------------------

    Viscusi and Aldy (August, 2003) conducted a meta-analysis of
studies in the economics literature that use a WTP methodology to
estimate the imputed value of life-saving programs and found that each
fatality avoided was valued at $6.7 million in 2000 dollars. Using the
GDP Deflator (BEA, 2021), this $6.7 million base number in 2000 dollars
yields an estimate of $9.73 million in 2019 dollars for each fatality
avoided. OSHA is also using $9.73 million as the monetary value of each
estimated 2021 fatality prevented as a result of the ETS.
Value of Each COVID-19 Related Infection Avoided
    OSHA also reviewed the available research regarding the dollar
value of preventing a generic injury or illness. Using WTP to value
non-fatal injuries or illnesses is the approach recommended in OMB
Circular A-4 (OMB, September 17, 2003). In the paper cited immediately
above, Viscusi and Aldy (August, 2003) conducted a critical review of
39 studies estimating the value of a statistical injury or illness. The
authors found that most studies resulted in estimates in the range of
$20,000 to $70,000 per injury or illness (in 2000 dollars), although
several studies resulted in higher estimates.\120\ A mid-point WTP
estimate for a generic injury or illness would therefore be $45,000, to
be raised to $65,364 (2019 dollars) to account for the rise in the cost
of living since 2000, the base year for the monetized values estimated
by Viscusi and Aldy (August, 2003).
---------------------------------------------------------------------------

    \120\ That some studies used an overall injury/illness rate, and
others used only injuries or illnesses resulting in lost workdays,
partly explains the variation in these estimates.
---------------------------------------------------------------------------

    For this value to be a representative WTP estimate for the average
COVID-19 infection, the severity of the typical COVID-19 infection must
be similar to that of the typical OSHA recordable injury or illness.
While most COVID-19 infections are asymptomatic or mild and involve
maybe two weeks of forgone earnings and minor medical bills (totaling
perhaps $1,000-$5,000), others are more severe. Some will involve
hospitalization and, in some cases, long-term disability.\121\ For
those persons who have not received an FDA-authorized COVID-19 vaccine,
the percentage of COVID-19 cases involving hospitalization is still
fluctuating, with perhaps 10 percent being a reasonable estimate. The
medical and foregone earnings cost per hospitalization may range from
$10,000 to $300,000 or more.
---------------------------------------------------------------------------

    \121\ For deaths that would occur after workers are hospitalized
for COVID-19, the benefit of the avoided fatality was included in
the previously-described WTP value of an avoided acute fatality.
OSHA has not included in its estimates of ETS benefits the value of
a premature death due to a chronic COVID-19 disability, because the
likelihood of such occurrences is too speculative to be estimated at
this time.
---------------------------------------------------------------------------

    There is a growing body of literature on chronic illnesses that are
linked to prior COVID-19 infections. The coronavirus, once it enters
the body, may attach itself to any organ or tissue, including the
lungs, heart, kidneys, brain, and nervous system. This can lead to
acute or chronic health effects, such as stroke, heart attack, kidney
failure, loss of brain function, extreme mental and physical fatigue,
and various other deleterious effects.\122\ Further discussion and
summary of evidence concerning the persistence of COVID-19 symptoms
after hospital discharge and the occurrence of longer-term disabilities
is presented in Grave Danger (Section IV.A of the preamble). The cost
of chronic conditions resulting from COVID-19 infections is difficult
to estimate because the duration and severity of those chronic
conditions, as well as subsequent reductions in life expectancy (not
considered in these estimates of ETS health benefits), are not well
known at this time. In other rulemakings, however, OSHA has identified
costs (all inflated to 2019 dollars) for other chronic diseases, such
as chronic silicosis (cost of injury of approximately $400,000 from
Miller (November 22, 2005)); chronic bronchitis (approximately $600,000
from EPA (2008)); and chronic beryllium disease (approximately $2.2
million for direct morbidity and medical costs from Bartell et al.,
(2000)).
---------------------------------------------------------------------------

    \122\ Both the medical and popular press have recognized the
lingering and possibly longer-term multi-organ health effects of the
disease and given it a name: ``long COVID.'' See for example Huzar
(April 12, 2021) and Walton (April 11, 2021).
---------------------------------------------------------------------------

    Because there is still some uncertainty surrounding the frequency
and severity of COVID-19 infections and their distribution, OSHA has
chosen to use the earlier estimate presented for a generic non-fatal
injury or illness of $65,364 as a reasonable approximation of the WTP
value of an avoided COVID-19 non-fatal infection among workers who have
not received the COVID-19 vaccine.
Estimated ETS Monetized Health Benefits
    With FDA authorization of several COVID-19 vaccines and increased
vaccination efforts by the Administration, OSHA believes that by the
date of publication of the ETS, approximately 70 percent of HCWs will
have been fully vaccinated. Based on early results, the vaccines appear
to be reducing the number of COVID-19 cases. Crucially, they appear to
be virtually eliminating COVID-19

fatalities and significantly reducing both the number and severity of
COVID-19 infections among the vaccinated population. Still, none of the
vaccines are 100 percent effective, and their usefulness against newer
strains of COVID-19 remains uncertain. With that as background, OSHA
has adjusted the baseline number of COVID-19 infections for HCWs by the
vaccine effectiveness.\123\ OSHA will use the same Value of Statistical
Illness (adjusted for inflation) of $65,364 used in previous rules. In
addition, OSHA has reduced the estimated number of COVID-19 fatalities
prevented by 75 percent for HCWs to account for vaccination in the
workforce, but retained the WTP value of $9.73 million for each
fatality avoided.
---------------------------------------------------------------------------

    \123\ The vaccines are about 85.2 percent effective against
severe illness, so for example the overall effectiveness rate for a
vaccine given to 30 percent of a population would be (0.3 x 100%) +
(0.7 x 0.148) = 40.3%.
---------------------------------------------------------------------------

    The monetized values of infections and fatalities prevented by the
ETS, accounting for HCW vaccination, are shown Table VI.B.46 below.
Table VI.B.46 also includes the subsequent estimated health benefits of
the ETS under various scenarios after taking into account the effect of
worker vaccinations in the baseline. Table VI.B.47 presents the results
when the estimates in Table VI.B.46 are subject to a sensitivity test
using 56 percent overall effectiveness of the ETS, while recognizing
the presence of worker vaccinations in the baseline and accounting for
40 percent community spread versus 20 percent in the baseline
analysis.\124\
---------------------------------------------------------------------------

    \124\ 56 percent = 70 percent preventiveness x (1-20 percent
community spread).
[GRAPHIC] [TIFF OMITTED] TR21JN21.059

[GRAPHIC] [TIFF OMITTED] TR21JN21.060

d. Low-Case Sensitivity Analysis
    Cases have declined significantly in recent weeks, and perhaps a
combination of natural causes, herd immunity, vaccinations, and
government policy will result in case numbers continuing to fall
dramatically. To consider this possibility, a sensitivity analysis that
takes into account dramatically lower case and fatality counts is
presented below. Rather than choosing a relatively low historic month,
like June 2020 (847,000 new cases, 21,635 deaths), OSHA creates a
future fictional month, called ``month 13'', based on 20 percent of the
average monthly cases over the pandemic (April 2020-May 2021:32,798,861
cases, or 2,522,989 cases/month). This is 504,598 cases and taking 20
percent of total fatalities, 8,860 fatalities. This estimate would be
considerably lower than the May 2021 monthly case count of 861,373
cases and 14,943 fatalities. ``Month 13'' also has about one-quarter of
the cases of the ``primary'' scenario, and about 58 percent of the
fatalities of the ``primary'' scenario.\125\
---------------------------------------------------------------------------

    \125\ OSHA presents these lower numbers of cases and fatalities
as a sensitivity analysis rather than in the primary estimate in
part because the primary estimate is used consistently in both
benefits and costs. Assumptions about the number of cases impact
both costs and benefits, and OSHA used the higher numbers from the
primary estimate for a more conservative (i.e., higher) projection
of costs, thereby ensuring a more robust economic feasibility
analysis. OSHA believes the numbers of cases and fatalities that are
included in the primary scenario are more appropriate for the
purposes of these analyses, while the cases identified in the
sensitivity analysis provide sufficient contrast in the event that
the case numbers were to drop dramatically.
---------------------------------------------------------------------------

    Using all of the other assumptions about preventiveness, community
spread, and vaccines, explained above, the fictitious ``month 13''
month would translate into significant benefits over a six-month
period, including 72,893 HCW cases prevented over six months, 192 HCW
fatalities prevented, and monetized benefits of $6.6 billion during
that period.
h. Conclusion
    In this chapter, OSHA examined the potential of the ETS to prevent
infections and deaths from COVID-19

