This document is scheduled to be published in the

Federal Register on 11/05/2021 and available online at

federalregister.gov/d/2021-23643, and onBILLING
govinfo.gov CODE: 4510-26-P

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1910, 1915, 1917, 1918, 1926, and 1928

[Docket No. OSHA-2021-0007]

RIN 1218-AD42

COVID-19 Vaccination and Testing; Emergency Temporary Standard

AGENCY: Occupational Safety and Health Administration (OSHA), Department of

Labor

ACTION: Interim final rule; request for comments.

SUMMARY: The Occupational Safety and Health Administration (OSHA) is issuing an

emergency temporary standard (ETS) to protect unvaccinated employees of large

employers (100 or more employees) from the risk of contracting COVID-19 by strongly

encouraging vaccination. Covered employers must develop, implement, and enforce a

mandatory COVID-19 vaccination policy, with an exception for employers that instead

adopt a policy requiring employees to either get vaccinated or elect to undergo regular

COVID-19 testing and wear a face covering at work in lieu of vaccination.

DATES: The rule is effective [INSERT DATE OF PUBLICATION IN THE FEDERAL

REGISTER]. The incorporation by reference of certain publications listed in the rule is

approved by the Director of the Federal Register as of [INSERT DATE OF

PUBLICATION IN THE FEDERAL REGISTER].

Compliance dates: Compliance dates for specific provisions are in 29 CFR

1910.501(m).

Comments: Written comments, including comments on any aspect of this ETS

and whether this ETS should become a final rule, must be submitted by [INSERT DATE
30 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER] in

Docket No. OSHA-2021-0007. Comments on the information collection determination

described in Additional Requirements (Section V.K. of this preamble) (OMB review

under the Paperwork Reduction Act of 1995) may be submitted by [INSERT DATE 60

DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER] in Docket

No. OSHA-2021-0008.

ADDRESSES: In accordance with 28 U.S.C. 2112(a), the Agency designates Edmund

C. Baird, the Associate Solicitor for Occupational Safety and Health, Office of the

Solicitor, U.S. Department of Labor, to receive petitions for review of the ETS. Service

can be accomplished by email to [email protected].

Written comments. You may submit comments and attachments, identified by

Docket No. OSHA-2021-0007, electronically at www.regulations.gov, which is the

Federal e-Rulemaking Portal. Follow the online instructions for making electronic

submissions.

Instructions: All submissions must include the agency's name and the docket

number for this rulemaking (Docket No. OSHA-2021-0007). All comments, including

any personal information you provide, are placed in the public docket without change and

may be made available online at www.regulations.gov. Therefore, OSHA cautions

commenters about submitting information they do not want made available to the public,

or submitting materials that contain personal information (either about themselves or

others), such as Social Security Numbers and birthdates.

Docket: To read or download comments or other material in the docket, go to

Docket No. OSHA-2021-0007 at www.regulations.gov. All comments and submissions

are listed in the 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. OSHA is identifying supporting information in this ETS by

author name and publication year, when appropriate. This information can be used to

search for a supporting document in the docket at http://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:

General information and press inquiries: Contact Frank Meilinger, OSHA Office

of Communications, U.S. Department of Labor; telephone (202) 693-1999; email

[email protected].

For technical inquiries: Contact Andrew Levinson, OSHA Directorate of

Standards and Guidance, U.S. Department of Labor; telephone (202) 693-1950; email

[email protected].

SUPPLEMENTARY INFORMATION: The preamble to the ETS on COVID-19

vaccination and testing follows this outline:

Table of Contents

I. Executive Summary and Request for Comment

A. Executive Summary
B. Request for Comment
II. Pertinent Legal Authority
III. Rationale for the ETS
A. Grave Danger
B. Need for the ETS
IV. Feasibility
A. Technological Feasibility
B. Economic Analysis
V. Additional Requirements
VI. Summary and Explanation
A. Purpose
B. Scope and Application
C. Definitions
D. Employer Policy on Vaccination
 E. Determination of Employee Vaccination Status
F. Employer Support for Employee Vaccination
G. COVID-19 Testing for Employees Who are Not Fully Vaccinated
H. Employee Notification to Employer of a Positive COVID-19 Test and Removal
I. Face Coverings
J. Information Provided to Employees
K. Reporting COVID-19 Fatalities and Hospitalizations to OSHA
L. Availability of Records
M. Dates
N. Severability
O. Incorporation by Reference
VII. Authority and Signature

I. Executive Summary and Request for Comment

A. Executive Summary

This ETS is based on the requirements of the Occupational Safety and Health Act

(OSH Act or Act) and legal precedent arising under the Act. Under section 6(c)(1) of the

OSH Act, 29 U.S.C. 655(c)(1), OSHA shall issue an ETS if the agency determines that

employees are subject to grave danger from exposure to substances or agents determined

to be toxic or physically harmful or from new hazards, and an ETS is necessary to protect

employees from such danger. These legal requirements are more fully discussed in

Pertinent Legal Authority (Section II. of this preamble). This ETS does not apply to

workplaces subject to EO 14042 on Requiring Coronavirus Disease 2019 Vaccination for

Federal Contractors. In addition, OSHA will treat federal agencies’ compliance with EO

14043, and the Safer Federal Workforce Task Force guidance issued under section 4(e) of

Executive Order 13991 and section 2 of Executive Order 14043, as sufficient to meet

their obligations under the OSH Act and EO 12196.

COVID-19 has killed over 725,000 people in the United States in less than two

years, and infected millions more (CDC, October 18, 2021 – Cumulative US Deaths).

The pandemic continues to affect workers and workplaces. While COVID-19 vaccines

authorized or approved by the U.S. Food and Drug Administration (FDA) effectively

protect vaccinated individuals against severe illness and death from COVID-19,

unvaccinated individuals remain at much higher risk of severe health outcomes from
COVID-19. Further, unvaccinated workers are much more likely to contract and transmit

COVID-19 in the workplace than vaccinated workers. OSHA has determined that many

employees in the U.S. who are not fully vaccinated against COVID-19 face grave danger

from exposure to SARS-CoV-2 in the workplace. This finding of grave danger is based

on the severe health consequences associated with exposure to the virus along with

evidence demonstrating the transmissibility of the virus in the workplace and the

prevalence of infections in employee populations, as discussed in Grave Danger (Section

III.A. of this preamble).

OSHA has also determined that an ETS is necessary to protect unvaccinated

workers from the risk of contracting COVID-19 at work, as discussed in Need for the

ETS (Section III.B. of this preamble). At the present time, workers are becoming

seriously ill and dying as a result of occupational exposures to COVID-19, when a simple

measure, vaccination, can largely prevent those deaths and illnesses. The ETS protects

these workers through the most effective and efficient control available – vaccination –

and further protects workers who remain unvaccinated through required regular testing,

use of face coverings, and removal of all infected employees from the workplace. OSHA

also concludes, based on its enforcement experience during the pandemic to date, that

continued reliance on existing standards and regulations, the General Duty Clause of the

OSH Act, 29 U.S.C. 654(a)(1), and workplace guidance, in lieu of an ETS, is not

adequate to protect unvaccinated employees from the grave danger of being infected by,

and suffering death or serious health consequences from, COVID-19.

OSHA will continue to monitor trends in COVID-19 infections and death as more

of the workforce and the general population become fully vaccinated against COVID-19

and the pandemic continues to evolve. Where OSHA finds a grave danger from the virus

no longer exists for the covered workforce (or some portion thereof), or new information
indicates a change in measures necessary to address the grave danger, OSHA will update

this ETS, as appropriate.

This ETS applies to employers with a total of 100 or more employees at any time

the standard is in effect. In light of the unique occupational safety and health dangers

presented by COVID-19, and against the backdrop of the uncertain economic

environment of a pandemic, OSHA is proceeding in a stepwise fashion in addressing the

emergency this rule covers. OSHA is confident that employers with 100 or more

employees have the administrative capacity to implement the standard’s requirements

promptly, but is less confident that smaller employers can do so without undue

disruption. OSHA needs additional time to assess the capacity of smaller employers, and

is seeking comment to help the agency make that determination. Nonetheless, the agency

is acting to protect workers now in adopting a standard that will reach two-thirds of all

private-sector workers in the nation, including those working in the largest facilities,

where the most deadly outbreaks of COVID-19 can occur.

The agency has also evaluated the feasibility of this ETS and has determined that

the requirements of the ETS are both economically and technologically feasible, as

outlined in Feasibility (Section IV. of this preamble). The specific requirements of the

ETS are outlined and described in Summary and Explanation (Section VI. of this

preamble).

B. Request for Comment

Although this ETS takes effect immediately, it also serves as a proposal under

Section 6(b) of the OSH Act(29 U.S.C. 655(b)) for a final standard. Accordingly, OSHA

seeks comment on all aspects of this ETS and whether it should be adopted as a final

standard. OSHA encourages commenters to explain why they prefer or disfavor

particular policy choices, and include any relevant studies, experiences, anecdotes or
other information that may help support the comment. In particular, OSHA seeks

comments on the following topics:

1. Employers with fewer than 100 employees. As noted above and fully

discussed in the Summary and Explanation for Scope and Application (Section VI.B. of

this preamble), OSHA has implemented a 100-employee threshold for the requirements

of this standard to focus the ETS on companies that OSHA is confident will have

sufficient administrative systems in place to comply quickly with the ETS. The agency is

moving in a stepwise fashion on the short timeline necessitated by the danger presented

by COVID-19 while soliciting stakeholder comment and additional information to

determine whether to adjust the scope of the ETS to address smaller employers in the

future. OSHA seeks information about the ability of employers with fewer than 100

employees to implement COVID-19 vaccination and/or testing programs Have you

instituted vaccination mandates (with or without alternatives), or requirements for regular

COVID-19 testing or face covering use? What have been the benefits of your approach?

What challenges have you had or could you foresee in implementing such programs? Is

there anything specific to your industry, or the size of your business, that poses particular

obstacles in implementing the requirements in this standard? How much time would it

take, what types of costs would you incur, and how much would it cost for you to

implement such requirements?

2. Significant Risk. If OSHA were to finalize a rule based on this ETS, it would

be a standard adopted under 6(b) of the OSH Act, which requires a finding of significant

risk from exposure to COVID-19. As discussed more fully in Pertinent Legal Authority

(Section II. of this preamble), this is a lower showing of risk than grave danger, the

finding required to issue a 6(c) emergency temporary standard. How should the scope of

the rule change to address the significant risk posed by COVID-19 in the workplace?

Should portions of the rule, such as face coverings, apply to fully vaccinated persons?
 3. Prior COVID-19 infections. OSHA determined that workers who have been

infected with COVID-19 but have not been fully vaccinated still face a grave danger from

workplace exposure to SARS-CoV-2. This is an area of ongoing scientific

inquiry. Given scientific uncertainty and limitations in testing for infection and

immunity, OSHA is concerned that it would be infeasible for employers to operationalize

a standard that would permit or require an exception from vaccination or testing and face

covering based on prior infection with COVID-19. Is there additional scientific

information on this topic that OSHA should consider as it determines whether to proceed

with a permanent rule?

In particular, what scientific criteria can be used to determine whether a given

employee is sufficiently protected against reinfection? Are there any temporal limits

associated with this criteria to account for potential reductions in immunity over time?

Do you require employees to provide verification of infection with COVID-19? If so,

what kinds of verification do you accept (i.e., PCR testing, antigen testing, etc.)? What

challenges have you experienced, if any, in operationalizing such an exception?

4. Experience with COVID-19 vaccination policies. Should OSHA impose a

strict vaccination mandate (i.e., all employers required to implement mandatory

vaccination policies as defined in this ETS) with no alternative compliance option?

OSHA seeks information on COVID-19 vaccination policies that employers have

implemented to protect workers. If you have implemented a COVID-19 vaccination

policy:

(a) When did you implement it, and what does your policy require? Was

vaccination mandatory or voluntary under the policy? Do you offer vaccinations on site?

What costs associated with vaccination did you cover under the policy? What percentage

of your workforce was vaccinated as a result? Do you offer paid leave for receiving a
vaccination? If vaccination is mandatory, have employees been resistant and if so what

steps were required to enforce the policy?

(b) How did you verify that employees were vaccinated? Are there other reliable

means of vaccination verification not addressed by the ETS that should be included? Did

you allow attestation where the employee could not find other proof, and if so, have you

experienced any difficulties with this approach? Have you experienced any issues with

falsified records of vaccination, and if so, how did you deal with them?

(c) Have you experienced a decrease in infection rates or outbreaks after

implementing this policy?

(d) If you have received any requests for reasonable accommodation from

vaccination, what strategies did you implement to address the accommodation and ensure

worker safety (e.g., telework, working in isolation, regular testing and the use of face

coverings)?

5. COVID-19 testing and removal. OSHA seeks information on COVID-19

testing and removal practices implemented to protect workers.

(a) Do you have a testing and removal policy in your workplace and, if so, what

does it require? How often do you require testing and what types of testing do you use

(e.g., at-home tests, tests performed at laboratories, tests performed at your worksites)?

What costs have you incurred as part of your testing and removal policies? Do you have

difficulty in finding adequate availability of tests? How often? Have you experienced

any issues with falsified test results, and if so, how did you deal with them? Have you

experienced other difficulties in implementing a testing and removal scheme, including

the length of time to obtain COVID-19 test results? Do you offer paid leave for testing?

(b) How often have you detected and removed COVID-19 positive employees

from the workplace under this policy? Do you provide paid leave and job protection to

employees you remove for this reason?

 (c) Should OSHA require testing more often than on a weekly basis?

6. Face coverings. As discussed in the Summary and Explanation for Face

Coverings (Section VI.I. of this preamble), ASTM released a specification standard on

February 15, 2021, to establish a national standard baseline for barrier face coverings

(ASTM F3502-21). Should OSHA require the use of face coverings meeting the ASTM

F3502-21 standard instead of the face coverings specified by the ETS? If so, should

OSHA also require that such face coverings meet the NIOSH Workplace Performance or

Workplace Performance Plus criteria (see CDC, September 23, 2021)? Are there

particular workplace settings in which face coverings meeting one standard should be

favored over another? Are there alternative criteria OSHA should consider for face

coverings instead of the F3502-21 standard or NIOSH Workplace Performance or

Workplace Performance Plus criteria? Is there sufficient capacity to supply face

coverings meeting F3502-01 and/or NIOSH Workplace Performance or Workplace

Performance Plus criteria to all employees covered by the ETS? What costs have you

incurred as part of supplying employees with face coverings meeting the appropriate

criteria?

7. Other controls. This ETS requires employees to either be fully vaccinated

against COVID-19 or be tested weekly and wear face coverings, based on the type of

policy their employer adopts. It stops short of requiring the full suite of workplace

controls against SARS-CoV-2 transmission recommended by OSHA and the CDC,

including distancing, barriers, ventilation, and sanitation. As OSHA explained in Need

for the ETS (Section III.B. of this preamble), OSHA has determined that it needs more

information before imposing these requirements on the entire scope of industries and

employers covered by the standard. OSHA is interested in hearing from employers about

their experience in implementing a full suite of workplace controls against COVID-19.

 What measures have you taken to protect employees against COVID-19 in your

workplace? Are there controls that you attempted to employ but found ineffective or

infeasible? What are they? Why did you conclude that they were they ineffective or

infeasible; for example, are there particular aspects of your workplace or industry that

make certain controls infeasible? Do you require both fully vaccinated and unvaccinated

employees to comply with these controls? Have you experienced a reduction in

infection rates or outbreaks since implementing these controls?

8. Educational materials. Have you implemented any policies or provided any

information that has been helpful in encouraging an employee to be vaccinated?

9. Feasibility and health impacts. Do you have any experience or data that would

inform OSHA’s estimates in its economic feasibility analysis or any of the assumptions

or estimates used in OSHA’s identification of the number of hospitalizations prevented

and lives saved from its health impacts analysis (see OSHA, October 2021c)?

References:

Centers for Disease Control and Prevention (CDC). (2021, October 18). COVID Data
Tracker. https://covid.cdc.gov/covid-data-tracker/. (CDC, October 18, 2021)

Centers for Disease Control and Prevention (CDC). (2021, September 23). Types of
Masks and Respirators. https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-
sick/types-of-masks.html. (CDC, September 23, 2021)

Occupational Safety and Health Administration (OSHA). (2021c, October). Health

Impacts of the COVID-19 Vaccination and Testing ETS. (OSHA, October 2021c)

II. Pertinent Legal Authority

The purpose of the Occupational Safety and Health Act of 1970 (OSH Act), 29

U.S.C. 651 et seq., is “to assure so far as possible every working man and woman in the

Nation safe and healthful working conditions and to preserve our human resources.” 29

U.S.C. 651(b). To this end, Congress authorized the Secretary of Labor (Secretary) to

promulgate and enforce occupational safety and health standards under sections 6(b) and
(c) of the OSH Act.1 29 U.S.C. 655(b). These provisions provide bases for issuing

occupational safety and health standards under the Act. Once OSHA has established as a

threshold matter that a health standard is necessary under section 6(b) or (c)—i.e., to

reduce a significant risk of material health impairment, or a grave danger to employee

health—the Act gives the Secretary “almost unlimited discretion to devise means to

achieve the congressionally mandated goal” of protecting employee health, subject to the

constraints of feasibility. See United Steelworkers of Am. v. Marshall, 647 F.2d 1189,

1230 (D.C. Cir. 1981). A standard’s individual requirements need only be “reasonably

related” to the purpose of ensuring a safe and healthful working environment. Id. at 1237,

1241; see also Forging Indus. Ass’n v. Sec’y of Labor, 773 F.2d 1436, 1447 (4th Cir.

1985). OSHA’s authority to regulate employers is hedged by constitutional

considerations and, pursuant to section 4(b)(1) of the OSH Act, the regulations and

enforcement policies of other federal agencies. See, e.g., Chao v. Mallard Bay Drilling,

Inc., 534 U.S. 235, 241 (2002).

The OSH Act in section 6(c)(1) states that the Secretary “shall” issue an emergency

temporary standard (ETS) upon a finding that the ETS is necessary to address a grave

danger to workers. See 29 U.S.C. 655(c). In particular, the Secretary shall provide,

without regard to the requirements of chapter 5, title 5, United States Code, for an

emergency temporary standard to take immediate effect upon publication in the Federal

Register if the Secretary makes two determinations: 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 that such emergency standard is necessary to protect

employees from such danger. 29 U.S.C. 655(c)(1). A separate section of the OSH Act,

section 8(c), authorizes the Secretary to prescribe regulations requiring employers to

1The Secretary has delegated most of his duties under the OSH Act to the Assistant Secretary of Labor for
Occupational Safety and Health. Secretary’s Order 08-2020, 85 FR 58393 (Sept. 18, 2020). This section
uses the terms Secretary and OSHA interchangeably.
make, keep, and preserve records that are necessary or appropriate for the enforcement of

the Act. 29 U.S.C. 657(c)(1). Section 8(c) also provides that the Secretary shall require

employers to keep records of, and report, work-related deaths and illnesses. 29 U.S.C.

657(c)(2).

The ETS provision, section 6(c)(1), exempts the Secretary from procedural

requirements contained in the OSH Act and the Administrative Procedure Act, including

those for public notice, comments, and a rulemaking hearing. See, e.g., 29 U.S.C.

655(b)(3); 5 U.S.C. 552, 553.

The Secretary must issue an ETS in situations where employees are exposed to a

“grave danger” and immediate action is necessary to protect those employees from such

danger. 29 U.S.C. 655(c)(1); Pub. Citizen Health Research Grp. v. Auchter, 702 F.2d

1150, 1156 (D.C. Cir. 1983). The determination of what exact level of risk constitutes a

“grave danger” is a “policy consideration that belongs, in the first instance, to the

Agency.” Asbestos Info. Ass’n, 727 F.2d at 425 (accepting OSHA’s determination that

eighty lives at risk over six months was a grave danger); Indus. Union Dep’t, AFL-CIO v.

Am. Petroleum Inst., 448 U.S. 607, 655 n.62 (1980). However, a “grave danger”

represents a risk greater than the “significant risk” that OSHA must show in order to

promulgate a permanent standard under section 6(b) of the OSH Act, 29 U.S.C. 655(b).

Int’l Union, United Auto., Aerospace, & Agr. Implement Workers of Am., UAW v.

Donovan, 590 F. Supp. 747, 755-56 (D.D.C. 1984), adopted, 756 F.2d 162 (D.C. Cir.

1985); see also Indus. Union Dep’t, AFL-CIO, 448 U.S. at 640 n.45 (noting the

distinction between the standard for risk findings in permanent standards and ETSs).

In determining the type of health effects that may constitute a “grave danger”

under the OSH Act, the Fifth Circuit emphasized “the danger of incurable, permanent, or

fatal consequences to workers, as opposed to easily curable and fleeting effects on their

health.” Fla. Peach Growers Ass’n, Inc. v. U. S. Dep’t of Labor, 489 F.2d 120, 132 (5th
Cir. 1974). Although the findings of grave danger and necessity must be based on

evidence of “actual, prevailing industrial conditions,” see Int’l Union, 590 F. Supp. at

751, when OSHA determines that exposure to a particular hazard would pose a grave

danger to workers, OSHA can assume an exposure to a grave danger wherever that

hazard is present in a workplace. Dry Color Mfrs. Ass’n, Inc. v. Dep’t of Labor, 486 F.2d

98, 102 n.3 (3d Cir. 1973).

In demonstrating whether OSHA had shown that an ETS is necessary, the Fifth

Circuit considered whether OSHA had another available means of addressing the risk that

would not require an ETS. Asbestos Info. Ass’n, 727 F.2d at 426 (holding that necessity

had not been proven where OSHA could have increased enforcement of already-existing

standards to address the grave risk to workers from asbestos exposure). Additionally, a

standard must be both economically and technologically feasible in order to be

“reasonably necessary and appropriate” under section 3(8) and, by inference, “necessary”

under section 6(c)(1)(B) of the Act. Cf. Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S.

490, 513 n.31 (1981) (noting “any standard that was not economically or technologically

feasible would a fortiori not be ‘reasonably necessary or appropriate’” as required by the

OSH Act’s definition of “occupational safety and health standard” in section 3(8)); see

also Florida Peach Growers, 489 F.2d at 130 (recognizing that the promulgation of any

standard, including an ETS, must account for its economic effect). However, given that

section 6(c) is aimed at enabling OSHA to protect workers in emergency situations, the

agency is not required to make a feasibility showing with the same rigor as in ordinary

section 6(b) rulemaking. Asbestos Info. Ass’n, 727 F.2d at 424 n.18.

On judicial review of an ETS, OSHA is entitled to great deference on the

determinations of grave danger and necessity required under section 6(c)(1). See, e.g.,

Pub. Citizen Health Research Grp., 702 F.2d at 1156; Asbestos Info. Ass’n, 727 F.2d at

422 (judicial review of these legislative determinations requires deference to the agency);
cf. Am. Dental Ass’n v. Martin, 984 F.2d 823, 831 (7th Cir. 1993) (“the duty of a

reviewing court of generalist judges is merely to patrol the boundary of reasonableness”).

These determinations are “essentially legislative and rooted in inferences from complex

scientific and factual data.” Pub. Citizen Health Research Grp., 702 F.2d at 1156. The

agency is not required to support its conclusions “with anything approaching scientific

certainty,” Indus. Union Dep’t, AFL-CIO, 448 U.S. at 656, and has the “prerogative to

choose between conflicting evidence.” Asbestos Info. Ass’n, 727 F.2d at 425.

The determinations of the Secretary in issuing standards under section 6 of the

OSH Act, including ETSs, must be affirmed if supported by “substantial evidence in the

record considered as a whole.” 29 U.S.C. 655(f). The Supreme Court described

substantial evidence as “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Am. Textile Mfrs. Inst., 452 U.S. at 522-23 (quoting

Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951)). The Court also noted that

“the possibility of drawing two inconsistent conclusions from the evidence does not

prevent an administrative agency’s finding from being supported by substantial

evidence.” Id. at 523 (quoting Consolo v. FMC, 383 U.S. 607, 620 (1966)). The Fifth

Circuit, recognizing the size and complexity of the rulemaking record before it in the case

of OSHA’s ETS for organophosphorus pesticides, stated that a court’s function in

reviewing an ETS to determine whether it meets the substantial evidence standard is

“basically [to] determine whether the Secretary carried out his essentially legislative task

in a manner reasonable under the state of the record before him.” Fla Peach Growers

Ass’n, 489 F.2d at 129.

Although Congress waived the ordinary rulemaking procedures in the interest of

“permitting rapid action to meet emergencies,” section 6(e) of the OSH Act, 29 U.S.C.

655(e), requires OSHA to include a statement of reasons for its action when it issues any

standard. Dry Color Mfrs., 486 F.2d at 105-06 (finding OSHA’s statement of reasons
inadequate). By requiring the agency to articulate its reasons for issuing an ETS, the

requirement acts as “an essential safeguard to emergency temporary standard-setting.” Id.

at 106. However, the Third Circuit noted that it did not require justification of “every

substance, type of use or production technique,” but rather a “general explanation” of

why the standard is necessary. Id. at 107.

ETSs are, by design, temporary in nature. Under section 6(c)(3), an ETS serves as

a proposal for a permanent standard in accordance with section 6(b) of the OSH Act

(permanent standards), and the Act calls for the permanent standard to be finalized within

six months after publication of the ETS. 29 U.S.C. 655(c)(3); see Fla. Peach Growers

Ass’n, 489 F.2d at 124. The ETS is effective “until superseded by a standard promulgated

in accordance with” section 6(c)(3). 29 U.S.C. 655(c)(2).

Section 6(c)(1) states that the Secretary “shall” provide for an ETS when OSHA

makes the prerequisite findings of grave danger and necessity. See Pub. Citizen Health

Research Grp., 702 F.2d at 1156 (noting the mandatory language of section 6(c)). OSHA

is entitled to great deference in its determinations, and it must also account for “the fact

that ‘the interests at stake are not merely economic interests in a license or a rate

structure, but personal interests in life and health.’” Id. (quoting Wellford v.

Ruckelshaus, 439 F.2d 598, 601 (DC Cir. 1971)).

When OSHA issues a standard pursuant to section 6—whether permanent or an

ETS—section 18 of the OSH Act provides that OSHA’s standard preempts any state

occupational safety or health standard “relating to [the same] occupational safety or

health issue” as the Federal standard. 29 U.S.C. 667(b); see also Gade v. Nat’l Solid

Wastes Mgmt. Ass’n, 505 U.S. 88, 97 (1992). A state can avoid preemption only if it

submits, and receives Federal approval for, a state plan for the development and

enforcement of standards pursuant to section 18 of the Act, which must be “at least as

effective” as the Federal standards. 29 U.S.C. 667; Indus. Truck Ass’n v. Henry, 125 F.3d
1305, 1311 (9th Cir. 1997). However, the OSH Act does not preempt state laws of

“general applicability” that regulate workers and non-workers alike, so long as they do

not conflict with an OSHA standard. Gade, 505 U.S. at 107.

As discussed in detail elsewhere in this preamble, OSHA has determined that a

grave danger exists necessitating a new ETS (see Grave Danger and Need for the ETS,

Sections III.A. and III.B. of this preamble), and that compliance with this ETS is feasible

for covered employers (see Feasibility, Section IV. of this preamble). OSHA has also

provided a more detailed explanation of each provision of this ETS in Summary and

Explanation (Section VI. of this preamble). In addition, OSHA wishes to provide here

some general guidance on its legal authority to regulate COVID-19 hazards, and for

particular provisions of this ETS.

As a threshold matter, OSHA’s authority to regulate workplace exposure to

biological hazards like SARS-CoV-2 is well-established. Section 6(b)(5) of the OSH Act

uses similar language to section 6(c)(1)(A): the former sets forth requirements for

promulgating permanent standards addressing “toxic materials or harmful physical

agents,” and the latter authorizes OSHA to promulgate an ETS addressing “substances or

agents determined to be toxic or physically harmful” (as well as “new hazards”). OSHA

has consistently identified biological hazards similar to SARS-CoV-2, as well as SARS-

CoV-2 itself, to be “toxic materials or harmful physical agents” under the Act. Indeed, in

its exposure and medical records access regulation, OSHA has defined “toxic materials or

harmful physical agents” to include “any . . . biological agent (bacteria, virus, fungus,

etc.)” for which there is evidence that it poses a chronic or acute health hazard. 29 CFR

1910.1020(c)(13). And in addition to previously regulating exposure to SARS-CoV-2 as

a new and physically harmful agent in the Healthcare ETS (see, e.g., 86 FR at 32381),

OSHA has also previously regulated biological hazards like SARS-CoV-2 as health

hazards under section 6(b)(5), for example in the Bloodborne Pathogens (BBP) standard,
29 CFR 1910.1030, which addresses workplace exposure to HIV and Hepatitis B. The

BBP standard was upheld (except as to application in certain limited industries) in

American Dental Association, which observed that “the infectious character” of the

regulated bloodborne diseases might warrant “more regulation than would be necessary

in the case of a noncommunicable disease.” 984 F.2d at 826. In addition, in the preamble

to the respiratory protection standard, 29 CFR 1910.134, which was also promulgated

under section 6(b)(5), “OSHA emphasize[d] that [the] respiratory protection standard

does apply to biological hazards.” Respiratory Protection, 63 FR 1152-01, 1180 (Jan. 8,

1998) (citing Mahone Grain Corp., 10 BNA OSHC 1275 (No. 77–3041, 1981)).

In addition to being a physically harmful agent covered by section 6(c)(1)(A),

SARS-CoV-2 is also, without question, a “new hazard” covered by this provision, as

discussed in more detail in Grave Danger (Section III.A. of this preamble). SARS-CoV-2

was not known to exist until January 2020, and since then more than 725,000 people have

died from COVID-19 in the U.S. alone (CDC, October 18, 2021 – Cumulative US

Deaths).

Turning to specific provisions of this standard, the vaccination requirements in

this ETS are also well within the bounds of OSHA’s authority. Vaccination can be a

critical tool in the pursuit of health and safety goals, particularly in response to an

infectious and highly communicable disease. See, e.g., Jacobson v. Commonwealth of

Mass., 197 U.S. 11, 27–28 (1905) (recognizing use of smallpox vaccine as a reasonable

measure to protect public health and safety); Klaassen v. Trustees of Ind. Univ., 7 F.4th

592, 593 (7th Cir. 2021) (citing Jacobson and noting that vaccination may be an

appropriate safety measure against SARS-CoV-2 as “[v]accination protects not only the

vaccinated persons but also those who come in contact with them”). And the OSH Act

itself explicitly acknowledges that such treatments might be necessary, in some

circumstances. 29 U.S.C. 669(a)(5) (providing in the Act’s provisions on research and

related activities conducted by the Secretary of Health and Human Services to aid OSHA

in its formulation of health and safety standards that “[n]othing in this or any other

provision of this Act shall be deemed to authorize or require medical examination,

immunization, or treatment for those who object thereto on religious grounds, except

where such is necessary for the protection of the health or safety of others.” (emphasis

added)). In recognition of the health and safety benefits provided by vaccination, OSHA

has previously exercised its authority to promulgate vaccine-related requirements in the

COVID-19 Healthcare ETS (29 CFR 1910.502(m)) and the BBP standard (29 CFR

1910.1030(f)). The BBP standard illustrates congressional understanding that the

statutory delegation of authority to OSHA to issue standards includes authority for

vaccine provisions, where appropriate. See Pub. L. 102-170, Title I, Section 100, 105

Stat. 1107 (1991) (directing OSHA to complete the BBP rulemaking by a date certain,

and providing that if OSHA did not do so, the proposed rule, which included a vaccine

provision, would become the final standard).

Additionally, OSHA’s authority to require employers to bear the costs of

particular provisions of a standard is solidly grounded in the OSH Act. The Act reflects

Congress’s determination that the costs of compliance with the Act and OSHA standards

are part of the cost of doing business and OSHA may foreclose employers from shifting

those costs to employees. See Am. Textile Mfrs. Inst., 452 U.S. at 514; Phelps Dodge

Corp. v. OSHRC, 725 F.2d 1237, 1239-40 (9th Cir. 1984); see also Sec’y of Labor v.

Beverly Healthcare-Hillview, 541 F.3d 193 (3d Cir. 2008). Consistent with this authority,

OSHA has largely required employers to bear the costs of the provisions of this ETS,

including the typical costs associated with vaccination. The allocation of vaccination

costs to employers in this ETS is similar to OSHA’s treatment of vaccine-related costs in

the COVID-19 Healthcare ETS and the BBP standards. See 29 CFR 1910.502(m), (p); 29

CFR 1910.1030(f)(1)(ii)(A).
 The OSH Act provides OSHA with discretion, however, to decide whether to

impose certain costs—such as those related to medical examinations or other tests—on

employers “[w]here [it determines that such costs are] appropriate.” 29 U.S.C. 655(b)(7).

OSHA has determined that for purposes of this ETS, it would not be “appropriate” to

impose on employers any costs associated with COVID-19 testing for employees who

choose not to be vaccinated. For most of the agency’s existing standards containing

medical testing and removal provisions, OSHA has found it necessary to impose the costs

of such provisions on employers in order to remove barriers to employee participation in

medical examinations that are critical to effectuating the standards’ safety and health

protections. See United Steelworkers of Am., 647 F.2d at 1229-31, 1237-38. However, as

explained in greater detail elsewhere in this preamble (see Need for the ETS, Section

III.B. of this preamble), the ETS’s safety and health protections are best effectuated by

employee vaccination, not testing. Accordingly, OSHA only requires employers to bear

the costs of employee compliance with the preferred, and more protective, vaccination

provision, but not costs associated with testing. The agency does not believe it

appropriate to impose the costs of testing on an employer where an employee has made

an individual choice to pursue a less protective option. For the same reasons, OSHA has

also determined that it is not appropriate to require employers to pay for face coverings

for employees who choose not to be vaccinated.2

Finally, the Act and its legislative history “both demonstrate unmistakably”

OSHA’s authority to require employers to temporarily remove workers from the

workplace to prevent exposure to a health hazard. United Steelworkers of Am., 647 F.2d

at 1230. And again, this is an authority OSHA has repeatedly exercised in prior

2 OSHA notes that while the ETS does not impose these testing or face covering costs on employers, in
some circumstances employers may be required to pay for the costs related to testing and/or face coverings
by other laws, regulations, or collectively negotiated agreements. OSHA has no authority under the OSH
Act to determine whether such obligations under other laws, regulations, or agreements might exist.
standards, including in: COVID-19 Healthcare ETS (29 CFR 1910.502); Lead (29 CFR

1910.1025); Cadmium (29 CFR 1910.1027); Benzene (29 CFR 1910.1028);

Formaldehyde (29 CFR 1910.1048); Methylenedianiline (29 CFR 1910.1050); Methylene

Chloride (29 CFR 1910.1052); and Beryllium (29 CFR 1910.1024). It is equally

appropriate to impose that obligation here.

For all of these reasons, as well as those explained more fully in other areas of

this preamble, OSHA has the authority—and obligation—to promulgate this ETS.

References:

Centers for Disease Control and Prevention (CDC). (2021, October 18). COVID Data
Tracker. https://covid.cdc.gov/covid-data-tracker/. (CDC, October 18, 2021)

III. Rationale for the ETS

A. Grave Danger

I. Introduction.

Section 6(c)(1) of the OSH Act requires the Secretary to issue an ETS in

situations where employees are exposed to a “grave danger” and immediate action is

necessary to protect those employees from such danger (29 U.S.C. 655(c)(1)). Consistent

with its legal duties, OSHA is issuing this ETS to address the grave danger posed by

occupational exposure to SARS-CoV-2, the virus that causes COVID-19.3 OSHA has

determined that occupational exposure to SARS-CoV-2, including the Delta variant

(B.1.617.2 and AY lineages), presents a grave danger to unvaccinated workers in the

U.S., with several exceptions explained below.4 This finding of grave danger is based on

the science of how the virus spreads, the transmissibility of the disease in workplaces,

3 OSHA is defining 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 described in this section. This distinction applies despite OSHA’s use of
the terms SARS-CoV-2 and COVID-19 interchangeably in some parts of this preamble.
4 OSHA refers to the grave danger from occupational exposure to SARS-CoV-2 throughout this document.
Those references are intended to encompass exposure to SARS-CoV-2 and all variants of SARS-CoV-2,
including the Delta variant.
and the serious adverse health effects, including death, that can be suffered by those who

are diagnosed with COVID-19. The protections of this ETS—which will apply, with

some limitations, to a broad range of workplace settings where exposure to SARS-CoV-2

may occur—are designed to protect employees from infection with SARS-CoV-2 and

from the dire, sometimes fatal, consequences of such infection.

The fact that COVID-19 is not a uniquely work-related hazard does not change

the determination that it is a grave danger to which employees are exposed, nor does it

excuse employers from their duty to protect employees from the occupational

transmission of SARS-CoV-2. The OSH Act is intended to “assure so far as possible

every working man and woman in the Nation safe and healthful working conditions” (29

U.S.C. 651(b)), and there is nothing in the Act to suggest that its protections do not

extend to hazards which might occur outside of the workplace as well as within. Indeed,

COVID-19 is not the first hazard that OSHA has regulated that occurs both inside and

outside the workplace. For example, the hazard of noise is not unique to the workplace,

but the Fourth Circuit has upheld OSHA’s Occupational Noise Exposure standard (29

CFR § 1910.95) (Forging Industry Ass’n v. Sec’ of Labor, 773 F.2d 1437, 1444 (4th Cir.

1985)). Diseases caused by bloodborne pathogens, including HIV/AIDS and hepatitis B,

are also not unique to the workplace, but the Seventh Circuit upheld the majority of

OSHA’s Bloodborne Pathogens standard (29 CFR § 1910.1030) (Am. Dental Ass’n v.

Martin, 984 F.2d 823 (7th Cir. 1993)). OSHA’s Sanitation standard, 29 CFR 1910.141,

which requires measures such as cleaning, waste disposal, potable water, toilets, and

washing facilities, addresses hazards that exist everywhere – both within and outside of

workplaces. Moreover, employees have more freedom to control their environment

outside of work, and to make decisions about their behavior and their contact with others

to better minimize their risk of exposure. However, during the workday, while under the

control of their employer, workers may have little ability to limit contact with coworkers,
clients, members of the public, patients, and others, any one of whom could represent a

source of exposure to SARS-CoV-2. OSHA has a mandate to protect employees from

hazards they are exposed to at work, even if they may be exposed to similar hazards

outside of work.

As described above in Pertinent Legal Authority (Section II. of this preamble),

“grave danger” indicates a risk that is more than “significant” (Int’l Union, United Auto.,

Aerospace, & Agr. Implement Workers of Am., UAW v. Donovan, 590 F. Supp. 747, 755-

56 (D.D.C. 1984); Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607,

640 n.45, 655 (1980) (stating that a rate of 1 worker in 1,000 workers suffering a given

health effect constitutes a “significant” risk)). “Grave danger,” according to one court,

refers to “the danger of incurable, permanent, or fatal consequences to workers, as

opposed to easily curable and fleeting effects on their health” (Fla. Peach Growers Ass’n,

Inc. v. U. S. Dep’t of Labor, 489 F.2d 120, 132 (5th Cir. 1974)). Fleeting effects were

described as nausea, excessive salivation, perspiration, or blurred vision and were

considered so minor that they often went unreported; these effects are in stark contrast

with the adverse health effects of COVID-19 infections, which are formally referenced as

ranging from “mild” to “critical,”5 but which can involve significant illness, hospital

stays, ICU care, death, and long-term health complications for survivors. Beyond this,

however, “the determination of what constitutes a risk worthy of Agency action is a

policy consideration that belongs, in the first instance, to the Agency” (Asbestos Info.

Ass’n/N. Am. v. OSHA, 727 F.2d 415, 425 (5th Cir. 1984)).

In the context of ordinary 6(b) rulemaking, the Supreme Court has said that the

OSH Act is not a “mathematical straitjacket,” nor does it require the agency to support its

findings “with anything approaching scientific certainty,” particularly when operating on

5See the definitions for the different levels of severity of COVID-19 illness in the National Institutes of
Health’s COVID-19 treatment guidelines (NIH, October 12, 2021).
the “frontiers of scientific knowledge” (Indus. Union Dep’t, AFL-CIO v. Am. Petroleum

Inst., 448 U.S. 607, 655-56 (1980)). Courts reviewing OSHA’s determination of grave

danger do so with “great deference” (Pub. Citizen Health Research Grp. v. Auchter, 702

F.2d 1150, 1156 (DC Cir. 1983)). In one case, the Fifth Circuit, in reviewing an OSHA

ETS for asbestos, declined to question the agency’s finding that 80 worker lives at risk

nationwide over six months constituted a grave danger (Asbestos Info. Ass’n/N. Am., 727

F.2d at 424). OSHA estimates that this ETS would save over 6,500 worker lives and

prevent over 250,000 hospitalizations over the course of the next six months (OSHA,

October 2021c). Here, the mortality and morbidity risk to employees from COVID-19 is

so dire that the grave danger from exposures to SARS-CoV-2 is clear.

SARS-CoV-2 is both a physically harmful agent and a new hazard (see 29 U.S.C.

655(c)(1)(A)). The majority of OSHA’s previous ETSs addressed toxic substances that

had been familiar to the agency for many years prior to issuance of the ETS. OSHA’s

Healthcare ETS, issued in response to COVID-19 earlier this year, is one notable

exception. In most cases, OSHA’s ETSs were issued in response to new information

about substances that had been used in workplaces for decades (e.g., Vinyl Chloride (39

FR 12342 (April 5, 1974)); Benzene (42 FR 22516 (May 3, 1977)); 1,2-Dibromo-3-

chloropropane (42 FR 45536 (Sept. 9, 1977))). In some cases, the hazards of the toxic

substance were already so well established that OSHA promulgated an ETS simply to

update an existing standard (e.g., Vinyl cyanide (43 FR 2586 (Jan. 17, 1978))). The

COVID-19 Healthcare ETS, which was issued in June 2021, was the sole instance in

which OSHA issued an ETS to address a grave danger from a substance that had only

recently come into existence. Although that action by the agency was challenged, the

case has not gone to briefing (see United Food & Commercial Workers Int’l Union, AFL-

CIO, CLC and AFL-CIO v. OSHA, Dep’t of Labor, D.C. Circuit No. 21-1143). Thus, no

court has had occasion to examine OSHA’s authority under section (6)(c) of the OSH Act
(29 U.S.C. 655(c)) to address a grave danger from a “new hazard.” Yet by any measure,

SARS-CoV-2 is a new hazard. Unlike any of the hazards addressed in previous ETSs,

there were no documented cases of SARS-CoV-2 infections in the United States until

January 2020. Since then, more than 725,000 people have died in the U.S. alone (CDC,

October 18, 2021 – Cumulative US Deaths). The pandemic continues to affect workers

and workplaces, with workplace exposures leading to further exposures among workers’

families and communities. Clearly, SARS-CoV-2 is both a physically harmful agent and

a new hazard that presents a grave danger to workers in the U.S.

Published on June 21, 2021, OSHA’s Healthcare ETS (86 FR 32376) was written

in response to the grave danger posed to healthcare workers in the United States who

faced a heightened risk of infection from COVID-19. In the healthcare ETS, OSHA

described its finding of grave danger for healthcare and healthcare support service

workers (see 86 FR 32381-32412). OSHA now finds that all unvaccinated workers, with

some exceptions, face a grave danger from the SARS-CoV-2 virus.6

II. Nature of the Disease.

The health effects of symptomatic COVID-19 illness can range from mild disease

consisting of fever or chills, cough, and shortness of breath to severe disease. Severe

cases can involve respiratory failure, blood clots, long-term cardiovascular and

neurological effects, and organ damage, which can lead to hospitalization, ICU

admission, and death (see 86 FR 32383-32388; NINDS, September 2, 2021). Even in the

short time since the Healthcare ETS’s publication in June 2021, the risk posed by

COVID-19 has changed meaningfully. Since OSHA considered the impact of COVID-19

when promulgating the Healthcare ETS, over 135,000 additional Americans have died

from COVID-19, and over 933,000 have been hospitalized, (CDC, October 18, 2021 –

6When OSHA refers to “unvaccinated” individuals in its grave danger finding, it means all individuals who
are not fully vaccinated against COVID-19, i.e., those who are completely unvaccinated and those who are
partially vaccinated.
Cumulative US Deaths; CDC, May 28, 2021; CDC, October 18, 2021 – Weekly Review).

In August 2021, COVID-19 was the third leading cause of death in the United States,

trailing only heart disease and cancer (Ortaliza et al., August 27, 2021). By September

20, 2021, COVID-19 had killed as many Americans as the 1918-1919 flu pandemic

(Johnson, September 20, 2021).

While the Healthcare ETS addresses the risk of illness and death from COVID-19

as the SARS-CoV-2 virus continues to change over time, it does not specifically address

the increases in infectiousness and transmission, and the potentially more severe health

effects, related to the Delta variant. The rapid rise to predominance of the Delta variant in

the U.S. occurred shortly after the ETS was published. At this time, the widespread

prevalence of the Delta variant and its increased transmissibility have resulted in

increased risk of exposure and disease relative to the previously-dominant strains of the

SARS-CoV-2 virus. Adding to the information covered in the Healthcare ETS, the

following sections provide a brief review of SARS-CoV-2 and describe the

characteristics of the Delta variant that are different from previous versions of SARS-

CoV-2 and have changed the risks posed by COVID-19. The agency specifically

references the material presented in the Healthcare ETS, which is still relevant to this

analysis, to support OSHA’s finding of grave danger. Taken together, the information

available to OSHA demonstrates that SARS-CoV-2 poses a grave danger to unvaccinated

workers across all industry sectors.

a. Variants of SARS-CoV-2.

Viral mutations have been a serious concern of scientists, public health experts,

and policymakers from the beginning of the COVID-19 pandemic. Viral mutations can

affect how a virus interacts with a cell – altering the virus’s transmissibility, infection

severity, and sensitivity to vaccines. The U.S. government’s SARS-CoV-2 Interagency

Group has a variant classification scheme that defines four classes of SARS-CoV-2
variants: Variants Being Monitored (VBM), Variants of Interest (VOI), Variants of

Concern (VOC), and Variants of High Consequence (VOHC). These variant designations

are based on their “proportions at the national and regional levels and the potential or

known impact of the constellation of mutations on the effectiveness of medical

countermeasures, severity of disease, and ability to spread from person to person” (CDC,

October 4, 2021), with VOIs considered less serious than VOCs and VOCs considered

less serious than VOHCs. As of early October 2021, the CDC was monitoring 10 VBMs

– Alpha (B.1.1.7, Q.1-Q.8), Beta (B.1.351, B.1.351.2, B.1.351.3), Gamma (P.1, P.1.1,

P.1.2), Epsilon (B.1.427 and B.1.429), Eta (B.1.525), Iota (B.1.526), Kappa (B.1.617.1),

B.1.617.3, Mu (B.1.621, B.1.621.1), and Zeta (P.2) – and one VOC – Delta (B.1.617.2

and AY.1 sublineages) – in the U.S. (CDC, October 4, 2021). CDC defines a VOC as “[a]

variant for which there is evidence of an increase in transmissibility, more severe disease

(e.g., increased hospitalizations or deaths), significant reduction in neutralization by

antibodies generated during previous infection or vaccination, reduced effectiveness of

treatments or vaccines, or diagnostic detection failures” (CDC, October 4, 2021).

While the proportions of SARS-CoV-2 variants in the United States have shifted

over time (CDC, May 24, 2021c; CDC, October 18, 2021 – Variant Proportions, July

through October 2021), the primary variant that drove COVID-19 transmission in the late

Winter and Spring of 2021 was the Alpha variant. The CDC noted that Alpha is

associated with an increase in transmission, as well as potentially increased incidences of

hospitalization and death, compared to the predominant variants before its emergence

(CDC, October 4, 2021; Pascall et al., August 24, 2021; Julin et al., September 22, 2021).

As Alpha transmission subsided in the United States during the late Spring and early

Summer of 2021, Delta emerged and quickly became the predominant variant in the U.S.

by July 3, 2021 (CDC, October 18, 2021 – Variant Proportions, July through October
2021). Delta now accounts for more than 99% of circulating virus nationwide (CDC,

October 18, 2021 – Variant Proportions, July through October 2021).

FDA authorized and approved COVID-19 vaccines currently work well against

all of these variants; however, there are differences in various variants’ ability to spread

and the likelihood of infection to cause severe illness. Data on the Beta and Gamma

variants do not indicate that infections from these variants caused more severe illness or

death than other VOCs. Data on the Alpha variant does indicate its ability to cause more

severe illness and death in infected individuals. And some data on the Delta variant

suggests that the Delta variant may cause more severe illness than previous variants,

including Alpha, in unvaccinated individuals (CDC, October 4, 2021).

The emergence of the Delta variant, along with other VOCs, has resulted in a

more deadly pandemic (Fisman and Tuite, July 12, 2021). While the Delta variant is the

most transmissible SARS-CoV-2 variant to date, the possibility remains for the rise of

future VOCs, and even more dangerous VOHCs, as the virus continues to spread and

mutate. Inadequate vaccination rates and the abundance of transmission create an

environment that can foster the development of new variants that could be similarly, or

even more, disruptive (Liu and Rocklov, August, 4, 2021). In this context, it is critical

that OSHA address the grave danger from COVID-19 that unvaccinated workers are

currently facing by requiring vaccination and the other measures included in this rule, in

order to significantly slow the transmission of COVID-19 in workers and workplaces and

mitigate the rise of future variants.

b. Transmission.

SARS-CoV-2 is a highly transmissible virus, regardless of variant. Since the first

case was detected in the U.S., there have been close to 45 million reported cases of

COVID-19, affecting every state and territory, with thousands more infected each day

(CDC, October 18, 2021 – Cumulative US Cases), and some indication that these
numbers continue to underestimate the full burden of disease (CDC, July 27, 2021).

According to the CDC, the primary way the SARS-CoV-2 virus spreads from an infected

person to others is through the respiratory droplets that are produced when an infected

person coughs, sneezes, sings, talks, or breathes (CDC, May 7, 2021). Infection could

then occur when another person breathes in the virus. Most commonly this occurs when

people are in close contact with one another in indoor spaces (within approximately six

feet for at least fifteen minutes) (CDC, August 13, 2021). Additionally, airborne

transmission may occur in indoor spaces without adequate ventilation where small

respiratory particles are able to remain suspended in the air and accumulate (CDC, May

7, 2021; Fennelly, July 24, 2020). While scientists’ understanding of the Delta variant’s

virology is evolving and remains at the frontier of science, current data shows that the

routes of transmission remain the same for all currently-identified SARS-CoV-2 variants.

In addition, all variants can be transmitted by people who are pre-symptomatic (i.e.,

people who are infected but do not yet feel sick) or asymptomatic (i.e., people who are

infected but never feel any symptoms of COVID-19), as well as those who are

symptomatic. Pre-symptomatic and asymptomatic transmission continue to pose serious

challenges to containing the spread of COVID-19. For more extensive information on

transmission routes, as well as pre-symptomatic and asymptomatic transmission, see the

preamble to the Healthcare ETS (86 FR 32392-32396), which is hereby included in the

record of this ETS.7

The Delta variant is transmitted from infectious individuals via the same routes as

previous variants, but is much more transmissible. Specifically, Delta differs from

previous dominant variants of SARS-CoV-2 in terms of the amplification of viral

particles expelled from infected individuals. Testing of Delta-infected individuals

7 This adoption includes the citations in the referenced section of the Healthcare ETS, which are also
included in the docket for this ETS.
indicates that their viral loads are – on average – approximately 1,000x greater than those

of the SARS-CoV-2 variants from the first COVID-19 wave in early 2020. This finding

suggests much faster replication of viral particles during early infection with the Delta

variant, resulting in greater infectiousness (contagiousness) when compared to earlier

versions of SARS-CoV-2 (Li et al., July 12, 2021).

The transmissibility of viruses is measured in part by the average number of

subsequently-infected people (or secondary cases) that are expected to occur from each

existing case (often referred to as R0). Several comparisons of the transmissibility of the

initial SARS-CoV-2 variants to the Delta variant have shown that Delta is approximately

twice as transmissible (contagious) as previous versions of SARS-CoV-2 (CDC, August

26, 2021; Riou and Althaus, January 30, 2020; Li et al., July 12, 2021; Liu and Rocklov,

August, 4, 2021), likely the result of higher initial viral loads during the pre-symptomatic

phase (Li et al., July 12, 2021). In addition, as described further below, data on Delta

shows that both unvaccinated and vaccinated individuals are more likely to transmit Delta

than previous variants (Liu and Rocklov, August, 4, 2021; Eyre et al., September 29,

2021), making it especially dangerous to those who remain unvaccinated.

c. Health Effects.

COVID-19 infections can lead to death. As reported in the Healthcare ETS, by

May 24, 2021, there had been 587,432 deaths and 32,947,548 million infections in the

U.S. alone (CDC, May 24, 2021a; CDC, May 24, 2021b). At that point in the pandemic,

1.8 out of every 1,000 people in the U.S. had died from COVID-19 (CDC, May 24,

2021a). Since then, reported cases have increased to 44,857,861 and the number of deaths

has increased to 723,205 (CDC, October 18, 2021– Cumulative US Cases; Cumulative

US Deaths). By September 2021, an astounding 1 in 500 Americans had died from

COVID-19 (Keating, September 15, 2021). Updated mortality data8 currently indicate

that people of working age (18-64 years old) now have a 1 in 202 chance of dying when

they contract the disease, with the risk much higher (1 in 72) for those aged 50-64 (CDC,

October 18, 2021 – Demographic Trends, Cases by Age Group; CDC, October 18, 2021 -

Demographic Trends, Deaths by Age Group). For a more in-depth description of the

health effects resulting from SARS-CoV-2 infection, see the preamble to the Healthcare

ETS (86 FR 32383-32392), which is hereby included in the record of this ETS.9

Apart from fatal cases, COVID-19 can cause serious illness, including long-

lasting effects on health. Many patients who become ill with COVID-19 require

hospitalization. Indeed, updated CDC hospitalization and mortality data indicate that

working age Americans (18-64 years old) now have a 1 in 14 chance of hospitalization

when infected with COVID-19 (CDC, October 18, 2021 – Demographic Trends, Cases

by Age; Total Hospitalizations, by Age). Those who are hospitalized frequently need

supplemental oxygen and treatment for the disease’s most common complications, which

include pneumonia, respiratory failure, acute respiratory distress syndrome (ARDS),

acute kidney injury, sepsis, myocardial injury, arrhythmias, and blood clots. One study,

which included 35,502 inpatients nationwide, determined that the median length of

hospital stay was 6 days, unless the cases required ICU treatment. For those cases, ICU

stays were on median 5 days in addition to the time spent hospitalized outside of the ICU

(Rosenthal et al., December 10, 2020). Another study that assessed hospital length of stay

for COVID-19 patients in England estimated that a non-ICU hospital stay averaged

between 8 and 9 days, but those estimates ranged from approximately 12 to 18 days when

patients were admitted to the ICU (Vekaria et al., July 22, 2021). Moreover, given that

8Risk of death is based on averages from reported CDC data. Risks of hospitalization and death are much
higher in unvaccinated individuals, as discussed further in Grave Danger, Section III.A.IV. Vaccines
Effectively Reduce Severe Health Outcomes from and Transmission of SARS-CoV-2.
9 This adoption includes the citations in the referenced section of the Healthcare ETS, which are also
included in the docket for this ETS.
SARS-CoV-2 is still a novel virus, the severity of long-term health effects – such as

“post-COVID conditions” – are not yet fully understood.

Many members of the workforce are at increased risk of death and severe disease

from COVID-19 because of their age or pre-existing health conditions. The comorbidities

that further exacerbate COVID-19 infections are common among adults of working age

in the U.S. For instance, 46.1% of individuals with cancer are in the 20-64 year old age

range (NCI, April 29, 2015), and over 40% of working age adults are obese (Hales et al.,

February 2020). Disease severity is also likely exacerbated by long-standing healthcare

inequities experienced by members of many racial and economic demographics (CDC,

April 19, 2021).

Recent data suggests that Delta variant infections may result in even more severe

illness and a higher frequency of death than previous COVID-19 variants due to Delta’s

increased transmissibility, virulence, and immune escape (Fisman and Tuite, July 12,

2021). Symptomatic Delta variant infections do occur in fully vaccinated people

(Mlcochova et al., June 22, 2021; Musser et al., July 22, 2021); however, as reported by

the CDC (CDC, August 26, 2021), the vast majority of the continuing instances of severe

and fatal COVID-19 infections are occurring in unvaccinated persons (discussed further

in Grave Danger, Section III.A.IV. Vaccines Effectively Reduce Severe Outcomes from

and Transmission of SARS-CoV-2). An assessment of Delta-related hospital admissions

in Scotland found that hospitalizations were approximately doubled in patients with the

Delta variant when compared to the Alpha variant (Sheikh et al., June 4, 2021). A similar

study conducted using a retrospective cohort in Ontario, Canada compared the virulence

of novel SARS-CoV-2 variants and found that the incidences of hospitalization, ICU

admission, and death were more pronounced with the Delta variant than any other SARS-

CoV-2 variant (Fisman and Tuite, July 12, 2021). A large national cohort study that

included all Alpha and Delta SARS-CoV-2 patients in England between March 29 and
May 23, 2021 found a “higher hospital admission or emergency care attendance risk for

patients with COVID-19 infected with the Delta variant compared with the Alpha

variant,” suggesting that Delta outbreaks – especially amongst unvaccinated populations

– may lead to more severe health consequences and an equivalent or greater burden on

healthcare services than the Alpha variant (Twohig et al., August 27, 2021). However,

one more recent study examining data from several U.S. states demonstrated a significant

increase in hospitalization from the pre-Delta to the Delta period, which may be related to

increased transmissibility of Delta rather than more severe health outcomes (Taylor et al.,

October 22, 2021).

III. Impact on the Workplace.

SARS-CoV-2 is readily transmissible in workplaces because they are areas where

multiple people come into contact with one another, often for extended periods of time.

When employees report to their workplace, they may regularly come into contact with

co-workers, the public, delivery people, patients, and any other people who enter the

workplace. Workplace factors that exacerbate the risk of transmission of SARS-CoV-2

include working in indoor settings, working in poorly-ventilated areas, and spending

hours in close proximity with others. Full-time employees typically spend 8 hours or

more at work each shift, more time than they spend anywhere else but where they live.

Employees work in proximity to others in workplaces that were not originally designed to

keep people six feet away from other people and that may make it difficult for employees

to perform work tasks while maintaining a six-foot distance from others. Even in the

cases where workers can do most of their work from, for example, a private office within

a workplace, they share common areas like hallways, restrooms, lunch rooms and

meeting rooms. Furthermore, many work areas are poorly ventilated (Allen and Ibrahim,

May 25, 2021; Lewis, March 30, 2021). An additional factor that exacerbates the risk of

transmission of SARS-CoV-2 is interacting with or caring for people with suspected or

confirmed COVID-19; this was a primary driver of OSHA’s determination of grave

danger for healthcare workers in the Healthcare ETS (see 86 FR 32381-32383). In recent

weeks, the majority of states in the U.S. have experienced what CDC defines as “high or

substantial community transmission,” indicating that there is a clear risk of the virus

being introduced into and circulating in workplaces (CDC, October 18, 2021 –

Community Transmission Rates).

Although COVID-19 is not exclusively an occupational disease, it is evident from

research accrued since the beginning of the pandemic that SARS-CoV-2 transmission can

and does occur in workplaces, affecting employees and their lives, health, and

livelihoods. This continues to be true for the Delta variant, with its increased

transmissibility and potentially more severe health effects. This section describes some of

the clusters, outbreaks, and other occurrences of workplace COVID-19 cases that

government agencies, researchers, and journalists have described, and the widespread

effects of SARS-CoV-2 in industry sectors across the national economy. While the focus

is on more recent data reflecting the impact of the Delta variant, evidence of workplace

transmission that occurred prior to the emergence of the Delta variant is also presented.

The workplace-based clusters described below provide evidence that workplaces

in a wide range of industries have been affected by COVID-19, that many employees

face exposure to infected people in their workspaces, and that SARS-CoV-2 transmission

is occurring in the workplace, including during the recent period where the Delta variant

has predominated. Although the presence of a cluster on its own does not necessarily

establish that the cluster is work-related (i.e., a result of transmission at the worksite),

many state investigation reports and published studies provide evidence that transmission

is work related by documenting that infections at a workplace occurred within 14-days

(the incubation period for the virus) of each other and ruling out the possibility that

transmission occurred outside the workplace. In addition, the information below

demonstrates that exposures to SARS-CoV-2 happen regularly in a wide variety of

different types of workplaces.

The basis for OSHA’s grave danger finding is that employees can be exposed to

the virus in almost any work setting; that exposure to SARS-CoV-2 can lead to infection

(CDC, September 21, 2021); and that infection in turn can cause death or serious

impairment of health, especially in those who are unvaccinated (see Section III.A.IV.

Vaccines Effectively Reduce Severe Health Outcomes from and Transmission of SARS-

CoV-2). The information described in this section supports OSHA’s finding that

employees who work in spaces shared by others are at risk of exposure to SARS-CoV-2.

The degree of risk from droplet-based transmission may vary based on the duration of

close proximity to a person infected with SARS-CoV-2, including the Delta variant, but

the simple and brief act of sneezing, coughing, talking, or even breathing can

significantly increase the risk of transmission if controls are not in place. SARS-CoV-2,

including the Delta variant, might also be spread through airborne particles under certain

conditions, particularly in enclosed settings with inadequate ventilation, which are

common characteristics of some workplaces.

The peer-reviewed scientific journal articles, government reports, and news

articles described below establish the widespread prevalence of COVID-19 among

employees, beginning with a description of the recent impact from the Delta variant.

OSHA’s findings are based primarily on the evidence from peer-reviewed scientific

journal articles and government reports. However, peer review for scientific journal

articles and the assembly of information for government reports and other official sources

of information take time, and therefore those sources do not always reflect the most up-

to-date information (Chan et al., December 14, 2010). In addition, while state and local

health departments can report workplace outbreaks to CDC, the agency does not provide

summary statistics by workplace so that those outbreaks can be tracked on a national

level. In the context of the COVID-19 pandemic, given the recent impacts due to the

Delta variant and the emergence of new information on a daily basis, it is critical for

OSHA to rely on the most up-to-date information available. Therefore, OSHA has

occasionally supplemented peer-reviewed data and government reports with additional

information on occupational outbreaks contained in other sources of media (e.g.,

newspapers, digital media, and information submitted to or obtained by private

organizations).10 The reported information from other sources can provide further

evidence of the impact of an emerging and changing disease, especially for industries that

are not well represented in the peer-reviewed scientific literature. Together, these sources

of information represent the best available evidence of the impact on employees of the

pandemic thus far.

The information described herein illustrates a significant number of infections

among employees in a variety of industries, with virtually every state continuing to

experience what CDC defines as high or substantial community transmission related to

the recent surge of the Delta variant. The industries and types of workplaces described

are not the only ones in which a grave danger exists. The science of transmission does not

vary by industry or by type of workplace. OSHA therefore expects transmission to occur

in diverse workplaces all across the country (see Dry Color Mfrs. Ass’n, Inc. v. Dep’t of

Labor, 486 F.2d 98, 102 n.3 (3d Cir. 1973) (holding that when OSHA determines a

substance poses a grave danger to workers, OSHA can assume an exposure to a grave

danger exists wherever that substance is present in a workplace)). In addition, the severity

of COVID-19 does not depend on where an employee is infected; an employee exposed

to SARS-CoV-2 might die whether exposed while working at a meat packing facility, a

retail establishment, or an office (see Grave Danger, Section III.A.V.b. Employees Who

10OSHA did not make findings based solely on non-peer-reviewed sources such as news articles, but the
agency found that those sources can sometimes provide useful information when considered with more
robust sources.
Work Exclusively Outside, below, for a discussion of the risk of exposure in outdoor

workplaces).

a. General Impact on Workers.

Data on SARS-CoV-2 infections, illnesses, and deaths among employees in

general industry, agriculture, construction, and maritime support OSHA’s finding that

COVID-19 poses a grave danger to employees in these sectors across the U.S. economy.

This section summarizes studies and reports of COVID-19 illness and fatalities in a wide

range of workplaces across those industry sectors. Not all workplace settings are

discussed; nor is the data available to do so. However, the characteristics of the various

affected workplaces – such as indoor work settings; contact with coworkers, clients, or

members of the public; and sharing space with others for prolonged periods of time –

indicate that exposures to SARS-CoV-2 are occurring in a wide variety of work settings

across all industries. Therefore, most employees who work in the presence of other

people (e.g., co-workers, customers, visitors) need to be protected.

While there is no comprehensive source of nationwide workplace infection data,

reports from states and communities on outbreaks related to workplaces provide key, up-

to-date data that illustrate the likelihood of employee exposure to SARS-CoV-2 at

workplaces throughout the U.S. OSHA identified a number of recent reports from various

regions of the country that together demonstrate the impact that SARS-CoV-2 can have

on a variety of workplaces, including in service industries (e.g., restaurants, grocery and

other retail stores, fitness centers, hospitality, casinos, salons), corrections, warehousing,

childcare, schools, offices, homeless shelters, transportation, mail/shipping/delivery

services, cleaning services, emergency services/response, waste management,

construction, agriculture, food packaging/processing, and healthcare. Deaths are reported

in many studies performed prior to the emergence of the Delta variant but, because the

Delta outbreak is so recent and deaths can occur weeks after infection, the number of
deaths from recent infections might be underestimated. Some of the reports include

cumulative data representing various phases of the pandemic, beginning prior to the

availability of vaccines and continuing through the recent surge of the Delta variant. In

addition, some studies report investigations of recent outbreaks, which provide insight on

the impact of the Delta variant as well as impacts associated with the current vaccination

status of workers.

The Washington State Department of Health (WSDH) reports outbreaks occurring

in non-healthcare workplaces (WSDH, September 8, 2021). In non-healthcare

workplaces, outbreaks are defined as two or more laboratory confirmed cases of COVID-

19, with at least two cases reporting symptom onset within 14 days of each other, and

plausible epidemiological evidence of transmission in a shared location other than a

household. As of September 4, 2021, WSDH reported 5,247 outbreaks in approximately

40 different types of non-healthcare work settings. During the week of August 29 through

September 4, 2021, WSDH identified 137 separate workplace outbreaks. The types of

non-medical workplace settings that represented more than 5% of the total outbreaks

during that week included food service/restaurants, childcare, schools, retail, grocery, and

shelter/homeless services. Other types of non-healthcare settings where outbreaks

occurred recently included non-food and food manufacturing, construction, professional

services/office based, agriculture/produce packing, transportation/shipping delivery,

government agencies/facilities, leisure hospitality/recreation, corrections, utilities,

warehousing, facility/domestic cleaning services, youth sports/activities, camps, and

public safety. Over the course of the pandemic, outbreaks have also been observed at

bars/nightclubs, hotels, and fishing/commercial seafood vessels.

The Oregon Health Authority (OHA) publishes a weekly report detailing

outbreaks directly related to work settings. OHA epidemiologists consider cases to be

part of a workplace outbreak when clusters form with respect to space and time, within a
plausible incubation period for the virus, and their investigation does not uncover an

alternative source for the outbreak. For privacy reasons, OHA only reports outbreaks with

5 or more cases in workplaces with 30 or more people. OHA reported a total of 26,013

cases and 135 deaths related to workplace outbreaks as of September 1, 2021. As of

September 1, 2021, OHA was investigating more than 124 active workplace outbreaks

(OHA, September 1, 2021). Those outbreaks occurred in a wide variety of industries

including correctional facilities, emergency services, waste management, schools and

child care, retail and grocery stores, restaurants, warehousing, agriculture, food

processing/packaging, construction, healthcare, mail and delivery services, office

locations, utilities, transportation, and others.

Tennessee Department of Health was investigating 557 active COVID-19 clusters

as of September 8, 2021 (TDH, September 8, 2021). Clusters are defined as two or more

laboratory confirmed COVID-19 cases linked to the same location or event that is not a

household exposure. The clusters occurred in 13 types of settings, 10 of which were

workplace settings. Outbreaks at workplaces represented more than half of the total

active outbreaks in the state at that time. Settings comprising more than 5% of total

clusters included assisted care living facilities, nursing homes, and correctional facilities.

Other types of workplaces where outbreaks occurred included bars, construction, farms,

homeless shelters, and industrial settings.

The North Carolina Department of Health and Human Services reports

cumulative numbers of clusters, cases, and deaths for workers in poultry processing

facilities (beginning in April of 2020) and other types of workplaces (beginning in May

of 2020) (NCDHHS, August 30, 2021). Clusters are defined as a minimum of 5 cases

with illness onset or initial positive results within a 14-day period and plausible

epidemiological linkage between the cases. Plausible epidemiological linkage means that

multiple cases were in the same general setting during the same time period (e.g., same
shift, same physical area) and that a more likely source of exposure is not identified (e.g.,

household contact or close contact to a confirmed case in another setting). During that

time period of April/May 2020 through August 30, 2021, workplaces11 were associated

with nearly 80% of the 1,969 clusters and 27,097 cases observed and nearly 40% of the

167 deaths related to the clusters. Cumulative numbers of cluster-associated deaths were

highest in meat and poultry processing (25 of 5,351 cases), followed by healthcare (10 of

1,036 cases), government services and manufacturing (5 of 1,048 cases and 5 of 1,856

cases, respectively), and restaurants and childcare (3 of 421 cases and 3 of 1,943 cases,

respectively). Recently, in July of 2021, the number of cases associated with workplace

clusters began increasing in several different types of work settings, including meat

processing, manufacturing, retail, restaurants, childcare, schools, and higher education.

Colorado Department of Public Health & Environment/Colorado State

Emergency Operations Center (CDPHE/CSEOC, September 8, 2021) reported 5,584

resolved workplace-related outbreaks involving 40,156 employee cases and 79 employee

deaths since May of 2020. The agency’s current investigations, as of September 8, 2021

included 291 active outbreaks (not defined), with 2,865 staff cases (assumed to be cases

in employees). The majority of active outbreaks were reported in childcare, schools,

healthcare, and corrections. Active outbreaks were also reported in construction, retail,

homeless shelters, casinos, restaurants, hotels, offices, law enforcement, manufacturing,

delivery services, and warehouses. Other types of work settings that were affected in

resolved outbreaks included warehouses, bars, government locations, waste management,

utilities, salons, emergency services, meat processing/packaging, and postal services.

From June 21, 2021 (the date the healthcare ETS was published) through September 8,

11NCDHHS identifies a “workplace” category in their report (e.g., agriculture, construction), but OSHA
includes other settings where employees would be present (e.g., retail, restaurants, childcare, healthcare).
2021, 1,469 staff cases associated with outbreaks were reported, for an average of

approximately 19 cases per day.

Similar reporting is available from Louisiana’s Department of Health (LDH,

August 24, 2021), with 1,347 outbreaks and 9,130 cases reported as of August 24, 2021.

LDH defines an outbreak as 2 or more cases among unrelated individuals who visited a

site within a 14-day period. More than three quarters of outbreaks through that date were

associated with workplaces. Workplace settings in Louisiana that experienced more than

5% of outbreaks included day care facilities, bars, restaurants, retail settings, industrial

settings, and office spaces. Other types of workplace settings or industries where

outbreaks occurred included casinos, gyms/fitness centers, banks, automotive services,

construction, and ships/boats.

In addition to the state data above, some published studies and government

reports provide information on recent workplaces outbreaks. For example, 47 people,

including 3 of 11 staff members, 23 gymnasts, and 21 household contacts, contracted

COVID-19 from an outbreak linked to an Oklahoma gymnastics facility during April 15

through May 3, 2021 (Dougherty et al., July 16, 2021). All 21 of the virus samples

sequenced were determined to be the Delta variant. The majority of the infected

individuals (85%) were unvaccinated. Infections were reported in 16 adults aged 20

years or older; two adults were hospitalized and one required intensive care.

The state of Hawaii defines clusters as three or more confirmed or probable cases

linked to a site or event within 14 days, with no outside exposure of cases to each other

(Hawaii State, August 19, 2021). The state reported a COVID-19 cluster in July

associated with a concert at a bar that affected 16 people, including employees, band

members, and concert attendees; infections also spread to 7 household members. Band

members had performed while sick. Four of the initial 16 people and none of the

household members who tested positive for COVID-19 were fully vaccinated. The
concert cluster was linked to clusters at another workplace and another concert. The

report lists additional clusters investigated in the two weeks prior to the report; those

clusters were observed in workplace locations such as correctional facilities, bars and

nightclubs, restaurants, construction/industrial sites, travel/lodging/tourism, schools, food

suppliers, and gyms.

Additional evidence that employees are at risk of exposure to SARS-CoV-2 in the

workplace is available from published, peer-reviewed studies that were conducted before

the Delta variant emerged. Those studies demonstrate that employees have been at risk of

infection, illness, and death throughout the COVID-19 pandemic. Because the Delta

variant is more transmissible and likely causes more severe disease than previous

variants, there is even greater potential for unvaccinated employees to become seriously

ill or die as a result of exposure to the Delta variant.

Contreras et al. (July, 2021) examined workplace outbreaks (excluding healthcare

settings, homelessness services, and emergency medical services) in Los Angeles county

from March 19 through September 30, 2020. Workplace outbreaks were defined as 5 or

more suspected or laboratory confirmed COVID-19 cases (prior to May 29) or 3 or more

laboratory confirmed cases (after May 29) occurring within 14 days. Nearly 60% of the

698 identified outbreaks occurred in three sectors – manufacturing (184, 26.4%), retail

trade (137, 19.6%), and transportation and warehousing (73, 10.5%). Also notable were

the 71 outbreaks in the accommodation and food services industry, which represented

10.2 % of the outbreaks. The study authors concluded that outbreaks were larger and

lasted longer at facilities with more onsite staff.

