Could a Workplace Infectious Disease Standard Be on the Horizon?

The ongoing COVID-19 pandemic has brought renewed attention to the hazard of infectious diseases in the workplace. Could you find yourself having to comply with a federal or state infectious disease standard?

California already has an airborne transmissible disease (ATD) standard that applies in correctional and healthcare facilities and to fire, police, and other public services. Virginia has a permanent COVID-19 standard that remains in place until the state standards board rescinds it. In the wake of the COVID-19 pandemic, health and safety advocates, labor unions, and members of Congress have called on the Occupational Safety and Health Administration (OSHA) to issue an infectious disease standard.

On October 9, 2020, ORCHSE Strategies, LLC (ORC HSE), petitioned OSHA to establish an emergency temporary standard (ETS) for infectious diseases and begin a permanent rulemaking. (The National Safety Council (NSC) acquired ORC HSE in November.)

ORC HSE stated that the lack of an infectious disease standard left employers on their own to determine which hazard controls are effective in combating workplace infections. ORC HSE said an ETS would both give employers clear guidance on their responsibilities and provide employees with needed protections. Employers confronting the COVID-19 pandemic lack clear guidance and must sort out a variety of state requirements and guidelines, according to ORC HSE.

ORC HSE urged the agency to issue an ETS that would:

• Acknowledge a range of employees in public-facing occupations who are at an elevated risk of exposure to infectious diseases, including those who work in airline operations, border protection, health care, and retail, as well as workers in construction, laboratories, manufacturing, maritime, solid waste and wastewater management, and even administrative positions.
• Incorporate the industrial hygiene hierarchy of controls, utilizing engineering controls as the first line of defense, supplemented by work practice controls and personal protective equipment (PPE) where needed.
• Recommend N95 or better respirators certified by the National Institute for Occupational Safety and Health (NIOSH) and other PPE for healthcare and other workers at an elevated risk.
• Outline a risk-based model for workers who require different levels of protection depending on the tasks they perform and their potential exposures.
• Outline elements that employers should incorporate into their exposure or infectious disease control plan.

Some of the state COVID-19 standards include a hazard assessment requirement and specify control measures based on employees’ risk levels—very high, high, medium, and low risk.

ORC HSE also called on OSHA to establish requirements for employee screening and testing, training, and medical surveillance and work restrictions for exposed or infected employees. Many of the recommended measures mirror requirements of the bloodborne pathogen (BBP) standard, which covers exposure to blood and other bodily fluids but not aerosol droplets or airborne pathogens.

NIOSH Workplace Infectious Disease Review

Before the COVID-19 pandemic, NIOSH performed a review of the literature on workplace infectious disease outbreaks, identifying high-risk industries and occupations. NIOSH’s report in Emerging Infectious Diseases looked at 66 investigations between 2006 and 2015. The institute concluded that cases appear to be concentrated in specific industries and occupations like the healthcare industry, animal workers, laboratory workers, and public service workers.

NIOSH researchers found that bacteria were responsible for most reported cases, followed by viruses, fungi, and parasites or protozoa. Respiratory viruses and zoonotic pathogens (zoonotic infections are diseases that have jumped from animals to humans) threaten workers’ health, especially among healthcare workers and animal-contact workers.

COVID-19 is a respiratory disease caused by the SARS-CoV-2 virus, a coronavirus, that may have made the jump from animals to humans.

NIOSH researchers also found reports of emerging or reemerging diseases, such as the Ebola virus, lymphocytic choriomeningitis virus, norovirus, Bacillus anthracis (anthrax), and Yersinia pestis (plague), that caused several clusters of workplace diseases.

However, the institute also noted outbreaks of a fungal respiratory infection, coccidioidomycosis (Valley fever), among construction and outdoor film production workers, as well as an occupational human immunodeficiency virus (HIV) outbreak among adult film performers. NIOSH concluded that health and safety measures should be strengthened in health care and laboratories and for public service workers and workers with contact with animals. The institute outlined a series of worker health protections following the hierarchy of controls: elimination and substitution, engineering and administrative controls, and PPE.

OSHA General Duty Clause Enforcement

As with earlier outbreaks, OSHA’s COVID-19 enforcement relies upon the General Duty Clause of the Occupational Safety and Health Act of 1970. Under the General Duty Clause, §5(a)(1), employers must provide a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

On March 12, OSHA launched a COVID-19 National Emphasis Program (NEP) for “high-hazard” industries and an updated Interim Enforcement Response Plan, prioritizing the use of on-site workplace inspections.

Industries primarily targeted include ambulance and home healthcare services; correctional facilities; department stores, groceries, supermarkets, and restaurants; healthcare and long-term care facilities; meatpacking and poultry processing facilities; and warehouses and storage facilities. However, OSHA includes a wide swath of industries in the agriculture and food, construction, energy, manufacturing, and transportation and logistics sectors as secondary targets.

The NEP inspections are in addition to nonprogrammed OSHA inspections in response to COVID-19 complaints, referrals, and reports of severe incidents. The NEP and the interim enforcement plan also include procedures for handling whistleblower complaints of retaliation for reporting health and safety concerns.