among workers in the U.S. OSHA analyzed the possible numbers of cases
in the absence of an ETS using historical monthly data on infections
and fatalities during the pandemic. The monthly baseline scenarios were
based on a primary and an alternative estimate. The primary estimate
reflects cases and fatalities during March/April 2021 while the
alternative estimate is based on an average monthly level of cases and
fatalities for all the pandemic months (April 2020-April 2021).
    The benefits of the ETS simply reflect the reduction in infections
and fatalities under different estimates of the overall effectiveness
of the ETS (75 percent for HCWs and 56 HCWs as a sensitivity test) and
assuming an average vaccination rate of 75 percent for HCW. Monetized
benefits were calculated based on WTP estimates developed in the
academic literature and applied in prior OSHA rules. Infections and
deaths prevented among all health care workers, based on the primary
estimate, are 295,284 and 776, respectively. Monetized benefits for the
primary estimate, assuming a 75 percent overall effectiveness rate, are
$26.8 billion (with the alternative scenario yielding monetized
benefits of $20.5 billion).
    OSHA's ``primary'' benefits estimate is the agency's preferred
scenario. The ``primary'' scenario uses numbers of cases and deaths
that occurred from March 19, 2021 through April 19, 2021 and assumes an
average vaccination rate of 75 percent for HCW 75 percent overall
effectiveness rate for the HCW.
    OSHA's analysis indicates that over a 6-month period the ETS would
prevent 776 deaths at a cost of about $4 billion, while the value of
fatalities avoided is $7.5 billion. This simple calculation ignores the
additional health benefits provided by avoided infections.
i. Other (Non-Health) Benefits of the ETS
    It is also helpful to put this rule in context. OSHA's regulatory
authority extends only to workplaces, and not to society as a whole. As
a result, its feasibility analyses are necessarily limited to what is
feasible for the workplaces subject to its authority, and the benefits
analyses it performs for other purposes also focus on the benefits to
workers. Therefore, the foregoing analysis follows the normal OSHA
practice of considering only the costs and benefits to workers and
their employers and fulfills the agency's legal and analytical
obligations with respect to the ETS.
    The pandemic, however, affects the economy as a whole, and affects
workplaces within that context. Although the primary purpose of this
COVID-19 emergency temporary standard (ETS) is to help prevent health
care worker infections and deaths due to the pandemic, the ETS also
helps create conditions that will facilitate an equitable economic
recovery. While vaccines show much promise, it will take months before
all of the workforce is fully vaccinated, and even then there is
uncertainty about existing vaccines' efficacy against new virus
variants. Workplace safety measures such as physical distancing, face
coverings, and physical barriers are still needed in parts of the
healthcare sector to prevent immediate infections and reduce the spread
of infections and, thereby, speed and strengthen the economic recovery
(Chudik et al., April, 2021). Such measures will not only safeguard the
health and employment status of vulnerable workers, but will also
provide visible forms of protections to patients to restore consumer
confidence.
    More importantly, the ETS benefits society by reducing the spread
of the virus. An uninfected health care worker cannot infect others in
the community, resulting in better control of the pandemic overall. If
the pandemic is better contained in this industry, widespread economic
functions have a greater chance of continuing.
    Healthcare workers who are less worried about being infected and
losing their lives or ability to work are more likely to have the
confidence to engage in normal consumption rather than saving to guard
against medical costs and loss of income. Thus, the protections of this
ETS will lower concerns about infection and help give individuals a
sense of safety and security, which will in turn help stimulate
economic activity.
    The economic impacts of the pandemic have been unevenly distributed
across demographic and socioeconomic groups and have exacerbated
inequalities. The initial negative impact on employment was larger for
women, minorities, the less educated, and the young, even after
accounting for industry and occupation (Lee et al., January 1, 2021).
Lockdowns of schools and businesses to prevent the spread of COVID-19,
which the successful implementation of the ETS will help avoid, have
had particularly large effects on vulnerable groups, such as women, due
to the disproportionate burden women face in caring for children
(Caselli et al., 2020). Particularly, low-income workers in frontline
healthcare industries are disproportionately Black, Hispanic, female,
and foreign born (Leibenluft and Olinsky, April 20, 2020). Again, OSHA
expects the stimulative effects of the ETS will help ameliorate these
equity concerns created by the pandemic.
    Beyond their direct function in protecting workers, several of the
provisions of the ETS have important economic effects. One area of
particular importance is that of paid medical removal protection (MRP).
MRP is a crucial part of this emergency temporary standard. Paid MRP
benefits are not the same as paid sick leave, since the former are to
ensure that (potentially) contagious workers who cannot work remotely
or in isolation may be removed from the workplace without losing pay,
thereby encouraging them to take part in the kind of COVID-19 exposure
prevention program created by this standard. But the benefits of paid
MRP are similar to paid sick leave for these purposes. Indeed, like
paid sick leave, paid MRP encourages workers who have been exposed to
the virus to self-isolate, thereby containing and mitigating the spread
of the virus. Paid MRP, like paid sick leave, allows workers who are
(potentially) infected to stay home rather than infect their coworkers
as collateral damage (OECD, 2020). Keeping these workers out of the
physical workplace lowers the transmission of COVID-19 and saves lives
(McLaren and Wang, December 2020). States that gained access to paid
sick leave through the Families First Coronavirus Response Act (FFCRA)
saw around 400 fewer confirmed cases per state per day relative to the
pre-FFCRA period and to states that had already enacted sick pay
mandates before enactment of the FFCRA (Pichler et al., October 15,
2020).
    Paid sick leave also helps reduce income inequality. The ability to
take paid family or medical leave is highly unequal. Low-wage workers
are less likely to have access to paid leave and tend to take unpaid
leave at higher rates than other groups, though they take less leave
overall (Sawhill et al., December 5, 2019). A 2017 study of the
distributional impact of three policy models for providing paid sick
days found that a national paid sick day policy would benefit
proportionately more women than men and proportionally more workers of
color than white workers, compared to the then current policy. Low-
income workers would see their share of paid sick days increase the
most (IMPAQ International LLC, January, 2017). While the American
Rescue Plan of 2021 does not extend the mandate for paid sick leave, as
discussed above, the feasibility of this provision is enhanced by the
tax credits that are available to employers

who provide MRP as required by the standard.
    Paid sick leave also helps ward against the impact of losing the
sick workers, and their families, as consumers. It is worth noting that
the American Rescue Plan of 2021 also includes stimulus checks to
individuals in the amount of $1,400, which is roughly the amount of the
maximum required weekly payments under the MRP provision of the ETS,
although the ETS does not prevent employers from paying high-paid
workers their full wages or salary. This reflects the significance of
the impact that the loss of even a single week's income can have on the
economy, and the ETS would prevent this loss on the consumer side.
BILLING CODE 4510-26-P

Appendix VI.B.A: Healthcare and Other Covered Occupations in the Scope
of the ETS

    Error! Reference source not found. lists the BLS occupations used
by OSHA to designate employees in settings where healthcare and
healthcare support services are performed and the entities that employ
them.
[GRAPHIC] [TIFF OMITTED] TR21JN21.061

[GRAPHIC] [TIFF OMITTED] TR21JN21.062

[GRAPHIC] [TIFF OMITTED] TR21JN21.063

Appendix VI.B.B: Average Loaded Wages by NAICS Code and Healthcare
Setting

    Table VI.B.B.1 presents the average loaded wages for covered
employees by NAICS code and healthcare setting. Both averages are
weighted by covered employment.
[GRAPHIC] [TIFF OMITTED] TR21JN21.064

[GRAPHIC] [TIFF OMITTED] TR21JN21.065

Appendix VI.B.C: Average Cost per Establishment by 6-Digit NAICS Code

    Table VI.B.C.1 presents the average incremental cost per
establishment for compliance with the ETS.
[GRAPHIC] [TIFF OMITTED] TR21JN21.066

Appendix VI.B.D: Adjustment to Economic Analysis for Pandemic Shock and
To Forecast Out to ETS Time Period

    For many regulatory economic analyses, the agency uses the most up-
to-date economic data as its baseline to describe the current state of
the economy, as discussed above. It then applies the anticipated
changes due to the new OSHA standard or regulation to that baseline.
However, even the most current data OSHA uses in a typical economic
analysis--including employment, number of establishments, revenue--
represent economic conditions from at least one calendar year in the
past. Even with that lag in the data due to reporting and compilation
time, the basic structure of the economy changes slowly, so the

recent past is a reasonable predictor of the near future.
    Given the unique circumstances of the pandemic and its economic
disruption, OSHA's usual approach does not make sense for the present
analysis. The agency has therefore also made adjustments to the
baseline industry profile to account for the economic conditions that
are expected to persist during the time period in which this ETS will
be in effect.
    The baseline employment and revenue numbers were obtained from the
2017 Economic Census (the most current information available from the
Economic Census) (U.S. Census Bureau, 2021). Revenue values were
adjusted to 2019 dollars using the BEA's GDP deflator (BEA, 2021). OSHA
adopts these adjusted 2019 revenue data as representing the state of
the economy before the pandemic hit in 2020. Similarly, OSHA uses 2018
OES data for wages, brought forward to 2019 using the GDP deflator to
be consistent with revenue data (BLS, March 29, 2019). To adjust for
the economic effects of the pandemic and provide a more reasonable
estimate of employment and revenue numbers for the period during which
the ETS will be in effect, the agency used other national datasets to
derive percentage changes to this baseline 2019 data.
    To adjust for changes in employment since 2019, OSHA relies on the
BLS' Current Employment Statistics (CES), which is published monthly
and provides estimates by NAICS code (BLS, December, 2020). At the time
of this analysis, the December 2020 CES, which contains full data
through November 2020, had been published. The agency uses average
employment, within each NAICS industry, over all months of 2019 as the
``normal'' base economy before COVID-19 arrived. OSHA then uses the
percentage difference between the reported 2019 employment and the
reported employment from November 2020 as its measure of the pandemic
shock, and adjusts the 2019 data by this percentage. The average
employment decline across all covered NAICS industries over the period
2019 to November 2020 is three percent.
    The adjustment described above is intended to make the employment
estimates per establishment more representative of conditions as of the
end of 2020. The ultimate objective, however, is to estimate economic
conditions during the forthcoming 6-month period. The exact timing of
the ETS at the time of this analysis is not known; OSHA assumes that
the end of the ETS occurs later in 2021. The agency uses forecasts of
aggregate growth in GDP from the well-known Conference Board (The
Conference Board, May, 2021) to extend its employment estimates from
the end of 2020 through the 3rd quarter of 2021. See Table VI.B.D.1 for
the Conference Board's forecasts.\126\
---------------------------------------------------------------------------