Outbreaks in Wisconsin from March 4 through November 16, 2020 were also

examined (Pray et al., January 29, 2021). Non-household outbreaks were defined as two

or more confirmed COVID-19 cases that occurred within 14 days in persons who

attended the same facility or event and did not share a household. During the period from
March 4 through November 16, 2020, the largest percentages of cases were associated

with outbreaks in long-term care facilities (26.8% of cases), correctional facilities (14.9%

of cases), and colleges or universities (15% of cases). Also notable were the substantial

number of cases associated with outbreaks in food production or manufacturing facilities

(including meat processing and warehousing; 14.5 % of cases) and schools and childcare

facilities (10.6% of cases).

Bui et al. (August 17, 2020) analyzed data from the Utah Department of Health’s

COVID-19 case surveillance system, which included data on workplace outbreaks.

Outbreaks were defined as two or more laboratory confirmed cases occurring within a 14

day period among coworkers in a common workplace (e.g., same facility). During the

time period between March 6 and June 5, 2020, 277 COVID-19 outbreaks were reported,

of which 210 (76%) occurred in workplaces. The 210 workplace outbreaks occurred in 15

of 20 industry sectors, and the industry sectors of manufacturing (43 outbreaks, 20%),

construction (32 outbreaks, 15%), and wholesale trade (29 outbreaks, 14%) together

represented nearly half of workplace outbreaks. Other sectors that represented more than

10% of total outbreaks were retail trade (28 outbreaks, 13%) and accommodation and

food services (25 outbreaks, 12%). Incidence rates of COVID-19 over the period of

March 6 through June 5, 2020 were 339/100,000 workers in manufacturing, 122/100,000

workers in construction, 377/100,000 workers in wholesale trade, 68/100,000 workers for

retail trade, and 78/100,000 workers for accommodation and food services. For COVID-

19 cases associated with workplace outbreaks in which hospitalization and severity status

were known (1,382 and 1,155, respectively), the number in all sectors who were admitted

to the hospital was 85 (6%) and the number with severe outcomes (intensive care unit

admission, mechanical ventilation, or death) was 40 (3%).

The impact of SARS-CoV-2 exposures on employee infection, illness, and death

has also been demonstrated in studies focusing on specific types of industries, such as
those where employees have frequent contact with each other and the public (e.g.,

grocery stores, bars, fitness facilities, schools, and law enforcement/corrections). For

example, a study by Lan et al. (September 26, 2020) demonstrates the risk of infection in

service industries. The cross-sectional study examined the risks of SARS-CoV-2

exposure and infection for employees in a Boston, Massachusetts-area retail grocery store

market. The study tested 104 grocery store employees, of whom 20% (21 employees)

were positive for COVID-19; 76% of confirmed cases did not have symptoms. After

adjusting for gender, smoking, age, and the prevalence of COVID-19 in the employees’

residential communities, employees who had direct customer exposure (e.g., cashiers,

sales associates, cart attendants) were 5.1 times more likely to have a positive test for

COVID-19 than employees without direct face-to-face customer exposure (e.g., stockers,

backroom, receiving and maintenance). The infection rate of 20% among all employees

was significantly higher than the rate in the surrounding community.

In February of 2021, an event at an Illinois bar that accommodates approximately

100 people resulted in a COVID-19 outbreak that affected 46 people, including 3 (10%)

staff members, 26 (90%) patrons, and 17 secondary cases (Sami et al., April 9, 2021).

People at the event included an asymptomatic person diagnosed with COVID-19 on the

previous day and 4 symptomatic people who were later diagnosed with COVID-19. The

outbreak resulted in a school closure and the hospitalization of a resident at a long-term

care facility.

In Minnesota, 47 COVID-19 outbreaks were detected at fitness facilities from

August through November of 2020 (Suhs et al., July 23, 2021). One outbreak at a fitness

facility during October through November of 2020 resulted in 23 COVID-19 cases

including 5 (22%) employees and 18 (78%) members. A genetic analysis of specimens

from 3 employees and 10 members identified 2 distinct genetic subclusters, indicating

two distinct chains of transmission among members and employees.

 School-related outbreaks were examined from December 1, 2020 through January

22, 2021 in eight public elementary schools of a Georgia school district (Gold et al.,

February 26, 2021). A COVID-19 case was determined to be school-related if (1)

symptom onset or a positive test was consistent with the incubation period of the virus

following contact with an index case or a school-associated case, (2) close contact

occurred with the index case or school-associated case while that person was infected,

and (3) no known contact occurred with an infected community or household contact in

the two weeks prior to a positive test for COVID-19. The investigators identified nine

clusters of three or more epidemiologically linked COVID-19 cases that involved 13

educators and 32 students in six of the eight elementary schools. Approximately half of

the school-associated cases involved two clusters that began with probable transmission

between educators, followed by educator to student transmission. Eighteen of 69

household members tested received positive results.

A number of studies demonstrate the impact of COVID-19 in law enforcement

and related fields such as corrections. For example, a study examining COVID-19

antibodies in employees from public service agencies in the New York City area from

May through July of 2020, found that 22.5% of participants had COVID-19 antibodies

(Sami et al., March, 2021). The percentage of correctional officers found to have

COVID-19 antibodies (39.2 %) was the highest observed among all the occupations. The

percentages of police dispatchers, traffic officers, security guards, and dispatchers found

to have COVID-19 antibodies (29.8 to 37.3%) were among the highest levels observed in

all the occupations. The study authors noted that those jobs involve frequent or close

contact with the public or are done in places where employees work in close proximity to

their coworkers.

Wallace et al. (May 15, 2020) evaluated data on COVID-19 cases and deaths

among correctional facility employees and inmates from January 21 to April 21, 2020.
Data were reported to CDC by 37 (69%) of 54 state and territorial health department

jurisdictions. Of these 37 jurisdictions, 32 (86%) reported at least one COVID-19 case

from a correctional facility. Of the 420 facilities with a case, 221 (53%) reported cases

only among staff members. In total, 4,893 COVID-19 cases among incarcerated or

detained persons and 2,778 cases among staff members were reported (total tested not

provided). Among staff member cases, 79 hospitalizations (3%) and 15 deaths (1%) were

reported. The study authors noted that “correctional and detention facilities face

challenges in controlling the spread of infectious diseases because of crowded, shared

environments and potential introductions by staff members and new intakes.”

Ward et al. (June 2021) analyzed COVID-19 prevalence among prisoners and

staff in 45 states from March 31, 2020 through November 4, 2020. During that time

period, COVID-19 cases in staff were 3 to 5 times higher compared to the U.S.

population. Average daily increases in cases were 42 per 100,000 prison employees, 61

per 100,000 prisoners, and 13 per 100,000 U.S. residents. On November 4, 2020,

COVID-19 prevalence for prison staff was 9,316 cases per 100,000 employees, which

was 3.2 times greater than prevalence in the U.S. population (2,900 cases per 100,000).

Kirbiyik et al. (November 6, 2020) analyzed movement through a network-

informed approach to identify likely high points of transmission within the Cook County

Jail in Chicago, IL. At that facility, over 900 COVID-19 cases were reported across 10

housing divisions in 13 buildings from March 1–April 30, 2020. Staff members were

required to report symptoms of COVID-19 (probable cases) or receipt of a positive

test result (confirmed cases). A total of 2,041 staff members (77% of staff) were included

in the network analysis because information was available about their shift and division

assignments, and 198 (9.7%) of those staff members had COVID-19 during the two-

month study period. Connections between staff members who had COVID-19 were

higher than expected, suggesting likely transmission among staff members. Fewer
connections than expected were observed among detained persons with SARS-CoV-2

infections, suggesting the effectiveness of medical isolation at reducing transmission.

The Officer Down Memorial Page, which tracks police officer fatalities

determined to be occupationally related, reported that the majority of officer deaths for

2021 (157 of 269) were related to COVID-19 (ODMP, September 14, 2021). For the 269

officers who died, causes of death were not reported for each month, but the highest

numbers of monthly deaths, 52 in January and 65 in August (compared to 16 to 34

deaths on other reported months), were consistent with the winter surge of COVID-19

and, more recently, the surge caused by the Delta variant.

The risk of COVID-19 has also been examined in industries where employees

have little contact with the public, such as construction, and food processing, and where

most exposure to SARS-CoV-2 likely comes from other workers. Pasco et al. (October

29, 2020) examined the association between construction work during the COVID-19

pandemic and community transmission and construction worker hospitalization rates in

Austin, Texas from March 13 to August 20, 2020. A “Stay Home-Work Safe” order

enacted on March 24, 2020, limited construction to only critical infrastructure and

excluded commercial and residential work. One week later, the Texas governor lifted the

restriction for essential workers and allowed all types of construction work to resume,

while keeping the order in place for other workers. The authors found that resuming

construction during the shelter-in-place order led to an increase in community

transmission, an increase in hospitalizations among community members, and an increase

in hospitalizations of construction workers. By mid-July, Austin Public Health identified

at least 42 clusters (not defined) of COVID-19 cases in the construction industry; 515

individuals were hospitalized for COVID-19 illnesses acquired as part of these clusters,

and 77 of those reported working in construction. The study found that construction

workers had a nearly 5-fold increased risk of hospitalization in central Texas compared
with workers in other occupations. The authors’ model predicted that allowing

unrestricted construction work would be associated with an increase in COVID-19

hospitalization rates from 0.38 per 1,000 residents to 1.5 per 1,000 residents overall, and

from 0.22 per 1,000 construction workers to 9.3 per 1,000 construction workers for the

construction industry specifically. The authors concluded that stringent workplace safety

measures could significantly mitigate risks related to COVID-19 in the industry.

The meat packing and processing industries and related agricultural and food

processing sectors have also been impacted by COVID-19. Waltenburg et al. (January,

2021) reported COVID-19 cases in employees from meat and poultry processing

facilities in 31 states from March 1 through May 31, 2020. As reported in Table 2 of that

report, 28,364 employees in those facilities were confirmed to have COVID-19 by

laboratory testing and 132 died. Among the 20 states that reported total numbers of

employees, 11.4% of the workers were diagnosed with COVID-19 (with a range of 3.1 to

27.7% of workers in individual states). For states that reported at least one COVID-19-

related death, the percentages of employees who died in each state ranged from 0.1 to

2.4% of those with COVID-19. The authors found a high burden of disease in persons

employed at these facilities who were racial or ethnic minorities. Higher incidence in

these populations might be due to the likelihood of these employees working in areas in

the plant where transmission risk is higher. Steinberg et al. (August 7, 2020) reported that

attack rates (i.e., the number of individuals who are infected in comparison to the total

number at risk) among production employees in the Cut (30.2%), Conversion (30.1%),

and Harvest (29.4%) departments of a meat processing plant (where spacing between

employees is less than 6 feet) were double that of salaried employees (14.8%) whose

workstations had been modified to increase physical distancing from others.

Waltenburg et al. (January, 2021) also evaluated COVID-19 incidence in food

manufacturing and agricultural settings (e.g., manufacturing or farming involving fruits,

vegetables, dairy, baked goods, eggs, prepared foods), as reported in 30 states from

March through May 2020. In food manufacturing and farming of fruits, vegetables, dairy,

and other items, 742 workplaces were affected, including 8,978 infections and 55

fatalities. For states that reported total numbers of employees, the proportion of

employees who developed COVID-19 in each state ranged from 2.0 to 43.5%. For states

that reported at least one death, the percentages of deaths among cases ranged from 0.1 to

3.8%.

Porter et al. (April 30, 2021) reported that 13 COVID-19 outbreaks occurred at

Alaska seafood processing facilities and vessels (both of which were described as high

density workplaces) during the Summer and early Fall of 2020. The 13 outbreaks

involved 539 COVID-19 cases, with 2–168 cases per outbreak. Attack rates in facilities

and offshore vessels ranged from less than 5% to 75%. Outbreaks were also reported in

entry quarantine groups. Because of these outbreaks, it was determined that vaccination

of these essential workers is important and requirements for COVID-19 prevention were

updated to include smaller quarantine groups, serial testing, and testing before transfers

from one facility or vessel to another.

Finally, two published studies analyzed death records to determine how mortality

rates among individuals in various types of workplaces had changed during the

pandemic. Chen et al. (June 4, 2021) analyzed records of deaths occurring on or after

January 1, 2016 in California and found that mortality rates in working aged adults (18 –

65 years) increased 22% during the COVID-19 pandemic period of March through

November 2020 compared to pre-pandemic periods. Relative to pre-pandemic periods,

the groups of employees experiencing the highest, statistically significant increases in

relative excess mortality were those in food/agriculture (39% increase),

transportation/logistics (31% increase), facilities (23% increase), and manufacturing

(24% increase). Other groups that also experienced excess, statistically significant
mortality compared to pre-pandemic periods were health or emergency workers (17%

increase), retail workers (21% increase), and government and community workers (17%

increase). The study authors concluded that certain occupational sectors were impacted

disproportionally by mortality during the pandemic and that essential work conducted in-

person is a likely avenue of infection transmission.

Hawkins et al. (January 10, 2021) examined death certificates of individuals who

died in Massachusetts between March 1 and July 31, 2020. An age-adjusted mortality

rate of 16.4 per 100,000 employees was determined from 555 death certificates that had

useable occupation information. Employees in 11 occupational groups had particularly

high mortality rates: healthcare support; transportation and material moving; food

preparation and serving; building and grounds cleaning and maintenance; production,

construction and extraction; installation/maintenance/repair; protective services; personal

care services; arts/design/entertainment; sports/media; and community and social

services. The study authors noted that occupational groups expected to have frequent

contact with sick people, close contact with the public, and jobs that are not practical to

do from home had particularly elevated mortality rates.

b. Healthcare workers.

As explained in the Healthcare ETS, COVID-19 presents a grave danger to

workers in all U.S. healthcare settings where people with COVID-19 are reasonably

expected to be present (86 FR 32381). Healthcare settings covered by the Healthcare ETS

primarily include settings where people with suspected or confirmed COVID-19 are

treated, exacerbating the risk present in most workplaces. To control the higher level of

risk in those settings, OSHA determined that a suite of workplace controls was necessary

to protect all employees, whether they are vaccinated or unvaccinated. As explained

further below, OSHA now finds that unvaccinated healthcare workers in healthcare

settings not covered by the Healthcare ETS are also at grave danger from exposure to
SARS-CoV-2, just like unvaccinated workers in other industries. Data continue to be

collected and reported for healthcare workers, and a small number of peer-reviewed

studies demonstrate the potential impact of the Delta variant on healthcare workers.

CDC continues to provide updates for COVID-19 cases and deaths among

healthcare personnel. However, information on healthcare personnel status continues to

be reported for only a fraction (18.91%) of total reported cases, and death status was

reported for only 82.16% of healthcare personnel cases as of October 18, 2021 (CDC,

October 18, 2021 – Healthcare Personnel). Given incomplete reporting, the data from this

source represent only a fraction of actual healthcare cases and deaths. Nevertheless, CDC

reported 666,707 healthcare personnel cases among the 6,754,306 reported cases that

included information on healthcare personnel status (9.9%) and 2,229 fatalities among

the 547,769 cases that included death status (0.4%) for healthcare employees as of

October 18, 2021. This is a 26% increase in the number of cases and a 27% increase in

the number of deaths since the May 24, 2021 data reported in the ETS (CDC, October 18,

2021 – Healthcare Personnel). The Delta variant is likely responsible for the majority of

those deaths. No healthcare worker deaths were reported by CDC during the weeks of

May 30 through June 13, 2021; however, as the Delta variant’s prevalence rose after June

20, healthcare worker deaths began increasing; they peaked during the period of August

15 through September 12, 2021, when 34 to 36 healthcare worker deaths were reported

per week (CDC October 18, 2021 – Healthcare Personnel, Deaths by Week). Independent

reporting by Kaiser Health News and The Guardian reported more than 3,600 fatalities in

health care workers as of April 2021 (Spencer and Jewett, April 8, 2021). That number is

expected to be higher at this time since the earlier figure did not include the most recent 5

months of the pandemic, which includes the period of Delta variant predominance.

Published studies also demonstrate that healthcare workers, especially those who

are unvaccinated, remain at risk of being infected with SARS-CoV-2 (see Section
III.A.IV. Vaccines Effectively Reduce Severe Health Outcomes from and Transmission of

SARS-CoV-2). Routine testing of health care personnel, first responders, and other

frontline workers in eight U.S. locations in six states from December 14, 2020 through

August 14, 2021 revealed 194 infections in 4,136 unvaccinated participants (89.7%

symptomatic) and 34 infections in 2,976 fully vaccinated participants (80.6%

symptomatic) (Fowlkes et al., August 27, 2021). During time periods when the Delta

variant represented more than 50% of viruses sequenced, 19 infections were detected in

488 unvaccinated participants (94.7% symptomatic) and 24 infections were detected in

2,352 vaccinated participants (75% symptomatic).

Monthly COVID-19 cases in healthcare workers were reported during the period

from March 1 to July 31, 2021 at the University of California San Diego (UCSD) health

system, which is a healthcare provider that includes primary care services such as family

medicine and pediatrics (Keehner et al., September 1, 2021; UCSD, 2021). During that

time period, a total of 227 health care workers tested positive for COVID-19. One

hundred and nine of 130 fully vaccinated workers who tested positive (83.8%) were

symptomatic and 80 of 90 unvaccinated workers (88.9%) were symptomatic; one

unvaccinated person was hospitalized for COVID-19 symptoms. By July of 2021, after

the end of California’s mask mandate on June 15 and after the Delta variant became

dominant, the number of cases detected dramatically increased; the Delta variant

accounted for more than 95% of SARS-CoV-2 viruses sequenced by the end of that

month. During July of 2021, symptomatic infections were detected in 94 of 16,492 fully

vaccinated workers and 31 of 1,895 unvaccinated workers. Attack rates in July of 2021

were 5.7 per 1,000 fully vaccinated workers and 16.4 per 1,000 unvaccinated workers.

In Finland, a Delta variant infection from a hospitalized patient spread throughout

the hospital and to three primary care facilities, infecting 103 individuals, including 45

healthcare workers (Hetemäki et al., July 29, 2021). Twenty-six of the healthcare workers
were infected at the hospital and 19 were infected at primary care facilities. The affected

health care workers included 28 with direct patient contact (11 who were not fully

vaccinated), 8 unvaccinated healthcare worker students, and 9 other staff, including

hospital cleaners and secretaries (of whom 6 were not fully vaccinated). According to

study authors, “There was high vaccine coverage among permanent staff in the central

hospital, but lower for HCW in primary healthcare facilities. . .” Study authors estimated

that vaccine effectiveness against the Delta variant in healthcare workers was

approximately 88-91%, suggesting how much more extensive the outbreak could have

been if a high percentage of healthcare workers were not fully vaccinated.

In the UK, a Delta variant infection in a healthcare worker resulted in an outbreak

in a care home that affected 16 of 21 residents and 8 of 21 staff (Williams et al., July 8,

2021). One staff member was hospitalized. Attack rates were 35.7% in staff who were

partially vaccinated (i.e., received their second dose of vaccine on the day that the index

case was diagnosed with COVID-19 or had only received one vaccine dose) and 40% in

staff who were not vaccinated.

Recent news stories demonstrate that outbreaks affecting staff members are still

occurring in U.S. healthcare facilities. An outbreak that began in August, 2021 at a

Washington State nursing center resulted in infections in 22 staff members and 52

residents. In an unrelated outbreak, a nursing facility in Hawaii reported infections in 24

employees and 54 patients (Wingate, September 24, 2021). Vaccination rates were

reported at 64.5% of residents and 37.1% of staff in the Washington State facility and

91% of staff and more than 80% of patients at the Hawaii facility.

COVID-19 cases were also observed in staff at ambulatory care settings prior to

emergence of the Delta variant. Over an 11-week period beginning on March 20, 2020,

254 tests for SARS-CoV-2 were performed on employees who had potential exposures at

an outpatient urology center in New York State (Kapoor et al., 2020). Positive test rates
in employees correlated with rates in New York State, declining over time, from 26.1%

in the early stage to 7.3% in the late stage of the study. According to study authors, the

positive test results coincided with the implementation of infection control procedures

(e.g., symptom screening, masking, distancing, and hygiene). Positivity rates were similar

in administrative and clinical staff and the study authors concluded that “administrative

staff in an outpatient setting were equally—if not more—vulnerable to SARS-CoV-2

transmission when compared with clinical staff who were more directly exposed to

patients.” The study authors speculated that possible reasons for the findings were that

clinical staff were more familiar with PPE and that administrative staff, especially in

check-in and check-out points, tend to work close to each other.

c. Conclusion for Employee Impact.

The evidence described above provides examples of the impact that exposures

from SARS-CoV-2, including those involving the Delta variant, have had on employees

in general industry, agriculture, construction, maritime, and healthcare settings. It

demonstrates that SARS-CoV-2 has spread to employees in these industries and, in many

cases, infection was linked to exposure to infected persons at the worksite (WSDH,

September 8, 2021; OHA, September 1, 2021; TDH, September 8, 2021; NCDHHS,

August 30, 2021; Hawaii State, August 19, 2021; Pray et al., January 29, 2021; Sami et

al., April 9, 2021; Suhs et al., July 23, 2021; Gold et al., February 26, 2021; Porter et al.,

April 30, 2021; Hetemäki et al., July 29, 2021; Williams et al., July 8, 2021). The

documentation of so many workplace clusters suggests that exposures to SARS-CoV-2

occur regularly in workplaces where employees come into contact with others. This

prevalence of clusters, combined with some evidence that many infections occurred

within the 14-day incubation period for SARS-CoV-2 and that exposures to infected

persons outside the workplace were frequently ruled out, supports the proposition that

exposures to and transmission of SARS-CoV-2 occur frequently at work. Multiple studies

demonstrate high rates of COVID infections, illnesses, and fatalities in the wide range of

occupations that require frequent or prolonged close contact with other people, indoor

work, and work in crowded and/or poorly ventilated areas The large numbers of infected

employees suggest that SARS-CoV-2 is likely to be present in a wide variety of

workplaces, placing unvaccinated workers at risk of serious and potentially fatal health

effects.

IV. Vaccines Effectively Reduce Severe Health Outcomes from and Transmission of

SARS-CoV-2.

During the course of the SARS-CoV-2 pandemic, different variants have emerged

with different characteristics that better enable transmission and potentially cause more

severe outcomes. However, vaccines remain very effective at reducing the occurrence of

COVID-19-related severe illness, disability and death.12 The Delta variant is more

transmissible than previous variants, might cause more severe illness than previous

variants in unvaccinated people, and has led to hospitalization of individuals in numbers

similar to those of the November 2020 to February 2021 surge. These changes in

characteristics have provided a clearer realization of the continuing capacity for SARS-

CoV-2 to present a grave danger to workers. However, it is well evident that even given

these changed characteristics of Delta, serious disease and death continue to occur

overwhelmingly in unvaccinated individuals while the vaccinated are afforded great

protection.13

a. Impact of Vaccination on Severe Health Outcomes.

12A discussion of vaccination rates, as well as OSHA’s rationale for why vaccination is a critical means of
protecting workers from the grave danger described in this section, can be found in Need for the ETS
(Section III.B. of this preamble).
13While mild cases of COVID-19 are included in the grave danger presented by COVID-19, as stated in
the Healthcare ETS (see 86 FR 32382), OSHA is focusing on the most severe health effects, i.e., cases
requiring hospitalization and cases resulting in death, in this new rulemaking effort in order to prevent the
gravest of consequences to workers.
 There are currently three vaccines that are approved or authorized for the

prevention of COVID-19 in the U.S.: the Pfizer-BioNTech COVID-19 vaccine (FDA

approved for ages 16 and above; authorized for ages 12 and above), the FDA-authorized

Moderna COVID-19 vaccine (authorized for ages 18 and above), and the FDA-

authorized Janssen COVID-19 vaccine (also known as the Johnson & Johnson vaccine;

authorized for ages 18 and above.) Pfizer-BioNTech and Moderna are mRNA vaccines

that require two primary series doses administered three weeks and one month apart,

respectively. Janssen is a viral vector vaccine administered as a single primary

vaccination dose (CDC, September 15, 2021). The vaccines were shown to greatly

exceed minimum efficacy thresholds in preventing COVID-19 in clinical trial

participants (FDA, December 11, 2020; FDA, December 18, 2020; FDA, February 26,

2021). Data from clinical trials for all three vaccines and observational studies for the two

mRNA vaccines clearly establish that fully vaccinated persons have a greatly reduced

risk of SARS-CoV-2 infection compared to unvaccinated individuals. This includes

severe infections requiring hospitalization and those resulting in death. For more

information about the effectiveness of vaccines as of late Spring 2021, see 86 FR 32397,

which OSHA hereby includes in the record for this ETS.14

Vaccines remain highly effective against hospitalization and death. A study

evaluating vaccine effectiveness at preventing hospitalization among those with SARS-

CoV-2 infections in New York found that effectiveness did not change from May 3 to

July 25, 2021 as the Alpha variant gave way to the Delta variant (91.9-96.2% range;

Rosenberg et al., August 27, 2021). Grannis et al. used data from 187 hospitals in nine

states from June to August 2021 to evaluate the efficacy of vaccines against

hospitalization when Delta had emerged as the predominant variant causing SARS-CoV-

14This adoption includes the citations in the referenced section of the Healthcare ETS, which are also
included in the docket for this ETS.
2 infections (September 17, 2021). This study found that vaccines were 89% effective at

preventing hospitalization in individuals aged 18 to 74. Similarly, vaccines were also

found to be 89% effective in preventing hospitalization in a study collecting data from

five Veteran Affairs Medical Centers from July 1 to August 6, 2021, a time when most

transmission was attributed to the Delta variant (Bajema et al., September 10, 2021).

Two other studies found that, although the level of protection provided by

vaccination has decreased somewhat with the emergence of the Delta variant, vaccines

continue to provide high levels of protection against hospitalization. In a U.S. study,

researchers found that while the Moderna and Janssen vaccines mostly maintained their

effectiveness at preventing hospitalization (going from 93% to 92% after more than 120

days post-vaccination and 71% to 68% after more than 28 days post-vaccination,

respectively) from March to August 2021, the effectiveness of the Pfizer-BioNTech

vaccine at preventing those severe outcomes decreased from 91% to 77% after more than

120 days post-vaccination (Self et al., September 17, 2021). An Israeli study on

infections documented between July 11 and July 31, 2021 found a significant decrease in

vaccine efficacy for the Pfizer-BioNTech vaccine against severe outcomes in relation to

when an individual was vaccinated, but the absolute difference was much less than what

was observed in the U.S. study (e.g., 98% effective for 40-59 year olds vaccinated in

March versus 94% effective for those in the same age group who were vaccinated in

January) (Goldberg et al., August 30, 2021).

Vaccines also remain extremely effective at preventing death. A UK study

evaluated the effectiveness of the Pfizer-BioNTech vaccine against death and found it to

be 96.3% effective against the Alpha strain and 95.2% protective against the Delta strain

(Andrews et al., September 21, 2021). Two Israeli studies, Haas et al. and Saciuk et al.,

performed during time periods where Alpha was predominant, found the Pfizer-

BioNTech vaccine to be 96.7% and 91.1% effective, respectively, against death (Haas et
al., May 15, 2021; Saciuk et al., June 25, 2021). A California study found that the

Moderna vaccine was 97.9% effective against death (Bruxvoort et al., September 2,

2021). A study on patients served by the Veterans Health Administration found that

Pfizer-BioNTech and Moderna vaccines provided 99% effectiveness against death

(Young-Xu et al., July 14, 2021).

The risks of hospitalization and death appear to have increased for unvaccinated

individuals since the Delta variant became a common source of infections. A study of

Los Angeles County SARS-CoV-2 infections found that vaccinations reduced

hospitalization risk by a factor of 10 on May 1, 2021, when the Alpha variant was

dominant, but that the risk of hospitalization was even more greatly reduced (by a factor

of 29.2) on July 25, 2021, when the Delta variant was dominant (Griffin et al., August 27,

2021). This difference suggests both that vaccines continue to provide a high level of

protection against disease that results in hospitalization and that risk has increased for

those who are unvaccinated. Similar increased risk for unvaccinated individuals was

reported in a study that evaluated hospitalization and death data from 13 US jurisdictions

between June 20 and July 17, 2021, a period when the Delta variant gained prominence

(Scobie et al., September 17, 2021). For unvaccinated 18 to 49 year olds, the risk of

hospitalization was 15.2 times greater, and the risk of death was 17.2 times greater, than

the risks for vaccinated people in the same age range. For unvaccinated 50 to 64 year

olds, the risk of hospitalization was 10.9 times greater, and the risk of death was 17.9

times greater, than for those who are vaccinated. These studies illustrate that vaccination

is an extremely effective control measure to minimize severe outcomes resulting from

Delta variant infections.

b. Impact of Vaccination on Infection and Transmission.

Vaccines continue to provide robust protection for vaccinated individuals against

SARS-CoV-2 infections, even though several studies indicate that vaccine efficacy
against infection may have decreased somewhat with the emergence of the Delta variant

(Fowlkes et al., August 27, 2021; Rosenberg et al., August 27, 2021; Nanduri et al.,

August 27, 2021; Seppala et al., September 2, 2021; Bernal et al., August 12, 2021). For

example, vaccination was observed to reduce the risk of infection by a factor of 8.4 on

May 1, 2021, when the Alpha variant was predominant in Los Angeles county (Griffin et

al., August 27, 2021). However, the level of protection had fallen to a factor of 4.9 by

July 25, 2021, when Delta made up 88% of infections in the county. The findings from

this study indicate that while vaccines maintain robust protection against severe

outcomes, protection against infection has fallen with the increased circulation of the

Delta variant. A broader study using data from 13 U.S. jurisdictions had similar findings,

observing that the protection vaccines afforded against infection decreased from a factor

of 11.1 (i.e., vaccinated people were 11.1 times less likely than unvaccinated people to

become infected) between April 4 and June 19, 2021, to a factor of 4.6 between June 20

and July 17, 2021 (Scobie et al., September 17, 2021). An additional study noted,

however, that the decrease in vaccine protectiveness against symptomatic infection from

the Delta variant could be due to the waning of immunity specifically in older

populations. Andrews et al. (September 21, 2021) found that while the Pfizer-BioNTech

vaccine effectiveness decreased from 94.1% to 67.4% in those 65 years old and older,

vaccine effectiveness for those 40 to 64 years old only decreased from 92.9% to 80.6%.

While infections themselves do not normally result in serious illness for those

who are vaccinated, evidence shows that vaccinated individuals who become infected

with the Delta variant can transmit the disease more easily to others than with previous

variants. This development poses a great concern for the unvaccinated, who generally do

not have the protections against severe outcomes that vaccination affords. Before Delta,

vaccinated individuals were shown to have lower estimated viral loads when infected

than those who were unvaccinated, which suggested that infected vaccinated individuals
were likely not a major concern for transmission (Levine-Tiefenbrun et al., March 29,

2021). Transmission studies prior to the emergence of Delta appear to bear this out. A

Scottish study performed during a time period when the Alpha variant was predominant

in the region, showed that a fully vaccinated individual was 3.2 times less likely than an

unvaccinated individual to transmit the virus to unvaccinated family members (Shah et

al., September 10, 2021; supplementary appendix). A population-based study from the

Netherlands found that vaccination decreased secondary transmission to household

members from 31% to 11% (de Gier et al., August 5, 2021). Additionally, a study from

the UK found that household transmission decreased by as much as 50% when the

infected individual was vaccinated (Harris et al., June 23, 2021).

More recent research suggests that the Delta variant may have reduced the level

of protection vaccination affords against transmission of the virus to others, but still

significantly reduces transmission risk in comparison to infected unvaccinated

individuals. A UK study found that fully vaccinated individuals infected by the Delta

variant are able to transmit the virus to both vaccinated and, to a greater degree,

unvaccinated persons (Singanayagam et al., September 6, 2021). Still, the rate at which

transmission to unvaccinated individuals occurred was nearly double the rate of

transmission to vaccinated individuals (35.7% compared to 19.7%). Similarly, Eyre et al.,

(September 29, 2021) found that during the predominance of Alpha, full vaccination with

the Pfizer-BioNTech vaccines resulted in a significant reduction in transmission to others

(an adjusted Odds Ratio (aOR) of 0.18, meaning that being unvaccinated increased the

odds of transmission by over five times). With the rise of the Delta variant, that reduction

in transmission to others was less than with the Alpha variant, but still significantly more

than for unvaccinated individuals (aOR of 0.35, meaning that being unvaccinated

increased the odds of transmission by almost three times).

 The greater ability for vaccinated individuals to transmit the Delta variant of

SARS-CoV-2 to others (compared to previous variants) appears to be linked to the

generation of similar viral loads (as estimated by Ct threshold) in the vaccinated

compared to the unvaccinated (Ct threshold is the number of RT-PCR cycles that need to

be run in order to amplify the RNA enough to be detected -- fewer cycles means a greater

initial amount of virus was collected) (Singanayagam et al., September 6, 2021). This

observation has been made in several studies. A study from Israel observed that viral

loads among those infected with the Delta variant were only decreased in people who had

been vaccinated recently (within the past two months) or in those who had recently

received a booster dose (Levine-Tiefenbrun et al., September 1, 2021). In a study of

SARS-CoV-2 infections in Los Angeles County, performed when the Delta variant was

predominant, vaccination status did not appear to affect the estimated viral loads,

suggesting that infected individuals who are vaccinated may be just as likely to transmit

the virus (Griffin et al., August 27, 2021). Additionally, estimated viral loads did not

appear to be significantly different with respect to vaccination status in a Wisconsin study

(Riemersma et al., July 31, 2021). Regardless of viral loads in vaccinated and

unvaccinated individuals, the fact remains clear that unvaccinated people pose a higher

risk of transmission to others than vaccinated people, simply because they are much more

likely to get COVID-19 in the first place.

These studies, however, appear to overstate increases in transmission risk from

vaccinated individuals related to the Delta variant. From May to July 2021, UK

researchers tested individuals at random to better characterize viral load estimates in

people with asymptomatic as well as symptomatic infections; they found that vaccination

was associated with a significantly lower estimated viral load (Elliott et al., September

10, 2021). This more comprehensive study (i.e., Elliott et al., September 10, 2021) may

have been able to better characterize the course of infection and to incorporate vaccinated
individuals whose viral loads were decreasing quickly. The findings in Elliott et al. are

consistent with studies observing that viral load may fall more quickly in vaccinated

individuals, resulting in a shorter infectious period and possibly fewer transmission

events (Chia et al., July 31, 2021; Eyre et al., September 29, 2021).

c. Conclusion for the Impact of Vaccines.

The studies discussed above indicate that vaccines continue to effectively protect

vaccinated individuals against SARS-CoV-2 infections, while the risk of infection,

hospitalization, and death increased among unvaccinated people as the Delta variant

became predominant in the U.S. The Delta variant is even more dangerous to

unvaccinated individuals than previous variants because of the higher transmission

potential from both unvaccinated and vaccinated people. Because unvaccinated

individuals are at much higher risk of severe health outcomes from infection with SARS-

CoV-2, and also pose a greater transmission risk to those around them, it is critical to

assure that as many people as possible are fully vaccinated in order to prevent

transmission at work.

V. Coverage of OSHA’s Grave Danger Finding.

Based on the information discussed above, OSHA finds that many unvaccinated

workers across the U.S. economy are facing a grave danger of severe health effects or

death from exposure to SARS-CoV-2. Fully vaccinated workers are not included in this

grave danger finding because, as described throughout this section, those who are fully

vaccinated are much better protected from the effects of SARS-CoV-2 and, in particular,

the most severe effects, than are those who are unvaccinated.15 Beyond that, OSHA’s

grave danger determination exempts several categories of workers based on

15The exclusion of vaccinated workers from this grave danger finding does not mean that vaccinated
workers face no risk from exposure to SARS-CoV-2. The best available evidence clearly shows that
vaccination provides great protection from infection and severe outcomes, but breakthrough infections do
occur and vaccinated individuals can still transmit the virus to others. In some cases, the level of risk to
vaccinated workers may even rise to the level of a significant risk, the standard OSHA must meet for
promulgation of a permanent standard under section 6(b)(5) of the OSH Act (29 U.S.C. 655(b)(5)).
characteristics of their work or workplace: 1) workers who do not report to a workplace

where other individuals are present or who telework from home; and 2) workers who

perform their work exclusively outdoors. The basis for these exemptions is explained

below. In this section, OSHA also addresses the basis for OSHA’s grave danger finding

for workers who are unvaccinated yet had a prior COVID-19 infection, and explains the

Agency’s more nuanced grave danger finding in the healthcare industry.

a. Employees Who Telework and Employees Who Do Not Report to a Workplace Where

Other People Are Present.

Employees who report to workplaces where no other people are present face no

grave danger from occupational exposure to COVID-19 because such exposure requires

the presence of other people. For those who work from their homes, or from workplaces

where no other people are present (such as a remote worksite), the chances of being

exposed to SARS-CoV-2 through a work activity are negligible. Therefore, OSHA is

exempting those workers who do not come into contact with others for work purposes

from its grave danger finding as well as the scope of the ETS (for more information, see

the Summary and Explanation for Scope and Application, Section VI.B. of this

preamble).

b. Employees Who Work Exclusively Outside.

Employees who work exclusively outside face a much lower risk of exposure to

SARS-CoV-2 at work, because their workplaces typically do not include any of the

characteristics that normally enable transmission to occur (e.g., indoors, lack of

ventilation, crowding). Bulfone et al. attributed the lower risk of transmission in outdoor

settings (i.e., open air or structures with one wall) to increased ventilation with fresh air

and a greater ability to maintain physical distancing (November 29, 2020). While the best

available evidence firmly establishes a grave danger in indoor settings, the CDC has

stated that the risk of outdoor transmission is “low” (CDC, September 1, 2021)
and OSHA is unable to establish a grave danger in outdoor settings from exposure during

normal work activities.

OSHA recognizes that outdoor transmission has been identified in a few specific

incidents (e.g., 2 of 7,324 cases, Qian et al., October 27, 2020). However, general reviews

of transmission studies that include large-scale and high-density outdoor gatherings

indicate that indoor transmission overwhelmingly is responsible for SARS-CoV-2

transmission. Additionally, the lack of evidence tied to specific case studies illustrating

outdoor transmission in comparison to the bevy of case studies on indoor transmission

makes it difficult to support a conclusion that outdoor transmission rises to the level of a

grave danger.

Bulfone et al. reviewed a collection of SARS-CoV-2 studies that evaluated

infections in outdoor and indoor settings (November 29, 2020), and found that

transmission is significantly less likely to occur in outdoor settings than in indoor

settings. The studies overall found that the risk of outdoor transmission was less than

10% of the risk of transmission in indoor settings, with three of the studies concluding

risk was 5% or less of the risk of transmission in indoor settings. While acknowledging

significant gaps in knowledge, the authors of a different study suggested that increases in

transmission related to large events such as the Sturgis motorcycle rally may be related to

lack of local efforts to prevent transmission indoors (e.g., requiring the wearing of masks,

closing indoor dining), rather than the outdoor setting for the rally (Dave et al., December

2, 2020). In contrast, transmission rates did not increase as expected following the

Summer 2020 protests on racial injustice. This outcome was attributed, in part, to

participants having been less likely to enter indoor commercial establishments.

Weed and Foad (September 10, 2020) found that transmission of SARS-CoV-2

related to large scale outdoor gatherings could be largely attributed to individual

behaviors related to that event, such as communal travel and indoor congregation at other
facilities (e.g., restaurants, shared accommodations), rather than to the time spent

outdoors at those gatherings. Similarly, a Public Health England evaluation of the

literature on SARS-CoV-2 and surrogate respiratory viruses (December 18, 2020) also

concluded that when transmission does occur at outdoor events, outdoor activities were

mixed with indoor setting use. Public Health England concluded that the vast majority of

transmission happens in indoor settings, with very little evidence for outdoor

transmission.

A systemic review of SARS-CoV-2 clusters identified 201 events through May

26, 2020 (Leclerc et al., April 28, 2021), only 4 of which occurred at predominantly

outdoor settings. For those 4 clusters, the authors noted that they were not able

to evaluate specific transmission events and attributed it to local health agencies being

overwhelmed by the pandemic. OSHA notes that the designations of settings in this study

are somewhat generic, as outdoor construction sites will often have indoor locations, such

as mobile offices, or locations with reduced airflow, such as areas with a roof or ceiling

and two or more walls. Regardless, this study illustrates the comparable abundance of

evidence available to evaluate SARS-CoV-2 transmission in indoor settings versus

outdoor settings.

Cevik et al. (August 1, 2021) reviewed studies on the transmission dynamics of

SARS-CoV-2 infections from large scale, contact-tracing studies. The authors

recommended that, based on the evidence that outdoor transmission dynamics resulted in

significantly fewer infections than in indoor settings, public health entities should greatly

encourage use of outdoor settings. The researchers highlighted a study by Nishiura et al.

(April 16, 2020), who evaluated 110 cases in Japan at the beginning of the pandemic and

found that outdoor settings reduced transmission risk by 18.7 times and reduced

the risk of super-spreader events by 32.5 times.

 Agricultural workplace settings have experienced significant SARS-CoV-2

infections. However, transmission in these settings is difficult to characterize because

many jobs in this sector include both outdoor and indoor activities. Miller et al. (April 30,

2021) evaluated an outbreak among farmworkers in Washington State. The researchers

found that 28% of workers with predominantly indoor tasks where they were unable

to maintain physical distance were infected, compared to 6% of workers who performed

predominantly outdoors tasks in the orchards. Conversely, a study on farmworkers in

Monterey County, California found a significant correlation between evidence of

infection and individuals who worked in the fields as opposed to indoor work (Mora et

al., September 15, 2021). The paper noted that infections were predominant in individuals

who lived in crowded conditions, commuted together to the fields, and spoke at home in

indigenous languages, which is important as written health messages are often not

available in all worker languages. These papers cannot identify where or when infections

occurred in order to discern causation. The associations observed may indicate that

SARS-CoV-2 infections may be more related to aspects related to indoor exposures

outside of the work activities (e.g., crowded living conditions) or potentially overlooked

indoor aspects connected to outdoor work (e.g., shared commuting).

Several studies discussed below in more detail have evaluated outdoors on-field

transmission from infected participants during football, soccer, and rugby matches. These

events include repeated close physical contact between players, without PPE or physical

distancing, over the course of fairly long events, with increased exertion leading to

greater respiratory effort and production of respiratory droplets. These events also include

opposing cohorts who only interact during on-field activities. Therefore, these studies

provide some evidence for the low likelihood of outdoor transmission in other workplace

activities greatly impacted by the pandemic, such as in construction.

 Mack et al. (January 29, 2021) detailed the National Football League’s complex

program to assess and prevent transmission, which included devices that recorded

distance and duration of interactions with others, for the purpose of improving

identification of individuals with high-risk exposures. Although 329 positive cases were

identified among roughly 11,400 players and staff, there were no reported cases of on-

field transmission by infected players. The results led the NFL to focus more on reducing

transmission in indoor settings, including transportation.

Egger et al. (March 18, 2021) reviewed three soccer matches involving 18 players

who had SARS-CoV-2; one match involved a team where 44% of the players were

infected. Video analysis was used to determine the type of contact between players, such

as contact to face or hand slaps. None of the existing cases were associated with on-field

play and no secondary transmission from on-the-field contacts was observed. Jones et al.

(February 11, 2021), evaluated four rugby Super League matches involving eight players

who were found to be infected with SARS-CoV-2. Using video footage and global

positioning data, the researchers were able to identify 28 players as high-risk contacts

with the infected players. These high-risk players together had as many as 32 tackles and

were within two meters of infected players as often as 121 times during the four matches.

Of the 28 players noted as high-risk contacts, one became infected with SARS-CoV-2.

However, researchers determined that the transmission resulted from internal team

outbreaks and not from exposure on the field.

OSHA acknowledges that the risk of transmission of SARS-CoV-2 in outdoor

settings is not zero, and that there may be some low risk to workers

performing general tasks exclusively in outdoor settings. However, where studies have

been able to differentiate between indoor and outdoor exposures, they indicate that indoor

exposures are the much more significant drivers of SARS-CoV-2 infections. Therefore,

the best available evidence at this time does not provide OSHA with the information
needed to establish SARS-CoV-2 as a grave danger for general work activities in outdoor

settings (see Int’l Union, United Auto., Aerospace, & Agr. Implement Workers of Am.,

UAW, 590 F. Supp. at 755-56, describing a “grave danger” as a risk that is more than

“significant”). Therefore, OSHA has excluded employees who work exclusively outdoors

from the scope of this ETS (see the Summary and Explanation for Scope and Application,

Section VI.B. of this preamble).

c. Employees in Healthcare.

Because OSHA issued a separate grave danger determination several months ago

for some healthcare workers, some explanation of how its current finding applies to

healthcare workers is necessary. In June 2021, OSHA issued its Healthcare ETS (86 FR

32376) after determining that some healthcare workers faced a grave danger of infection

from SARS-CoV-2. This grave danger determination, along with the protections of the

Healthcare ETS, applied to healthcare and healthcare support workers in settings where

people with suspected or confirmed cases of COVID-19 are treated, and was based on the

increased potential for transmission of the virus in such settings (see 86 FR 32411-

32412). These workers are currently covered by the protections of the Healthcare ETS

(29 CFR 1910.502). OSHA does not have data to demonstrate that unvaccinated workers

in settings covered by the Healthcare ETS face a grave danger from SARS-CoV-2 when

the requirements of that standard are followed. However, if the Healthcare ETS were no

longer in effect, OSHA would consider the workers who were covered by it, and who

remain unvaccinated, to be at grave danger for the reasons described in this ETS.

OSHA’s new finding of grave danger applies to healthcare and healthcare support

workers who are not covered by the Healthcare ETS, to the extent they remain

unvaccinated. In this ETS, as discussed in this section, OSHA has made a broader

determination of grave danger that applies to most unvaccinated workers, regardless of

industry. OSHA’s current finding of grave danger supporting this ETS does not depend
on whether a workplace is one where people with suspected or confirmed COVID-19 are

expected to be present. Therefore, the finding of grave danger applies to unvaccinated

workers in healthcare settings that are not covered by 29 CFR 1910.502 to the same

extent it applies to unvaccinated workers in all other industry sectors.

d. Employees Who Were Previously Infected with SARS-CoV-2.

OSHA has carefully evaluated the effectiveness of previous SARS-CoV-2

infections in providing protection against reinfection. This section provides a detailed

description of the current scientific information in order to ascertain what the best

available scientific evidence on this topic indicates regarding the risk to individuals with

previous COVID-19 infections from exposure to SARS-CoV-2. While the agency

acknowledges that the science is evolving, OSHA finds that there is insufficient evidence

to allow the agency to consider infection-acquired immunity to allay the grave danger of

exposure to, and reinfection from, SARS-CoV-2.

To determine whether employees with infection-induced immunity from SARS-

CoV-2 (i.e., those who were infected with SARS-CoV-2 but have not been vaccinated)

face a grave danger, OSHA reviewed the scientific evidence on the protective effects of

vaccine-induced SARS-CoV-2 immunity versus infection-induced immunity. Individual

immunity to any infectious disease, including SARS-CoV-2, is achieved through a

complex response to exposure by the immune system. This response consists of disease-

specific antibody production guided and augmented by certain types of immune cells,

such as T and B cells, which work together to neutralize or destroy the disease-causing

agent. Immune responses to viruses like SARS-CoV-2 can be measured in several ways.

For instance, blood serum can be taken and exposed to specific proteins found on the

SARS-CoV-2 virus, in order to measure the presence of antibodies in the blood. Another

antibody test, the neutralization test, measures the ability of the antibodies present in a

serum to neutralize infectivity and prevent cells from being infected. T cell immunity can
be measured using techniques that target a specific biomolecule that is specific to SARS-

CoV-2.

A considerable number of individuals who were previously infected with SARS-

CoV-2 do not appear to have acquired effective immunity to the virus (Psichogiou et al.,

September 13, 2021; Wei et al., July 5, 2021; Cavanaugh et al., August 13, 2021). The

level of protection afforded by infection-induced immunity appears to depend on the

severity of individuals’ infections. In a study from Greece, immunogenicity was

compared between healthcare workers who were vaccinated with Pfizer-BioNTech and

unvaccinated patients who acquired a natural infection (Psichogiou et al., September 13,

2021). The researchers found that the immune response in unvaccinated individuals

correlated to the severity of their disease. Fully vaccinated healthcare workers had

immune responses (measured as antibody levels specific to SARS-CoV-2) that were 1.3

times greater than patients who had critical cases of COVID-19 cases, 2.5 times greater

than patients who had moderate to severe cases, and 10.5 times greater than patients who

had asymptomatic/mild illnesses. Similarly, another study found that 24.0% (1,742 of

7,256) of individuals who had a previous SARS-CoV-2 infection were seronegative (i.e.,

did not produce antibodies in response to the virus), suggesting that the previous infection

provided insufficient protection against future infection (Wei et al., July 5, 2021).

Individuals who were seronegative were typically older, had lower viral burdens when

infected, and were more likely to be asymptomatic. The authors posited that the

immunity of those who were seropositive (i.e., did produce antibodies in response to the

virus) would provide some measure of protection, but that these individuals would

benefit from a vaccination booster. This position appears to be validated by a study that

compared the reinfection rates of individuals in Kentucky based on their post-recovery

vaccination status (Cavanaugh et al., August 13, 2021). Unvaccinated individuals with

previous infection were found to be 2.3 times more likely to be reinfected than those who
were vaccinated after their prior infection. These studies demonstrate not only that those

with milder infections may not be protected against future infection, but that it is difficult

to tell, on an individual level, which individuals might have had prior infections that

conveyed protection equivalent to that provided by vaccination.

A number of other studies indicate that fully vaccinated individuals may be better

protected against future infection than those with previous infections. A study in

Massachusetts concluded that the immunity conveyed from a previous SARS-CoV-2

infection was effectively equivalent to the immunity of an uninfected individual who has

had only one dose of an mRNA vaccine (Naranbhai et al., October 13, 2021). The authors

found that fully vaccinated individuals have an immune response (i.e., antibodies and

neutralization) well above the levels observed in unvaccinated, previously-infected

individuals. German researchers found that individuals who were fully vaccinated with

Pfizer-BioNTech had a significantly greater immune response (as measured by antibody

levels) than unvaccinated individuals who had infections, concluding that vaccination

would be needed for those unvaccinated individuals to have similar protection against

infection (Herzberg et al., June 13, 2021). Similarly, a Dutch study observed that

vaccination greatly improved the immune response (as measured by antibodies and virus-

specific T cells) of individuals who had recovered from COVID-19 (Geers et al., May 25,

2021). Planas et al. (August 12, 2021) also noted that immune response (as measured by

neutralization) to the Alpha, Beta, and Delta (B.1.617.2) variants in unvaccinated,

previously-infected individuals was considerably less than the immune response in

individuals five weeks after their second Pfizer-BioNTech dose. When unvaccinated,

previously-infected individuals were vaccinated, their immune response (as measured by

neutralization) increased by more than an order of magnitude. Likewise, Wang et al. (July

15, 2021) found that the immune response (as measured by neutralization) of those with

previous SARS-CoV-2 infection increased by more than an order of magnitude against

Alpha (B.1.1.7), Beta (B.1.351), Iota (B.1.526), and Gamma (P.1) variants when they

were vaccinated. These studies show that infection-induced immunity may not equal the

protection afforded by vaccination and that vaccination greatly improves the immune

response of those who were previously infected.

The aforementioned studies indicate that immunity acquired through infection

appears to be less protective than vaccination. There are also a number of

epidemiological studies that provide some evidence that infection-acquired immunity has

the potential to provide a significant level of protection against reinfection. As OSHA

discusses in greater detail below, these studies suffer from methodological limitations

that render them inconclusive about the level of immunity conferred by infection, and

therefore OSHA is unable to establish that such immunity eliminates grave danger. This

determination is based in three parts.

First, the epidemiological literature OSHA reviewed generally suffers from

selection bias to a degree that it serves as an unreliable basis on which to reach a robust

conclusion on whether previous infection removes workers from grave danger. In

general, the studies described below do not account for people who had mild COVID-19

infections, leading to study findings regarding the level of protection afforded by prior

infection that are not generally applicable. Second, the tests employed in the studies are

being used in ways that they were not originally designed to be employed. These tests

are powerful tools, but there are limitations to their use in determining if a specific

individual is, in fact, protected from the grave danger of SARS-CoV-2. Particularly

problematic is the lack of established thresholds to determine full protection from

reinfection or even a standardized methodology to determine infection severity or

immune response. Thus, while these studies broadly establish some increase in

protectiveness against SARS-CoV-2 among the studied populations, they as yet are

unable to provide a reasonable degree of certainty on whether the degree of protection

afforded any particular individual from their prior infection is sufficient to eliminate the

grave danger from reinfection (see Milne, et al., October 21, 2021.) Third, while the

research methodology itself creates difficulties in the context of OSHA’s grave danger

inquiry, the implications of trying to apply investigative research methodology to clinical

practice are even more challenging. The need for the development of standardized

methods and criteria for establishing sufficient immunity preclude the application of the

studies’ findings to robust and reliable clinical practice. These three rationales for

OSHA’s finding are described in more detail below.

Several epidemiological studies used previous RT-PCR positive cases to define

previous infections (Hansen et al., March 27, 2021; Pilz et al., February 11, 2021; Vitale

et al., May 28, 2021; Pouwels et al., October 14, 2021; Braeye et al., September 15, 2021;

Hall et al., April 17, 2021). RT-PCR tests, particularly in the beginning of the pandemic,

were given high priority to discern who seeking medical care was, in fact, infected. For

instance, the progression of testing from medical needs to more of a community

perspective is illustrated in Denmark (Vrangbaek et al., April 29, 2021). Denmark,

considered one of the gold standard countries for its comprehensive testing program,

missed five infections for every one it identified in the spring of 2020 (Espenhaim et al.,

August 22, 2021). Hansen et al. (March 27, 2021) depended greatly on these first surge

infection definitions to determine that survivors had protection of 80.5% effectiveness

during the second surge in Denmark from September through December, 2020. By only

noting RT-PCR positives from the spring when testing was limited and highly focused on

health care needs, it seems apparent that the study excluded many less severe cases

(which are less likely to result in an effective immune response against reinfection),

leading to results that may suggest greater protection is afforded by infection than in

actuality. Even by December of 2020, it appears Denmark’s gold standard

comprehensive testing approach was only able to capture roughly half of all infections.
Similar systemic undercounts have also been determined to be true in the United States

where approximately three out of four infections have never been reported (CDC, July

27, 2021b).

It is important to recognize that RT-PCR testing was not implemented to find

every infection, but was used instead to assist in determining when medical and

community interventions were necessary. Infections without symptoms or with mild

symptoms likely would not require medical intervention and, therefore, would likely not

be identified via testing. The absence of this population that is more vulnerable to

reinfection, in these studies, undercuts their usefulness in OSHA’s grave danger analysis,

because they may overestimate the protectiveness of immunity acquired through

infection.

Several other studies in regions less known for their sampling approach than

Denmark also were heavily dependent on early, limited pandemic RT-PCR testing. An

Austrian study found a roughly ten-fold decrease in reinfection in survivors of reported

infections from February to April 30, 2020 in comparison with the general public (Pilz et

al., February 11, 2021). The authors noted that “infections in the first wave are likely to

have been far more common than the documented ones” and referred to their results as a

“rough estimate.” Researchers at the Cleveland Clinic also found a reduced rate of

reinfection in those who had a reported previous infection compared with those with no

prior infection (13.8% infection rate for those previously uninfected and 4.9% infection

rate for those previously infected), but noted that testing was limited in that the

“Cleveland Clinic did not test asymptomatic patients unless they were admitted to

hospital or undergoing a procedure/surgery” (Sheehan et al., March 15, 2021). These

criteria for testing create uncertainty in determining the level of effectiveness previous

infection provides against SARS-CoV-2 because many individuals with asymptomatic

infections would not have been tested. Similar issues are also found in studies on
populations in Italy, Belgium, and the UK (Vitale et al., May 28, 2021; Braeye et al.,

September 15, 2021; Pouwels et al., October 14, 2021).

To avoid the well-known problems with RT-PCRs defining previous infection,

other studies have defined previous infection as testing positive for antibodies specific for

SARS-CoV-2 (Lumley et al., February 11, 2021; Abu-Raddad et al., April 28, 2021; Hall

et al., April 17, 2021). As noted above, previous infection does not necessarily result in a

seropositive outcome; one study indicated that nearly a quarter (24%) of those infected

with SARS-CoV-2 subsequently showed no sign of an immune response in SARS-CoV-

2-specific antibody testing (Wei et al., July 5, 2021). Therefore, studies only considering

seropositive individuals are in essence studying only the individuals most likely to have

protection from reinfection. Lumley et al. (February 11, 2021) found that those having a

seropositive response had almost an order of magnitude fewer infections (e.g., 0.11

adjusted incidence rate ratio). Likewise, Abu-Raddad et al. (April 28, 2021) found that

seropositive individuals were reinfected less (0.7%) during their study period in

comparison to seronegative individuals (3.09%). In addition to the bias associated with

using antibodies to determine previous infection, the authors also noted that there may

have been issues with being able to document cases with mild or no symptoms.

Hall et al. (April 17, 2021) cast a wider net by defining previous infection to

include both positive RT-PCR tests and seropositivity. The researchers found that those

who were considered previously infected had an 84% lower risk of infection compared to

those who were unvaccinated with no record of infection. While the study does attempt to

capture as many previously-infected individuals as possible, this does not actually

address the weaknesses of each method. Those with less severe infections were less likely

to have sought out or been able to get an RT-PCR test during the first surge, which is

when an overwhelming number of the previous infections were recorded in this study

(March through May, 2020). Additionally, the less severe infections that are most likely
underrepresented in the study appear to be the ones that are less likely to produce

seropositivity. Shenai et al. (September 21, 2021) pooled several studies with the above

issues and concluded that immunity acquired through a previous infection from SARS-

CoV-2 may be as protective as, or more protective than, the immunity afforded by

vaccination to an individual without previous infection. However, authors of several of

those underlying studies used in the analysis noted that their studies were limited by not

having the capability to fully account for asymptomatic infections (the aforementioned

Lumley et al., July 3, 2021; Gazit et al., August 25, 2021; Shrestha et al., June 19, 2021).

As noted earlier, infection severity appears to be correlated with the robustness of

immunity acquired through that infection, so the failure to account for asymptomatic

infections may mean that this finding is related to the protection afforded by more severe

disease. While pooled analyses can be utilized to make powerful observations, those

observations are highly dependent upon the underlying studies not sharing the same

methodological weakness which, in this case, was the studies’ exclusion of asymptomatic

infections.

Moreover, while the evidence suggests that severe infection may provide

significant protection against reinfection in some cases (Milne et al., October 21, 2021),

the level of protection cannot be determined on an individual basis. The studies

discussed above are based on tests that show only whether a person was or was not

infected and provide no information about the severity of the infection. Because the

studies are likely biased towards those who had a relatively serious infection, their

findings cannot be generalized to all individuals with prior infections.

RT-PCR and antibody testing are powerful tools with many clinical and research

applications. However, the application of these tools cannot determine what degree of

protection a particular individual has against SARS-CoV-2 without a great deal of

additional study concerning thresholds establishing individual immunity. Therefore, these

tools are not yet able to assist OSHA in making more nuanced findings about which

workers who had COVID-19 previously are at grave danger. There is no established

threshold to determine full protection from reinfection or a standardized methodology to

determine infection severity or immune response. Studies use Ct threshold to

approximate viral loads and infer disease severity, but that metric depends on many

variables (e.g. time of collection during infection, quality of collection, handling of

sample, specifics of the test protocol and materials, precision in performing the protocol)

that are often of far less importance when it is used as a crude diagnostic to determine the

presence of an infection. In other words, it is reasonable to say that the lower the Ct

count, the greater the likelihood that an individual is at a lower reinfection risk; however,

the Ct count is greatly dependent on the RT-PCR test used, and how different laboratories

may run that test, which cannot be discerned. Similarly, research needs to be done to

better identify the minimum protective threshold of anti-SARS-CoV-2 serum neutralizing

antibodies (Milne et al., October 21, 2021). Thus, these studies currently do not allow

OSHA to determine, with a reasonable degree of certainty, how much protection

employees with prior infections have against reinfection.

Furthermore, while the research methodology itself raises challenges in making

the grave danger determination, the implications of trying to apply investigative research

methodology to clinical practice are even more difficult. The lack of standardized

methods and standardized measures for immunity preclude their application to robust and

reliable clinical practice. One major drawback discussed above is that, in contrast to

vaccine studies where researchers know who was vaccinated with a standardized dosing

regime, scientific inquiries likely will not be able to identify most individuals who were

infected, the degree of disease experienced for those with a confirmed infection, and the

immunity against reinfection. As of October 18, 2021, several RT-PCR assays have been

authorized without standardization or assessment with respect to measuring disease

severity (FDA, October 18, 2021). As noted above, the use of the Ct threshold to

approximate viral loads and infer disease severity is unreliable. As the FDA notes, the

same is true about antibody tests, which are considered to be poor indicators for

individuals to use to determine whether they are protected from reinfection (FDA, May

19, 2021). There are many different SARS-CoV-2-specific antibody tests that focus on

different specificity. Not only are the outcomes of these tests not directly comparable to

each other, but the specificity of these tests is not related to any notion of protection

against reinfection. It can be reasonably said that a greater antibody response means a

greater likelihood of protection against infection, but, again, the science is not clear what

those thresholds are and whether a threshold would be comparable between laboratories.

At this point in time, even if OSHA determined that some individuals with prior

infections are not at grave danger from exposure to SARS-CoV-2, there is no agreement

on what indicators of infection might be sufficient to confer this level of immunity or

how a healthcare provider or employer could document that a certain level of immunity

had been achieved.

Based on the best available evidence described above, OSHA concludes that

while some individuals who were infected with SARS-CoV-2 may have significant

protection from subsequent infections, the level of protection afforded by infection may

be significantly impacted by the severity of the infection and some previously infected

individuals may have no future protection at all. In addition, given the limitations of the

studies described above, there is considerable uncertainty as to whether any given

individual is adequately protected against reinfection. Furthermore, the level of

protection, if any, provided by a given person’s SARS-CoV-2 infection cannot be

ascertained based on currently-available testing methods. Therefore, OSHA finds that the

requirements of this ETS are necessary to protect unvaccinated individuals who had prior

SARS-CoV-2 infections from the grave danger from exposure to SARS-CoV-2.

 OSHA recognizes that its finding regarding infection-induced immunity is being

made in an area of inquiry that is currently on the “frontiers of scientific knowledge”

(Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 656 (1980)). For

these reasons, OSHA finds that those who have previously been infected with SARS-

CoV-2 and are not yet fully vaccinated are at grave danger from SARS-CoV-2 exposure

and that it is necessary to protect these workers via vaccination, or testing and the use of

face coverings, under this standard. OSHA will continue to follow developments on this

issue, however, and make appropriate adjustments to this ETS if the evidence warrants.

VI. Conclusion.

OSHA finds that many employees in the U.S. who are not fully vaccinated against

COVID-19 face a grave danger from exposure to SARS-CoV-2 in the workplace.

OSHA’s determination is based on the severe health consequences of exposure to the

virus, including death; powerful lines of evidence demonstrating the transmissibility of

the virus in the workplace; and the prevalence of infections in employee populations.

With respect to the grave health consequences of exposure to SARS-CoV-2,

OSHA has found that regardless of where and how exposure occurs, COVID-19 can

result in death. Even for those who survive a SARS-CoV-2 infection, the virus can cause

serious, long-lasting, and potentially permanent health effects. Serious cases of COVID-

19 require hospitalization and dramatic medical interventions, and might leave employees

with permanent and disabling health effects. Both death and serious cases of COVID-19

requiring hospitalization provide independent bases for OSHA’s finding of grave danger.

The evidence is clear that the safe and effective vaccines authorized and/or approved for

use in the United States greatly reduce the likelihood of these severe outcomes.

The best available evidence on the science of transmission of the virus makes

clear that SARS-CoV-2 is transmissible from person to person in shared workplace

settings. The likelihood of transmission can be exacerbated by common characteristics of

many workplaces, including working indoors, working with others for extended periods

of time, poor ventilation, and close contact with potentially infectious individuals. The

likelihood of transmission in the workplace is also exacerbated by the presence of

unvaccinated workers, who are more likely than those who are vaccinated to be infected

and transmit the virus to others. Every workplace SARS-CoV-2 exposure or transmission

has the potential to cause severe illness or even death, particularly in unvaccinated

workers. Taken together, the severe health consequences of COVID-19 and the evidence

of its transmission in environments characteristic of the workplaces covered by this ETS

demonstrate that exposure to SARS-CoV-2 represents a grave danger to unvaccinated

employees in many workplaces throughout the country.

The existence of a grave danger to employees from SARS-CoV-2 is further

supported by the toll the pandemic has already taken on the nation as a whole and the

number of workers who remain unvaccinated. Although OSHA cannot state with

precision the total number of workers in our nation who have contracted COVID-19 at

work and became sick or died, COVID-19 has killed 723,205 people in the United States

as of October 18, 2021 (CDC, October 18, 2021 – Cumulative US Deaths). That death

toll includes 131,478 people who were 18 to 64 years old, prime working age (CDC,

October 18, 2021 – Demographic Trends, Deaths by Age Group). OSHA estimates that

there are over 26 million workers subject to the rule who remain unvaccinated at present

and therefore are in grave danger. As a result of this ETS, the agency estimates that 72%

of them will be vaccinated (see OSHA, October 2021c).

Current mortality data shows that unvaccinated people of working age have a 1 in

202 chance of dying when they contract COVID-19 (CDC, October 18, 2021 –

Demographic Trends, Cases by Age Group; Demographic Trends, Deaths by Age

Group). As of October 18, 2021, close to 45 million people in the United States have

been reported to have infections, and thousands of new cases were being identified daily
(CDC, October 18, 2021 – Daily Cases).One in 14 reported cases of COVID-19 in people

ages 18 to 64 becomes severe and requires hospitalization (CDC, October 18, 2021 –

Demographic Trends, Cases by Age; Total Hospitalizations, by Age). Moreover, public

health officials agree that these numbers fail to show the full extent of the deaths and

illnesses from this disease, and racial and ethnic minority groups are disproportionately

represented among COVID-19 cases, hospitalizations, and deaths (CDC, December 10,

2020; CDC, May 26, 2021; Escobar et al., February 9, 2021; Gross et al., October 2020;

McLaren, June 2020; CDC, October 6, 2021). Given this context, OSHA is confident in

its finding that exposure to SARS-CoV-2 poses a grave danger to the employees covered

by this ETS.

The above analysis fully satisfies the OSH Act’s requirements for finding a grave

danger. Although OSHA usually performs a quantitative risk assessment based on

extrapolations among exposure levels before promulgating a health standard under

section 6(b)(5) of the OSH Act (29 U.S.C. 655(b)(5)), that type of analysis is not

necessary in this situation. OSHA has most often invoked section 6(b)(5) authority to

regulate exposures to chemical hazards involving much smaller populations, many fewer

cases, extrapolations from animal evidence, long-term exposure, and delayed effects. In

those situations, mathematical modelling is necessary to evaluate the extent of the risk at

different exposure levels. The gravity of the danger presented by a disease with acute

effects like COVID-19, on the other hand, is made obvious by a straightforward count of

deaths and illnesses caused by the disease, which reach sums not seen in at least a

century. The evidence compiled above amply supports OSHA’s finding that SARS-CoV-

2 presents a grave danger in American workplaces. In the context of ordinary 6(b)

rulemaking, the Supreme Court has said that the OSH Act is not a “mathematical

straitjacket,” nor does it require the agency to support its findings “with anything

approaching scientific certainty,” particularly when operating on the “frontiers of

scientific knowledge” (Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S.

607, 655-56 (1980)). This is true a fortiori in the current national crisis, where OSHA

must act to ensure employees are adequately protected from the hazard presented by the

COVID-19 pandemic (see 29 U.S.C 655(c)(1)).The grave danger from SARS-CoV-2

represents the biggest threat to employees in OSHA’s more than 50-year history. The

threat applies to employees in all sectors covered by OSHA, including general industry,

construction, maritime, agriculture, and healthcare. Having made the determination of

grave danger, as well as the determination that an ETS is necessary to protect employees

from exposure to SARS-CoV-2 (see Need for the ETS, Section III.B. of this preamble),

OSHA is required to issue this standard to protect employees from getting sick or dying

from COVID-19 acquired at work (see 29 U.S.C. 655(c)(1)).

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B. Need for the ETS

 This ETS is necessary to protect unvaccinated workers from the risk of

contracting COVID-19, including its more contagious variants, such as the B.1.617.2

(Delta), at work. The rule protects workers through the most effective and efficient

workplace control available: vaccination. Additionally, this ETS is necessary to protect

workers who remain unvaccinated through required regular testing, use of face coverings,

and removal of infected employees from the workplace.

I. Events Leading to the ETS.

This section describes the evolution of OSHA’s actions to protect employees from

the grave danger posed by COVID-19 and the agency’s reasons for issuing this ETS at

this time.

a. OSHA’s 2020 actions regarding COVID-19.

Beginning in early 2020, OSHA began to monitor the growing cases of the SARS

–CoV-2 virus that were occurring around the country. Because scientific information

about the disease, its potential duration, and ways to mitigate it were undeveloped, OSHA

decided to monitor the situation. As noted below, OSHA subsequently issued numerous

guidance documents advising interested employers of steps they could take to mitigate

the hazard arising from the virus.

Also beginning in early 2020, OSHA received numerous petitions and supporting

letters from members of Congress, unions, advocacy groups, and one group of large

employers urging the agency to take immediate action by issuing an ETS to protect

employees from exposure to the virus that causes COVID-19 (Scott and Adams, January

30, 2020; NNU, March 4, 2020; AFL-CIO, March 6, 2020; Menendez et al., March 9,

2020; Wellington, March 12, 2020; DeVito, March 12, 2020; Carome, March 13, 2020;

SMART, March 30, 2020; Blumenthal et al., April 8, 2020; Murray et al., April 29, 2020;

Luong, April 30, 2020; Novoa, June 24, 2020; Solt, April 28, 2020; Castro et al., April

29, 2020; Talbott and Adely, May 4, 2020; Public Citizen, March 13, 2020; LULAC,
March 31, 2020; Meuser, May 1, 2020; Raskin, April 29, 2020; Cartwright et al., May 7,

2020; Frosh et al., May 12, 2020; Pellerin, March 19, 2020; Yborra, March 19, 2020;

Owen, March 19, 2020; Brown et al., April 30, 2020; Price et al., May 1, 2020;

ORCHSE, October 9, 2020). These petitions and supporting letters argued that many

employees had been infected because of workplace exposures to the virus that causes

COVID-19, and that immediate, legally enforceable action is necessary for protection.

OSHA quickly began issuing detailed guidance documents and alerts beginning in March

2020 that helped employers to determine employee risk levels of COVID-19 exposure

and made recommendations for appropriate controls. As explained in detail in Section IV.

of the Healthcare ETS, 86 FR 32376, 32412-13 (June 21, 2021) and hereby included in

the record for this ETS16, at the time, OSHA leadership believed that implementing a

combination of enforcement tools, including guidance, existing OSHA standards, and the

General Duty Clause, would provide the necessary protection for workers. OSHA also

expressed concern that an ETS might unintentionally enshrine requirements that are

subsequently proven ineffective in reducing transmission.

When it decided not to issue an ETS in the spring of 2020, OSHA determined that

the agency could provide sufficient employee protection against COVID-19 through

enforcing existing workplace standards and the General Duty Clause of the OSH Act,

coupled with issuing industry-specific, non-mandatory guidance. However, in doing so

OSHA indicated that its conclusion that an ETS was not necessary was specific to that

time, and that the agency would continue to monitor the situation and take additional

steps as appropriate (see, e.g., OSHA, March 18, 2020 Letter to Congressman Scott

(stating “[W]e currently see no additional benefit from an ETS in the current

circumstances relating to COVID-19. OSHA is continuing to monitor this quickly

16This adoption includes the citations in the referenced section of the Healthcare ETS, which are also
included in the docket for this ETS.
evolving situation and will take the appropriate steps to protect workers from COVID-19

in coordination with the overall U.S. government response effort.” (emphasis supplied);

DOL May 29, 2020 at 20 (stating “OSHA has determined this steep threshold [of

necessity] is not met here, at least not at this time.” (emphasis supplied))).

In addition to the various petitions for rulemaking that were submitted to OSHA,

the AFL-CIO filed a petition for a writ of mandamus with the U.S. Court of Appeals for

the D.C. Circuit, requesting that the court compel OSHA to issue an ETS. (AFL-CIO,

May 18, 2020). In its administrative decision and filing in that case, OSHA explained that

the determination not to issue an ETS was based on the conditions and information

available to the agency at that time and was subject to change as additional information

indicated the need for an ETS. On June 11, 2020, the U.S. Court of Appeals for the D.C.

Circuit issued a one paragraph per curiam order denying the AFL-CIO’s petition to

require OSHA to issue an ETS. To be clear, nothing in OSHA’s prior position or the D.C.

Circuit’s decision in In re Am. Fed’n of Labor & Cong. of Indus. Orgs., No. 20-1158,

2020 WL 3125324 (D.C. Cir. June 11, 2020); rehearing en banc denied (July 28, 2020)

precludes OSHA’s decision to promulgate an ETS now. To the contrary, at an early

phase of the pandemic, when vaccines were not yet available and when it was not yet

known how extensive the impact would be on illness and death, the court decided not to

second-guess OSHA’s decision to hold off on regulation in order to see if its

nonregulatory enforcement tools could be used to provide adequate protection against the

virus. “OSHA’s decision not to issue an ETS is entitled to considerable deference,” the

court explained, noting “the unprecedented nature of the COVID-19 pandemic” and

concluding merely that “OSHA reasonably determined that an ETS is not necessary at

this time.” (Id., with emphasis added).

Employers do not have a reliance interest in OSHA’s prior decision not to issue

an ETS on May 29, 2020, which did not alter the status quo or require employers to
change their behavior. See Dep’t of Homeland Security v. Regents of the Univ. of

California, 140 S. Ct. 1891, 1913–14 (2020). As OSHA indicated when it made the

decision, the determination was based on the conditions and information available to the

agency at that time and was subject to change as additional information indicated the

need for an ETS. In light of the agency’s express qualifications and the surrounding

context, any employer reliance would have been unjustified and cannot outweigh the

countervailing urgent need to protect workers covered by this ETS from the grave danger

posed by COVID–19.

b. OSHA’s Decision to Promulgate a Healthcare ETS.

