Labor & Employment Law Daily House Education and Labor Committee leaders press for OSHA action on coronavirus
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Friday, February 7, 2020

House Education and Labor Committee leaders press for OSHA action on coronavirus

By Pamela Wolf, J.D.

While CDC infection control guidelines can effectively protect healthcare workers, OSHA has no mechanism to enforce them.

As concerns about the spread of coronavirus continue to mount, House Education and the Workforce Committee Chairman Bobby Scott (D-Va.) and Workforce Protections Chairwoman Alma Adams (D-N.C.) sent a letter to Labor Secretary Eugene Scalia urging him to prioritize action on OSHA’s infectious diseases standard, which would make compliance with Centers for Disease Control and Prevention (CDC) infection control guidelines mandatory for health care facilities.

Still on back burner. In a January 30 letter, the lawmakers acknowledged OSHA’s continuing coordination with the CDC and other federal health authorities, and also the resources the agency has recently posted on its website, but still expressed concern “that OSHA’s Infectious Diseases standard continues to languish on the agency’s ‘Long-Term Actions’ since being placed on its regulatory agenda almost ten years ago (May 2010).”

According to Scott and Adams, OSHA now has just one standard that addresses worker protection from infectious diseases—the bloodborne pathogens standard—which they called “one of the most successful standards in OSHA’s history, changing the way health care was practiced and saving the lives of hundreds of health care workers every year.”

CDC guidelines not enough. The lawmakers noted that CDC infection control guidelines can effectively protect healthcare workers. However, OSHA lacks any mechanism to enforce compliance with these precautions, aside from use of the legally burdensome general duty clause. “Health care workers whose employers are not in compliance with CDC guidance are thus left vulnerable to infection with such diseases as tuberculosis, pandemic influenza, Methicillin-Resistant Staphylococcus Aureus (MRSA), SARS, Middle East Respiratory Syndrome (MERS), and now 2019-nCoV,” the lawmakers wrote.

What can OSHA do? Even if OSHA prioritizes the infectious diseases standard, it would be years before it could be issued, according to Scott and Adams, who also said that while it’s too early to determine the virulence of 2019-nCovV or the rate of transmission, there is a high potential for it to become a grave danger to health care workers. If the coronavirus does prove to be highly communicable, virulent, and easily transmissible in a health care setting, the lawmakers suggested that OSHA should be prepared to take immediate and decisive action by:

  • Issuing an emergency temporary standard (ETS) under Section 6(c)(1) of the Occupational Safety and Health Act, which provides only two conditions for issuing an ETS: (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that the emergency standard is necessary to protect employees from such danger.
  • Issuing a compliance directive. While OSHA has standards covering respirators and personal protective equipment, until a final infectious diseases standard, or an ETS, is issued, the agency’s primary enforcement tool to ensure appropriate health care worker protections is the general duty clause, the application of which is a lengthy and legally burdensome process. A compliance directive would provide important guidance for OSHA’s Compliance Safety and Health Officers in enforcing safe working conditions in health care workplaces.

The lawmakers also pointed out OSHA has previously issued compliance directives for earlier infectious disease outbreaks, including for bloodborne pathogens (prior to issuance of the bloodborne pathogens standard), tuberculosis, and H1N1 influenza.

“The safety of America’s front-line health care workers and, by extension, the health of the entire nation will depend on OSHA’s ability to ensure the safety of the nation’s health care infrastructure,” said Scott and Adams. “Absent timely action, OSHA will be failing frontline health care workers, its mission, and the nation.”

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