    \126\ Since GDP is not produced by labor alone, and hence
employment should not be strictly proportional to GDP, the agency
makes a further adjustment to account for this. One method is to
assume GDP takes the form of an aggregate Cobb-Douglas function,
GDP=LbK(1-b), where L is aggregate employment,
K is capital (but here represents everything other than employment),
and b is between 0 and 1. The Cobb-Douglas function has constant
returns to scale. If, as some economists argue a better
representation has increasing returns to scale, this will actually
lower our estimate of the amount of labor growth entailed by a given
amount of growth in GDP. This would similarly be true for any type
of Solow residual-like technological change. In either case, less
labor will be needed to reach a given GDP level. In this simple
setup, b in fact equals the labor share of income in GDP (the wage,
w, is the marginal product of capital w=dGDP/dL=b*(K/
L)1-b. Then total wages is w*L=b*L*(K/L)1-b=b
LbK(1-b)=b*GDP. Hence the wage share=w*L/
GDP=b*GDP/GDP=b). For the wage share we do have estimates, see FRED
variable LABSHPUSA156NRUG, which most recently has an estimate for
2019 of 59.7 percent. Note a recent paper (Autor et al., February 3,
2020) on the labor share issue is ``The Fall of the Labor Share and
the Rise of Superstar Firms.'' Finally to see how this is reflected
in employment growth estimates, if the Cobb-Douglas assumption
holds, then with growth, g, OSHA has future GDP as (1+g)*GDP =
(1+g)* LbK(1-b) =
((1+g)*L)b((1+g)K)(1-b) so employment grows by
(1+g)b or (1+g).597. This is the adjustment
OSHA made to GDP growth, to account for other factors used in
production, in calculating future employment growth.
[GRAPHIC] [TIFF OMITTED] TR21JN21.067

    For revenue (and by extension, profits) OSHA also uses various
estimates to adjust the data forward from the 2019 baseline. First, the
agency uses the percentage change in GDP by industry, reported by the
BEA, to adjust revenue and profits through the 3rd quarter of 2020 (see
Table VI.B.D.2).\127\
---------------------------------------------------------------------------

    \127\ GDP data are available, at the time of this analysis,
through the 3rd quarter 2020 at the 2 digit NAICS level (BEA, March
29, 2021).

---------------------------------------------------------------------------

[GRAPHIC] [TIFF OMITTED] TR21JN21.068

[GRAPHIC] [TIFF OMITTED] TR21JN21.069

BILLING CODE 4510-26-C
    At the time of this analysis, the BEA only has an aggregate GDP
growth estimate for the 4th quarter of 2020, which is 4.0 percent; that
aggregate estimate is used to bring the data to the end of 2020.\128\
While costs for the rule only occur during the time the ETS is in
effect, the amount of time that firms have to pay for those costs,
through direct revenues, loans, or other means, is not necessarily
limited to the ETS period itself. In theory, the firm could continue
paying the costs through the remaining life of the firm. Here the
agency limits the revenue used for the feasibility analysis to six
months, which extends to the end of 2021. Again, the agency uses the
aggregate GDP forecasts of the Conference Board, shown above in Table
VI.B.D.1, to estimate revenues through 2021.
---------------------------------------------------------------------------

    \128\ (BEA, May 26, 2021).
---------------------------------------------------------------------------

    Chaining these various datasets together, OSHA estimates final
percentage changes in employment and revenue/profits through 3rd
quarter 2021. There was a big decrease in employment, revenue, and
profits in the middle of 2020 due to the pandemic but there has since
been a rebound and GDP forecasts are somewhat positive going forward.
Of course, there is a great deal of uncertainty in forecasts at this
time, but OSHA believes it has made reasonable estimates of current and
future conditions based on public government datasets and other
substantial evidence in the record. For employment, the overall average
percentage change across all 6-digit NAICS industries from 2019 to 3rd
quarter 2021 is -2.9%. The same average for revenue is 2.5%.
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Williams, T and Saine, T. (2015, December 14). Understanding
Hospital Charges, Costs and Payments. Strategic Dynamics. https://
strategicdynamicsfirm.com/understanding-hospital-charges-costs-

and-payments/. (Williams and Saine, December 14, 2015).
Wu, Z and McGoogan, JM. (2020, April 7). Characteristics of and
Important Lessons From the Coronavirus Disease 2019 (COVID-19)
Outbreak in China: Summary of a Report of 72314 Cases From the
Chinese Center for Disease Control and Prevention. JAMA. 323(13):
1239-1242. doi: 10.1001/jama.2020.2648. (Wu and McGoogan, April 7,
2020).

VII. Additional Requirements

A. Regulatory Flexibility Act

    Whenever an agency is required by the Administrative Procedure Act,
5 U.S.C. 553, or another law, to publish a general notice of proposed
rulemaking, the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,
requires the agency to prepare an initial regulatory flexibility
analysis (IRFA). 5 U.S.C. 601(2), 603(a). Since this ETS ``shall serve
as a proposed rule'' for a final standard under section 6(c)(3) of the
OSH Act, it is treated as a general notice of proposed rulemaking under
the RFA. An agency may waive or defer the IRFA in the event a rule is
promulgated in response to an emergency that makes compliance with the
requirements of section 603 impracticable. 5 U.S.C. 608(a). The agency
hereby certifies that compliance with the IRFA requirement is
impracticable under the circumstances. OSHA prepared this ETS on an
expedited basis in response to a national emergency affecting the lives
and health of the nation's healthcare workers; the IRFA is inherently a
relatively lengthy process that would be impracticable to undertake for
a standard of such broad applicability in the limited time available.
Because OSHA is not preparing an IRFA for the ETS, the agency is also
not required to convene a small entity panel under section 609(b).

B. Unfunded Mandates Reform Act (UMRA), 2 U.S.C. 1501 et seq.

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), 2
U.S.C. 1532, requires agencies to assess the anticipated costs and
benefits of a rule before issuing ``any general notice of proposed
rulemaking'' that includes a Federal mandate that may result in
expenditures in any one year by state, local, or Tribal governments, or
by the private sector, of at least $100 million, adjusted annually for
inflation. The assessment requirement also applies to ``any final rule
for which a general notice of proposed rulemaking was published.'' The
agency has satisfied the assessment requirement in section 202 through
its analysis of the ETS's benefits and economic feasibility.

C. Executive Order 13175

    Section 5 of E.O. 13175, on Consultation and Coordination with
Indian Tribal Governments, requires agencies to consult with tribal
officials early in the process of developing regulations that: (1) Have
tribal implications, that impose substantial direct compliance costs on
Indian governments, and that are not required by statute; or (2) have
tribal implications and preempt tribal law. 65 FR 67249, 67250 (Nov. 6,
2000). E.O. 13175 requires that such consultation occur to the extent
practicable. OSHA held a listening session to hear the concerns of
tribal representatives during the preparation of this ETS.

D. National Environmental Policy Act

    OSHA has reviewed this ETS according to the National Environmental
Policy Act (NEPA) of 1969, 42 U.S.C. 4321 et seq., the regulations of
the Council on Environmental Quality, 40 CFR chapter V, subchapter A,
and the Department of Labor's NEPA procedures, 29 CFR part 11. The
agency has determined that the rule will have no significant impact on
air, water, or soil quality; plant or animal life; the use of land; or
other aspects of the external environment. The ETS will likely generate
some additional materials that will enter the waste stream ends at
landfills, but that amount will be marginal and is not expected to
impact current waste management practices or channels. First, OSHA's
economic analysis identifies a relatively small, temporary and fixed
increase in disposable materials. Even absent the exclusions for
ambulatory care providers that screen out COVID-19 patients, the ETS
would result in the following approximate totals of additional
disposable items: 197 million gloves, 403 million surgical masks, 15
million N-95 respirators, 108 million disposable gowns, and 15 million
disposable face shields. The personal protective equipment used for
COVID-19 related care is a small fraction of that which is used for all
other healthcare purposes. OSHA has estimated that most personal
protective equipment would increase by 10% during the 6 months the ETS
is expected to remain in effect. Moreover, the number of gloves is
insignificant when compared to aggregate number of gloves already
typically used by hospitals and other healthcare employers. For
context, hospital supply analysts recently estimated that the ``global
demand for nitrile exam gloves exceeds production capacity by about 215
billion units, or about 40 percent'' (Premier Data, April 1, 2021).
That means that roughly 86 billion gloves are already being produced to
meet existing demand, and the amount of gloves required by this
standard would be fewer than 0.2% of that number. Furthermore, based on
the agency's knowledge of the healthcare industry, OSHA believes that
it is already standard practice for the vast majority of health care
staff, if not all, to be wearing some type of face covering even if
they are not currently wearing facemasks or respirators as defined in
the ETS. The use of facemasks and N-95 respirators actually represent a
transfer of disposable products rather than an increase in overall
waste: one type of disposable product with roughly the same physical
dimensions would replace another in landfills.
    Second, as acknowledged in the economic analysis for the ETS,
OSHA's estimates are significant overestimates of the actual numbers of
PPE that would be required by the ETS because they do not account for
the very significant carve-out for ambulatory healthcare settings
through which many employers will be able to avoid all of the
requirements of the ETS by screening out people with suspected or
confirmed COVID-19 and excluding them from the employer's facility (see
Sec.  1910.502(a)(2)(iii).
    Finally, this ETS is expected to be in place for only six months.
By comparison, OSHA's permanent Bloodborne Pathogens standard requires
roughly the same types of disposable PPE for healthcare staff. OSHA
certified that the Bloodborne standard would not have a significant
environmental impact on the basis that the ``incremental impacts on
landfills'' resulting from the increase in the use of disposable items
required by the standard, such as personal protective equipment,
syringes, and sharps disposal containers would increase in tonnage of
``approximately 50,000 tons per year,'' which would increase the annual
solid waste generation of approximately 160 million tons per year ``by
less than 0.1% per year'' (56 FR 64088 (Dec. 6, 1991). Given that
amount of disposable PPE required by the Bloodborne standard on an
annual basis will certainly be much higher than the cumulative 6 months
of PPE necessitated by the ETS, OSHA's conclusion regarding the
environmental impact of the ETS is consistent with its previous
certification of no significant adverse environmental impact in the
Bloodborne standard.
    Based on the foregoing evidence and analysis, OSHA finds that the
ETS will have no significant adverse environmental impacts.