OSHA subsequently issued the Healthcare ETS to protect healthcare workers. 86

FR 32376. (June 21, 2021), codified at 29 CFR 1910.502. Looking back on a year of

experience, OSHA found that its enforcement efforts had encountered significant

obstacles, demonstrating that existing standards, regulations, and the General Duty

Clause were inadequate to address the grave danger faced by healthcare employees. 86

FR 32415. In promulgating that ETS, OSHA recognized that “the impact of [COVID-19]

has been borne disproportionately by the healthcare and healthcare support workers

tasked with caring for those infected by this disease.” 86 FR 32377. Furthermore, states

and localities had taken increasingly divergent approaches to workplace protections

against COVID-19, making it clear that a federal standard was needed to ensure sufficient

protection in all states. 86 FR 32377. Therefore, OSHA focused on the unique situation

experienced by healthcare industry workers as the frontline caregivers and support

workers for those suffering from COVID-19. See 86 FR 32376, 32411-12.

The Healthcare ETS requires employers to institute a suite of engineering

controls, administrative controls, work practices, and personal protective equipment to

combat the COVID-19 hazard. In the Preamble to the Healthcare ETS, OSHA observed

that the development of safe and highly effective vaccines is a critical milestone in the
nation’s response to COVID-19, and that fully vaccinated persons have a greatly reduced

risk of death, hospitalization and other health consequences. 86 FR 32396. The

Healthcare ETS therefore includes provisions intended to encourage employees to

become vaccinated, including a requirement for employers to provide reasonable paid

leave for vaccination and recovery from any side effects. 86 FR 32415, 29 CFR

1910.502(m).

In the Healthcare ETS OSHA found that employees who work in covered

healthcare workplaces are exposed to grave danger. 86 FR 32411. The agency also stated

that in light of the effectiveness of vaccines, there was “insufficient evidence in the

record to support a grave danger finding for non-healthcare workplaces where all

employees are vaccinated.” 86 FR 32396 (emphasis supplied). OSHA made no finding

at that time regarding unvaccinated workers in non-healthcare workplaces.

No employer challenged the Healthcare ETS in court. The United Food and

Commercial Workers Union (UFCW) together with the AFL-CIO filed a petition for

review asserting that the rule should have gone further and included more industries in its

scope (UFCW and AFL-CIO, June 24, 2021). That case is being held in abeyance

pending the issuance of this ETS.

c. Subsequent Developments.

The preamble to the Healthcare ETS notes that new COVID-19 variants might

emerge that are more transmissible and cause more severe illness, but does not

specifically mention the Delta Variant. See 86 FR 32384. Since publication of the

Healthcare ETS, the Delta Variant has become the dominant form of the virus in the

United States, causing large spikes in transmission, and surges of hospitalizations, and

deaths, overwhelmingly among the unvaccinated (CDC, August 26, 2021; CDC, October

18, 2021 – Variant Proportions, July Through October, 2021). As discussed in more

detail in Grave Danger (Section III.A. of this preamble), the Delta Variant is at least
twice as contagious as previous COVID-19 variants, and research suggests that it also

causes more severe illness in the unvaccinated population (CDC, August 26, 2021). More

infections mean more potential for exposures, including in workplaces (see Grave

Danger, Section III.A. of this preamble, for further discussion on workplace outbreaks,

clusters, and the general impact of transmission in the workplace.). More infections also

mean more opportunities for the virus to undergo mutations to its genetic code, resulting

in genetic variants with the potential to infect or re-infect people.

Some variability in infection rates in a pandemic is to be expected. While the

curves of new infections and deaths can bend down after peaks, they often reverse course

only to reach additional peaks in the future (Moore et al., April 30, 2020). Last year

experts expressed concern that one or more subsequent waves of COVID-19 were

possible in 2021 (Moore et al., April 30, 2020), especially with new variants of COVID-

19 in circulation (Doughton, February 9, 2021). That potential tragically became a reality

with the spread of the Delta Variant.

In June 2021, when the Healthcare ETS was published, COVID-19 transmission

rates in the United States were at a low point, with the 7-day moving average of reported

cases to be about 12,000. (CDC, August 26, 2021) However, by the end of July, the 7-day

moving average reached over 60,000 as the Delta Variant spread across the country.

(CDC, August 26, 2021). The 7-day moving average of reported cases at the beginning of

September, 2021 exceeded 161,000 (CDC, October 18, 2021 – Daily Cases). The most

recent 7-day moving average of reported cases, while lower than the peak in late August

and early September, is still over 85,000. (CDC, October 18, 2021 – Daily Cases). These

rates are also far higher than the rate when OSHA first declined to issue an ETS. (CDC,

August 27, 2020 (20,401 confirmed cases per day on May 29, 2020)). The jump in

infections has resulted in increased hospitalizations and deaths for unvaccinated workers,

as discussed in detail in Grave Danger (Section III.A. of this preamble). While the most
current data reflect a decline in new cases from the peak, the level of new cases remains

high. CDC data shows that, as of October 18, 2021, approximately 85% of U.S. counties

were experiencing “high” rates of community transmission, and another 10% were

experiencing “substantial” community transmission (CDC, October 18, 2021 – Daily

Cases). Although the number of new detected cases is currently declining nationwide

(see CDC, October 18, 2021 – Community Transmission Rates), the agency cannot

assume based on past experience that nationwide case levels will not increase

again. Indeed, many northern states are currently experiencing increases in their rate of

new cases (see CDC, October 18, 2021 – Cases, Deaths, and Laboratory Testing

(NAATS) by State; Slotnik, October 18, 2021), including Vermont, which set a new

record for new COVID-19 cases in mid-October 2021 (Murray, October 18, 2021).

Unless vaccination rates increase, the experience of northern states during this fall could

presage a greater resurgence in cases this winter as colder weather drives more

individuals indoors (see Firozi and Dupree, October 18, 2021).

While it is important to recognize that the Delta Variant has caused a spike in

hospitalization and death in the United States, the SARS-CoV-2 virus, and not just a

particular variant of that virus, is the hazard that workers face (see Grave Danger,

Section III.A. of this preamble). Like any virus, SARS-CoV-2 has the ability to mutate

over time and produce variants that may be more or less severe. Indeed, the World Health

Organization and the CDC both track new variants that have continued to arise, such as

the Lamda and Mu Variants (WHO, October 12, 2021; CDC, October 4, 2021). At this

time, the CDC is tracking 11 different variants of COVID-19 (CDC, October 4, 2021).

The World Health Organization has classified the Lambda and Mu variants as “variants

of interest,” meaning that they have genetic changes that affect transmissibility, disease

severity, immune escape, diagnostic or therapeutic escape; and have been identified to

cause significant community transmission or multiple COVID-19 clusters, in multiple

countries with increasing relative prevalence alongside increasing number of cases over

time, or other apparent epidemiological impacts to suggest an emerging risk to global

public health (WHO, October 12, 2021). Medical experts have also explained that

vaccination reduces the opportunities for the virus to continue to mutate by reducing

transmission and length of infection. And, there is no indication that future variants of

COVID-19 will not be equally or even more dangerous than Delta without a higher rate

of vaccination (Bollinger and Ray, July 23, 2021).

Meanwhile, evidence on the power of vaccines to safely protect individuals from

infection and especially from serious disease has continued to accumulate. (CDC, May

21, 2021). For example, as explained in more detail in Grave Danger (Section III.A. of

this preamble), multiple studies have demonstrated that vaccines are highly effective at

reducing instances of hospitalization and death. In September the CDC compiled data

from various studies that demonstrated overall authorized vaccines reduced death and

severe case rates by 91 and 92% respectively in the population studied between April and

July (Scobie et al., September 17, 2021, Table 1.). Additionally, the FDA granted

approval to the Pfizer-BioNTech COVID-19 Vaccine for individuals 16 years of age and

older on August 23, 2021 (FDA, August 23, 2021). In announcing the decision, the FDA

Commissioner explained that “[w]hile this and other vaccines have met the FDA’s

rigorous, scientific standards for emergency use authorization, as the first FDA-approved

COVID-19 vaccine, the public can be very confident that this vaccine meets the high

standards for safety, effectiveness, and manufacturing quality the FDA requires of an

approved product.” (FDA, August 23, 2021.)

Despite this important milestone, and the demonstrated effectiveness of the

approved and authorized vaccines available to the public, millions of employees remain

unvaccinated, approximately 39% of workers who are covered by this ETS (See

Economic Analysis, Section IV.B. of this ETS). The rate of vaccination in the United
States has slowed significantly from its peak in April, when the daily number of

vaccination doses administered exceeded three million at one point. In recent months,

daily vaccination rates have hovered around one million doses administered, or lower

(CDC, October 18, 2021 – Daily Vaccination Rate). The shortfall in vaccination leaves

the nation’s working population vulnerable to sickness, hospitalization and death,

whether today under the Delta Variant, or under future variants that may arise (CDC,

October 18, 2021 – Daily Vaccination Rate); see also Grave Danger (Section III.A. of

this preamble).

Moreover, in recent months, an increasing number of states have promulgated

Executive Orders or statutes that prohibit workplace vaccination policies that require

vaccination or proof of vaccination status, thus attempting to prevent employers from

implementing the most efficient and effective method for protecting workers from the

hazard of COVID-19 (see, e.g., Texas Executive Order GA-40, October 11, 2021;

Montana H.B. 702, July 1, 2021; Arkansas S.B. 739, October 4, 2021 and Arkansas H.B.

1977, October 1, 2021; AZ Executive Order 2021-18, August 16, 2021). While some

States’ bans have focused on preventing local governments from requiring their public

employees to be vaccinated or show proof of vaccination, the Texas, Montana, and

Arkansas requirements apply to private employers as well. Other states have banned local

ordinances that require employers to ensure that customers who enter their premises wear

masks, thus endangering the employees who work there, particularly those who are

unvaccinated (see, e.g., Florida Executive Order 21-102, May 3, 2021; Texas Executive

Order GA-34, March 2, 2021).

In short, at the present time, workers are becoming sick and dying unnecessarily

as a result of occupational exposures, when there is a simple and effective measure,

vaccination, that can largely prevent those deaths and illnesses (see Grave Danger,

Section III.A. of this preamble). Congress charged OSHA with responsibility for issuing
emergency standards when they are necessary to protect employees from grave danger.

29 U.S.C. 655(c). In light of the current situation, OSHA is issuing this emergency rule.

References:

American Federation of Labor and Congress of Industrial Organizations (AFL-CIO).

(2020, March 6). “To Address the Outbreak of COVID-19: A Petition for an OSHA
Emergency Temporary Standard for Infectious Disease.” (AFL-CIO, March 6, 2020)

American Federation of Labor and Congress of Industrial Organizations (AFL-CIO).

(2020, May 18). “Emergency Petition For A Writ Of Mandamus, and Request For
Expedited Briefing And Disposition, No. 19-1158.” (AFL-CIO, May 18, 2020)

An Act Prohibiting Discrimination Based on a Person’s Vaccination Status or Possession

of an Immunity Passport; Montana H.B. 702. (2021, July 1).
https://leg.mt.gov/bills/2021/billpdf/HB0702.pdf. (Montana H.B. 702 July 1, 2021)

Arizona Executive Order 2021-18. (2021, August 16).

https://azgovernor.gov/sites/default/files/eo_2021-18.pdf. (AZ Executive Order 2021-18,
August 16, 2021)

Arkansas H.B. 1977. (2021, October 1). To Provide Employee Exemptions From Federal
Mandates and Employer Mandates Related to Coronavirus 2019 (COVID-19); and to
Declare an Emergency.
https://www.arkleg.state.ar.us/Bills/FTPDocument?path=%2FAMEND%2F2021R%2FP
ublic%2FHB1977-H1.pdf. (Arkansas H.B. 1977, October 1, 2021)

Arkansas S.B. 739. (2021, October 4). An Act Concerning Employment Issues Related to
Coronavirus 2019 (COVID-19); To Provide Employee Exemptions From Federal
Mandates and Employer Mandates Related to Coronavirus 2019 (COVID-19); To
Declare and Emergency; and For Other Purposes.
https://www.arkleg.state.ar.us/Bills/FTPDocument?path=%2FBills%2F2021R%2FPubli
c%2FSB739.pdf. (Arkansas S.B. 739, October 4, 2021)

Blumenthal R, Murray P, Duckworth T, Casey RP, Baldwin B, Brown S, Menendez R.

(2020, April 8). “COVID-19 ETS Petition.” (Blumenthal et al., April 8, 2020)

Bollinger R and Ray R. (2021, July 23). New Variants of the Coronavirus: What You
Should Know. Johns Hopkins Medicine.
https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/a-new-
strain-of-coronavirus-what-you-should-know. (Bollinger and Ray, July 23, 2021)

Brown S, Murray P, Baldwin T, Bennet MF, Casey Jr. RP, Whitehouse S, Hirono MK,
Blumenthal R, Van Hollen C, Masto CC, Sanders B, Reed J, Harris KD, Wyden R,
Durbin RJ, Booker CA, Warren E, Leahy PJ. (2020, April 30). “COVID-19 ETS
Petition.” (Brown et al., April 30, 2020)

Carome M. (2020, March 13). “Letter requesting an immediate OSHA emergency

temporary standard for infectious disease.” (Carome, March 13, 2020)
Cartwright M, Kaptur M, Roybal-Allard L, Foster B. (2020, May 7). “COVID-19 ETS
Petition.” (Cartwright et al., May 7, 2020)

Castro J, Espaillat A, Cárdenas T, Ocasio-Cortez A, Sablan GKC, Garcia J, Gallego R,

Escobar V, Vargas J, Trahan L, Torres NJ, Correa L, Barragán ND, Serrano JE, Cisneros
Jr. GR, Napolitano GF, Velazquez NM, Garcia SR, Grijalva R. (2020, April 29).
“COVID-19 ETS Petition.” (Castro et al., April 29, 2020)

Centers for Disease Control and Prevention (CDC). (2020, August 27). Previous U.S.
Covid-19 Case Data. https://www.cdc.gov/coronavirus/2019-ncov/covid-
data/previouscases.html. (CDC, August 27, 2020)

Centers for Disease Control and Prevention (CDC). (2021, May 21). Interim Estimates of
Vaccine Effectivness of Pfizer-BioNTech and Moderna COVID-19 Vaccines Among
Health Care Personnel – 33 U.S. Sites, January-March 2021.
https://www.cdc.gov/mmwr/volumes/70/wr/mm7020e2.htm. (CDC, May 21, 2021)

Centers for Disease Control and Prevention (CDC). (2021, August 26). Delta Variant:
What We Know About the Science. https://www.cdc.gov/coronavirus/2019-
ncov/variants/delta-
variant.html?s_cid=11512:cdc%20delta%20variant:sem.ga:p:RG:GM:gen:PTN:FY21.
(CDC, August 26, 2021)

Centers for Disease Control and Prevention (CDC). (2021, October 4). SARS-CoV-2
Variant Classifications and Definitions. https://www.cdc.gov/coronavirus/2019-
ncov/variants/variant-info.html. (CDC, October 4, 2021)

Centers for Disease Control and Prevention (CDC). (2021, October 18). COVID Data
Tracker. https://covid.cdc.gov/covid-data-tracker/. (CDC, October 18, 2021)

DeVito J. (2020, March 12). “Grant OSHA emergency standard for COVID-19 to protect
frontline workers.” (DeVito, March 12, 2020)

Doughton S. (2021, February 9). Can a fourth wave of COVID-19 be prevented? Not
likely, says Fred Hutch model – but the curve could be flattened. The Seattle Times.
https://www.seattletimes.com/seattle-news/health/can-a-fourth-wave-of-covid-19-be-
prevented-not-likely-says-fred-hutch-model-but-the-curve-could-be-flattened/.
(Doughton, February 9, 2021)

Firozee P and Dupree J. (2021, October 18). Coronavirus numbers are dropping. More
vaccinations can prevent a winter surge, Fauci says. The Washington Post.
https://www.washingtonpost.com/health/2021/10/18/faucis-americans-can-prevent-
winter-pandemic-surge/. (Firozee and Dupree, October 18, 2021)

Florida Executive Order 21-102. (2021, May 3). https://www.flgov.com/wp-

content/uploads/orders/2021/EO_21-102.pdf. (Florida Executive Order 21-102, May 3,
2021)

Food and Drug Administration (FDA) (2021, August 23). FDA Approves First COVID-
19 Vaccine. https://www.fda.gov/news-events/press-announcements/fda-approves-first-
covid-19-vaccine. (FDA, August 23, 2021)
Frosh BE, Becerra X, Weiser PJ, Jennings K, Racine KA, Raoul K., Frey AM, Healey
M., Nessel D, Ellison K, Ford AD, Grewal GS, Balderas H, James L, Rosenblum EF,
Shapiro J, Neronha P, Herring MP, Ferguson B, Kaul JL. (2020, May 12). “COVID-19
ETS Petition.” (Frosh et al., May 12, 2020)

League of United Latin American Citizens (LULAC). (2020, March 31). “COVID-19
ETS Petition.” (LULAC, March 31, 2020)

Luong M. (2020, April 30). “Petition for an OSHA Emergency Temporary Standard for
Airborne Infectious Diseases.” (Luong, April 30, 2020)

Menendez R, Murray P, Baldwin T, Brown S, Duckworth T, Booker CA, Warren E.

(2020). “Urge DOL to Direct OSHA to Issue Comprehensive Emergency Temporary
Standard (ETS) To Protect Workers Against COVID-19.” (Menendez et al., March 9,
2020)

Meuser D. (2020, May 1). “COVID-19 ETS Petition.” (Meuser, May 1, 2020)

Moore KA et al. (2020, April 30). COVID-19: The CIDRAP Viewpoint. Part 1: The
Future of the COVID-19 Pandemic: lessons Learned from Pandemic
Influenza. University of Minnesota Center for Infectious Disease Research and Policy.
https://www.cidrap.umn.edu/sites/default/files/public/downloads/cidrap-covid19-
viewpoint-part1_0.pdf. (Moore et al., April 30, 2020)

Murray E. (2021, October 18). Vermont sets new positive COVID daily case record as
delta surge continues. Burlington Free Press.
https://www.burlingtonfreepress.com/story/news/local/2021/10/18/covid-vermont-new-
daily-positive-case-record-set/8505021002/. (Murray, October 18, 2021)

Murray P, Brown S, Heinrich M, Brown S, Blumenthal R., Markey EJ, Van Hollen C,
Durbin RJ, Smith T, Whitehouse S, Wyden R, King Jr. AS, Kaine T, Reed J, Menedez R,
Gillibrand K, Duckworth T, Warren E, Hassan MW, Casey Jr. RP, Sanders B, Udall T,
Hirono MK, Harris KD, Feinstein D, Klobuchar A, Booker CA, Shaheen J, Cardin B.
(2020, April 29). “COVID-19 ETS Petition.” (Murray et al., April 29, 2020)

National Nurses United (NNU). (2020, March 4). "National Nurses United Petitions
OSHA for an Emergency Temporary Standard on Emerging Infectious Diseases in
Response to COVID-19.” (NNU, March 4, 2020)

Novoa M. (2020, June 24). “Direct OSHA to issue an emergency temporary standard to
protect all workers from COVID-19 now!” (Novoa, June 24, 2020)

Occupational Safety and Health Administration (OSHA). Letter from Loren Sweatt to
Congressman Robert C. “Bobby” Scott. (OSHA, March 18, 2020)

ORCHSE Strategies. (2020, October 9). “Petition to the U.S. Department of Labor –
Occupational Safety and Health Administration (OSHA) for an Emergency Temporary
Standard (ETS) for Infectious Disease.” (ORCHSE, October 9, 2020)

Owen M. (2020, March 19). “Grant OSHA emergency standard to protect frontline
workers from COVID-19.” (Owen, March 19, 2020)
Pellerin C. (2020, March 19). “Grant OSHA emergency standard to protect frontline
workers from COVID-19.” (Pellerin, March 19, 2020)

Price D, Pocan M, Schakowsky J, DeLauro RL. (2020, May 1). “COVID-19 ETS
Petition.” (Price et al., May 1, 2020)

Public Citizen. (2020, March 13). “Support for AFL-CIO’s Petition for an OSHA
Emergency Temporary Standard for Infectious Disease to Address the Epidemic of Novel
Coronavirus Disease.” (Public Citizen, March 13, 2020)

Raskin J. (2020, April 29). “COVID-19 ETS Petition.” (Raskin, April 29, 2020)

Scobie HM et al. (2021, September 17). Monitoring Incidence of COVID-19 Cases,

Hospitalizations, and Deaths, by Vaccination Status – 13 U.S. Jurisdictions, April 4-July
17, 2021. MMWR Morb Mortal Wkly Rep 2021; 70: early release.
https://www.cdc.gov/mmwr/volumes/70/wr/mm7037e1.htm. (Scobie et al., September 17,
2021)

Scott RC and Adams AS. (2020, January 30). “Prioritize OSHA's Work on Infectious
Diseases Standard / Immediate Issue of Temporary Standard.” (Scott and Adams, January
30, 2020)

Slotnik D. (2021, October 18). Coronavirus cases rise in the northern U.S. amid lower
temperatures. The New York Times.
https://www.nytimes.com/live/2021/10/18/world/covid-delta-variant-vaccine#covid-
cases-us-winter. (Slotnik, October 18, 2021)

International Association of Sheet Metal, Air, Rail and Transportation Workers

(SMART). (2020, March 30). “Petition for Emergency Standards.” (SMART, March 30,
2020)

Solt BE. (2020, April 28). “COVID-19 ETS Petition” (Solt, April 28, 2020)

Talbott R and Adely R. (2020, May 4). “Rulemaking Petition to the United States
Department of Labor Occupational Safety and Health Administration.” (Talbott
and Adely, May 4, 2020)

Texas Executive Order GA-34. (2021, March 2).

https://open.texas.gov/uploads/files/organization/opentexas/EO-GA-34-opening-Texas-
response-to-COVID-disaster-IMAGE-03-02-2021.pdf. (Texas Executive Order GA-34,
March 2, 2021)

Texas Executive Order GA-40. (2021, October 11).

https://gov.texas.gov/uploads/files/press/EO-GA-
40_prohibiting_vaccine_mandates_legislative_action_IMAGE_10-11-2021.pdf. (Texas
Executive Order GA-40, October 11, 2021)

United Food and Commercial Workers International Union (UFCW) and American
Federation of Labor and Congress of Industrial Organizations (AFL-CIO). (2021, June
24). “Petition for Review, filed with the D.C. Circuit on June 24, 2021.” (UFCW and
AFL-CIO, June 24, 2021)
Wellington M. (2020, March 12). “Grant OSHA emergency standard for COVID-19 to
protect front-line workers” (Wellington, March 12, 2020)

World Health Organization (WHO). (2021, October 12). Tracking SARS-CoV-2 variants.
https://www.who.int/en/activities/tracking-SARS-CoV-2-variants/. (WHO, October 12,
2021)

Yborra G. (2020, March 19). “Grant OSHA emergency standard to protect frontline
workers from COVID-19.” (Yborra, March 19, 2020)

II. This ETS Is Necessary To Protect Unvaccinated Employees From Grave Danger.

As explained at length in the preceding section (Grave Danger, Section III.A. of

this preamble), OSHA has determined that most unvaccinated workers across the U.S.

economy are facing a grave danger posed by the COVID-19 hazard.17 This new hazard

has taken the lives of more than 725,000 people—many of them workers—in the United

States since it was first detected in this country in early 2020. As the federal agency

tasked with protecting the safety and health of workers in the United States, OSHA is

required to act when it finds that workers are exposed to a grave danger. 29 U.S.C.

655(c)(1). OSHA now finds that this emergency temporary standard is necessary to

protect employees who are unvaccinated. Asbestos Info. Ass’n, 727 F.2d at 423 (“failure

to act does not conclusively establish that a situation is not an emergency . . . [when there

is a grave danger to workers,] to hold that because OSHA did not act previously it cannot

do so now only compounds the consequences of the Agency's failure to act.”). As

explained in detail below, OSHA has determined that vaccination is the most effective

control for abating the grave danger that unvaccinated employees face from the COVID-

17 As explained in the Grave Danger section, this ETS focuses on protecting unvaccinated workers from the
grave danger that COVID-19 poses in the workplace. OSHA did not include fully vaccinated workers in its
finding of grave danger because such workers are generally much better protected from the effects of
COVID-19, and, in particular, the most severe effects, than workers who are unvaccinated. OSHA’s action
in adopting this ETS for unvaccinated workers does not mean that vaccinated workers do not face a
significant risk from COVID-19, or that the OSH Act's general duty clause poses no obligation on
employers to protect their vaccinated workers from COVID-19. Indeed, symptomatic infections can occur
in fully vaccinated people, and COVID-19 therefore poses at least some risk to vaccinated workers. OSHA
has requested comment on the risks faced by vaccinated workers from COVID-19, and what additional
measures, if any, should be taken to protect both vaccinated and unvaccinated workers (see Request for
Comments, Section I.B. of this preamble).
19 hazard. And, for workers who are not vaccinated, the use of testing, face coverings,

and removal from the workplace, while not as effective as vaccination, is still effective

and necessary.

OSHA has determined that the best method for addressing the grave danger that

COVID-19 poses to unvaccinated workers is to strongly encourage the use of the single

most effective and efficient protection available: vaccination. OSHA has long recognized

the importance of vaccinating workers against preventable illnesses to which they may be

exposed on the job. See 56 FR 64004, 64152 (Dec. 6, 1991) (discussing requirement in

Bloodborne Pathogens standard for employer to make hepatitis B vaccine available to

any employees with occupational exposure to blood and other potentially infectious

materials). As explained in Grave Danger (Section III.A. of this preamble), COVID-19

vaccines do not completely eliminate the potential for infection, but significantly reduce

the likelihood of infection, and in turn, transmission of the virus to others. Data from

clinical trials for all three vaccines and observational studies for the two mRNA vaccines

clearly establish that fully vaccinated persons have a greatly reduced risk of SARS-CoV-

2 infection compared to unvaccinated individuals (see FDA, December 11, 2020; FDA,

December 18, 2020; FDA, February 26, 2021).

More importantly, vaccination is the single most effective method for protecting

workers from the most serious consequences of a COVID-19 infection: hospitalization

and death. Although symptomatic infections can occur in fully vaccinated people, they

are less likely to occur, and are far less likely to result in severe health outcomes or death.

As discussed in Grave Danger (Section III.A. of this preamble), studies have established

that the available COVID-19 vaccines are highly effective at preventing hospitalization,

and even more effective at preventing death. For example, one study found that

unvaccinated adults age 18 to 49 were 15.2 times more likely to be hospitalized and 17.2

times more likely to die of COVID-19 than fully vaccinated people in the same age
range, and unvaccinated adults age 50 to 64 were 10.9 times more likely to be

hospitalized and 17.9 times more likely to die than their fully vaccinated peers (Scobie et

al., September 17, 2021). The New York Times reported on October 1, 2021, that of the

approximately 100,000 individuals who died of COVID-19 since mid-June 2021, less

than 3% had been identified by the CDC as vaccinated individuals (Boseman and

Leatherby, October 1, 2021).

Vaccines are also uniquely effective when compared to non-pharmaceutical

methods for controlling exposure to COVID-19 at the workplace. To be sure, non-

pharmaceutical controls play an important role in employers’ efforts to prevent exposure

to the virus; as discussed in detail earlier, OSHA has, throughout the pandemic, advised

employers to implement various administrative, engineering, and other controls to reduce

workplace exposure to the virus. And, for certain work settings in the healthcare industry

where people with COVID-19 are reasonably expected to be present, OSHA both

encouraged vaccination and mandated a suite of protections, many of which involve

physical controls (see 29 CFR 1910.502). Indeed, workers who work indoors and near

others are best protected from COVID-19 when they are fully vaccinated and their

exposure to COVID-19 is reduced (to the extent possible) by non-pharmaceutical

controls.

Non-pharmaceutical controls, however, focus on preventing employee exposure

to the virus, and do not directly affect an employee’s immune response if exposure to the

virus does occur. Additionally, non-pharmaceutical controls often rely on the actions of

individuals and/or the integrity of equipment to be effective; for example, to use PPE to

control exposure, a worker must correctly don appropriate PPE each time there is

potential exposure, must properly clean, store, and maintain the PPE between uses, and

must replace the PPE when it is no longer effective (see, e.g., 29 CFR 1910.132 (general

PPE requirements in general industry workplaces)). Accordingly, OSHA standards have

always followed the principle of the hierarchy of controls, under which employers must

control hazards by means other than PPE whenever feasible, and PPE is a supplementary

control. See e.g. 29 CFR 1910.134(a); 29 CFR 1910.1030(d)(2).

Physical distancing requires workers to maintain constant awareness of their

environment in order to avoid coming into close proximity with colleagues, customers, or

other individuals, even though the realities of their jobs and/or the design of the

workplace may be unaccommodating to that effort. Requiring employees to examine

themselves for signs and symptoms consistent with SARS-CoV-2 infection before

reporting to work is prone to human error and entirely ineffective when the employee is

infected but asymptomatic or pre-symptomatic.

In contrast, a worker is considered fully vaccinated after completing primary

vaccination with a COVID-19 vaccine, or the second dose of any combination of two

doses of a COVID-19 vaccine that is approved, authorized, or listed as a two-dose

primary vaccination by the FDA or WHO (see the Summary and Explanation for

paragraph (c), Section VI.C. of this preamble). Once fully vaccinated, a worker enjoys

automatic and long-lasting benefits; namely, a drastic reduction in the risk of severe

health effects or death. The vaccine works by bolstering the worker’s immune system

and does not depend on the worker’s acumen or actions to afford its protection.

Moreover, where an employer implements one or more non-pharmaceutical controls at

the workplace, vaccination provides workers with a backstop of protection that greatly

reduces their risk of serious health effects if they are exposed to the virus despite the

presence of other controls. Vaccination thus ensures that workers need not rely on other

factors, be it the workplace environment, the effectiveness of equipment, or the actions of

other individuals, to be substantially protected from the worst potential outcomes of a

COVID-19 infection.
 This ETS focuses on encouraging vaccination because it is the most efficient and

effective method for addressing the grave danger. Vaccination is patently appropriate

and feasible for almost every worker in all industries, and will drastically reduce the risk

that unvaccinated workers will suffer the serious health outcomes associated with SARS-

CoV-2 infection. As described in Section III.A. of this preamble (Grave Danger),

employees who are unvaccinated are in grave danger from the SARS-CoV-2 virus, but

employees who are fully vaccinated are not. Since it is the lack of vaccination that

results in grave danger, vaccination will best allay the grave danger. This ETS, which is

designed to strongly encourage vaccination, is thus “necessary to protect employees”

from a grave danger. 29 U.S.C. 655(c).

OSHA continues to encourage employers to implement additional controls that

may be appropriate to eliminate exposure to the SARS-CoV-2 virus at their workplace,

but, as discussed further below, OSHA has not required employers to implement a

comprehensive and multilayered set of COVID-19 exposure controls in this ETS. This

decision reflects the extraordinary and exigent circumstances have required OSHA to

immediately promulgate this emergency temporary standard. Although OSHA was able

to design a comprehensive infection prevention program for the specific healthcare

settings to which the June 2021 Healthcare ETS applied, this rule encompasses all

industries covered by the OSH Act, and targets unvaccinated workers in any indoor work

setting not covered by the Healthcare ETS where more than one person is present.

Crafting a multi-layered standard that is comprehensive and feasible for all covered work

settings, including mixed settings of vaccinated and unvaccinated workers, is an

extraordinarily challenging and complicated undertaking, yet the grave danger that

COVID-19 poses to unvaccinated workers obliges the agency to act as quickly possible.

As discussed above, OSHA has identified vaccination as the single most efficient and

effective means for removing an unvaccinated worker from the grave danger.
 Given the urgency of the rulemaking, and the singular effectiveness of

vaccination in removing unvaccinated workers from the grave danger, OSHA is

promulgating this ETS to immediately address the grave danger that COVID-19 poses to

unvaccinated workers by strongly encouraging vaccination. As discussed in Pertinent

Legal Authority (Section II. of this preamble), a “grave danger” represents a risk greater

than the “significant risk” that OSHA must show in order to promulgate a permanent

standard under section 6(b) of the OSH Act, 29 U.S.C. 655(b). OSHA will consider

whether it is necessary to require additional controls to avert a significant risk of harm in

the rulemaking proceedings that follow this ETS. OSHA directs employers to its

website, www.osha.gov/coronavirus, and the CDC’s website, www.cdc.gov/coronavirus,

for guidance on the engineering, administrative, and other exposure controls that may be

effective and appropriate for their workplace.

OSHA expects that, by strongly encouraging vaccination, this ETS will have a

positive impact on worker health. As discussed above, millions of workers remain

unvaccinated and are presently exposed to risks of hospitalization and death many times

higher than their vaccinated coworkers. Although predicting the health impact of this

ETS is particularly challenging, given the ever-changing nature of the pandemic and the

many factors that may motivate workers to become fully vaccinated, OSHA has

attempted to quantify the potential number of hospitalizations and fatalities that this ETS

could avert by increasing workforce vaccination rates (see OSHA, October 2021c).

OSHA has estimated that, as a result of the ETS, over 6,500 fewer currently unvaccinated

workers will die from COVID-19 over the next six months. OSHA also estimates that

this ETS will prevent over 250,000 currently unvaccinated workers from being

hospitalized during that same time period. Even if OSHA’s estimate does not prove to be

precisely accurate, OSHA is confident that this ETS will save hundreds of lives and

prevent thousands of workers from becoming severely ill.

a. OSHA Finds It Necessary to Strongly Encourage Vaccination.

Despite the proven safety and efficacy of the available COVID-19 vaccines, many

workers remain unvaccinated and are currently exposed to a grave danger. As discussed

in Grave Danger (Section III.A. of this preamble), countless COVID-19 outbreaks have

occurred in myriad work settings where employees come into contact with others, and in

recent weeks, the majority of states in the U.S. have experienced what CDC defines as

high or substantial community transmission, indicating that there is a clear risk of the

virus being introduced into and circulating in workplaces (CDC, October 18, 2021 –

Community Transmission Rates). As of October 18, 2021, more than 184 million people

in the United States have been fully vaccinated, but only 68.5% of people ages 18 years

or older are fully vaccinated (CDC, October 18, 2021 – Fully Vaccinated). OSHA has

estimated that approximately 62.4% percent of adults aged 18-74 within the scope of this

ETS are either fully vaccinated or received their first vaccine dose during the previous

two weeks, leaving approximately 31.7 million unvaccinated (i.e., not fully vaccinated

and did not receive a first dose with in the past two weeks) (see Economic Analysis,

Section IV.B. of this preamble, Table IV.B.7). Meanwhile, the rate of new vaccinations

has slowed considerably; on October 15, 2021, the 7-day moving average number of

administered vaccine doses reported to the CDC per day was 841,731 doses, a steep

reduction from the peak 3,448,156 dose average that the CDC reported on April 11, 2021

(CDC, October 18, 2021 – Weekly Review).

Given the pervasiveness of the virus in workplaces across the country and the

unparalleled efficacy of vaccines at preventing serious health effects, OSHA finds it

necessary to strongly encourage vaccination. Encouraging vaccination is principally

necessary to reduce the likelihood that workers who are infected by the SARS-CoV-2

virus will suffer the worst outcomes of an infection (hospitalization and death). Put

simply, the single best method for protecting an unvaccinated worker from the serious
health consequences of a COVID-19 infection is for that worker to become fully

vaccinated.

Additionally, encouraging vaccination is necessary to reduce the overall

prevalence of the SARS-CoV-2 virus at workplaces. Because vaccinated workers are

less likely than unvaccinated workers to be infected by the virus, they are less likely to

spread the virus to others at their workplace, including to unvaccinated coworkers.

Increasing workforce vaccination rates will therefore reduce the risk that unvaccinated

workers will be infected by a coworker.

Evidence shows that mandating vaccination has proven to be an effective method

for increasing vaccination rates, and that vaccination mandates have generally been more

effective than merely encouraging vaccination. Significant numbers of workers would

get vaccinated if their employers required it, and many workers who were vaccinated

over the last four months were motivated by their employer requiring vaccination. The

Kaiser Family Foundation (KFF) vaccine monitor, an ongoing research project tracking

the public’s attitudes and experiences with COVID-19 vaccinations, conducted a survey

from September 13 to September 22, 2021, among a nationally representative random

digit dial telephone sample of 1,519 adults ages 18 and older, and found that those who

received their first dose of a COVID-19 vaccine after June 1, 2021 were motivated by

mandates of various sorts, including one in five (19%) who say a major reason was that

their employer required it (KFF, September 2021). A survey conducted by Change

Research from August 30 to September 2, 2021 regarding Americans’ views on COVID-

19 vaccines found that among the 1,775 respondents, “one of the things that was most

likely to lead someone to get vaccinated was if their employer required it” (Towey,

September 27, 2021).

Vaccine mandates imposed by state governments and large employers have also

demonstrated the effectiveness of mandates in increasing vaccination rates. For example,

when Tyson Foods announced its vaccination requirement in early August 2021, only

45% of its workforce had received a vaccination dose, but as of September 30, 2021, the

New York Times reported that has increased to 91% (White House, October 7, 2021;

Hirsch, September 30, 2021). Similarly, United Airlines reported that 97% of its U.S.-

based employees were fully vaccinated against COVID-19 within a week of the

deadline of the company’s vaccination mandate, and the 3% who were not fully

vaccinated included several employees who sought a medical or religious exemption

from vaccination (The Associated Press, September 22, 2021). In Washington State, the

weekly vaccination rate increased 34% after the Governor announced vaccine

requirements for state workers (White House, October 7, 2021). The success of these

COVID-19 vaccination mandates comports with the National Safety Council’s recent

finding that employers that instituted a COVID-19 vaccination mandate produced a 35%

increase in employee vaccination (NSC, September 2021). Similarly, the White House

recently reported that its analysis of vaccination requirements imposed by healthcare

systems, educational institutions, public-sector agencies, and private businesses

demonstrated that such requirements increased their vaccination rates by more than 20

percentage points and have routinely seen their share of fully vaccinated workers rise

above 90 percent (White House, October 7, 2021).

Given the effectiveness of vaccination mandates in increasing vaccination rates,

OSHA expects that, in most instances, an employer implementing a policy that requires

all employees to be vaccinated will be the most effective approach for increasing the

vaccination rate of its employees and ensuring that they have the best protection available

against the worst consequences of a COVID-19 infection. Although OSHA may well

have the authority to impose a vaccination mandate, OSHA has decided against pursuing

strict vaccination requirement and has instead crafted the ETS to strongly encourage

vaccination. Employers are in the best position to understand their workforces and the
approach that will work most effectively with them to secure employee cooperation and

protection. OSHA’s traditional practice when including medical procedures, such as

medical surveillance testing and vaccinations, in its health standards has been to require

the employer to make the medical procedure available to employees, and has viewed

mandating those procedures as a measure to avoid if possible. For example, when the

agency promulgated its standard regulating occupational exposure to lead, OSHA

considered mandating that employees participate in physical examinations and biological

monitoring, but ultimately required employers to make them available to employees (see

43 FR 54354, 54450 (Nov. 21, 1978)). OSHA decided against mandating those

procedures in part because it believed a voluntary approach would elicit more effective

employee participation in the medical program and in part because of the agency’s

concerns about the Government intruding into a private and sensitive area of workers’

lives (43 FR at 54450-51). OSHA has followed that same approach of requiring

employers to “provide” or “make available” medical procedures to employees in

numerous subsequent standards, such as the standards for asbestos (29 CFR 1910.1001),

benzene (1910.1028), cotton dust (1910.1043), and formaldehyde (1910.1048).

OSHA adhered to this approach when it promulgated the Bloodborne Pathogens

standard. The agency considered mandating a Hepatitis B vaccination, but instead

required employers to make the Hepatitis B vaccination available to employees. 56 FR

64004, 64155 (Dec. 6, 1991); 29 CFR 1910.1030(f)(1)(i), (f)(2)(i). OSHA explained that

the agency may have the legal authority to mandate vaccination, but believed that, under

the circumstances, a voluntary vaccination program would “foster greater employee

cooperation and trust in the system” and “enhance[ ] compliance while respecting

individuals’ beliefs and rights to privacy.” 56 FR at 64155.

In keeping with this traditional practice, the agency has stopped short of including

a strict vaccination mandate with no alternative compliance option in this ETS. OSHA
has never done so, and if it were to take that step, OSHA believes it more prudent to do

so where the agency has ample time to fully assess the potential ramifications of

imposing a vaccination mandate on covered employers and employees. Here, exigent

circumstances demand that OSHA take immediate action to protect workers from the

grave danger posed by COVID-19, but OSHA has not had a full opportunity to study the

potential spectrum of impacts on employers and employees, including the economic and

health impacts, that would occur if OSHA imposed a strict vaccination mandate with no

alternative compliance option. Moreover, employers in their unique workplace settings

may be best situated to understand their workforce and the strategies that will maximize

worker protection while minimizing workplace disruptions. These considerations

persuade the agency that this ETS should afford employers some flexibility in the form of

an alternative option to strictly mandating vaccination. In light of the unique and grave

danger posed by COVID-19, OSHA has requested comment on whether a strict

vaccination mandate is warranted and the agency will consider all the information it

receives as it determines how to proceed with this rulemaking (see Request for Comment,

Section I.B. of this preamble).

Although this ETS does not impose a strict vaccination mandate, OSHA has

determined that, to adequately address the grave danger that COVID-19 poses to

unvaccinated workers, a more proactive approach is necessary than simply requiring

employers to make vaccination available to employees. None of the standards that

OSHA promulgated prior to this year concerned an infectious agent as readily

transmissible as COVID-19. Standards like the Lead standard do not concern infectious

agents that can be transmitted between individuals at a workplace; accordingly, the

medical procedures that employers are required to make available under those standards

are solely aimed at protecting the health of the worker who is undergoing the procedure.

The Bloodborne Pathogens standard concerned exposure to infectious biological agents

(Hepatitis B and HIV) that can be transmitted between individuals, but the potential for

those agents to be transmitted between workers is minimal in comparison to the SARS-

CoV-2 virus; Hepatitis B and HIV are transmitted through blood and certain body fluids,

whereas the SARS-CoV-2 virus spreads through respiratory droplets that can travel

through the air from worker-to-worker (see Grave Danger, Section III.A. of this

preamble). Vaccination against COVID-19 is thus particularly important in reducing the

potential for workers to become infected and spread the virus to others at the workplace,

in addition to protecting the worker from severe health outcomes if they are infected.

Moreover, the ease with which the SARS-CoV-2 virus spreads between workers makes it

more urgent for workers to be vaccinated, and this urgency contributes to the agency’s

decision to strongly encourage vaccination.

Accordingly, to further the goal of increasing workforce vaccination rates, this

ETS requires employers to implement a mandatory vaccination policy unless they adopt

a policy in which employees may either be fully vaccinated or regularly tested for

COVID-19 and wear a face covering in most situations when they work near other

individuals. Employers have the duty under the OSH Act to provide safe workplaces to

their employees, including protecting employees from known hazards by complying with

occupational safety and health standards (see 29 U.S.C. 654), and this ETS therefore

provides employers with two compliance options for protecting unvaccinated workers

from the grave danger posed by COVID-19. But while this ETS offers employers a

choice in how to comply, OSHA has presented implementation of a vaccination mandate

as the preferred compliance option; as discussed above, vaccine mandates have proven to

be effective in increasing vaccination rates, and OSHA expects that, in most instances,

implementing a vaccination mandate will be the most effective method for increasing a

workforce’s vaccination rate. As discussed below, OSHA also recognizes that requiring

that all employees be vaccinated provides more protection to vaccinated workers than
regularly testing unvaccinated workers for COVID-19 and requiring them to wear face

coverings when they work near others. This ETS will preempt inconsistent state and

local requirements, including requirements that ban or limit employers’ authority to

require vaccination (see the Summary and Explanation for paragraph (a), Section VI.A.

of this preamble), and will therefore provide the necessary legal authorization to covered

employers to implement mandatory vaccination policies, if they choose to comply in this

preferred manner.

Although the ETS does not require all covered employers to implement a

mandatory vaccination policy, OSHA expects that employers that choose that compliance

option will enjoy advantages that employers that opt out of the vaccination mandate

option will not. Most obviously, employers with a mandatory vaccination policy will

enjoy a dramatically reduced risk that their employees will become severely ill or die of a

COVID-19 infection. In addition, employers who implement a vaccination mandate will

likely have fewer workers temporarily removed from the workplace due to a COVID-19

positive test; this rule requires all covered employers to remove from the workplace any

employee who tests positive for COVID-19 or receives a diagnosis of COVID-19 (see the

Summary and Explanation for paragraph (h), Section VI.H. of this preamble), and

because vaccinated workers are less likely than unvaccinated workers to be infected by

the virus, OSHA expects employers with a mandatory vaccination policy will be

statistically less likely to be obliged to remove a COVID-positive employee from the

workplace in accordance with paragraph (h)(2). Additionally, only employers who

decline to implement a mandatory vaccination program are required by the rule to assume

the administrative burden necessary to ensure that unvaccinated workers are regularly

tested for COVID-19 and wear face coverings when they work near others.

Where employers opt out of implementing a mandatory vaccination program, the

ETS encourages employees to elect to be fully vaccinated. As discussed in the Summary

and Explanation for paragraph (f) (Section VI.F. of this preamble), the ETS requires all

covered employers to support vaccination by providing employees with reasonable time,

including up to four hours of paid time, to receive each vaccination dose, and reasonable

time and paid sick leave to recover from vaccination side effects. Many workers have

been deterred from receiving vaccination by fears of missing work and/or losing pay to

obtain vaccination and/or recover from side effects (see Section VI.F. of this preamble;

see, e.g., KFF, May 6, 2021; KFF, May 17, 2021), and OSHA finds that this employer

support is necessary to ensure that employees can become fully vaccinated without

concern that they will be sacrificing pay or their jobs to do so.

All covered employers are required by the ETS to bear the cost of providing up to

four hours of paid time and reasonable paid sick leave needed to support vaccination, but

where an employee chooses to remain unvaccinated, the ETS does not require employers

to pay for the costs associated with regular COVID-19 testing or the use of face

coverings (see the Summary and Explanation for paragraphs (g) and (i), Sections VI.G.

and VI.I. of this preamble). In some cases, employers may be required to pay testing

and/or face covering costs under other federal or state laws or collective bargaining

obligations, and some may choose to do so even without such a mandate, but otherwise

employees will be required to bear the costs if they choose to be regularly tested and wear

a face covering in lieu of vaccination.

This ETS more strongly encourages vaccination than the June 2021 Healthcare

ETS. OSHA designed the Healthcare ETS, which addresses the grave danger that

COVID-19 poses workers in specific health care settings where COVID-19-positive

individuals are reasonably likely to be present, to encourage vaccination (see 86 FR at

32415, 32423, 32565, 32597). Specifically, the Healthcare ETS encourages vaccination

by requiring employers to provide employees reasonable and paid time to receive

vaccination doses and recover from side effects (29 CFR 1910.502(m)), and by
exempting from its scope “well-defined hospital ambulatory care settings where all

employees are fully vaccinated” and all non-employees are screened and denied entry if

they are suspected or confirmed to have COVID-19 (1910.502(a)(2)(iv)) and “home

healthcare settings where all employees are fully vaccinated” and all nonemployees at

that location are screened prior to employee entry so that people with suspected or

confirmed COVID-19 are not present (1910.502 (a)(2)(v)).

Similar to the Healthcare ETS, this ETS requires employers to support

vaccination by providing employees with reasonable time, including up to four hours of

paid time, to receive vaccination, and reasonable time and paid sick leave to recover from

vaccination side effects (see discussion above and the Summary and Explanation for

paragraph (f), Section VI.F. of this preamble). However, as discussed above, this ETS

goes further and expressly requires the implementation of a mandatory vaccination

policy, unless the employer implements an alternative policy that requires unvaccinated

workers to be regularly tested for COVID-19 and to wear face coverings in most

situations when they work near others. While nothing in the Healthcare ETS prohibits

covered employers from implementing a mandatory vaccination policy, this ETS presents

the implementation of a mandatory vaccination policy as a preferred compliance option,

and will preempt inconsistent state and local requirements that ban or limit employers’

authority to require vaccination. Additionally, where the employer opts out of

implementing a mandatory vaccination policy, and the employee opts out of vaccination,

this ETS places no obligation on the employer to pay for costs associated with the regular

testing of unvaccinated workers for COVID-19 or their use of face coverings, which will

provide a financial incentive for some employees to be fully vaccinated.

OSHA finds it necessary to more strongly encourage vaccination in this ETS than

in the Healthcare ETS in the manner described above. The Healthcare ETS’s provisions

that encouraged vaccination were packaged with a comprehensive infection prevention

program that was tailored to the specific healthcare work settings to which the ETS

applied, including a suite of layered and overlapping controls. In contrast, OSHA is

promulgating this ETS to address the grave danger that COVID-19 now poses to all

unvaccinated workers who work indoors and in the presence of others. As mentioned

above, crafting a comprehensive and multi-layered standard that is comprehensive and

feasible for the myriad work settings to which this ETS will apply, including workplaces

as diverse as schools, restaurants, retail settings, offices, prisons, and factories, is an

extraordinarily challenging and complicated undertaking.

Exigent circumstances require OSHA to immediately promulgate this ETS to

protect unvaccinated workers, and vaccination is the single most efficient and effective

method for removing unvaccinated workers from the grave danger. Given the urgency of

the rulemaking and the singular efficacy of vaccination, OSHA has decided against

including comprehensive and multilayered exposure controls in this ETS, and is instead

focusing the ETS on strongly encouraging vaccination. Strongly encouraging

vaccination is thus critical to the effectiveness of this ETS at protecting unvaccinated

workers from the grave danger. In Request for Comment (Section I.B. of this preamble),

OSHA seeks information on what additional measures, if any, should be required to

protect employees against COVID-19.

Moreover, stronger encouragement of vaccination is needed in this ETS than in

the Healthcare ETS because workers who are protected by the Healthcare ETS are more

likely to be vaccinated and/or subject to a vaccination mandate. The Healthcare ETS, 29

CFR 1910.502, focused on healthcare work settings where COVID-19 is reasonably

expected to be present, and, this ETS does not apply in settings where any employee

provides healthcare services or healthcare support services while they are covered by the

requirements of 29 CFR 1910.502 (see the Summary and Explanation for paragraph (b),

Section VI.B. of this preamble). Evidence shows that workers in settings covered by §
1910.502 already have a high rate of vaccination. As of July 2021, healthcare workers

had a higher rate of vaccination than non-healthcare workers (Lazer et al., August, 2021),

and many healthcare workers are currently subject to vaccination mandates. Twenty-two

states and the District of Columbia have instituted vaccination mandates that are

applicable to healthcare workers (NASHP, October 1, 2021), and nearly 300 hospitals

and broader health systems have implemented vaccine mandates for their employees

(Renton et al., October 14, 2021). The White House reported that almost 2,500 hospitals,

40% of all U.S. hospitals, across all 50 states, the District of Columbia, and Puerto Rico,

have announced vaccination requirements for their workforce, and noted numerous

examples of highly successful mandates in those workplaces (White House, October 7,

2021). News reports attest that many of these vaccination mandates have had great

success in increasing the vaccination rate of the targeted healthcare workers (Goldberg,

July 9, 2021; Otterman and Goldstein, September 28, 2021; Hubler, September 30, 2021;

Beer, October 4, 2021). Even more healthcare workers covered by 29 CFR 1910.502 will

be subject to a vaccination mandate under the Centers for Medicare & Medicaid Services

(CMS) rule published elsewhere in this issue of the Federal Register that requires

COVID-19 vaccinations for workers in most healthcare settings that receive Medicare or

Medicaid reimbursement, including but not limited to hospitals, dialysis facilities,

ambulatory surgical settings, and home health agencies. This CMS rule applies to at least

76,000 providers (i.e., employers) and covers a majority of healthcare workers across the

country. OSHA expects that the combination of incentives to vaccination in the

Healthcare ETS and vaccination mandates applicable to healthcare workers will leave

few healthcare workers within the scope of the Healthcare ETS unvaccinated.

b. Unvaccinated Workers Must Be Regularly Tested for COVID-19 and Use Face

Coverings.
 As discussed above, this ETS presumptively requires employers to implement a

mandatory vaccination policy, but permits employers to opt out of that requirement.

Nonetheless, the grave danger that COVID-19 poses to unvaccinated workers demands

that alternative protective measures be taken at workplaces where the employer does not

implement a mandatory vaccination policy. Given that the SARS-CoV-2 virus is highly

contagious, transmitted easily through the air, and can lead to severe and/or fatal

outcomes in unvaccinated workers, it is critical that employers who do not require their

employees to be vaccinated implement controls to mitigate the potential for COVID-19

outbreaks to occur. As discussed above, and in Grave Danger (Section III.A. of this

preamble), unvaccinated workers are more likely than vaccinated workers to be infected

with COVID-19 and transmit the virus to others, and thus pose a heightened risk of

spreading the virus at the workplace, including to other unvaccinated workers.

To reduce the risk that unvaccinated workers will spread COVID-19 at the

workplace, this rule requires employers that do not implement a mandatory vaccination

policy to ensure that unvaccinated workers who report to a workplace where others are

present are tested at least once a week for COVID-19. As discussed in the Summary and

Explanation for paragraph (g) (Section VI.G. of this preamble), it is well-established that,

by identifying and isolating infected individuals, regularly testing individuals for

COVID-19 infection can be an effective method for reducing virus transmission.

Regularly testing unvaccinated workers is essential because SARS-CoV-2 infection is

often attributable to asymptomatic or presymptomatic transmission (Bender et al.,

February 18, 2021; Byambasuren et al., December 11, 2020; Johansson et al., January 7,

2021; Klompas et al., September 2021). In accordance with the CDC’s

recommendations, OSHA has set the minimum frequency of testing at 7 days because the

agency expects that it will be effective in slowing the spread of COVID-19, while taking

into account associated cost considerations (see the Summary and Explanation for
paragraph (g), Section VI.G. of this preamble). As noted in the Request for Comment

(Section I.B. of this preamble), OSHA is gathering additional information about whether

OSHA should require testing more often than on a weekly basis.

The requirement for unvaccinated workers to be regularly tested for COVID-19

operates in tandem with paragraph (h)(2), which requires that all employers remove from

the workplace any employee who receives a positive COVID-19 test, or a COVID-19

diagnosis (see the Summary and Explanation for paragraph (h), Section VI.H. of this

preamble). Paragraph (h)(2) ensures that the COVID-19-positive employee will be

isolated from the workplace until it is safe for the employee to return, and also allows the

employee to seek medical care sooner and reduce the likelihood that they will suffer the

most severe consequences of an infection (e.g., by seeking monoclonal antibody

treatment). The combination of the testing and medical removal provisions will reduce

the likelihood that an unvaccinated worker who has been infected with COVID-19,

including those who are not experiencing symptoms of infection, will be permitted to

spread the virus to others at the workplace, including unvaccinated coworkers.

Additionally, OSHA finds it necessary to require employers that do not

implement a mandatory vaccination policy to ensure that unvaccinated workers wear face

coverings in most situations when they are working near others. This reflects OSHA’s

recognition that regularly testing unvaccinated workers for COVID-19 will not be 100%

effective in identifying infected workers before they enter the workplace. Most

obviously, testing employees once a week will not prevent an unvaccinated worker from

exposing others at the workplace if the worker becomes infected and reports to the

workplace in between their weekly tests. And, even if the rule required unvaccinated

workers to be tested more frequently than once a week, infected persons may still be

missed, particularly in areas with high community spread (Chin et al., September 9,

2020).
 Accordingly, requiring unvaccinated workers to wear face coverings in most

situations when they are working near others will further mitigate the potential for

unvaccinated workers to spread the virus at the workplace. As discussed in the Summary

and Explanation for paragraph (i) (Section VI.I. of this preamble), it is well-established

that face coverings provide effective source control; that is, they largely prevent

respiratory droplets emitted by the wearer of the face covering from spreading to others,

and thus make it significantly less likely that the person wearing the mask will transmit

the virus, if they are infected. Face coverings are also believed to provide the wearer

some limited protection from exposure to the respiratory droplets of co-workers and

others (e.g., customers) (CDC, May 7, 2021), but the principal benefit of face coverings

is to significantly reduce the wearer’s ability to spread the virus. By requiring

unvaccinated workers to wear face coverings, this rule significantly reduces the

likelihood that an infected unvaccinated worker who enters the workplace despite the

testing requirements will spread the virus to others, including unvaccinated coworkers.

OSHA acknowledges that regularly testing unvaccinated workers for COVID-19

and requiring them to wear face coverings when they work near others is less protective

of unvaccinated workers than simply requiring all workers to be vaccinated. To be sure,

OSHA strongly prefers that employers adopt a mandatory vaccination policy, as

vaccination is singularly effective at protecting workers from the severe consequences

that can result from a COVID-19 infection. And, where employers do not adopt a

mandatory vaccination policy, employers may also consider alternative feasible measures

that would remove employees who remain unvaccinated from the scope of this ETS, such

as increasing telework (see the Summary and Explanation for paragraph (b), Section

VI.B. of this preamble). Nonetheless, as discussed above, OSHA has not imposed a strict

vaccination mandate on all covered employees who work in the presence of others and

not exclusively outdoors, given that the agency has never previously used its authority to
strictly mandate vaccination, and the exigent and extraordinary circumstances driving this

emergency rulemaking have not afforded OSHA a full opportunity to assess the potential

ramifications of including a strict vaccination mandate in this rule. Given these

circumstances, and employers’ unique understanding of the compliance approaches that

will best increase vaccination rates among their workforce, OSHA has designed a rule

that preserves a limited degree of employer flexibility, and strongly encourages, but does

not strictly require, vaccination. OSHA has requested comment in this ETS on whether a

strict vaccination mandate would be appropriate and the agency will consider those

comments as it determines how to proceed with this rulemaking.

References:

Beer T. (2021, October 4). COVID-19 Vaccine Mandates Are Working – Here’s The
Proof. Forbes. https://www.forbes.com/sites/tommybeer/2021/10/04/covid-19-vaccine-
mandates-are-working-heres-the-proof/?sh=1a08d2e72305. (Beer, October 4, 2021)

Bender JK et al. (2021, February 18). Analysis of asymptomatic

and presymptomatic transmission in SARS-CoV-2 outbreak, Germany, 2020. Emerging
Infectious Diseases. 27(4). https://doi.org/10.3201/eid2704.204576. (Bender et al.,
February 18, 2021)

Boseman J and Leatherby L. (2021, October 1). U.S. Coronavirus Death Toll Surpasses
700,000 Despite Wide Availability of Vaccines. The New York Times.
https://www.nytimes.com/2021/10/01/us/us-covid-deaths-700k.html. (Boseman and
Leatherby, October 1, 2021)

Byambasuren O et al., (2020, December 11). Estimating the extent of asymptomatic

COVID-19 and its potential for community transmission: Systematic review and meta-
analysis. Official Journal of the Association of Medical Microbiology and Infectious
Disease Canada. 5(4): 223-234 doi:10.3138/jammi-2020-0030. (Byambasuren et al.,
December 11, 2020)

Centers for Disease Control and Prevention (CDC). (2021, May 7). Science brief:
Community
use of cloth masks to control the spread of SARS-CoV-2.
https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/masking-science-
sars-cov2.html. (CDC, May 7, 2021)

Centers for Disease Control and Prevention (CDC). (2021, October 18). COVID Data
Tracker. https://covid.cdc.gov/covid-data-tracker/. (CDC, October 18, 2021)

Chin E et al. (2020, September 9). Frequency of routine testing for COVID-19 in high-
risk healthcare environments to reduce outbreaks.
https://doi.org/10.1101/2020.04.30.20087015. (Chin et al., September 9, 2020)
Food and Drug Administration (FDA). (2020, December 11). Emergency use
authorization for an unapproved product review memorandum (Pfizer-BioNTech
COVID-19 vaccine/BNT 162b2 mRNA-1273). https://www.fda.gov/emergency-
preparedness-and-response/coronavirus-disease-2019-covid-19/pfizer-biontech-covid-
19-vaccine. (FDA, December 11, 2020)

Food and Drug Administration (FDA). (2020, December 18). Emergency use
authorization for an unapproved product review memorandum (Moderna COVID-19
vaccine/mRNA-1273). https://www.fda.gov/emergency-preparedness-and-
response/coronavirus-disease-2019-covid-19/moderna-covid-19-vaccine. (FDA,
December 18, 2020)

Food and Drug Administration (FDA). (2021, February 26). Janssen COVID-19 vaccine.
Vaccines and Related Biological Products Advisory Committee February 26, 2021
Meeting Briefing Document. https://www.fda.gov/media/146219/download. (FDA,
February 26, 2021)

Goldberg C. (2021, July 9). Hospital Vaccine Mandates Suggest Success in Boosting
U.S. Shots. Bloomberg News. https://www.bloomberg.com/news/articles/2021-07-
09/early-mandates-boost-worker-vaccine-rates-prompt-few-to-quit. (Goldberg, July 9,
2021)

Hirsch L. (2021, September 30). After Mandate, 91% of Tyson Workers Are Vaccinated.
https://www.nytimes.com/2021/09/30/business/tyson-foods-vaccination-mandate-
rate.html. (Hirsch, September 30, 2021)

Hubler S. (2021, September 30). ‘Mandates Are Working’: Employer Ultimatums Life
Vaccination Rates, So Far. The New York Times.
https://www.nytimes.com/2021/09/30/us/california-vaccine-mandate-health-care.html.
(Hubler, September 30, 2021)

Johansson MA et al., (2021, January 7). SARS-CoV-2 transmission from people without
COVID-19 symptoms. JAMA Network Open. 4(1): e2035057.
doi:10.1001/jamanetworkopen.2020.35057. (Johansson et al., January 7, 2021)

Kaiser Family Foundation (KFF). (2021, May 6). KFF COVID-19 Vaccine Monitor:
April 2021. https://www.kff.org/coronavirus-covid-19/poll-finding/kff-covid-19-vaccine-
monitor-april-2021/. (KFF, May 6, 2021)

Kaiser Family Foundation (KFF). (2021, May 17). How employer actions could facilitate
equity in COVID-19 vaccinations. https://www.kff.org/policy-watch/how-employer-
actions-could-facilitate-equity-in-covid-19-vaccinations/. (KFF, May 17, 2021)

Kaiser Family Foundation (KFF). (2021, September). Does The Public Want To Get A
COVID-19 Vaccine? When? https://www.kff.org/coronavirus-covid-19/dashboard/kff-
covid-19-vaccine-monitor-
dashboard/?utm_source=web&utm_medium=trending&utm_campaign=COVID-19-
vaccine-monitor#messagesandinformation. (KFF, September 2021)
Klompas M et al. (2021, September). The case for mandating COVID-19 vaccines for
health care workers. Annals of Internal Medicine. https://doi.org/10.7326/M21-2366.
(Klompas et al., September 2021)

Lazer D et al. (2021, August). The COVID States Project: A 50-State COVID-19 Survey
Report #62: COVID-19 Vaccine Attitudes Among Healthcare Workers.
http://news.northeastern.edu/uploads/COVID19%20CONSORTIUM%20REPORT%2062
%20HCW%20August%202021.pdf. (Lazer et al., August, 2021)

National Academy for State Health Policy (NASHP). (2021, October 1). State Efforts to
Ban or Enforce COVID-19 Vaccine Mandates and Passports.
https://www.nashp.org/state-lawmakers-submit-bills-to-ban-employer-vaccine-
mandates/. (NASHP, October 1, 2021)

National Safety Council (NSC). (2021, September). A Year in Review, and What’s Next:
COVID-19 Employer Approaches and Worker Experiences.
https://www.nsc.org/faforms/safer-year-one-final-report. (NSC, September 2021)

Occupational Safety and Health Administration (OSHA). (2021c, October). Health

Impacts of the COVID-19 Vaccination and Testing ETS. (OSHA, October 2021c)

Otterman S and Goldstein J. (2021, September 28). Thousands of N.Y. Health Care
Workers Get Vaccinated Ahead of Deadline. The New York Times.
https://www.nytimes.com/2021/09/28/nyregion/vaccine-health-care-workers-
mandate.html. (Otterman and Goldstein, September 28, 2021)

Renton B et al. (2021, October 14). New: Hospital Vaccine Mandate Tracker. Global
Epidemics, Brown School of Public Health. https://globalepidemics.org/2021/07/24/new-
hospital-vaccine-mandate-tracker/. (Renton et al., October 14, 2021)

Scobie HM et al. (2021, September 17). Monitoring Incidence of COVID-19 Cases,

Hospitalizations, and Deaths, by Vaccination Status – 13 U.S. Jurisdictions, April 4-July
17, 2021. MMWR Morb Mortal Wkly Rep 2021; 70: early release.
https://www.cdc.gov/mmwr/volumes/70/wr/mm7037e1.htm. (Scobie et al., September 17,
2021)

The Associated Press. (2021, September 22). United Airlines says 97% of US employees
have been vaccinated. https://www.wifr.com/2021/09/22/united-airlines-say-97-us-
employees-have-been-vaccinated/. (The Associated Press, September 22, 2021)

Towey R. (2021, September 27). CNBC poll shows very little will persuade unvaccinated
Americans to get Covid shots. https://www.cnbc.com/2021/09/10/cnbc-poll-shows-very-
little-will-persuade-unvaccinated-americans-to-get-covid-shots.html. (Towey, September
27, 2021)

White House. (2021, October 7). White House Report: Vaccination Requirements Are
Helping Vaccinate More People, Protect Americans from COVID-19, and Strengthen the
Economy. https://www.whitehouse.gov/wp-content/uploads/2021/10/Vaccination-
Requirements-Report.pdf. (White House, October 7, 2021)

III. No Other Agency Action Is Adequate To Protect Employees Against Grave Danger.
 OSHA’s experience to date shows that the agency’s existing tools are inadequate

to meet the grave danger posed by COVID-19 to unvaccinated workers not covered by

the Healthcare ETS. OSHA has determined that its existing standards, regulations, the

OSH Act’s General Duty Clause, and non-mandatory guidance will not adequately

promote the most effective means to protect these workers: vaccination. The agency has

determined that this ETS is necessary to address these inadequacies. Multiple

developments support this change in approach. First, large numbers of employees are

continuing to contract COVID-19 and die. (See Grave Danger, Section III.A. of this

preamble). Further, based on a thorough review of its existing approach to protecting

employees from COVID-19 and the current state of the pandemic, OSHA finds that

existing OSHA standards, regulations, the General Duty Clause, and non-mandatory

guidance are not adequate to protect employees outside healthcare from COVID-19. The

Preamble to the Healthcare ETS includes a detailed analysis demonstrating the

inadequacy of existing tools in the healthcare industry. See 86 FR 32414-32423. In

general, the same analysis applies here. The reasons existing tools were inadequate to

protect healthcare workers apply in other industry sectors as well. The Healthcare ETS

itself, while necessary to protect healthcare workers, of course applies only to that

industry. Finally, the numerous guidance products published by other entities, such as

CDC, are not adequate to protect employees because they are not enforceable; there is no

penalty for noncompliance. 86 FR at 32415. Even as the CDC has increasingly

recommended vaccination to protect from the dangers of transmission and severe illness

related to the SARS-CoV-2 virus, vaccination rates remain uneven around the country.

(CDC, September 9, 2021; Leonhardt, September 7, 2021; KFF, October 6, 2021;

McPhillips and Cohen, May 19, 2021).

The need for this ETS is also reflected in the number of states and localities that

have issued their own mandatory standards in recognition that OSHA’s existing measures
(including non-mandatory guidance, compliance assistance, and enforcement of existing

standards) have failed to prevent the spread of the virus in workplaces. Additionally, as

mentioned previously, other states have banned certain employers from implementing

workplace vaccination mandates or from verifying an employee’s vaccination status or

from requiring face coverings. A national standard is necessary to establish clear

requirements regarding vaccination, testing and face coverings that will protect

employees in all states and preempt state or local ordinances that prevent employers from

implementing necessary protections.

a. The Current Standards and Regulations Are Inadequate.

In the Healthcare ETS, OSHA considered its enforcement efforts with regard to

existing standards and regulations that OSHA had identified as potentially applicable to

occupational exposure to SARS-CoV-2. OSHA’s analysis in Section IV of the Healthcare

ETS, 86 FR 32376, 32416-17 and hereby included in the record of this ETS18, is

applicable here in considering the need for this ETS, which covers a much broader set of

employers in all industries. There OSHA found that none of the existing OSHA standards

could sufficiently abate the hazard posed by COVID-19 in healthcare settings. Here again

OSHA concludes that the potentially applicable existing standards are insufficient to

address the grave danger faced by workers covered by this ETS. None of the current

standards, even if more rigorously enforced, can sufficiently address this cross-industry

hazard of national proportions to abate the grave danger posed by COVID-19 or lead to

the same benefits that this ETS will achieve. See Asbestos Info. Ass’n/N. Am. v.

Occupational Safety & Health Admin., 727 F.2d 415, 427 (5th Cir. 1984) (“[M]uch of the

claimed benefit could be obtained simply by enforcing the current standard.”).

18This adoption includes the citations in the referenced section of the Healthcare ETS, which are also
included in the docket for this ETS.
 Through its enforcement guidance, OSHA identified a number of current

standards and regulations that might apply when workers have occupational exposure to

SARS-CoV-2, most of which are the same standards OSHA considered in the Healthcare

ETS. (Updated Interim Enforcement Response Plan for Coronavirus Disease 2019

(COVID-19)) (OSHA, July 7, 2021). OSHA has also cited the Hazard communication

standard (29 CFR 1910.1200) during COVID-19 investigations. Accordingly, a list of

potentially applicable standards and regulations follows:

 29 CFR part 1904, Recording and Reporting Occupational Injuries and

Illnesses. This regulation requires certain employers to keep records of work-

related fatalities, injuries, and illnesses and report them to the government in

specific circumstances.

 29 CFR 1910.132, General requirements — Personal Protective Equipment

(PPE). This standard requires that appropriate PPE, including PPE for eyes, face,

head, and extremities, protective clothing, respiratory devices, and protective

shields and barriers, be provided, used, and maintained in a sanitary and reliable

condition.

 29 CFR 1910.134, Respiratory protection. This standard requires that employers

provide, and ensure the use of, appropriate respiratory protection when necessary

to protect employee health.

 29 CFR 1910.141, Sanitation. This standard applies to permanent places of

employment and contains, among other requirements, general housekeeping and

waste disposal requirements.

 29 CFR 1910.145, Specification for accident prevention signs and tags. This

standard requires the use of biological hazard signs and tags, in addition to other

types of accident prevention signs and tags.

  29 CFR Subpart U – COVID-19 Emergency Temporary Standard. The Healthcare

ETS, promulgated on June 21, 2021 includes various controls (patient screening

and management, respirators and other PPE, limiting exposure to aerosol-

generating procedures, physical distancing, physical barriers, cleaning,

disinfection, ventilation, health screening and medical management, access to

vaccination, anti-retaliation provisions, and medical removal protection) to

address the grave danger posed by COVID-19 to healthcare workers.

 29 CFR 1910.1020, Access to employee exposure and medical records. This

standard requires that employers provide employees and their designated

representatives access to relevant exposure and medical records.

 29 CFR 1910.1200, Hazard communication. This standard requires employers to

keep Safety Data Sheets (SDS) for chemical hazards, provide SDSs to employees

and their representatives when requested, and train employees about those

hazards. The standard does not apply to biological hazards, but hazard

communication becomes an issue for the SARS-CoV-2 virus when chemicals are

used to disinfect surfaces.

OSHA again finds that none of these existing standards provide for the types of

workplace controls that are necessary to combat the grave danger addressed by this ETS.

First, none of the listed potentially applicable standards require vaccination against

SARS-CoV-2, the most efficient and effective control to combat the grave danger posed

by the virus. (The Bloodborne Pathogen Standard requires that the hepatitis B vaccine be

made available to certain employees, but that is not that is not relevant here, since the

hepatitis vaccine provides no protection against COVID-19). Nor are the additional safety

measures included in this ETS—vaccination verification, screening testing, face

coverings, and medical removal of COVID-19 positive workers— required by existing

standards other than OSHA’s Healthcare ETS (covering employees exempted from this

new ETS while the Healthcare ETS is in effect).

Second, because existing standards do not contain provisions specifically targeted

at the COVID-19 hazard, it may be difficult for employers and employees to determine

what particular COVID-19 safety measures are required by existing standards, or how the

separate standards are expected to work together as applied to COVID-19. An ETS that

contains provisions specifically addressing COVID-19 hazards in covered workplaces

will provide clear instructions. More certainty will lead to more compliance, and more

compliance will lead to improved protection of employees covered by this standard.

Third, requirements in some standards may be appropriate for other situations but

simply do not contemplate COVID-19 and fail to address important aspects of the hazard.

For example, the general sanitation standard requires employers to provide warm water,

soap, and towels that can be used in hand washing, but does not require disinfection or

provision of hand sanitizer where handwashing facilities cannot be made readily

available. See 86 FR 32417. Although the sanitation standard might appear at first glance

to be relevant here, it simply does not require the types of controls that would, even if

more rigorously enforced, sufficiently reduce the threat of COVID-19 in the workplace.

As such, OSHA affirms its previous determination that some of the above-listed

standards—including the sanitation standard—are in practice too difficult to apply to the

COVID-19 hazard and have never been cited in COVID enforcement. 86 FR 32416.

Fourth, existing recordkeeping and reporting regulations do not adequately allow

the employer or the agency to assess the full scope of COVID-19 workplace exposures

and protection. OSHA’s general recordkeeping regulations were not written with the

nature of COVID-19 transmission or illness in mind. In order to adequately understand

and thereby control the spread of COVID-19 in the workforce, it is critical that the

employer has records of employees’ vaccination status, and of the testing undergone by
employees who do not receive vaccination, and that it knows of all cases of COVID-19

occurring among employees. However, such information is outside of the scope of

OSHA’s existing recordkeeping requirements, which are limited to injuries or illnesses

that the employer knows to be work-related.

