```

[Federal Register Volume 90, Number 9 (Wednesday, January 15, 2025)]
[Rules and Regulations]
[Pages 3665-3667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-00632]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. OSHA-2020-0004]
RIN 1218-AD36

Occupational Exposure to COVID-19 in Healthcare Settings

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

ACTION: Final rule; termination of rulemaking

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

SUMMARY: OSHA is terminating its COVID-19 rulemaking.

DATES: 
    Effective dates: The termination of the rulemaking is effective 
January 15, 2025.
    Compliance dates: There are no relevant compliance dates.

ADDRESSES: In accordance with 28 U.S.C. 2112(a), the Agency designates 
Edmund C. Baird, Associate Solicitor of Labor for Occupational Safety 
and Health, Office of the Solicitor, U.S. Department of Labor, to 
receive petitions for review of this final agency action. Service can 
be accomplished by email to [email protected].
    Docket: To read or download comments or other material in the 
docket, go to Docket No. OSHA-2020-0004 at www.regulations.gov index; 
however, some information (e.g., copyrighted material) is not publicly 
available to read or download through that website. All comments and 
submissions, including copyrighted material, are available for 
inspection through the OSHA Docket Office. Documents submitted to the 
docket by OSHA or stakeholders are assigned document identification 
numbers (Document ID) for easy identification and retrieval. The full 
Document ID is the docket number plus a unique four-digit code. For 
example, the Document ID number for OSHA's COVID-19 Healthcare ETS is 
OSHA-2020-0004-1033. Some Document ID numbers also include one or more 
attachments.
    When citing exhibits in the docket, OSHA includes the term 
``Document ID'' followed by the last four digits of the Document ID 
number. For example, document OSHA-2020-0004-1033 would appear as 
Document ID 1033. Citations also include the attachment number or other 
attachment identifier, if applicable, page numbers (designated ``p.'' 
or ``Tr.'' for pages from a hearing transcript), and in a limited 
number of cases a footnote number (designated ``Fn.''). In a citation 
that contains two or more Document ID numbers, the Document ID numbers 
are separated by semi-colons (e.g., ``Document ID 1231, Attachment 1, 
p. 6; 1383, Attachment 1, p. 2'').
    This information can be used to search for a supporting document in 
the docket at www.regulations.gov. Contact the OSHA Docket Office at 
(202) 693-2350 (TTY number: 877-889-5627) for assistance in locating 
docket submissions.

FOR FURTHER INFORMATION CONTACT: 
    For press inquiries: Contact Frank Meilinger, Director, Office of 
Communications, Occupational Safety and Health Administration, U.S. 
Department of Labor; telephone (202) 693-1999; email [email protected].
    For general information: Contact Andrew Levinson, Director, 
Directorate of Standards and Guidance, Occupational Safety and Health 
Administration, U.S. Department of Labor; telephone (202) 693-1950; 
email: [email protected].

[[Page 3666]]

    For copies of this Federal Register document: Electronic copies of 
this Federal Register notice are available at http://www.regulations.gov. This notice, as well as news releases and other 
relevant information, are also available at OSHA's web page at 
www.osha.gov.

SUPPLEMENTARY INFORMATION: On June 21, 2021, OSHA issued an Emergency 
Temporary Standard (ETS) to protect workers in healthcare settings, 
finding that COVID-19 presented a grave danger to those workers and 
that the ETS was necessary to protect them (86 FR 32376).\1\ As of that 
date, nearly a half million healthcare workers had contracted COVID-19 
and more than 1600 of those workers had died. Under the Occupational 
Safety and Health Act of 1970 (OSH Act or Act) (29 U.S.C. 655(c)(3)), 
the ETS served as a proposed rule for a rulemaking on occupational 
exposure to COVID-19 in healthcare settings. OSHA is now terminating 
the rulemaking via this rule because the public health emergency is 
over and any ongoing risk by COVID-19 or other coronavirus hazards 
faced by healthcare workers would be better addressed at this time in a 
rulemaking addressing infectious diseases more broadly.
---------------------------------------------------------------------------

    \1\ OSHA defined the grave danger as workplace exposure to SARS-
CoV-2, the virus that causes the development of COVID-19. COVID-19 
is the disease that can occur in people exposed to SARS-CoV-2, and 
that leads to the health effects that were described in the ETS (see 
86 FR 32381, FN 4). As in the ETS, OSHA uses the two terms 
interchangeably in this notice because it is consistent with common 
usage in the regulated community.