E. Congressional Review Act

    This ETS is considered a major rule under the Congressional Review
Act (CRA), 5 U.S.C. 801 et seq. Section 801(a)(3) of the CRA normally
requires a 60-day delay in the effective date of a major rule. 5 U.S.C.
801(a)(3), 804(2). However, section 808(2) of the CRA allows the
issuing agency to make a rule effective sooner than otherwise provided
by the CRA if the agency makes a good cause finding that notice and
public procedure are impracticable, unnecessary, or contrary to the
public interest. 5 U.S.C. 808(2). OSHA finds that there is good cause
to make this rule effective upon publication because notice and public
procedure with respect to this ETS are both impracticable and contrary
to the public interest, given the expedited timeline on which this
standard was developed and the grave danger threatening healthcare
workers' lives and health (see Grave Danger and Need for the ETS, both
in Section IV of this preamble). Congress authorized OSHA to take swift
action in promulgating an ETS to address this type of grave danger, and
provided explicitly that an ETS is effective upon publication, 29
U.S.C. 655(c)(1); delaying the effective date of such an expedited
process would thwart that purpose. It is specifically because of the
emergency nature of this rulemaking that the OSH Act allows for OSHA to
proceed without the extensive public input the agency normally solicits
in issuing occupational safety and health standards. 29 U.S.C.
655(c)(1). For rules to which section 808(2) applies, the agency may
set the effective date. In this case, consistent with the OSH Act
requirement cited above, the ETS takes immediate effect upon
publication in the Federal Register.

F. Administrative Procedure Act

    The Administrative Procedure Act (APA) normally requires notice and
comment, and a 30-day delay of the effective date of a final rule, for
recordkeeping and reporting regulations promulgated under section 8(c)
of the OSH Act. 29 U.S.C. 657(c); 5 U.S.C. 553(b), (d). This ETS
contains recordkeeping and reporting requirements tailored to address
COVID-19 illness. To the extent that these requirements are not already
exempt from the APA's requirements for notice and comment and delay in
effective date under section 6(c) of the Act, OSHA invokes the ``good
cause'' exemption to the APA's notice requirement because the agency
finds that notice and public procedure are impracticable and contrary
to the public interest under 5 U.S.C. 553(b)(3)(B). As explained in
more detail in Grave Danger and Need for the ETS (both in Section IV of
the preamble), this finding is based on the critical importance of
implementing the requirements in this ETS, including the recordkeeping
and report provisions, as soon as possible to address the grave danger
that COVID-19 presents to healthcare workers. For the same reason, OSHA
finds good cause to waive the normal 30-day delay in the effective date
of a final rule from the date of its publication in the Federal
Register. See 5 U.S.C. 553(d)(3). As noted above, the ETS is required
by the OSH Act to take immediate effect upon publication. 29 U.S.C.
655(c)(1).

G. Consensus Standards

    OSHA must consider adopting existing national consensus standard
that differ substantially from OSHA's standard if the consensus
standard would better effectuate the purposes of the Act. See section
12(d)(1) of the National Technology Transfer and Advancement Act of
1995 (15 U.S.C.A. 272 Note); see also 29 U.S.C. 655(b)(8). OSHA is not
aware of any applicable national consensus standards addressing the
grave danger posed by COVID-19 specifically. OSHA is, however,
incorporating by reference several consensus standards for face shields
and CDC guidance. See Sec.  1910.509, on incorporation by reference.
OSHA considered incorporation of ASTM F3502-21 in this ETS, as
required. However, the agency has determined that it is infeasible for
the timeframe of this ETS to incorporate this consensus standard or to
otherwise establish additional criteria for face coverings beyond that
already recommended by the CDC due to the time needed to manufacture
and distribute such a new product (see the discussion of face coverings
in the Need for Specific Provisions, which is located in Section V of
the preamble).

H. Executive Order 13045

    Executive Order 13045, on Protection of Children from Environmental
Health Risks and Safety Risks, requires that Federal agencies
submitting covered regulatory actions to OIRA for review pursuant to
Executive Order 12866 must provide OIRA with (1) an evaluation of the
environmental health or safety effects that the planned regulation may
have on children, and (2) an explanation of why the planned regulation
is preferable to other potentially effective and reasonably feasible
alternatives considered by the agency (62 FR 19885 (4/23/1997)).
Executive Order 13045 defines ``covered regulatory actions'' as rules
that may (1) be economically significant under Executive Order 12866,
and (2) concern an environmental health risk or safety risk that an
agency has reason to believe may disproportionately affect children.
Because OSHA has no reason to believe that the risk from COVID-19
disproportionately affects children, the ETS is not a covered
regulatory action and OSHA is not required to provide OIRA with further
analysis under section 5 of the executive order. However, to the extent
children are exposed to COVID-19 either as employees or at home as a
result of family members' workplace exposures to COVID-19, the ETS
should decrease children's exposures to the virus.

I. Federalism

    The agency reviewed this ETS according to Executive Order 13132, on
Federalism, which requires that Federal agencies, to the extent
possible, refrain from limiting State policy options, consult with
States before taking actions that would restrict States' policy
options, and take such actions only when clear constitutional authority
exists and the problem is of national scope. 64 FR 43255 (8/10/1999).
The Executive Order allows Federal agencies to preempt State law only
with the express consent of Congress. In such cases, Federal agencies
must limit preemption of State law to the extent possible.
    The Occupational Safety and Health Act is an exercise of Congress's
Commerce Clause authority, and under Section 18 of the Act, 29 U.S.C.
667, Congress expressly provided that States may adopt, with Federal
approval, a plan for the development and enforcement of occupational
safety and health standards. OSHA refers to States that obtain Federal
approval for such plans as ``State Plans.'' Occupational safety and
health standards developed by State Plans must be at least as effective
in providing safe and healthful employment and places of employment as
the Federal standards. Subject to these requirements, State Plans are
free to develop and enforce their own occupational safety and health
standards.
    This ETS complies with E.O. 13132. The problems addressed by this
ETS for COVID-19 are national in scope. As explained in Grave Danger
(Section IV.A. of the preamble), healthcare employees face a grave
danger from exposure to COVID-19 in the workplaces where protections
are required by this ETS. Healthcare employees across the country face
the danger of exposure to COVID-19 at

work, and as explained in Need for the ETS (Section IV.B. of the
preamble), a national standard is needed to ensure that a uniform,
baseline approach is taken to protect them. The SARS-CoV-2 virus is
highly communicable and infects workers without regard to state
borders, making a national approach necessary. Accordingly, the ETS
establishes minimum requirements for employers in every State to
protect healthcare employees from the risks of exposure to COVID-19. In
States without OSHA-approved State Plans, Congress expressly provides
for OSHA standards to preempt State occupational safety and health
standards in areas addressed by the Federal standards. In these States,
the ETS limits State policy options in the same manner as every
standard promulgated by the agency. Furthermore, nothing in the ETS is
intended to limit general public health measures instituted by state or
local governments that go beyond, and are not inconsistent with, the
requirements of the ETS. In States with OSHA-approved State Plans, this
ETS does not significantly limit State policy options. Any special
workplace problems or conditions in a State with an OSHA-approved State
Plan may be dealt with by that State's standard, provided the standard
is at least as effective as this ETS. Several State Plans have adopted
COVID-19 workplace requirements, and OSHA has consulted with them in
developing this emergency temporary standard.

J. State Plans

    When Federal OSHA promulgates an emergency temporary standard,
States and U.S. Territories with their own OSHA-approved occupational
safety and health plans (``State Plans'') must either amend their
standards to be identical or ``at least as effective as'' the new
standard, or show that an existing State Plan standard covering this
area is ``at least as effective'' as the new Federal standard. 29 CFR
1953.5(b). Adoption of the ETS by State Plans must be completed within
30 days of the promulgation date of the final Federal rule, and State
Plans must notify Federal OSHA of the action they will take within 15
days. The State Plan standard must remain in effect for the duration of
the Federal ETS.
    Of the 28 States and Territories with OSHA-approved State Plans, 22
cover both public and private-sector employees: Alaska, Arizona,
California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan,
Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico,
South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and
Wyoming. The remaining six States and Territories cover only state and
local government employees: Connecticut, Illinois, Maine, New Jersey,
New York, and the Virgin Islands.
    This ETS imposes new requirements to protect healthcare workers
across the nation from COVID-19.

