Doug Parker, the new assistant secretary of labor for occupational safety and health, previously headed the California Division of Occupational Safety and Health (Cal/OSHA). How might the federal Occupational Safety and Health Administration (OSHA) begin to resemble Cal/OSHA?
Federal OSHA already has three rulemakings in the works that delve into issues already regulated in California: heat illness prevention, infectious disease exposures, and workplace violence in health care and social services. Federal action on heat stress is a new development, but the Biden administration has revived Obama-era efforts to regulate infectious diseases and workplace violence.
Heat illness prevention
With no existing federal heat stress or heat illness prevention standard, OSHA has cited employers for heat hazards under the General Duty Clause of the Occupational Safety and Health Act of 1970 (OSH Act)—a practice some outside the agency have criticized.
The Occupational Safety and Health Review Commission once vacated an OSHA citation in a fatal heat stress incident, saying the agency uses the General Duty Clause as a “gotcha” or “catchall” for hazards with no formal standards. The commissioners argued that OSHA’s failure to set a heat stress standard leaves employers confused about their responsibilities.
Members of Congress have moved to force the agency to issue a standard. Representative Judy Chu, D-Calif., introduced a bill (H.R. 3668) in the House that would have compelled OSHA to establish a standard for exposures to excessive heat.
The National Institute for Occupational Safety and Health (NIOSH) first issued a criteria document—a “template” for a federal standard—for a heat and hot environments standard in 1972, revising it in 1986 and again in 2016. NIOSH’s recommendations for a heat stress standard include requirements for worker information and training; control measures, such as acclimatization, hydration, and monitoring; medical surveillance; and recordkeeping.
On September 20, OSHA announced it would develop a federal workplace heat exposure standard, along with a National Emphasis Program (NEP), for heat illness prevention—“enhanced and expanded efforts” to address heat illnesses. OSHA’s efforts are part of coordinated action at several federal agencies to address the effects of climate change.
OSHA took its first step in developing a federal heat stress standard October 27, issuing an advance notice of proposal rulemaking (ANPRM) on heat injury and illness prevention in outdoor and indoor work settings. The ANPRM contained no proposed regulatory text but a series of 114 questions for stakeholders about heat-related issues the agency should consider in developing a standard, including the scope and application of the standard and what types of controls the standard should require.
OSHA also is seeking information on the best metric for defining and assessing heat hazards, elements of successful employers’ heat injury and illness prevention programs, and planning and response best practices for heat-related emergencies.
California, along with Oregon and Washington, has a heat illness prevention standard, and Minnesota has a standard for exposures to both heat and cold. California’s standard applies to outdoor employment, covering agriculture, construction, landscaping, oil and gas extraction, and transportation.
Under the California standard, employers in the state must have a written heat illness prevention plan. An employer’s program must include heat-acclimatization procedures and worker access to shade and water. Employers also must have high-heat communication and surveillance procedures in place for days when the temperature equals or exceeds 95 degrees Fahrenheit.
Training required by Cal/OSHA’s standard must cover:
- Risk factors for heat stress;
- Types, signs, and symptoms of heat illnesses;
- The importance of consuming water;
- First aid and emergency medical procedures; and
- The employer’s responsibility to provide water, shade, cool-down rests, and access to first aid and emergency medical services.
NIOSH recently urged Cal/OSHA to revise its regulations, adjusting work rates and hydration requirements to ensure farmworkers’ safety. NIOSH researchers found that farmworkers in California remain at risk for heat-related illness despite farms’ compliance with the state’s heat illness prevention standard.
There is also currently no federal workplace health standard that corresponds to the requirements of Cal/OSHA’s airborne transmissible disease (ATD) standard.
Unfinished business from the Obama administration includes a rulemaking for an infectious disease standard. The Trump administration removed the rulemaking from the Department of Labor’s regulatory agenda, but it was restored by the Biden administration OSHA.
The agency issued a request for information (RFI) in 2010 and completed a Small Business Regulatory Enforcement Fairness Act (SBREFA) review of the rulemaking in 2014. The agency could issue a notice of proposed rulemaking (NPRM) this December, according to the Labor Department’s current regulatory agenda. The agenda entry includes a “12/00/2021” date for an NPRM.
California’s ATD standard requires that covered employers protect workers from airborne diseases like COVID-19 and tuberculosis (TB), influenza, and pertussis (whooping cough). The ATD standard applies to correctional and healthcare facilities and emergency services. Cal/OSHA’s COVID-19 emergency temporary standard (ETS) covers infection control measures in workplaces not covered by the ATD standard.