Moreover, existing reporting regulations do not adequately ensure that OSHA has

the full picture of the impact of COVID-19 because those regulations only require

employers to report in-patient hospitalizations that occur within 24 hours of the work-

related incident and to report fatalities that occur within thirty days of the work-related

incident. 86 FR at 32417. Many COVID-19 infections will not result in hospitalization or

death until well after these limited reporting periods. Under existing regulations, such

cases are not required to be reported to OSHA, which limits the agency’s ability to fully

understand the impact of COVID-19 on the workforce. 86 FR 32417. This ETS includes

a provision, paragraph (k), that removes the time limitation on reporting for COVID-19

cases.

In conclusion, OSHA’s experience has demonstrated that existing standards and

regulations are inadequate to address the current COVID-19 hazard.

b. The General Duty Clause Is Inadequate to Meet the Current Crisis.

Section 5(a)(1) of the OSH Act, or the General Duty Clause, provides the general

mandate that each employer “furnish to each of [its] employees employment and a place

of employment which are free from recognized hazards that are causing or are likely to

cause death or serious physical harm to [its] employees.” 29 U.S.C. 654(a)(1). For

General Duty Clause citations to be upheld, OSHA must demonstrate elements of proof

that are supplementary to, and can be more difficult to show than, the elements of proof

required for violations of specific standards, where a hazard is presumed. Specifically, to

prove a violation of the General Duty Clause, OSHA needs to establish – in each

individual case – that: (1) an activity or condition in the employer’s workplace presented
a hazard to an employee; (2) the hazard was recognized; (3) the hazard was causing or

was likely to cause death or serious physical harm; and (4) feasible means to eliminate or

materially reduce the hazard existed. BHC Nw. Psychiatric Hosp., LLC v. Sec’y of

Labor, 951 F.3d 558, 563 (D.C. Cir. 2020). OSHA often relies on the General Duty

Clause to fill gaps where specific standards do not address a hazard and OSHA enforces

it through case-by-case adjudicative proceedings. See United States v. Strum, 84 F.3d 1, 5

(1st Cir. 1996).

OSHA has previously found the General Duty Clause to be inadequate to protect

employees from dangers posed by infectious agents. In promulgating the bloodborne

pathogens standard, OSHA explained that enforcement under the General Duty Clause

was insufficient to protect employees from the serious hazards those pathogens present.

56 FR 64007 (December 6, 1991). In the recently promulgated Healthcare ETS, OSHA

found that the General Duty Clause was insufficient to protect healthcare workers from

the grave danger they faced as well. 86 FR 32418. While OSHA initially attempted to use

the General Duty Clause to protect employees across all industries from COVID-19-

related hazards, OSHA’s experience has demonstrated that the Clause is grossly

inadequate to protect employees covered by this ETS from the grave danger posed by

COVID-19 in the workplace. As explained more fully below, OSHA finds this ETS is

necessary to protect employees from the hazards of COVID-19.

As an initial matter, the General Duty Clause does not provide employers with

specific requirements to follow or a roadmap for implementing appropriate abatement

measures. The ETS, however, provides a clear statement of what OSHA expects

employers to do to protect workers, thus facilitating better compliance. The General

Duty Clause is so named because it imposes a general duty to keep the workplace free of

recognized serious hazards; the ETS, in contrast, lays out clear requirements for

employers to implement vaccination policies including vaccination verification, support

for employee vaccination, screening testing and face coverings for unvaccinated workers,

and medical removal of COVID-19 positive employees. Conveying obligations as clearly

and specifically as possible makes it much more likely that employers will comply with

those obligations and thereby protect workers from COVID-19 hazards. See, e.g.,

Integra Health Mgmt., Inc., 2019 WL 1142920, at *7 n.10 (No. 13-1124, 2019) (noting

that standards “give clear notice of what is required of the regulated community”); 56 FR

64007 (“because the standard is much more specific than the current requirements

[general standards and the general duty clause], employers and employees are given more

guidance in carrying out the goal of reducing the risks of occupational exposure to

bloodborne pathogens”).

Moreover, several characteristics of General Duty Clause enforcement actions

make them an inadequate means to address hazards associated with COVID-19. First, it

would be virtually impossible for OSHA to require and enforce the most important

worker-protective elements of the ETS (such as vaccination and testing) under the

General Duty Clause. Second, OSHA’s burden of proof for establishing a General Duty

Clause violation is heavier than for standards violations. Third, promulgating an ETS will

enable OSHA to issue more meaningful penalties for willful and egregious violations,

thus creating effective deterrence against employers who intentionally disregard their

obligations under the Act or demonstrate plain indifference to employee safety. As

discussed in more detail below, all of these considerations demonstrate OSHA’s need to

promulgate this ETS in order to protect unvaccinated workers covered by this standard

from hazards posed by COVID-19.

The General Duty Clause is ill-suited to requiring employers to adopt vaccination and
testing policies, like those required by the ETS

Because the General Duty Clause requires OSHA to establish the existence and

feasibility of abatement measures that can materially reduce a hazard, it is difficult for

OSHA to use the clause to require specific control measures where an employer is doing
something, but not what the Secretary has determined is needed to fully address the

serious hazard. See, e.g., Waldon Health Care Center, 16 BNA OSHC 1052, 1993 WL

119662 at * (No. 89-2804, 1993) (vacating OSHA citation requiring pre-exposure

hepatitis B vaccination under General Duty Clause by finding that although vaccination

would more fully reduce the hazard, the employer’s chosen means of abatement were

sufficient); Brown & Root, Inc., Power Plant Div., 8 BNA OSHC 2140, 1980 WL 10668

at *5 (No. 76-1296, 1980) (“[T]he employer may defend against a section 5(a)(1) citation

by asserting that it was using a method of abatement other than the one suggested by the

Secretary.”).

Further, even where OSHA establishes a violation of the General Duty Clause, the

employer is under no obligation to implement the feasible means of abatement proven by

OSHA as part of its prima facie case. Cyrus Mines Corp., 11 OSH Cas. (BNA) 1063,

1982 WL 22717, at *4 (No. 76-616, 1983) (“[The employer] is not required to adopt the

abatement method suggested by the Secretary, even one found feasible by the

Commission; it may satisfy its duty to comply with the standard by using any feasible

method that is appropriate to abate the violation.”); Brown & Root, Inc., Power Plant

Div., 1980 WL 10668 at *5. Thus, even in cases where OSHA prevails, the employer

need not necessarily implement the specific abatement measure(s) OSHA established

would materially reduce the hazard. The employer could select alternative controls and

then it would be up to OSHA, if it wished to cite the employer again, to establish that the

recognized hazard continued to exist and that its preferred controls could materially

reduce the hazard even further.

Given the severity and pervasiveness of the COVID-19 hazard, OSHA has

determined that the specific abatement measures provided in this ETS are necessary to

protect workers from grave danger. Under the General Duty Clause alone, it would be

nearly impossible to require employers to provide these specific measures, and even then,
it could only be on a case-by-case enforcement basis. Considering the magnitude and

ubiquity of the danger that SARS-CoV-2 poses to workers across the country, the case-

by-case adjudicatory regime set up through the General Duty Clause is simply not

adequate to combat the risk of severe illness and death caused by the virus.

General Duty Clause Citations Impose a Heavy Litigation Burden on OSHA

Under the General Duty Clause OSHA must prove that there is a recognized

hazard, i.e., a workplace condition or practice to which employees are exposed, creating

the potential for death or serious physical harm to employees. See SeaWorld of Florida

LLC v. Perez, 748 F.3d 1202, 1207 (D.C. Cir. 2014); Integra Health Management, 2019

WL 1142920, at *5. Whether a particular workplace condition or practice is a

“recognized hazard” under the General Duty Clause is a question of fact that must be

decided in each individual case. See SeaWorld of Florida LLC, 748 F.3d at 1208. In the

case of a COVID-19-related citation, this means showing not just that the virus is a

hazard as a general matter – a fairly indisputable point – but also that the specific

conditions in the cited workplace, such as unvaccinated, unmasked employees working in

close proximity to other employees for extended periods, create a COVID-19-related

hazard.

In contrast, an OSHA standard that requires or prohibits specific conditions or

practices establishes the existence of a hazard. See Harry C. Crooker & Sons, Inc. v.

Occupational Safety & Health Rev. Comm’n, 537 F.3d 79, 85 (1st Cir. 2008); Bunge

Corp. v. Sec’y of Labor, 638 F.2d 831, 834 (5th Cir. 1981). Thus, in enforcement

proceedings under OSHA standards, as opposed to the General Duty Clause, “the

Secretary need not prove that the violative conditions are actually hazardous.” Modern

Drop Forge Co. v. Sec’y of Labor, 683 F.2d 1105, 1114 (7th Cir. 1982). With OSHA’s

finding that the hazard of exposure to COVID-19 can exist for unvaccinated workers in

all covered workplaces (see Grave Danger, Section III.A. of this preamble), the ETS will
eliminate the burden to repeatedly prove, workplace by workplace, the existence of a

COVID-19 hazard under the General Duty Clause.

One of the most significant advantages to standards like the ETS that establish the

existence of the hazard at the rulemaking stage is that the Secretary can require specific

abatement measures without having to prove that a specific cited workplace is already

hazardous.19 In contrast, as discussed above, under the General Duty Clause the

Secretary cannot require abatement before proving in the enforcement proceeding that an

existing condition at the workplace is hazardous. For example, in a challenge to OSHA’s

Grain Handling Standard, which was promulgated in part to protect employees from the

risk of fire and explosion from accumulations of grain dust, the Fifth Circuit

acknowledged OSHA’s inability to effectively protect employees from these hazards

under the General Duty Clause in upholding, in large part, the standard. See Nat’l Grain

& Feed Ass’n v. Occupational Safety & Health Admin., 866 F.2d 717, 721 (5th Cir. 1988)

(noting Secretary’s difficulty in proving explosion hazards of grain handling under

General Duty Clause). Although OSHA had attempted to address fire and explosion

hazards in the grain handling industry under the General Duty Clause, “employers

generally were successful in arguing that OSHA had not proved that the specific

condition cited could cause a fire or explosion.” Id. at 721 & n.6 (citing cases holding

that OSHA failed to establish a fire or explosion hazard under the General Duty Clause).

The Grain Handling Standard, in contrast, established specific limits on accumulations of

grain dust based on its combustible and explosive nature, and the standard allowed

OSHA to cite employers for exceeding those limits without the need to prove at the

19“The Act does not wait for an employee to die or become injured. It authorizes the promulgation of
health and safety standards and the issuance of citations in the hope that these will act to prevent deaths and
injuries from ever occurring.” Whirlpool Corp, v. Marshall, 445 U.S. 1, 12 (1980); see also Arkansas-Best
Freight Sys., Inc. v. Occupational Safety & Health Rev. Comm’n, 529 F.2d 649, 653 (8th Cir. 1976) (noting
that the “[OSH] Act is intended to prevent the first injury”).
enforcement stage that each cited accumulation was likely to cause a fire or explosion.

See id. at 725-26.

The same logic applies to COVID-19 hazards. Given OSHA’s burden under the

General Duty Clause to prove that conditions at the cited workplace are hazardous, it is

difficult for OSHA to ensure necessary abatement before individual employee lives and

health are unnecessarily endangered by exposure to COVID-19, despite widespread

evidence of the grave danger posed by worker exposure to COVID-19. Indeed, despite

publishing a voluminous collection of COVID-19 guidance online and receiving and

investigating thousands of complaints, OSHA did not believe it could justify the issuance

of more than 20 COVID-19 related General Duty Clause citations over the entire span of

the pandemic so far, because of the quantum of proof the Secretary must amass under the

General Duty Clause. Unlike enforcement under the General Duty Clause, this ETS

allows OSHA to cite employers for each protective requirement they fail to implement

without the need to wait for employee infection or death to prove in an enforcement

proceeding that the particular cited workplace was hazardous without that particular

measure in place. Thus, this ETS, which covers millions of workers nation-wide, is

significantly preferable to the General Duty Clause with respect to such a highly

transmissible virus because the inability to prevent a single exposure can quickly result in

an exponential increase in exposures and illnesses or fatalities even at a single worksite.

An additional limitation of the General Duty Clause is that proving that there are

feasible means to materially reduce a recognized hazard typically requires testimony

from an expert witness in each separate case, which limits OSHA’s ability to prosecute

these cases as broadly as needed to protect workers, in light of the expense involved. See,

e.g., Integra Health Management, 2019 WL 1142920, at *13 (requiring expert witness to

prove proposed abatement measures would materially reduce hazard). In contrast, where

an OSHA standard specifies the means of compliance, the agency has already made the
necessary technical determinations in the rulemaking and therefore does not need to

establish feasibility of compliance as part of its prima facie case in an enforcement

proceeding. See, e.g., A.J. McNulty & Co. v. Sec’y of Labor, 283 F.3d 328, 334 (D.C.

Cir. 2002); S. Colorado Prestress Co. v. Occupational Safety & Health Rev. Comm’n,

586 F.2d 1342, 1351 (10th Cir. 1978). Preventing the initial exposure and protecting as

many workers as quickly as possible is especially critical in the context of COVID-19

because, as explained in Grave Danger, Section III.A. of this preamble, it can spread so

easily in workplaces.

The ETS will also permit OSHA to achieve meaningful deterrence when necessary to
address willful or egregious failures to protect employees against the COVID-19 hazard

As described above, in contrast to the broad language of the General Duty Clause,

this ETS will prescribe specific measures employers covered by this standard must

implement. This specificity will make it easier for OSHA to determine whether an

employer has intentionally disregarded its obligations or exhibited a plain indifference to

employee safety or health. In such instances, OSHA can classify the citations as

“willful,” allowing it to propose higher penalties, with increased deterrent effects. In

promulgating the Healthcare ETS, OSHA noted that early in the pandemic, shifting

guidance on the safety measures employers should take to protect their employees from

COVID-19 created ambiguity regarding employers’ specific obligations. Thus, OSHA

could not readily determine whether a particular employer had “intentionally”

disregarded obligations that were not yet clear. And, even as the guidance began to

stabilize, OSHA’s ability to determine “intentional disregard” or “plain indifference” was

difficult, for example, when an employer took some steps address the COVID-19 hazard.

86 FR 32420. The Healthcare ETS largely resolved this issue for employers covered by

that standard, by laying out clearly what parameters to put in place to protect healthcare

workers. However, this general challenge persists in OSHA’s attempts at enforcement in

other industries.
 Further, OSHA has adopted its “egregious violation” policy to impose sufficiently

large penalties that achieve appropriate deterrence against bad actor employers who

willfully disregard their obligation to protect their employees when certain aggravating

circumstances are present, such as a large number of injuries or illnesses, bad faith, or an

extensive history of noncompliance (OSHA Directive CPL 02-00-080 (October 21,

1990)). Its purpose is to increase the deterrent impact of OSHA’s enforcement activity.

This policy utilizes OSHA’s authority to issue a separate penalty for each instance of

noncompliance with an OSHA standard, such as each employee lacking the same

required protections, or each workstation lacking the same required controls. It can be

more difficult to use this policy under the General Duty Clause because the Fifth Circuit

and the Occupational Safety and Health Review Commission have held that, under the

General Duty Clause, OSHA may only cite a hazardous condition once, regardless of its

scope or the number of workers affected. Reich v. Arcadian Corp., 110 F.3d 1192, 1199

(5th Cir. 1997). Thus, even where OSHA finds that an employer willfully failed to

protect a large number of employees from a COVID-19 hazard, OSHA might not be able

to cite the employer on a per-instance basis for failing to protect each of its employees.

The provisions of this ETS have been intentionally drafted to make clear OSHA’s

authority to separately cite employers for each instance of the employer’s failure to

protect employees and for each affected employee, where appropriate.

By providing needed clarity, the ETS will facilitate “willful” and “egregious”

determinations that are critical enforcement tools OSHA can use to adequately address

violations by employers who have shown a conscious disregard for the health and safety

of their workers in response to the pandemic. Without the necessary clarity, OSHA has

been limited in its ability to impose penalties high enough to motivate the very large

employers who are unlikely to be deterred by penalty assessments of tens of thousands of

dollars, but whose noncompliance can endanger thousands of workers. Indeed, OSHA
has only been able to issue two COVID-19-related “willful” citations and no “egregious”

citations since the start of the pandemic because of the challenges described above.

For all of the reasons described above, and after over a year of attempting to use

the General Duty Clause to address this widespread hazard, OSHA finds that the General

Duty Clause is not an adequate enforcement tool to protect employees covered by this

standard from the grave danger posed by COVID-19.

c. OSHA and Other Entity Guidance Is Insufficient.

OSHA has issued numerous non-mandatory guidance products to advise

employers on how to protect workers from SARS-CoV-2 infection (see

https://www.osha.gov/coronavirus). Even the most comprehensive guidance makes clear,

as it must, that the guidance itself imposes no new legal obligations, and that its

recommendations are “advisory in nature.” (See OSHA’s online guidance, Protecting

Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the

Workplace (OSHA, Updated August 13, 2021); and OSHA’s earlier 35-page booklet,

Guidance on Preparing Workplaces for Covid-19, (OSHA, March 9, 2020)). This

guidance, as well as guidance products issued by other government agencies and

organizations, including the CDC, the Centers for Medicare & Medicaid Services (CMS),

the Institute of Medicine (IOM), and the World Health Organization (WHO), help protect

employees to the extent that employers voluntarily choose to implement the practices

they recommend. Unfortunately, OSHA’s experience and the continued spread of

COVID-19 throughout the country shows that does not happen consistently or rigorously

enough, resulting in inadequate protection for employees. For example, the CDC has

strongly recommended vaccination since vaccines became widely available earlier in the

year, but many employees have yet to take this simples step, which would protect

themselves and their co-workers from the danger of COVID-19.

 As documented in numerous peer-reviewed scientific publications, CDC, IOM,

and WHO have recognized a lack of compliance with non-mandatory recommended

infection-control practices (Siegel et al., 2007; IOM, 2009; WHO, 2009). As noted in the

preamble to the Healthcare ETS, OSHA was aware of these findings when it previously

concluded that an ETS was not necessary, but at the time of that conclusion, the agency

erroneously believed that it would be able to effectively use the non-mandatory guidance

as a basis for establishing the mandatory requirements of the General Duty Clause, and

informing employers of their compliance obligations under existing standards. 86 FR

32421. As explained above, that has not proven to be an effective strategy. Moreover,

when OSHA made its initial necessity determination at the beginning of the pandemic, it

made an assumption that given the unprecedented nature of the COVID-19 pandemic,

there would be an unusual level of widespread voluntary compliance by the regulated

community with COVID-19-related safety guidelines. (See, e.g., DOL, May 29, 2020 at

20 (observing that “[n]ever in the last century have the American people been as mindful,

wary, and cautious about a health risk as they are now with respect to COVID-19,” and

that many “protective measures are being implemented voluntarily, as reflected in a

plethora of industry guidelines, company-specific plans, and other sources”)).

Since that time, however, developments have led OSHA to conclude that the same

uneven compliance documented by CDC, IOM, and WHO is also occurring for the

COVID-19 guidance issued by OSHA and other agencies. For example, rising “COVID

fatigue” or “pandemic fatigue” has been reported for nearly a year already—i.e., a

decrease in voluntary use of COVID-19 mitigation measures over time (Meichtry et al.,

October 26, 2020; Silva and Martin, November 14, 2020; Belanger and Leander,

December 9, 2020; Millard, February 18, 2021). Other reasons that people have not

followed COVID-19 guidance include fear of financial loss; skepticism about the danger

posed by COVID-19; and even a simple human tendency, called “psychological

reactance,” to resist curbs on personal freedoms, i.e., an urge to do the opposite of what

somebody tells you to do (Belanger and Leander, December 9, 2020; Markman, April 20,

2020). OSHA is seeing evidence of these trends in its COVID-19 enforcement. For

example, although OSHA has issued guidance since the spring of 2020 encouraging the

use of physical distancing and barriers as a means of protecting employees at fixed work

locations, there have been a number of news reports indicating that employers ignore that

guidance (Romo, November 19, 2020; Richards, May 5, 2020; Lynch, July 9, 2020).

This was evidenced by a cross-sectional study performed from late summer to early fall

of 2020 in New York and New Jersey that found non-compliance and widespread

inconsistencies in COVID-19 response programs (Koshy et al., February 4, 2021).

Indeed, OSHA continues to receive complaints and referrals attesting to such workplace

practices. (OSHA, October 17, 2021). Worse, some employers must now deal with

employees who not only have yet to be vaccinated but compound the danger by hiding

their unvaccinated status and declining to wear source protection that would identify

them as unvaccinated, even though it could provide some protection to their coworkers,

in workplaces where there is a stigma attached to being unvaccinated. (Ember and

Murphy Marcos, August 7, 2021). This ETS contains notification and vaccine

verification requirements that address these avoidant behaviors and mitigate the hazard of

undisclosed exposure and transmission (see the Summary and Explanation for paragraphs

(e), (g), and (h), Sections VI.E., VI.G., and VI.H. of this preamble).

OSHA’s more recent guidance update encourages employers to facilitate

employee vaccination by providing paid time off and encourages testing and masks for

unvaccinated workers. However, as discussed previously, vaccination rates remain

inconsistent across the country and have slowed significantly since the spring of 2021.

And infection rates remain high, especially among the unvaccinated. It is clear, as

discussed previously, that voluntary self-regulation by employers will not sufficiently

reduce the danger that COVID-19 poses in workplaces covered by this standard. As noted

in the White House Report on vaccination requirements released on October 7, at this

time only 25% of businesses have vaccine mandates in place (White House, October 7,

2021). Since this ETS and other federal efforts to require vaccination were announced

more private and public sector institutions have begun to prepare to implement

vaccination requirements, further demonstrating the need for this rule as an impetus for

employer action (White House, October 7, 2021).

The high number of COVID-19-related complaints and reports that OSHA

continues to receive on a regular basis suggests a lack of widespread compliance with

existing voluntary guidance: from March 2020 to October 2021, OSHA has continued to

receive hundreds of COVID-19-related complaints every month, including over 400

complaints during the month of August 2021, and over 450 complaints to date in the

month of September (OSHA, October 11, 2021). And, as of October 17, OSHA has

received 223 additional COVID-19-related complaints. (OSHA, October 17, 2021). If

guidance were followed more strictly, or if there were enough voluntary compliance with

steps to prevent illness, OSHA would expect to see a significant reduction in COVID-19-

related complaints from employees.

The dramatic increases in the percentage of the population that contracted the

virus during the summer of 2021 indicates a continued risk of COVID-19 transmission in

workplace settings (for more information on the prevalence of COVID-19 see Grave

Danger, Section III.A. of this preamble) despite OSHA’s publication of numerous

specific and comprehensive guidance documents. OSHA has found that neither reliance

on voluntary action by employers nor OSHA non-mandatory guidance is an adequate

substitute for specific, mandatory workplace standards at the federal level. Public Citizen

v. Auchter, 702 F.2d 1150 at 1153 (voluntary action by employers “alerted and

responsive” to new health data is not an adequate substitute for government action).
d. A Uniform Nationwide Response to the Pandemic is Necessary to Protect Workers.

As the pandemic has continued in the United States, there has been increasing

recognition of the need for a more consistent national approach (GAO, September, 2020;

Budryk, November 17, 2020; Horsley, May 1, 2020; DOL OIG, February 25, 2021).

Many employers have advised OSHA that they would welcome a nationwide ETS. For

example, in its October 9, 2020 petition for a COVID-19 ETS, ORCHSE Strategies, LLC

explained that it is “imperative” that OSHA issue an ETS to provide employers one

standardized set of requirements to address safety and health for their workers

(ORCHSE, October 9, 2020). This group of prominent business representatives

explained that an ETS would eliminate confusion and unnecessary burden on workplaces

that are struggling to understand how best to protect their employees in the face of

confusing and differing requirements across states and localities.

The lack of a national standard on this hazard has led to increasing imbalance in

state and local regulation, a problem that OSHA already identified as concerning in its

Healthcare ETS. See 86 FR 32413 (“The resulting patchwork of state and local

regulations led to inadequate and varying levels of protection for workers across the

country, and has caused problems for many employees and businesses.”) Since the

Healthcare ETS was published, states and localities have taken increasingly more

divergent approaches to COVID-19 vaccination, vaccination verification, screening

testing, and the use of face coverings in the workplace. Currently, the spectrum ranges

from states and localities requiring vaccine mandates and face coverings to states

prohibiting or restricting them, with many states falling somewhere in between. Due to

uneven approaches to vaccination across the country, states with the lowest rates of

vaccination have COVID-19 infection rates four times as high as in states with the

highest vaccine rates. (Leonhardt, September 7, 2021). Given that thousands of working

age people continue to be infected with COVID-19 each week, many of whom will
become hospitalized or die, OSHA recognizes that a patchwork approach to worker

safety has not been successful in mitigating this infectious disease outbreak (CDC,

October 18, 2021 – Cases, By Age). It has become clear that a Federal standard, by way

of this ETS, is necessary to provide clear and consistent protection to employees across

the country. As explained in Pertinent Legal Authority (Section II. of this preamble) and

the Summary and Explanation for paragraph (a) (Section VI.A. of this preamble), OSHA

has the authority to comprehensively address the issue(s) described in this ETS, and the

standard is intended to preempt conflicting state and local laws.

In sum, based on its enforcement experience during the pandemic to date, OSHA

concludes that continued reliance on existing standards and regulations, the General Duty

Clause, and guidance, in lieu of an ETS, is not adequate to protect unvaccinated

employees from the grave danger of being infected by, and suffering death or serious

health consequences from, COVID-19.

References:

Belanger J and Leander P. (2020, December 9). What Motivates COVID Rule Breakers?
Scientific American. https://www.scientificamerican.com/article/what-motivates-covid-
rule-breakers/. (Belanger and Leander, December 9, 2020)

Budryk Z. (2020, November 17). Fauci calls for ‘a uniform approach’ to coronavirus
pandemic. The Hill. https://thehill.com/policy/healthcare/526378-fauci-calls-for-a-
uniform-approach-to-the-coronavirus-pandemic?rl=1. (Budryk, November 17, 2020)
Centers for Disease Control and Prevention (CDC). (2021, September 9). Your COVID-
19 Vaccination. https://www.cdc.gov/coronavirus/2019-ncov/vaccines/your-
vaccination.html. (CDC, September 9, 2021)
Centers for Disease Control and Prevention (CDC). (2021, October 18). COVID Data
Tracker. https://covid.cdc.gov/covid-data-tracker/. (CDC, October 18, 2021)

Ember S and Murphy Marcos C. (2021, August 7). They Don’t Want the Shot. They
Don’t Want Colleagues to Know. The New York Times.
https://www.nytimes.com/2021/08/07/business/workplace-vaccinations-coronavirus-
reopenings.html. (Ember and Murphy Marcos, August 7, 2021)
Government Accountability Office (GAO). (2020, September). COVID-19: Federal
Efforts Could Be Strengthened by Timely and Concerted Actions.
https://www.gao.gov/assets/710/709934.pdf. (GAO, September 2020)
Horsley S. (2020, May 1). U.S. Workplace Safety Rules Missing in the Pandemic.
National Public Radio. https://www.npr.org/2020/05/01/849212026/it-s-the-wild-west-u-
s-workplace-safety-rules-missing-in-the-pandemic. (Horsley, May 1, 2020)
Institute of Medicine (IOM). (2009). Respiratory Protection for Healthcare Workers in a
Workplace Against Novel H1N1 Influenza A: A letter report. The National Academies
Press. http://www.nap.edu/catalog/12748.html. (IOM, 2009)
Kaiser Family Foundation (KFF). (2021, October 6). Latest Data on COVID-19
Vaccinations by Race/Ethnicity. https://www.kff.org/coronavirus-covid-19/issue-
brief/latest-data-on-covid-19-vaccinations-by-race-ethnicity/. (KFF, October 6, 2021)
Koshy K et al., (February 4, 2021). Perspectives of region II OSHA authorized safety and
health trainers about initial COVID-19 response programs. Safety Science 138.
https://doi.org/10.1016/j.ssci.2021.105193. (Koshy et al., February 4, 2021)
Leonhardt D. (2021, September 7). One in 5,000. The New York Times.
https://www.nytimes.com/2021/09/07/briefing/risk-breakthrough-infections-delta.html.
(Leonhardt, September 7, 2021)

Lynch R. (2020, July 9). Orange County to crack down on gyms that ignore Covid-19
safety guidelines. Orlando Business Journal.
https://www.bizjournals.com/orlando/news/2020/07/09/orange-county-gyms-could-face-
scrutiny-for-not.html. (Lynch, July 9, 2020)
Markman A. (2020, April 20). Why are there still so many coronavirus skeptics? Fast
Company. https://www.fastcompany.com/90492518/why-are-there-still-so-many-
coronavirus-skeptics. (Markman, April 20, 2020)
McPhillips D and Cohen E. (2021, May 19). Uneven vaccination rates across the US
linked to COVID-19 case trends, worry experts. CNN Health.
https://www.cnn.com/2021/05/19/health/uneven-vaccination-rates-covid-19-
trends/index.html. (McPhillips and Cohen, May 19, 2021)
Meichtry S et al. (2020, October 26). Pandemic Fatigue is Real – And It’s Spreading;
Collective exhaustion with coronavirus restrictions has emerged as a formidable
adversary for governments. The Wall Street Journal.
https://www.wsj.com/articles/pandemic-fatigue-is-realand-its-spreading-11603704601.
(Meichtry et al., October 26, 2020)
Millard E. (2021, February 18). How to not let pandemic fatigue turn into pandemic
burnout. Everyday Health. https://www.everydayhealth.com/coronavirus/how-to-not-let-
pandemic-fatigue-turn-into-pandemic-burnout/. (Millard, February 18, 2021)
Occupational Safety and Health Administration (OSHA). (2020, March 9). Guidance on
Preparing Workplaces for Covid-19.
https://www.osha.gov/sites/default/files/publications/OSHA3990.pdf. (OSHA, March 9,
2020
Occupational Safety and Health Administration (OSHA). (2021, July 7). Updated Interim
Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19).
https://www.osha.gov/laws-regs/standardinterpretations/2021-07-07. (OSHA, July 7,
2021)
Occupational Safety and Health Administration (OSHA). (2021, August 13). Guidance
on Preparing Workplaces for Covid-19.
https://www.osha.gov/sites/default/files/publications/OSHA3990.pdf. (OSHA, August 13,
2021)
Occupational Safety and Health Administration (OSHA). (2021, August 13). Protecting
Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the
Workplace. https://www.osha.gov/coronavirus/safework. (OSHA, Updated August 13,
2021)
Occupational Safety and Health Administration (OSHA). (2021, October 17). Summary
Data for Federal and State Programs – Enforcement.
https://www.osha.gov/enforcement/covid-19-data#complaints_referrals. (OSHA, October
17, 2021)
ORCHSE Strategies. (2020, October 9). “Petition to the U.S. Department of Labor –
Occupational Safety and Health Administration (OSHA) for an Emergency Temporary
Standard (ETS) for Infectious Disease.” (ORCHSE, October 9, 2020)
Richards C. (2020, May 5). 2 Utah County businesses told staff to ignore COVID-19
guidelines, resulting in 68 positive cases. Daily Herald.
https://www.heraldextra.com/news/local/2-utah-county-businesses-told-staff-to-ignore-
covid-19-guidelines-resulting-in-68-positive/article_d8426991-a693-5879-9d88-
f9e094aef5b5.html. (Richards, May 5, 2020)
Romo V. (2020, November 19). Tyson managers suspended after allegedly betting if
workers would contract COVID. National Public Radio.
https://www.npr.org/2020/11/19/936905707/tyson-managers-suspended-after-allegedly-
betting-if-workers-would-contract-covid. (Romo, November 19, 2020)
Siegel J, Rhinehart E, Jackson M, Chiarello L, and the Healthcare Infection Control
Practices Advisory Committee. (2007). 2007 Guideline for isolation precautions:
preventing transmission of infectious agents in healthcare settings.
https://www.cdc.gov/infectioncontrol/pdf/guidelines/isolation-guidelines-H.pdf. (Siegel et
al., 2007)
Silva C and Martin M. (2020, November 14). U.S. Surgeon General Blames “Pandemic
Fatigue” for Recent COVID-19 Surge. NPR. https://www.npr.org/sections/coronavirus-
live-updates/2020/11/14/934986232/u-s-surgeon-general-blames-pandemic-fatigue-for-
recent-covid-19-surge. (Silva and Martin, November 14, 2020)
United States Department of Labor (DOL) and Office of the Inspector General (OIG).
(2021, February 25). COVID-19: Increased Worksite Complaints and Reduced OSHA
Inspections Leave U.S. Workers’ Safety at Increased Risk.
http://www.oig.dol.gov/public/reports/oa/2021/19-21-003-10-105.pdf. (DOL OIG,
February 25, 2021)
United States Department of Labor (DOL). (2020, May 29). In Re: American Federation
Of Labor And Congress Of Industrial Organizations. Department Of Labor’s Response to
the Emergency Petition for a Writ of Mandamus, No. 20-1158 (D.C. Cir., May 29, 2020).
(DOL, May 29, 2020)
White House. (2021, October 7). White House Report: Vaccination requirements are
helping vaccinate more people, protect Americans from COVID-19, and strengthen the
economy. https://www.whitehouse.gov/wp-content/uploads/2021/10/Vaccination-
Requirements-Report.pdf. (White House, October 7, 2021)
World Health Organization (WHO). (2009). WHO Guidelines on Hand Hygiene in
Health Care: A Summary – First Global Patient Safety Challenge Clean Care is Safer
Care. https://www.ncbi.nlm.nih.gov/books/NBK144013/pdf/Bookshelf_NBK144013.pdf.
(WHO, 2009)

IV. Conclusion.

This pandemic continues to take a massive toll on American society, and

addressing it requires a comprehensive national response. This ETS is part of that

response. OSHA shares the nation’s hope for the promise of recovery created by the

vaccines. But in the meantime, it recognizes that we have not yet succeeded in defeating

the virus, and that many workers across the country are in grave danger. Therefore, this

ETS, with mitigation measures emphasizing worker vaccination, is necessary. Although

OSHA finds it necessary to institute specific mitigation measures for the immediate

future, the agency can adjust as conditions change. Even after issuing an ETS, OSHA

retains the flexibility to update the ETS to adjust to the subsequent evolution of CDC

workplace guidance. This ETS addresses (and incorporates as a main component) the

major development in infection control over the last year — the development and

growing implementation of COVID-19 vaccines. Going forward, further developments

can be addressed through OSHA’s authority to modify the ETS if needed, or to terminate

it entirely if vaccination and other efforts end the current emergency. However, at this

point in time, the available evidence indicates that the ETS is necessary to protect

unvaccinated employees across the country from the grave danger of COVID-19.

IV. Feasibility

A. Technological Feasibility

This section presents an overview of the technological feasibility assessment for

OSHA’s Emergency Temporary Standard (ETS) for COVID-19 that requires all
employers with 100 or more employees to ensure that all employees are fully vaccinated

unless they implement a policy requiring employees to undergo testing for COVID-19 at

least once every seven days and wear face coverings.

Technological feasibility has been interpreted broadly to mean “capable of being

done” (Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 509-510 (1981)). A standard is

technologically feasible if the protective measures it requires already exist, can be

brought into existence with available technology, or can be created with technology that

can reasonably be expected to be developed, i.e., technology that “looms on today’s

horizon” (United Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1272

(D.C. Cir. 1980) (Lead I)); Amer. Iron & Steel Inst. v. OSHA, 939 F.2d 975, 980 (D.C.

Cir. 1991) (Lead II); American Iron and Steel Inst. v. OSHA, 577 F.2d 825 (3d Cir.

1978)). Courts have also interpreted technological feasibility to mean that a typical firm

in each affected industry or application group will reasonably be able to implement the

requirements of the standard in most operations most of the time (see Public Citizen v.

OSHA, 557 F.3d 165 (3d Cir. 2009); Lead I, 647 F.2d at 1272; Lead II, 939 F.2d at 990).

OSHA issued an ETS in June 2021 to protect healthcare and healthcare support

employees in covered healthcare settings from exposure to SARS-CoV-2. See 86 FR

32376 (June 21, 2021) (Healthcare ETS). OSHA found the requirements in that ETS to

be technologically feasible, including a requirement for employers to pay for vaccination

of employees that is very similar to the requirement in this new ETS. OSHA’s finding

that the Healthcare ETS was technologically feasible was primarily based on available

evidence showing that most healthcare employers, and employers across all industry

sectors, had already implemented, or were in process of implementing, procedures similar

to those required by the Healthcare ETS. Similarly, OSHA’s feasibility findings for this

ETS are based on evidence that vaccination and testing policies, along with the use of

face coverings consistent with recommendations from the CDC, have been implemented
in multiple industry sectors as testing and vaccinations were made more widely available

during the course of the pandemic.

As discussed in Summary and Explanation (Section VI. of this preamble), this

ETS for vaccination and testing applies to all employers with 100 or more employees,

except as noted here. It does not apply to workplaces covered under the Safer Federal

Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors

and Subcontractors or settings where any employee provides healthcare services or

healthcare support services when subject to the requirements of the Healthcare ETS (29

CFR 1910.502). It also does not apply to employees who do not report to a workplace

where other individuals such as coworkers or customers are present, employees while

they are working from home, or employees who work exclusively outdoors.

As noted above, OSHA has the legal duty to demonstrate that the average

employer covered by this ETS can comply with that standard in most operations most of

the time. This legal analysis is therefore focused solely on whether employers with 100

or more employees can comply with the standard. OSHA’s rationale for that scope

threshold of 100 or more employees is explained in the Summary and Explanation for

paragraph (b), Section VI.B. of this preamble.

As discussed below, OSHA finds no technological feasibility barriers related to

compliance with the requirements in the ETS. These requirements include establishing

and implementing a written mandatory COVID-19 vaccination policy or alternative

policy requiring testing and face coverings; determining employee vaccination status;

supporting employee vaccination by providing paid time for vaccination and time off for

recovery; ensuring that employees who are not fully vaccinated are tested for COVID-19

at least once every seven days and wear face coverings; and recordkeeping for employee

vaccination status and testing.

 OSHA reviewed numerous large-scale employer surveys and vaccination and

testing policies developed by employers, public health organizations, trade association,

and local, state, and federal governmental bodies. While OSHA discusses several

examples of these plans and policies below,20 OSHA’s feasibility determination is based

on all evidence in the rulemaking record. The majority of the survey data and other

publicly available material that OSHA reviewed pertains to large employers with 100 or

more employees.

Additionally, OSHA thoroughly reviewed current and future projections of the

availability of COVID-19 tests, testing supplies, and laboratory capacity. Based on a

review of vaccination and testing policies among large employers, OSHA has determined

that most employers covered by this standard across a wide range of industries have

either already implemented vaccination and testing programs and require unvaccinated

employees to wear face coverings, or are capable of implementing programs that comply

with the requirements in the ETS most of the time. OSHA therefore finds that the

standard is technologically feasible.

I. Employer Policy on Vaccination.

Paragraph (d)(1) of the ETS requires each covered employer to establish and

implement a written mandatory vaccination policy unless the employer adopts an

alternative policy requiring COVID-19 testing and face coverings for unvaccinated

employees, which is discussed later. To meet the definition of “mandatory vaccination

policy” under paragraph (c), the policy must require: vaccination of all employees,

including all new employees as soon as practicable, other than those employees (1) for

whom a vaccine is medically contraindicated, (2) for whom medical necessity requires a

20While OSHA references several employers’ policies, this is not intended to serve as an endorsement of
those plans or an indication that those plans comply with the ETS. Rather, the plans and best practice
documents show that developing and implementing policies to address employee COVID-19 vaccination in
various workplaces is capable of being done in a variety of industries, and therefore, compliance with the
ETS is technologically feasible.
delay in vaccination, or (3) those legally entitled to a reasonable accommodation under

federal civil rights laws because they have a disability or sincerely-held religious beliefs,

practices, or observances that conflict with the vaccination requirement.

OSHA requires employers to implement a mandatory vaccination requirement,

but provides an exemption for an alternative policy that allows employees to choose

either to be fully vaccinated or to be regularly tested and wear a face covering. This

compliance options mean that the ETS is technologically feasible if employers across

various industries are capable of implementing either policy, but nevertheless OSHA

analyzes both employer policy options to demonstrate that there are no significant

technological barriers to either approach.

OSHA reviewed several large-scale employer surveys related to vaccination

policies across the country covering a wide range of industry sectors. Surveys conducted

by Arizona State University (ASU) and the World Economic Forum (WEF), called

COVID-19 Workplace Commons - Keeping Workers Well, show that most employers

already have some type of vaccination policy, with more than 60 percent of surveyed

employers requiring vaccinations for some or all employees. These survey results further

support OSHA’s determination that the vaccination policy requirement is feasible.

The ASU WEF workplace COVID-19 surveys collected information from

employers across industry sectors about their response to the COVID-19 pandemic. The

results and responses from more than 1,400 companies are publicly available through the

ASU College of Health Solutions webpage COVID-19 Diagnostics Commons (ASU,

October 5, 2021). Case studies from employers are also available within the interactive

dashboard on that webpage. The surveys consisted of numerous questions about

workplace pandemic response, including questions related to vaccination policies and

testing unvaccinated employees.

 The most recent COVID-19 survey data was collected between August 2, 2021

and August 20, 2021 and reported in September 2021 (accessible through the COVID-19

Workplace Commons). More than 1,400 companies operating 1143 facilities in 23

industry sectors were part of the survey, the majority of which are companies of the size

covered by the ETS. Ninety percent of facilities surveyed had 100 or more employees at

their facilities, and 56% had more than 100 but less than 1,000 employees at their

facilities. The industry sectors surveyed include: technology and software; business and

professional services; manufacturing; construction; healthcare, hospitals, and clinics;

retail stores; retail food stores; consumer retail service; energy and utilities; nonprofit

organizations; education (colleges and universities); education (pre-K to 12); real estate

and property management; agriculture and food production; healthcare services; media

and entertainment; government and quasi-public; biotech, pharmaceuticals, and

diagnostics; restaurants and food service; hotels and casinos; transportation, distribution,

and logistics; consumer transportation; and recreation (ASU WEF, September 2021).

The survey responses related to vaccination policies support OSHA’s

determination that it is feasible for covered employers to implement mandatory COVID-

19 vaccination policies. The survey results showed that 45% of employers surveyed

require all employees to be vaccinated against COVID-19, and an additional 16% require

some of its employees to be vaccinated against COVID-19. (ASU WEF, September

2021). Only three percent of employers surveyed did not have a vaccination policy at the

time (ASU WEF, September 2021). While this survey covers a wide range of industries it

may not represent the percentage of companies implementing mandatory vaccination

policies in general populations but for the feasibility purposes it demonstrates that it has

and can be done.

OSHA also reviewed slightly older survey data, which, even though it shows

somewhat lower rates of employer vaccination mandates, still supports OSHA’s finding
that such vaccination polices are feasible. In late June 2021, the National Safety Council

(NSC) conducted three national surveys, one organizational and two workforce, of

private companies, nonprofits, legal experts, public health professionals, medical

professionals and government agencies that have addressed workforce COVID-19

vaccinations based on best practices and proven workplace safety strategies. The survey

results show that many employers and organizations are currently requiring employees to

be vaccinated.

The three surveys were distributed to 300 employers and organizations across the

country and from a wide range of industries to collect data on pandemic response,

including implementation of COVID-19 vaccine policies and testing among their

workforce. Of the employers and organizations surveyed in June 2021, the NSC found

that 20% were implementing some form of a worker vaccination requirement. While

OSHA believes that the ASU WEF surveys (which included more employers and are

more recent) are better indicators of current employer vaccination policies, the NSC

surveys also support the feasibility of employer vaccination mandates (NSC, September

2021)

The NSC, in partnership with the Health Action Alliance (HAA) and the Centers

for Disease Control and Prevention (CDC), have developed a multifaceted,

comprehensive effort called SAFER, aimed at helping employers prioritize health and

safety as they develop plans and polices for their employees to return to the workplace

(NSC, May 17, 2021). Through SAFER, the NSC and HAA developed a web-based

decision tool to guide employers on health, legal, and other considerations to prioritize

the health and safety of workers. Due to the Delta Variant surge of new COVID-19 cases

across the United States, the NSC and HAA revised the SAFER resources, including the

online tool, to include information about employer requirements for COVID-19

vaccinations. These include guides for developing plans and policies to support employee
vaccination through mandates and incentives; the collection and maintenance of COVID-

19 vaccination records; and various considerations for testing unvaccinated workers.

(HAA and NSC, September 17, 2021). The availability of these publicly-accessible tools

to help employers develop vaccination policies further reduces any potential barriers for

covered employers to establish and implement a written policy requiring each employee

to be fully vaccinated against COVID-19, or alternatively to establish a policy allowing

employees to choose whether to be fully vaccinated or tested for COVID-19 at least

every seven days and wear face coverings.

The HAA maintains an online list of large companies requiring vaccinations for

all or part of their workforce or customers. OSHA reviewed the list of companies, drawn

from news reports and employer websites, with requirements for COVID-19 vaccination.

Most of the companies listed require some or all employees to be vaccinated against

COVID-19 while allowing medical exemptions or reasonable accommodations for

disability or religious reasons. There are currently 188 listed companies across numerous

industry sectors, including Amtrak, Deloitte, Google, The Walt Disney Company,

Walmart, and the U.S. Chamber of Commerce.21

While healthcare employers subject to 29 CFR 1910.502 are not covered by this

ETS, a number of large healthcare employers have implemented mandatory vaccine

policies. This also shows the feasibility of the employers implementing mandatory

vaccination requirements, often on large scales. According to the American Hospital

Association (AHA), over 1,800 hospitals have one or more vaccination requirements in

place (Becker’s Hospital Review, October 11, 2021). Large healthcare employers

mandating that their employees be vaccinated include Kaiser Permanente, the nation’s

largest integrated, nonprofit health care organization with more than 216,000 employees

21https://www.healthaction.org/resources/vaccines/covid-19-vaccines-employer-requirements-health-
action-alliance?0405d6f4_page=1 (last visited October 2, 2021).
and more than 23,000 physicians (Kaiser Permanente, August 2, 2021); Trinity Health,

one of the largest multi-institutional Catholic health care delivery systems in the nation,

with more than 123,000 employees and 90 hospitals in 22 states (Trinity Health, July 8,

2021); Sanford Health, which operates in 26 states and employs nearly 50,000 people

(Sanford Health, July 22, 2021); and Genesis Health Care, a large U.S. nursing home

chain with over 40,000 employees working in more than 250 centers across 23 states

(Genesis Health Care, September 29, 2021).

Under paragraph (d)(2), if employers do not establish and implement a written

mandatory vaccination policy, the employer must establish and implement a written

policy allowing any employees not subject to a mandatory vaccination policy to either

choose to be fully vaccinated or regularly tested for COVID-19 and wear a face covering.

A substantial number of employers already have such policies in place. For example, the

ASU WEF survey shows that 30% of employers surveyed require unvaccinated

employees to participate in mandatory COVID-19 testing and 30% of employers require

face coverings for unvaccinated employees (ASU WEF, September 2021).

OSHA also notes a number of state COVID-19 vaccination requirements. In

response to the Delta Variant surge, 19 states have implemented written COVID-19

vaccination and testing policies for state employees and 23 states have done so for

healthcare employees (NASHP, October 1, 2021). For example, on September 20, 2021,

the Colorado Department of Public Health and Environment (CDPHE) implemented

policies requiring state employees and personnel at health care facilities and hospitals to

be fully vaccinated against COVID-19. All state employees must either be fully

vaccinated against COVID-19 or participate in twice-weekly testing. Employees are

allowed work time to get tested and administrative or Public Health Emergency Leave to

get vaccinated. Employees who are not fully vaccinated must wear masks inside state

facilities when they are around others. On August 30, 2021, the State Board of Health
approved a vaccine requirement for personnel in health care settings with high-risk

patients. All personnel affected by this rule needed to receive their first dose of COVID-

19 vaccine by September 30, 2021, and must be fully vaccinated by October 31, 2021

(CDPHE, September 17, 2021).

A number of local governments have also implemented policies requiring

COVID-19 vaccination or testing for employees. For example, the Fulton County Board

of Commissioners in Georgia recently approved a “Vax or Test” policy requiring

employees to get vaccinated or tested for COVID-19 each week. Since September 6,

2021, Fulton County has required all County employees, as a condition of employment,

to either be vaccinated against COVID-19 or be tested weekly for COVID-19 unless an

employee is granted a reasonable accommodation (Fulton County Government,

September 03, 2021). The multitude of local, state, and employer vaccination or testing

mandates across the country support OSHA’s finding that such policies are feasible.

II. Determining Employee Vaccination Status.

Paragraph (e) of the ETS requires employers to determine the vaccination status

of each employee. Employers must require employees to provide an acceptable proof of

vaccination status, including whether they are fully or partially vaccinated. As discussed

in Summary and Explanation (Section VI. of this preamble), acceptable proof of

vaccination status is: (i) the record of immunization from a health care provider or

pharmacy; (ii) a copy of the COVID-19 Vaccination Record Card; (iii) a copy of medical

records documenting the vaccination; (iv) a copy of immunization records from a public

health, state, or tribal immunization information system; or a copy of any other official

documentation that contains the type of vaccine administered, date(s) of administration,

and the name of the health care professional(s) or clinic site(s) administering the

vaccine(s). A signed and dated employee attestation is acceptable in instances when an

employee is unable to produce proof of vaccination. Given the attestation option, there
are no technological barriers to the provision for proof of vaccination status. As discussed

below, many employers requiring proof of vaccination have successfully implemented

such policies even without allowing the flexibility of the attestation option.

The employer must maintain a record and a roster of each employee’s vaccination

status. This information is subject to applicable legal requirements for confidentiality of

medical information. These records must be preserved while the ETS is in effect. OSHA

is not aware of any technological challenges that the large employers covered by this ETS

would face with respect to collecting and maintaining records. This is a performance-

based requirement, meaning that employers have the flexibility to structure their systems

to fit within current systems, such as those relating to personnel records, tax records, and

other sensitive or confidential records gathered and maintained by large employers.

A number of the surveys discussed above also show that most employers with

vaccine mandates require proof of vaccination. For example, ASU WEF workplace

COVID-19 survey from fall 2021 found that 60% of employers that required vaccinations

also required proof of vaccination from employees. The NSC study from June 2021

found that 45% of employers with COVID-19 vaccination requirements required proof of

vaccination, such as submitting a copy of the COVID-19 vaccination card. An additional

30% of employers surveyed verify employee vaccination status through self-reporting

based on the honor system.

Additionally, a large-scale survey conducted by the Willis Towers Watson

consulting firm between August 18 and 25, 2021, showed that a majority of employers

currently track their employees’ vaccination status. Nearly one thousand employers

responded to this survey, and they collectively employ 9.7 million workers from

industries across the public and private sectors including manufacturing, general services,

wholesale and retail, IT and telecom, healthcare, financial services, energy and utilities,

and public sector and education (Willis Towers Watson, June 23, 2021). Nearly six in 10
(59%) currently track their workers’ vaccination status and another 19% are planning or

considering doing so later this year. A majority (62%) of those employers who currently

track their workers’ vaccination status require proof of vaccination, such as CDC

vaccination cards, while 36% rely on employees to self-report (Willis Towers Watson,

September 1, 2021).

Other evidence in the record also supports the feasibility both of gathering proof

of vaccination and determining employees’ vaccination status. Many large employers

with vaccination policies require employees to submit proof of vaccination. For example,

Tyson Foods requires employees to submit proof of vaccination to Tyson Foods

Vaccination Verification Program in order to qualify for the company’s vaccination

incentive (Tyson Foods, August 3, 2021). Similarly, Capital One bank requires all

employees, contractors, vendors, and visitors to Capital One facilities to show proof of

vaccination. (Capital One, August 11, 2021). The International Union of Painters and

Allied Trades (IUPAT), which represents 140,000 craftspeople in the U.S. and Canada

and has implemented vaccine requirements for its members, also requires all of its own

non–bargaining unit office and field employees to show proof of vaccination. (IUPAT,

May 10, 2021).

CVS Health, a health conglomerate with more than 300,000 employees, including

more than 40,000 physicians, pharmacists, nurses and nurse practitioners, has mandated

COVID-19 vaccination for its nurses, pharmacists and other employees who interact with

patients and requires proof of vaccination for those employees (CVS Health, August 23,

2021).

The surveys and employer policies reviewed by OSHA all support the agency’s

finding that it is feasible for employers to determine their employees’ vaccination status

and collect proof of vaccination.

III. Providing Support for Vaccination.

 Paragraph (f) of the ETS requires employers to support COVID-19 vaccination

for each employee by providing a reasonable amount of time to each employee for

vaccination and reasonable time and paid sick leave to each employee for side effects

experienced following vaccination. The feasibility of paying for the time is addressed in

OSHA’s economic analysis.

This technological feasibility determination focuses on whether employers would

encounter obstacles in implementing payment policies that would make this requirement

infeasible for the large employers covered by this ETS. OSHA has determined that there

are no such obstacles. Most significantly, OSHA has already required this type of system

for employers covered by the Healthcare ETS and nearly four months after that ETS took

effect, OSHA is not aware that employers covered by that ETS experienced any

technological compliance difficulties with respect to that requirement. In addition, many

employers have already implemented policies such as those required to comply with this

new ETS as a way of incentivizing employee vaccination. For example, the ASU WEF

workplace COVID-19 survey from fall 2021 found that 60% of employers surveyed

offered incentives for employees to be vaccinated. These incentives ranged from

additional paid time off, cash, the ability to bypass regular testing and/or daily health

screening requirements, and gifts. Eighteen percent of surveyed employers already

provide additional time off for COVID-19 vaccination. Moreover, the NSC survey found

that 86% of surveyed organizations had implemented policies such as paid time off,

assistance with scheduling and transportation, and/or onsite vaccination.

OSHA’s review of plans and best practice documents from the HAA registry and

from other publicly-available sources also inform OSHA’s finding that it is feasible for

large employers to support employee vaccination (HAA, October 10, 2021). As part of

this review, OSHA analyzed the ways that employers are currently supporting employee

vaccination. One employer in the restaurant industry, the Fifty/50 Group, a Chicago-
based restaurant group comprised of 14 establishments that requires employees to be

fully vaccinated, offers paid time off for anyone getting a vaccine or feeling the mild

after-effects. (Fifty/50 Group, May 18, 2021). Another employer in the animal

slaughtering and processing industry, Tyson Foods, requires COVID-19 vaccinations for

its U.S. workforce and also offers $200 and up to four hours of regular pay if employees

are vaccinated outside of their normal shift or through an external source (Tyson Foods,

August 3, 2021). In addition, Tyson Foods supports onsite vaccination events in

collaboration with local health departments and healthcare providers to improve

accessibility to vaccination. Tyson Foods has hosted more than 100 vaccination events at

its locations across the country.

The evidence in the record demonstrates that many employers are already offering

the types of vaccination support required by paragraph (f). Combined with OSHA’s

previous finding for a similar provision in the Healthcare ETS and the lack of compliance

difficulties reported while that ETS has been in effect, OSHA therefore finds this

requirement is technologically feasible.

IV. COVID-19 testing for employees who are not fully vaccinated.

Paragraph (g) of the ETS requires employers to ensure that employees who are

not fully vaccinated and who report at least once every seven days to a workplace where

other individuals such as coworkers or customers are present are: (1) tested for COVID-

19 at least once every seven days; and (2) provide documentation of the most recent

COVID-19 test result to the employer no later than the seventh day following the date the

employee last provided a test result. Employers must also ensure that employees who are

not fully vaccinated and do not report during a period of seven or more days to a

workplace where other individuals are present are: (1) tested for COVID-19 within seven

days prior to returning to the workplace; and (2) provide documentation of that test result

upon return to the workplace.

 Employees who are not fully vaccinated must be tested with a COVID-19 test,

which is a test for SARS-CoV-2 that is: (i) cleared, approved, or authorized, including in

an Emergency Use Authorization (EUA) by the U.S. Food and Drug Administration

(FDA) to detect current infection with the SARS-CoV-2 virus (e.g. a viral test); (ii)

administered in accordance with the authorized instructions; and (iii) not both self-

administered and self-read unless observed by the employer or an authorized telehealth

proctor. Examples of tests that satisfy this requirement include tests with specimens that

are processed by a laboratory (including home or on-site collected specimens which are

processed either individually or as pooled specimens), proctored over-the-counter tests,

point of care tests, and tests where specimen collection is either done or observed by an

employer.

COVID-19 testing has become more widely available throughout the pandemic

and as of September 2021, the FDA has authorized approximately 250 tests and

collection kits that diagnose current infection with the SARS-CoV-2 virus and may be

acceptable under the ETS (FDA, September 10, 2021), and by October 1, 2021, the

number of EUAs issued had grown to 324 (FDA, October 1, 2021). The ETS permits

compliance through use of a wide range of FDA-authorized tests that are readily

available, so there is little doubt that testing itself is technologically feasible.

This technological feasibility analysis therefore focuses on whether testing will

continue to be readily available in quantities sufficient to meet the potential increase in

testing demand while this ETS is in place. Given the wide variety of tests that can be used

to comply with this ETS and OSHA’s review of information about the existing

manufacturing and distribution capabilities of test manufacturers, the agency does not

anticipate feasibility issues related to ensuring that employees can get access to one of the

acceptable tests within the time frames required by the ETS.

a. Brief overview of testing and administration.

 COVID-19 tests that are cleared, approved, or authorized, including in an

Emergency Use Authorization (EUA), by the FDA to detect current infection with the

SARS-CoV-2 virus (e.g., a viral test) satisfy the ETS. FDA-cleared, approved, or

authorized molecular diagnostic tests and antigen tests are permitted under the ETS when

used as authorized by the FDA and with a Clinical Laboratory Improvement

Amendments of 1988 (CLIA) certification when appropriate. As described in the

Summary and Explanation for paragraph (g) (Section VI.G. of this preamble), NAATs

are a type of molecular test that detect genetic material. As of October 14, 2021, the FDA

had issued EUAs for 264 molecular COVID-19 tests including tests specified to be used

“with certain conditions of authorization required of the manufacturer and authorized

laboratories”, 81 of which are authorized for home collection. Additionally, the FDA has

issued EUAs for 2 OTC molecular COVID-19 test kits available without a prescription

(FDA, October 14, 2021b).

NAATs, such as real-time reverse transcription-polymerase chain reaction (RT-

PCR), have greater accuracy than antigen tests. However, most FDA-authorized NAATs

need to be processed in a laboratory certified under the Clinical Laboratory Improvement

Amendments of 1988 (referred to as a “CLIA-certified laboratory”) with variable time to

results (~1–2 days). While the NAAT test is a more reliable test, the antigen test is faster

and less expensive.

An antigen test is an in vitro diagnostic test used to detect active SARS-CoV-2

infection. As of October 14, 2021, the FDA had issued 37 EUAs for COVID-19 antigen

tests, including eight EUAs for over-the-counter (OTC) antigen tests that can be used

without a prescription (FDA, October 14, 2021a).

Administration of an antigen test that meets the definition of COVID-19 test

under this ETS falls into one of several categories: OTC employee self-tests that are

observed by employers or authorized telehealth proctors; point-of-care (POC) or OTC

tests performed by employers with a CLIA certificate of waiver; and other FDA cleared,

approved, or authorized antigen tests that are analyzed in a CLIA certified laboratory

setting (FDA, October 14, 2021a). The FDA has authorized POC tests that can be used at

a place of employment when the facility is operating under a CLIA certificate of waiver.

A CLIA certificate of waiver can be issued by CMS and may, when consistent with

FDA’s authorization, allow a laboratory to run a SARS-CoV-2 test outside a high or

moderate complexity traditional clinical laboratory setting (CDC, September 9, 2021). In

accordance with the CLIA certificate of waiver, the laboratory or POC testing site must

use a test authorized for that location, like an FDA EUA POC test, and must adhere to the

authorized test instructions to avoid human error. Certain COVID-19 antigen diagnostic

tests can be analyzed on-site (where the person took the nasal swab) when that facility is

operating under a CLIA certificate of waiver, while others must be analyzed in a CLIA

certified high or moderate complexity laboratory setting. Some COVID-19 antigen

diagnostic tests are authorized for use at home, without the need to send a sample to a

laboratory. Antigen tests generally return results in approximately 15-30 minutes. The

CDC provides training materials created by test manufacturers for POC antigen testing

and reading of results for SARS-CoV-2 (CDC, July 8, 2021).

COVID-19 antigen diagnostic tests are found at physician offices; urgent care

facilities; pharmacies, such as CVS or Walgreens; school health clinics; long-term care

facilities and nursing homes; temporary locations, such as drive-through sites managed

by local organizations; and other locations across the country (CDC, July 8, 2021; CVS

Health, October 2021; Walgreens, October 8, 2021). The availability of government-

offered antigen tests varies by state, and may be free or subsidized and accessible without

a prescription or physician note (RiteAid, October 2021; Walgreens, October 2021; HHS,

June 11, 2021). The Department of Health and Human Services (HHS) provides a

publicly-available list of community-based testing locations in each state that offer free
COVID-19 testing for insured and uninsured residents (HHS, August 17, 2021).

Pharmacies and other locations often provide antigen tests by appointment, although

some will allow testing for walk-ins (CVS Health, September 2021; Walgreens, October

8, 2021). COVID test kits are currently available from several on-line retailers (Amazon,

October 12, 2021).

b. Testing frequency.

The ASU WEF survey data also supports OSHA’s finding that the requirement

for employees who are not fully vaccinated to be tested at least every seven days is

feasible. The ASU WEF found that 73% of survey surveyed employers (797 employers)

had testing policies for their workforce, and 76% of those employers had implemented

mandatory testing requirements. Additionally, 25% of employers with testing polices had

implemented requirements for routine testing of a portion of or the entire workforce, and

41% no longer require testing for fully vaccinated employees. Of the employers that test

employees, 27% of those perform viral testing daily and 46% perform viral test once a

week. Finally, 38% of companies exclusively administer polymerase chain reaction

(PCR) tests (PCR tests are a type of NAAT), 17% exclusively administer antigen tests,

and 45% administer both. Companies administer a range of COVID-19 tests and conduct

testing at a variety of locations (some companies use more than one location). Forty-two

percent of companies test workers at health testing laboratories, 35% test onsite at work,

28% test at hospitals, 23% test at retail pharmacies, 13% test at universities, 9% test at

home to be sent a lab for evaluation, and 5% test at home for immediate results (ASU

WEF, September 2021).

OSHA also evaluated evidence of employers’ current testing efforts by reviewing

existing COVID-19 practices developed by employers, trade associations, and other

organizations. Based on its review, OSHA concludes that it is feasible for most covered
employees (and therefore their employers) to be tested in compliance with the ETS

requirements for frequency of testing.

OSHA notes that there are several options for large employers to consider if they

want to help facilitate testing for employees who are not vaccinated. Delta Airlines, for

example, currently requires weekly COVID-19 testing for all of its employees who are

not vaccinated, and the company has engaged the Mayo Clinic Laboratories to help

design the employee testing program, assist in administering diagnostic and serology

tests, and analyze the results to determine broader trends and provide recommendations

to Delta’s existing policies and procedures (Mayo Clinic Laboratories, June 30, 2020).

Delta Airlines also operates onsite testing in cities with large employee populations

including Atlanta, Minneapolis, and New York. It recently extended an at-home

specimen collection option to all U.S. employees, through which Quest Diagnostics will

send self-collection kits directly to an employee’s doorstep upon request and support

complete laboratory confirmation for results (Delta, August 25, 2021).

c. Availability of COVID-19 Tests.

In the spring and early summer months of 2021, demand for tests decreased as

vaccinations began to increase and the number of COVID-19 cases declined before the

Delta surge and some manufacturers slowed production of COVID-19 tests. However,

the number of tests performed daily has grown considerably over the summer due to the

Delta Variant surge and re-openings of workplaces and schools. In parallel with the Delta

surge, COVID-19 testing has increased from a daily average of about 450,000 in early

July 2021 to about 1.8 million by mid-September 2021, or roughly 12.6 million per week

(JHU, October 8, 2021). This data does not include any self-administered OTC tests,

which will be discussed below.

OSHA’s review of the evidence shows that the increasing rate of production of

COVID-19 tests is more than adequate to meet rising demand related to compliance with
the ETS testing option before the 60-day delayed testing compliance date (see paragraph

(m)(2)(ii)). This determination is largely based on the number of tests with FDA EUAs

actively being produced through the National Institutes of Health (NIH) Rapid

Acceleration of Diagnostics (RADx) initiative described below.

According to the Johns Hopkins University of Medicine Coronavirus Resource

Center, the total tests administered in August 2021 was approximately 44.4 million (or

approximately 11.1 million per week). Id. During that same month, the total tests

produced by the NIH RADx contracts was approximately 121 million (which would

average to 30.25 million per week), resulting in a substantial surplus of available tests

(NIBIB, September 28, 2021). As discussed in Economic Analysis, Section IV.B. of this

preamble, Table IV.B.8, OSHA estimates that as many as 7.2 million tests may be

administered weekly under this standard; however, 7.2 million is almost certainly an

overestimate because it does not exclude employees who are already required to be tested

by their employers and would continue to be tested at the same frequency after the ETS.

Even if testing is increased by 7.2 million tests per week because of the ETS, that would

still mean a surplus of nearly 12 million tests per week beyond what would be need to

continue at current testing levels with the addition of ETS-related tests (30.25 – 11.1 –

7.2 = 11.95 million surplus per week).

The total number of tests administered during June, July, and August 2021, the

period of the summer including the Delta Variant surge and other reasons for substantial

testing increases such as re-opening of schools, was approximately 87 million tests, an

average of approximately 6.7 million per week (JHU, October 8, 2021). During that

period, more than 400 million COVID-19 tests were produced through the NIH RADx

initiative, or roughly 33 million per week. OSHA anticipates that this surplus of tests will

continue to increase the availability of tests that can be used to comply with the ETS.
 The data from the Johns Hopkins Coronavirus Resource Center is collected from

state and county government sources, so it does not include any self-administered OTC

tests. Additionally, while all states report PCR testing, not all states report antigen testing.

Nevertheless, the data from Johns Hopkins Coronavirus Resource Center is the best

available evidence from which to estimate the total number of tests administered during a

given period of time. Even though the number of administered tests reported through the

Johns Hopkins Coronavirus Resource Center does not include unreported OTC tests, the

NIH RADx program data shows a large surplus and sufficient additional COVID-19 test

capacity relative to the number of administered tests reported. Additionally, the NIH

RADx program will further allow for increased test distribution through retail markets

and will address any increase in demand due to companies that may stockpile tests. This

increased availability will strengthen test capacity, further enabling compliance with the

ETS testing provision (NIBIB, September 28, 2021). OSHA has determined that even

with an estimated additional 7.2 million tests administered weekly due to the ETS (see

Economic Analysis (Section IV.B. of this preamble)), there are sufficient COVID-19 tests

available to allow for both employers and employees to obtain COVID-19 tests through a

variety of retail sources (e.g., local pharmacies, on-line purchasing as discussed above).

Determinations of testing capacity are aggregate measures of domestic and global

market and supply chains. Throughout the pandemic, diagnostic testing capacity has been

stressed by the increased demand, as some products that are part of a global market

cannot adapt by simply increasing manufacturing in one country (e.g., laboratory

instruments), and other products manufactured domestically require capital investments

to address rising demands (e.g., extraction kits) (CRS, February 25, 2021). As discussed

below, because of the substantial investments made, OSHA projects that the diagnostic

testing capacity can meet the increased demand due to this ETS.
 OSHA evaluated multiple projections of current and future testing capacity and

determined that projections related to the NIH initiatives discussed below are the most

reliable estimates of current and future testing capacity for its technological feasibility

assessment. Test manufacturers receiving NIH, FDA, and Biomedical Advanced

Research and Development Authority (BARDA) (a component of HHS) funding as part

of these programs undergo a submission and authorization process where their production

capacity and pipeline are assessed and production quantities are validated. As explained

below, as of August 2021, the NIH data indicates testing capacity stands at about 30

million tests per week, and capacity continues to grow (NIBIB, September 28, 2021).

OSHA notes that this number underestimates the total number of tests available each

week, as it only includes companies that have received funding for tests and testing

supplies through the NIH initiatives described below.

The NIH has identified constraints on testing capacity as an area of focus and

investment since the beginning of the COVID-19 pandemic, and OSHA examined

potential constraints on testing capacity as part of its feasibility analysis. As described

below, massive investments in testing capabilities, particularly in underserved areas, have

largely mitigated issues with the availability of COVID-19 tests. Further, testing capacity

continues to grow as new tests are developed and brought to market and manufacturers

can ramp up supply to meet any future testing demands if need be.

The FDA has authorized more than 320 tests and collection kits that diagnose

current infection with the SARS-CoV-2 virus and may be acceptable under the ETS

(FDA, October 1, 2021). Among other criteria, the standard allows for the use of tests

with specimens that are processed by a CLIA certified laboratory (including home or on-

site collected specimens which are processed either individually or as pooled specimens),

proctored over-the-counter tests, point of care tests, and tests where specimen collection

and processing is either done or observed by an employer. As explained above, many

employers across various industry sectors have already implemented policies for onsite

testing. The use of FDA-authorized POC tests by these employers would be compliant

with the testing provision of the ETS if the entity administering the test holds a CLIA

certificate as required by the EUA. COVID-19 OTC tests that are both self-administered

and self-read by employees do not satisfy the testing requirement unless observed by the

employer or an authorized telehealth proctor. In the event that the employer is merely

observing the employee conduct a test, a CLIA certificate would not be needed.

There have been extensive investments, including by the federal government, to

help ensure that COVID-19 tests are widely available. Section 2401 of the American

Rescue Plan appropriated $47,800,000 to the Secretary of the HHS, to remain available

until expended, to carry out activities to detect, diagnose, trace, and monitor SARS-CoV-

2 and COVID-19 infections and related strategies to mitigate the spread of COVID-19.

Funds were made available to implement a national testing strategy; provide technical

assistance, guidance, support, and awards grants or cooperative agreements to State,

local, and territorial public health departments; and support the development,

manufacturing, procurement, distribution, and administration of tests to detect or

diagnose SARS-CoV-2 and COVID-19; and establish federal, state, local and territorial

testing capabilities.

On April 29, 2020, the NIH established the RADx initiative with a $1.5 billion

investment. The RADx initiative has used this funding to speed development of rapid and

widely-accessible COVID-19 testing (NIH, April 29, 2020). On October 6, 2020, the

NIH and BARDA established the RADx Technology (RADx-Tech) and RADx Advanced

Technology Platforms (RADx-ATP) programs to speed innovation in the development,

commercialization, and implementation of technologies for COVID-19 testing

specifically for late-stage scale-up projects. Through the RADx Tech and RADx-ATP

programs, the NIH and BARDA have awarded a total of $476.4 million in manufacturing
expansion contracts supporting a combined portfolio of 22 companies in the U.S. (NIH,

October 6, 2020).

These programs have significantly increased testing capacity throughout the

country. Since being established, RADx has worked closely with the FDA, the CDC, and

BARDA to move more advanced diagnostic technologies swiftly through the

development pipeline toward commercialization and broad availability. On April 28,

2021, the Institute of Electrical and Electronic Engineers (IEEE) dedicated a special issue

in the Journal of Engineering in Medicine and Biology exploring the innovative structure

and operation of the RADx Tech program and determined that the initiatives had

succeeded in dramatically increasing COVID-19 testing capacity in the United States.

The IEEE report found that the RADx Tech/ATP programs, in conjunction with BARDA

and the FDA, had streamlined and bolstered the national COVID-19 testing capacity. At

the time of the report, the RADx Tech/ATP programs had increased the number of testing

makers to 150 companies that, as a result of the NIH/BARDA investments, had the

capacity to produce up to 1.9 million tests per day (IEEE, April 28, 2021).

The NIH RADx-TECH/ATP initiative entered its second phase on September 28,

2021, and at that time the supported companies had collectively produced over 500

million tests, received 27 FDA authorizations, and developed the first OTC COVID-19

test for use at home. These September 2021 investments are supporting late stage

development of innovative point-of-care and home-based tests, as well as improved

clinical laboratory tests that will increase the capacity of testing in the U.S. A full list of

active contracts and supported U.S. COVID-19 testing manufacturers can be found on the

NIH RADx-TECH/ATP programs: Phase 2 awards (NIBIB, October 14, 2021).

The following example shows the NIH RADx EUA pipeline process. On May 9,

2020, the FDA authorized the first EUA for a COVID-19 antigen test, a new category of

tests for use in the ongoing pandemic. Quidel was awarded a contract under the NIH
RADx TECH/ATP phase 1 initiative for the Sofia 2 SARS Antigen FIA for use in high

and moderate complexity laboratories certified by CLIA, as well as for point-of-care

testing by facilities operating under a CLIA certificate of waiver (FDA, May 9, 2020). On

July 31, 2020, Quidel announced that it had received a contract for $71 million under the

NIH RADx TECH/ATP program, phase 1, to accelerate the expansion of its

manufacturing capacity for production of the SARS-CoV-2 rapid antigen test and quickly

exceeded that capacity (Quidel Corp., July 31, 2020). On March 31, 2021, the FDA then

authorized a second EUA from Quidel under contract with the NIH RADx initiative for

the QuickVue At-Home OTC COVID-19 Test, another antigen test where certain

individuals can rapidly collect and test their sample at home, without needing to send a

sample to a CLIA certifed laboratory for analysis (FDA, March 31, 2021). Furthermore,

based on the success of the Quidel for the Sofia 2 SARS Antigen FIA increasing

production capacity, the NIH granted another $70 million contract for manufacturing

Capacity Scale-Up for Sofia SARS Antigen and Sofia Influenza A+B/SARS FIAs on

June 11, 2021 (FDA, June 11, 2021).