K. Paperwork Reduction Act

I. Overview
    The Emergency Temporary Standard (ETS) for occupational exposure to
COVID-19 (Coronavirus Disease 2019) being published at 29 CFR part
1910, subpart U, (29 CFR 1910.502, et seq.) contains collection of
information requirements that are subject to review by the Office of
Management and Budget (OMB) under the Paperwork Reduction Act of 1995
(PRA), 44 U.S.C. 3501, et seq, and OMB's regulations at 5 CFR part
1320. The PRA defines a ``collection of information'' to mean ``the
obtaining, causing to be obtained, soliciting, or requiring the
disclosure to third parties or the public, of facts or opinions by or
for an agency, regardless of form or format'' (44 U.S.C. 3502(3)(A)).
    This ETS will protect healthcare employees from occupational
exposure to COVID-19. The ETS adds new Subpart U to OSHA's standards in
29 CFR part 1910. Subpart U is divided into several parts, and Sec.
1910.502 contains information collection requirements.
    Under the PRA, a Federal agency cannot conduct or sponsor a
collection of information unless OMB approves it, and the agency
displays a currently valid OMB control number (44 U.S.C. 3507). Also,
notwithstanding any other provision of law, no employer shall be
subject to penalty for failing to comply with a collection of
information if the collection of information does not display a
currently valid OMB control number (44 U.S.C. 3512). The PRA has
special provisions for emergency situations applicable to the ETS.
Under 44 U.S.C. 3507(j) and OMB's implementing regulations (5 CFR
1320.13), OMB can authorize a collection of information without regard
to the normal clearance procedures if the relevant agency determines
that the collection of information ``is essential to the mission of the
agency'' and ``public harm is reasonably likely to result if normal
clearance procedures are followed'' or ``the use of normal clearance
procedures . . . is reasonably likely to cause a statutory or court
ordered deadline to be missed.'' OSHA has requested, and OMB has
authorized, the use of these emergency procedures for this ETS because
protecting the health of the healthcare employees covered by the
protections in this ETS is essential to OSHA's mission and employee
health will be harmed if this ETS is not issued in an expeditious
manner. The agency requested that OMB assign the information
collections an OMB control number for 180 days in accordance with 44
U.S.C. 3507(j)(1). On [June 11, 2021, the Department of Labor submitted
to OMB for approval an Information Collection Request (ICR) containing
a full analysis and description of the burden hours and costs
associated with the collections of information in the ETS to OMB. A
copy of the ICR is available to the public at http://www.reginfo.gov.
OSHA will publish a separate notice in the Federal Register that will
announce the results of OMB's review. That notice will also include a
final list of OMB approved collections of information and total burden
hours and costs imposed by the new standard.
    The collections of information found in the ETS are listed below.
II. Summary of Information Collection Requirements
    The following paragraphs provide information about this ICR.
    1. Title: COVID-19 Emergency Temporary Standard (29 part CFR 1910,
subpart U).
    2. Type of Review: Emergency.
    3. OMB Control Number: 1218-0277.
    4. Affected Public: Business or other for-profit. This rule applies
to employers in healthcare who have employees that may have
occupational exposure to COVID-19 while engaging in work activities.
    5. Description of the ICR: The COVID-19 ETS contains collection of
information requirements that will assist both employers and employees
in addressing the risk of occupational exposure to COVID-19.
Specifically, OSHA has found that these requirements are necessary to
address the grave danger to healthcare employees from transmission of
the SARS-CoV-2 virus in the workplace, resulting in COVID-19 that can
be fatal. Some of the key means for preventing this transmission at the
workplace are keeping people distanced to make the potential
transmission of the virus less likely, identifying infected employees
who need to be excluded from the workplace, and recordkeeping and
information exchanges necessary to help prevent infected employees from
spreading the virus in the workplace. To be effective, these measures
require information exchanges, such as signage

to direct employees or visitors where to stand, as well as collection
of information such as whether an employee has tested positive for
COVID-19. To identify the best way to address workplace-specific
hazards, OSHA also requires employers to involve their employees in the
development of a COVID-19 plan to identify areas where physical
distancing or other controls are needed, or may be difficult, so that
the employer can implement controls or processes to better protect
employees. OSHA notes that some of these requirements may necessitate
the sharing of personal and confidential information. OSHA has tailored
its requirements to minimize these types of information exchanges, but
the agency finds that the information required to be gathered,
recorded, or shared subject to the limitations specified, are each
necessary to protect workers from a grave danger.
    This information collection request for the COVID-19 ETS is
described below:
Section 1910.502--Healthcare
    The COVID-19 ETS provisions for healthcare contain collection of
information requirements applicable to all healthcare workplaces where
any employee provides healthcare services or healthcare support
services. The collection of information requirements in this section
require employers to develop and implement a written COVID-19 plan,
perform health screening and medical management (including additional
requirements related to patient screening), maintain records of their
COVID-19 Plans and COVID-19 exposures and infections among their
workers, and report work-related COVID-19 hospitalizations and
fatalities to OSHA.
    6. Summary of the Information Collection Requirements: Below is a
summary of the collection of information requirements identified in the
COVID-19 ETS. See Table VII.-1. Each of the provisions of the ETS
identified below, including the requirements resulting in collections
of information and the reasons the agency is requiring them, are
discussed in more detail in Section VIII. Summary and Explanation of
the ETS. OSHA's rationale for identifying the various provisions as
requiring a collection of information, as well as the impact of the
information collections, is also discussed in more detail in Item 8 of
the ICR. A copy of this ICR is available to the public at: http://www.reginfo.gov/public/do/PRAOMBHistory?ombControlNumber=1218-0277.
[GRAPHIC] [TIFF OMITTED] TR21JN21.070

    7. Number of respondents: 748,816.
    8. Frequency of responses: One time; on occasion; quarterly.
    9. Number of responses: 8,428,134.
    10. Average time per response: Varies.
    11. Estimated total burden hours: 19,260,202.
    12. Estimated cost (capital-operation and maintenance):
$3,016,812.57.

III. Request for Comment

    Although the ETS takes effect immediately, with implementation
dates for several provisions specified in the Dates provisions of Sec.
1910.502, it is

a temporary standard that can only be made permanent following an
opportunity for public notice and comment. OSHA therefore invites the
public to submit comments to OMB, in addition to OSHA, on the proposed
collections of information with regard to the following:
     Whether the proposed collections of information are
necessary for the proper performance of the Agency's functions,
including whether the information is useful;
     The accuracy of OSHA's estimate of the burden (time and
cost) of the collections of information, including the validity of the
methodology and assumptions used;
     The quality, utility, and clarity of the information
collected; and
     Ways to minimize the compliance burden on employers, for
example, by using automated or other technological techniques for
collecting and transmitting information.
    Comments maybe be submitted to OSHA. In addition to submitting
comments directly to the agency, members of the public who wish to
comment on the agency's information collection requirements in this ETS
may send written comments to the Office of Information and Regulatory
Affairs, Attn: OMB Desk Officer for the DOL-OSHA (RIN 1218-AD36),
Office of Management and Budget, Room 10235, Washington, DC 20503. You
may also submit comments to OMB by email at:
<EMAIL_ADDRESS>Please reference the ICR Reference Number
202106-1218-004 in order to help ensure proper consideration. The
agency encourages commenters also to submit their comments related to
the agency's clarification of the information collection requirements
to the rulemaking docket (Docket Number OSHA-2021-0003), along with
their comments on other parts of the proposed rule. For instructions on
submitting these comments to the rulemaking docket, see the sections of
this Federal Register notice titled DATES and ADDRESSES.
References
Premier Data. (2021, April 1). The state of PPE supply one year into
COVID-19. https://www.premierinc.com/newsroom/blog/premier-data-the-state-of-ppe-supply-one-year-in-to-covid-19. (Premier Data, April 1,
2020).

VIII. Summary and Explanation

A. Scope and Application

    This ETS applies to employers in settings where any employee
provides healthcare services or healthcare support services. This
includes: Employees in hospitals, nursing homes and assisted living
facilities; emergency responders; home healthcare workers; and
employees in ambulatory care facilities. These settings are
collectively referred to as ``healthcare'' in this Summary and
Explanation.\129\
---------------------------------------------------------------------------

    \129\ In addition to the scope exceptions contained in the ETS
itself, which are discussed in this section, there may be situations
where the ETS does not apply by operation of the OSH Act. For
example, the ETS does not apply where states with OSHA-approved
occupational safety and health programs (``State Plans'') have
coverage (see 29 U.S.C. 667), State Plans must adopt and enforce
COVID-19 requirements that are at least as effective as the ETS.
Finally, the ETS does not apply to state and local government
employers in states without State Plans (see 29 U.S.C. 652(5)).
---------------------------------------------------------------------------

    The focus of the ETS is on protecting healthcare workers in
settings where suspected or confirmed COVID-19 patients are treated.
The Director of the CDC's National Institute for Occupational Health
(NIOSH) recently wrote to OSHA expressing concern that workers ``in
settings that provide treatment to patients with suspected or confirmed
COVID-19 face a particularly elevated risk of being infected with SARS-
CoV-2'' because the delivery of such care ``requires repeated instances
of close contact with infected patients'' and healthcare workers ``will
be of greater risk of exposure to new SARS-CoV-2 variants'' because
they will be among the first to be exposed to people carrying the
variants as they emerge and those infected seek medical care (Howard,
May 22, 2021). OSHA does not distinguish between healthcare services
provided outdoors from those same services provided indoors. For
example, the risks to an emergency medical technician who provides
mouth-to-mouth resuscitation to a patient are the same whether the care
is provided outdoors or indoors. Additionally, while the CDC has stated
that the risk of transmission outdoors is low for general activities,
that guidance specifically states that it ``applies in non-healthcare
settings'' (CDC, May 13, 2021).
    The heightened risk for healthcare workers is discussed in more
detail in the Grave Danger section.
    This standard also addresses the heightened risk faced by employees
of long-term care facilities where the congregate living situation and
weakened immune systems of many of the residents can lead infections
such as COVID-19 to spread rapidly between patients or residents and
then to the healthcare staff who care for them. Like employees who work
at hospitals, clinics, and other healthcare facilities, employees who
work at long-term care facilities include both healthcare
practitioners, who may have direct and close contact with patients and
residents, as well as healthcare support staff who could also be
exposed directly to patients and residents, or indirectly through
aerosols that can remain suspended in rooms for various periods of time
or settle and contaminate surfaces. If the presence of COVID-19
patients does lead to more infection of those providing direct
healthcare services, those infected workers can then spread the virus
to healthcare support personnel who have not yet been vaccinated to
prevent that. Medical examiners and support personnel face similar
danger in settings where autopsies are performed on suspected or
confirmed COVID-19 victims, particularly where aerosol generating
procedures are employed. These heightened risks are also discussed
further in the grave danger section.
    Thus, the standard targets healthcare settings where OSHA has found
the elevated risk associated with care of persons with confirmed and
suspected COVID-19, and associated activities, constitute a grave
danger. Accordingly, it exempts out settings where this elevated risk
does not exist. This does not mean there is not a significant risk of
COVID-19 infection in the settings exempted from this standard, and the
OSH Act's general duty clause may require employers to take steps to
protect employees even in settings where an exception applies.
    OSHA recognizes that the grave danger is most elevated in those
healthcare settings where people with suspected or confirmed COVID-19
are expected to be treated, but it also acknowledges that there is a
subset of healthcare providers who elect not to treat such people and
instead screen them out to prevent them from entering their facilities.
Paragraph (a)(2) of the ETS therefore includes several scope exclusions
for such employers, which are addressed in more detail in the following
summary and explanation. This is not the only exception--several other
exceptions are identified and explained in the following paragraphs--
but focusing the ETS on settings where COVID-19 is reasonably expected
to be present is particularly significant because it is intended to
tailor the ETS to address the grave danger OSHA has identified and the
need for the ETS to address that danger.
    Paragraph (a)(1) provides that the ETS applies to all settings
where any employee provides healthcare services or performs healthcare
support services except as otherwise provided later in paragraph (a).
It is important to note that, for the most part, the ETS is