---------------------------------------------------------------------------

Events Leading to This Agency Action Terminating the Rulemaking

    OSHA issued the healthcare ETS under section 6(c) of the Act (29 
U.S.C. 655(c)) (Occupational Exposure to COVID-19; Emergency Temporary 
Standard, 86 FR 32376 (June 21, 2021), codified at 29 CFR 1910.502, 
1910.504-.505, and 1910.509). Pursuant to section 6(c)(3) (29 U.S.C. 
655(c)(3)), an ETS initiates rulemaking proceedings under section 6(b) 
and the ETS ``as published shall also serve as a proposed rule for the 
proceeding.'' (Id. Sec.  655(c)).
    When the COVID-19 pandemic started in 2020, OSHA initially 
responded to COVID-19 in the workplace by creating guidance documents 
and using its existing enforcement tools. The agency pursued a two-
pronged strategy: (1) enforcing existing standards such as those for 
Personal Protective Equipment (PPE), Respiratory Protection, and 
Bloodborne Pathogens, as well as the General Duty Clause of the OSH Act 
(29 U.S.C. 654(a)(1)), and (2) working proactively to assist employers 
by developing guidance documents addressing how to reduce occupational 
COVID-19 hazards.
    On January 21, 2021, President Biden issued Executive Order 13999 
directing OSHA to consider whether ``any emergency temporary emergency 
standards on COVID-19'' were necessary (86 FR 7211). On June 21, 2021, 
the agency promulgated the COVID-19 ETS applicable to healthcare.\2\ 
Because, under the OSH Act, this ETS also served as a proposal for a 
final standard, OSHA received 481 unique public comments on the ETS 
during the first open comment period between June 2021 and August 2021 
(Docket OSHA-2020-0004).\3\
---------------------------------------------------------------------------

    \2\ In the same June 2021 Federal Register document in which 
OSHA implemented this ETS, OSHA also promulgated recordkeeping and 
reporting provisions pursuant to section 8(c)(1)-(3) (29 U.S.C. 
657(c)(1)-(3)). For these, OSHA invoked an independent exemption 
from APA notice and comment requirement to make permanent the COVID-
19 log and reporting provisions at 29 CFR 1910.502(q)(2)(ii), 
(q)(3)(ii)-(iv), and (r). OSHA found good cause under 5 U.S.C. 
553(b)(3)(B) to forgo notice and comment given the grave danger 
presented by the pandemic. (See 86 FR 32559). Those requirements are 
therefore permanent and remain in effect.
    \3\ OSHA extended the original comment period by an additional 
30 days to give stakeholders more time to opine on the ETS and a 
possible permanent standard (86 FR 38232).
---------------------------------------------------------------------------

    Following the issuance of the ETS, OSHA received petitions urging 
the agency to adopt a permanent standard to protect healthcare workers 
from COVID-19 from the American Nurses Association, the International 
Association of Fire Chiefs, the Service Employees International Union 
(SEIU), and National Nurses United (NNU) (Document ID 1518; 1519; 1521; 
1522; 1524; 2175). Over forty unions and organizations supported the 
NNU petition urging OSHA to adopt a permanent standard for COVID-19 in 
healthcare establishments and to also issue a separate, broader 
Infectious Diseases standard.
    On December 27, 2021, OSHA announced on its website that it would 
be unable to finalize a COVID-19 standard for healthcare ``in a 
timeframe approaching the one contemplated by the OSH Act'' (see 
Document ID 2491) and since the end of December 2021, OSHA has not 
enforced the ETS beyond the recordkeeping and reporting requirements in 
29 CFR 1910.502(q) and (r). Instead, OSHA has relied on existing 
standards and the General Duty Clause of the OSH Act (29 U.S.C. 654(a)) 
to protect workers in workplaces that were previously covered by the 
ETS. OSHA emphasized in the website announcement that the agency 
``continues to work expeditiously to issue a final standard that will 
protect healthcare workers from COVID-19 hazards and will do so as it 
also considers its broader infectious disease rulemaking.''
    On January 5, 2022, several labor organizations, including NNU, 
filed a petition with the United States Court of Appeals for the 
District of Columbia Circuit seeking a writ of mandamus compelling OSHA 
to issue a permanent COVID-19 standard for healthcare within 30 days 
and to continue enforcement of the ETS in the meantime. On August 26, 
2022, the court issued a decision denying NNU's petition in part and 
dismissing it in part for lack of jurisdiction, while also noting that 
the ETS would continue to serve as a proposed rule for the rulemaking 
proceedings (In re National Nurses United, 47 F.4th 746, 754 (D.C. Cir. 