The RADx-TECH/ATP initiative maintains a dashboard of manufacturer testing

data from supported U.S. firms. OSHA reviewed the data available on the dashboard as

part of its determination of feasibility. In August 2021, the data showed that U.S.

manufacturers supported by the NIH RADx-TECH/ATP were producing approximately

30 million tests per week (NIBIB, September 28, 2021).

While consumers in some parts of the country have encountered difficulty

obtaining rapid at-home tests, on October 4, 2021, the FDA granted EUA for the ACON

Laboratories Flowflex COVID-19 Home Test, which is anticipated to double rapid at-

home testing capacity in the United States within weeks (and well before compliance

dates for testing required by this ETS) (FDA, October 4, 2021). By the end of the 2021

(ahead of the paragraph (g) compliance date), the manufacturer plans to produce more
than 100 million tests per month and plans to produce more than 200 million tests per

month by February 2022 (FDA, October 4, 2021). On October 6, 2021, the

Administration announced a plan to buy $1 billion worth of rapid at-home COVID-19

tests; this purchase, coupled with the October 4 authorization of the Flowflex COVID-19

test, is expected to increase the number of available at-home COVID-19 tests to 200

million per month by December 2021 (Washington Post, October 6, 2021).

These investments have had a pronounced impact on the availability of testing

and employers’ use of testing in the workplace. ASU’s recent report, How Work has

Changed: The Lasting Impact of COVID-19 on the Workplace, ascribed the jump in the

percentage of employers that test their employees from 17% in the fall of 2020 to 70% in

the fall of 2021 in large part to the increased availability of testing. In particular, the

report noted that by the spring of 2021, “it became relatively easy to acquire tests and

hire testing service providers. There are more labs and companies with EUA’s and most

have enough capacity that there are few shortages.” (ASU WEF, September 2021).

Moreover, to ensure a broad, sustained capacity for COVID-19 test production,

multiple COVID-19 test manufacturers have been mobilized by authority of the Defense

Production Act. Under the Administration’s plan to increase COVID-19 testing, the

federal government will directly purchase and distribute 280 million- rapid point-of-care

and over-the-counter at-home COVID-19 tests, sending 25 million free at-home rapid

tests to community health centers and food banks. These actions will provide tests for use

by communities to build adequate stockpiles, as well as the sustained production to be

able to scale up production as needed in the future. Additionally, to ensure convenient

access to free testing, 10,000 pharmacies will be added to the Department of Health and

Human Services free testing program.

In response to rising demands for testing, U.S. manufacturers have increased

production of COVID-19 test kit, reagents, and supplies. Advanced Medical Technology
Association (AdvaMed), a trade group for testing manufacturers, reported that its

members are ramping up production of rapid point-of-care test supplies to meet demand

and that laboratory-based testing capacity for test confirmation is strong. AdvaMed has

created a national COVID-19 Diagnostic Supply Registry of COVID-19 test

manufacturers that support state and federal governments in their pandemic responses.

Registry participants are thirteen leading diagnostic manufacturers whose tests together

comprise approximately 75-80% of the COVID-19 in vitro diagnostic devices (IVD) on

the market in the U.S. While these manufacturers produce a majority of molecular

COVID-19 tests, they do not produce a majority of the total COVID-19 tests

manufactured. These COVID-19 test manufacturers collectively shipped approximately

3.8 million tests in July 2021, 8.2 million tests in August 2021, and 9.4 million molecular

tests for the week ending September 4th, 2021 (AdvaMed, September 10, 2021). While

these figures are not representative of the total weekly testing capacity in the U.S., this

data demonstrates that testing capacity has grown significantly over the past few months

and reflects the success manufacturers have had in ramping up production of tests.

While current test availability is sufficient to meet the increased testing demands

due to the ETS, OSHA is also confident that the RADx-TECH/ATP initiatives will

continue to spur testing capacity and growth. The RADx-TECH/ATP initiatives have

focused on moving test makers’ products through the late stage pipeline and securing

FDA authorization for entry into the market. So far, there have been 27 such

authorizations. As of September 2021, there were 824 eligible late-stage scale up

proposals from various test makers up for review for NIH/BARDA funding. Furthermore,

517 of these submissions are for the authorization and production of multiple types of

COVID-19 tests including one or more of the following: blood, sputum, nasal swab, oral

swab, fecal, saliva, or other types. OSHA considers this to be further support for its
determination that testing capacity will continue to grow and that increased COVID-19

testing supplies are on the horizon (NIBIB, September 28, 2021).

Based on data from the Johns Hopkins Coronavirus Resource Center, which

examined publicly-available data from multiple sources, approximately 12.4 million tests

were conducted during the week of August 26-September 2, 2021. As noted earlier, in the

economic analysis of this ETS, OSHA projects testing rates to increase by approximately

7.2 million tests per week starting 60 days after publication of the ETS. As described

above, many employers are currently testing their workforce. This 7.2 million is almost

certainly an overestimate because it does not exclude employees who are already required

to be tested by their employers and would continue to be tested at the same frequency

after the ETS. The data reviewed by OSHA on the RADx-TECH/ATP Dashboard shows

that the manufacturers supported by the initiative are producing approximately 30 million

tests per week, and capacity continues to grow. As explained above, it is expected that

roughly 50 million at-home COVID-19 tests will be available each week by December

2021. OSHA therefore finds that there are (and will continue to be) sufficient COVID-19

tests available to meet the anticipated demand related to compliance with paragraph (g)

by the 60-day delayed compliance date.

d. Availability of COVID-19 Test Supplies.

OSHA has also analyzed the availability of COVID-19 test supplies for use by

COVID-19 test kit manufacturers, diagnostic laboratories, and determined that there are

sufficient supplies to allow compliance with the ETS testing option. The COVID-19

pandemic and recent Delta Variant surge have caused some disruptions in the availability

of testing supplies such as swabs, viral transport medium, RNA extraction kits, serology

consumables, diagnostic reagents, plastic consumables, and diagnostic instruments. The

COVID-19 testing supply market is driven by the need to rapidly screen large segments
of the population and deliver test results. The data presented throughout this assessment

has shown demand for laboratory COVID-19 tests is rising across the country.

Testing for COVID-19 involves many different components that are

manufactured, transported, and used independently (e.g., bulk solvents, extracting

reagents, packaging) or semi-independently (e.g., test kits). Most of the supplies used in

COVID-19 testing are disposable, requiring a constant sustained capacity for new

supplies. Some distribution channels move supplies directly to medical and laboratory

end-users and others move supplies through distributors. In either case, the combination

of increased testing demand and the established supply chains indicate that testing kits

will be available in sufficient quantities throughout the country, including in rural areas

where large employers may be located.

There have been substantial investments from federal and state programs and

private industry to stimulate the production and distribution of testing supplies to bolster

testing capacity across the country. Many products, such as swabs and reagents for RNA

extraction kits, exhibited rising demand and, at some point during the pandemic, were

subject to shortages that threatened continued testing capacity. For example, there was

only one domestic manufacturer of medical grade flocked swabs, Puritan Medical

Products Company of Guilford, Maine, and the company’s pre-pandemic capacity was

insufficient to meet demand of increased testing in the early period of the COVID-19

pandemic (Puritan Products, April 20, 2020). On July 29, 2020, the Department of

Defense (DOD), in coordination with the Department of Health and Human Services,

awarded $51.15 million to Puritan to expand industrial production capacity of flock tip

testing swabs (DOD, July 31, 2020). On March 26, 2021, Puritan was awarded another

$146.77 million to increase the company’s total production capacity to 250 million foam

tip swabs per month at its Tennessee facility by February 2022 (DOD, March 29, 2021).
 Other private sector companies were mobilized to change the products they

manufactured to accelerate production of COVID-19 test components, such as swabs,

reagents, and solvents for RNA extraction kits. For example, Microbrush, a U.S.-based

manufacturer of sterile applicators for the dental industry, began production of a

nasopharyngeal test swab to meet the growing demand for COVID-19 testing

requirements in July 2020. The Microbrush test swabs are sterilized and individually

packaged in a medical-grade pouch intended for nasopharyngeal sample collection such

as in dental procedures and also COVID-19 testing (Microbrush, July 1, 2020).

RNA extraction kits are used by the majority of NAAT protocols. These kits are

sets of consumable plastic laboratory materials (small centrifuge tubes, filters, and

collection vials) and chemical reagents (solutions for breaking the virus apart and

purification) assembled by a manufacturer. Each kit has enough materials to process

several dozen samples. The use of RNA extraction kits is not exclusive to COVID-19

testing, meaning that a market existed pre-COVID-19, and manufacturers were able to

adapt to fluctuations in demand spurred by the pandemic.

There are multiple companies with facilities in the United States that produce

RNA extraction kits for the domestic market that have been awarded federal grants to

increase the supply of COVID-19 test kits and reagent supplies. For example, in

December 2020, the DOD and HHS identified several key reagents with the potential for

supply chain bottlenecks and awarded a $4.8 million Indefinite Delivery/Indefinite

Quantity contract to Anatrace Products, LLC to support increased production of key

reagents for sample processing; Polyadenylic Acid (Poly A), Guanidinium Thiocyanate

(GTC), and Proteinase K (Pro K) to process samples (DOD, December 21, 2020).

Additionally, QIAGEN (based in Germany with U.S. manufacturing in Germantown,

Maryland) produces extraction kits for authorized COVID-19 tests and has responded to

the pandemic by scaling their production to around the clock production to strengthen
testing kit capacity (Qiagen, October 2, 2021). On August 23, 2021, DOD, on behalf of

and in coordination with HHS, awarded a $600,000 contract to QIAGEN to expand

manufacturing capacity of enzymatic reagents and reagent kits used in COVID-19

molecular diagnostic tests, thereby allowing QIAGEN to increase its monthly production

of reagent kits by 7,000 and enzymes by 5,100 milligrams by the end of February 2022 to

support domestic laboratory testing for COVID-19 (DOD, August 23, 2021).

Additionally, manufacturers of raw materials and solvents for COVID-19 test kits

have implemented strategies to strengthen their portions of the COVID-19 test supply

chain. Millipore Sigma, a large producer of solvents and raw materials for tests, has

created a global task force to actively evaluate the overall supply chain of products and

key raw material suppliers to mitigate any potential disruption of COVID-19 testing

capacity (Millipore Sigma, October 2021). In light of the foregoing, OSHA believes that

there is sufficient – and increasing – availability of COVID-19 testing supplies to enable

compliance with the ETS testing option.

e. Sufficiency of Laboratory Capacity.

As noted above, a wide range of tests are acceptable under the ETS, including

those that can be observed by employers without laboratory processing. Moreover, there

has been rapid growth in the availability of OTC tests that do not require laboratory

processing. Authorized OTC tests self-administered by employees and proctored by the

employer do not require a CLIA certificate of waiver.

The Association of Public Health Laboratories (APHL) has conducted weekly

surveys of its membership to monitor their current and projected capability and capacity

to test for COVID-19. Data from this survey is used to inform HHS, FEMA, CDC, and

other federal partners to support public health laboratory supply and reagent needs.

OSHA reviewed the weekly COVID-19 survey results through the APHL COVID-19

Lab Testing Capacity and Capability Data Dashboard. The data comes from voluntary
participation in the weekly surveys collected from approximately 100 state, local and

territorial public health laboratories (PHLs) and reported to the CDC. The APHL weekly

survey data supports OSHA’s feasibility determination and demonstrates that COVID-19

testing demand will be met. For example, from August 15, 2021 to September 12, 2021,

the APHL weekly survey data found that 96-100% of PHLs are meeting their current

testing demand since the Delta Variant surge began (APHL, September 27, 2021).

Laboratory capacity for processing and confirmation of at-home COVID-19 rapid

tests provided by manufacturer retailers such as Walmart has also increased. Laboratory

and diagnostic service providers have implemented parallel strategies to strengthen

laboratory capacity for confirmation of at-home COVID-19 rapid tests available on the

market for employers and employees to utilize. For example, Quest Diagnostics, which is

the laboratory processing the samples and delivering results to those tested at Walmart’s

drive-through and curbside testing sites, has scaled up laboratory testing capacity and

rapid antigen test inventory should demand increase (Walmart, July 9, 2021). Quest

Diagnostics has added COVID-19 testing platforms in laboratories in regions where

demand is comparatively high and has implemented an online consumer-initiated test

service for individuals and small businesses to request COVID-19 testing. In August

2021, Quest Diagnostics began to offer clinician-guided rapid COVID-19 antigen testing

to employers through a guided telehealth visit using a self-administered, nasal swab

antigen test that provides results in 15 minutes that is then shipped to a Quest Diagnostics

lab for confirmation (Quest Diagnostics, September 28, 2021).

Based on the evidence reviewed, OSHA has determined that there is adequate

laboratory capacity to enable compliance with the ETS testing option.

f. Access to Testing in Underserved Communities.

Individuals in underserved communities (including Black, Latino, and Indigenous

and Native American persons, Asian Americans and Pacific Islanders and other persons
of color; members of religious minorities; lesbian, gay, bisexual, transgender, and queer

persons; persons with disabilities; persons who live in rural areas; and persons otherwise

adversely affected by persistent poverty or inequality) are disproportionately burdened by

the COVID-19 pandemic as many individuals in these communities are essential workers

who cannot work from home, increasing their risk of being exposed to the virus. Access

to COVID-19 testing in these communities has been identified as contributing factor to

COVID-19 related health disparities in these communities. For example, the NSC June

2021 survey found that the most common barrier to testing for rural employers and

workers is access to vaccination and testing sites (NSC, September 2021).

Several federal efforts have recently been implemented to strengthen testing

capabilities in underserved communities. The NIH has invested heavily to improve

COVID-19 testing in underserved communities throughout the COVID-19 pandemic. On

September 30, 2020, the NIH received nearly $234 million to improve COVID-19 testing

for underserved and vulnerable populations that have been disproportionately affected by

this pandemic and launched the RADx Underserved Populations (RADx-UP) program

(NIH, September 30, 2020).

The RADx-UP program has primary components supported by these NIH grants

to increase availability, accessibility, and acceptance of testing among underserved and

vulnerable populations. The RADx-UP program also provides overarching support and

guidance on administrative operations and logistics, facilitating effective use of COVID-

19 testing technologies, supporting community and health system engagement, and

providing overall infrastructure for data collection, integration, and sharing from a

coordination and data collection center (NIH, September 30, 2021). Through the RADx-

UP program, the NIH has continued to support the needs of underserved populations and

is currently funding 70 community-based projects across the country (NIH, September

30, 2021).
 The CDC has also focused its efforts to improve COVID-19 testing in

underserved communities throughout the COVID-19 pandemic. For example, on

September 20, 2021, Maine Health, the largest health care organization in Maine and also

serving northern New Hampshire, was awarded nearly $1 million for COVID-19 testing

in higher risk communities (Maine Health, September 20, 2021). In March 2021, the

CDC implemented a plan to invest $2.25 billion over two years to address COVID-19

related health disparities and advance health equity among populations that are at high-

risk and underserved, including racial and ethnic minority groups and people living in

rural areas. Since that time, the CDC has awarded grants to public health departments to

improve testing capabilities; improve data collection and reporting; and build, leverage,

and expand infrastructure support for testing (CDC, March 17, 2021). On September 30,

2021, the CDC awarded an $8.1 million grant to the Arizona Center for Rural Health

(ACRH) to address COVID-19 disparities across Arizona by improving the delivery of

COVID-19 testing to rural and underserved communities (ASU CRH, September 30,

2021). A number of other federal and state government agencies have been expanding

support for COVID-19 testing in underserved communities as well. On June 11, 2021,

HHS through the Health Resources and Services Administration (HRSA) provided

$424.7 million in American Rescue Plan funding to over 4,200 Rural Health Clinics

(RHCs) for COVID-19 testing (HHS, June 11, 2021)

Private industry has also mobilized considerably to increase access and testing

capacity in rural and other underserved communities. The NSC June 2021 survey found

that a common barrier to employers and employees in rural and other underserved

communities is transportation and access to vaccination and testing sites (NSC,

September 2021). In its final report, the NSC recommended employers in these

communities host on-site vaccinations to increase worker access. Applications for mobile
vaccination are available on most local and state health department websites (NSC,

September 2021;ASU WEF, September 2021).

CVS has collaborated with several organizations, including the National Medical

Association, to increase access to testing in underserved communities and has developed

mobile solutions that allow health care professionals to bring testing capabilities to

businesses in these communities as they re-open (CVS Health, September 2021).

Walgreens has implemented efforts to increase access in underserved communities such

as rural and/or lower socioeconomic communities as well, with now more than half of

Walgreens testing sites currently located in areas the CDC has identified as socially

vulnerable and underserved (Walgreens, October 2021). Because of these investments,

OSHA concludes that employers and their employees in underserved communities,

including those in rural areas, will have sufficient access to COVID-19 tests and will be

able to comply with the ETS’s testing requirements for employees who are not fully

vaccinated.

V. Management of confidential medical records, including employee COVID-19

vaccination and testing records.

The ETS requires employers to maintain a record of each employee’s vaccination

status. Employers must also maintain a record of each test result provided by each

employee. These records must be maintained as confidential medical records and must

not be disclosed except as required or authorized by this ETS or other federal law. The

records are not subject to the retention requirements of 29 CFR 1910.1020(d)(1)(i) but

must be maintained and preserved while the ETS is in effect.

Other OSHA rules have a similar requirement to maintain employee medical

records, which could include vaccination records. See, e.g., Bloodborne Pathogens (29

CFR 1910.1030), Respiratory Protection (29 CFR 1910.134), Respirable Crystalline

Silica (29 CFR 1910.1053), Beryllium (29 CFR 1910.1024), Lead (29 CFR 1910.1025),
and OSHA’s requirements for employee access to medical and exposure records (29 CFR

1910.1020). OSHA is not aware of any potential technological feasibility issues related to

recordkeeping.

The requirement under this ETS to maintain records of employees’ COVID-19

vaccination status and COVID-19 test results is similar to requirements in the

aforementioned OSHA standards, and OSHA therefore concludes that compliance is

feasible. Employers subject to the ETS will be able to comply with the provisions in the

ETS using straightforward recordkeeping systems that are already widely used by large

employers as part of their usual and customary business practices. OSHA concludes that

it is feasible for such employers to comply with the requirements in the ETS for

maintaining records related to COVID-19 vaccination status and COVID-19 test results.

VI. Other Provisions.

There are no technological feasibility barriers related to compliance with other

requirements in the ETS (e.g., face coverings, employee notification). As explained

above, many of the employer plans and best practice documents reviewed by OSHA

indicate that employers have implemented the measures in these provisions across

industry sectors. OSHA highlights two of the ETS’s other requirements below, which are

explored in more depth in other sections of this preamble.

 Face Coverings. Paragraph (i) of the ETS requires the employer to ensure that all

employees who are not fully vaccinated wear a face covering when indoors and

when occupying a vehicle with another person for work purposes, except: (i)

when an employee is alone in a room with floor to ceiling walls and a closed

door; (ii) for a limited time while the employee is eating or drinking at the

workplace or for identification purposes in compliance with safety and security

requirements; (iii) when employees are wearing respirators or face masks; or (iv)

where the employer can show that the use of face coverings is infeasible or
 creates a greater hazard. The definition of face covering allows various different

types of masks, including clear face coverings or cloth face coverings with a clear

plastic panel which may be used to facilitate communication with people who are

deaf or hard-of-hearing or others who need to see a speaker’s mouth or facial

expressions to understand speech or sign language respectively. The types of face

coverings permitted under this ETS are widely used and readily available. The

results of the ASU WEF June 2021 survey found that 30% of employers required

face coverings for unvaccinated employees, which demonstrates that this

provision of the ETS is currently being implemented by a substantial number of

employers and is “capable of being done.” (ASU WEF, September 2021). OSHA

identifies no technological feasibility issues with this provision of the ETS.

 Notification. Paragraph (h) of the ETS contains COVID-19 notification

requirements for both the employer and the employee. Under this provision, the

employer must require each employee to promptly notify the employer if they

receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed

healthcare provider and must immediately remove any employee from the

workplace who receives a positive COVID-19 test or is diagnosed with COVID-

19 by a licensed healthcare provider. OSHA identifies no technological feasibility

issues in connection with the ETS’s notification requirements. It is the employer’s

responsibility to ensure that appropriate instructions and procedures are in place

so that designated representatives of the employer (e.g., managers, supervisors)

and employees conform to the rule’s requirements.

VII. Conclusion.

OSHA has determined that complying with this ETS is technologically feasible

for typical firms covered by this standard, at least most of the time (see Public

Citizen v. OSHA, 557 F.3d 165 (3d Cir. 2009); Lead I, 647 F.2d at 1272; Lead II, 939
F.2d at 990). OSHA reviewed extensive evidence across industries and did not identify

any industry-specific compliance barriers. Evidence in the record that shows that the

written workplace COVID-19 vaccination policy requiring each employee to be fully

vaccinated against COVID-19 unless they establish and implement a written policy that

permits an employee to choose to be tested for COVID-19 at least every seven days and

wear a face covering is feasible. In fact, such policies have already been implemented by

hundreds of large companies across industry sectors. OSHA has also determined that

there are sufficient COVID-19 tests available and adequate laboratory capacity to meet

the anticipated increased testing demand related to compliance with the ETS testing

option.

Additionally, the ETS’s requirements to determine employee vaccination status,

support employee vaccination by providing time off for vaccination and time off for

recovery, and maintain records of employee COVID-19 vaccination status and COVID-

19 test results are also technologically feasible. As discussed above, that many employers

and organizations have already implemented such requirements demonstrates that they

are “capable of being done.” Moreover, the recordkeeping requirements in this ETS

largely mirror the requirements for the collection and maintenance of similar employee

medical records in OSHA’s Bloodborne Pathogens standard (29 CFR 1910.1030) and the

Respiratory Protection standard (29 CFR 1910.134). The ETS provides a flexible

compliance option for employers to tailor their procedures and practices to the needs of

their workplace. OSHA finds that employers in typical firms in all industry sectors can

comply with the requirements of the ETS, and compliance with the ETS is therefore

technologically feasible.

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Advanced Medical Technology Association (AdvaMed). (2021, September 10).

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content/uploads/2021/09/AdvaMed-COVID-Testing-Supply-Registry-weekly-report-
091021.pdf (AdvaMed, September 10, 2021)
Amazon.com (Amazon). (2021, October 12). Amazon.com product search results : FDA
EUA covid-19 tests. https://www.amazon.com/s?k=FDA+EUA+covid-
19+tests&ref=nb_sb_noss_2. (Amazon, October 12, 2021)

Arizona State University College of Health Solutions (ASU). (2021, October 5). COVID-
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Health-Disparities.html. (CDC, March 17, 2021)

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Fifty/50 Group. (2021, May 18). Employee Vaccination Requirement Policy.

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rapid-detection-virus-causes. (FDA, May 9, 2020)

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Sofia SARS Antigen FIA OTC COVID-19 Test.
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Collection Kits Authorized by the FDA: Infographic. https://www.fda.gov/medical-
devices/coronavirus-covid-19-and-medical-devices/covid-19-tests-and-collection-kits-
authorized-fda-infographic. (FDA, September 10, 2021)

Food and Drug Administration (FDA). (2021, September 22). Coronavirus Disease 2019
Testing Basics. https://www.fda.gov/consumers/consumer-updates/coronavirus-disease-
2019-testing-basics. (FDA, September 22, 2021)

Food and Drug Administration (FDA). (2021, October 1). Coronavirus (COVID-19)
Update: October 1, 2021. https://www.fda.gov/news-events/press-
announcements/coronavirus-covid-19-update-october-1-2021. (FDA, October 1, 2021)

Food and Drug Administration (FDA). (2021, October 4). Coronavirus (COVID-19)
Update: FDA Authorizes Additional OTC Home Test to Increase Access to Rapid
Testing for Consumers. https://www.fda.gov/news-events/press-
announcements/coronavirus-covid-19-update-fda-authorizes-additional-otc-home-test-
increase-access-rapid-testing. (FDA, October 4, 2021)

Food and Drug Administration (FDA). (2021a, October 14). In Vitro Diagnostics EUAs -
Antigen Diagnostic Tests for SARS-CoV-2. https://www.fda.gov/medical-
devices/coronavirus-disease-2019-covid-19-emergency-use-authorizations-medical-
devices/in-vitro-diagnostics-euas-antigen-diagnostic-tests-sars-cov-2. (FDA, October 14,
2021a)
Food and Drug Administration (FDA). (2021b, October 14). In Vitro Diagnostics EUAs -
Molecular Diagnostic Tests for SARS-CoV-2. https://www.fda.gov/medical-
devices/coronavirus-disease-2019-covid-19-emergency-use-authorizations-medical-
devices/in-vitro-diagnostics-euas-molecular-diagnostic-tests-sars-cov-2. (FDA, October
14, 2021b)

Fulton County, Georgia. (2021, September 3). Fulton Commissioners Approve Employee
Vaccine Protocols. https://www.fultoncountyga.gov/news/2021/09/03/fulton-
commissioners-approve-employee-vaccine-protocols. (Fulton County Government,
September 3, 2021)

Genesis Health Care. (2021, September 29). Coronavirus Updates.

https://www.genesishcc.com/coronavirus-updates. (Genesis Health Care, September 29,
2021)

Health Action Alliance (HAA). (2021, October 10). COVID-19 Vaccines: Employers &
Requirements. A list of companies requiring vaccinations for all or part of their
workforce or customers. https://www.healthaction.org/resources/vaccines/covid-19-
vaccines-employer-requirements-health-action-alliance. (HAA, October 10, 2021)

Health Action Alliance (HAA) and the National Safety Council (NSC). (2021, September
17). COVID-19 Employer Policies: A Decision Tool for Business Leaders.
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2021)

Institutes of Electrical and Electronics Engineers. (IEEE). (2021, April 28). RADxSM
Tech: A New Paradigm for MedTech Development Overview of This Special Section.
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International Union of Painters and Allied Trades (IUPAT). (2021, May 10). IUPAT
Supports Vaccine Mandates. https://www.iupat.org/press-room/vaccine-policy/. (IUPAT,
May 10, 2021)

Johns Hopkins University. (2021, October 8). Coronavirus Resource Center: Testing
Hub. https://coronavirus.jhu.edu/testing/individual-states. (JHU, October 8, 2021)

Kaiser Permanente. (2021, August 2). Protecting health and safety through vaccination.
https://about.kaiserpermanente.org/our-story/news/announcements/protecting-health-
and-safety-through-vaccination. (Kaiser Permanente, August 2, 2021)

MaineHealth. (2021, September 20). MaineHealth awarded nearly $1M by National

Institutes of Health to study COVID-19 testing in higher risk communities.
https://www.mainehealth.org/News/2021/09/MaineHealth-awarded-nearly-1M-by-NIH-
to-study-COVID19-testing. (Maine Health, September 20, 2021)

Mayo Clinic Laboratories. (2020, June 30). Mayo Clinic experts to help guide Delta Air
Lines COVID-19 safety measures. https://newsnetwork.mayoclinic.org/discussion/delta-
engages-mayo-clinic-experts-to-advise-on-making-travel-even-safer/. (Mayo Clinic
Laboratories, June 30, 2020)
Microbrush. (2020, July 1). Microbrush Introduces New Nasopharyngeal Test Swabs.
https://www.prnewswire.com/news-releases/microbrush-introduces-new-
nasopharyngeal-test-swabs-301087276.html. (Microbrush, July 1, 2020)

Millipore Sigma. (2021, October). Coronavirus COVID-19 (SARS-CoV-2) Detection,

Characterization, Vaccine and Therapy Production.
https://www.sigmaaldrich.com/US/en/life-science/covid. (Millipore Sigma, October 2021)

National Academy for State Health Policy (NASHP). (2021, October 1). State Efforts to
Ban or Enforce COVID-19 Vaccine Mandates and Passports.
https://www.nashp.org/state-lawmakers-submit-bills-to-ban-employer-vaccine-
mandates/. (NASHP, October 1, 2021)

National Institutes of Health (NIH) National Institute of Biomedical Imaging and

Bioengineering (NIBIB). (2021, September 28). RADx Tech/ATP Dashboard.
https://www.nibib.nih.gov/covid-19/radx-tech-program/radx-tech-dashboard. (NIBIB,
September 28, 2021)

National Institutes of Health (NIH) National Institute of Biomedical Imaging and

Bioengineering (NIBIB). (2021, October 14). RADxSM Tech and ATP Programs: Phase
2 Awards. https://www.nibib.nih.gov/covid-19/radx-tech-program/radx-tech-phase2-
awards. (NBIB, October14, 2021)

National Institutes of Health (NIH). (2020, October 6). NIH RADx initiative advances six
new COVID-19 testing technologies. https://www.nih.gov/news-events/news-
releases/nih-radx-initiative-advances-six-new-covid-19-testing-technologies. (NIH,
October 6, 2020)

National Institutes of Health (NIH). (2020, September 30). NIH to assess and expand
COVID-19 testing for underserved communities. https://www.nih.gov/news-events/news-
releases/nih-assess-expand-covid-19-testing-underserved-communities. (NIH, September
30, 2020)

National Institutes of Health (NIH). (2020, April 29). NIH mobilizes national innovation
initiative for COVID-19 diagnostics. https://www.nih.gov/news-events/news-releases/nih-
mobilizes-national-innovation-initiative-covid-19-diagnostics. (NIH, April 29, 2020)

National Safety Council (NSC). (2021, May 17). SAFER: Safe Actions For Employee
Returns. https://www.nsc.org/getmedia/f5dfd05d-83bf-4753-8903-538a24157725/safer-
framework-summary.pdf. (NSC, May 17, 2021)

National Safety Council (NSC). (2021, September). SAFER Report: A Year in Review,
and What’s Next. https://www.nsc.org/workplace/safety-topics/safer/state-of-the-
response-state-actions-to-address-the. (NSC, September 2021)
Puritan Products. (2020, April 20). Puritan Blog: Puritan at the Epicenter of COVID-19
Testing. https://blog.puritanmedproducts.com/puritan-at-epicenter-of-covid-19-testing.
(Puritan Products, April 20, 2020)

Qiagen. (2021, October 2). COVID-19 Latest News.

https://www.qiagen.com/us/customer-stories/latest-news-on-the-fight-against-
coronavirus. (Qiagen, October 2, 2021)
Quest Diagnostics. (2021, September 28). Quest Diagnostics Media Statement about
COVID-19 Testing. https://newsroom.questdiagnostics.com/COVIDTestingUpdates.
(Quest Diagnostics, September 28, 2021)

Quidel Corporation. (2020, July 31). Press release, Quidel Corp.

https://ir.quidel.com/news/news-release-details/2020/Quidel-Receives-Preliminary-
Contract-Leading-to-Definitive-Agreement-for-71-Million-Under-NIHs-RADx-ATP-
Program-to-Accelerate-the-Expansion-of-Its-Manufacturing-Capacity-for-Sofia-SARS-
CoV-2-Antigen-Detection-Test-for-Rapid-Diagnosis-of-COVID-19/default.aspx. (Quidel
Corp., July 31, 2020)

RiteAid. (2021, October). Free* COVID-19 Testing.

https://www.riteaid.com/pharmacy/services/covid-19-testing. (RiteAid, October 2021)

Sanford Health. (2021, July 22). Sanford Health to require COVID-19 vaccine for
employees. https://news.sanfordhealth.org/news-release/sanford-to-require-covid-19-
vaccine-for-employees/. (Sanford Health, July 22, 2021)

Trinity Health. (2021, July 8). Trinity Health Announces COVID-19 Vaccine
Requirement for All Colleagues. https://www.trinity-health.org/news/trinity-health-
announces-covid-19-vaccine-requirement-for-all-colleagues. (Trinity Health, July 8,
2021)

Tyson Foods. (2021, August 3) Tyson Foods to Require COVID-19 Vaccinations for its
U.S. Workforce. https://www.tysonfoods.com/news/news-releases/2021/8/tyson-foods-
require-covid-19-vaccinations-its-us-workforce. (Tyson Foods, August 3, 2021)

University of Arizona Center for Rural Health (ASU CRH). (2021, September 30).
ADHS-CDC COVID Disparities Initiative. https://crh.arizona.edu/programs/covid-
disparities-initiative. (ASU CRH, September 30, 2021)

U.S. Department of Defense (DOD). (2021, March 29) DOD Awards $146.77 Million
Contract to Puritan Medical Products to Increase Domestic Production Capacity of Foam
Tip Swabs. https://www.defense.gov/News/Releases/Release/Article/2554073/dod-
awards-14677-million-contract-to-puritan-medical-products-to-increase-domes/. (DOD,
March 29, 2021)

U.S. Department of Defense (DOD). (2021, July 31). DOD Awards $51.15 Million
Undefinitized Contract Action to Puritan Medical Products Company LLC to Increase
Domestic Production Capacity of Flock Tip Testing Swabs.
https://www.defense.gov/News/Releases/Release/Article/2295387/dod-awards-5115-
million-undefinitized-contract-action-to-puritan-medical-produc/. (DOD, July 31, 2021)

U.S. Department of Defense (DOD). (2021, August 23). DOD Awards $0.6 Million
Contract to QIAGEN to Increase Domestic Production Capacity of COVID-19
Diagnostic Test Kits and Reagents.
https://www.defense.gov/News/Releases/Release/Article/2742967/dod-awards-06-
million-contract-to-qiagen-to-increase-domestic-production-capaci/. (DOD, August 23,
2021)

U.S. Department of Defense (DOD). (2021, December 21). DOD Awards $4.8 Million
Indefinite Delivery/Indefinite Quantity to a Calibre Scientific Subsidiary, Anatrace, to
Increase Domestic Production Capacity of COVID-19 Testing Reagents.
https://www.defense.gov/News/Releases/Release/Article/2454163/dod-awards-48-
million-indefinite-deliveryindefinite-quantity-to-a-calibre-scien/. (DOD, December 21,
2020)

U.S. Department of Health and Human Services. (HHS). (2021, June 11). HHS Provides
$424.7 Million to Rural Health Clinics for COVID-19 Testing and Mitigation in Rural
Communities. https://www.hhs.gov/about/news/2021/06/11/hhs-provides-424-million-to-
rural-health-clinics-for-covid-19-testing.html . (HHS, June 11, 2021)

U.S. Department of Health and Human Services (HHS). (2021, August 17). Community
based testing sites. https://www.hhs.gov/coronavirus/community-based-testing-
sites/index.html. (HHS, August 17, 2021)

Walgreens. (2021, October). Free Drive-Thru COVID-19 Testing for Ages 3+.
https://www.walgreens.com/findcare/covid19/testing?ban=covid_hp_cause2.
(Walgreens, October 2021)

Walgreens. (2021, October 8). COVID-19 FAQs. https://news.walgreens.com/our-

stories/covid-19-stories/covid-19-faq.htm#testinghome. (Walgreens, October 8, 2021)

Walmart. (2021, July 9). Supporting COVID-19 Testing.

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Washington Post. (2021, October 6). White House announces $1 billion purchase of
rapid, at-home coronavirus tests.
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(Washington Post, October 6, 2021)

Willis Towers Watson. (2021, June 23) COVID-19 Vaccination and Reopening the
Workplace Survey press release. https://www.willistowerswatson.com/en-
US/News/2021/09/workplace-vaccine-mandates-expected-to-accelerate-wtw-survey-
finds. (Willis Towers Watson, June 23, 2021)

Willis Towers Watson. (2021, September 1) Workplace vaccine mandates expected to

accelerate, Willis Towers Watson survey finds. https://www.willistowerswatson.com/en-
US/News/2021/09/workplace-vaccine-mandates-expected-to-accelerate-wtw-survey-
finds. (Willis Towers Watson, September 1, 2021)

B. Economic Analysis
I. Introduction.
This section presents OSHA’s estimates of the costs and impacts, anticipated to

result from the COVID-19 Vaccination and Testing ETS, 29 CFR 1910.501. The purpose

of this ETS is to address the grave danger of COVID-19 in the workplace by promoting

vaccination, while allowing an alternative for face covering and testing requirements, and

also to remove COVID-19 positive workers from the workplace regardless of vaccination
status. The estimated costs are based on employers achieving full compliance with the

requirements of the ETS. They do not include prior costs associated with firms whose

current practices are already in compliance with the ETS requirements. The purpose of

this analysis is to:

 Identify the entities/establishments and industries affected by the ETS;

 Estimate and evaluate the costs and economic impacts that regulated

entities/establishments will incur to achieve compliance with the ETS; and

 Evaluate the economic feasibility of the rule for affected industries.

In this analysis, OSHA is fulfilling the requirement under the OSH Act to show

the economic feasibility of this ETS. This analysis is different from the cost portion of a

regulatory impact analysis prepared in accordance with Executive Order 12866 in that the

agency is focused only on costs to employers when evaluating economic feasibility. In a

regulatory impact analysis, the costs to all parties (e.g., employers, employees, and

governments) are included. While this is not the case for an economic feasibility analysis,

it does not necessarily mean that the ETS imposes no costs or burdens on parties other

than employers. For example, the rule imposes certain costs on employees who choose

not to become vaccinated (e.g., for face coverings and testing. While these costs are not

relevant for the purpose of establishing economic feasibility, these costs would be

attributable to the ETS in a regulatory impact analysis. In addition, these costs are not

mandatory because any employee who does not wish to pay them may choose to become

vaccinated or leave employment (see discussion below on turnover), after which the costs

would not be incurred. Some employees may also be entitled to a reasonable

accommodation that may avoid additional cost (e.g., telework).

“[T]he Supreme Court has conclusively ruled that economic feasibility [under the

OSH Act] does not involve a cost-benefit analysis.” Pub. Citizen Health Research Grp. v.

U.S. Dept. of Labor, 557 F.3d 165, 177 (3d Cir. 2009); see also Asbestos Info. Ass’n, 727
F.2d at 424 n.18 (noting that formal cost benefit is not required for an ETS, and indeed

may be impossible in an emergency). The OSH Act “place[s] the ‘benefit’ of worker

health above all other considerations save those making attainment of this ‘benefit’

unachievable.” Cotton Dust, 452 U.S. at 509. Therefore, “[a]ny standard based on a

balancing of costs and benefits by the Secretary that strikes a different balance than that

struck by Congress would be inconsistent with the command set forth in” the statute. Id.

While this case law arose with respect to health standards issued under section 6(b)(5) of

the Act, which specifically require feasibility, OSHA finds the same concerns applicable

to emergency temporary standards issued under section 6(c) of the Act. An ETS “serve[s]

as a proposed rule” for a section 6(b)(5) standard, and therefore the same limits on any

requirement for cost-benefit analysis should apply. Indeed, OSHA has also rejected the

use of formal cost benefit analysis for safety standards, which are not governed by

section 6(b)(5). See 58 FR 16,612, 16,622-23 (Mar. 30, 1993) (“in OSHA’s judgment, its

statutory mandate to achieve safe and healthful workplaces for the nation’s employees

limits the role monetization of benefits and analysis of extra-workplace effects can play

in setting safety standards.”).22 A standard must be economically feasible in order to be

“reasonably necessary and appropriate” under section 3(8) and, by inference, “necessary”

under section 6(c)(1)(B) of the OSH Act. Cf. Am. Textile Mfrs. Inst., Inc. v. Donovan,

452 U.S. 490, 513 n.31 (1981) (noting “any standard that was not economically . . .

feasible would a fortiori not be ‘reasonably necessary or appropriate’” as required by the

OSH Act’s definition of “occupational safety and health standard” in section 3(8)); see

also Florida Peach Growers, 489 F.2d at 130 (recognizing that the promulgation of any

standard, including an ETS, must account for its economic effect). A standard is

22To support its Asbestos ETS, OSHA conducted an economic feasibility analysis on these terms. 48 FR
51086, 51136-38 (Nov. 4, 1983). In upholding that analysis, the Fifth Circuit said that OSHA was required
to show that the balance of costs to benefits was not unreasonable. Asbestos Info. Ass’n, 727 F.2d at 423.
As explained above, OSHA does not believe that is a correct statement of the economic feasibility test.
However, even under that approach this ETS easily passes muster.
economically feasible when industries can absorb or pass on the costs of compliance

without threatening industry’s long-term profitability or competitive structure, Cotton

Dust, 452 U.S. at 530 n.55, or “threaten[ing] massive dislocation to, or imperil[ing] the

existence of, the industry.” United Steelworkers of Am. v. Marshall, 647 F.2d 1189, 1272

(D.C. Cir. 1981) (Lead I). Given that section 6(c) is aimed at enabling OSHA to protect

workers in emergency situations, the agency is not required to make the showing with the

same rigor as in ordinary section 6(b) rulemaking. Asbestos Info. Ass’n/N. Am. v. OSHA,

727 F.2d 415, 424 n.18 (5th Cir. 1984). In Asbestos Information Association, the Fifth

Circuit concluded that the costs of compliance were not unreasonable to address a grave

danger where the costs of the ETS did not exceed 7.2% of revenues in any affected

industry. Id. at 424.

The scope of judicial review of OSHA’s determinations regarding feasibility

(both technological and economic) “is narrowly circumscribed.” N. Am.’s Bldg. Trades

Unions v. OSHA, 878 F.3d 271, 296 (D.C. Cir. 2017) (Silica). “OSHA is not required to

prove economic feasibility with certainty, but is required to use the best available

evidence and to support its conclusions with substantial evidence.” Amer. Iron & Steel

Inst. v. OSHA, 939 F.2d 975, 980-81 (D.C. Cir. 1991) (Lead II); 29 U.S.C. 655(b)(5), (f).

“Courts, [moreover], ‘cannot expect hard and precise estimates of costs.’” Silica, 878

F.3d at 296 (quoting Lead II, 939 F.2d at 1006). Rather, OSHA’s estimates must

represent “a reasonable assessment of the likely range of costs of its standard, and the

likely effects of those costs on the industry.” Lead I, 647 F.2d at 1266. The “mere

‘possibility of drawing two inconsistent conclusions from the evidence,’ or deriving two

divergent cost models from the data ‘does not prevent [the] agency’s finding from being

supported by substantial evidence.’” Silica, 878 F.3d at 296 (quoting Cotton Dust, 452

U.S. at 523).
 Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits

of the intended regulation and, if regulation is necessary, to select regulatory approaches

that maximize net benefits (including potential economic, environmental, and public

health and safety effects; distributive impacts; and equity). Executive Order 13563

emphasized the importance of quantifying both costs and benefits, of reducing costs, of

harmonizing rules, and of promoting flexibility. Because of the continued impact of the

pandemic on occupational safety and health, OSHA has prepared this ETS and the

accompanying economic analysis on an extremely condensed timeline. Thus, in light of

the Secretary’s conclusion that the COVID-19 pandemic constitutes an emergency

situation, the Secretary has notified OIRA that it is necessary for OSHA to promulgate

this regulation more quickly than normal review procedures allow, pursuant to EO 12866

Sec. 6 (a)(3)(D). OIRA has waived compliance with Sec. 6(a)(3)(B) and (C) for this

economically significant rule.

II. COVID-19 ETS Industry Profile.

a. Introduction.

In this section, OSHA provides estimates of the number of affected entities,

establishments, and employees for the industries that have settings covered by this ETS.

The term “entity” describes a legal for-profit business, a non-profit organization, or a

local governmental unit, whereas the term “establishment” describes a particular physical

site of economic activity. Some entities own and operate more than one establishment.

Throughout this analysis, where estimates were derived from available data those

sources have been noted in the text. Estimates without sources noted in the text are based

on agency expertise.

b. Scope of the COVID-19 ETS.

This ETS applies to all employers with a total of 100 or more employees at any

time this ETS is in effect. However, the requirements of this ETS do not apply to: (1)
workplaces covered under the Safer Federal Workforce Task Force COVID-19

Workplace Safety: Guidance for Federal Contractors and Subcontractors (Contractor

Guidance); or (2) settings where any employee provides healthcare services or healthcare

support services when subject to the requirements of 29 CFR 1910.502 (i.e., the

Healthcare ETS). Furthermore, the requirements of this ETS do not apply to the

employees of covered employers: (1) who do not report to a workplace where other

individuals, such as coworkers or customers, are present; or (2) while working from

home; or (3) who work exclusively outdoors. Based on this scope, employers in nearly

every sector are expected to be covered by this ETS.

OSHA’s assumptions may result in an overestimate of the number of employees

affected by the ETS. First, OSHA is not estimating the number and type of workplaces

covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety:

Guidance for Federal Contractors and Subcontractors or removing them from the profile

of employers affected by this ETS. OSHA assumes for the purpose of this analysis that

employers covered under the Contractor Guidance will also have contracts to perform

work in workplaces where they are not covered under that Guidance (i.e., where the

employer contracts with an entity other than the federal government), and so those

employers are included in the scope here.

Second, OSHA estimates that all employers in all private sector industries are

affected by this ETS to some extent. Although this ETS imposes no compliance burden

on employers whose employees work remotely 100 percent of the time, in OSHA’s

analysis, no employers with 100 or more employees have all of their employees working

remotely 100 percent of the time (i.e., at least some employees in each affected firm do

not work remotely). Moreover, OSHA’s analysis does not take into account that some

employees may engage in part-time telework (i.e., it assumes that employees either work

remotely full-time or do not work remotely at all). Finally, OSHA’s analysis does not
fully take into account the exemption for employees who do not report to a workplace

where other individuals are present, meaning that this analysis may overestimate the

number of employees affected by the rule.

As stated, the requirements of this ETS do not apply to the employees of covered

employers who work exclusively outdoors. To determine the percentage of employees in

occupations for which the exception is relevant, the agency uses data from the BLS’s

2020 Occupational Requirements Survey (ORS) (BLS, 2020). This survey looks at

various aspects of job requirements. In particular, the survey lists occupations where

workers are outdoors “constantly,” which OSHA interprets as being nearly continuously

outdoors. Because the majority of workers who work outdoors “constantly” likely work

indoors at least some of the time, the agency judges that no more than 10 percent of the

workers who are primarily outdoors are actually there exclusively. See Table IV.B.1 for

the occupations, the ORS percentages, and final percentages for workers OSHA estimates

are exempt from the scope of this ETS based on the outdoor work exemption.
Table IV.B.1-Occupations with workers who work outdoors
Percent Percent
SOC
Occupation outdoors outdoors
Code
constantly exclusively
373011 Landscaping and Groundskeeping Workers 90% 9%
472061 Construction Laborers 79% 8%
474051 Highway Maintenance Workers 48% 5%
Lifeguards, Ski Patrol, and Other Recreational Protective
339092 Service 45% 5%
470000 Construction and Extraction Occupations 42% 4%
471011 First-Line Supervisors of Construction Trades and Extraction 39% 4%
Operating Engineers and Other Construction Equipment
472073 Operators 36% 4%
370000 Building and Grounds Cleaning and Maintenance Occupations 26% 3%
272022 Coaches and Scouts 14% 1%
530000 Transportation and Material Moving Occupations 8% 1%
390000 Personal Care and Service Occupations 5% 0.5%
270000 Arts, Design, Entertainment, Sports, and Media Occupations 2% 0.2%
Source: BLS Occupational Requirement Survey (BLS, 2020), OSHA calculations.
 OSHA’s estimate of employees who work exclusively outdoors does not account

for employers who only need to make slight adjustments to their current work practices to

ensure that their employees qualify for the outdoor exemption, such as by holding tool

box talks outdoors instead of in a traditional indoor location. This may result in more

employees falling within the exemption than estimated by OSHA; therefore, OSHA’s

cost analysis likely overestimates costs.

The requirements of the ETS also do not apply to settings where any employee

provides healthcare services or healthcare support services when subject to the

requirements of 29 CFR 1910.502 (the Healthcare ETS). The Healthcare ETS is a

temporary standard that may not remain in effect for the entire period that 29 CFR

1910.501 remains in effect. This means that some employers or employees covered by

the Healthcare ETS, those in firms that have 100 or more employees, may ultimately be

covered by 29 CFR 1910.501 (because the exception in 29 CFR 1910.501 is limited to

when employers are subject to the requirements of the Healthcare ETS). This potentially

impacts two types of costs: employer-based costs (e.g., employer policy on vaccination)

and employee-based (periodic) costs (e.g., recordkeeping).

Employer-Based Costs: For the purpose of the economic analysis only, OSHA

treats the Healthcare ETS as though it will no longer be in effect after December, 2021,

because at that point the Healthcare ETS will have been in effect for the six months that

OSHA had calculated costs for that ETS. Therefore, OSHA estimates that some

employers including those with 100 or more employees subject to the 29 CFR 1910.502

exemption, will need to take employer-based costs because all these employers will

ultimately be subject to 29 CFR 1910.501 under this assumption.

Employee-Based Costs: OSHA’s estimates incorporate two assumptions for the

purposes of this analysis only. First, for the purposes of assumptions for this analysis

only, § 1910.501 will remain in effect for 6 months. Second, many employers and
employees currently covered only by the Healthcare ETS will be subject to the

requirements of 29 CFR 1910.501 for approximately 4 months (4 months of the 6 month

estimated lifespan of 29 CFR 1910.501). OSHA’s estimate of those employees exempted

by the Healthcare ETS was based on the Industry Profile of employees in firms with 100

employees or more covered by the Healthcare ETS, as estimated in Table VI.B.3 in the

economic analysis for that rulemaking (see 86 FR 32488).

OSHA notes that some employees currently covered by the Healthcare ETS might

also be currently covered by 29 CFR 1910.501 (albeit at different times or in different

locations) because the Healthcare ETS is settings-based. For example, a pharmacist

would normally not need to comply with the requirements of § 1910.502 when just filling

prescriptions in a retail pharmacy store (see 29 CFR 1910.502(a)(2)(ii)), but would need

to comply when administering vaccinations within an embedded clinic inside that retail

pharmacy. Thus, there are a number of variables that could impact the extent to which the

pharmacist’s employer might incur any costs. However, even to the extent that such

costs might occur (e.g., recordkeeping for testing if the pharmacist works for an employer

covered by 29 CFR 1910.501 and is unvaccinated), OSHA judges that they would be de

minimis for several reasons. First, this pool of workers is likely to be very small,

especially when compared to the population of workers covered by the Healthcare ETS.

Second, most employees subject to both standards will have been fully vaccinated before

OSHA takes costs for these employees under 29 CFR 1910.501 by operation of the CMS

rule mandating vaccination or as a result of the voluntary vaccination incentives

promoted by OSHA’s Healthcare ETS (therefore negating most of the costs associated

with vaccination and testing under 29 CFR 1910.501). Third, any underestimate of

periodic costs will only apply during the first two months after 29 CFR 1910.501 goes

into effect and the standard has a delayed compliance date of 30 days after the effective

date for most provisions, except for testing, which has a delayed compliance date of 60
days. This will further lessen the periodic costs associated with any potential

underestimate.

In all respects (other than the 4/6 share of employee-based costs), OSHA is taking

the same approach in the Industry Profile and Cost Estimates for employers and

employees currently covered by the Healthcare ETS as it does for all other industries.

These employers and employees are fully integrated into Table IV.B.5, below, which

contains a summary of covered entities and employees. Moreover, the same assumptions

on outdoor work and other scope exemptions that OSHA explains earlier holds for these

employers and employees. In addition, OSHA makes the same downward adjustment in

telework for these employers and employees in accordance with the methodology it sets

out below. Thus, the Healthcare ETS profile used in this ETS to account for employees

exempted by the Healthcare ETS into the Profile in the event the Healthcare ETS expires

(i.e., in Table IV.B.5, below) is an updated version of Table VI.B.3 in the Healthcare

ETS (see 86 FR 32488).23 OSHA notes that some firms may decide to proactively

comply with certain 29 CFR 1910.501 requirements (such as mandating vaccination for

all employees that were removed from the Industry Profile) before the end date of the

Healthcare ETS based on the conclusion that 29 CFR 1910.501 will ultimately apply in

full to them. Since these costs still occur due to 29 CFR 1910.501, OSHA is

appropriately including them in this cost analysis.

There are 9.9 million employees who will newly be covered by 29 CFR 1910.501

starting in December whose employers will incur an additional $318 million in costs.

These costs are integrated into the agency’s main cost analysis, which is described later

in this economic analysis.

23The CMS rule published elsewhere in this issue of the Federal Register mandates vaccination for
employees in facilities that receive Medicare or Medicaid. OSHA is ignoring this for the purpose of its cost
analysis and taking costs into account as if the CMS rule were not promulgated. This creates a substantial
overestimate.
 Only some state- and local-government entities are included in this analysis.

State- and local-government entities are specifically excluded from coverage under the

OSH Act (29 U.S.C. 652(5)). Workers employed by these entities only have OSH Act

protections if they work in states that have an OSHA-approved State Plan. (29 U.S.C.

667). Consequently, this analysis excludes public entities in states that do not have

OSHA-approved State Plans. Table IV.B.2 presents the states that have OSHA-approved

State Plans and their public entities are included in the analysis.
Table IV.B.2. States that Have OSHA-Approved State Plans
Alaska Maryland South Carolina
Arizona Michigan Tennessee
California Minnesota Utah
Connecticut Nevada Vermont
Hawaii New Jersey Virginia
Illinois New Mexico Washington
Indiana New York Wyoming
Iowa North Carolina US Virgin Islands
Kentucky Oregon
Maine Puerto Rico
Source: OSHA, September 25, 2021

OSHA notes, finally, that the percentage of employers mandating vaccination,

and hence the employee vaccination rate, would likely rise to some degree absent this

ETS due to other federal actions, such as the vaccination mandate for federal contractors,

the CMS rule published elsewhere in this issue of the Federal Register, and as a result of

vaccination mandates that have been adopted at state and local levels. This analysis does

not account for increases in vaccination that would occur absent the standard, resulting in

a likely overestimate of the costs.

c. Teleworking.

Dingel-Neiman approach for estimating who can work remotely

OSHA uses the estimates in a paper by J. I. Dingel and B. Neiman, “How Many

Jobs Can be Done at Home?,” published in July 2020, as a starting point to determine the

percentage of employees, by occupation, who are not expected to work remotely (i.e., the

percentage of workers for whom employers have employee-based costs under this ETS)

(Dingel and Neiman, July 2020).

In Dingel and Neiman’s paper, the authors estimate the number of jobs in the U.S.

economy that workers can feasibly perform remotely. The authors use two different

surveys from the Occupational Information Network (O*Net)24 to evaluate which

24The O*Net Program is a major source of occupational information for the U.S. The O*NET database
surveys ask both specific occupational experts and workers in those occupations questions covering
multiple aspects of almost 1,000 occupations covering the entire U.S. economy. See
occupations can be performed remotely and combine the O*Net estimates with the

Bureau of Labor Statistics’ (BLS) Occupational Employment and Wage Statistics

(OEWS) data on employment by occupation to estimate the total number of workers

nationally who can work remotely.

To evaluate the survey responses, Dingel and Neiman first determined the

occupations for which the average response to a given prompt met a preset threshold.

Table IV.B.3 presents the Dingel and Neiman response threshold for each survey

question as well as the percent of occupations that meet each respective predetermined

threshold. For example, in 10.8 percent of occupations, the average response to the

“Performing general physical activities” (4.A.3.a.1) question met the threshold, falling in

the range of 4 to 5.

Dingel and Neiman determined that employees in a given occupation can

telework full time if they did not meet the predetermined threshold for any of the

questions highlighted in grey and denoted with a “Yes” in the column that reports

whether that activity is used in determining whether a job can be done remotely in Table

IV.B.3.

https://www.onetonline.org/ for more information. The occupation definitions in the O*NET data are
Standard Occupation Codes--the same definitions that are used in the BLS OEWS data. Dingel and Neiman
use the responses to two surveys included in release 24.2 of the database administered by O*NET, the
Worker Context Questionnaire and the Generalized Work Activities Questionnaire. The occupation with
the median number of respondents had 26 respondents for each work context question and 25 respondents
for each generalized work activities question per detailed-level SOC occupation code.

In the O*Net Questionnaires, survey respondents responded to statements about the nature and
requirements of the daily tasks associated with their job on a 1-5 ordinal scale, where 5 represents the
strongest agreement and 1 represents the strongest disagreement (see Table IV.B.3). The O*Net data
contain the average response to each question for each occupation code. For instance, for occupation “Chief
Executives” (SOC 11-1011), the average response to the prompt “Performing General Physical Activities is
very important” was 1.39, indicating that performing general physical activity is not, on average, critical to
the work of chief executives. The average responses by occupation for other prompts in the relevant
surveys utilized by Dingel and Neiman are contained in those surveys.
Table IV.B.3. O*Net Survey Questions and Response Thresholds
Perc. of Used to
Question Response occupations estimate
Question description
ID threshold that meet ability to work
threshold remotely
Generalized Work Activities Survey
4.A.3.a.1 Performing General Physical Activities is very important 4 to 5 10.8% Yes
4.A.3.a.2 Handling and Moving Objects is very important 4 to 5 12.7% Yes
4.A.3.a.3 Controlling Machines and Processes [not computers nor vehicles] is very important 4 to 5 13.1% Yes
4.A.3.a.4 Operating Vehicles, Mechanized Devices, or Equipment is very important 4 to 5 9.2% Yes
4.A.4.a.8 Performing for or Working Directly with the Public is very important 4 to 5 16.2% Yes
4.A.3.b.4 Repairing and Maintaining Mechanical Equipment is very important 4 to 5 4.0% Yes
4.A.3.b.5 Repairing and Maintaining Electronic Equipment is very important 4 to 5 2.1% Yes
4.A.1.b.2 Inspecting Equipment, Structures, or Materials is very important 4 to 5 18.6% Yes
Worker Context Survey
4.C.2.d.1.a Average respondent says they are sitting almost continually 4.5 to 5 12.2% No
4.C.2.d.1.b Average respondent says they are standing almost continually 4.5 to 5 10.1% No
4.C.2.d.1.g Majority of time is spent using your hands to handle, control, or feel objects, tools, or controls 3.5 to 5 46.2% No
4.C.2.a.1.c Majority of respondents say outdoors every day 4.5 to 5 8.3% Yes
4.C.1.a.2.h Average respondent says they use email less than once per month 1 to 2 15.4% Yes
4.C.1.a.2.f Average respondent says they use telephone less than once per month 1 to 2 4.1% No
4.C.2.d.1.c Average respondent says they spent majority of time climbing ladders, scaffolds, or poles 3.5 to 5 1.2% No
4.C.2.d.1.d Average respondent says they spent majority of time walking or running 3.5 to 5 13.4% Yes
Average respondent says they spent majority of time kneeling, crouching, stooping, or
4.C.2.d.1.e 3.5 to 5 2.4% No
crawling
4.C.2.d.1.f Average respondent says they spent majority of time keeping or regaining their balance 3.5 to 5 0.3% No
4.C.2.d.1.h Average respondent says they spent majority of time bending or twisting their body 3.5 to 5 12.1% No
4.C.2.d.1.i Average respondent says they spent majority of time making repetitive motions 3.5 to 5 31.1% No
Average respondent says they spent majority of time wearing common or specialized
4.C.2.e.1.d 3.5 to 5 43.1% Yes
protective or safety equipment
4.C.1.a.4 Average respondent says they spent majority of time in contact with others 3.5 to 5 94.3% No
4.C.1.b.1.f Average respondent says it is very important for them to deal with external customers 4 to 5 28.7% No
4.C.1.b.1.g Average respondent says it is very important for them to coordinate or lead others 4 to 5 21.2% No
Average respondent says it is very important for them to be responsible for others' health and
4.C.1.c.1 4 to 5 21.4% No
safety
4.C.1.d.3 Average respondent says they deal with violent people at least once a week 4 to 5 0.4% Yes
Average respondent says they work in an environment that is not environmentally controlled
4.C.2.a.1.b 4.5 to 5 1.5% No
every day
4.C.2.a.3 Average respondent says they are physically close (at least moderately close) to others 4 to 5 20.9% No
4.C.2.b.1.b Average respondent says extreme temperatures every day 4 to 5 9.1% No
4.C.2.b.1.d Average respondent says they are exposed to contaminants at least once a week 4 to 5 20.0% No
4.C.2.b.1.e Average respondent says they are exposed to cramped work space every day 4.5 to 5 0.1% No
4.C.2.b.1.f Average respondent says they are exposed to whole body vibration at least once a week 4 to 5 1.0% No
4.C.2.c.1.a Average respondent says they are exposed to radiation at least once a week 4 to 5 1.1% No
4.C.2.c.1.b Average respondent says they are exposed to diseases or infection at least once a week 4 to 5 9.0% Yes
4.C.2.c.1.c Average respondent says they are exposed to high places at least once a week 4 to 5 2.2% No
4.C.2.c.1.d Average respondent says they are exposed to hazardous conditions at least once a week 4 to 5 6.0% No
4.C.2.c.1.e Average respondent says they are exposed to hazardous equipment at least once a week 4 to 5 9.9% No
Average respondent says they are exposed to minor burns, cuts, bites, or stings at least once
4.C.2.c.1.f 4 to 5 2.6% Yes
a week
Source: (Dingel and Neiman, July 2020)
Adjusting Dingel and Neiman to Reflect Current Conditions

While many employees can and are working remotely, many have returned to

their places of employment. This conclusion is borne out by BLS’s Current Population

Survey (CPS) (BLS, 2021c). To address the tendency toward employees returning to

work on site and more accurately reflect current remote work conditions, OSHA made

two adjustments to Dingel and Neiman’s estimates. In the COVID-19 Healthcare ETS,

OSHA also used Dingel and Neiman’s paper to estimate the number of workers who

teleworked in response to the pandemic and the ETS under the assumption that anyone

who could work remotely would do so in response to the pandemic and the Healthcare

ETS. Dingel and Neiman’s estimates are therefore framed as the upper-bound of potential

teleworking.

The adjustments OSHA made reflect changing circumstances. First, based on

agency expertise, OSHA changed the status of certain occupations in its occupational list

from working remotely to not working remotely. For example, when Dingel and Neiman

published their study, many schools were operating virtually so the Dingel and Neiman

finding that teachers were able to work remotely lined up with the situation where

teachers were working remotely. At this point in the pandemic, on the other hand, in-

person learning has mostly recommenced. To this end, OSHA changed the status of

teachers and other employees in the education sector from working remotely to not

working remotely in this analysis. As another example, many activities that ceased or

were reduced significantly have now resumed and many locations that were closed to the

public have reopened (e.g., athletic events, shows, gyms, casinos and places of worship),

and, since more people have returned to the office, there is more need for

childcare. Therefore, OSHA also changed the status of these employees and others from

telework to non-telework. This has the ultimate effect of increasing costs estimates for

the rule.
 Appendix A (Table A-1), in the accompanying document in the docket,

“Vaccination, and Testing ETS: Economic Profile and Cost Chapter Appendices”

(OSHA, October 2021b), presents Dingel and Neiman’s (July 2020) unmodified

percentages of workers that can work remotely in each detailed occupation (based on

BLS’s Standard Occupation Code (SOC)).25 Appendix A also presents, in separate

columns, percentages reflecting the modifications OSHA made in those occupations

where OSHA changed the results from telework to non-telework for the reasons stated, as

well as percentages reflecting the modifications made in occupations where employees

work exclusively outdoors.

According to the OSHA-adjusted Dingel and Neiman estimates, 14 percent of the

jobs in the United States are performed entirely at home, with significant variation across

cities and industries. It should be noted that the Dingel and Neiman analysis does not

specify a proportion of jobs that can be performed at home part of the time; under the

analysis, employees are either working remotely full-time or are working on site full

time.

The second adjustment OSHA made used monthly COVID-specific teleworking

data from telework questions added during the pandemic to the CPS to estimate the

reduction in teleworking since its peak and applied those estimates to further adjust

downward the number of workers currently teleworking (BLS, 2021c). Specifically, the

CPS questions asked respondents whether they were teleworking due to COVID-19 (as

25 Except for the adjustments to Dingel and Neiman discussed above, OSHA used the Dingel and Neiman
estimates for telework by occupation without change. The agency recognizes that the authors’ methodology
(i.e., the use of 0-1 thresholds) led to a small number of results that may appear not to reflect real-world
experiences within an occupation. However, Dingel and Neiman represents the best available evidence for
determining the percentage of employees, by occupation, who are expected to work remotely. OSHA is
aware of no other source for this information that contains the level of detail necessary to conduct this
analysis. Moreover, as explained above, OSHA modified the results for individual occupations when it had
a reasoned basis for doing so. In any event, every NAICS industry is comprised of many occupations, so
for every occupation where OSHA suspects remote work is overestimated in Dingel and Neiman’s results,
there may be another where remote work is underestimated.
opposed to teleworking for other reasons) and OSHA estimated the difference in

teleworking from the peak of COVID-related teleworking in all industries, which

occurred in May 2020, through August 2021 (see Table IV.B.4).26 The reduction in

teleworking was then applied as the change in percentage points to the estimated overall

level of employees covered by the ETS in each NAICS code estimated based on data

from Dingel and Neiman (July 2020). OSHA’s final teleworking estimates are provided

in Appendix B in the accompanying document in the docket, “Vaccination, and Testing

ETS: Economic Profile and Cost Chapter Appendices” (OSHA, October 2021b).

Reductions due to employees working exclusively outdoors were applied to reduce the

percentage of covered employees in Appendix B as well.

26 The CPS data were available only at the 2-digit NAICS level as shown in Table IV.B.4.
Table IV.B.4. Percent of Employees who Teleworked because of COVID-19
August
Industry NAICS May 2020 2021 Change
Agriculture and related industries 11 6.6% 3% -4%
Nonagricultural industries 35.9% 14% -22%
Mining, quarrying, and oil and gas extraction 21 33.2% 12% -21%
Construction 23 14.7% 4% -10%
Manufacturing 30.3% 13% -17%
Durable goods manufacturing 31, 32 31.7% 14% -18%
Nondurable goods manufacturing 33 28.2% 12% -16%
Wholesale and retail trade 19.5% 6% -13%
Wholesale trade 42 31.4% 10% -21%
Retail trade 44, 45 16.7% 6% -11%
Transportation and utilities 15.9% 7% -9%
Transportation and warehousing 48, 49 11.8% 5% -7%
Utilities 22 36.6% 20% -17%
Information 51 61.0% 31% -30%
Financial activities 60.1% 30% -30%
Finance and insurance 52 66.8% 38% -29%
Real estate and rental and leasing 53 41.9% 14% -28%
Professional and business services 50.9% 26% -25%
Professional and technical services 54 64.1% 36% -29%
Management, administrative, and waste services 55, 56 23.7% 8% -16%
Education and health services 45.6% 12% -34%
Educational services 61 76.3% 14% -62%
Health care and social assistance 62 25.4% 10% -15%
Hospitals 622 21.2% 10% -11%
Social assistance 624 37.8% 14% -24%
Leisure and hospitality 15.0% 5% -10%
Arts, entertainment, and recreation 71 37.9% 11% -27%
Accommodation and food services 72 8.0% 3% -5%
Other services 81 28.2% 8% -20%
Private households 814 11.0% 2% -9%
Public administration 92 45.5% 23% -23%
Source: BLS Current Population Survey (BLS, 2021c)
Other Teleworking Literature

A number of companies have announced plans to allow employees to work from

home at least through the end of 2021 – suggesting that the levels of remote work will not

be returning to pre pandemic levels in the near future. Many technology and internet

based companies, such as Dropbox, Coinbase, VMWare, and Slack, have announced a

complete, permanent move to fully remote work (Courtney, September 27, 2021). Large

employers such as Facebook, Amazon, and Siemens plan to maintain some physical

workspace but now offer their employees who are telework eligible the option to work

from home at least part of the time on a permanent basis (Id.). Google, Ford, Amazon,

Apple and other large employers are expecting their telework eligible workers to return to

on-site work (in some capacity) no earlier than January 2022 with Lyft anticipating a

February 2022 return (Cerullo, August 31, 2021). As a final example, a survey of

businesses in Massachusetts found that about 40 percent of teleworkers anticipate they

will not be returning to the office in January 2022 or earlier (Chesto, June 22, 2021).

Additional studies provide qualitative support for the conclusion that a range of

employees will “predictably” work from home both during the pandemic and beyond. In

Bick, Blandin, and Martens’s paper, “Work from Home Before and After the COVID-19

Outbreak” the authors use the following information to establish the physical location of

employment (home or workplace) of workers: data from the Real-Time Population

Survey (RPS), a national labor market survey of adults between ages 18-64 that mirrors

the Current Population Survey (CPS) and collects information used in pandemic analysis,

such as commuting behavior before and after the World Health Organization declared a

global pandemic; mobility data on commuting; and information from the CPS since May

2020 on ‘pandemic-related’ telework (Bick et al., February 2021).

Based on these data, Bick et al., found that there was a sudden decline in

commuting trips in the U.S. after the initial COVID-19 outbreak, and that even when
these trips subsequently began increasing back toward the original number of commuting

trips, the overall number of trips did not return to normal at the end of 2020 because

many teleworking employees continued working from home. The authors found that the

surge in work from home came almost entirely from employees working from home

every workday in the reference week. The authors also suggest that, for some

occupations, especially those occupations with more educated workers, the change to

increased work from home appears to be a long-term change; the data showed that, as of

December 2020, 12.5 percent of these workers reported they expect to be working from

home full-time in the future, and 24.5 percent reported they expect to be working from

home part-time.

In “COVID-19 and Remote Work: An Early Look At U.S. Data,” Brynjolfsson et

al., noted that some of the shift to working from home seems to be a long-term

phenomenon (Brynjolfsson et al., June 2020). The authors found, using an online survey,

that 35.2 percent of workers had switched to working from home. Additionally, 15

percent of workers reported they were already working from home before COVID-19.

Therefore, this study finds that about half of workers are now working from home – an

even greater percentage than estimated by Dingel and Neiman.

Finally, in “Why Working from Home Will Stick,” Barrero et al. predict that 22

percent of all full workdays will be performed from home after the pandemic ends,

compared to 5 percent before (Barrero et al., April 2021). The authors highlight five

factors contributing towards the more permanent shift to telework: diminished stigma,

better-than-expected experiences working from home, investments in physical and human

capital enabling work from home, reluctance to return to pre-pandemic activities, and

innovation supporting work from home.

d. Affected Entities and Employees.

 OSHA used data from the U.S. Census’ 2017 Statistics of U.S. Businesses

(SUSB) to identify private sector entities and employees affected by this section of the

ETS (U.S. Census Bureau, 2019), and used the BLS 2017 Quarterly Census of

Employment and Wages (QCEW) to characterize state and local government entities

(BLS, 2017). SUSB provides estimates of entities and employees by employer size range,

which OSHA used to exclude employers with fewer than 100 employees.27

For rail transportation (NAICS 482), which is not included in SUSB or QCEW

data, OSHA relied on Federal Railroad Administration and Association of American

Railroads statistics reported in OSHA’s 2020 final rule, Cranes and Derricks in

Construction: Railroad Roadway Work. See 85 FR 57109 (September 15, 2020). OSHA

used these data sources to identify public and private railroad employers with more than

100 employees. For agricultural NAICS (111 and 112), OSHA relies on the National

Agricultural Statistics Service, 2017 Census of Agriculture (NASS, 2017) to obtain

estimates of total entities, employees, and revenues. Since these data do not indicate the

number of entities with more than 100 employees, OSHA assumes it is the same as the

average proportion as the support activity sectors for crop and animal production (NAICS

114 and 115). OSHA similarly specifies teleworking conditions for NAICS 111 and 112

using the average result for support activities for agriculture (NAICS 114 and 115). For

the postal service industry, NAICS 491110, which is not included in SUSB, OSHA

obtains total entity and employment data for private postal services from the QCEW.

Since these data do not indicate the number of entities with more than 100 employees,

OSHA assumes it is the same as the average proportion as the related industries, couriers

and express delivery (NAICS 492110), and local delivery (NAICS 492120).

27 SUSB with revenue data is only collected every 5 years. While OSHA could attempt to extrapolate these
data to more recent years, the results would be imprecise because they would change the revenue-employee
size distributions. Those distributions are crucial for measuring impacts so the agency has opted to use the
data as is. The total number of employees in OSHA’s estimate is fairly close to that of SUSB. The 2017
SUSB data includes a total of 128.6 million employees, while the more recent 2018 SUSB data includes a
total of 130.9 million.
 OSHA used the BLS 2020 Occupational Employment and Wage Statistics

(OEWS), which provides NAICS-specific estimates of employment and wages by

occupation, along with the data in Appendix B (discussed earlier), to determine the subset

of non-teleworking employees affected by the ETS.

Table IV.B.5 summarizes the set of entities covered by the ETS. OSHA estimates

a total of approximately 263,879 entities and approximately 1.9 million establishments

incur costs under the ETS.28 OSHA estimates these entities employ approximately 102.7

million employees, and of these, OSHA estimates approximately 84.2 million employees

are covered by the ETS and are not excluded from coverage by working remotely 100

percent of the time or exclusively outside.29 For the purpose of this analysis, OSHA

estimates that all employees that OSHA estimated will work remotely will continue to do

so for the duration of this ETS.30

28This includes public entities only in states with an approved OSHA State Plan. See Table IV.B.2 above
for further discussion of state plans.

29OSHA’s estimate of covered employees is based on the discussion in the text. For example, as OSHA
writes above: OSHA assumes for the purpose of its analysis that employers covered under the Contractor
Guidance will conduct work at least some of the time in workplaces not covered under that Guidance and
so are fully integrated into the scope of the ETS; and the employers and employees covered by the
Healthcare ETS are also fully integrated into the scope of the ETS.