settings-based; that is, if any employee in any setting performs one of
the tasks enumerated in paragraph (a)(1), each employer with employees
in that setting must (except as otherwise provided in paragraph (a))
follow the ETS, even though some of these employees might not engage in
the enumerated tasks. Thus, for example, the ETS would generally apply
to protect all employees in a hospital (e.g., employees working in the
cafeteria, employees performing administrative tasks in the hospital),
not just those employees providing healthcare services or performing
healthcare support services (e.g., housekeeping). OSHA takes a
settings-based approach in the ETS, rather than a task-based approach,
to ensure that the ETS is consistent with the CDC's COVID-19 guidance,
which also takes a settings-based approach that most healthcare
employers are accustomed to, and to protect all employees in these
high-risk settings from the hazard of COVID-19, which can be spread
from the direct patient care areas to other areas through a variety of
personnel interactions and exposures.
    The term ``setting'' can encompass several types of scenarios. On
the one hand, if a service is performed in a facility whose primary
function is the provision of healthcare services (such as a hospital,
urgent care facility, or outpatient clinic), all areas in the facility
would be considered part of the same setting. For example, a pharmacy
or optical department in a hospital would be considered part of the
hospital setting. On the other hand, an embedded healthcare clinic in a
prison, manufacturing facility, or school would be treated as a
healthcare setting that is separate from the remainder of the prison,
manufacturing facility, or school (i.e., the non-healthcare setting).
    In the case of mobile healthcare services, where licensed
healthcare providers enter a non-healthcare setting to provide services
(e.g., emergency response or home healthcare), this ETS applies only to
the provision of the healthcare services (i.e., the measures necessary
to ensure safe work practices for the work tasks that the employees
providing the healthcare services are expected to perform) and not to
the entire setting itself. For example, if a nurse provides in-home
healthcare while a cleaning person happens to be working separately in
the house, the ETS applies to the nurse but would not apply to the
cleaning person. OSHA does not intend the ETS to apply generally to
non-healthcare settings even though mobile healthcare services may be
required. For further discussion of this issue, please see discussion
of paragraph (a)(3)(ii), below.
    Healthcare services are defined in paragraph (b) as services that
are provided to individuals by professional healthcare practitioners,
who generally have either licensure or credentialing requirements
(e.g., doctors, nurses, emergency medical personnel, oral health
professionals) for the purpose of promoting, maintaining, monitoring,
or restoring health. Healthcare services are delivered through various
means including: Hospitalization, long-term care, ambulatory care
(e.g., treatment in physicians' offices, dentists' offices, and medical
clinics), home health and hospice care, emergency medical response, and
patient transport. For the purposes of this ETS, healthcare services
include autopsies, which are typically performed by licensed medical
examiners. As discussed earlier, while healthcare services are provided
in healthcare settings (e.g., hospitals, ambulatory care facilities,
such as dentists' offices and doctors' offices, ambulatory surgical
centers, medical clinics embedded in schools, correctional facilities,
and industrial settings, ambulances, long-term care facilities, such as
nursing homes and skilled nursing facilities, urgent care centers),
they are also provided in non-healthcare settings (e.g., EMT treating a
patient at the site of an accident).
    Healthcare support services is defined in paragraph (b) to mean
services that facilitate the provision of healthcare services.
Healthcare support services include patient intake/admission, patient
food services, equipment and facility maintenance, housekeeping
services, healthcare laundry services, medical waste handling services,
and medical equipment cleaning/reprocessing services. Moreover,
healthcare support services can occur both in healthcare settings and
in other settings, although the ETS does not apply to healthcare
support services not performed in a healthcare setting. For further
discussion of this issue, please see discussion of paragraph (a)(2)(vi)
below.
    Paragraph (a)(2) serves to limit the applicability of the ETS and
provides that the ETS does not apply to the following: (i) The
provision of first aid by an employee who is not a licensed healthcare
provider; (ii) the dispensing of prescriptions by pharmacists in retail
settings; (iii) non-hospital ambulatory care settings where all non-
employees are screened prior to entry and people with suspected or
confirmed COVID-19 are not permitted to enter those settings; (iv)
well-defined hospital ambulatory care settings where all employees are
fully vaccinated and all non-employees are screened prior to entry and
people with suspected or confirmed COVID-19 are not permitted to enter
those settings; (v) home healthcare settings where all employees are
fully vaccinated and all non-employees are screened prior to entry and
people with suspected or confirmed COVID-19 are not present; (vi)
healthcare support services not performed in a healthcare setting
(e.g., off-site laundry, off-site medical billing); or (vii) telehealth
services performed outside of a setting where direct patient care
occurs.
    Per paragraph (a)(2)(i), the ETS does not apply to the provision of
first aid by an employee who is not a licensed healthcare provider.
First aid typically refers to medical attention that is usually
administered immediately after an injury occurs and at the location
where it occurred. It often consists of a one-time, short-term
treatment and requires relatively little technology or training to
administer. First aid may include cleaning minor cuts, scrapes, or
scratches; treating a minor burn; applying bandages and dressings; the
use of non-prescription medicine; draining blisters; removing debris
from the eyes; massage; and drinking fluids to relieve heat stress.
First aid may also include cardiopulmonary resuscitation (which
includes chest compressions, rescue breathing, and, as appropriate,
other heart and lung resuscitation techniques) of a sick or injured
person until medical treatment by a licensed healthcare provider can be
administered.
    The ``first aid'' exception to the ETS applies regardless of
setting. Thus, for example, if an employee who is not a licensed
healthcare provider is expected to administer first aid as part of
their job duties in an industrial facility, the ETS does not apply even
if first aid is provided to a person who develops COVID-19 symptoms
while on the job. OSHA included this exemption to make clear that this
ETS does not impose extra healthcare-related requirements for employees
who are not licensed healthcare providers when they provide first aid.
However, first aid provided by licensed healthcare providers (e.g., a
nurse or emergency responder) is covered by this ETS.
    The ETS is aimed at protecting employees facing those COVID-19
hazards that constitute a grave danger. To this end, the scope
exemptions in paragraphs (a)(2)(ii) through (a)(2)(vii) narrowly tailor
the ETS to those settings where there is a reasonable expectation that
persons with suspected or confirmed COVID-19 will be present.