2022)). The court determined that while the OSH Act created an 
obligation for OSHA to follow the issuance of an ETS with a notice and 
comment rulemaking process, ``that process may result in a 
determination that no permanent standard is necessary.'' (Id.)
    While the NNU case was ongoing, OSHA continued its efforts to 
finalize a permanent COVID-19 standard for healthcare. However, after 
the ETS comment period closed on August 20, 2021, the available COVID-
19 scientific literature, approaches to controls, and CDC guidance 
evolved significantly, based in part on the emergence of the Delta and 
Omicron variants. OSHA determined that it needed to reopen the record 
to ensure that the agency relied on the best available evidence and 
that the public had an opportunity to provide and comment on new data 
and information. On March 23, 2022, OSHA published a Federal Register 
notice announcing a limited re-opening of the comment period for 30 
days (until April 22, 2022) and announcing public hearings beginning on 
April 27, 2022 (87 FR 16426, March 23, 2022).
    The reopening of the comment period and the hearing and post-
hearing comment period allowed OSHA to revise and provide notice of 
potential changes to policy options and regulatory provisions to 
reflect up-to-date science, control approaches, and perspectives, as 
well as supporting analyses required for a final standard. At the 
closing of the comment period on April 22, 2022, OSHA had received 
approximately 250 additional comments.
    The public hearings were held April 27-29 and May 2, 2022. 
Participating stakeholders included labor organizations, workers, 
employers, industry/trade groups, professional associations, public 
health experts, and

[[Page 3667]]

concerned individuals, with some 39 organizations or individuals 
presenting their perspectives in the hearings (Document ID 2153; 2156; 
2168; 2171). The presiding Administrative Law Judge permitted 
stakeholders to submit post-hearing comments and briefs until May 23, 
2022. OSHA received nearly 150 additional comments from stakeholders 
during the post-hearing comment period. In total, over the three 
different comment periods, OSHA received 873 timely public comments on 
this rulemaking.
    OSHA submitted a draft final COVID-19 rule to the White House 
Office of Management and Budget (OMB) on December 7, 2022. On April 10, 
2023, President Biden signed into law House Joint Resolution 7, which 
terminated the national emergency related to the COVID-19 pandemic. 
While the COVID-19 draft remained under review at OMB, OSHA pushed 
ahead with development of an Infectious Diseases standard for 
healthcare workers.

Basis for Terminating the Rulemaking

    OSHA always intended for an Infectious Diseases standard for 
healthcare workers to supplant any COVID-19 healthcare standard, and 
that a COVID-19 standard would be an interim measure pending the 
completion of the Infectious Diseases healthcare standard. OSHA 
concludes that the most effective and efficient use of agency resources 
to protect healthcare workers from occupational exposure to COVID-19, 
as well as a host of other infectious diseases, is to focus its 
resources on the completion of an Infectious Diseases rulemaking for 
healthcare rather than a disease-specific standard.
    In addition, even if OSHA were to finalize a separate COVID-19 
standard at this time, the agency would need to conduct an additional 
review and possibly supplement the record again before it could issue a 
final rule to ensure the rule reflects the most current science. For 
example, guidance from the Centers for Disease Control and Prevention 
and other experts has changed since OSHA submitted its draft rule to 
OMB. Moreover, focusing on a separate COVID-19 standard would likely 
consume agency staff time and other agency resources in a way that 
would inhibit the promulgation of a more broadly protective Infectious 
Diseases healthcare standard. For these independently sufficient 
reasons, OSHA is terminating this rulemaking. In sum, the agency will 
have a greater impact at this time by adopting a standard that would 
provide protections to healthcare workers from occupational exposure to 
many different infectious diseases, including COVID-19 and future 
variants.

List of Subjects in 29 CFR Part 1910

    COVID-19, Disease, Health facilities, Health, Health care, 
Incorporation by reference, Occupational health and safety, Public 
health, Quarantine, Reporting and recordkeeping requirements, 
Respirators, SARS-CoV-2, Telework, Vaccines, Viruses.

Authority and Signature

    Douglas L. Parker, Assistant Secretary of Labor for Occupational 
Safety and Health, authorized the preparation of this document under 
the authority granted by sections 4, 6, and 8 of the Occupational 
Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); 5 U.S.C. 553, 
Secretary of Labor's Order No. 8-2020 (85 FR 58393), and 29 CFR part 
1911.

    Signed at Washington, DC.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2025-00632 Filed 1-13-25; 11:15 am]
BILLING CODE 4510-26-P
```