30Conditions are changing rapidly, and though many firms are planning to keep expanded telework to some
extent, as the rate of vaccinated workers increases, there may be increased movement back to the
workplace beyond what OSHA has estimated here.
Table IV.B.5. Summary of Covered Entities and Employees, COVID-19 ETS
Entities with 100+ Employees
NAICS NAICS Description Total Covered
Entities Establishments
Employees Employees*1
0 Total 263,879 1,858,935 102,673,913 84,194,885
111 Crop Production 33,096 74,655 5,822,469 5,311,538
112 Animal Production and Aquaculture 16,985 38,314 2,988,147 2,725,932
113 Forestry and Logging 53 198 5,938 5,368
114 Fishing, Hunting and Trapping 8 21 972 887
115 Support Activities for Agriculture and Forestry 256 714 45,473 42,628
211 Oil and Gas Extraction 259 1,339 81,544 54,323
213 Support Activities for Mining 548 2,874 206,796 177,099
221 Utilities 842 13,136 594,213 457,268
236 Construction of Buildings 1,562 3,968 377,761 296,975
237 Heavy and Civil Engineering Construction 1,693 4,135 602,769 518,130
238 Specialty Trade Contractors 5,465 11,908 1,317,912 1,106,486
311 Food Manufacturing 2,649 5,899 1,283,687 1,198,905
312 Beverage and Tobacco Product Manufacturing 339 976 138,587 118,372
313 Textile Mills 291 448 73,287 66,475
314 Textile Product Mills 242 393 64,522 56,349
315 Apparel Manufacturing 216 256 43,856 37,266
316 Leather and Allied Product Manufacturing 60 88 16,240 13,401
321 Wood Product Manufacturing 1,037 2,637 258,244 233,721
322 Paper Manufacturing 712 2,033 299,184 267,712
323 Printing and Related Support Activities 857 1,942 238,106 177,505
324 Petroleum and Coal Products Manufacturing 295 1,369 96,415 83,198
325 Chemical Manufacturing 2,211 5,063 663,493 551,194
326 Plastics and Rubber Products Manufacturing 2,054 4,421 627,642 565,890
327 Nonmetallic Mineral Product Manufacturing 1,045 5,684 273,490 236,634
331 Primary Metal Manufacturing 916 1,609 322,169 294,607
332 Fabricated Metal Product Manufacturing 3,852 6,538 776,594 680,758
333 Machinery Manufacturing 2,727 4,324 748,064 614,838
Computer and Electronic Product
334 1,706 2,653 652,153 477,811
Manufacturing
Electrical Equipment, Appliance, and
335 803 1,323 276,253 228,550
Component Manufacturing
336 Transportation Equipment Manufacturing 1,953 3,560 1,413,486 1,239,323
337 Furniture and Related Product Manufacturing 719 1,095 230,143 203,844
339 Miscellaneous Manufacturing 1,074 2,149 341,544 265,877
423 Merchant Wholesalers, Durable Goods 8,988 68,595 2,072,944 1,385,610
424 Merchant Wholesalers, Nondurable Goods 5,669 32,910 1,588,892 1,063,719
Wholesale Electronic Markets and Agents and
425 342 1,753 149,629 77,323
Brokers
441 Motor Vehicle and Parts Dealers 3,826 37,692 1,138,994 985,554
442 Furniture and Home Furnishings Stores 415 15,295 263,232 225,025
443 Electronics and Appliance Stores 239 10,035 209,975 182,586
Building Material and Garden Equipment and
444 1,192 22,265 890,976 781,239
Supplies Dealers
Table IV.B.5. Summary of Covered Entities and Employees, COVID-19 ETS
Entities with 100+ Employees
NAICS NAICS Description Total Covered
Entities Establishments
Employees Employees*1
445 Food and Beverage Stores 1,927 33,222 2,356,676 2,226,381
446 Health and Personal Care Stores 663 50,498 726,249 658,548
447 Gasoline Stations 1,332 41,559 524,523 503,976
448 Clothing and Clothing Accessories Stores 924 82,509 1,462,230 1,393,288
Sporting Goods, Hobby, Musical Instrument,
451 281 11,623 331,339 307,083
and Book Stores
452 General Merchandise Stores 141 45,771 2,666,443 1,991,708
453 Miscellaneous Store Retailers 1,009 22,875 356,750 279,509
454 Nonstore Retailers 1,447 7,589 430,825 279,099
481 Air Transportation 284 2,115 452,001 412,795
482 Rail Transportation 8 8 182,819 162,922
483 Water Transportation 158 538 52,723 41,954
484 Truck Transportation 2,597 15,684 878,429 739,360
485 Transit and Ground Passenger Transportation 927 3,775 361,731 332,064
486 Pipeline Transportation 133 3,519 49,720 40,045
487 Scenic and Sightseeing Transportation 81 173 13,055 11,407
488 Support Activities for Transportation 1,428 11,178 482,778 345,888
491 Postal Service 22 324 5,725 5,246
492 Couriers and Messengers 195 6,232 582,624 541,677
493 Warehousing and Storage 2,585 10,555 849,269 772,759
511 Publishing Industries (except Internet) 1,477 8,440 802,903 557,875
512 Motion Picture and Sound Recording Industries 406 3,518 244,844 167,652
515 Broadcasting (except Internet) 336 3,503 216,126 150,029
517 Telecommunications 637 47,673 986,794 660,528
Data Processing, Hosting, and Related
518 1,203 7,615 428,143 305,191
Services
519 Other Information Services 431 2,393 242,159 166,421
521 Monetary Authorities-Central Bank 12 58 19,738 14,064
522 Credit Intermediation and Related Activities 3,950 142,258 2,491,060 1,633,832
Securities, Commodity Contracts, and Other
523 1,761 39,199 657,382 373,616
Financial Investments and Related Activities
524 Insurance Carriers and Related Activities 2,333 40,887 2,025,570 1,003,146
525 Funds, Trusts, and Other Financial Vehicles 32 43 1,148 597
531 Real Estate 3,619 58,080 670,589 466,656
532 Rental and Leasing Services 980 30,076 340,885 261,218
Lessors of Nonfinancial Intangible Assets
533 240 432 24,333 12,725
(except Copyrighted Works)
541 Professional, Scientific, and Technical Services 14,480 96,947 5,041,154 3,074,578
551 Management of Companies and Enterprises 17,492 45,781 3,372,010 1,809,583
561 Administrative and Support Services 13,138 72,555 9,392,357 7,506,733
562 Waste Management and Remediation Services 820 7,387 261,091 224,482
611 Educational Services 15,228 30,172 7,796,496 7,194,705
621 Ambulatory Health Care Services 12,590 123,811 4,046,787 3,387,780
622 Hospitals 4,638 8,458 8,477,383 7,365,469
623 Nursing and Residential Care Facilities 9,953 55,269 3,012,595 2,702,195
624 Social Assistance 10,373 42,935 1,876,263 1,625,123
Table IV.B.5. Summary of Covered Entities and Employees, COVID-19 ETS
Entities with 100+ Employees
NAICS NAICS Description Total Covered
Entities Establishments
Employees Employees*1
Performing Arts, Spectator Sports, and Related
711 863 1,653 317,314 236,055
Industries
Museums, Historical Sites, and Similar
712 389 664 90,298 69,151
Institutions
Amusement, Gambling, and Recreation
713 2,743 12,532 1,025,842 912,667
Industries
721 Accommodation 2,312 13,016 1,506,093 1,341,571
722 Food Services and Drinking Places 11,586 164,442 5,872,006 5,771,927
811 Repair and Maintenance 1,926 16,142 328,743 280,374
812 Personal and Laundry Services 1,202 29,202 416,083 384,695
Religious, Grantmaking, Civic, Professional,
813 3,390 9,780 728,019 478,616
and Similar Organizations
Sources: OSHA analysis based on SUSB (U.S. Census Bureau, 2019), QCEW (BLS, 2017), Agricultural Census (NASS,
2017), BLS OEWS (BLS, 2021a), BLS ORS (BLS, 2020), BLS CPS (BLS, 2021c), and (Dingel and Neiman, July, 2020).
*For instances where occupation data was not available at the 4-digit level from BLS, OSHA estimated teleworking for the 4-
digit NAICS based on the average of reported data for other NAICS in the same 3-digit code.
1Derived by multiplying the total employees by the percent of employees covered by ETS in Table B-1
III. Baseline Vaccine Status for Covered Employees.

To estimate the cost of the ETS, OSHA must first estimate the baseline

vaccination status for the 84.2m covered employees (those who work for employers with

100 or more employees and are not otherwise excluded from coverage). OSHA

recognizes that employees’ current vaccination status continues to change on a daily

basis. When specifying baseline vaccination rates, OSHA used the most recently

available vaccination data from CDC, reflecting current conditions. For the remaining set

of unvaccinated employees covered by the ETS, after accounting for baseline

vaccinations, OSHA estimates the number of these employees who will be vaccinated

and the number who will test under the ETS. OSHA’s methodology for this analysis is

detailed below.

a. Estimate the Current Vaccination Rate for Covered Employees.

To estimate the current vaccinate rate for covered employees, OSHA obtained

recent vaccination data by age group from the CDC COVID Data Tracker (CDC, October

4, 2021a).31 For age groups covering 18 – 74 years old, these data include the number of

people who are fully-vaccinated as well as the number of people of who have initiated

their first shot in the past two weeks (relative to the October 4, 2021 data).32 OSHA

estimates the vaccination rate for each group (percent of total population in the age group

who are vaccinated) based on the total number of people who are fully-vaccinated and

had their first shot in the past two weeks, as a fraction of the population in each age

31 The data from the CDC website was retrieved on October 4, 2021.

32Age groups included: 18-24, 25-39, 40-49, 50-64, and 65-74. OSHA had not included the group 65-74 in
the economic analysis of the Healthcare ETS this past spring because for the healthcare sector, using the
population wide average of workers in this age bracket was felt would overcount the number of such
workers in this sector. OSHA is including this group now that more of the other age populations have been
vaccinated and those concerns are no longer as relevant. This ETS will therefore indicate that a slightly
higher percentage of universe of covered employees is vaccinated than if that age group of 65-74 was
excluded altogether, but it also increases the number of employees for which additional compliance costs
are factored in. OSHA interprets the ultimate result as a more accurate reflection of the workplace and
notes that more costs are included than if the age group had been excluded from the analysis.
group, obtained from the BLS Current Population Survey (CPS) (BLS, 2021d). Then, to

estimate the overall average vaccination rate across age groups 18 – 74 years old, OSHA

weighted each group based on the distribution of the labor force by age, also obtained

from the BLS CPS (BLS, 2021d). As shown in Table IV.B.6, OSHA estimates an overall

vaccination rate of 61.3 percent for covered employees (and 38.7 percent unvaccinated).

The healthcare sector had an earlier push to get healthcare workers vaccinated and has a

higher current rate, estimated to be 70 percent.33

33The agency takes a recent survey (Lazer et al., August 16, 2021) which breaks out rates for healthcare
vaccination and non-healthcare, and rather than replacing the CDC base vaccination rate uses the CDC rate
to make an adjustment upwards to the healthcare rate of 70 percent.
Table IV.B.6. Current Vaccination Rate for Covered Employees
# Persons
# Persons initiated
Labor Force Labor Force % Vaccination
Age Group Fully vaccination Population
Population Distribution Rate
Vaccinated in Last 14
Days
18_24 14,561,608 375,202 28,721,000 18,125,000 12% 52.01%
25_39 35,120,448 842,480 66,219,000 54,114,000 35% 54.31%
40_49 24,269,765 409,905 39,631,000 32,547,000 21% 62.27%
50_64 43,093,957 505,140 62,386,000 42,447,000 27% 69.89%
65_74 25,442,283 358,394 32,388,000 8,626,000 6% 79.66%
Average Vaccination Rate 61.3%
Source: CDC (October 4, 2021a), BLS (2021d)
Based on the above, OSHA estimates that the 84.2m covered employees includes 52.5

million (62 percent) vaccinated employees and 31.7 million unvaccinated employees (38

percent).

b. Adjust Baseline Vaccination for Continuing Trends.

OSHA adjusts the current vaccination rate to account for continuing trends in

vaccinations among covered employees due to employers’ continued implementation of

vaccine mandates and other policies (described below), under the ETS. To make this

adjustment, OSHA requires 1) further characterization of the set of unvaccinated

employees in terms of their likelihood to receive the vaccine, and 2) specification of the

extent of employer-mandated and other employer vaccination policies.

Based on vaccine confidence data from CDC (CDC, October 2021a), 13.8 percent

of the population “probably or definitely will not” get the vaccine; hereafter referred to as

“vaccine-hesitant”. Since this group is by definition part of the currently unvaccinated,

OSHA characterizes the currently unvaccinated (37.6 percent) as being comprised of

those who are vaccine--hesitant (13.8 percent) and the remainder, who while

unvaccinated, are not hesitant because they are not in the “probably or definitely will not”

group (23.8 percent).

Among those who are vaccine-hesitant, OSHA estimates that 5 percent of covered

employees (or about 36 percent of the vaccine-hesitant), are hesitant due to a religious (4

percent) or medical (1 percent) exemption. The remaining 8.8 percent include those who

are vaccine-hesitant for other reasons. For the 4 percent estimate for religious

exemptions, OSHA relies on data from Vermont, which removed its vaccine exemption

for nonreligious personal beliefs in 2016 and saw the proportion of kindergarten students

with a religious exemption rise to about 4 percent (Graham, September 15, 2021). In

analyzing this issue, the agency also reviewed other religious exemption data concerning

state workers in Oregon and Washington; the agency decided not to rely on these data
because the Vermont data is a more accurate measure of the correct religious exemption

rate, although the data does represent parents deciding on whether to claim an exemption

for their child, not for themselves. This is because, unlike the Vermont data, the Oregon

and Washington data contain workers that have applied, but not yet been accepted, for a

religious exemption (O’Sullivan, September 18, 2021; KEZI News, September 25, 2021).

In Oregon, 5 percent and in Washington 8 percent of the employees have requested

accommodations though only a fraction so far have been accepted. However, the data are

not inconsistent with the Vermont data even though the process in both Oregon and

Washington are not yet complete. For the 1 percent estimate for medical exemptions,

OSHA relied on the Household Pulse Survey (HPS) conducted by the U.S. Census (U.S.

Census Bureau, 2021). In Table 6a of the Health Tables for Week 31, September 1, 2021

through September 13, 2021, about 1% of the US population said they would not get the

vaccine because “Doctor has not recommended it,” and OSHA uses this response as a

proxy for all medical conditions.34

Table IV.B.7 presents the number of employees in each vaccination category,

which informs OSHA’s subsequent estimates of which currently unvaccinated employees

may be vaccinated by employer-mandates, vaccinated under the ETS, or tested under the

ETS.

34Table 6a presents that 3,884,902 of the population will not take the vaccine because the “doctor has not
recommended it” out of a total of 38,936,606 who will not get the vaccine for any reason. Medical reasons
are then about 10% of the general population that will not get the vaccine, and the ones who won’t get the
vaccine are about 10% of the whole population, giving 1% (.10 * .10).
Table IV.B.7. Summary of Currently Unvaccinated Employees
Percent of Covered Number of Covered
Baseline Vaccination Status
Employees Employees
All Covered Employees 100% 84,194,885
Currently Vaccinated 62.4% 52,510,781
Unvaccinated 37.6% 31,684,103
Vaccine-Hesitant 13.8% 11,618,894
Medical exemption 1.0% 841,949
Religious exemption 4.0% 3,367,795
Hesitant for other reasons 8.8% 7,409,150
Unvaccinated but Not Vaccine-Hesitant 23.8% 20,065,209
Sources: OSHA analysis, CDC COVID Data Tracker (CDC, October 4, 2021a), BLS Current Population Survey (CPS)
(BLS, 2021d), Household Pulse Survey (U.S. Census Bureau, 2021), New York Times (Graham, September 15,
2021)
Next, OSHA estimates the number of currently unvaccinated employees that are likely to

become vaccinated while the ETS is in effect, based on their employers’ policies. Based

on limited data on current vaccine mandate implementation and forecasts for future

implementation (Mishra and Hartstein, August 23, 2021; ASU COVID-19 Diagnostic

Commons, October 6, 2021), OSHA estimates that 25 percent of firms in scope currently

have a mandate, and assumes that this will rise to 60 percent of employers after the ETS

is in place. The baseline of 25 percent is based on recent surveys showing a range of

approximately 13-45 percent of employers currently requiring or planning to require

vaccination among employees (see Willis Towers Watson, June 23, 2021; Mishra and

Hartstein, August 23, 2021; ASU COVID-19 Diagnostic Commons, October 6, 2021).

Absent the ETS, OSHA assumes that the percentage of firms would remain 25 percent

(with some measure of upward adjustment due to other federal vaccine mandates

affecting select populations, as discussed above). To the extent more firms than OSHA

estimates would mandate vaccination independent of the ETS and thereby increase the

vaccination rate (again because of factors such as other federal vaccine mandates), then

the agency’s costs are overestimated because the agency’s baseline vaccination rate is too

low. The assumption of an increase from 25 to 60 percent is based on the same set of

surveys that indicate that the share of employers who will mandate vaccinations after the

ETS (including those that already mandate vaccinations) range from 25- 75 percent, see

above references. The agency also assumes that employees are distributed in the same

proportion across employers with and without a vaccine mandate (e.g., if 60 percent of

firms mandate vaccination, 60 percent of employees will be vaccinated due to the

mandate (less those who remain unvaccinated due to religious or medical exemptions).

OSHA assumes that all unvaccinated employees subject to an employer mandate

will be vaccinated under that employer mandate, except for those seeking a medical or

religious exemption. For unvaccinated employees not subject to an employer mandate,

OSHA assumes that they will also be vaccinated at their employer’s request, except for

employees who are vaccine-hesitant, which includes not only those who remain

unvaccinated for medical and religious reasons, but also those who are hesitant for any

other reason. OSHA carries through its assumptions and estimates into its total cost

estimates. For example, OSHA estimates that the 25 percent of firms in scope that

currently have a vaccination mandate will not need to implement a new written policy on

vaccination in response to the ETS since they will already have implemented a policy that

meets the requirements of the ETS.

In total, OSHA estimates that 27 percent of covered employees (22.7 million) will

be vaccinated based on employer policies under the ETS; or 72 percent of covered

employees who are currently unvaccinated. The resulting vaccination rate, adjusted for

the ETS, is estimated based on the total of those who are currently vaccinated and those

who will be vaccinated under employer policies, 89.4 percent as shown in Table IV.B.8.

Calculations of this nature, while not discussed in more detail in this analysis, are

contained fully in the spreadsheets supporting this analysis (OSHA, October 2021a).35

35OSHA notes that these estimates differ for employees covered by the Healthcare ETS. OSHA calculated
these estimates separately because, as stated above, OSHA is only taking costs for these employees in the
last four months of the assumed 6-month period while the ETS remains in effect. While OSHA does not
describe in detail how it derived estimates for employees covered by the Healthcare ETS in this analysis,
the derivation of those estimates run parallel to those described above. For more information, please see
the spreadsheets supporting this analysis. (OSHA, October 2021a).
Table IV.B.8. Summary of Employee Vaccination Status under the ETS
Percent of All Number of
Employee Vaccination Status under the ETS Covered Covered
Employees Employees
Total Vaccinated, including ETS 89.4% 75,262,549
Vaccinated in the baseline, pre-ETS 62.4% 52,510,781
Vaccinated under the ETS 27.0% 22,751,767
Vaccinated under the ETS, Employer Mandates 14.3% 12,050,322
Vaccinated under the ETS, Voluntary Employer Policies 12.7% 10,701,445

Total Unvaccinated who Test with ETS 7.5% 6,341,323

Employer-Mandates, Vaccine exempt employees who test 1.8% 1,526,453

Voluntary Policies, Vaccine exempt employees who test 2.1% 1,744,518
Voluntary Policies, Other vaccine-hesitant employees who test 3.6% 3,070,352
Religious/medical exempt who Return to Telework 1.1% 938,773
Other hesitant who Return to Telework 2.0% 1,652,240

TOTAL COVERED EMPLOYEES 100% 84,194,885

Source: OSHA analysis
From Table IV.B.8, OSHA estimates that approximately 75.3 million (89.4 percent) of

covered employees will be vaccinated when the ETS is in full effect, and that

approximately 8.9 million employees (10.6 percent, made up of approximately 6.3

million covered employees who will be tested for COVID under the ETS and

approximately 2.6 million employees who return to telework (see next paragraph)) will

remain unvaccinated. This final set of unvaccinated employees includes all employees

not vaccinated because of religious or medical accommodations or medical

contraindication, plus the portion of those who are vaccine-hesitant for any other reason,

who were not vaccinated because their employer has opted for a voluntary vaccination

policy.

From the above, OSHA estimates that about 5 percent of all covered employees

will seek and receive religious or medical accommodations or exemption for medical

contraindication. While the agency encourages employers to consider the most protective

accommodations such as telework, which would prevent the employee from being

exposed at work or from transmitting the virus at work, for cost analysis purposes the

agency assumes these workers will largely be tested in order for their employers to

comply with the ETS. Consistent with the overall average 22 percent of those who

returned to work after teleworking earlier in the pandemic (see teleworking discussion

above), OSHA assumes for this cost analysis that only 22 percent of workers needing a

reasonable accommodation will return to full time telework as a reasonable

accommodation. OSHA also assumes that the 78 percent remainder will follow the

testing/masking protocols in the ETS as a reasonable accommodation.

For hesitant employees who will not seek a religious or medical accommodation, and

who work in a firm with a testing option, the agency assumes as above that those who

were teleworking before (again on average 22 percent) will return to telework rather than

being tested.
c. Cost of Absenteeism to Employers.

Even mild cases of Covid-19 can be costly to employers as they can induce

productivity losses due to work absences, both among those infected and their close

contacts who may be subject to quarantine requirements. While many workers were able

to engage in telework in March-April 2020, several occupational groups deemed

essential, including childcare workers, personal care aids, healthcare support occupations,

and food processing workers, exhibited significantly higher rates of absenteeism during

that period, which the authors attributed to some workers contracting COVID-19

(Groenewold et al., July 10, 2020). Absenteeism can also affect the productivity of

workers who are present, similar to how turnover can impose costs on incumbent workers

(Kuhn and Yu, April 2021).

In aggregate, productivity losses from absences can be costly, as evidenced by the

economic losses from seasonal influenza. One estimate found that the United States loses

20.1 million days of economic productivity every year due to influenza, an ongoing loss

equivalent to 80,400 full-time worker-years (Putri et al., June 22, 2018). Another recent

study found that higher influenza vaccination rates result in both fewer deaths and

significantly reduced illness-related work absences (White, 2021).

OSHA recognizes that absenteeism has been a problem. However, as explained

in other sections of the preamble, the ETS vaccination and testing and face covering

requirements are necessary to reduce the spread of COVID-19 in the workplace, which

may in part reduce absenteeism. The ETS might in a limited sense also increase

absenteeism because the rule requires employers to temporarily remove from the

workplace any employee who receives a positive COVID-19 test or is diagnosed with

COVID-19 by a licensed healthcare provider. However, this provision will also help to

further reduce absenteeism because, when an infected employee is promptly removed

from the workplace, that can prevent one employee from infecting other employees in the
workplace and potentially causing an outbreak or a super-spreader event. Thus, OSHA

concludes that the ETS may, on net, help ameliorate absenteeism by reducing illnesses,

but in any event will not increase absenteeism (see OSHA, October 2021c).

d. The Effect of Employee Turnover.

One of the primary concerns among employers in imposing vaccination mandates

is loss of staff, with 60 percent of employers selecting it as a concern with regard to

mandating COVID-19 vaccination, according to one survey (Mishra and Hartstein,

August 23, 2021).36 To this end, employer vaccination mandates could lead to employee

turnover; employees could either leave on their own volition or employers who have

instituted strict vaccination policies may fire workers who are not vaccinated, or place

them on unpaid leave.

On the other hand, there is countervailing evidence to suggest that employers who

implement a vaccine mandate will be met with an influx of potential workers. Many

employees would prefer a mandate in place, and would be more likely to stay with, or

apply to, a firm that had a vaccine mandate in place. For example, although Inova health

system in Northern Virginia, lost 89 workers for noncompliance with the system’s

vaccination mandate, that loss amounted to less than 0.5 percent of its workforce,

(Portnoy, October 3, 2021), and, in any event, Inova’s CEO stated that the vaccine

mandate has helped with recruitment, and that its workers are concerned for their own

safety and want to know they are working with vaccinated colleagues. This same article

listed some other Virginia healthcare systems with higher rates of loss in connection with

vaccine mandates. Valley Health terminated 1 percent of its employees, while Luminis

Health had about 2 percent of its workers still unvaccinated at the time of its mandate

deadline. As another example, although United Airlines had 593 employees (out of the

This survey done in August, 2021, has 1,630 responses, reported by HR staff, attorneys, and executives.
36

Described as being “from a variety of industries,” 83 percent of respondents were from companies with
more than 100 employees.
company’s 67,000 U.S. employees) who had not complied with the company’s

vaccination mandate at the end of September (a number that dropped below 240

employees by October 1), the company reported it has received 20,000 applications for

2,000 flight attendant positions, a much higher ratio than before the pandemic (Chokshi

and Scheiber, October 2, 2021). In addition, one survey reports that among employee

resignations due to COVID-19 workplace policies, 42 percent reported lack of workplace

safety policies, 17 percent reported that existing workplace policies were not stringent

enough, and only 39 percent reported overly restrictive workplace policies, suggesting

that many employees will welcome vaccine mandates (ASU COVID-19 Diagnostic

Commons, October 6, 2021).37

While employee turnover is a natural part of business in any industry, higher

employee turnover rate than normal can have a direct impact on profit and revenue. The

normal range of employee turnover differs widely by industry, with an average turnover

rate of about 50 percent per year overall for the private sector. 38 For example, between

2016 and 2020, employee turnover ranged from 55 percent to 70 percent in the retail

industry and from 40 percent to 60 percent in the transportation industry (the industry

sectors with the highest employment).39

OSHA acknowledges that a vaccine mandate may result in increased employee

turnover, but one recent survey40 suggests it is very unlikely that this potential increase in

employee turnover will exceed the ranges that industries have experienced over time. The

survey, though limited because many respondents did not have mandates in place at that

37 This August 2021 global survey (all results presented here are for the US only) has 1,143 responses. It
covers 28 industries, including: Technology and Software, Business and Professional Services,
Manufacturing, Construction, and Healthcare. Ninety percent of respondents were from companies with
more than 100 employees.
38 BLS (March 11, 2021)

39 Id.
40Umland, October 13, 2021. This October 2021 survey has 1,059 total respondents, though only 365 have
implemented a vaccination mandate and answered this turnover question.
time, shows that there was no impact on turnover for 71 percent of those with mandates

in place. Only 25 percent saw a slight increase in turnover (1 percent to 5 percent above

normal) and only 4 percent saw a significant increase (more than 5 percent above

normal). As such, OSHA does not anticipate that the potentially increased employee

turnover attributable to vaccine mandates will be substantial enough to negate normal

profit and revenue.

To this end, an important factor to consider in examining turnover in connection

with vaccine mandates is the unquantified cost savings and other positive economic

impacts accruing to employers that institute vaccine mandates. These include reduced

absenteeism due to fewer COVID-19 illnesses and quarantines, as discussed above.

Other positive economic impacts of a vaccine mandate are increased retail trade from

customers that feel less at risk and better relations with suppliers and other business

partners. These all would contribute to improved business and increased profits.

The existence of these cost savings and other positive economic impacts accruing

to employers that comply with the ETS suggests that the actual net costs of the ETS could

be much lower than the costs reported in this section of the economic analysis. As

OSHA discusses above, OSHA has provided evidence to support its estimate that 25

percent of covered employers already voluntarily require that their employees be

vaccinated and a much larger percentage are considering a vaccine mandate. This

supports the conclusion that these businesses agree that doing so will ultimately save

costs.

In addition, under the ETS, employers may implement a policy that allows for

testing and face covering instead. Firms will have a tendency to self-select: if a large

proportion of its work force has indicated concern about a vaccine mandate, the firm is

more likely to choose the testing option to retain their workers. This is one factor that led

the agency to estimate that approximately 40 percent of employers will allow employees
to choose testing and face coverings in lieu of vaccination. To the extent employers are

concerned about employee testing costs, employers can generally absorb testing costs or

help employees reduce those costs through low-cost assistance such as employer

proctoring of tests (even though that is not required by this ETS). Departure of personnel

because of vaccine mandates is also likely to be less common when vaccine mandates are

more prevalent across employers in a region or industry. One survey reports that 65

percent of employers state that actions of other companies in their industry are very, or at

least moderately, important in deciding to mandate vaccination (Mishra and Hartstein,

August 23, 2021).

Mandatory vaccinations for COVID-19 are still relatively new because vaccines

only became available in quantities sufficient to support such mandates only about 6

months ago, and the FDA has only recently moved past emergency clearance to final

clearance. While there is not an abundance of evidence about whether employees have

actually left or joined an employer based on a vaccine mandate, particularly one with an

alternative allowing for testing in lieu of vaccination, OSHA has examined the best

available evidence it could locate in the timeline necessary to respond with urgency to the

grave danger addressed in this ETS. Based on that, OSHA is persuaded that the net effect

of the OSHA ETS on employee turnover will be relatively small, given the option for

employers to implement a testing and face covering policy and the countervailing forces

surrounding turnover that will limit those effects, as discussed above.

Finally, OSHA finds one line of evidence particularly persuasive because it

involves data instead of polls: while different surveys may suggest different levels of

worker intentions (joining or remaining with a safer employer versus leaving an employer

to avoid vaccination),41 the data suggests that the number of employees who actually

41 Two polls from June 2021, when the number of COVID-19 cases had dropped dramatically just before
the Delta Variant led to a surge in cases, indicated that 50% of unvaccinated employees surveyed said that
leave an employer is much lower than the number who claimed they might: 1% to 3% or

less actually leave, compared to the 48-50% who claimed they would.42 As discussed

earlier, this turnover number is well below the average turnover rate in most industries.

Thus, OSHA concludes that whether or not the ETS proves helpful to recruitment efforts

for some employers, it will not, on balance, add significant new costs to covered

employers or threaten the economic feasibility of any industry during a six month period.

OSHA seeks comments on these estimates and conclusions, as well as further data

that it could use to refine its estimates.

IV. Cost Analysis for COVID-19 Vaccination and Testing ETS, § 1910.501.

In this section, OSHA provides estimates of the per-entity and total costs for the

requirements of this ETS. Section 6(c)(3) of the OSH Act states that the Secretary will

publish a final standard “no later than six months after publication of the emergency

standard.” Costs are therefore estimated over a six-month time period. Note that the

estimates are presented in this section at the 3-digit NAICS level, but the analysis was

conducted at the 6-digit NAICS level and aggregated to the 3-digit level for presentation

purposes. The 6-digit NAICS level data is accessible in the supporting spreadsheet. It

should be noted that this analysis deals strictly with averages. For any given entity, actual

they would leave their job rather than accept a vaccination mandate from their employer. (KFF et al., June
30, 2021) (the same percentage also responded that “The number of cases is so low that there is no need for
more people to get the vaccine.”). A separate poll from the same time also stated that 48% of “vaccine
hesitant” employees claimed they would quit their jobs rather than be vaccinated. (Barry et al., September
24, 2021 – citing yet unpublished June 2021 poll). In a more recent poll, about 44% of workers said that
they would consider leaving their jobs if they were forced to get vaccinated, while around 38% of workers
would consider leaving their current employer if the organization did not enact a vaccine mandate. (Kelly
August 12, 2021). Interestingly, in that survey there was a direct correlation between the age of the worker
and the desire to have a vaccinated workplace: younger workers, usually the most mobile portion of the
workforce, had a much higher desire for a vaccinated workforce (50% of Generation Z employees, as
compared to 33% of Baby Boomers).
42An article titled “Unvaccinated Workers Say They’d Rather Quit Than Get a Shot, but Data Suggest
Otherwise” noted the 48%-50% threat to leave, but included hard data showing nothing close to those
levels actually occurred: Houston Methodist Hospital required its 25,000 workers (including its 3,580
unvaccinated employees) to get a vaccine by June 7, and only 153 resigned or were fired (4% of the 3,580
unvaccinated employees; 0.6% of the total number of employees); other examples of the numbers of
employees who left in response to their employers’ mandatory vaccine policy involved 5 out of 527 (0.9%),
2 out of 250 (0.8%), 6 out of 260 (3%), and 125 out of 35,800 (0.3%). (Barry et al., September 24, 2021).
costs may be higher or lower than the point estimate shown here, but using an average

allows OSHA to evaluate feasibility by industry as required by the OSH Act. In addition,

OSHA has limited data on many of the parameters needed in this analysis and has

estimated them based on the available data, estimates for similar requirements for other

OSHA standards, consultation with experts in other government agencies, and internal

agency judgment where necessary. OSHA’s estimates are therefore based on the best

evidence available to the agency at the time this analysis of costs and feasibility was

performed.

As mentioned above, OSHA estimates that approximately 264,000 entities have

employees who will be subject to the requirements of the ETS, including approximately

84.2 million employees. Many ETS requirements result in labor burdens that are

monetized using the labor rates described next.

a. Wage Rates.

OSHA used occupation-specific wage rates from BLS 2020 OEWS data (BLS,

2021a). Within each affected 6-digit NAICS industry, OSHA calculated the employee-

weighted average wage to be used in the analysis. OSHA estimated loaded wages using

the BLS’ Employer Cost for Employee Compensation data (BLS, 2021b), as well as

OSHA’s standard estimate for overhead of 17 percent times the base wage.

Costs are estimated using three labor rates for each NAICS industry: the average

labor rate for all employees, the labor rate for General and Operations Managers (SOC

code 11-1021), and the labor rate for Office Clerks, General (SOC 43-9060). Industry-

specific wage rates are presented in Appendix C in the accompanying document in the

docket, “Vaccination and Testing ETS: Economic Profile and Cost Chapter Appendices

(OSHA, October, 2021b).”

b. Rule Familiarization, Employer Policy on Vaccination, and Information Provided to

Employees.
ETS Requirements

Section 1910.501(d)(1) of the ETS specifies that the employer must establish and

implement a written mandatory vaccination policy. The employer is exempted from the

requirement in paragraph (d)(1) only if the employer establishes and implements a

written policy allowing any employee not subject to a mandatory vaccination policy to

either choose to be fully vaccinated against COVID-19 or to provide proof of regular

testing for COVID-19 in accordance with paragraph (g) of the ETS and to wear a face

covering in accordance with paragraph (i) of the ETS.43

In addition, under § 1910.501(j), information provided to employees, the ETS

requires the employer to inform each employee, in a language and at a literacy level the

employee understand about: 1) the requirements of the ETS as well as any employer

policies and procedures established to implement the ETS; 2) COVID-19 vaccine

efficacy, safety, and the benefits of being vaccinated; 3) the requirements of 29 CFR

1904.35(b)(1)(iv) and Section 11(c) of the OSH Act; and 4) the prohibitions of 18 U.S.C.

1001 and Section 17(g) of the OSH Act.

As stated, the ETS face covering requirements are contained in paragraph (i) of

the ETS. Under that paragraph, the employer, with certain exceptions specified in the

ETS, must ensure that each employee who is not fully vaccinated wears a face covering

when indoors and when occupying a vehicle with another person for work purposes. The

ETS does not require, nor does it prohibit, the employer to pay for any costs associated

43Note to paragraph (d): Under federal law, including the Americans with Disabilities Act (ADA) and
Title VII of the Civil Rights Act of 1964, some workers may be entitled to a reasonable accommodation
from their employer, absent undue hardship. If the worker requesting a reasonable accommodation cannot
be vaccinated against COVID-19 and/or wear a face covering because of a disability, as defined by the
ADA, or if the vaccination, testing, and/or wearing a face covering conflicts with the worker’s sincerely
held religious belief, practice or observance, the worker may be entitled to a reasonable accommodation.
For more information about evaluating requests for these types of reasonable accommodations for disability
or sincerely held religious belief, employers should consult the Equal Employment Opportunity
Commission’s regulations, guidance, and technical assistance including at:
https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-
eeo-laws.
with face coverings (although employer payment for face coverings may be required by

other laws, regulations, or collective bargaining agreements or other collectively

negotiated agreements). However, the employer must permit the employee to wear a

respirator instead of a face covering whether required or not. In addition, the employer

may provide respirators or face coverings to the employee, even if not required. In such

circumstances, where the employer provides respirators, the employer must also comply

with § 1910.504, Mini respiratory protection program.

OSHA estimates no costs associated with an employee voluntarily bringing in

their own respirator to use instead of a face covering other than those costs that OSHA is

estimating below in connection with 29 CFR 1910.501(j), information provided to

employees. That section provides, again, that the employer must inform each employee,

in a language and at a literacy level the employee understands about the requirements of

the ETS as well as any employer policies and procedures established to implement the

ETS. One policy the employer would need to establish to implement the ETS is a policy

to comply with the requirements of 29 CFR 1910.504 when an employee voluntarily

brings in their own respirator. Those requirements require only that the employer provide

certain information to the employee (see 29 CFR 1910.504(c)).

OSHA is also estimating no costs in connection with the employer providing

respirators to the employee. The ETS does not require the employer to provide

respirators to employees. Therefore, any such provision is voluntary and not relevant to

economic feasibility of this rule.

The face covering provisions in paragraph (i) contain several other requirements,

none of which have costs associated with them.

Cost Analysis Assumptions

In this section, OSHA estimates the cost for establishing the employer policy on

vaccination, providing required information to employees, and rule familiarization.

OSHA assumes each entity will require an average one-time labor burden of 1 hour of

management labor for rule familiarization. OSHA based this unit cost on that taken for

rule familiarization in the Healthcare ETS (86 FR at 32496), but adjusted the time

downward by a half-hour because this ETS is a simpler standard than the Healthcare

ETS.

To establish a written policy in accordance with paragraph (d) of the ETS, OSHA

assumes a one-time average labor burden of 5 hours of manager time per firm. OSHA

bases this estimate on its cost estimates in the Healthcare ETS, where OSHA estimated

that development of the COVID-19 Plan required by that standard would take between 5

and 40 hours (see 86 FR at 32496-32497). OSHA concludes that 5 hours is a reasonable

estimate because the development of a written policy on vaccination will be much

simpler than the development of the written COVID-19 Plan required by the Healthcare

ETS (see 29 CFR 1910.502(c)).44 OSHA notes, that like the Healthcare ETS (id.), the

cost of implementing the plan for this ETS are included in the costs of implementing the

corresponding requirements in the ETS, which are discussed below.

To provide information to employees in accordance with paragraph (j) of the

ETS, OSHA assumes a one-time average labor burden per firm of 10 minutes of manager

time. The agency expects activities like posting the information on a community board,

mass emailing, etc., will satisfy this requirement.

The total cost for rule familiarization, establishing an employer policy on

vaccination and providing required information to employees is calculated as the product

of:

44 The estimates for the time to create the written vaccine policy plan under this ETS may differ from the
time to create the various processes under the CMS rule published elsewhere in this issue of the Federal
Register since the requirements of what is needed to be included in the plans differ. For example, the CMS
plan requires a process for ensuring the implementation of additional precautions to mitigate the
transmission and spread of COVID – 19 while OSHA’s vaccination policy requirements do not include this
requirement.
  One-time labor burden for rule familiarization and establishing a policy (a total of

6 hours of manager time per entity) plus a one-time labor burden for providing

information to employees (10 minutes of manager time per entity);

 The labor rate for General and Operations Managers (SOC code 11-1021,

NAICS-specific wages); and,

 The total number of covered entities.

Cost for Employer Policy on Vaccination and Information Provided to Employees

Costs per entity and total costs for employer policy on vaccination and

information provided to employees are shown below in Table IV.B.9.

Table IV.B.9. Employer Policy on Vaccination, Information Provided to Employees, and Rule
Familiarization

NAICS 3 NAICS Description Cost per Entity Total Cost

All Industry $566 $149,369,213
111 Crop Production $488 $11,567,901
112 Animal Production and Aquaculture $488 $12,860,228
113 Forestry and Logging $488 $25,852
114 Fishing, Hunting and Trapping $488 $3,902
115 Support Activities for Agriculture and Forestry $502 $128,465
211 Oil and Gas Extraction $743 $192,411
213 Support Activities for Mining $638 $349,364
221 Utilities $640 $539,163
236 Construction of Buildings $608 $950,407
237 Heavy and Civil Engineering Construction $629 $1,065,167
238 Specialty Trade Contractors $547 $2,988,530
311 Food Manufacturing $584 $1,548,282
312 Beverage and Tobacco Product Manufacturing $509 $172,512
313 Textile Mills $610 $177,558
314 Textile Product Mills $492 $119,184
315 Apparel Manufacturing $483 $104,247
316 Leather and Allied Product Manufacturing $568 $34,070
321 Wood Product Manufacturing $527 $546,550
322 Paper Manufacturing $653 $464,645
323 Printing and Related Support Activities $547 $468,814
324 Petroleum and Coal Products Manufacturing $709 $209,068
325 Chemical Manufacturing $763 $1,686,303
326 Plastics and Rubber Products Manufacturing $645 $1,324,528
327 Nonmetallic Mineral Product Manufacturing $669 $699,290
331 Primary Metal Manufacturing $667 $610,824
332 Fabricated Metal Product Manufacturing $601 $2,314,763
333 Machinery Manufacturing $701 $1,912,094
334 Computer and Electronic Product Manufacturing $805 $1,372,646
335 Electrical Equipment, Appliance, and Component Manufacturing $727 $583,727
336 Transportation Equipment Manufacturing $679 $1,325,802
337 Furniture and Related Product Manufacturing $651 $467,981
339 Miscellaneous Manufacturing $631 $677,615
423 Merchant Wholesalers, Durable Goods $591 $5,315,935
424 Merchant Wholesalers, Nondurable Goods $596 $3,379,532
425 Wholesale Electronic Markets and Agents and Brokers $642 $219,545
441 Motor Vehicle and Parts Dealers $609 $2,329,166
442 Furniture and Home Furnishings Stores $421 $174,541
443 Electronics and Appliance Stores $363 $86,649
444 Building Material and Garden Equipment and Supplies Dealers $401 $477,583
445 Food and Beverage Stores $346 $667,288
446 Health and Personal Care Stores $396 $262,639
447 Gasoline Stations $302 $402,522
448 Clothing and Clothing Accessories Stores $403 $372,696
451 Sporting Goods, Hobby, Musical Instrument, and Book Stores $372 $104,434
452 General Merchandise Stores $443 $62,519
453 Miscellaneous Store Retailers $439 $443,175
454 Nonstore Retailers $596 $862,946
481 Air Transportation $638 $181,108
482 Rail Transportation $619 $4,949
483 Water Transportation $634 $100,204
 NAICS 3 NAICS Description Cost per Entity Total Cost
484 Truck Transportation $543 $1,409,505
485 Transit and Ground Passenger Transportation $482 $446,817
486 Pipeline Transportation $524 $69,691
487 Scenic and Sightseeing Transportation $444 $35,984
488 Support Activities for Transportation $552 $787,947
491 Postal Service $532 $11,952
492 Couriers and Messengers $404 $78,847
493 Warehousing and Storage $543 $1,404,418
511 Publishing Industries (except Internet) $697 $1,028,823
512 Motion Picture and Sound Recording Industries $621 $252,163
515 Broadcasting (except Internet) $637 $214,198
517 Telecommunications $697 $443,865
518 Data Processing, Hosting, and Related Services $738 $888,047
519 Other Information Services $763 $328,677
521 Monetary Authorities-Central Bank $803 $9,637
522 Credit Intermediation and Related Activities $662 $2,613,092
Securities, Commodity Contracts, and Other Financial Investments $783 $1,378,210
523
and Related Activities
524 Insurance Carriers and Related Activities $732 $1,706,718
525 Funds, Trusts, and Other Financial Vehicles $804 $25,740
531 Real Estate $584 $2,113,926
532 Rental and Leasing Services $563 $551,823
533 Lessors of Nonfinancial Intangible Assets (except Copyrighted Works) $673 $161,605
541 Professional, Scientific, and Technical Services $749 $10,849,802
551 Management of Companies and Enterprises $750 $13,119,146
561 Administrative and Support Services $549 $7,212,244
562 Waste Management and Remediation Services $514 $421,606
611 Educational Services $603 $9,181,242
624 Social Assistance $552 $6,952,935
711 Performing Arts, Spectator Sports, and Related Industries $669 $3,103,079
712 Museums, Historical Sites, and Similar Institutions $483 $4,805,434
713 Amusement, Gambling, and Recreation Industries $426 $4,419,467
721 Accommodation $516 $445,735
722 Food Services and Drinking Places $484 $188,137
811 Repair and Maintenance $420 $1,153,298
812 Personal and Laundry Services $452 $1,045,225
Religious, Grantmaking, Civic, Professional, and Similar $379 $4,393,360
813
Organizations
Sources: OSHA analysis, BLS 2020 OEWS data (BLS, 2021a), BLS Employer Cost of Compensation (BLS, 2021b)
c. Determining Employee Vaccination Status.

ETS Requirements

Under § 1910.501(e):

Paragraph (e)(1). The employer must determine the vaccination status of each

employee. This determination must include whether the employee is fully vaccinated,

which is 2 weeks after the full required vaccine course is completed.

Paragraph (e)(2). The employer must require each vaccinated employee to

provide acceptable proof of vaccination status, including whether they are fully or

partially vaccinated. Acceptable proof of vaccination status is:

 The record of immunization from a health care provider or pharmacy;

 A copy of the COVID-19 Vaccination Record Card

 A copy of medical records documenting the vaccination;

 A copy of immunization records from a public health, state, or tribal

immunization information system; or

 A copy of any other official documentation that contains the type of vaccine

administered, date(s) of administration, and the name of the health care

professional(s) or clinic site(s) administering the vaccine(s).

In instances where an employee is unable to produce acceptable proof of

vaccination, per above, a signed and dated statement by the employee, subject to criminal

penalties for knowingly providing false information:

 Attesting to their vaccination status (fully vaccinated or partially vaccinated); and

 Attesting that they have lost and are otherwise unable to produce proof required

by the ETS.

Paragraph (e)(3). Any employee who does not provide one of the acceptable

forms of proof of vaccination status in paragraph (e)(2) of the ETS to the employer must

be treated as not fully vaccinated for the purpose of the ETS.

 Paragraph (e)(4). The employer must maintain a record of each employee’s

vaccination status and must preserve acceptable proof of vaccination for each employee

who is fully or partially vaccinated. The employer must maintain a roster of each

employee’s vaccination status. These records and roster are considered to be employee

medical records and must be maintained as such records in accordance with 29 CFR

1910.1020 and must not be disclosed except as required or authorized by the ETS or

other federal law. These records and roster are not subject to the retention requirements

of 29 CFR 1910.1020(d)(1)(i) but must be maintained and preserved while the ETS

remains in effect.

Paragraph (e)(5). Finally, when an employer has ascertained employee

vaccination status prior to the effective date of this section through another form of

attestation or proof, and retained records of that ascertainment, the employer is exempt

from the requirements in paragraphs (e)(1) - (e)(3) only for each employee whose fully

vaccinated status has been documented prior to the effective date of this section. For

purposes of paragraph (e)(4), the employer’s records of ascertainment of vaccination

status for each such person constitute acceptable proof of vaccination.

The full costs for these provisions are taken under the costs for recordkeeping,

discussed below, because determining vaccination status, providing acceptable proof of

vaccination status, and creating and maintaining a roster of each employee’s vaccination

status will be part and parcel of the recordkeeping process.

d. Employer Support for Employee Vaccination.

ETS Requirements

Under 29 CFR 1910.501(f):

The employer must support COVID-19 vaccination by providing:

 Time for vaccination. The employer must: (i) provide a reasonable amount of

time to each employee for each of their primary vaccination series dose(s); and
 (ii) provide up to 4 hours paid time, including travel time, at the employee’s

regular rate of pay for this purpose.

 Time for recovery. The employer must provide reasonable time and paid sick

leave to recover from side effects experienced following any primary vaccination

series dose to each employee for each dose.

Under the ETS, fully vaccinated means (i) a person’s status 2 weeks after

completing primary vaccination with a COVID-19 vaccine with, if applicable, at least the

minimum recommended interval between doses in accordance with the approval,

authorization, or listing that is: (A) approved or authorized for emergency use by the

FDA; (B) listed for emergency use by the World Health Organization (WHO); or (C)

administered as part of a clinical trial at a U.S. site, if the recipient is documented to have

primary vaccination with the “active” (not placebo) COVID-19 vaccine candidate, for

which vaccine efficacy has been independently confirmed (e.g., by a data and safety

monitoring board), or if the clinical trial participant from the U.S. site had received a

COVID-19 vaccine that is neither approved nor authorized for use by FDA but is listed

for emergency use by WHO; or (ii) a person’s status 2 weeks after receiving the second

dose of any combination of two doses of a COVID-19 vaccine that is approved or

authorized by the FDA, or listed as a two-dose series by the WHO (i.e., heterologous

primary series of such vaccines, receiving doses of different COVID-19 vaccines as part

of one primary series). The second dose of the series must not be received earlier than 17

days (21 days with a 4-day grace period) after the first dose.

Cost Analysis Assumptions

OSHA assumes there will be no costs to employers or employees associated with

the vaccine itself.45 However, to provide support for vaccination of employees, OSHA

45While there may be some administrative costs borne by the government, such costs are not germane to
this analysis of whether the ETS is economically feasible for covered employers.
estimates that it will take an average of 15 minutes of travel time, each way, per

employee to travel to a vaccination site (for a total of 30 minutes). OSHA then estimates

5 minutes to wait, fill out any necessary paperwork, and receive the shot, and a post-shot

wait time of 20 minutes, per employee. Some firms, particularly larger ones, will find it

cheaper to have vaccines administered on site. They may have an on-site health clinic or

may hire a 3rd party purveyor to come to the facility.46 This will minimize travel and also

allow the companies to mitigate some of the logistical issues that may be preventing

employees from receiving a vaccine (finding a convenient appointment time, etc.).

OSHA estimates that 10 percent of firms with employees between 100 to 500 employees

will select this option, while, given decreased average costs associated with economies of

scale, 25 percent of firms with over 500 employees will select this option. OSHA was

unable to obtain an estimate of the cost savings associated with on-site vaccination in the

time allotted to issue this emergency standard, so it is assuming that the costs for off-site

vaccination are the same as the costs for on-site vaccination. This results in a likely over-

estimate of costs given that the entities that choose the on-site option will do so as a cost-

saving measure.

In OSHA’s cost analysis, OSHA assumes that all employees will be vaccinated

during working hours and employers would adjust the employee work schedule to ensure

that the employee would not become eligible for overtime pay as a result of the

vaccination time. However, it should be noted that, if an employee chooses to receive the

vaccine outside of work hours, OSHA does not require employers to grant paid time to

the employee for the time spent receiving the vaccine during non-work hours (although

other laws may include additional requirements for employers, such as those addressing

46Prior to the effective date of this rule, some companies offered on-site vaccination according to a limited
survey. (Willis Towers Watson, June 23, 2021). See also CDC on creating an on-site program (CDC,
March 25, 2021; CDC, October 4, 2021b).
reasonable accommodations or exemptions). OSHA’s analysis may be an overestimate

as it reflects an assumption that all vaccinations are received during work hours.

CDC data indicated that 5 percent of employees vaccinated have received the

Johnson & Johnson vaccine, and 95 percent have received either Pfizer or Moderna

(CDC, October 2021b). OSHA applies the same allocation to employees being

vaccinated under the ETS. For those receiving Pfizer or Moderna, the labor burden

outlined above occurs twice, since vaccination requires two shots.

The employer must provide reasonable time and paid sick leave to recover from

side effects experienced following any vaccination dose to each employee for each

vaccination dose. Employers may require employees to use paid sick leave benefits

otherwise provided by the employer to offset these costs, if available. The average

amount of time off an employee may need for side effects while receiving the vaccine

doses necessary to achieve full vaccination (one or two doses, depending on the vaccine)

depends on several factors. First, the percentage of people who will have side effects that

are severe enough to require time. Second, the average time duration for those who have

such a severe reaction. For estimates of these parameters OSHA is using a recent study

(Levi et al., September 29, 2021) which surveyed workers at a state-wide health care

system who had been vaccinated. The study found that, for the first dose, 4.9% needed

administrative leave, with an average length of absence of 1.66 days. For the second

dose, 19.79% needed leave and their average length of absence was 1.39 days. Together,

the average time on leave is .36 days (.049 * 1.66 + .1979 * 1.39) for a person receiving

two doses, which reflects the fact that many people who receive the vaccine do not have

any side effects for either dose while others have more severe side effects.

In order to determine the amount of paid sick leave that would be available to

employees, OSHA relied on data from BLS (BLS, 2021e). BLS estimates that for civilian

workers in establishments with 100+ employees, 88% have access to paid sick leave
(Table 33). BLS states that the average number of paid sick leave available is 9 days

(Table 36). Because there is the same number of days across all levels of employee tenure

(1 year, 5 years, 10 years, and 20 years), OSHA used 9 days for all covered employees.

The agency assumes that 75% of the available paid sick leave has been used by the

current 4th quarter of the calendar year. So the average number of days available is 1.98

days: 9 (days) * 88% (employees with available paid sick leave) * 25% (amount of leave

remaining in the year) = 1.98 days available. Given that the average overall time out due

to side effects is 0.36 days (see above), OSHA concludes that, on average, employees

should have sufficient existing paid sick leave available to cover the time needed as a

result of vaccine-related side effects. As a result, OSHA is taking no costs to employers

in connection with the ETS’s requirement to provide time for recovery from vaccination

(except as provided below), as these costs will have been incurred by the employer

independent of the ETS.

While this analysis is entirely consistent with OSHA’s standard procedure of

strictly using averages in cost analysis, it nonetheless masks some significant effects

resulting from the time for recovery requirements. From the BLS data, OSHA knows

there are 12% of establishments that have 100+ employees and do not provide paid sick

leave. Correspondingly, there is a group of entities with no paid sick leave that will

obviously incur costs that result directly from these requirements. In addition, some

employees may not have, or some other entities may not offer, sufficient paid sick leave

to cover these costs.

To account for the 12 percent of firms that do not offer paid sick leave, the agency

uses the above estimate of average days for two doses, 0.36 days, and multiplies the

average employee wage by NAICS to calculate the cost per employee. Since OSHA does

not know which firms make up the 12 percent, the agency spreads this total cost across
all firms by employee. Since firms without any sick leave are likely to be lower-wage

firms, this will likely lead to a cost overestimate.

Therefore, the total cost for paid time off for vaccination is based on the costs for

providing paid sick leave for the 12 percent of firms that do not offer paid sick leave and:

 Travel time per employee of covered firms of 15 minutes each way per

vaccination dose (total of 30 minutes).

 Pre-shot wait time per employee of covered firms of 5 minutes per vaccination

dose.

 Post-shot wait time per employee of covered firms of 20 minutes per vaccination

dose.47

 The average labor rate for employees (NAICS-specific wages).

 Total number of employees at covered firms getting vaccinated due to the ETS

with the Johnson & Johnson vaccine.

 Total number of employees at covered firms getting vaccinated due to the ETS

with the Pfizer and Moderna vaccines, multiplied by two to account for two shots.

Cost for Support for Employee Vaccination

Costs per firm and total costs for vaccination are shown below in Table IV.B.10.

47According to the CDC, people with allergies require a wait time of 30 minutes, but they are a small
group, and, in any event, the CDC recommends that routine wait time is 15 minutes, so the agency
considers that its average of 20 minutes is probably an overestimate. (See CDC, October 4, 2021a; CDC,
March 3,2021)
Table IV.B.10. Support for Employee Vaccination
Vaccine Administration Cost Paid-Time-Off for Vaccine Side- Total Vaccine Cost
NAICS Effects
NAICS Description
3 Cost per Firm Total Cost Cost per Firm Total Cost Cost per Firm Total Cost

All Industry $5,986 $1,579,580,408 $1,256 $331,315,843 $7,242 $1,910,896,252

111 Crop Production $2,833 $67,181,467 $575 $13,625,126 $3,407 $80,806,593
112 Animal Production and Aquaculture $2,833 $74,686,751 $575 $15,147,279 $3,407 $89,834,030
113 Forestry and Logging $1,693 $89,726 $363 $19,244 $2,056 $108,970
114 Fishing, Hunting and Trapping $1,956 $15,651 $397 $3,174 $2,353 $18,825
115 Support Activities for Agriculture and Forestry $2,077 $531,738 $433 $110,873 $2,510 $642,611
211 Oil and Gas Extraction $7,219 $1,869,832 $1,535 $397,458 $8,754 $2,267,290
213 Support Activities for Mining $6,971 $3,820,273 $1,460 $800,110 $8,431 $4,620,383
221 Utilities $16,379 $13,788,406 $3,469 $2,920,645 $19,849 $16,709,050
236 Construction of Buildings $4,536 $7,084,919 $942 $1,470,980 $5,478 $8,555,899
237 Heavy and Civil Engineering Construction $6,678 $11,305,838 $1,386 $2,346,673 $8,064 $13,652,511
238 Specialty Trade Contractors $4,219 $23,055,535 $867 $4,739,252 $5,086 $27,794,787
311 Food Manufacturing $6,615 $17,523,367 $1,398 $3,704,410 $8,014 $21,227,778
312 Beverage and Tobacco Product Manufacturing $6,108 $2,070,576 $1,282 $434,571 $7,390 $2,505,147
313 Textile Mills $3,403 $990,312 $719 $209,158 $4,122 $1,199,470
314 Textile Product Mills $3,281 $793,931 $688 $166,438 $3,968 $960,370
315 Apparel Manufacturing $2,601 $561,851 $537 $115,986 $3,138 $677,836
316 Leather and Allied Product Manufacturing $3,296 $197,785 $693 $41,604 $3,990 $239,389
321 Wood Product Manufacturing $3,348 $3,471,552 $700 $725,624 $4,047 $4,197,175
322 Paper Manufacturing $7,104 $5,057,703 $1,503 $1,070,265 $8,607 $6,127,969
323 Printing and Related Support Activities $3,552 $3,043,852 $738 $632,498 $4,290 $3,676,349
324 Petroleum and Coal Products Manufacturing $7,752 $2,286,758 $1,664 $490,914 $9,416 $2,777,673
325 Chemical Manufacturing $6,503 $14,377,919 $1,382 $3,055,175 $7,885 $17,433,095
326 Plastics and Rubber Products Manufacturing $4,617 $9,483,784 $972 $1,995,996 $5,589 $11,479,780
327 Nonmetallic Mineral Product Manufacturing $4,919 $5,140,695 $1,038 $1,084,668 $5,957 $6,225,363
331 Primary Metal Manufacturing $5,949 $5,449,397 $1,263 $1,156,901 $7,212 $6,606,298
332 Fabricated Metal Product Manufacturing $3,087 $11,890,030 $647 $2,493,922 $3,734 $14,383,952
333 Machinery Manufacturing $5,082 $13,858,181 $1,074 $2,929,438 $6,156 $16,787,619
Computer and Electronic Product $8,278 $14,122,918 $1,761 $3,004,199 $10,039 $17,127,117
334
Manufacturing
Electrical Equipment, Appliance, and $5,709 $4,584,456 $1,216 $976,533 $6,925 $5,560,988
335
Component Manufacturing
336 Transportation Equipment Manufacturing $13,591 $26,542,815 $2,891 $5,645,305 $16,481 $32,188,120
337 Furniture and Related Product Manufacturing $4,323 $3,108,499 $901 $647,680 $5,224 $3,756,179
 Vaccine Administration Cost Paid-Time-Off for Vaccine Side- Total Vaccine Cost
NAICS Effects
NAICS Description
3 Cost per Firm Total Cost Cost per Firm Total Cost Cost per Firm Total Cost

339 Miscellaneous Manufacturing $5,005 $5,375,711 $1,053 $1,131,336 $6,059 $6,507,047

423 Merchant Wholesalers, Durable Goods $3,488 $31,354,015 $731 $6,568,296 $4,219 $37,922,312
424 Merchant Wholesalers, Nondurable Goods $3,566 $20,216,604 $746 $4,229,315 $4,312 $24,445,919
Wholesale Electronic Markets and Agents and $5,834 $1,995,111 $1,218 $416,506 $7,052 $2,411,617
425
Brokers
441 Motor Vehicle and Parts Dealers $4,271 $16,339,598 $876 $3,350,461 $5,146 $19,690,058
442 Furniture and Home Furnishings Stores $7,654 $3,176,394 $1,606 $666,527 $9,260 $3,842,920
443 Electronics and Appliance Stores $11,543 $2,758,856 $2,401 $573,783 $13,944 $3,332,639
Building Material and Garden Equipment and $8,714 $10,386,964 $1,805 $2,151,828 $10,519 $12,538,791
444
Supplies Dealers
445 Food and Beverage Stores $13,183 $25,404,044 $2,729 $5,258,225 $15,912 $30,662,269
446 Health and Personal Care Stores $14,675 $9,729,400 $3,127 $2,073,398 $17,802 $11,802,798
447 Gasoline Stations $3,755 $5,001,552 $780 $1,038,480 $4,535 $6,040,032
448 Clothing and Clothing Accessories Stores $17,590 $16,253,205 $3,721 $3,438,495 $21,311 $19,691,700
Sporting Goods, Hobby, Musical Instrument, $12,509 $3,515,167 $2,616 $735,212 $15,126 $4,250,379
451
and Book Stores
452 General Merchandise Stores $194,153 $27,375,523 $42,792 $6,033,656 $236,945 $33,409,178
453 Miscellaneous Store Retailers $3,878 $3,912,708 $809 $816,488 $4,687 $4,729,196
454 Nonstore Retailers $4,046 $5,854,060 $853 $1,233,752 $4,898 $7,087,812
481 Air Transportation $42,231 $11,993,626 $8,996 $2,554,740 $51,227 $14,548,366
482 Rail Transportation $513,849 $4,110,795 $104,214 $833,714 $618,064 $4,944,509
483 Water Transportation $6,161 $973,423 $1,310 $207,014 $7,471 $1,180,437
484 Truck Transportation $5,777 $15,002,604 $1,211 $3,143,797 $6,987 $18,146,401
485 Transit and Ground Passenger Transportation $5,172 $4,794,222 $1,073 $994,672 $6,245 $5,788,894
486 Pipeline Transportation $8,133 $1,081,664 $1,790 $238,023 $9,922 $1,319,688
487 Scenic and Sightseeing Transportation $2,202 $178,339 $461 $37,356 $2,663 $215,695
488 Support Activities for Transportation $4,650 $6,640,538 $986 $1,407,853 $5,636 $8,048,391
491 Postal Service $4,781 $107,477 $970 $21,798 $5,750 $129,275
492 Couriers and Messengers $46,588 $9,084,734 $9,694 $1,890,395 $56,283 $10,975,129
493 Warehousing and Storage $4,374 $11,305,759 $932 $2,410,060 $5,306 $13,715,818
511 Publishing Industries (except Internet) $13,446 $19,859,819 $2,820 $4,164,965 $16,266 $24,024,785
Motion Picture and Sound Recording $10,509 $4,266,791 $2,189 $888,750 $12,698 $5,155,540
512
Industries
515 Broadcasting (except Internet) $11,872 $3,988,882 $2,499 $839,502 $14,370 $4,828,384
517 Telecommunications $31,402 $20,002,816 $6,561 $4,179,313 $37,963 $24,182,129
Data Processing, Hosting, and Related $8,353 $10,049,205 $1,765 $2,123,795 $10,119 $12,173,000
518
Services
519 Other Information Services $13,191 $5,685,115 $2,780 $1,198,340 $15,971 $6,883,455
 Vaccine Administration Cost Paid-Time-Off for Vaccine Side- Total Vaccine Cost
NAICS Effects
NAICS Description
3 Cost per Firm Total Cost Cost per Firm Total Cost Cost per Firm Total Cost

521 Monetary Authorities-Central Bank $42,411 $508,934 $9,416 $112,996 $51,828 $621,930
522 Credit Intermediation and Related Activities $10,473 $41,368,383 $2,179 $8,605,082 $12,652 $49,973,465
Securities, Commodity Contracts, and Other $6,315 $11,120,669 $1,343 $2,365,688 $7,658 $13,486,357
523
Financial Investments and Related Activities
524 Insurance Carriers and Related Activities $11,366 $26,517,791 $2,425 $5,657,214 $13,791 $32,175,005
525 Funds, Trusts, and Other Financial Vehicles $654 $20,930 $139 $4,460 $793 $25,390
531 Real Estate $2,973 $10,759,172 $619 $2,240,979 $3,592 $13,000,151
532 Rental and Leasing Services $5,175 $5,071,063 $1,089 $1,067,380 $6,264 $6,138,444
Lessors of Nonfinancial Intangible Assets $1,568 $376,385 $337 $80,792 $1,905 $457,177
533
(except Copyrighted Works)
Professional, Scientific, and Technical $6,842 $99,074,392 $1,436 $20,787,377 $8,278 $119,861,769
541
Services
551 Management of Companies and Enterprises $3,260 $57,025,453 $690 $12,072,397 $3,950 $69,097,850
561 Administrative and Support Services $8,646 $113,587,118 $1,814 $23,826,990 $10,459 $137,414,108
562 Waste Management and Remediation Services $4,972 $4,078,939 $1,043 $855,705 $6,015 $4,934,643
611 Educational Services $11,094 $168,935,399 $2,352 $35,821,592 $13,447 $204,756,991
624 Social Assistance $5,236 $65,919,369 $1,098 $13,828,307 $6,334 $79,747,676
Performing Arts, Spectator Sports, and Related $31,037 $143,960,902 $6,613 $30,675,269 $37,651 $174,636,171
711
Industries
Museums, Historical Sites, and Similar $3,516 $34,997,577 $728 $7,245,346 $4,244 $42,242,923
712
Institutions
Amusement, Gambling, and Recreation $2,019 $20,939,355 $418 $4,337,995 $2,437 $25,277,350
713
Industries
721 Accommodation $5,076 $4,380,579 $1,061 $916,022 $6,137 $5,296,601
722 Food Services and Drinking Places $3,006 $1,169,323 $619 $240,663 $3,625 $1,409,986
811 Repair and Maintenance $4,237 $11,622,911 $881 $2,415,571 $5,118 $14,038,483
812 Personal and Laundry Services $6,482 $14,985,584 $1,356 $3,135,374 $7,838 $18,120,958
Religious, Grantmaking, Civic, Professional, $5,028 $58,254,035 $1,039 $12,043,048 $6,067 $70,297,082
813
and Similar Organizations
Sources: OSHA analysis, BLS 2020 OEWS data (BLS, 2021a), BLS Employer Cost of Compensation (BLS, 2021b), BLS sick leave data (BLS, 2021e), CDC COVID Data
Tracker (CDC, October 4, 2021a), Levi et al. (September 29, 2021)
e. COVID-19 Testing for Employees who are Not Fully Vaccinated.

ETS Requirements

Section 1910.501(g)(1) of the ETS requires the employer to ensure that each

employee who is not fully vaccinated do the following:

An employee who reports at least once every 7 days to a workplace where other

individuals, such as coworkers or customers, are present:

 Must be tested for COVID-19 at least once every 7 days; and

 Must provide documentation of the most recent COVID-19 test result to the

employer no later than the 7th day following the date on which the employee last

provided a test result.

An employee who does not report during a period of 7 or more days to a

workplace where other individuals, such as coworkers or customers, are present (e.g.,

teleworking for two weeks prior to reporting to a workplace with others):

 Must be tested for COVID-19 within 7 days prior to returning to the workplace;

and

 Must provide documentation of that test result to the employer upon return to the

workplace.

Furthermore, if an employee does not provide documentation of a COVID-19 test

result as required by paragraph (g)(1) of the ETS, the employer must keep that employee

removed from the workplace until they provide a test result. In addition, when an

employee has received a positive COVID-19 test, or has been diagnosed with COVID-19

by a licensed healthcare provider, the employer must not require that employee to

undergo COVID-19 testing as required under paragraph (g) of this section for 90 days

following the date of their positive test or diagnosis. Finally, the employer must maintain

a record of each test result provided by each employee under paragraph (g)(1) of this

section or obtained during tests conducted by the employer. These records are considered
to be employee medical records and must be maintained as such records in accordance

with 29 CFR 1910.1020 and must not be disclosed except as required or authorized by

this section or other federal law. These records are not subject to the retention

requirements of 29 CFR 1910.1020(d)(1)(i) but must be maintained and preserved while

this section remains in effect.

OSHA addresses the costs associated with testing in the next section. The

remaining costs required by paragraph (g) are taken under the costs for recordkeeping,

discussed below, because providing documentation of test results to the employer will be

part and parcel of the recordkeeping process.

Employees who are partially vaccinated are also required to be tested weekly until

they are fully vaccinated. Those receiving the J&J vaccine will require two weeks of

testing after the single shot, employees who received the Pfizer-BioNTech Vaccine will

require 5 weeks of testing (3 weeks between shots and 2 weeks following the second

shot), and Moderna recipients require 6 weeks of testing (4 weeks between shots and 2

weeks following the second shot) (CDC, October 4, 2021b). Notwithstanding this, in the

agency’s total cost estimate OSHA accounts for the fact that employers need not comply

with the requirements of this section in paragraph (g) by 60 days after the rule’s effective

date, and that employees who have completed the entire primary vaccination series by

that date do not have to be tested, even if they have not yet completed the 2 week waiting

period.

There is no requirement in the rule that the employer pay for this testing so these

testing-related costs are not included in the main analysis (although, as discussed below

OSHA takes into account costs for testing in connection with the ETS’s recordkeeping

requirements). The agency estimates that 6.3 million weekly tests will need to be given

due to this ETS (see Table IV.B.8). This 6.3 million is likely an overestimate of new
costs because it encompasses tests for employees who were already required to conduct

testing by their employers prior to this ETS.

OSHA also notes that its cost estimates for testing do not take into account the 90-

day break in testing that occurs following the date of a positive test or diagnosis.

OSHA’s cost estimates are also potentially overcounting costs in that OSHA does not

take into account that not all employees for whom testing is required will report at least

once every 7 days to a workplace where other individuals, such as coworkers or

customers, are present. Thus, OSHA’s estimate assumes that employees for whom

testing is required will need to be tested at least once every 7 days and not less frequently

as will often be the case.

OSHA notes, in addition, that there are no costs associated with paragraph (g)’s

removal provision. The ETS does not require the employer to provide paid time off to

any employee for removal as a result of the employee’s refusal/failure to provide

documentation of a COVID-19 test result as required by paragraph (g)(1) of the ETS.

Finally, OSHA notes that a COVID-19 test under the ETS is a test for SARS-

CoV-2 that is: (i) Cleared, approved, or authorized, including in an Emergency Use

Authorization (EUA), by the FDA to detect current infection with the SARS-CoV-2 virus

(e.g., a viral test); (ii) Administered in accordance with the authorized instructions; and

(iii) Not both self-administered and self-read unless observed by the employer or an

authorized telehealth proctor. Examples of tests that satisfy this requirement include tests

with specimens that are processed by a laboratory (including home or on-site collected

specimens which are processed either individually or as pooled specimens), proctored

over-the-counter tests, point of care tests, and tests where specimen collection and

processing is either done or observed by an employer. Employers may have costs

associated with doing, observing or proctoring employee testing, if employers choose to

do so. However, for economic feasibility purposes, OSHA does not account for these

costs in its estimates because they are not required for compliance with the ETS.

Costs Associated with Reasonable Accommodation: Testing, Face Coverings, and

Determinations

The ETS does not require the employer to pay for any costs associated with

testing; however employer payment for testing may be required by other laws,

regulations, or collective bargaining agreements. Thus, while OSHA does not include

any costs for reasonable accommodation requests in its main cost analysis in recognition

that such costs would result from the application of other laws, OSHA notes that even if

employers were to agree to pay for COVID-19 testing as part of a reasonable

accommodation or some other reason required by law, such costs would not alter

OSHA’s findings regarding the economic feasibility of the rule.48 OSHA reached this

conclusion after conducting a separate analysis of reasonable accommodation costs that

an employer might assume if they do not represent an undue hardship for the employer.

This analysis is available in the docket at OSHA, October 2021d.

OSHA notes that this separate analysis is limited to employees who request

accommodation, and accounts for costs of reviewing medical and/or religious

accommodation requests, as well as costs for COVID-19 testing and face coverings that

would satisfy the requirements of this ETS. OSHA expects a reasonable accommodation

request could lead to a review of the employee’s request by a manager and then a

conference between the manager and the employee. OSHA concludes that the

combination of these costs would not alter OSHA’s findings regarding the economic

feasibility of the ETS.

48OSHA notes that while the testing required under this standard might be an option for employees who
request a reasonable accommodation to avoid vaccination, other alternatives such as telework would be
more protective to the employee by preventing COVID-19 exposure. These alternatives may also be
available at no additional cost to the employer or employee.
f. Employee notification to employer of a positive COVID-19 test and removal.

ETS Requirements

Under § 1910.501(h):

Regardless of COVID-19 vaccination status or any COVID-19 testing required

under paragraph (g) of the ETS, the employer must:

 Require each employee to promptly notify the employer when they receive a

positive COVID-19 test or are diagnosed with COVID-19 by a licensed

healthcare provider; and

 Immediately remove from the workplace any employee who receives a positive

COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider

and keep the employee removed until the employee: (i) receives a negative result

on a COVID-19 nucleic acid amplification test (NAAT) following a positive

result on a COVID-19 antigen test if the employee chooses to seek a NAAT test

for confirmatory testing; (ii) meets the return to work criteria in CDC’s “Isolation

Guidance” (incorporated by reference, § 1910.509); or (iii) receives a

recommendation to return to work from a licensed healthcare provider.

Costs Analysis Assumptions

The ETS does not require employers to provide paid time off to any employee for

removal from the workplace as a result of a positive COVID-19 test or diagnosis of

COVID-19; however paid time off may be required by other laws, regulations, or

collective bargaining agreements or other collectively negotiated agreements. Therefore,

there are no costs associated with paragraph (h)’s removal provision.

With respect to notification, to the extent employee notification is connected to

the ETS’s testing and documentation requirements in paragraph (g), those costs to the

employer are taken under the costs for recordkeeping, discussed below, because, as
explained above, receiving documentation of test results under paragraph (g) will be part

and parcel of the recordkeeping process.

OSHA notes also that the costs associated with employee notification by

vaccinated employees (not required by this ETS to undergo testing) should also be

negligible because it will not occur with any real frequency. The very low breakthrough

rates of infection among vaccinated persons suggests that the overwhelming majority of

COVID-19 cases reported to a covered employer will be in the pool of unvaccinated

employees.

g. Reporting COVID-19 fatalities and hospitalizations to OSHA.

ETS Requirements

Under § 1910.501(j):

The employer must report to OSHA:

 Each work-related COVID-19 fatality within 8 hours of the employer learning

about the fatality.