    Paragraph (a)(2)(ii) exempts the dispensing of prescriptions by
pharmacists in retail settings (e.g., pharmacies in grocery stores).
Treatment or testing of COVID-19 patients would not be expected there.
This is a situation where employees dispense medications in a setting
and in a manner that is more similar to that of other retail employees
dispensing other goods in retail establishments. OSHA emphasizes that
the exception for the dispensing of prescriptions by pharmacists in
retail settings does not apply when this activity is performed in
healthcare settings such as hospitals or ambulatory care clinics. Such
pharmacists are covered by the ETS because they are located in settings
where treatment of people with suspected or confirmed COVID-19 is more
likely to occur.
    It is important to note that the ``retail pharmacist'' exception
applies only to the dispensing of prescriptions and not to other
healthcare services that a pharmacist might provide (e.g., vaccination,
testing). Moreover, OSHA will not consider the setting in which
prescriptions are dispensed to be a retail setting if other healthcare
services are performed in the same setting as the dispensing of
prescriptions. Thus, for example, if a pharmacist performs COVID-19
testing in the same setting where they dispense prescriptions, OSHA
will consider that setting to be a healthcare setting and not a retail
setting. In such cases, the employer will have a reasonable expectation
that persons with suspected or confirmed COVID-19 will be present.
    Paragraphs (a)(2)(iii) and (a)(2)(iv) provide exemptions from the
ETS for certain ambulatory care settings. As defined in paragraph (b),
ambulatory care means healthcare services performed on an outpatient
basis, without admission to a hospital or other facility. It is
provided in settings such as: Offices of physicians and other
healthcare professionals; hospital outpatient departments; ambulatory
surgical centers; specialty clinics or centers (e.g., dialysis,
infusion, medical imaging); and urgent care clinics. Ambulatory care
does not include home healthcare settings for the purposes of this ETS.
    Paragraph (a)(2)(iii) provides that the ETS does not apply to non-
hospital ambulatory care settings where all non-employees are screened
prior to entry and people with suspected or confirmed COVID-19 are not
permitted to enter those settings. This exception is intended to
exclude from the standard certain healthcare providers that do not
treat, and instead exclude from their facilities, people with suspected
or confirmed COVID-19, either because such treatment is not related to
the nature of their practice or because the provider chooses not to
engage in such treatment as a matter of policy. The exception will
apply so long as the employer meets the exception's conditions: The
employer must screen each non-employee prior to entry, make a
determination based on that screen whether the non-employee has
suspected or confirmed COVID-19, and bar entry to that non-employee if
it is determined that the non-employee has suspected or confirmed
COVID-19.
    Under paragraph (b), a person with confirmed COVID-19 (or a COVID-
19 positive person) is one who has a confirmed positive test for, or
who has been diagnosed by a licensed healthcare provider with, COVID-
19. Examples of persons with suspected COVID-19 are those who indicate
(during a COVID-19 screening, for example) that they have symptoms of
COVID-19, or who present at a healthcare facility to receive a COVID-19
test. Per paragraph (b), COVID-19 symptoms mean the following: Fever or
chills; cough; shortness of breath or difficulty breathing; fatigue;
muscle or body aches; headache; new loss of taste or smell; sore
throat; congestion or runny nose; nausea or vomiting; diarrhea. As will
be discussed below, under the ETS, employers must have systems and
processes in place to allow them to ascertain whether persons have
suspected or confirmed COVID-19. OSHA has not attempted to define the
term ``suspected COVID-19'' further because it expects that most
employers in healthcare settings will have the capability to identify
individuals suspected of health ailments. For example, health care
employers should suspect that a person may have COVID-19 if the person
indicates that they have COVID-19 symptoms or if they disclose that
they are getting tested because of a close contact with a person who
has COVID-19. Outside of routine or otherwise mandated COVID-19
testing, a person who is taking a COVID-19 test should generally be
treated as suspected to have COVID-19 until the results of the test are
known.
    Paragraph (b) also specifies that screen means asking questions to
determine whether a person is COVID-19 positive or has symptoms of
COVID-19. OSHA notes that screening can typically be accomplished
through questioning. However, employers may choose to employ other
methods in addition to the required questions, such as temperature
checks, in the conduct of screening. Screening may also include
confirming that individuals are abiding by the employer's policies and
procedures for wearing face coverings and assessing the individual's
recent exposure to COVID-19.
    Screening may take several forms depending on the design and size
of the facility. For example, at each entrance there may need to be an
employee present to perform a health screening on each individual
entering the facility. In most cases, OSHA expects that facilities will
screen patients by calling them prior to their scheduled appointment to
ask the required screening questions. In some cases, the facility may
permit non-employees to enter momentarily for in-person screening by an
employee who performs the screening while maintaining a distance of 6
feet.
    To meet this exception, the employer must not only screen patients
and family members or others accompanying patients to their
appointments, but also every non-employee who seeks to enter the non-
hospital ambulatory care setting. In this context, ``non-employee''
means any person who is not an employee of the employer who owns or
controls the setting. This would include, for example, contractors who
enter the setting to perform work (e.g., work on the HVAC system).
    Examples of when the exclusion provided under paragraph (a)(2)(iii)
would apply could be in a podiatrist office, an optometrist's office,
or an oral healthcare setting (e.g., dentistry, orthodontics), if the
employer develops and implements policies and procedures to screen all
non-employees prior to entry and does not permit those with suspected
or confirmed COVID-19 entry into the facility. The employer could state
that the office will not treat, and will reschedule appointments for,
any patients who are experiencing symptoms of COVID-19 or are COVID-19
positive. This would exclude them from this ETS. If, however, the
employer continues to see patients with suspected or confirmed COVID-
19, the employer must comply with the provisions of this ETS.
    Per paragraph (a)(2)(iv), this ETS does not apply to well-defined
hospital ambulatory care settings where all employees are fully
vaccinated and all non-employees are screened prior to entry and people
with suspected or confirmed COVID-19 are not permitted to enter those
settings. This is essentially the same exception as for ambulatory care
settings outside the hospital except there are two extra layers of
employee protection for when the ambulatory care setting is inside a
hospital: The area must be well-defined such that it distinct from the
rest of the

hospital (may have a separate entrance, etc.)--for example, radiology
departments, dialysis centers, or laboratories; and all of the
employees in that area must be fully vaccinated (as defined in
paragraph (b), fully vaccinated means 2 weeks or more following the
final dose of a COVID-19 vaccine). This exception recognizes that there
are likely to be patients suspected or confirmed to have COVID-19 in
some portions of the hospital and the need to prevent mixing between
areas with COVID-related care and those well-defined areas that are
expected to be free of COVID-19. The requirement to have all employees
fully vaccinated provides employees with an additional protection
against the increased chance that they might nonetheless be exposed to
suspected or confirmed COVID-19 patients, given the hospital setting.
    OSHA notes that though the exception in paragraph (a)(2)(iv) might
apply to employees while they are in a well-defined hospital ambulatory
care setting, the exception is setting-based and does not travel with
that employee. Thus, for example, the exception would not apply when a
fully vaccinated employee enters the hospital, before they enter the
well-defined ambulatory care setting, or when they have lunch in a
cafeteria that is open to all employees, or go to a bathroom outside of
the well-defined area.
    Under paragraph (a)(2)(v), the ETS does not apply in home
healthcare settings where all employees are fully vaccinated and all
non-employees are screened prior to the employees' entry into a
patient's home and people with suspected or confirmed COVID-19 are not
present in that home. To meet the conditions of the exception,
employers will need to screen patients and any other non-employees who
will be present in the household during the home visit (e.g., other
family members, friends, contractors, HVAC technicians, etc.) before
the employees enter that setting. If the employer does not make
reasonable efforts to ensure that all non-employees present in the
household have been screened, the exemption would not apply. OSHA
recognizes, however, that because these employers do not control the
settings where home healthcare will be provided, there is also a
reduced ability to screen all people in the location. Additionally,
many home healthcare employees' duties require extended exposure and
greater involvement in more intimate direct patient care tasks (e.g.,
bathing, toileting, feeding) that are performed in the breathing zone
of the patient and likely to result in higher exposures. To address
this and provide an additional layer of controls to ensure that
employees are protected in these settings, the employer must ensure
that all employees are fully vaccinated before they enter the home
healthcare setting to meet the exception in paragraph (a)(2)(v).
Because the employer must ensure that people with suspected or
confirmed COVID-19 are not present during the home visit to fall within
the exception, the employer must specify a clear contingency for
situations where an employee arrives at the home healthcare setting and
finds an unexpected non-employee in the setting: That non-employee must
be screened, the employee must leave that home, or the employer may
allow the employee to continue at the home provided that the employer
complies with all requirements of the ETS.
    OSHA notes that a momentary entry by an unvaccinated employee (or
employee whose vaccination status is not known)--delivering mail or
picking up blood samples taken by a nurse during a home visit--would
not disqualify the employer from the exceptions in paragraphs
(a)(2)(iv) or (a)(2)(v). However, if the unvaccinated employee stays
and conducts other activities in the setting that extend beyond
momentary entry, then the workplace would not qualify as ``fully
vaccinated'' and the ETS protections would be required during all
periods where the employee remains in the setting.
    OSHA notes also that an employer seeking to fall under one of the
exceptions in paragraphs (a)(2)(iii), (a)(2)(iv), or (a)(2)(v) must be
able to demonstrate that it conducts screenings and excludes non-
employees with suspected or confirmed COVID-19 in order to be eligible
for the exemptions, as well as that it has determined employees'
vaccination status (if applicable).
    With regards to determining employees' vaccination status, there
are a number of ways employers could approach this. For example, small
employers may know that all employees are already vaccinated because it
was a topic of conversation as people became eligible and received the
vaccine. Other employers may have required employees to be vaccinated
and will have records of vaccinations because they or their agents, as
permitted under other laws, administered a vaccine. Still others could,
when otherwise not prohibited by law, ask employees to either provide
documentation of, or attest to, their vaccination status. If an
employer is unable to determine the vaccination status of an employee,
the employer would need to comply with the ETS as though the employee
is not vaccinated.
    OSHA also notes that, if a setting meets an exception in paragraphs
(a)(2)(iii), (a)(2)(iv) or (a)(2)(v), the momentary entry by a non-
employee (for example, a delivery person) would not render the ETS
applicable to the setting even though the non-employee is not screened
prior to entry. For example, if a delivery person were not screened
prior to entering the setting, this would not trigger application of
the ETS if the delivery person placed the delivery in the entryway or
the setting and then immediately left. However, if the delivery person
intends to stay and conduct other activities in the setting that extend
beyond momentary entry, to continue to fall within the relevant
exception, the employer would need to screen the delivery person prior
to entry and not permit the delivery person to enter the setting if
they had suspected or confirmed COVID-19.
    A note to paragraphs (a)(2)(iv) and (a)(2)(v) provides that OSHA
does not intend to preclude the employers from the scope exemption in
paragraphs (a)(2)(iv) and (a)(2)(v) solely because they have employees
who are unable to be vaccinated. OSHA expects that one benefit of these
exceptions will be that more employers will encourage all of their
employees to be vaccinated. However, OSHA also recognizes that some
workers may not be able to be vaccinated because of either medical
conditions, such as allergies to vaccine ingredients, or certain
religious beliefs. OSHA has determined that it is not appropriate to
preclude the employers of workers who are unable to be vaccinated from
any possibility of falling within the exception. Under various anti-
discrimination laws, these workers are entitled to ask for a reasonable
accommodation from their employer. Employers of workers who are
eligible for a reasonable accommodation under disability or other civil
rights laws may therefore take advantage of the exemption if, and only
if, they provide workers who are unable to be vaccinated with a
reasonable accommodation, absent undue hardship, that prevents the
worker from being exposed to COVID-19.\130\
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    \130\ Note that OSHA is not stating that unvaccinated workers
are entitled, as an accommodation, to access to the carve-out area
on a sustained basis. The accommodation must be arranged with the
employer in accordance with applicable law. OSHA's intent is simply
to provide the employer with an option to avail itself of the
exception if the employer wishes to do so and satisfies the
conditions.