OSHA relies on the General Duty Clause for enforcement involving a range of issues like ergonomics, heat stress, and workplace violence, as well as disease outbreaks.

Labor unions and worker safety advocates often consider OSHA’s General Duty Clause enforcement “weak” and regularly petition the agency for specific health and safety standards. Members of Congress often introduce bills that would compel OSHA to issue emergency or permanent standards for heat stress or workplace violence.

Even the Occupational Safety and Health Review Commission has criticized OSHA’s over-reliance on the General Duty Clause. The review commission vacated a heat illness citation in 2019, calling OSHA’s use of the General Duty Clause a “gotcha” or “catchall” for hazards with no established standards. The commissioners wrote that OSHA’s failure to set permanent standards leaves employers confused about their responsibilities.

OSHA has examined the possibility of an airborne disease standard before, most recently during the Obama administration. The agency initiated a rulemaking for infectious disease exposures in health care and social assistance. On May 6, 2010, OSHA issued a request for information from clinics in correctional facilities and schools, hospitals, and outpatient clinics, as well as laboratories handling potentially infectious biological materials, medical examiner offices, and mortuaries.

The agency acknowledged at the time that workers in healthcare facilities and other high-risk environments faced a variety of infectious disease hazards, including diseases such as measles, Methicillin-resistant Staphylococcus aureus (MRSA), tuberculosis (TB), and varicella disease (chickenpox, shingles), as well as emerging infections like epidemic influenza and severe acute respiratory syndrome (SARS). OSHA cited a need for an established standard to ensure employers developed and implemented infection control programs and programs of hazard controls to protect employees from potential infections. At the time, OSHA cited the effectiveness of its BBP standard (29 CFR §1910.1030) as the goal for an infectious disease standard.

Perhaps the most controversial element of OSHA’s plan was a possible requirement for paid, medical removal leave to ensure infected workers did not continue working while sick.

On July 5, 2011, the agency scheduled a series of stakeholder meetings (75 FR 24835) and on June 4, 2014, initiated a Small Business Regulatory Enforcement Fairness Act (SBREFA) Panel review.

SBREFA review participants reported that an OSHA infectious disease standard risked overlapping with healthcare facility requirements from the Centers for Medicare and Medicaid Services (CMS), the Joint Commission and other private sector accrediting organizations, and state accrediting boards. While Centers for Disease Control and Prevention (CDC) infection control recommendations are voluntary, the CMS, the Joint Commission, and other accrediting organizations require healthcare facilities’ compliance with the guidelines. Hospitals and other healthcare facilities must be accredited to receive payments from the CMS and private insurers.

In other words, healthcare facilities have a financial incentive for implementing the voluntary infection control recommendations.

The panel also concluded a medical removal leave requirement would be costly and burdensome.

The Department of Labor’s Spring, 2017 Regulatory Agenda placed the agency’s Notice of Proposed Rulemaking (NPRM) for an infectious disease standard under long-term actions.

Occupational TB Rulemaking

An earlier resurgence of TB, during the 1980s and 90s, prompted OSHA to begin an occupational TB rulemaking. On October 17, 1997, the agency issued a proposed standard for occupational exposure to TB (62 FR 54160), which OSHA withdrew on December 31, 2003 (68 FR 75767).

After a 30-year decline in the number and rate of TB cases in the United States, the incidence of TB unexpectedly began to increase in 1986, reaching a peak resurgence in 1992. OSHA denied a petition for an ETS for TB but proceeded with a rulemaking for a permanent standard.

The 1997 proposal recognized that while responsibility for infectious diseases in the general population falls to other agencies like the CDC or the U.S. Public Health Service, OSHA has sole responsibility for protecting workers from infectious disease exposures in the workplace. At the time, the agency saw a need for an enforceable standard.

The Institute of Medicine (IOM) later examined the potential impact of OSHA’s proposed standard, given the effectiveness of control measures recommended by the CDC. The National Academy Press published the IOM’s findings in Tuberculosis in the Workplace in 2001.

By 2003, OSHA concluded that TB rates had fallen enough that a federal workplace health standard was unlikely to lead to further reductions. Hospitals, where workers were most likely to face the risk of TB bacteria exposures, had shown substantial compliance with federal public guidelines for preventing TB transmission. The CDC had issued a series of guidelines for controlling TB transmission in correctional facilities, healthcare facilities, and facilities serving homeless populations. The CDC most recently updated its healthcare TB guidelines in 2005 and issued an updated set of guidelines for screening, testing, and treatment for healthcare workers in 2019.

OSHA still has an active directive (CPL 02-02-078) for enforcement procedures for workplace TB exposures under the General Duty Clause based on the CDC’s 2005 guidelines.

You already are facing widespread inspection and enforcement under OSHA’s COVID-19 NEP and its updated enforcement guidance. Could you be faced with a permanent standard? Pressure on Congress and the administration may subside as vaccinations continue to roll out and the numbers and rates of cases decrease.

If OSHA does propose an infectious disease standard, it may encounter the same objections raised in its earlier rulemaking efforts.