Federal OSHA issued a COVID-19 ETS that resembles parts of Cal/OSHA’s ATD standard for infectious diseases, containing requirements for healthcare facilities and healthcare support services. The ETS may provide a preview of a federal infectious disease standard.
The federal COVID-19 ETS requires healthcare facilities to perform a hazard assessment and develop a written plan to mitigate virus spread. Depending upon their exposure risks, some employees must be provided with N95 respirators or other personal protective equipment (PPE).
The emergency rule also contains respiratory protection program requirements. It does not recognize face coverings, face masks, and face shields as respirators. Respirators include filtering facepiece respirators (FFR), such as N95s; elastomeric respirators; and powered air-purifying respirators (PAPR). Employers must provide respiratory protection training, including how to perform a user seal check.
Infection control (IC) also is an important aspect of patient care, and IC measures are specified by both the Centers for Disease Control and Prevention (CDC) and industry standards set by the Joint Commission, which issues accreditation for hospitals and other healthcare organizations. Joint Commission accreditation is necessary for organizations that receive reimbursement from the Center for Medicare and Medicaid Services and some private insurance companies.
Occupational safety and health measures considered in the Obama-era rulemaking included requirements for written worker infection control plans, medical surveillance and vaccination, and a medical removal protection (MRP) benefit paid to employees removed from duty due to infection.
The current court challenge to OSHA’s COVID-19 vaccination and testing ETS may also affect the agency’s ability to issue an infectious disease standard. Plaintiffs in the case argue that Congress only intended for OSHA to regulate chemical and physical hazards and not infectious diseases present both within and outside the workplace. Legal challenges to the ETS were consolidated and assigned to the 6th Circuit Court of Appeals in Cincinnati.
There is also no federal workplace violence prevention standard. Like OSHA’s handling of heat stress incidents, the agency’s workplace violence enforcement relies on its authority under the OSH Act’s General Duty Clause.
The Obama administration’s unfinished business also included a rulemaking for the prevention of workplace violence in health care and social assistance. The rulemaking remains in the prerule stage at OSHA. The agency had issued an RFI about a possible standard in 2016, and OSHA granted petitions for a rulemaking from National Nurses United and other labor unions in 2017.
In federal OSHA’s 2016 RFI, the agency asked for comments on the scope and types of controls a standard might include. OSHA’s position at the time was that workers in health care and social assistance face an increased risk of injury due to workplace violence, as shown in data compiled by the Bureau of Labor Statistics (BLS) for its annual Survey of Occupational Injuries and Illnesses (SOII).
BLS data showed at the time that workers in the sector experienced workplace violence-related injuries at an estimated rate over four times higher than the rate for workers in the private sector overall.
California has a violence prevention in healthcare standard, which applies to emergency services and transport, healthcare facilities, home health care, and outpatient medical services in correctional and detention facilities. Employers within the state must identify risk factors for workplace violence, including risks posed by patients, visitors, and other nonemployees, as well as develop a workplace violence prevention plan.
Corrective measures under the California standard include installing alarm systems and bubble mirrors in blind corners, removing or fastening furniture, and reconfiguring facility spaces to provide employees with access to alarms and room exits. The standard also includes requirements for employee training and a workplace violence incident log.
Federal OSHA suggested that a standard for workplace violence prevention might include requirements for management commitment and employee participation, engineering and administrative controls, PPE, training, recordkeeping, and program evaluation. In its RFI, the agency had questions about worksite analysis and hazard identification, hazard prevention and control, training, and program evaluation.
OSHA has also developed a pair of employer guidelines, “Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers” and “Preventing Workplace Violence: A Road Map for Healthcare Facilities,” that might provide some insight into the agency’s thinking about preventing workplace violence.
In addition to rulemakings for heat stress, infectious diseases, and workplace violence, OSHA’s regulatory agenda also includes rulemakings for communication towers and the tree care industry and an update to the process safety management (PSM) of highly hazardous chemicals. The U.S. Chemical Safety and Hazard Investigation Board (CSB) currently has 14 open recommendations for OSHA to address.
The tree care industry petitioned OSHA for a standard because industry hazards currently are covered by a patchwork of federal safety and health standards. OSHA issued an ANPRM in 2008 and completed an SBREFA review in May 2020.
The agency also is weighing whether to update standards related to emergency response and preparedness. Existing standards do not reflect major developments in health and safety practices that have been incorporated into industry consensus standards or are accepted throughout the emergency response community, according to OSHA. Some of the standards are decades old and do not address the full range of hazards faced by emergency responders.
Parker is the first political head of OSHA since David Michaels left at the end of the Obama administration. Having an assistant secretary may signal the beginning of a more active agency.