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    This scope exception only applies in a well-defined hospital
ambulatory care or home healthcare settings where all employees are
fully vaccinated, and only allows for reasonable accommodations, absent
undue hardship, for workers who are unable to be vaccinated for the
reasons described above. And the reasonable accommodation must ensure
the accommodated worker is not exposed to the COVID-19 hazard. OSHA is
not setting forth specific reasonable accommodations that an employer
must utilize, but only requiring that the accommodated worker not be
exposed to COVID-19 hazards. OSHA encourages employers to utilize the
Department of Labor's Office of Disability Employment Services Job
Accommodation Network (askjan.org) for assistance in helping identify
appropriate accommodations.
    Paragraph (a)(2)(vi) provides that the ETS does not apply to
healthcare support services not performed in a healthcare setting
(e.g., off-site laundry, off-site medical billing), and paragraph
(a)(2)(vii) provides that the ETS does not apply to telehealth services
performed outside of a setting where direct patient care occurs. The
purpose of these exceptions, like other exceptions discussed, is to
narrowly tailor the ETS to those settings where there is a reasonable
expectation that persons with suspected or confirmed COVID-19 will be
present.
    Healthcare support services, such as laundering hospital linens,
gowns, and scrubs, medical waste handling, and medical equipment
maintenance and reprocessing, are often performed in healthcare
settings. For example, a laundry facility may be located in the
basement of a hospital. The ETS applies to the provision of these
healthcare support services (and all other work) when performed in
healthcare settings (unless an exception to the standard applies) for
the reasons explained earlier regarding OSHA's decision to take a
settings-based approach to regulation.
    However, when healthcare support services such as medical billing
or other administrative activities, or laundering services, are
performed in an off-site office building that does not otherwise
qualify as a healthcare setting, the ETS does not apply in these off-
site facilities.
    Some healthcare services are delivered remotely (i.e., telehealth
services). Telehealth services might be delivered from within a setting
where direct patient care occurs (such as a nurse providing telehealth
services from a doctor's office in a hospital or ambulatory care clinic
where patients are also seen in person). In these cases, the ETS
applies (absent another exception). The ETS does not, however, cover
telehealth services delivered from settings where no direct patient
care occurs (such as an employee's home or a suite in an office
building where no direct patient care occurs). In these cases, the
exception in paragraph (a)(2)(vii) applies. It should be noted that,
under paragraph (b), direct patient care means hands-on, face-to-face
contact with patients for the purpose of diagnosis, treatment, and
monitoring.
    Paragraph (a)(3)(i) provides that, where a healthcare setting is
embedded within a non-healthcare setting (e.g., nurse's office in a
school, medical clinic in a manufacturing facility or prison, walk-in
clinic in a retail setting such as a grocery store, physician's office
or dentist's office embedded in an office building), the ETS applies
only to the embedded healthcare setting and not to the remainder of the
physical location. OSHA notes that each medical, dental, or similar
practice embedded in an office building would be a separate healthcare
setting from the other medical, dental, or similar practices in the
office building, even if all tenants in the office building are
medical, dental, or similar practices.
    Paragraph (a)(3)(ii) provides that, where emergency responders or
other licensed healthcare providers enter a non-healthcare setting to
provide healthcare services, the ETS applies only to the provision of
the healthcare services by that employee. In this limited situation,
the ETS applies to healthcare services provided by employee(s) in a
setting. This provision would apply, for example, where a physician
assigned to work in an embedded clinic or an emergency medical
responder enters the floor of a manufacturing plant or the residential
area of a prison to provide healthcare services to a sick employee or
sick prisoner. In such circumstances, the ETS would apply to the
provision of healthcare services by the physician or emergency
responder, but would not apply to all other employees in the setting.
For example, the ETS would not apply to plant workers or prison guards
who remain on the manufacturing plant floor or in the prison
residential area while the physician provides healthcare services to
the sick employee or prisoner. The requirements of the ETS that are
location-based would not apply to the provision of healthcare services
in this situation (e.g., ventilation outside of the embedded clinic,
barriers).
    Paragraph (a)(4) of the ETS is a limited exception applicable to
vaccinated employees in certain situations. That paragraph provides
that the ETS's requirements for PPE (paragraph (f)), physical
distancing (paragraph (h)), and physical barriers (paragraph (i)) do
not apply to employees who are fully vaccinated when they are in well-
defined areas of a workplace where there is no reasonable expectation
that any person with suspected or confirmed COVID-19 will be present.
The requirements in the ETS for PPE, physical distancing, and physical
barriers are designed to both protect employees on an individual basis
from the COVID-19 hazard and reduce the risk that an individual
employee will transmit the virus to others. Thus, for example, the
requirement in paragraph (f) that the employer provide and ensure that
each employee wears facemasks in certain situations serves to protect
other employees from the COVID-19 hazard because facemasks act as a
source control in addition to providing some protection for the wearer
against COVID-19 transmission.
    Although the exception goes beyond the CDC guidance allowing
vaccinated healthcare workers to go without masks, distancing, or
barriers only when in a space entirely populated by vaccinated workers,
OSHA is incorporating the exemption in paragraph (a)(4) into the ETS
because, as is further discussed in Grave Danger (Section IV.A of this
preamble), the Centers for Disease Control and Prevention (CDC) has
acknowledged a growing body of studies indicating that there is
significantly lowered risk of transmission of COVID-19 from vaccinated
persons to unvaccinated persons (CDC, May, 13, 2021).
    Examples of well-defined areas of a workplace for the purpose of
this ETS are billing or other administrative offices, employee break
rooms, or employee meeting areas. In any of these well-defined area,
there is typically no reasonable expectation that any person with
suspected or confirmed COVID-19 will be present. As noted in the
summary and explanation of the COVID-19 plan required under paragraph
(c)(4), in order to avail themselves of this vaccinated-employee
exception, employers must assess their workplaces to determine where
the applicable well-defined areas exist and must have a process for
determining which employees are vaccinated.
    It should be noted that this exemption will never apply to areas of
healthcare facilities (well-defined or not) where there is a reasonable
expectation that persons with suspected or confirmed COVID-19 may be
present, such as in emergency rooms, or patient waiting

areas or hospital wards open to treating COVID-19 patients. In such
areas, paragraphs (f), (h), and (i) of the ETS will apply to all
employees, including those employees who are fully vaccinated.
    Note 1 to paragraph (a) indicates that state or local government
mandates or guidance (e.g., legislative action, executive order, health
department order) that go beyond and are not inconsistent with the ETS
are not intended to be limited by this ETS. OSHA recognizes that many
states have taken action to protect employees with mandatory
requirements that may not be appropriate for an ETS on a national
level, and that states have additional powers that OSHA does not (e.g.,
criminal sanctions). OSHA does not intend to preempt these powers or
requirements. For example, OSHA does not intend to preempt state or
local requirements for customers to wear face coverings whenever they
enter a hospital or other health care facility, or in public places
generally.
    Note 2 to paragraph (a) encourages employers to follow public
health guidance from the CDC even when not required by the ETS. This
would include following CDC guidance for healthcare settings even where
employees are fully vaccinated.
References
Centers for Disease Control and Prevention (CDC). (2021, March 23).
Ventilation in Buildings. https://www.cdc.gov/coronavirus/2019-ncov/community/ventilation.html. (CDC, March 23, 2021).
Centers for Disease Control and Prevention (CDC). (2021, May 13).
Interim Public Health Recommendations for Fully Vaccinated People.
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html. (CDC, May 13, 2021).
Howard, J. (2021, May 22). ``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).

B. COVID-19 Plan

    Paragraph (c) includes provisions for the development and
implementation of a COVID-19 plan, as well as requirements regarding
what needs to be in the plan. The development of a COVID-19 plan,
including comprehensive policies and procedures, is required in order
to prevent or minimize employee exposure to COVID-19 in the workplace.
All of the requirements in paragraph (c) must be included in the
employer's COVID-19 plan.
    Paragraph (c)(1) requires employers to develop and implement a
COVID-19 plan for each workplace. As defined in paragraph (b), a
workplace is a physical location (e.g., fixed, mobile) where the
employer's work or operations are performed. Physical location is also
defined in paragraph (b). It means a site (including outdoor and indoor
areas, a structure or a group of structures) or an area within a site
where work or any work-related activity occurs (e.g., taking breaks,
going to the restroom, eating, entering or exiting work). A physical
location includes the entirety of any space associated with the site
(e.g., workstations, hallways, stairwells, breakrooms, bathrooms,
elevators) and any other space that an employee might occupy in
arriving, working, or leaving. As explained in paragraph (c)(1), if an
employer has multiple workplaces that are substantially similar, its
COVID-19 plan may be developed by workplace type rather than by
individual workplace so long as any site-specific information is
included in the plan. For example, if an employer has developed a
corporate COVID-19 plan that includes information about job tasks or
exposure scenarios that apply in multiple workplaces, this information
can be used in the development of COVID-19 plans for individual
workplaces.
    In general, paragraphs (c)(2) through (c)(6) describe the process
by which the COVID-19 plan must be developed and implemented, and
paragraph (c)(7) lists policies and procedures that must be included in
the COVID-19 plan. However, the COVID-19 plan is adaptable to the
physical characteristics of the workplace and the job tasks performed
by employees, as well as the hazards identified by the employer when
designing their COVID-19 plan. As explained in a note to paragraph (c),
employers may also include other policies, procedures, or information