 Each work-related COVID-19 in-patient hospitalization within 24 hours of the

employer learning about the in-patient hospitalization.

When reporting COVID-19 fatalities and in-patient hospitalizations to OSHA in

accordance with paragraph (j)(1) of the ETS, the employer must follow the requirements

in 29 CFR part 1904.39, except for 29 CFR part 1904.39(a)(1) and (2) and (b)(6).

Cost Analysis Assumptions

OSHA estimates a total of 1,464 fatalities and 59,570 hospitalizations for

employees of covered firms.49 This analysis is broadly consistent, using updated data,

49 These counts represent hospitalizations and fatalities that would occur to the in-scope labor force despite
the ETS. The numbers are derived using methodology similar to that used in Health Impacts to generate
hospitalizations and fatalities prevented. An infection rate and case fatality rate are multiplied by the
number of unvaccinated workers to derive a total number of fatalities. That number is used to derive
hospitalizations. The number of hospitalizations and fatalities to vaccinated employees is calculated in a
similar fashion, but with a lower infection rate because vaccination makes it considerably less likely that an
with OSHA’s analysis of a nearly identical provision in 29 CFR 1910.502, the Healthcare

ETS. OSHA also estimates, based on the Healthcare ETS, that reporting of each fatality

and hospitalization will require 45 minutes of an employer’s time (86 FR at 32516). This

includes hospitalizations and fatalities for employees that remain unvaccinated, as well as

a small percentage of hospitalizations and fatalities of vaccinated employees due to

breakthrough cases. Because of the timing requirements in the rule, the agency assumes

that a hospitalization followed by a death will need two reports from the employer (i.e.,

the agency assumes that reporting for hospitalizations will occur within 8 hours, before

reporting for fatalities occurs, within 24 hours). This will result in a slight over-estimate.

The total cost for reporting COVID-19 fatalities and hospitalizations to OSHA is

calculated as the product of:

 One-time labor burden of 45 minutes per report of hospitalization or fatality.

 Wage rage for General and Operations Managers (SOC code 11-1021, NAICS-

specific wages).

 Total number of fatalities for employees at covered firms.

 Total number of hospitalizations for employees at covered firms.

Cost for Reporting COVID-19 Fatalities and Hospitalizations to OSHA

Costs per entity and total costs for vaccination are shown below in Table IV.B.11.

individual will be tested and found to be infected. See (OSHA, October 2021a and OSHA, October 2021c).
One difference in methodology between these counts and the Health Impacts analysis is that these counts
use a baseline of the last 19 months of CDC data to estimate the case fatality rate (similar to Alternative C
in the Health Impacts analysis), rather than a baseline of the last 6 months (which OSHA used for the main
Health Impacts analysis). This results in an estimate toward the upper bound for these counts (i.e., an
overestimate of costs).
Table IV.B.11. Reporting COVID-19 Fatalities and Hospitalizations to OSHA

NAICS 3 NAICS Description Cost per Entity Total Cost

All Industry $16 $4,352,190
111 Crop Production $7 $170,598
112 Animal Production and Aquaculture $7 $189,656
113 Forestry and Logging $5 $241
114 Fishing, Hunting and Trapping $5 $40
115 Support Activities for Agriculture and Forestry $8 $1,978
211 Oil and Gas Extraction $14 $3,708
213 Support Activities for Mining $19 $10,375
221 Utilities $34 $28,342
236 Construction of Buildings $11 $16,845
237 Heavy and Civil Engineering Construction $17 $29,589
238 Specialty Trade Contractors $10 $55,724
311 Food Manufacturing $25 $66,122
312 Beverage and Tobacco Product Manufacturing $16 $5,541
313 Textile Mills $13 $3,721
314 Textile Product Mills $11 $2,600
315 Apparel Manufacturing $8 $1,713
316 Leather and Allied Product Manufacturing $12 $726
321 Wood Product Manufacturing $11 $11,315
322 Paper Manufacturing $22 $15,902
323 Printing and Related Support Activities $10 $8,923
324 Petroleum and Coal Products Manufacturing $18 $5,418
325 Chemical Manufacturing $17 $38,630
326 Plastics and Rubber Products Manufacturing $16 $33,463
327 Nonmetallic Mineral Product Manufacturing $14 $14,551
331 Primary Metal Manufacturing $20 $18,094
332 Fabricated Metal Product Manufacturing $10 $37,618
333 Machinery Manufacturing $15 $40,284
334 Computer and Electronic Product Manufacturing $21 $35,431
335 Electrical Equipment, Appliance, and Component Manufacturing $19 $15,232
336 Transportation Equipment Manufacturing $40 $77,976
337 Furniture and Related Product Manufacturing $17 $12,192
339 Miscellaneous Manufacturing $15 $15,807
423 Merchant Wholesalers, Durable Goods $8 $75,973
424 Merchant Wholesalers, Nondurable Goods $10 $57,962
425 Wholesale Electronic Markets and Agents and Brokers $13 $4,561
441 Motor Vehicle and Parts Dealers $13 $50,059
442 Furniture and Home Furnishings Stores $21 $8,596
443 Electronics and Appliance Stores $31 $7,320
444 Building Material and Garden Equipment and Supplies Dealers $25 $29,599
445 Food and Beverage Stores $37 $70,844
446 Health and Personal Care Stores $36 $23,972
447 Gasoline Stations $11 $13,995
448 Clothing and Clothing Accessories Stores $55 $51,222
451 Sporting Goods, Hobby, Musical Instrument, and Book Stores $37 $10,496
452 General Merchandise Stores $576 $81,150
453 Miscellaneous Store Retailers $11 $11,354
454 Nonstore Retailers $11 $15,609
481 Air Transportation $84 $23,889
482 Rail Transportation $1,158 $9,261
483 Water Transportation $17 $2,615
484 Truck Transportation $14 $36,874
 NAICS 3 NAICS Description Cost per Entity Total Cost
485 Transit and Ground Passenger Transportation $16 $14,828
486 Pipeline Transportation $16 $2,172
487 Scenic and Sightseeing Transportation $6 $477
488 Support Activities for Transportation $12 $17,088
491 Postal Service $14 $308
492 Couriers and Messengers $127 $24,809
493 Warehousing and Storage $15 $38,579
511 Publishing Industries (except Internet) $25 $36,571
512 Motion Picture and Sound Recording Industries $24 $9,705
515 Broadcasting (except Internet) $27 $9,123
517 Telecommunications $66 $41,891
518 Data Processing, Hosting, and Related Services $17 $20,702
519 Other Information Services $27 $11,662
521 Monetary Authorities-Central Bank $104 $1,249
522 Credit Intermediation and Related Activities $25 $99,420
Securities, Commodity Contracts, and Other Financial $15 $26,869
523
Investments and Related Activities
524 Insurance Carriers and Related Activities $30 $69,815
525 Funds, Trusts, and Other Financial Vehicles $1 $44
531 Real Estate $7 $25,048
532 Rental and Leasing Services $13 $13,025
Lessors of Nonfinancial Intangible Assets (except Copyrighted $3 $787
533
Works)
541 Professional, Scientific, and Technical Services $15 $214,110
551 Management of Companies and Enterprises $7 $124,714
561 Administrative and Support Services $29 $383,143
562 Waste Management and Remediation Services $13 $10,513
611 Educational Services $27 $407,919
624 Social Assistance $14 $173,515
711 Performing Arts, Spectator Sports, and Related Industries $103 $476,929
712 Museums, Historical Sites, and Similar Institutions $12 $121,414
713 Amusement, Gambling, and Recreation Industries $6 $63,293
721 Accommodation $13 $11,382
722 Food Services and Drinking Places $8 $3,073
811 Repair and Maintenance $13 $35,392
812 Personal and Laundry Services $25 $56,676
Sources: OSHA analysis, BLS 2020 OEWS data (BLS, 2021a), BLS Employer Cost of Compensation (BLS, 2021b), CDC Covid
Data Tracker (CDC, October 4, 2021a)
h. Recordkeeping.

ETS Requirements

As discussed above, the full costs for the requirements in paragraph (e) of the

ETS are taken under the costs for recordkeeping because determining vaccination status,

providing acceptable proof of vaccination status, and creating and maintaining a roster of

each employee’s vaccination status will be part and parcel of the recordkeeping process.

Under paragraph (e)(4) of the ETS, the employer must maintain a record of each

employee’s vaccination status and must preserve acceptable proof of vaccination for each

employee who is fully or partially vaccinated. The employer must also maintain a roster

of each employee’s vaccination status. These records and roster are considered to be

employee medical records and must be maintained in accordance with 29 CFR 1910.1020

as such records and must not be disclosed except as required or authorized by the ETS or

other federal law. These records and roster are not subject to the retention requirements

of 29 CFR 1910.1020(d)(1)(i) but must be maintained and preserved while the ETS

remains in effect.

With respect to vaccination, it should be noted that, under paragraph (e)(5) of the

ETS, when an employer has ascertained employee vaccination status prior to the effective

date of this section through another form of attestation or proof, and retained records of

that ascertainment, the employer is exempt from the determination of vaccination

requirements in paragraphs (e)(1) - (e)(3) only for each employee whose fully vaccinated

status has been documented prior to the effective date of this section. For purposes of the

recordkeeping requirements in paragraph (e)(4), the employer’s records of ascertainment

of vaccination status for each such person constitute acceptable proof of vaccination.

OSHA estimates, based on this provision, that 60% of employees who were vaccinated

prior to the promulgation of the ETS will not need to document vaccination status in

connection with paragraph (e) (ASU COVID-19 Diagnostic Commons, October 6, 2021).
 As also discussed above, the costs for the requirements for documenting test

results in paragraph (g), including the timing for when recordkeeping costs for testing

accrue under the ETS, are taken under the costs for recordkeeping because providing

documentation of test results to the employer will be part and parcel of the recordkeeping

process. Under paragraph (g)(4) of the ETS, the employer must maintain a record of each

test result provided by each employee under paragraph (g)(1) of the ETS or obtained

during tests conducted by the employer. These records must be maintained in accordance

with 29 CFR 1910.1020 and must not be disclosed except as required or authorized by

this section or other federal law. These records are not subject to the retention

requirements of 29 CFR 1910.1020(d)(1)(i) but must be maintained and preserved while

this section remains in effect.

With respect to testing, it should be noted that, under paragraph (m) of the ETS,

employers are not required to comply with the requirements in paragraph (g) of the ETS

until 60 days after the effective date of the ETS, meaning that for cost analysis purposes

OSHA assumes that employers would not receive any testing records until the end of that

60-day period.

Finally, under paragraph 1910.501(l)(1) of the ETS, availability of records, by the

end of the next business day after a request, the employer must make available, for

examination and copying, the individual COVID-19 vaccine documentation and any

COVID-19 test results for a particular employee to that employee and to anyone having

written authorized consent of that employee. In addition, under paragraph 1910.501(l)(2)

of the ETS, by the end of the next business day after a request by an employee or an

employee representative, the employer must make available to the requester the aggregate

number of fully vaccinated employees at a workplace along with the total number of

employees at that workplace. Under paragraph 1910.501(l)(3) of the ETS, the employer

must also provide to the Assistant Secretary for examination and copying: (i) Within 4
business hours of a request, the employer’s written policy required by paragraph (d) of

the ETS, and the aggregate numbers described in paragraph (l)(2) of the ETS; and (ii) By

the end of the next business day after a request, all other records and other documents

required to be maintained by the ETS.

Cost Analysis Assumptions

To fulfill the recordkeeping requirements in the ETS, OSHA estimates that it will

take an average of 5 minutes of clerical time per employee record. OSHA bases this cost

estimate on the estimate for recordkeeping in the Healthcare ETS (86 FR at 32515).

While OSHA estimated an average of 10 minutes of clerical time per employee record in

the Healthcare ETS, that standard includes more extensive recordkeeping requirements

than what is being required under this ETS. See 29 CFR 1910.502(q)(2)(ii) (Healthcare

ETS record must contain, for each instance, the employee’s name, one form of contact

information, occupation, location where the employee worked, the date of the employee’s

last day at the workplace, the date of the positive test for, or diagnosis of, COVID–19,

and the date the employee first had one or more COVID–19 symptoms, if any were

experienced).

In addition, OSHA includes in this estimate 5 minutes of employee time to

provide documentation of vaccination status or testing, as applicable, to the employer.

OSHA notes that, for an employee who is vaccinated, the employer will determine the

vaccination status of that employees and obtain acceptable proof of vaccination status at

the same time, thus negating the need to create two separate records for these

requirements.

OSHA notes that there will be a cost associated with setting up the recordkeeping

system (e.g., a spreadsheet) used to comply with the ETS. OSHA takes these costs in

connection with the costs for the employer policy on vaccination, which are described

above.
 Given the relative complexity of recordkeeping in the Healthcare ETS, OSHA has

simplified its assumptions to reflect a variety of small costs in a combined estimate. As

in the Healthcare ETS, the cost estimate of 5 minutes per event is likely much higher than

necessary to account for just the actions of receiving and maintaining copies of records,

so retaining this time will yield a tendency toward overestimation. However, this cost

also reflects a margin to encompass additional outlier costs such as a second

documentation of vaccination status for all employees who need to submit documentation

twice (first for partial vaccination and then for full vaccination) under the ETS. This 5

minutes for recordkeeping also encompasses the marginal time for creating and

maintaining a roster of each employee’s vaccination status (paragraph (e)) and making

aggregate employee data available (paragraph (l)). Since normally the system used for

recordkeeping will be electronic in businesses with more than 100 employees, the time to

create an aggregate report and a roster should be de minimis. Finally, this inflated

recordkeeping cost encompasses time for employee notification to the employer of a

positive COVID-19 test connected to the ETS’s testing and documentation requirements

in paragraph (g),which is a notification under paragraph (h). Finally, the burden of

making available, for examination and copying, the individual COVID-19 vaccine

documentation and any COVID-19 test results for a particular employee are included in

this estimate because this documentation will normally be pulled from the electronic

recordkeeping system described above.50

The total cost for these requirements is calculated based on:

 One-time labor burden of 5 minutes of employee labor to provide documentation

and 5 minutes of clerk labor per employee record (one record per test

administered and one record per documentation of vaccination status).

50The cost of providing to the Assistant Secretary for examination and copying the employer’s written
policy required by paragraph (d) of the ETS will be de minimis.
  The average labor rate for Office Clerks, General (SOC 43-9060, NAICS-specific

wages) and employees providing documentation (average wage over all

employees, NAICS-specific wages)

 Total number of employees at covered firms getting vaccinated due to the ETS

with the Johnson & Johnson vaccine, who receive one shot.

 Total number of employees at covered firms getting vaccinated due to the ETS

with the Pfizer-BioNTech and Moderna vaccines, multiplied by two to account

for two shots.

 Total number of tests for employees at covered firms who are unvaccinated and

will get vaccinated by receiving the Johnson and Johnson vaccine.

 Total number of tests for employees at covered firms who are unvaccinated and

will get vaccinated by receiving the Pfizer and Moderna vaccines.

 Total number of employees at covered firms who are unvaccinated and will be

tested weekly.

Cost for Recordkeeping

Costs per entity and total costs for recordkeeping are shown below in Table

IV.B.12.
Table IV.B.12. Recordkeeping
Recordkeeping Cost (for test Recordkeeping Cost (for
results) vaccination status)
NAICS 3 NAICS Description
Cost per Cost per
Total Cost Total Cost
Entity Entity
All Industries $2,287 $603,531,029 $1,187 $313,198,683
111 Crop Production $1,010 $23,952,624 $529 $12,551,553
112 Animal Production and Aquaculture $1,010 $26,628,530 $529 $13,953,770
113 Forestry and Logging $637 $33,784 $334 $17,710
114 Fishing, Hunting and Trapping $698 $5,580 $366 $2,924
Support Activities for Agriculture and $959 $245,521 $503 $128,693
115
Forestry
211 Oil and Gas Extraction $2,327 $602,692 $1,220 $315,925
213 Support Activities for Mining $2,588 $1,417,970 $1,357 $743,429
221 Utilities $5,746 $4,837,466 $3,012 $2,535,854
236 Construction of Buildings $1,615 $2,522,966 $847 $1,322,291
237 Heavy and Civil Engineering Construction $2,464 $4,170,744 $1,292 $2,186,839
238 Specialty Trade Contractors $1,535 $8,386,705 $805 $4,397,204
311 Food Manufacturing $2,768 $7,333,205 $1,449 $3,838,594
Beverage and Tobacco Product $2,359 $799,570 $1,235 $418,777
312
Manufacturing
313 Textile Mills $1,398 $406,763 $733 $213,207
314 Textile Product Mills $1,360 $329,175 $713 $172,556
315 Apparel Manufacturing $1,048 $226,355 $549 $118,656
316 Leather and Allied Product Manufacturing $1,330 $79,809 $696 $41,767
321 Wood Product Manufacturing $1,374 $1,425,211 $720 $747,070
322 Paper Manufacturing $2,724 $1,939,691 $1,428 $1,016,731
323 Printing and Related Support Activities $1,377 $1,179,867 $722 $618,513
Petroleum and Coal Products $2,658 $784,148 $1,393 $410,822
324
Manufacturing
325 Chemical Manufacturing $2,270 $5,018,016 $1,185 $2,619,510
Plastics and Rubber Products $1,868 $3,835,982 $979 $2,010,681
326
Manufacturing
327 Nonmetallic Mineral Product Manufacturing $1,790 $1,870,975 $937 $979,657
331 Primary Metal Manufacturing $2,336 $2,139,736 $1,224 $1,121,454
332 Fabricated Metal Product Manufacturing $1,220 $4,699,701 $639 $2,463,179
333 Machinery Manufacturing $1,842 $5,023,299 $966 $2,633,020
Computer and Electronic Product $2,822 $4,814,766 $1,479 $2,523,189
334
Manufacturing
Electrical Equipment, Appliance, and $2,175 $1,746,513 $1,140 $915,547
335
Component Manufacturing
336 Transportation Equipment Manufacturing $5,091 $9,942,644 $2,669 $5,212,394
Furniture and Related Product $1,884 $1,354,943 $988 $710,051
337
Manufacturing
339 Miscellaneous Manufacturing $1,846 $1,982,223 $966 $1,038,013
423 Merchant Wholesalers, Durable Goods $1,232 $11,076,712 $646 $5,804,380
424 Merchant Wholesalers, Nondurable Goods $1,325 $7,512,074 $695 $3,937,217
Wholesale Electronic Markets and Agents $1,965 $672,177 $1,030 $352,254
425
and Brokers
441 Motor Vehicle and Parts Dealers $1,625 $6,217,834 $852 $3,259,252
442 Furniture and Home Furnishings Stores $3,176 $1,318,080 $1,665 $690,774
443 Electronics and Appliance Stores $4,621 $1,104,393 $2,423 $579,107
Building Material and Garden Equipment $3,690 $4,398,232 $1,934 $2,305,607
444
and Supplies Dealers
445 Food and Beverage Stores $6,014 $11,589,923 $3,154 $6,076,966
446 Health and Personal Care Stores $6,397 $4,240,986 $3,224 $2,137,542
 Recordkeeping Cost (for test Recordkeeping Cost (for
results) vaccination status)
NAICS 3 NAICS Description
Cost per Cost per
Total Cost Total Cost
Entity Entity
447 Gasoline Stations $1,794 $2,390,209 $940 $1,252,737
448 Clothing and Clothing Accessories Stores $7,832 $7,236,459 $4,106 $3,794,360
Sporting Goods, Hobby, Musical $5,607 $1,575,462 $2,939 $825,970
451
Instrument, and Book Stores
452 General Merchandise Stores $82,519 $11,635,150 $43,232 $6,095,648
453 Miscellaneous Store Retailers $1,589 $1,603,180 $833 $840,020
454 Nonstore Retailers $1,454 $2,103,588 $759 $1,098,429
481 Air Transportation $14,328 $4,069,189 $7,513 $2,133,682
482 Rail Transportation $180,125 $1,440,996 $94,425 $755,399
483 Water Transportation $2,292 $362,197 $1,202 $189,872
484 Truck Transportation $2,178 $5,657,452 $1,142 $2,964,963
Transit and Ground Passenger $2,187 $2,027,722 $1,147 $1,062,867
485
Transportation
486 Pipeline Transportation $2,955 $393,080 $1,550 $206,103
487 Scenic and Sightseeing Transportation $896 $72,585 $469 $38,020
488 Support Activities for Transportation $1,777 $2,537,777 $931 $1,329,808
491 Postal Service $2,133 $47,963 $1,119 $25,150
492 Couriers and Messengers $19,783 $3,857,615 $10,373 $2,022,803
493 Warehousing and Storage $1,911 $4,941,215 $1,002 $2,589,550
511 Publishing Industries (except Internet) $4,243 $6,267,417 $2,225 $3,286,111
Motion Picture and Sound Recording $3,511 $1,425,477 $1,838 $746,053
512
Industries
515 Broadcasting (except Internet) $3,917 $1,316,232 $2,054 $690,064
517 Telecommunications $10,085 $6,424,104 $5,286 $3,367,055
Data Processing, Hosting, and Related $2,585 $3,110,309 $1,356 $1,630,732
518
Services
519 Other Information Services $4,234 $1,824,667 $2,218 $955,901
521 Monetary Authorities-Central Bank $14,505 $174,061 $7,606 $91,271
Credit Intermediation and Related $3,554 $14,037,835 $1,863 $7,359,466
522
Activities
Securities, Commodity Contracts, and $2,127 $3,745,639 $1,113 $1,960,350
523 Other Financial Investments and Related
Activities
524 Insurance Carriers and Related Activities $3,946 $9,206,638 $2,059 $4,804,542
Funds, Trusts, and Other Financial $213 $6,826 $112 $3,571
525
Vehicles
531 Real Estate $1,021 $3,694,899 $535 $1,935,836
532 Rental and Leasing Services $1,917 $1,879,116 $1,005 $984,414
Lessors of Nonfinancial Intangible Assets $502 $120,581 $263 $63,199
533
(except Copyrighted Works)
Professional, Scientific, and Technical $2,211 $32,018,996 $1,154 $16,712,840
541
Services
Management of Companies and $1,060 $18,536,501 $554 $9,690,931
551
Enterprises
561 Administrative and Support Services $3,554 $46,688,782 $1,847 $24,263,635
Waste Management and Remediation $1,888 $1,549,394 $989 $811,756
562
Services
611 Educational Services $3,826 $58,254,126 $1,995 $30,381,942
624 Social Assistance $2,111 $26,577,503 $1,066 $13,427,085
Performing Arts, Spectator Sports, and $13,337 $61,863,380 $6,634 $30,769,875
711
Related Industries
 Recordkeeping Cost (for test Recordkeeping Cost (for
results) vaccination status)
NAICS 3 NAICS Description
Cost per Cost per
Total Cost Total Cost
Entity Entity
Museums, Historical Sites, and Similar $1,611 $16,030,837 $823 $8,193,657
712
Institutions
Amusement, Gambling, and Recreation $861 $8,935,270 $450 $4,671,160
713
Industries
721 Accommodation $1,884 $1,626,234 $985 $850,192
722 Food Services and Drinking Places $1,116 $434,162 $583 $226,973
811 Repair and Maintenance $1,784 $4,893,622 $931 $2,554,214
812 Personal and Laundry Services $3,165 $7,318,444 $1,615 $3,733,079
Religious, Grantmaking, Civic, $2,452 $28,414,270 $1,282 $14,852,626
813
Professional, and Similar Organizations
i. Summary of Total Cost.

Total Cost and Total Cost per Entity

Table IV.B.13. Total Costs

NAICS 3 NAICS Description Cost per Entity Total Cost

All $11,298 $2,981,347,368
111 Crop Production $5,442 $129,049,269
112 Animal Production and Aquaculture $5,442 $143,466,214
113 Forestry and Logging $3,520 $186,556
114 Fishing, Hunting and Trapping $3,909 $31,272
115 Support Activities for Agriculture and Forestry $4,482 $1,147,268
211 Oil and Gas Extraction $13,058 $3,382,027
213 Support Activities for Mining $13,032 $7,141,522
221 Utilities $29,281 $24,649,875
236 Construction of Buildings $8,559 $13,368,408
237 Heavy and Civil Engineering Construction $12,466 $21,104,850
238 Specialty Trade Contractors $7,982 $43,622,949
311 Food Manufacturing $12,840 $34,013,981
312 Beverage and Tobacco Product Manufacturing $11,509 $3,901,548
313 Textile Mills $6,875 $2,000,719
314 Textile Product Mills $6,545 $1,583,885
315 Apparel Manufacturing $5,226 $1,128,808
316 Leather and Allied Product Manufacturing $6,596 $395,762
321 Wood Product Manufacturing $6,680 $6,927,322
322 Paper Manufacturing $13,434 $9,564,937
323 Printing and Related Support Activities $6,946 $5,952,466
324 Petroleum and Coal Products Manufacturing $14,194 $4,187,128
325 Chemical Manufacturing $12,119 $26,795,553
326 Plastics and Rubber Products Manufacturing $9,097 $18,684,432
327 Nonmetallic Mineral Product Manufacturing $9,368 $9,789,836
331 Primary Metal Manufacturing $11,459 $10,496,406
332 Fabricated Metal Product Manufacturing $6,204 $23,899,213
333 Machinery Manufacturing $9,680 $26,396,316
334 Computer and Electronic Product Manufacturing $15,166 $25,873,149
335 Electrical Equipment, Appliance, and Component Manufacturing $10,986 $8,822,008
336 Transportation Equipment Manufacturing $24,960 $48,746,936
337 Furniture and Related Product Manufacturing $8,764 $6,301,346
339 Miscellaneous Manufacturing $9,516 $10,220,706
423 Merchant Wholesalers, Durable Goods $6,697 $60,195,312
424 Merchant Wholesalers, Nondurable Goods $6,938 $39,332,705
425 Wholesale Electronic Markets and Agents and Brokers $10,702 $3,660,154
441 Motor Vehicle and Parts Dealers $8,245 $31,546,370
442 Furniture and Home Furnishings Stores $14,542 $6,034,911
443 Electronics and Appliance Stores $21,381 $5,110,108
444 Building Material and Garden Equipment and Supplies Dealers $16,569 $19,749,811
445 Food and Beverage Stores $25,463 $49,067,290
446 Health and Personal Care Stores $27,855 $18,467,936
447 Gasoline Stations $7,582 $10,099,493
448 Clothing and Clothing Accessories Stores $33,708 $31,146,437
451 Sporting Goods, Hobby, Musical Instrument, and Book Stores $24,081 $6,766,742
452 General Merchandise Stores $363,714 $51,283,645
453 Miscellaneous Store Retailers $7,559 $7,626,924
454 Nonstore Retailers $7,718 $11,168,383
481 Air Transportation $73,790 $20,956,234
482 Rail Transportation $894,389 $7,155,113
483 Water Transportation $11,616 $1,835,325
484 Truck Transportation $10,865 $28,215,195
 NAICS 3 NAICS Description Cost per Entity Total Cost
485 Transit and Ground Passenger Transportation $10,077 $9,341,127
486 Pipeline Transportation $14,968 $1,990,734
487 Scenic and Sightseeing Transportation $4,479 $362,761
488 Support Activities for Transportation $8,908 $12,721,011
491 Postal Service $9,547 $214,648
492 Couriers and Messengers $86,970 $16,959,204
493 Warehousing and Storage $8,777 $22,689,579
511 Publishing Industries (except Internet) $23,455 $34,643,707
512 Motion Picture and Sound Recording Industries $18,692 $7,588,937
515 Broadcasting (except Internet) $21,006 $7,058,001
517 Telecommunications $54,096 $34,459,044
518 Data Processing, Hosting, and Related Services $14,815 $17,822,789
519 Other Information Services $23,212 $10,004,362
521 Monetary Authorities-Central Bank $74,846 $898,148
522 Credit Intermediation and Related Activities $18,755 $74,083,278
Securities, Commodity Contracts, and Other Financial $11,696 $20,597,425
523
Investments and Related Activities
524 Insurance Carriers and Related Activities $20,558 $47,962,719
525 Funds, Trusts, and Other Financial Vehicles $1,924 $61,571
531 Real Estate $5,739 $20,769,860
532 Rental and Leasing Services $9,762 $9,566,822
Lessors of Nonfinancial Intangible Assets (except Copyrighted $3,347 $803,350
533
Works)
541 Professional, Scientific, and Technical Services $12,407 $179,657,518
551 Management of Companies and Enterprises $6,321 $110,569,142
561 Administrative and Support Services $16,438 $215,961,913
562 Waste Management and Remediation Services $9,419 $7,727,913
611 Educational Services $19,897 $302,982,220
624 Social Assistance $10,078 $126,878,714
711 Performing Arts, Spectator Sports, and Related Industries $58,393 $270,849,435
712 Museums, Historical Sites, and Similar Institutions $7,173 $71,394,264
713 Amusement, Gambling, and Recreation Industries $4,181 $43,366,540
721 Accommodation $9,537 $8,230,144
722 Food Services and Drinking Places $5,816 $2,262,332
811 Repair and Maintenance $8,266 $22,675,008
812 Personal and Laundry Services $13,094 $30,274,382
Religious, Grantmaking, Civic, Professional, and Similar $10,199 $118,160,993
813
Organizations
Sources: OSHA analysis
j. Sensitivity Analysis.
As stated above, based on limited data on current vaccine mandate

implementation and forecasts for future implementation (Mishra and Hartstein, August

23, 2021; ASU COVID-19 Diagnostic Commons, October 6, 2021), OSHA estimates that

25 percent of firms in scope currently have a vaccination mandate, and assumes that this

will rise to 60 percent of covered employers after the ETS is in place. Because the agency

has no historic reference on which to base its assumptions regarding vaccine mandates,

the agency adjusted the percentage of firms that will institute a vaccine mandate because

of the ETS as part of a sensitivity analysis. Along with the baseline estimate of 60

percent of firms having a mandate, the agency looked at a vaccine mandate rate of 40

percent and 80 percent for covered firms, which OSHA judged to be a reasonable range

based on the data available. The total costs associated with a 40 percent vaccine mandate

are $2.998 billion, and the total costs associated with an 80 percent vaccine mandate are

$2.964 billion. This compares to the baseline costs associated with a 60 percent vaccine

mandate of $2.981 billion. A higher vaccine mandate increases the share of employees

who get vaccinated while reducing the share that must get weekly testing. It is this shift

in shares that causes the costs to change because the total costs associated with weekly

testing (recordkeeping) are more expensive than the total costs associated with

vaccination under the ETS (employer support for vaccination, recordkeeping).

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by Ownership, All 2018 Civilian Wages and Salaries, March 2021.
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Bureau of Labor Statistics (BLS). (2021c). Current Population Survey, Table 2.

Employed persons who teleworked or worked at home for pay at any time in the last 4
weeks because of the coronavirus pandemic by usual full- or part-time status, occupation,
industry, and class of worker; Persons who teleworked because of the coronavirus
pandemic. https://www.bls.gov/cps/effects-of-the-coronavirus-covid-19-
pandemic.htm#data. (BLS, 2021c)

Bureau of Labor Statistics (BLS). (2021d). Current Population Survey, Household Data,
Annual Averages, Employment status of the civilian noninstitutional population by age,
sex, and race, Civilian noninstitutional population. https://www.bls.gov/cps/cpsaat03.htm.
(BLS, 2021d)

Bureau of Labor Statistics (BLS). (2021e). National Compensation Survey: Employee

Benefits in the United States, March 2021.
https://www.bls.gov/ncs/ebs/benefits/2021/employee-benefits-in-the-united-states-march-
2021.pdf. (BLS, 2021e)

Centers for Disease Control and Prevention (CDC). (2021, March 3). Interim
Considerations: Preparing for the Potential Management of Anaphylaxis after COVID-19
Vaccination. https://www.cdc.gov/vaccines/covid-19/clinical-considerations/managing-
anaphylaxis.html. (CDC, March 3, 2021)

Centers for Disease Control and Prevention (CDC). (2021, March 25). Workplace
Vaccination Program. https://www.cdc.gov/coronavirus/2019-
ncov/vaccines/recommendations/essentialworker/workplace-vaccination-program.html.
(CDC, March 25, 2021)
Centers for Disease Control and Prevention (CDC). (2021a, October). Trends in COVID-
19 Vaccine Confidence in the US. https://covid.cdc.gov/covid-data-tracker/#vaccine-
confidence. (CDC, October 2021a)

Centers for Disease Control and Prevention (CDC). (2021b, October). COVID-19
Vaccinations in the United States. https://covid.cdc.gov/covid-data-
tracker/#vaccinations_vacc-total-admin-rate-total. (CDC, October 2021b)

Centers for Disease Control and Prevention (CDC). (2021a, October 4). Demographic
Characteristics of People Receiving COVID-19 Vaccinations in the United States.
https://covid.cdc.gov/covid-data-tracker/#vaccination-demographic. (CDC, October 4,
2021a)

Center for Disease Control and Prevention (CDC). (2021b, October 4). COVID-19
Vaccines That Require 2 Shots. https://www.cdc.gov/coronavirus/2019-
ncov/vaccines/second-shot.html. (CDC, October 4, 2021b)

Cerullo M. (2021, August 31). The New Return Office Date for Google? Try 2022. CBS
News. https://www.cbsnews.com/news/return-to-office-big-companies-corporations-
covid-pandemic/. (Cerullo, August 31, 2021)

Chesto J. (2021, June 22). Almost 40 percent of remote workers in Mass. won’t be back
in the office until January, at the earliest. Boston Globe.
https://www.bostonglobe.com/2021/06/22/business/back-office-not-so-fast/. (Chesto, June
22, 2021)

Chokshi N and Scheiber N. (2021, October 2). Inside United Airlines’ Decision to
Mandate Coronavirus Vaccines. The New York Times.
https://www.nytimes.com/2021/10/02/business/united-airlines-coronavirus-vaccine-
mandate.html. (Chokshi and Scheiber, October 2, 2021)

Courtney E. (2021, September 27). 30 Companies Switching to Long-Term Remote

Work. flexjobs. https://www.flexjobs.com/blog/post/companies-switching-remote-work-
long-term/. Accessed September 27, 2021. (Courtney, September 27, 2021).

Dingel J and Neiman B. (2020, July). How many jobs can be done at home? Journal of
Public Economics. Volume 189, July 2020, 104235.
https://www.sciencedirect.com/science/article/pii/S0047272720300992. (Dingel and
Neiman, July 2020)

Graham R. (2021, September 15). Vaccine Resistors Seek Exemptions. But What Counts
as Religious? The New York Times. https://www.nytimes.com/2021/09/11/us/covid-
vaccine-religion-exemption.html. (Graham, September 15, 2021)

Groenewold M et al., (2020, July 10). Increases in Health-Related Workplace

Absenteeism Among Workers in Essential Critical Infrastructure Occupations During the
COVID-19 Pandemic — United States, March–April 2020. Centers for Disease Control
and Prevention MMWR Vol. 69, No. 27.
https://www.cdc.gov/mmwr/volumes/69/wr/mm6927a1.htm. (Groenewold et al., July 10,
2020)
Kaiser Family Foundation (KFF). (2021, June 30). KFF COVID-19 Vaccine Monitor:
June 2021. https://www.kff.org/coronavirus-covid-19/poll-finding/kff-covid-19-vaccine-
monitor-june-2021/. (KFF, June 30, 2021)

Kelly J. (2021, August 12) Study Shows That 44% Of Employees Would Quit If Ordered
To Get Vaccinated. https://www.forbes.com/sites/jackkelly/2021/08/12/study-shows-that-
44-of-employees-would-quit-if-ordered-to-get-vaccinated/. (Kelly, August 12, 2021)

KEZI News. (2021, September 25). Here’s How Many Oregon State Employees Have
Requested a COVID Vaccine Exemption. https://www.kezi.com/content/news/Heres-how-
many-Oregon-state-employees-have-requested-a-COVID-vaccine-exemption-
575395141.html. (KEZI News, September 25, 2021)

Kuhn P and Yu L. (2021, April). How Costly is Turnover? Evidence from Retail. Journal
of Labor Economics 39(2), 461-496. https://doi.org/10.1086/710359. (Kuhn and Yu,
April, 2021)

Lazer D et al. (2021, August 16). The COVID States Project: A 50-State Survey, Report
#62: COVID-19 Vaccine Attitudes Among Healthcare Workers. The COVID States
Project Report 62. https://covidstates.org/reports. (Lazer et al., August 16, 2021)

Levi M et al. (2021, September 29). COVID-19 mRNA vaccination, reactogenicity,

work-related absences and the impact on operating room staffing: A cross-sectional
study. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8479312/. (Levi et al., September
29, 2021).

Mishra D and Hartstein B. (2021, August 23). Littler COVID-19 Vaccine Employer
Survey Report – Delta Variant Update. https://www.littler.com/publication-
press/press/littler-survey-employers-increasingly-consider-vaccine-mandates-covid-19.
(Mishra and Hartstein, August 23, 2021)

National Agricultural Statistics Service (NASS). (2017). Census of Agriculture.

https://www.nass.usda.gov/Quick_Stats/CDQT/chapter/1/table/1. (NASS, 2017)

O’Sullivan J. (2021, September 18). Washington state workers are getting exemptions to
avoid the COVID-19 vaccine – but will they keep their jobs? Seattle Times.
https://www.seattletimes.com/seattle-news/politics/washington-state-workers-are-getting-
exemptions-to-avoid-the-covid-19-vaccine-but-will-they-keep-their-jobs/. (O’Sullivan,
September 18, 2021).

Occupational Safety and Health Administration (OSHA). (2021, September 25). State
Plans. https://www.osha.gov/stateplans/faqs. (OSHA, September 25, 2021)

Occupational Safety and Health Administration (OSHA). (2021a, October). Analytical

Spreadsheets in Support of the COVID-19 Vaccination and Testing ETS. (OSHA,
October 2021a)

Occupational Safety and Health Administration (OSHA). (2021b, October). COVID-19

Vaccination and Testing ETS: Economic Profile and Cost Chapter Appendices. (OSHA,
October 2021b)
Occupational Safety and Health Administration (OSHA). (2021c, October). Health
Impacts of the COVID-19 Vaccination and Testing ETS. (OSHA, October 2021c)

Occupational Safety and Health Administration (OSHA). (2021d, October). Costs

Associated with Reasonable Accommodation: Testing, Face Coverings, and
Determinations. (OSHA, October 2021d)

Portnoy J. (2021, October, 3). Several hundred Virginia health-care workers have been
suspended or fired over coronavirus vaccine mandates. The Washington Post.
https://www.washingtonpost.com/local/covid-vaccine-mandate-hospitals-
virginia/2021/10/01/b7976d16-21ff-11ec-8200-5e3fd4c49f5e_story.html. (Portnoy,
October 3, 2021)

Putri W et al. (2018, June, 22). Economic burden of seasonal influenza in the United
States. Vaccine 36(27), 3960-3966.
https://www.sciencedirect.com/science/article/pii/S0264410X18306777?via%3Dihub.
(Putri et al., June 22, 2018)

Umland B. (2021, October 13). Survey Looks at Vaccine Mandates and Employee
Turnover. Mercer. https://www.mercer.us/our-thinking/healthcare/survey-looks-at-
vaccine-mandates-and-employee-turnover.html. (Umland, October 13, 2021)

U.S. Census Bureau. (2019). Statistics of U.S. Businesses (SUSB).

https://www.census.gov/programs-survey/susb.html. (U.S. Census Bureau, 2019)

U.S. Census Bureau. (2021). Household Pulse Survey (HPS), Week 37 Table 6A.
https://www.census.gov/programs-surveys/household-pulse-survey/data.html. (U.S.
Census Bureau, 2021)

White C. (2021). Measuring Social and Externality Benefits of Influenza Vaccination.

Journal of Human Resources Vol 56 Number 3, pp. 749-785.
https://muse.jhu.edu/article/798143. (White, 2021)

Willis Towers Watson. (2021, June 23). COVID-19 Vaccination and Reopening the
Workplace Survey. https://www.willistowerswatson.com/en-US/Insights/2021/06/covid-
19-vaccination-and-reopening-the-workplace-survey. (Willis Towers Watson, June 23,
2021)

V. ETS Economic Feasibility Determination.

a. OSHA’s Screening Tests for Economic Feasibility.

As noted in the introduction to the economic analysis, an OSHA standard is

economically feasible when industries can absorb or pass on the costs of compliance

without threatening industry’s long-term profitability or competitive structure, Cotton

Dust, 452 U.S. at 530 n.55, or “threaten[ing] massive dislocation to, or imperil[ing] the
existence of, the industry.” United Steelworkers of Am. v. Marshall (Lead I), 647 F.2d

1189, 1272 (D.C. Cir. 1981).

To determine whether a rule is economically feasible, OSHA typically begins by

using two screening tests to determine whether the costs of the rule are beneath the

threshold level at which the economic feasibility of an affected industry might be

threatened. The first screening test is a revenue test. While there is no hard and fast rule

on which to base the threshold, OSHA generally considers a standard to be economically

feasible for an affected industry when the annualized costs of compliance are less than

one percent of annual revenues. The one-percent revenue threshold is intentionally set at

a low level so that OSHA can confidently assert that the rule is economically feasible for

industries that are below the threshold (i.e., industries for which the costs of compliance

are less than one percent of annual revenues). To put the one-percent threshold into

perspective, OSHA calculated the average compounded annual rate of growth or decay in

average revenues over the 15-year period from 2002 to 2017 (inflated to 2005 to 2020

dollars) for firms with 100 or more employees in the 479 NAICS (out of 546) industries

covered by this ETS for which Census data were available and found that the average

annual real rate of change in revenues in absolute terms for the average firm was 2.2

percentage points a year.51 In other words, revenues are generally observed to change by

well more than one percent per year, on average, for firms with 100 or more employees in

covered industries, indicating that changes of this magnitude are normal in these

industries and that covered firms are typically able to withstand such changes over the

course of a year, much less six months. As discussed below, the average percentage

change due to this ETS for all covered NAICS is a fraction of this fluctuation in

revenues.

51 These results are presented in the Excel ETS Revenue Threshold Test Tables available in the Docket for
this ETS. The data used for six-digit NAICS were from the Bureau of the Census, available every five
years (2002, 2007, 2012, 2107).
 The second screening test that OSHA traditionally uses to consider whether a

standard is economically feasible for an affected industry is if the costs of compliance are

less than ten percent of annual profits (see, e.g., OSHA’s economic analysis of its Silica

standard, 81 FR 16286, 16533 (March 25, 2016); upheld in N. Am.‘s Bldg. Trades Unions

v. OSHA, 878 F.3d 271, 300 (D.C. Cir. 2017)). The ten-percent profit test is also intended

to be at a sufficiently low level so as to allow OSHA to identify industries that might

require further examination. Specifically, the profit screen is primarily used to alert

OSHA to potential impacts on industries where the price elasticity of demand does not

allow for ready absorption of new costs in higher prices (e.g., industries with foreign

competition where the American firms would incur costs that their foreign competitors

would not because they are not subject to OSHA requirements). In addition, setting the

threshold for the profit test low permits OSHA to reasonably conclude that the rule would

be economically feasible for industries below the threshold. To put the ten-percent profit

threshold test into perspective, evidence used by OSHA in its 2016 OSHA silica rule

indicates that, for the combined affected manufacturing industries in general industry and

maritime from 2000 through 2012, the average year-to-year fluctuation in profit rates

(both up and down) was 138.5 percent (81 FR 16545).52

When an industry “passes” both the “cost-to-revenue” and “cost-to-profit”

screening tests, OSHA is assured that the costs of compliance with the rule are

economically feasible for that industry. The vast majority of the industries covered by the

ETS fall into this category.

A rule is not necessarily economically infeasible, however, for the industries that

do not pass the initial revenue screening test (i.e., those for which the costs of compliance

52Profits are subject to the dynamics of the overall economy. Many factors, including a national or global
recession, a downturn in a particular industry, foreign competition, or the increased competitiveness of
producers of close domestic substitutes are all easily capable of causing a decline in profit rates in an
industry of well in excess of ten percent in one year or for several years in succession (See OSHA, March
24, 2016).
with the rule are one percent or more of annual revenues), the initial profit screening test

(i.e, those for which the costs of compliance are ten percent or more of annual profits), or

both. Instead, OSHA normally views those industries as requiring additional examination

as to whether the rule would be economically feasible (see N. Am.‘s Bldg. Trades Unions

v. OSHA, 878 F.3d at 291). OSHA therefore conducts further analysis of the industries

that “fail” one or both of the screening tests in order to evaluate whether the rule would

threaten the existence or competitive structure of those industries (see United

Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1272 (D.C. Cir. 1980)).

Time parameters for analysis

OSHA’s economic analyses almost always measure the costs of a standard on an

annual basis, conducting the screening tests by measuring the cost of the standard against

the annual profits and annual revenues for a given industry. One year is typically the

minimum period for evaluating the status of a business; for example, most business

filings for tax or financial purposes are annual in nature.

Some compliance costs are up-front costs and others are spread over the duration

of the ETS; regardless, the costs of the rule overall will not typically be incurred or

absorbed by businesses all at once. However, OSHA does not expect that the ETS will

require employers to incur initial capital costs for equipment to be used over many years

(which would typically be addressed through installments over a year or a longer period

to leverage loans or payment options to allow more time to marshal revenue and

minimize impacts on reserves).

The compliance costs for this ETS are for a temporary rule for a period of six

months (which, again, is the time period that OSHA assumes this ETS will last, solely for

economic purposes). While OSHA believes the most appropriate screens would be based

on annual profits and revenue, it has followed the more cautious route of basing the

screens on 6 months of profits and revenues to avoid any potential uncertainty about
whether the ETS is economically feasible for the industries covered by this ETS. Using

one year of revenues and profits as the denominators in the cost-to-revenue and cost-to-

profit ratios would have resulted in ratios that are half of the estimated ratios presented in

this analysis. It is therefore unsurprising that businesses in some number of NAICs have

edged above the profit-thresholds using a 6 month screen (as will be discussed later), and

OSHA believes that edging above the screening thresholds is less of an indicator of

economic peril in this context than in the context of a permanent rulemaking analysis.

Nevertheless, OSHA has examined each of the NAICS that did not clear either of these

conservative screening tests and has concluded that the ETS is economically feasible for

each one.

Data Used for the Screening Tests

The estimated costs of complying with the ETS, which OSHA relied upon to

examine feasibility is based on the two tests described above (see OSHA, October

2021a). The revenue numbers used to determine cost-to-revenue ratios were obtained

from the 2017 Economic Census for firms with 100 or more employees in covered

industries. This is the most current information available from this source, which OSHA

considers to be the best available source of revenue data for U.S. businesses.53 OSHA

adjusted these figures to 2020 dollars using the Bureau of Economic Analysis’s GDP

deflator, which is OSHA’s standard source for inflation and deflation analysis.

The profit screening test for feasibility (i.e., the cost-to-profit ratio) was calculated

as ETS costs divided by profits. Profits were calculated as profit rates multiplied by

revenues. The before-tax profit rates that OSHA used were estimated using corporate

balance sheet data from the Internal Revenue Service (IRS), 2013 Corporation Source

Book (IRS, 2013). The IRS discontinued the publication of these data after 2013, and

53For information regarding the standards and practices used by the Census Bureau to ensure the quality
and integrity of its data, see (US Census Bureau, October 8, 2021a; US Census Bureau, October 8, 2021b).
therefore the most current years available are 2000-2013.54 The most recent version of the

Source Book represents the best available evidence for these data on profit rates.55

For each of the years 2000 through 2013, OSHA calculated profit rates by

dividing the “net income” from all firms (both profitable and unprofitable) by total

receipts from all firms (both profitable and unprofitable) for each NAICS56. OSHA then

averaged these rates across the 14-year (2000 through 2013) period. Since some data

provided by the IRS were not available at disaggregated levels for all industries and profit

rates, data at more highly aggregated levels were used for some industries; that is, where

data were not available for each six-digit NAICS code, data for the corresponding four-

or five-digit NAICS codes were used. Data were used for all firms in the NAICS (as

opposed to just firms with 100 or more employees) since data disaggregated by

employment size-class were not available. Profit rates are expressed as a percentage (see

OSHA, October 2021a). Profits themselves were used to calculate the cost-to-profit

estimates for all firms contained in a particular NAICS code (see OSHA, October 2021a).

OSHA has estimated costs over a 6-month timeframe for this ETS. As discussed

above, OSHA has therefore used six months of revenue to conduct the cost-to-revenue

tests and six months of profit to conduct the cost-to-profit tests.

General use of Revenues and Profits to Measure Economic Feasibility

As with other OSHA rulemaking efforts, the agency relies on the two screening

tests (costs less than one percent of revenue and costs less than ten percent of profit) as an

initial indicator of economic feasibility. OSHA has generally found that the cost-to-

54 See IRS, 2013

55OSHA also investigated Bizminer and RMA as potential sources of profit information and determined
that they do not represent adequate and random samples of the affected industries.

There is one code reported per tax entity and it may not be representative to the six-digit level. See
56

Corporation Sourcebook on limitations of the industry classification for details. (IRS, 2013).
revenue test is a more reliable indicator of feasibility simply because the revenue data are

more accurate than the profit data. There are several reasons for this.

First, OSHA has been using corporate balance sheet data from the IRS as the best

available evidence for estimating corporate profits for years.57 Nevertheless, because

firms typically have an incentive to minimize their tax burden, it is reasonable to expect

that some of the reported accounting data may have been strategically adjusted to reduce

reported profits and their associated tax implications. Business profits are much more

likely to reflect such strategic accounting than business revenues; accordingly, revenues

are a more accurate measure than profits for evaluating economic feasibility for a

multitude of reasons.58

Second, because OSHA is using data from both profitable and unprofitable firms,

the average profit rate for a small number of industries is negative (as described above,

using 14 years of data that predate the pandemic). This result could have occurred

because of the way profits are calculated, which unnaturally skews average profit rates

downward by including firms that have large losses (negative profits) or subnormal

profits and have already closed or are in the process of closing, irrespective of any action

by OSHA. The negative rates could also be the result of macroeconomic fluctuations

during the 14-year period used to determine the average, a period in which some of these

industries may have experienced unusually adverse financial impacts (see, e.g., the

57 OSHA funded and accepted a final report by Contractor Henry Beale (Beale Report, 2003) that reviewed
alternative financial data sources and concluded that the IRS data were the best. Since then OSHA has
been relying on IRS data to provide the financial data to support its rulemaking analyses. See, for example,
Occupational Safety and Health Administration (OSHA) (2016), Final Economic and Regulatory
Flexibility Analysis for OSHA's Rule on Occupational Exposure to Respirable Crystalline Silica, Chapter
VI, pp. VI-2 to VI-3, Docket No. OSHA-2010-0034-4247 (OSHA, March 24, 2016), which includes a
more recent review of data sources for corporate financial profit data and further support for OSHA’s
choice of IRS data.
58 In fact, all other Department of Labor agencies rely solely on revenues to assess economic impacts, such

as Regulatory Flexibility Act certifications, in their rulemakings (see, e.g., Employment and Training
Administration, Final Rule on Strengthening Wage Protections for the Temporary and Permanent
Employment of Certain Aliens in the United States, https://www.govinfo.gov/content/pkg/FR-2021-01-
14/pdf/2021-00218.pdf; Wage and Hour Division, Tip Regulations Under the Fair Labor Standards Act
(FLSA), https://www.govinfo.gov/content/pkg/FR-2020-12-30/pdf/2020-28555.pdf).
explanation in Chapter VI, pp. VI-20 of the Final Economic and Regulatory Flexibility

Analysis for OSHA's Rule on Occupational Exposure to Respirable Crystalline Silica,

Docket No. OSHA-2010-0034-4247, which notes the skew from negative impacts during

recession years (OSHA, March 24, 2016)). Or they could result from tax-related

incentives, as previously noted.

Whatever the reason, the cost-to-profit calculations for NAICS with negative

profit rates fail to provide reliable information about the long-term profitability of these

industries, independent of the ETS. Companies and industries that consistently lose

money do not typically stay in business, and would almost certainly not still be in

business in 2021 if that loss continued at the same level for each of the 8 years since the

profit data was published in 2012. Revenue streams are a more dependable measure for

those firms because those streams tend to be more stable and more indicative of the

actual capabilities of sustainable firms than reported negative profit margins. As a result,

for the purposes of this analysis, OSHA has relied more heavily on its cost-to-revenue

estimates, in lieu of cost-to-profit estimates, as the more reliable indicator for economic

feasibility for the industries with negative profit rates.

Third, and similarly, profit rates that are only slightly positive (i.e., less than one

percent) are inconclusive and not useful for the purpose of OSHA’s cost-to-profit test. In

economics terms, profit entails a reasonable rate of return on investment, and long-term

profits of less than one percent a year are not generally reasonable for firms that expect to

remain in business. Thus data showing industry-wide profits in this range do not measure

the true ability of companies to pay for the ETS costs. As previously stated, revenue

streams tend to be more stable and more indicative of the actual capabilities of

sustainable firms. Therefore, where possible, OSHA prefers to rely on the cost-to-revenue

test to evaluate economic feasibility for industries that have a less than one percent profit

rate.
 The qualification, and by far the most important reason for the general primacy of

revenues versus profits as the appropriate metric for determining economic feasibility, for

most OSHA rules, is that the regulated firms are able to pass on the costs of the rule in

the form of higher prices. When they cannot, the profit test functions primarily as a

screen for a limited purpose: alerting OSHA to potential impacts where unregulated

competitors can prevent firms from passing costs along to customers.

To understand this point, some economic background is needed. The price

elasticity of demand refers to the relationship between the price charged for a product or

service and the quantity demanded for that product or service: the more elastic the

relationship, the larger the decrease in the quantity demanded for a product when the

price goes up. When demand is elastic, establishments have less ability to pass

compliance costs on to customers in the form of a price increase and must absorb such

costs in the form of reduced profits. In contrast, when demand is relatively inelastic, the

quantity demanded for the product or service will be less affected by a change in price. In

such cases, establishments can recover most of the variable costs of compliance (i.e.,

costs that are highly correlated with the amount of output) by raising the prices they

charge; under this scenario, if costs are variable rather than fixed, business activity and

profit rates are largely unchanged for small changes in costs. Ultimately, where demand

is relatively inelastic, any impacts are primarily borne by those customers who purchase

the relevant product or service for a slightly higher price. Most of the costs of this ETS

are variable costs because they depend primarily on the level of production or the number

of employees at an establishment. For example, under the ETS, a firm with 500

employees must determine and record the vaccination status of 500 employees, while a
firm with 250 employees need determine and record the vaccination status of only 250

employees.59

In general, “[w]hen an industry is subjected to a higher cost, it does not simply

swallow it; it raises its price and reduces its output, and in this way shifts a part of the

cost to its consumers and a part to its suppliers” (Am. Dental Ass’n v. Sec’y of Labor, 984

F.2d 823, 829 (7th Cir. 1993)). A reduction in output could happen in a variety of ways:

individual establishments could reduce their levels of service (e.g., retail firms) or

production (e.g., manufacturing), both of which could take the form of a reduction of

worker hours; some marginal establishments could close; or, in the case of an industry

with high turnover of establishments, new entry could be delayed until demand equals

supply. In many cases, a decrease in overall output for an industry will be a combination

of all three kinds of reductions. The primary means of achieving the reduction in output

most likely depends on the rate of turnover in the industry and on the form that the costs

of the regulation take. Further, the temporary nature of the ETS and its associated costs

suggests that firms may have more flexibility to respond than when facing a permanent

increase in costs. For example, firms may be able to temporarily increase prices or

temporarily defer planned capital expenditures or other maintenance to cover compliance

costs.

There are two situations typically mentioned when an industry subject to

regulatory costs might be unable to pass those costs on: (1) foreign competition not

subject to the regulation, or (2) domestic competitors in other industries, not subject to

the regulation, that produce goods or services that are close substitutes. Otherwise, when

all affected domestic industries are covered by a rule and foreign businesses must also

59While fixed cost can be more limiting in terms of options for businesses, most of the costs of this rule are
not fixed. Instead, most of the compliance costs vary with the level of output or employment at a facility.
comply with the rule or are unable to compete effectively, the ability of a competing

industry to offer a substitute product or service at a lower price is greatly diminished.

There is a third situation that is relevant to this ETS—when only some firms in a

domestic industry (in this case, only employers with 100 or more employees) are subject

to the ETS and its regulatory costs. In principle, competition from smaller employers in a

NAICS could prevent the larger employers from passing on their costs in the form of

higher prices and instead require them to absorb the costs in the form of lost profits.

There are, however, several important caveats:

1. As a practical matter, it is implausible to expect that covered employers (with 100

or more employees) would feel constrained by smaller competitors in their

industry so as not to pass on costs for a rule lasting 6 months that imposes costs

equal to 0.02 percent of revenues, on average across all NAICS, over that time

period (see OSHA, October 2021a). This time period would likely be too short

for small firms to expand to take business away from the larger firms or for new

firms to form to take advantage of such minor and transitory business

opportunities. Furthermore, smaller firms (particularly very small firms--those

with fewer than 20 employees) typically can’t compete on price with large firms

that have cost advantages due to various economies of scale; as a result, smaller

firms often serve a specialized niche market rather than compete directly with

larger firms. To the extent that this ETS creates new business opportunities for

these smaller uncovered firms, they would also be covered by the ETS as soon as

they reached 100 employees.60

2. An important factor to consider in calculating the costs and impacts and economic

feasibility of this ETS is the unquantified and unmonetized cost savings and other

60This cost advantage may be exaggerated or non-existent in many cases (see the discussion directly below
in the text in Caveat 2).
 positive economic impacts accruing to employers that comply with the ETS.

These include reduced absenteeism due to COVID-19 illnesses61 and quarantine.62

Other positive economic impacts that compliant employers would enjoy from a

safer business environment are increased retail trade from customers that feel less

at risk and better relations with suppliers and other business partners. These all

would contribute to improved business and increased profits.

3. The existence of these cost savings and other positive economic impacts accruing

to employers that comply with the ETS suggests that the actual net costs of the

ETS will be much lower than the costs reported in the supporting economic

analysis for this ETS used to estimate cost impacts and demonstrate economic

feasibility. In fact, for some share of covered employers, the net costs of the ETS

may well be negative. Indeed, this is being confirmed by revealed preference in

the market. Elsewhere in the economic analysis for this ETS (Cost Analysis

section 4.2), OSHA has provided evidence to support its estimate that 25 percent

of covered employers already voluntarily require that their employees be

vaccinated and a much larger percentage are considering a vaccine mandate. This

strongly supports the conclusion that these businesses agree that doing so will

ultimately save costs.

b. Economic Feasibility Analysis and Determination.

61Several occupational groups less able to avoid exposure to SARS-CoV-2 infection exhibited significantly
higher rates of absenteeism in March-April 2020 compared to earlier periods (Groenewold et al., July 10,
2020).
62For a discussion of turnover (i.e. whether the ETS could affect the likelihood that an employee will
remain with an employer, either because the imposition of a vaccine requirement will lead some employees
to leave and find employment at an establishment not subject to the ETS, or, alternatively, to stay due to a
preference for enhanced COVID-19 safety procedures), please see the cost section (Section III.d.) of this
economic analysis.
 This section summarizes OSHA’s feasibility findings for industries covered by

the ETS. As stated previously, the agency uses two screening tests (costs less than one

percent of revenue and costs less than ten percent of profit) as an initial indicator of

economic feasibility. In this section, OSHA discusses the industries that fall above the

threshold level for either screening test.

The overall effect of compliance with the general section of the ETS on covered

industries is very small (see OSHA, October 2021a). The vast majority of the covered

NAICS have very low cost-to-revenue and cost-to-profit ratios, with the overall averages

being 0.02 percent of revenues and 0.49 percent of profits. To put this into perspective, if

the average firm decided to raise prices to cover the costs of the ETS, the price of a $100

product or service, for example, would have to be increased by 2 cents (during the six-

month period).

Based on the information presented here, the costs of the ETS are below both the

threshold revenue test (1 percent of revenues) and the threshold profit test (10 percent of

profits) for the vast majority of NAICS industries.63 This indicates that the average firm

in these industries will be able either to raise prices to cover ETS costs or to absorb the

costs of the ETS out of available profits. In either case, OSHA concludes that the ETS is

economically feasible for all of these industries.

Critically, there are no industries covered by the general section of the ETS that

are above OSHA’s cost-to-revenue threshold level of one percent and most are a small

fraction of this level. Because OSHA is using data from both profitable and unprofitable

firms, the average profit rate for a small number of industries is negative. There are 14

NAICS with negative cost-to-profit ratios, resulting from negative average profit rates.

These industries with negative profit rates are domestic service industries that are not

subject to international competition.

63 By OSHA’s calculation, 524 out of the 546 six-digit NAICS covered by the ETS.
 There are eight six-digit NAICS industries, covering all establishments in those

industries covered by the general section of the ETS, with cost-to-profit ratios above 10

percent:

1. NAICS 221118 – Other Electric Power Generation, 23.97 percent;

2. NAICS 488119 – Other Airport Operations, 18.41 percent;

3. NAICS 488410 – Motor Vehicle Towing, 15.75 percent;

4. NAICS 488490 – Other Support Activities for Road Transportation, 14.32

percent;

5. NAICS 713920 – Skiing Facilities, 13.16 percent; and

6. NAICS 713940 – Fitness and Recreational Sports Centers, 12.33 percent;

7. NAICS 713120 – Amusement Arcades, 11.18 percent; and

8. NAICS 488320 – Marine Cargo Handling, 10.03 percent.

The average profit rate reported over the 14 years for which OSHA has profit data

for all the NAICS affected by the ETS is 4.2 percent. All of the eight NAICS industries

with a cost-to-profit ratio above the 10 percent threshold report an annual profit rate

below one percent—75 percent or more below the overall average for all NAICS covered

by the ETS. These eight industries all provide domestic services and are not subject to

international competition.

The fact that the covered firms in these 22 NAICS industries (the 14 with negative

cost-to-profit ratios and the 8 with more sustainable cost-to-profit ratios) exceeded the

profit screen suggests that they might in theory have difficult paying for the costs of the

ETS out of profits gained over the six-month duration of the ETS if they had no savings

or access to capital, but even if that were true it would be highly unlikely to place the

firms in financial jeopardy. OSHA examines these industries more closely below, but

before even considering the reasons in NAICs-specific analysis it is important to consider

the larger context. For the ETS to threaten the economic solvency of these firms, the

following 3 conditions must apply:

1. These firms must not enjoy certain cost savings and positive economic impacts

from the ETS that would partially or totally offset their costs. This condition is

questionable because of the estimated 25 percent of employers sampled that

reported voluntarily imposing a vaccine mandate and the substantial number more

contemplating the voluntary adoption of such a mandate. They can be expected to

base their decisions, partly or entirely, on anticipated cost savings or positive

economic impacts (which would reduce or eliminate their risk of insolvency due

to the ETS).

2. These firms (all with 100 or more employees) must not be able to raise prices to

cover ETS costs because of the threat that smaller firms in their NAICS industry,

not covered by the ETS, could underprice them and take away their business.

This condition is unlikely or limited because of the economies of scale the larger

firms enjoy and the fact that the smaller firms out of necessity tend to serve a

market niche not in direct competition with the larger firms. Also, there is a

severe limit to the extent that firms with fewer than 100 employees can take away

significant portions of business from the larger firms without becoming subject to

the requirements of the rule themselves. If the larger firms do not feel threatened

by being underpriced by smaller firms in these NAICS industries, then they could

raise prices an average of less than 0.05 percent64 to cover the cost of the ETS—a

small fraction of the 1.0 percent of revenues threshold (beneath which OSHA has

determined that economic feasibility is not a concern).

64If not underpriced by smaller firms, covered firms in the 8 NAICS industries reporting ETS costs above
10 percent of profits could cover these costs by raising prices an average of 0.08 percent (highest, 0.11
percent); covered firms in the 14 NAICS industries reporting negative profits could cover ETS costs with a
price increase of 0.01 percent (highest, 0.02 percent).
 3. These firms must not generate sufficient profits or have adequate borrowing

capacity during the six months the ETS is in force to cover the costs of the ETS.

There are several reasons to doubt that this condition broadly applies. First, the

estimates of business profits come from corporate balance sheet data that firms

report to the IRS. But, as previously noted, it is generally the case that firms have

an incentive to minimize their tax burden, and it is reasonable to expect that some

of the reported accounting data may have been strategically adjusted to reduce

reported profits and their associated tax implications. Another point concerning

the IRS data is that they include the negative profits of firms that are going out of

business or have since gone out of business. To the extent that these points are

true, many or most of the covered firms in these NAICS industries (still in

business) actually would generate sufficient profit to cover the cost of the ETS. A

related point is that for this condition to. apply, the firms must not be able to

borrow the money to pay for the costs of the ETS. Recall, however, that these are

all large firms with 100+ employees. It is reasonable to expect that many or most

firms of this size in the 22 NAICS industries at issue either have available funds

or could obtain a short-term loan to cover costs equal to the 0.01 to 0.ll percent of

revenues that these firms would incur over the six-month period that OSHA

assumes the ETS will remain in effect. Firms of this size normally have banking

relationships and some unencumbered assets. They also have access to national

and international capital markets. If these firms can borrow funds to pay for the

ETS, then the profit restriction doesn’t matter.

Finally, OSHA anticipates concern that limiting the scope of the ETS to

employers with 100 or more employees will somehow put these larger firms in economic

jeopardy from the smaller firms to which the ETS does not currently apply. This is highly

improbable for several reasons discussed earlier, including the fact that these are large
employers with advantages of economies of scale and access to capital and the fact that

this is a temporary standard that would result, at most, in marginal impacts over 6 months

(on average, equal to costs of 0.02 percent of revenues, which, again, translates to a cost

increase of a penny on a fifty dollar item).

But even that misses the main point: economic feasibility refers to the industry,

not to the firm. OSHA must construct a reasonable estimate of compliance costs and

demonstrate a reasonable likelihood that these costs will not threaten the existence or

competitive structure of an industry, even if it does portend disaster for some marginal

firms (Lead I, 647 F.2d at 1272). In the (again) highly unlikely event that individual firms

exit an industry and are replaced by other firms in the industry, then the ETS would

preserve the economic feasibility of the covered industries. If an employer covered by

this standard actually had to increase its prices slightly to account for the cost of this

standard, there are two potential groups of smaller businesses that could seek to supplant

the covered firms. The first group of businesses are much smaller than the covered firms.

Those businesses, however, will typically have higher costs and prices to begin with due

to their scale disadvantages to the larger firms. The larger firm’s small price increases

attributable to this ETS would not be likely to create an actionable competitive advantage

for this group of smaller businesses. The second group of businesses are those closer in

size to the 100-employee cutoff. If the marginal price increases did actually cause some

of the larger firms to fail and the slightly smaller firms to take their place, the industry

itself would not suffer a massive dislocation or be imperiled. And, of course, if all of the

firms in an industry are large employers with 100 or more employees, no competitive

disadvantage from within the industry would exist (even hypothetically), and there would

be no question that they could cover the cost of ETS by raising prices to customers

accordingly.
 Although the preceding discussion demonstrates that the ETS is economically

feasible, OSHA has provided an additional examination of each of the NAICS that have

crossed the profit screen (again noting that none of these failed the revenue screen):

The eight NAICS industries with positive profit ratios but profit rates below 1 percent

1. NAICS 221118 – Other Electric Power Generation, 23.97 percent

This U.S. industry comprises establishments primarily engaged in operating

electric power generation facilities (except hydroelectric, fossil fuel, nuclear, solar, wind,

geothermal, biomass). These facilities convert other forms of energy, such as tidal power,

into electric energy. The electric energy produced in these establishments is provided to

electric power transmission systems or to electric power distribution systems.

Using tides to generate power is not yet economically viable, according to one

source, because “[t]otal availability of tidal power is restricted by its relatively high cost

and limited number of sites having high flow velocities and tidal ranges,” although “with

[] recent advancements in tidal technologies, the total availability of tidal power in terms

of turbine technology as well as design may be higher than before, and the economic

costs may be reduced significantly to competitive levels.” In support, in the same article,

“recent reports state that the UK, which has the largest tidal and wave resource in Europe,

is capable of harnessing up to 153GW of tidal power capacity with the help of three types

of technologies and thus meeting 20% of current UK electricity demand and reducing

carbon emissions. Hence it is evident that wave and tidal energy could contribute more to

the increasing electricity demands across the globe.”65

At the time OSHA obtained the most recent NAICS data, there were 7 affected

entities in this NAICS industry. The entities in this NAICS industry include firms like

Berkshire Hathaway Energy Company, (with annual sales of $19.8 billion, whose

“portfolio consists of locally managed business that share a vision for a secure and

65 See Walker, January 22, 2013

sustainable energy future”); Dominion Energy (with annual sales of $13.4 billion); and

other leading firms in this industry including some of the largest power generation

companies in the US (See NAICS Association, 2018a; NAICS Association 2018d; and

NAICS Association 2018e).

As this NAICS industry is not yet viable, (in the United States, at least), it is to be

expected that revenues and profits would be low. In fact, OSHA believes the best way to

view this industry is as a series of incredibly well-funded start-up companies during the

investment phase of the business, where short-term losses are expected and offset with

the anticipation of enormous revenue growth potential (in an acknowledged very limited

energy market.) Given these factors, OSHA’s typical revenue and profit screen are a

poor predictor of future viability with respect to this NAICS industry (although, as

pointed out, this NAICS industry, like all other NAICS industries, falls well below the

revenue screen threshold). The estimated cost of this ETS per firm is $866 in this NAICS

industry, which equals about 11 cents per hundred dollars of revenue over a limited six-

month duration. OSHA concludes that this industry will be able to withstand this small

cost in order to keep its workers protected during the pandemic.

2. NAICS 488119 – Other Airport Operations, 18.41 percent66

The services this industry offers are integrated into a particular geographic

location and entail specific tasks, such as parking and baggage handling services, that

must be done to ensure the proper functioning of airports, thus negating the potential for

substitution during the 6 month period that OSHA is assuming the ETS will be in effect

for economic purposes. In addition, because these are services that need to be done in

particular domestic locations (i.e., airports), there is no risk of international competition.

66This U.S. industry comprises establishments primarily engaged in (1) operating international, national, or
regional airports, or public flying fields or (2) supporting airport operations, such as rental of hangar space,
and providing baggage handling and/or cargo handling services.
 3. NAICS 488410 – Motor Vehicle Towing, 15.75 percent67

The actual cost impacts on this industry are likely significantly overstated to the

extent that most employees performing towing services ride alone in their trucks and their

services do not typically require exposure to others. In the event that individual large

towing firms are concerned about economic impacts, it would not be difficult to structure

their employee interactions with the company and customers to take advantage of the

scope restrictions. Moreover, the primary services this industry offers involve the use of

specialized vehicles designed uniquely for towing, thus lowering the risk of

substitution. In addition, because these services are geographically based, there is no risk

of international competition.

4. NAICS 488490 – Other Support Activities for Road Transportation, 14.32

percent68

This industry offers services that must be done to ensure proper operation of

roadways (for example, bridge, tunnel, and highway operations, pilot car services (i.e.,

wide load warning services), driving services (e.g., automobile, truck delivery), and truck

or weighing station operations), thus negating the potential for substitution. In addition,

because these services need to be done in particular domestic locations (i.e., roadways),

there is no risk of international competition.

5. NAICS 713920 – Skiing Facilities, 13.16 percent69

67 This industry comprises establishments primarily engaged in towing light or heavy motor vehicles, both
local and long-distance. These establishments may provide incidental services, such as storage and
emergency road repair services.
68 This industry comprises establishments primarily engaged in providing services (except motor vehicle

towing) to road network users.

69This industry comprises establishments engaged in (1) operating downhill, cross country, or related
skiing areas and/or (2) operating equipment, such as ski lifts and tows. These establishments often provide
food and beverage services, equipment rental services, and ski instruction services. Four season resorts
without accommodations are included in this industry.
 This industry caters to a wealthy clientele who ensure an inelastic demand easily

capable of absorbing any fractional increases attributable to this ETS.70. In addition,

skiing is done outdoors, which will incentivize clientele to continue engaging in this

particular activity in lieu of indoor substitutions, during the pandemic. Finally, there is

little to no risk of international competition from foreign ski resorts because the added

and substantial costs of international travel outweigh the costs associated with marginally

higher prices resulting from the ETS.

6. NAICS 713940 – Fitness and Recreational Sports Centers, 12.33 percent71

As these settings are generally located close to where clients live or work, there is

no risk of international competition. Some of the largest employers in this industry have

already responded to customer feedback by not only requiring employees to be

vaccinated, but also members.72 This suggests both that the costs estimates attributed to

the ETS are overstated for these employers because higher levels of compliance may

have already occurred than projected in OSHA’s analysis, and that the ETS requirements

reflect more of an industry trend than a threat to the existence of the industry.

7. NAICS 713120 – Amusement Arcades, 11.18 percent73

This industry caters to a select clientele who have chosen to engage in leisure

activities in the unique settings offered by the industry, thus negating the likelihood for

70See Brown, January 19, 2017, “[o]f the 9.4 million skiers in the U.S., more than half earn a salary higher
than $100,000. For some context, only 20 percent of American households have a combined income of
$100K….”)
71This industry comprises establishments primarily engaged in operating fitness and recreational sports
facilities featuring exercise and other active physical fitness conditioning or recreational sports activities,
such as swimming, skating, or racquet sports.

See Jackson, August 2, 2021 “Equinox also noted in the press release that ‘an overwhelming majority of
72

members’ have expressed support for a vaccination requirement for entry to Equinox clubs.”
73This industry comprises establishments primarily engaged in operating amusement (except gambling,
billiard, or pool) arcades and parlors.
substitution. In addition, because these settings are localized, there is no risk of

international competition.

8. NAICS 488320 – Marine Cargo Handling, 10.03 percent74

The services this industry offers are integrated into a particular location and entail

specific tasks, such as loading and unloading services at ports and harbors, longshoremen

services, marine cargo handling services, ship hold cleaning services, and stevedoring

services, that must be done to ensure the proper movement of cargo off of and onto ships,

thus negating the potential for substitution. In addition, because these are services that

need to be done in particular domestic locations (e.g., docks), there is no risk of

international competition.

As with towing, the actual cost impacts on this industry are likely significantly

overstated to the extent that some of the employees may be able to perform their work

exclusively outdoors.

The Fourteen NAICS Industries with Negative Profit Ratios

1. Air Transportation75

NAICS 481111 (Scheduled Passenger Air Transportation), NAICS 481112

(Scheduled Freight Air Transportation), NAICS 481211 (Nonscheduled Chartered

74This industry comprises establishments primarily engaged in providing stevedoring and other marine
cargo handling services (except warehousing).
75 NAICS 481111 (Scheduled Passenger Air Transportation) provides air transportation of passengers or
passengers and freight over regular routes and on regular schedules, including commuter and helicopter
carriers (except scenic and sightseeing). NAICS 481112 (Scheduled Freight Air Transportation) provides
air transportation of cargo without transporting passengers over regular routes and on regular schedules,
including scheduled air transportation of mail on a contract basis. NAICS 481211 (Nonscheduled
Chartered Passenger Air Transportation) provides air transportation of passengers or passengers and cargo
with no regular routes and regular schedules. NAICS 481212 (Nonscheduled Chartered Freight Air
Transportation) provides air transportation of cargo without transporting passengers with no regular routes
and regular schedules. NAICS 481219 (Other Nonscheduled Air Transportation) provides air transportation
with no regular routes and regular schedules (except nonscheduled chartered passenger and/or cargo air
transportation). These establishments provide a variety of specialty air transportation or flying services
based on individual customer needs using general purpose aircraft.
Passenger Air Transportation), NAICS 481212 (Nonscheduled Chartered Freight Air

Transportation), NAICS 481219 (Other Nonscheduled Air Transportation).

This group of NAICS industries is comprised of U.S. industries that primarily

engage in providing air transportation. There is little to no risk of substitution for this

group of NAICS industries. Air transportation provides unique and important benefits

that cannot be substituted via other forms of transportation (e.g., rail, freight, bus). (See

ATAG, September 2005). To this end, air transportation is often the speediest means of

transporting passengers and cargo, giving it a unique purpose that cannot be met by other

forms of transport. It should be noted that the five NAICS in this group of industries are

the only NAICS in NAICS 4811 (Scheduled Air Transportation) and 4812

(Nonscheduled Air Transportation). The other industries in NAICS 48 (Transportation)

do not provide air transportation (See NAICS Association, 2018b). This further reduces

the risk of substitution, as all five NAICS at issue have a negative profit ratio and

therefore face similar challenges that appear to be endemic to air transportation. Firms in

this industry that have been able to weather the pandemic this long are typically highly

capitalized or have access to loans, so it is highly likely that they could also weather the

temporary marginal costs of OSHA’s ETS.

There is also no risk of international competition with respect to this group of

NAICS industries because any workers, whether they work for an international company

or not, who are in the US, are subject to US laws, including the ETS, and foreign air

carriers will need to follow the ETS for those workers. In addition, OSHA suspects that

any smaller foreign air carriers will not have an incentive to expand their routes

significantly or change their routes to domestic US routes to take advantage of the 100-

employee cutoff in the ETS in the 6-months the ETS is assumed to be in effect.
 2. Telecommunications76

NAICS 517311 (Wired Telecommunications Carriers), NAICS 517312 (Wireless

Telecommunications Carriers (except Satellite), NAICS 517410 (Satellite

Telecommunications), NAICS 517911 (Telecommunications Resellers), NAICS 517919

(All Other Telecommunications).

This group of NAICS industries is entirely comprised of U.S. industries, except

for NAICS 517410 (Satellite Telecommunications). All of these industries provide

specialized unique services in the telecommunications industry that require specialized

unique knowledge and are thus resistant to substitution. While it is perhaps possible that

different forms of telecommunications might be substituted for one another (e.g., the

substitution of wired telecommunications carriers for wireless telecommunications

carriers), the reality is that these different forms exist separately and feed different

markets and customer needs that are independent of the ETS. Moreover, the five NAICS

in this group of industries are the only NAICS in NAICS 5173 (Wired and Wireless

76 NAICS 517311 (Wired Telecommunications Carriers) comprises establishments primarily engaged in

operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for
the transmission of voice, data, text, sound, and video using wired telecommunications networks.
Establishments in this industry use the wired telecommunications network facilities that they operate to
provide a variety of services, such as wired telephony services, including VoIP services; wired (cable)
audio and video programming distribution; wired broadband Internet services; and, by exception,
establishments providing satellite television distribution services using facilities and infrastructure that they
operate are included in this industry. NAICS 517312 (Wireless Telecommunications Carriers (except
Satellite)) comprises establishments primarily engaged in operating and maintaining switching and
transmission facilities to provide communications via the airwaves. Establishments in this industry have
spectrum licenses and provide services using that spectrum, such as cellular phone services, paging
services, wireless Internet access, and wireless video services. NAICS 517410 (Satellite
Telecommunications) comprises establishments primarily engaged in providing telecommunications
services to other establishments in the telecommunications and broadcasting industries by forwarding and
receiving communications signals via a system of satellites or reselling satellite telecommunications.
NAICS 517911 (Telecommunications Resellers) comprises establishments engaged in purchasing access
and network capacity from owners and operators of telecommunications networks and reselling wired and
wireless telecommunications services (except satellite) to businesses and households. Establishments in this
industry resell telecommunications; they do not operate transmission facilities and infrastructure. NAICS
517919 (All Other Telecommunications) comprises establishments primarily engaged in providing
specialized telecommunications services, such as satellite tracking, communications telemetry, and radar
station operation, and also includes establishments primarily engaged in providing satellite terminal stations
and associated facilities connected with one or more terrestrial systems and capable of transmitting
telecommunications to, and receiving telecommunications from, satellite systems, as well as establishments
providing Internet services or Voice over Internet protocol (VoIP) services via client-supplied
telecommunications connections.
Telecommunications Carriers), NAICS 5174 (Satellite Telecommunications), and NAICS

5179 (Other Telecommunications). The other industries in NAICS 51 (Information) are

not engaged in telecommunications (NAICS Association, 2018c). This further reduces

the risk of one industry substituting for the others, as all five NAICS at issue have a

negative profit ratio and therefore face similar challenges that appear to be endemic to

telecommunications.

Moreover, three of the five NAICS industries in this group (NAICS 517311,

517312, 517410) operate or control the infrastructure needed for engaging in the

particular type of telecommunications in which those industries engage. This not only

fully negates the risk of substitution, but also negates the risk of international competition

for these industries.

The other two industries in the group apparently do not operate or control the

infrastructure needed for telecommunications. However, the telecommunications

industry faces strict state and federal licensing requirements, which severely limit the risk

of competition both internationally and from smaller firms seeking to take advantage of

the ETS’s 100-employee cutoff. (See FCC, 2014; FCC, October 12, 2021a; FCC, October

12, 2021b; Caltrans, October 12, 2021; and UTC, October 12, 2021).

3. Car and Equipment Rental77

77 NAICS 532111 (Passenger Car Rental) comprises establishments primarily engaged in renting passenger
cars without drivers, generally for short periods of time. NAICS 532112 (Passenger Car Leasing)
comprises establishments primarily engaged in leasing passenger cars without drivers, generally for long
periods of time. NAICS 532120 (Truck, Utility Trailer, and RV (Recreational Vehicle) Rental and Leasing
comprises establishments primarily engaged in renting or leasing, without drivers, one or more of the
following: trucks, truck tractors, buses, semi-trailers, utility trailers, or RVs (recreational vehicles). NAICS
532310 (General Rental Centers) comprises establishments primarily engaged in renting a range of
consumer, commercial, and industrial equipment. Establishments in this industry typically operate from
conveniently located facilities where they maintain inventories of goods and equipment that they rent for
short periods of time. The type of equipment that establishments in this industry provide often includes, but
is not limited to: audio visual equipment, contractors' and builders' tools and equipment, home repair tools,
lawn and garden equipment, moving equipment and supplies, and party and banquet equipment and
supplies.
 NAICS 532111 (Passenger Car Rental), NAICS 532112 (Passenger Car Leasing),

NAICS 532120 (Truck, Utility Trailer), and RV (Recreational Vehicle) Rental and

Leasing) NAICS 532310 (General Rental Centers).

This group of industries rent motor vehicles (NAICS 532111, 532112, 532120) or

equipment (NAICS 532310), for example, audio visual equipment, contractors' and

builders' tools and equipment, home repair tools, lawn and garden equipment, moving

equipment and supplies, and party and banquet equipment and supplies, to individuals

and businesses, for personal and professional use. There is no risk of substitution with

respect to these industries, as these industries rent specific items to those who want to use

them. There is also no risk of foreign competition with respect to these industries, as

consumers and businesses rent and pick up vehicles, as well as the type of equipment

offered for rent by NAICS 532310, from specific locations, including car rental and other

rental centers.

These industries have not been hard hit by the pandemic, as many consumers have

turned from group travel to individual transportation. For example, RV rentals and

leasing has soared during the pandemic, which is not reflected in the pre-pandemic profit

and revenue data available for this analysis.78

References:

Air Transport Action Group (ATAG). (2005, September). The economic & social
benefits of air transport.
https://www.icao.int/meetings/wrdss2011/documents/jointworkshop2005/atag_socialbene
fitsairtransport.pdf. (ATAG, September 2005)

Beale HBR. (2003). Financial Data Sources. Microeconomic Applications Inc. (Beale
Report, 2003)

Brown J. (2017, January 19). Bring More Diversity to Skiing.

https://www.powder.com/stories/opinion/extend-the-family/. (Brown, January 19, 2017)

Caltrans. (2021, October 12). Wireless Licensing Program, California Department of

Transportation. https://dot.ca.gov/programs/right-of-way/wireless-licensing-program.
(Caltrans, October 12, 2021)

78 See Park, January 23, 2021

Federal Communications Commission (FCC). (2021, October 12a) Licensing.
https://www.fcc.gov/licensing-databases/licensing. (FCC, October 12, 2021a)

Federal Communications Commission (FCC). (2021, October 12b) Satellite.

https://www.fcc.gov/general/satellite. (FCC, October 12, 2021b)

Groenewold M et al., (2020, July 10). Increases in Health-Related Workplace

Absenteeism Among Workers in Essential Critical Infrastructure Occupations During the
COVID-19 Pandemic — United States, March–April 2020. Centers for Disease Control
and Prevention MMWR Vol. 69, No. 27. (Groenewold et al., July 10, 2020)

Internal Revenue Service (IRS). (2013). 2013 Corporation Source Book.

https://www.irs.gov/statistics/soi-tax-stats-corporation-source-book-us-total-and-sectors-
listing. (IRS, 2013)

Jackson S. (2021, August 2). Gyms like Equinox and SoulCycle will soon require
members to show proof of vaccination to use their clubs and studios.
https://www.businessinsider.com/equinox-soulcycle-will-require-covid-19-vaccines-for-
members-staff-2021-8. (Jackson, August 2, 2021)

NAICS Association. (2018a). NAICS Codes Description, 2018: 221118 – Other Electric
Power Generation. https://www.naics.com/naics-code-description/?code=221118. Last
accessed October 12, 2021. (NAICS Association, 2018a)

NAICS Association. (2018b). Six Digit NAICS Codes and Titles, 2018: Codes 48-49.
https://www.naics.com/six-digit-naics/?code=48-49. Last accessed October 12, 2021.
(NAICS Association, 2018b)

NAICS Association. (2018c). Six Digit NAICS Codes and Titles, 2018: Code 51.
https://www.naics.com/six-digit-naics/?code=51. Last accessed October 12, 2021.
(NAICS Association, 2018c)

NAICS Association. (2018d). NAICS Profile Page, 2018: Berkshire Hathaway Energy
Co. https://www.naics.com/company-profile-page/?co=4973. Last accessed October 12,
2021. (NAICS Association, 2018d)

NAICS Association. (2018e). NAICS Profile Page, 2018: Dominion Energy Inc.
https://www.naics.com/company-profile-page/?co=11715. Last accessed October 12,
2021. (NAICS Association, 2018e)

Occupational Safety and Health Administration (OSHA). (2016, March 24). Final
Economic and Regulatory Flexibility Analysis for OSHA's Rule on Occupational
Exposure to Respirable Crystalline Silica, Chapter VI, pp. VI-20. Docket No. OSHA-
2010-0034-4247. (OSHA, March 24, 2016)

Occupational Safety and Health Administration (OSHA). (2021a, October). Analytical

Spreadsheets in Support of the COVID-19 Vaccination and Testing ETS. (OSHA,
October 2021a)
Park S. (2021, January 23). RV sales soar during coronavirus pandemic.
https://www.foxbusiness.com/lifestyle/rv-sales-soar-during-pandemic-travel-road-trip.
(Park, January 23, 2021)

U.S. Census Bureau. (2021, October 8a). Scientific Integrity.

https://www.census.gov/about/policies/quality/scientific_integrity.html. (US Census
Bureau, October 8, 2021a)

U.S. Census Bureau. (2021, October 8b). Statement of Commitment to Scientific

Integrity by Principal Statistical Agencies.
https://www.census.gov/content/dam/Census/about/about-the-
bureau/policies_and_notices/scientificintegrity/Scientific_Integrity_Statement_of_the_Pri
ncipal_Statistical_Agencies.pdf. (US Census Bureau, October 8, 2021b)

Walker C. (2013, January 22). Is Tidal Power a Viable Source of Energy?

https://www.azocleantech.com/article.aspx?ArticleID=350. (Walker, January 22, 2013)

Washington Utilities and Transportation Commission (UTC). (2021, October 12).

Eligible Telecommunications Carriers. https://www.utc.wa.gov/regulated-
industries/utilities/telecommunications/federal-universal-service-funds/eligible-
telecommunications-carriers. (UTC, October 12, 2021)

V. 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 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.” Although no general notice of proposed rulemaking was

published, the agency has analyzed the ETS's economic feasibility and health impacts in

Section IV.B. of this preamble (Economic Analysis) and Health Impacts Appendix

(OSHA, October 2021c).

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. Given the expedited

nature of issuing the ETS, it was not practicable for OSHA to consult and incorporate

non-federal input prior to promulgation of the standard. OSHA commits to meaningful

consultation with tribal representatives after publication of the ETS and during the

comment period before finalizing any permanent standard. Such consultation will be

consistent with the Administrative Procedure Act.

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. As a result of this review, 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. Although the ETS

contains testing requirements, and test kits and supplies can generate some additional

materials that will enter the waste stream, the impact of this ETS will be minimal. As

discussed in more detail in Technological Feasibility (Section IV.A. of this preamble),

there is already a surplus of available tests, and projected production of COVID-19 tests

will be more than sufficient to meet demands for testing created as a result of the rule.

Therefore, tests used for purposes of or for compliance with this ETS are not being

produced as a result of this standard, and the standard will not generate significant new

streams of waste beyond what would be generated in the absence of the standard.

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 workers' lives and health (see Grave Danger

and Need for the ETS, both in Section III. 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 under section 6(c) of the Act (29

U.S.C. 655(c)), 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)(B). As explained in more detail

in Grave Danger and Need for the ETS (both in Section III. of this preamble), this finding

is based on the critical importance of implementing the requirements in this ETS,

including the recordkeeping and reporting provisions, as soon as possible to address the

grave danger that COVID-19 presents to workers.

As noted above, the ETS is required by the OSH Act to take immediate effect

upon publication. 29 U.S.C. 655(c)(1). For that reason, and the underlying public health

emergency that prompted this ETS as discussed above, 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). OSHA notes, however, that

OSHA does not require compliance with any provision of the ETS within the first 30

days after it becomes effective.

G. Consensus Standards

OSHA must consider adopting an existing national consensus standard that differs

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 considered incorporation of ASTM F3502–21 in this ETS, as required.

However, the agency has insufficient evidence to make a general finding of feasibility at

this time. The agency notes that face coverings that meet ASTM F3502-21 criteria also

meet the definition of “face coverings” in this ETS (see the discussion of this issue in

Summary and Explanation, Section VI. of this preamble). The agency has asked

questions about this topic to gather additional information.

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 (April 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 provide some protection for

children.

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 (August 10, 1999). The

Executive Order generally allows Federal agencies to preempt State law only as provided

by Congress or where State law conflicts with Federal law. 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. As discussed

below, State Plans must submit to Federal OSHA for approval, standards that differ from

Federal standards addressing the same issues, in order for such standards to become part

of the OSHA-approved State Plan. 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 III.A. of this

preamble), employees face a grave danger from exposure to COVID-19 in the workplace.

Employees across the country face the danger of exposure to COVID-19 at work, and as

explained in Need for the ETS (Section III.B. of this preamble), a national standard is

needed to protect workers from the grave danger of COVID-19 by strongly encouraging

vaccination and limiting the presence of COVID-19 positive workers in the workplace

through testing and to ensure that a clear and consistent baseline approach is taken across

the country 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 employees from the risks of exposure to COVID-19.

In States without OSHA-approved State Plans, Congress provides for OSHA

standards to preempt State occupational safety and health standards for issues addressed

by the Federal standards. In these States, this ETS limits State policy options in the same

manner as every standard promulgated by the agency. Furthermore, as discussed in the

Summary and Explanation for Purpose, nothing in the ETS is intended to limit generally

applicable public health measures instituted by state or local governments that go beyond,

and are not inconsistent with, the requirements of the ETS. (See Summary and

Explanation for Purpose, Section VI.A. of this preamble); Gade v. National Solid Wastes

Management Ass’n, 505 U.S. 88, 107 (1992). 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.

As discussed in the Summary and Explanation for Purpose in this preamble,

OSHA has included a provision that states the purpose of this ETS, as well as OSHA’s
intent to preempt all inconsistent State and local requirements that relate to the issues

addressed by this ETS. (See section 1910.501(a); Summary and Explanation for Purpose,

Section VI.A. of this preamble). This includes State and local requirements banning or

limiting the authority of employers to require vaccination, face covering, or testing. As

discussed in that section, such State and local bans would be preempted by this ETS,

even in States with OSHA-approved State Plans, because such bans are not approved by

federal OSHA as part of the State Plan and could not be approved, because such bans are

clearly not as effective – and, indeed, are contrary to – the federal ETS. See Indust. Truck

Ass’n v. Henry, 125 F.3d 1305, 1311 (9th Cir. 1997).

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). This ETS imposes

new requirements to protect workers across the nation from COVID-19. Adoption of this

ETS, or an ETS that is at least as effective as this 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. As noted above in Federalism

(Section V.I. of this preamble), this ETS preempts all State and local requirements,

including in States with State Plans, that ban or limit the authority of employers to require

vaccination, face covering, or testing. (See also the Summary and Explanation for

Purpose, Section VI.A. of this preamble). As with all non-identical State Plan standards,

OSHA will review any comparable State standards to determine whether they are at least

as effective as this ETS. A State Plan standard that prohibits employers from requiring
vaccination would not be at least as effective as this ETS because OSHA has recognized

in this ETS that vaccination is the most protective policy choice for employers to adopt to

protect their workplaces.

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.

K. Paperwork Reduction Act

I. Overview.

The Emergency Temporary Standard (ETS) for COVID-19 Vaccination and

Testing 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)). OSHA has

determined an ETS is necessary to protect workers from the grave danger posed by

COVID-19 and is issuing an ETS that amends 29 CFR 1910 subpart U to provide

COVID-19 protections to workers of employers with 100 or more employees. Section

1910.501 contains collections of information necessary to effectuate the purpose of the

ETS. The collections of information appear in paragraphs 1910.501(d), (e)(2), (e)(4),

(f)(1), (g)(1), (g)(4), (h)(1), (j), (k)(1), (k)(2), (l)(1), and (l)(2). For a more comprehensive

discussion of these provisions, see the sectional analysis earlier in this preamble. These
information collections are applied by cross reference to other industries in regulations 29

CFR 1915.1501 (Shipyard Employment), 1917.31 (Marine Terminals), 1918.110

(Longshoring), 1926.58 (Construction), 1928.21 (Agriculture).79

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). Notwithstanding any other provision of law, if a

collection of information does not display a currently valid control number, an employer

shall not be subject to penalty for failing to comply with the collection of information (44

U.S.C. 3512). The PRA has special provisions for emergency situations that are

applicable to this ETS. OMB may authorize a collection of information without regard to

the normal clearance procedures if either (a) 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 (b) the use of

normal clearance procedures is reasonably likely to cause a statutory or court ordered

deadline to be missed (44 U.S.C. 3507(j) and 5 CFR 1320.13). Because COVID-19

presents an ongoing public health threat to workers and American businesses, OSHA has

requested the use of these emergency procedures for this ETS. In accordance with 44

U.S.C. 3507(j)(1), OMB approved the request and assigned this ETS an OMB control

number that is valid for 180 days. Therefore, the information collection provisions

contained within this ETS will take effect at the same time as all other provisions.

II. Summary of Information Collection Requirements.

This information collection is summarized as follows.

79The ETS applies to agricultural establishments with 11 or more employees engaged on any day in hand-
labor occupations in the field and agricultural establishments that maintain a temporary labor camp,
regardless of how many employees are engaged on any day in hand-labor occupations in the field).
1. Title: COVID-19 Vaccination and Testing Emergency Temporary Standard (29

CFR 1910, subpart U; 1915, subpart Z; 1917, subpart B; 1918, subpart K; 1926,

subpart D; 1928, subpart B).

2. Type of Review: Emergency.

3. OMB Control Number: 1218-0278.

4. Affected Public: This rule applies to employers with a total of 100 or more

employees except where the workplace is covered under the Safer Federal

Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal

Contractors and Subcontractors; or in setting where the employee provides

healthcare services or healthcare support services that falls under the requirements

of 29 CFR 1910.502. This rule does not apply to employees of covered employers

who work from home, exclusively outdoors, or who do not report to a workplace

where other individuals such as coworkers or customers are present.

5. Description of the ICR. This ICR contains collections of information requirements

for employers with 100 or more employees. The employer must establish,

implement, and enforce a written mandatory vaccination policy that requires each

employee to be fully vaccinated against COVID-19 unless the employer

implements a policy that allows employees to choose between being fully

vaccinated or both tested and wearing a face covering. Employers must determine

employee vaccination status, and must require than any employees who are not

vaccinated be tested for COVID-19 at least once every 7 days. Employers must

provide specified information to employees regarding COVID-19 vaccine

efficacy, safety, and the benefits of being vaccinated, and must maintain a record

of the COVID-19 vaccination status, proof of vaccination, and copies of

employee COVID-19 test results, and the aggregate number of fully vaccinated
 employees at a workplace along with the total number of employees at that

workplace.

6. Number of respondents: 1,858,935.

7. Frequency: Varies.

8. Number of Responses: 205,262,803.

9. Estimated Burden Hours: 79,720,444.

10. Estimated Cost (Capital-operation and maintenance): $1,383,751,520.

These totals are explained and supported in the agency's Supporting Statement as

required by the PRA.

III. Request for Comment.

Although the ETS takes effect immediately, with implementation dates specified

in the Dates provision of this publication, it also serves as 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 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.

 Ways to minimize the compliance burden on employers, for example, by using

automated or other technological techniques for collecting and transmitting

information.

Please submit comments related to the Paperwork Act analysis to OSHA in the

PRA docket (Docket Number OSHA–2021-0008). Comments related to other parts of

the ETS should be submitted to the rulemaking docket (Docket Number OSHA-2021-

0007). OSHA will accept comments for 60 days on the information collection aspects of

the rule. For instructions on submitting these comments to the rulemaking and/or PRA

docket, see the sections of this Federal Register notice titled DATES and ADDRESSES.

References:

Occupational Safety and Health Administration (OSHA). (2021c, October). Health

Impacts of the COVID-19 Vaccination and Testing ETS. (OSHA, October 2021c)

VI. Summary and Explanation

A. Purpose

The ETS includes a sentence that states the purpose of the rule. The first part of

the sentence in the paragraph indicates that the standard addresses the grave danger of

COVID-19 in the workplace by establishing workplace vaccination, vaccination

verification, face covering and testing requirements.

The second part of the sentence addresses the preemption of State and local laws,

regulations, executive orders, and other requirements, by this Federal standard. It

indicates OSHA’s intention that the ETS address comprehensively the occupational

safety and health issues of vaccination, wearing face coverings, and testing for COVID-

19, and thus that the standard is intended to preempt States, and political subdivisions of

States, from adopting and enforcing workplace requirements relating to these issues,

except under the authority of a Federally-approved State Plan. In particular, OSHA

intends to preempt any State or local requirements that ban or limit an employer’s

authority to require vaccination, face covering, or testing.

Preemption of such State and local requirements derives from section 18 of OSH

Act and general principles of conflict preemption. See Gade v. National Solid Wastes
Management Ass'n, 505 U.S. 88 (1992).80 Gade clarified two important principles. First,

section 18 expresses Congress’ intent to preempt State workplace safety or health laws

relating to issues on which Federal OSHA has promulgated occupational safety and

health standards. Under section 18, a State can avoid preemption of such laws only if it

submits and receives Federal approval for a State Plan for the development and

enforcement of standards. OSHA-approved State Plans operate under authority of State

law and must adopt occupational safety and health standards which, among other things,

must be at least as effective in providing safe and healthful employment and places of

employment as Federal standards. 29 U.S.C. 667.

Second, State and local laws that do not constitute occupational safety or health

laws because they are “laws of general applicability” that regulate workers and

nonworkers alike are preempted only if they conflict with the federal standard. Laws of

general applicability that are consistent with the federal standard are not preempted.

Gade, 505 U.S. at 107.

While section 18 applies to every occupational safety and health standard that

OSHA promulgates, this ETS raises particular concerns because of the current landscape

of existing State and local requirements that may overlap with, or directly conflict with,

the requirements of this ETS. As discussed in Need for the ETS (Section III.B. of this

preamble), OSHA is adopting this ETS in response to an unprecedented health crisis that

has resulted in a global pandemic severely impacting the health and wellbeing of people

in the United States, and globally. This ETS is issued based on OSHA’s determination

that employees in the United States face a grave danger from workplace exposures to

SARS-CoV-2, that the ETS is necessary to protect those workers, and that the measures

80The Court held that the dual impact licensing statutes were preempted; however, no rationale
commanded a majority. A four-justice plurality found that supplementary State regulation is
impliedly preempted. Id. at 98-99. Justice Kennedy’s concurrence would have found express preemption
rather than implied preemption, Id. at 110-111, but otherwise agreed that “in the OSH statute Congress
intended to pre-empt supplementary state regulation.” Id. at 113.
for vaccination, vaccine verification, face coverings, and testing that this ETS requires

will help ensure that workers covered by the ETS are protected from severe illness and

death resulting from contracting COVID-19 in the workplace.

As explained in Need for the ETS (Section III.B. of this preamble), the lack of a

national standard on this hazard has led to disparate State and local requirements, and this

underscores the need for OSHA’s ETS to provide clear and consistent protection to

employees across the country. Over the past months, an increasing number of States have

passed laws or enacted other requirements banning workplace vaccination policies that

would mandate vaccination or require proof of vaccination status, thus prohibiting

employers operating in those jurisdictions from implementing this proven method of

protecting workers from the hazard of COVID-19 that is at the core of this ETS (see, e.g.,

Texas Executive Order GA-40, October 11, 2021; Montana H.B. 702, July 1, 2021;

Arkansas S.B. 739, October 4, 2021 and Arkansas H.B. 1977, October 1, 2021; AZ

Executive Order 2021-18, Aug. 16, 2021). While some States’ bans have focused on

preventing local governments from requiring their public employees to be vaccinated or

show proof of vaccination, the Texas, Montana, and Arkansas requirements apply to

private employers as well. Likewise, some States and localities have enacted

requirements that prohibit businesses, government offices, schools or other public spaces

from requiring that face coverings be worn (see, e.g., Florida Executive Order 21-102,

May 3, 2021; Texas Executive Order GA-34, March 2, 2021; Texas Executive Order GA-

36, May 18, 2021). State and local requirements that prohibit employers from

implementing employee vaccination mandates, or from requiring face coverings in

workplaces, serve as a barrier to OSHA’s implementation of this ETS, and to the

protection of America’s workforce from this deadly virus.

As discussed below, state restrictions of this kind are clearly preempted whether

they take the form of direct workplace regulation or are part of a law of general
applicability because they relate to the issues addressed by this standard and conflict with

it. Gade, 505 U.S. at 99, 107. As is also discussed below, this is true even for State or

local requirements that may not prevent employers from compliance with the ETS, but

that prescribe or limit the employer’s ability to mandate vaccination for its workforce as

the employer’s chosen means of compliance. See Gade, 505 at 107; see also Geier v.

American Honda, 529 U.S. 861, 869, 875-886 (2000) (finding Department of

Transportation (DOT) regulations preempted a State tort action where the state action

“upset the careful regulatory scheme established by federal law” and placing weight on

DOT’s interpretation that such tort suit would be “an obstacle to the accomplishment and

execution” of Agency objectives). An employer’s choice to mandate vaccination is a

critical aspect of this ETS, and state laws that remove that choice conflict with it.

Thus, to ensure that the ETS supplants the existing State and local vaccination

bans and other requirements that could undercut its effectiveness, and to foreclose the

possibility of future bans, OSHA has clearly defined the issues addressed by this section

to encompass vaccination, face covering, and testing needed to protect against

transmission of COVID-19 to employees in the workplace. To avoid ambiguity, OSHA

has stated expressly that it intends this ETS to preempt all State and local workplace

requirements that “relate” to these issues, except pursuant to a State Plan. 29 U.S.C.

667(b).

The “unavoidable implication” of section 18 is that because OSHA has adopted

this ETS, States may no longer regulate these issues except with OSHA’s approval and

the authority of a Federally-approved State Plan. Gade, 505 U.S. at 99. As the Court

explained, section 18 preempts States without approved plans from adopting or enforcing

any laws that constitute, “in a direct, clear and substantial way regulation of worker

health and safety” relating to an issue addressed by an OSHA standard. Id. at 107.
 State and local requirements that ban or otherwise limit workplace vaccination,

face covering, or testing clearly “relate” to the occupational safety and health “issues”

that OSHA is regulating in this ETS. 29 U.S.C. 667(b). Such bans regulate key workplace

COVID-19 protections that are encompassed by this ETS “in a direct, clear and

substantial way.” Gade, 505 U.S. at 107. The direct effect of such bans is to prohibit

employers from requiring employees to implement measures, such as vaccination

requirements, face coverings, or testing. These workplace protective measures are

covered by, and, in many circumstances required by, this ETS. For example, vaccination

mandate bans directed at employers specifically bar them from requiring employee

vaccination requirements for the purposes of protecting their workforce. Prohibitions on

face covering mandates likewise directly prohibit individuals in positions of authority,

including employers, from requiring face covering use.

Although the expressly stated purposes for State and local requirements banning

or limiting employers from requiring vaccinations, face coverings, or testing may not be

occupational safety and health,81 this does not control their preemption under section 18

of the OSH Act. In assessing State and local requirements’ impact on a federal statutory

scheme, courts “have refused to rely solely on the legislature's professed purpose and

have looked as well to the effects of the law.” Gade, 505 U.S. at 105; see also, e.g.,

Perez v. Campbell, 402 U. S. 637, 651-652 (1971) (“[A]ny state legislation which

frustrates the full effectiveness of federal law is rendered invalid by the Supremacy

Clause”); Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 612 (1926) (pre-emption

analysis does not depend on whether federal and State laws "are aimed at distinct and

different evils" but whether they "operate upon the same object").

81 The express purposes of such requirements banning or limiting employers from requiring vaccination,
face coverings, or testing may often not relate to occupational safety and health. For example, Governor
Greg Abbott’s Texas face covering mandate ban in Executive Order GA-16, is based on alleged decreasing
COVID-19 rates and the need to alleviate “confusion,” (Texas Executive Order GA-36, May 18, 2021); the
stated purpose of Montana’s vaccination mandate ban is to address health care privacy interests (Montana
H.B. 702, July 1, 2021).
 That a State has articulated a purpose other than, or in addition to, workplace

health and safety would not divest the OSH Act of its preemptive force, because

preemption law looks to the effects as well as the purpose of a State law, and thus a dual-

impact State law cannot avoid OSH Act preemption simply because the regulation serves

several objectives. Gade, 505 U.S. at 107 (holding “a law directed at workplace safety is

not saved from pre-emption simply because the State can demonstrate some additional

effect outside of the workplace” and “[t]hat such law may also have a nonoccupational

impact does not render it any less of an occupational standard for purposes of pre-

emption analysis”). Thus, to the extent that the stated purpose of a requirement that bans

or limits employers from requiring vaccinations, face coverings, or testing is something

other than, or in addition to, occupational health, such laws, which have a specific and

direct impact on worker health, are nevertheless preempted.

Further, section 18 preempts even “nonconflicting” State and local occupational

safety and health requirements relating to the issues addressed by this standard. Gade,

505 U.S. at 98-99, 103; see id. at 100 (“state laws regulating the same issue as federal

laws are not saved, even if they merely supplement the federal standard”). This is because

OSHA “’pre-empts the field’ for any nonapproved State law regulating the same safety

and health issue.” See Gade, 505 U.S. at 104, n. 2, citing English v. General Electric.

Co., 496 U.S. 72, 79-80, n.5 (“[F]ield preemption may be understood as a species of

conflict pre-emption: A State law that falls within a pre-empted field conflicts with

Congress’ intent (either express or plainly implied) to exclude state regulation”); see also

id. at 105 (discussing effect of field preemption). See generally Geier, 529 U.S. at 869,

875-886 (finding State law preemption where it “upset the careful regulatory scheme

established by federal law”); Williamson v. Mazda Motor of Am., Inc., 562 U.S. 323, 330-

36 (2011) (affirming the conflict pre-emption principle that “a state law that stands as an

obstacle to the accomplishment and execution of the full purposes and objectives of a
federal law is pre-empted” and finding preemption where State law interfered with

“significant objective” of the federal regulation).

For example, the ETS would preempt State or local governments from dictating

that employers adopt a scheme of testing and face coverings that complies with

1910.501(g) and (i) of the ETS, but that bars employers from electing the preferred

vaccine mandate alternative in paragraph (d), because this interferes with OSHA’s

significant regulatory objectives and its preemption of the field.82 (See Need for the ETS

(Section III.B. of this preamble) discussing that vaccination is the preferred compliance

option under this rule because it is the most effective method of protecting workers from

COVID-19). Likewise, the ETS would preempt such State or local occupational

requirements, even to the extent that they may regulate employers with fewer than 100

employees, notwithstanding that the requirements in this ETS only apply to employers

with more than 100 employees.

Case law is instructive on this point. In Gade, the Supreme Court found

regulations implementing a State statute that required training for workers handling

hazardous waste that went beyond, but did not conflict with, OSHA’s hazardous waste

training requirements to be preempted by the OSHA requirements. Id. Likewise, in

Industrial Truck Association Incorporated v. Henry, the Ninth Circuit found that OSHA’s

hazard communication standard preempted California’s Hazard Communication

regulations that were not submitted to OSHA for approval through its State Plan, even to

the extent that California’s Hazard Communication rule regulated manufacturers and

distributers who were excluded from coverage under federal OSHA’s rule. Indust. Truck

Ass’n v. Henry, 125 F.3d 1305, 1311-14 (9th Cir. 1997). In the same way, the ETS

82OSHA is aware that some States have adopted or are considering adopting such requirements, which this
ETS would preempt (see, e.g., Arkansas S.B. 739, October 4, 2021 and Arkansas H.B. 1977, October 1,
2021, which Arkansas Governor Asa Hutchinson allowed to became law without his signature, and which
require employers in Arkansas to allow employees to opt out of vaccination for purposes of complying with
federal vaccination requirements; see also Governor Hutchinson, October 13, 2021; Marr, October 7, 2021
(describing the Arkansas legislation and noting that other states may contemplate similar legislation)).
preempts all State and local requirements that bar or limit the ability of an employer to

require workplace vaccination, testing, and face coverings to protected employees against

COVID-19 in any respect, since OSHA has occupied the entire field of regulation on

these issues.

OSHA’s definition of the “issue” in this rule should be afforded weight, since the

OSH Act vests OSHA with standard-setting responsibility and, therefore, the authority to

determine which “issues” to address with occupational safety and health standards. See

Indust. Truck, 125 F.3d at 1311 (relying on OSHA’s regulation and statements in the

preamble to identify the relevant “issue” for preemption purposes in OSHA’s Hazard

Communication standard).

Importantly, although OSHA’s stated intention is to preempt conflicting State and

local requirements relating to the issues addressed by this standard, OSHA recognizes

that the OSH Act does not allow, and OSHA does not intend, for the ETS to preempt

non-conflicting State or local requirements of general applicability. In Gade, the Supreme

Court qualified its ruling by saving from preemption non-conflicting State and local

“laws of general applicability (such as laws regarding traffic safety or fire safety) that do

not conflict with OSHA standards and that regulate the conduct of workers and

nonworkers alike.” Gade, 505 U.S. at 107. The Majority reasoned that, “[a]lthough some

laws of general applicability may have a ‘direct and substantial’ effect on worker safety,

they cannot fairly be characterized as ‘occupational’ standards, because they regulate

workers simply as members of the general public.” Id.

During the pandemic, many States and municipal governments have adopted

requirements intended to protect public health by helping to prevent the spread of

COVID-19 in public spaces. These have included requirements mandating face coverings

in indoor public spaces, including businesses, government buildings, and schools (see,

e.g., Baltimore City Health Department, August 10, 2021; Illinois Executive Order 2021-
20, August 26, 2021; Hawai’i Emergency Proclamation, October 1, 2021). In addition, in

recent months, some States and municipal governments have adopted requirements

mandating that members of the public provide proof of vaccination or recent COVID-19

testing in order to enter restaurants, bars, or other businesses or public spaces (see, e.g.,

NYC Emergency Executive Order 225, August 16, 2021 (mandating COVID-19

vaccination for most individuals for indoor entertainment, recreation, dining and fitness

settings)). Requirements such as these apply to “workers and nonworkers alike” and

“regulate workers simply as member of the general public” and are accordingly not

preempted. Gade, 505 U.S.at 107.

Based on OSHA’s observations and experience during the past year and a half

that the pandemic has been ongoing, OSHA is confident that protective State and local

regulations of general applicability that mandate face coverings or vaccination will

complement, rather than interfere with OSHA’s enforcement of the ETS, and also does

not intend to preempt such requirements. Indeed, OSHA believes that such measures

have significantly reduced the harmful effects of the pandemic and total fatalities. See

Steel Institute of NY v. The City of NY, 716 F.3d 31, 38 (affording some weight to

OSHA’s view that municipal regulations governing construction cranes did not interfere

with OSHA’s regulatory scheme in its crane standards and ultimately adopted OSHA’s

view in finding these municipal regulations were not preempted by OSHA crane

standards).83

83OSHA’s Cranes and Derricks in Construction rule directly discussed its expectations and intent regarding
the preemptive effect of the rule, including that it was not intended to preempt generally applicable
municipal regulations, such as building codes, which serve public safety purposes. Cranes and Derricks in
Construction, 75 FR 47,906, 48,128 (August 9, 2010). This rule also includes a provision that requires
employers to comply with State crane operator licensing requirements that meet the federal floor for crane
operator certification in the rule. 29 CFR 1926.1427(c)(1). OSHA has also indicated that its rule would not
preempt State or local requirements in other rulemakings. See e.g., 72 FR 7136, 7188 (Feb. 14, 2007)
(Preamble to OSHA's most recent electrical safety standard) (“State and local fire and building codes,
which are designed to protect a larger group of persons than employees,” are not preempted); 29 CFR
1910.134(e) (requiring compliance with State and local laws by requiring “a licensed health care
professional” to perform a medical evaluation of an employee's ability to use a respirator).
 In Steel Institute, the Second Circuit held that OSHA’s crane regulations did not

preempt New York City municipal regulations governing construction cranes, finding

that such regulations were requirements of general applicability, notwithstanding their

direct bearing on worker safety, because their primary purpose and effect was to preserve

the safety of the general public, and they regulated workers and nonworkers alike. Id. The

Steel Institute court noted the “strong presumption against preemption when states and

localities “exercise[ ] their police powers to protect the health and safety of their

citizens.” Id. at 36, citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996). The Second

Circuit was also influenced by the clear danger presented to the public by unsafe crane

operation. This is analogous to the situation here, because exposure to COVID-19 is a

hazard that directly impacts everyone. Thus, generally applicable State and local

mandates requiring face coverings or vaccination should not be preempted and should

remain in effect, notwithstanding this ETS.84

On the other hand, as noted above, this standard will preempt requirements that

conflict with it, regardless of whether the requirements are part of a law of general

applicability.85

The effect of the ETS on State law requirements in State Plan States works

somewhat differently. As previously noted, under section 18 of the OSH Act States that

wish to assume responsibility for the development and enforcement of “occupational

84In addition, some State and local governments have adopted vaccination mandates directed at State
and/or local government employees. The OSH Act and OSHA’s standards would not preempt such
requirements since State or local government employers and employees are exempt from OSHA coverage
under the OSH Act. 29 U.S.C. 652 (5) (defining employer to exclude “any State or political subdivision of
a State”). However, many State and local government employers in States with OSHA-approved State
Plans will be covered by State occupational safety and health requirements, and State Plans must adopt
requirements for State and local government employers, as well as covered private sector employers, that
are at least as effective as federal OSHA’s requirements; State Plans may also choose to adopt more
protective occupational safety and health requirements. 29 U.S.C. 667(c).
85As previously discussed, bans on mandating vaccinations or face coverings have not typically been
generally applicable, but even the least workplace-specific, most generally applied bans will not survive
preemption because they directly interfere with the ETS’s regulatory scheme.
safety and health standards relating to any occupational safety or health issue with respect

to which a Federal standard has been promulgated” may submit a State Plan to OSHA for

approval. Id. section 667(b); see also id. section 667(c) (describing requirements for

OSHA approval of State Plans on issues for which OSHA has adopted standards). There

are 22 States and territories that have OSHA-approved State Plans for private employers,

and 6 additional States and territories that have OSHA-approved State Plans for public

employers only.

Under section 18(c)(2) of the OSH Act, State Plans are required to adopt and

enforce occupational safety and health standards that are at least as effective as federal

OSHA’s requirements. Id. section 667(c)(2). In addition, the OSH Act requires that State

Plans must cover State and local government employees (including, e.g., State and local

school systems within the scope of this rule), even though federal OSHA does not have

coverage over such employees in States without OSHA-approved State Plans.

Once OSHA promulgates an ETS, OSHA’s regulations provide that those States

have “30 days after the date of promulgation of the Federal standard to adopt a State

emergency temporary standard,” or to demonstrate “that promulgation of an emergency

temporary standard is not necessary because the State standard is already the same or at

least as effective as the Federal standard change.” 29 CFR § 1953.5(b)(1). The new ETS

becomes part of the OSHA-approved State Plan through the State Plan’s submission to

OSHA documentation showing it adopted an identical ETS or a “Plan Change

Supplement” showing that it has adopted requirements that are “at least as effective” as

federal OSHA’s ETS. 29 CFR 1953.5(b)(3); 1953.4.

Even in States with OSHA-approved State Plans, any State law relating to an

occupational safety and health issue that OSHA regulates is preempted unless it is

submitted for OSHA’s approval as a supplement to the State Plan. Indust. Truck Ass’n,

125 F.3d at 1311 (“If a State wishes to regulate an issue of worker safety for which a
federal standard is in effect, its only option is to obtain the prior approval of the Secretary

of Labor . . . [and] [i]t would make the state plan approval requirement superfluous if a

state could pick and choose which occupational health and safety regulations to submit to

OSHA”). Thus, a State or local requirement banning or limiting employer vaccine

mandates would similarly be preempted because it has not been approved by federal

OSHA as part of the State Plan. And, indeed, it could not be approved by federal OSHA,

because such bans or limitations undercut the ETS’s requirements and are clearly not as

effective as the federal ETS. See 29 U.S.C. 667(c)(2).86

Finally, this provision includes a note that this section establishes minimum

requirements for employers, that nothing in this section prevents employers from

agreeing with their employees to implement additional measures, and that this section

does not supplant collective bargaining agreements or other collectively negotiated

agreements in effect that may have negotiated terms that exceed the requirements herein.

It also references the National Labor Relations Act of 1935, which protects most private-

sector employees’ right to take collective action. The purpose of this note is to remind

employers and employees that OSHA’s ETS establishes a floor for protections, and that it

does not preclude bargaining for additional protective measures. For example, employers

might agree to cover the costs of face coverings or medical removal, or to a requirement

that all employees, regardless of vaccination status, wear face coverings while working

indoors.

References:

An Act Prohibiting Discrimination Based on a Person’s Vaccination Status or Possession

of an Immunity Passport; Montana H.B. 702. (2021, July 1).
https://leg.mt.gov/bills/2021/billpdf/HB0702.pdf. (Montana H.B. 702, July 1, 2021)

Arizona Executive Order 2021-18. (2021, August 16).

https://azgovernor.gov/sites/default/files/eo_2021-18.pdf. (AZ Executive Order 2021-18,
August 16, 2021)

86For example, Arizona has an OSHA-approved State Plan, but its vaccination ban, which is not part of its
State Plan, is preempted by this ETS (see AZ Executive Order 2021-18, Aug. 16, 2021).
Arkansas H.B. 1977. (2021, October 1). To Provide Employee Exemptions From Federal
Mandates and Employer Mandates Related to Coronavirus 2019 (COVID-19); and to
Declare an Emergency.
https://www.arkleg.state.ar.us/Bills/FTPDocument?path=%2FAMEND%2F2021R%2FP
ublic%2FHB1977-H1.pdf. (Arkansas H.B. 1977, October 1, 2021)

Arkansas S.B. 739. (2021, October 4). An Act Concerning Employment Issues Related to
Coronavirus 2019 (COVID-19); To Provide Employee Exemptions From Federal
Mandates and Employer Mandates Related to Coronavirus 2019 (COVID-19); To
Declare and Emergency; and For Other Purposes.
https://www.arkleg.state.ar.us/Bills/FTPDocument?path=%2FBills%2F2021R%2FPubli
c%2FSB739.pdf. (Arkansas S.B. 739, October 4, 2021)

Arkansas Governor Asa Hutchinson. (2021, October 13). Press Release: Governor
Hutchinson Allows Vaccine Mandate, Redistricting Bills to Become Law Without His
Signature. https://governor.arkansas.gov/news-media/press-releases/governor-
hutchinson-allows-vaccine-mandate-redistricting-bills-to-become-la. (Governor
Hutchinson, October 13, 2021)

Baltimore City Health Department. (2021, August 10). Health Commissioner Updated
Directive and Order for Face Coverings.
https://www.baltimorecity.gov/sites/default/files/HEALTH%20COMMISSIONER%20AU
GUST%2010,%202021%20DIRECTIVE%20AND%20ORDER%20FOR%20FACE%20C
OVERINGS_FINAL.pdf. (Baltimore City Health Department, August 10, 2021)

Emergency Executive Order 225. (2021, August 16). Key to NYC: Requiring COVID-19
Vaccination for Indoor Entertainment, Recreation, Dining and Fitness Settings.
https://www1.nyc.gov/office-of-the-mayor/news/225-001/emergency-executive-order-225.
(NYC Emergency Executive Order 225, August 16, 2021)

Florida Executive Order 21-102. (2021, May 3). https://www.flgov.com/wp-

content/uploads/orders/2021/EO_21-102.pdf. (Florida Executive Order 21-102, May 3,
2021)

Hawai’i Emergency Proclamation Related to the State’s COVID-19 Delta Response.

(2021, October 1). https://governor.hawaii.gov/wp-content/uploads/2021/10/2109152-
ATG_Emergency-Proclamation-Related-to-the-States-COVID-19-Delta-Response-
distribution-signed.pdf. (Hawai’i Emergency Proclamation, October 1, 2021)

Illinois Executive Order 2021-20. (2021, August 26).

https://www.illinois.gov/government/executive-orders/executive-order.executive-order-
number-20.2021.html. (Illinois Executive Order 2021-20, August 26, 2021)

Marr C. (2021, October 7). Workplace Vaccine Exemption Bills Sent to Arkansas
Governor. Bloomberg Law. https://news.bloomberglaw.com/daily-labor-
report/workplace-vaccine-exemption-bills-sent-to-arkansas-governor. (Marr, October 7,
2021)

Texas Executive Order GA-34. (2021, March 2). Executive Order No. GA-34 relating to
the opening of Texas in response to the COVID-19 disaster.
https://open.texas.gov/uploads/files/organization/opentexas/EO-GA-34-opening-Texas-
response-to-COVID-disaster-IMAGE-03-02-2021.pdf. (Texas Executive Order GA-34,
March 2, 2021)

Texas Executive Order GA-36. (2021, May 18). Executive Order No. GA-36 relating to
the prohibition of governmental entities and officials from mandating face coverings or
restricting activities in response to the COVID-19 disaster.
https://gov.texas.gov/uploads/files/press/EO-GA-
36_prohibition_on_mandating_face_coverings_response_to_COVID-
19_disaster_IMAGE_05-18-2021.pdf. (Texas Executive Order GA-36, May 18, 2021)

Texas Executive Order GA-40. (2021, October 11). Executive Order No. GA-40 relating
to prohibiting vaccine mandates, subject to legislative action.
https://gov.texas.gov/uploads/files/press/EO-GA-
40_prohibiting_vaccine_mandates_legislative_action_IMAGE_10-11-2021.pdf. (Texas
Executive Order GA-40, October 11, 2021)

B. Scope and Application

Paragraph (b)(1) of this ETS provides that the ETS applies to all employers that

have a total of at least 100 employees at any time the ETS is in effect. OSHA has

determined that the unvaccinated employees of these employers face a grave danger of

exposure to SARS-CoV-2, including the Delta variant, while they are at work (see Grave

Danger, Section III.A. of this preamble). Because this grave danger finding applies to all

unvaccinated employees who come into contact with other people in indoor work settings

as part of their employment, this ETS is not limited by industrial sector or NAICS code.

Therefore, this standard generally covers employers in all workplaces that are under

OSHA’s authority and jurisdiction, including industries as diverse as manufacturing,

retail, delivery services, warehouses, meatpacking, agriculture, construction, logging,

maritime, and healthcare.

I. Decision to limit coverage of this ETS to employers with 100 or more employees.

This ETS applies to employers with a total of 100 or more employees at any time

the standard is in effect. In light of the unique occupational safety and health dangers

presented by COVID-19, and against the backdrop of the uncertain economic

environment of a pandemic, OSHA established this coverage threshold for four reasons.

First, OSHA is confident that employers with 100 or more employees will be able to meet
the standard’s requirements promptly, as the emergency addressed by the standard

necessitates. OSHA is less confident that smaller employers can do so without undue

disruption. Second, this coverage threshold will enable the standard to reach two-thirds of

all private-sector workers in the nation, providing them with prompt protection. Third,

the standard will reach the largest facilities, where the most deadly outbreaks of COVID-

19 can occur. Fourth, the 100-employee threshold in this standard is comparable with the

size thresholds established by congressional and agency decisions in analogous contexts.

a. Challenges to feasibility analysis for small businesses.

An OSHA standard, including an ETS, must be both economically and

technologically feasible. A standard is economically feasible under the OSH Act if it

neither threatens “massive dislocation to” nor upsets the “competitive stability of” the

regulated industries. United Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d

1189, 1265 (D.C. Cir. 1980). Technological feasibility has been interpreted broadly to

mean “capable of being done” Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 509–510

(1981).

As shown in Economic Analysis, Section IV.B. of this preamble, OSHA is

confident that this standard is feasible for employers with 100 or more employees. OSHA

is not at this time making any determination about whether it would be appropriate to

extend the ETS to cover smaller employers. Put simply, the agency is requiring that

employers it is confident can implement the provisions of the standard without delay do

so. At the same time, the agency is soliciting public comment and seeking additional

information to assess the ability of smaller employers to do so in the rulemaking

commenced by this ETS. OSHA will determine the issue on the basis of the record, after

receiving public comment.87 The SARS-CoV--2 virus continues to spread rapidly, and

87If OSHA receives information suggesting that a broader scope would be appropriate, the agency could
expand the scope of the ETS quickly through a supplemental action. Fla. Peach Growers Ass’n, Inc. v. U.
each day that passes, tens of thousands more people are infected. The employees of larger

firms should not have to wait for the protections of this standard while OSHA takes the

additional time necessary to assess the feasibility of the standard for smaller employers.

The pandemic has presented special challenges for small businesses. According to

a survey conducted during its early stages, 66% of businesses with fewer than 100

employees had suffered revenues losses exceeding 30%. (SHRM, May 6, 2020a). By

contrast, only 27% of larger businesses with more than 100 employees had seen revenue

drops of more than 30% (SHRM, May 6, 2020b). More recently, 61% of the members of

the National Federation of Independent Businesses, mostly very small businesses,

responded to a survey reported that they were experiencing staff shortages, with half of

that group reporting a moderate to significant loss of sales because of unfilled positions

(NFIB, July 12, 2021).

The requirements of the ETS could have a differential impact on small businesses

compared with larger firms. Many small businesses lack separate human resources

departments and struggle to carry out HR functions. A study found that some 70% of

small businesses (with 5 to 49 employees) handle HR tasks in an ad hoc way. (ADP,

December 2016). Only 23% of ad hoc managers believed they had the tools and

resources necessary to perform HR tasks well, and only 19% were fully confident in their

ability to handle HR tasks without making mistakes (ADP, December 2016). Another

survey found that HR functions are proportionally far more expensive for smaller firms

than for larger (small firms defined as up to 250 workers) (SHRM, 2015). The ETS

requires employers to establish new systems to track vaccination status among workers,

to keep related records, and for firms that allow the testing option, to keep records of each

test. These records must be treated as confidential medical records subject to detailed

S. Dep’t of Labor, 489 F.2d 120, 127 (5th Cir. 1974) (“It is inconceivable that Congress, having granted the
Secretary the authority to react quickly in fast-breaking emergency situations, intended to limit his ability
to react to developments subsequent to his initial response.”)
regulations, which is not something most smaller employers typically need to do or have

existing systems in place to address. 29 CFR 1910.1020. While OSHA has imposed

similar requirements on smaller employers before, it has typically done so in highly

regulated industries, such as healthcare, or in industries involving complicated industrial

processes, which already require a certain degree of administrative capacity even when

not responding to a grave danger, through a rulemaking process that provides additional

time for notice and implementation, and when there is more time to assess the impact that

the standard would have on small business. This emergency standard by contrast applies

across the board to all industries, including less regulated retail and service sectors.

Moreover, OSHA estimates that some 5% of employees may have a medical

contraindication or request an accommodation from the rule’s requirements for disability

or sincerely held religious belief reasons. (Please see Economic Analysis, Section IV.B.

of this preamble). Assessing these requests may require more resources for smaller firms

with less experience in this area, particularly if they lack HR staff. By the same token, a

delay in applying the ETS to businesses with fewer than 100 employees would allow

those businesses the benefit of learning from the models established by larger businesses

with respect to accommodations. Similarly, implementing the ETS’s testing provisions in

a stepwise fashion will allow OSHA the time necessary to assess any impact the new

requirements may have on the testing infrastructure and related supply chains before

considering extending those requirements to additional employers.

b. The ETS provides prompt protection for most of America’s workforce.

The 100 employee threshold means the ETS will reach two-thirds of the nation’s

private sector workforce, providing protection to millions of workers while issues

regarding smaller firms are reviewed. OSHA considered that a 100 employee threshold

was superior to a 150 employee threshold in this respect, because it would protect more

employees: 67% rather than 63%, which is a difference of 4.856 million workers. (US
Census Bureau, May 2021). And while a 50 employee threshold would have covered

more employees (78%), it would have required additional feasibility analysis, while still

leaving many employees outside the standard. (US Census Bureau, May 2021).

c. The ETS will help prevent large outbreaks of COVID-19.

The ETS’s focus on employers with more than 100 employees will also help

prevent large-scale outbreaks. As addressed in more detail in the discussion of Grave

Danger (Section III.A. of this preamble), all unvaccinated employees who work in indoor

settings face a grave danger from COVID-19, which is why the scope of the ETS is not

limited to worksites of a specific size. The standard is based on employer size primarily

because administrative capacity is more closely related to employer size. In addition,

employer size provides a clear measure that is easy for employers (and OSHA) to track,

as opposed to an alternative such as a workplace-based approach, which could fluctuate

from day to day and mean more places and information for the employer to track. But

OSHA also chose the 100 employee size threshold in recognition of the fact that larger

employers are more likely to have many employees gathered in the same location. For

employers with 100 or more employees, the median number of employees at any one

location is approximately 50 (the average is also 50). (US Census Bureau, May 2021).

For employers with fewer than 100 employees, the median number of any one location is

approximately 2 (with an average number of 7) (US Census Bureau, May 2021).

Employees at larger locations are statistically more likely to be exposed to

someone with COVID-19 during the course of their shifts, and thus face a heightened risk

of virus transmission. Studies indicate that introduction of infection and the risk of

infection transmission is increased with the size of a gathering (Champredon et al., April,

2021), and with larger populations (Shacham et al., July 5, 2021). See also (Contreras et

al., July, 2021) (concluding that outbreaks were larger and lasted longer at facilities with

more onsite staff). It is therefore not surprising that significant COVID-19 outbreaks
have occurred at large facilities of employers with 100 or more employees88 (Oregon

Health Authority, October 6, 2021; CDPHE, October 6, 2021). A study of outbreaks in

Los Angeles County found that the median number of employees in an establishment in

which an outbreak occurred was 95, well above the 50 employee median for locations of

employers covered by this rule, indicating that the rule will protect employees in the

places where outbreaks are most likely to occur. (Contreras et al., July, 2021). And those

outbreaks occurred even before the emergence of the SARS-CoV-2 Delta variant, which

the CDC says “causes more infections and spreads faster than early forms of SARS-CoV-

2.” (CDC, August 26, 2021) In fact, the studies noted earlier in this paragraph were

published just as the Delta variant was emerging, meaning that the risk of transmission

cited in those studies has likely increased.

While virus transmission is certainly not limited to large facilities, the potential

scope of an outbreak is inherently more limited when fewer employees are present. In

limiting the scope of the ETS to employers with 100 or more employees, OSHA is

prioritizing coverage of those businesses in which the spread of the virus could

potentially affect the largest number of employees and for which the agency is most

confident that it is feasible to apply the standard.

d. Analogous regulatory regimes use comparable employee size thresholds.

Congress and federal agencies have frequently recognized that an employee size

threshold may be appropriate in different regulatory contexts. They have not settled on

any one number as the most appropriate, presumably because that depends on balancing

88See, e.g., Oregon Health Authority, October 6, 2021, (publishing data on outbreaks in large workplaces
including two Amazon facilities, several hospitals, and a Walmart distribution center); CDPHE, Oct. 6,
2021, (identifying an active Covid outbreak in Cargill’s Fort Morgan, CO meat processing plant, which
employs more than 2,000 workers). While some have speculated that clusters of infections among
employees at the same facility might result initially from shared exposures outside of work, the original
source of the infection would have little bearing on the statistical probability of exposure and transmission
once the infected people are together in the workplace with unvaccinated co-workers. The most effective
way to prevent further transmission is to protect the other workers through vaccination or, when that is not
possible, identify and remove the infected workers from the workplace as quickly as possible.
different considerations that are relevant to the particular context, as OSHA has done

here. But several analogous regulatory regimes use employee size thresholds comparable

to the one selected here, in light of similar concerns about administrative feasibility.

For example, the EEOC has issued regulations requiring employers with 100 or

more employees to submit annual reports related to equal employment opportunity in

their workforce, in recognition that larger employers are better equipped to absorb the

types of administrative burdens imposed by surveying, tracking and recordkeeping

requirements. See 42 U.S.C. 2000e-8(c), 29 CFR 1602.7-.14 and 41 CFR 60-1.7(a). In

earlier measures adopted in response to the COVID-19 pandemic, Congress adopted

special protections and exemptions based on employee counts. The Families First

Coronavirus Response Act, Pub. L. No. 116-127 (2020), sections 7001 and 7003

provided tax credits to businesses with fewer than 500 employees to assist compliance

with the Act’s expansion of paid sick and family leave, in recognition of the challenges

facing smaller employers. Congress again relied on the same 500 employee threshold

when it later extended tax credits only to employers who granted employees paid time off

to be vaccinated, implicitly acknowledging the financial obstacles that can exist for

smaller employers for the same activity that this ETS promotes (and without the vaccine

policy and verification requirement in this ETS). American Rescue Plan Act, Pub. L. No.

117-2, Sec. 9641 (2021).

In the Affordable Care Act, Congress set the maximum size of a “small

employer” at 100 employees for purposes of allowing greater flexibility to these

employers. 42 U.S.C.A. 18024(b)(3). Likewise, private employers with fewer than 50

employees are exempt from complying with the Family and Medical Leave Act, in

recognition of smaller employers’ decreased administrative capacity, as well as their

inability to easily accommodate employee absences. 29 U.S.C.A. 2611(2)(b)(2).

e. The 100 employee coverage provision is a reasonable exercise of the Secretary’s

authority.

OSHA’s choice of a 100 employee threshold is based on balancing the

fundamentally incommensurable considerations described above. Under the statute

OSHA “shall” issue an ETS when employees are exposed to grave danger, and is not to

follow normal notice and comment procedures to build a record. 29 U.S.C. 655(e). But

OSHA may not issue an ETS unless it shows that the rule is feasible for the employers

covered, and it has not yet made a feasibility determination for smaller employers. In the

circumstances of this case, OSHA considered that an ETS was urgently needed to protect

employees, that a 100 employee threshold would protect the great majority of them and

prevent the largest outbreaks, that it would avoid the delays that would be needed if the

agency were required to gather information and analyze feasibility for smaller employers,

and that a comparable size threshold has been found appropriate in similar contexts.

Where employees are dying every day, it is not unreasonable for the agency to prioritize

doing what it can to address the problem quickly, regardless of whether there are further

actions it might be able to take later.

Doing so implements the statutory delegation of authority to the agency to

establish priorities for issuing standards by giving “due regard to the urgency of the need”

for standards for particular workplaces. 29 U.S.C. 655(g). The courts have recognized

that this provision authorizes the Secretary to make reasonable decisions limiting the

scope of a standard, particularly where as here the agency has said it will address the

reserved issue in subsequent rulemaking. Forging Indus. Assoc. v. Donovan, 773 F.2d

1436, 1454 (4th Cir. 1985) (hearing conservation standard); United Steelworkers of Am.

v. Marshall, 647 F.2d 1189, 1309-1310 (D.C. Cir. 1980) (lead standard).

Where competing considerations are in play and there is no clear perfect

choice, OSHA has a degree of discretion to draw a reasonable line. Courts have
consistently recognized that agencies have discretion to draw reasonable lines. As

the D.C. Circuit has explained: An agency has “wide discretion” in making line-

drawing decisions and “[t]he relevant question is whether the agency's numbers are

within a zone of reasonableness, not whether its numbers are precisely

right.” WorldCom, Inc. v. FCC, 238 F.3d 449, 462 (D.C.Cir. 2001) (quotation

marks omitted). An agency “is not required to identify the optimal threshold with

pinpoint precision. It is only required to identify the standard and explain its

relationship to the underlying regulatory concerns.” Id. at 461–62. Nat’l Shooting

Sports Found. v. Jones, 716 F.3d. 200, 214-215 (D.C. Cir 2013). See also

Providence Yakima Med. Ctr. v. Sebelius, 611 F.3d 1181, 1190-1191 (9th Cir.

2010).

For the reasons discussed above, the balance the agency struck here falls

well within this zone of reasonableness.

II. Explanation of who is included in the 100-employee threshold.

The applicability of this ETS is based on the size of an employer, in terms of

number of employees, rather than on the type or number of workplaces. In determining

the number of employees, employers must include all employees across all of their U.S.

locations, regardless of employees’ vaccination status or where they perform their work.

Part-time employees do count towards the company total, but independent contractors do

not. As discussed above, OSHA has not found that the standard is feasible for firms with

fewer than 100 employees, because it needs additional time to assess the impact of the

standard on these employers, particularly as many smaller firms lack separate human

resources departments and may face additional challenges when carrying out human

resources functions. In contrast, OSHA has determined that the standard is feasible for

firms with 100 or more employees, regardless of where those employees report to work.

These firms generally have greater administrative capacities, and including all such
employers in the scope of this ETS ensures that OSHA can cover two-thirds of all

workers in the private sector as quickly as possible.

For a single corporate entity with multiple locations, all employees at all locations

are counted for purposes of the 100-employee threshold for coverage under this ETS. In a

traditional franchisor-franchisee relationship in which each franchise location is

independently owned and operated, the franchisor and franchisees would be separate

entities for coverage purposes, such that the franchisor would only count “corporate”

employees, and each franchisee would only count employees of that individual

franchise. In other situations, two or more related entities may be regarded as a single

employer for OSH Act purposes if they handle safety matters as one company, in which

case the employees of all entities making up the integrated single employer must be

counted.

In scenarios in which employees of a staffing agency are placed at a host

employer location, only the staffing agency would count these jointly employed workers

for purposes of the 100-employee threshold for coverage under this ETS. Although the

staffing agency and the host employer would normally share responsibility for these

workers under the OSH Act, this ETS raises unique concerns in that OSHA has set the

threshold for coverage based primarily on administrative capacity for purposes of

protecting workers as quickly as possible, as discussed above, and the staffing agency

would typically handle administrative matters for these workers. Thus, for purposes of

the 100-employee threshold, only the staffing agency would count the jointly employed

employees. The host employer, however, would still be covered by this ETS if it has 100

or more employees in addition to the employees of the staffing agency. For enforcement

purposes, traditional joint employer principles would apply where both employers are

covered by the ETS, as illustrated further by the examples below. See also

https://www.osha.gov/temporaryworkers/.
 On a typical multi-employer worksite such as a construction site, each company

represented – the host employer, the general contractor, and each subcontractor – would

only need to count its own employees, and the host employer and general contractor

would not need to count the total number of workers at each site. That said, each

employer must count the total number of workers it employs regardless of where they

report for work on a particular day. Thus, for example, if a general contractor has more

than 100 employees spread out over multiple construction sites, that employer is covered

under this ETS even if it does not have 100 or more employees present at any one

worksite. Covering the employees of larger employers at multi-employer worksites

would mitigate the spread of COVID-19 at the workplace even where not all employees

are covered by this ETS because fully vaccinated employees (or unvaccinated employees

wearing face coverings and submitting to weekly testing) would be less likely to spread

the virus to unvaccinated workers at the site who are not covered by this ETS.

The determination as to whether a particular employer is covered by the standard

should be made separately from whether individual employees are covered by the

standard’s requirements, as described by paragraph (b)(3) (e.g., some employers may be

covered but have no duties with respect to some of their employees under this standard).

Some additional examples include:

 If an employer has 75 part-time employees and 25 full-time employees, the

employer would be within the scope of this ETS because it has 100 employees.

 If an employer has 150 employees, 100 of whom work from their homes full-time

and 50 of whom work in the office at least part of the time, the employer would

be within the scope of this ETS because it has more than 100 employees.

 If an employer has 102 employees and only 3 ever report to an office location,

that employer would be covered.

 If an employer has 150 employees, and 100 of them perform maintenance work in

customers’ homes, primarily working from their company vehicles (i.e., mobile

workplaces), and rarely or never report to the main office, that employer would

also fall within the scope.

 If an employer has 200 employees, all of whom are vaccinated, that employer

would be covered.

 If an employer has 125 employees, and 115 of them work exclusively outdoors,

that employer would be covered.

 If a single corporation has 50 small locations (e.g., kiosks, concession stands)

with at least 100 total employees in its combined locations, that employer would

be covered even if some of the locations have no more than one or two employees

assigned to work there.

 If a host employer has 80 permanent employees and 30 temporary employees

supplied by a staffing agency, the host employer would not count the staffing

agency employees for coverage purposes and therefore would not be covered.

(So long as the staffing agency has at least 100 employees, however, the staffing

agency would be responsible for ensuring compliance with the ETS for the jointly

employed workers.)

 If a host employer has 110 permanent employees and 10 temporary employees

from a small staffing agency (with fewer than 100 employees of its own), the host

employer is covered under this ETS and the staffing agency is not.

 If a host employer has 110 permanent employees and 10 employees from a large

staffing agency (with more than 100 employees of its own), both the host

employer and the staffing agency are covered under this standard, and traditional

joint employer principles apply.

  Generally, in a traditional franchisor-franchisee relationship, if the franchisor has

more than 100 employees but each individual franchisee has fewer than 100

employees, the franchisor would be covered by this ETS but the individual

franchises would not be covered.

As explained earlier, part of OSHA’s rationale in adopting the 100-employee

threshold is to focus the ETS on companies that OSHA is confident will have sufficient

administrative systems in place to comply quickly with the ETS. Thus, the ETS applies to

all employers who have the requisite number of employees at any time this ETS is in

effect. Along with employers that always have more than 100 employees, OSHA intends

to cover employers that fluctuate above and below the 100-employee threshold during the

term of the ETS because those employers will typically have already developed systems

and capabilities for compliance; a decrease in the number of employees is therefore

unlikely to make them less capable of compliance.

The determination of whether an employer falls within the scope of this ETS

based on number of employees should initially be made as of the effective date of the

standard, as set out in paragraph (m)(1). If the employer has 100 or more employees on

the effective date, this ETS applies for the duration of the standard. If the employer has

fewer than 100 employees on the effective date of the standard, the standard would not

apply to that employer as of the effective date. However, if that same employer

subsequently hires more workers and hits the 100-employee threshold for coverage, the

employer would then be expected to come into compliance with the standard’s

requirements. Once an employer has come within the scope of the ETS, the standard

continues to apply for the remainder of the time the standard is in effect, regardless of

fluctuations in the size of the employer’s workforce. For example, an employer that has

103 employees on the effective date of the standard, but then loses four within the next

month, would continue to be covered by the ETS. OSHA is confident that employers
with 100 or more employees at any point while this ETS is in effect have the

administrative capacity to comply with the ETS, even if the number of employees

fluctuates somewhat above and below 100.

Paragraph (b)(2) of this ETS sets forth two exemptions to the standard.89 Under

paragraph (b)(2)(i), this ETS does not apply to workplaces covered by the Safer Federal

Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors

and Subcontractors (see Safer Federal Workforce Task Force, September 24, 2021). With

limited exceptions, such as where a medical contraindication, disability, or sincerely held

religious belief would prevent an employee from complying with certain provisions,

those guidelines require covered contractors to ensure that all covered contractor

employees (1) are fully vaccinated by December 8, 2021; (2) follow CDC guidelines for

masks and physical distancing, including masking and distancing requirements based on

the employee’s vaccination status and the level of community transmission of COVID-19

where the workplace is located; and (3) designate a person to coordinate COVID-19

workplace safety efforts at covered workplaces. Because covered contractor employees

are already covered by the protections in those guidelines, OSHA has determined that

complying with this standard in addition to the federal contractor guidelines is not

necessary to protect covered contractor employees from a grave danger posed by

COVID-19. Although there may be some respects in which the OSHA standard is

somewhat more protective, such as providing paid leave for vaccination, the federal

contractor guidelines are somewhat more protective in other respects, such as requiring

89Note that, 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 OSH Act does not apply to working conditions of employees with respect to which other Federal
agencies have exercised their statutory authority to prescribe or enforce standards or regulations affecting
occupational safety or health (see 29 U.S.C. 653(b)(1)). Moreover, 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
this 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)).
vaccination for everyone who does not have a right to an accommodation rather than

allowing employees to submit to testing in lieu of vaccination. In essence, they are

similar but slightly different schemes that provide roughly equivalent protection, and

OSHA has determined that imposing a second set of similar protections on covered

federal contractors by subjecting them to this ETS in addition to the federal contractor

guidance is not necessary at this time to reduce a grave danger to covered contractor

employees from COVID-19.

Under Executive Order 14043, every federal agency must implement a program

requiring each of its federal employees to be vaccinated against COVID-19, except as

required by law. 86 FR 50989. OSHA will regard a federal agency’s compliance with

this requirement, and the related Safer Federal Workforce Task Force guidance issued

under section 4(e) of Executive Order 13991 and section 2 of Executive Order 14043

(including guidance on employer support in the form of paid time for vaccination and

paid leave for post-vaccination recovery), as sufficient to meet its obligation to comply

with this ETS under Section 19 of the OSH Act and Executive Order 12196. In essence,

the federal government has chosen the mandatory vaccination option of this rule, and all

federal employees are required to be fully vaccinated by the compliance date of this

standard, except where entitled to a reasonable accommodation. The Safer Federal

Workforce Task Force’s guidelines for vaccination verification are consistent with the

ETS’s (see Safer Federal Workforce Task Force, October 11, 2021). Note, however, that

under the OSH Act, the U.S. Postal Service is treated as a private employer, see 29

U.S.C. 652(5), and it is therefore required to comply with this ETS in the same manner as

any other employer covered by the Act.

For similar reasons, paragraph (b)(2)(ii) provides that this ETS does not apply in

settings where any employee provides healthcare services or healthcare support services

while they are covered by the requirements of 29 CFR 1910.502. Section 1910.502
requires a multi-layered suite of protections for employees covered by its requirements,

including patient screening and management, facemasks or respirators, other personal

protective equipment (PPE), limiting exposure to aerosol-generating procedures, physical

distancing, physical barriers, cleaning, disinfection, ventilation, health screening and

medical management, access to vaccination, and medical removal protection. Section

1910.502 was carefully tailored to the healthcare workplaces it covers and, given the full

suite of protections it requires, including (like this ETS) the provision of paid time for

vaccination, OSHA has determined that it adequately protects the employees covered by

its requirements from the grave danger posed by COVID-19. Therefore, complying with

the additional requirements of this ETS is not necessary to protect those employees while

they are covered by that standard’s protections.

OSHA’s intent was to leave no coverage gaps between section 1910.502 and this

ETS. In other words, the purpose of paragraph (b)(2)(ii) is to ensure that all workers in

healthcare and healthcare support jobs who are at grave danger from exposure to SARS-

CoV-2 are protected by either section 1910.502 or this ETS while performing their jobs.

Therefore, it will be necessary for employers with employees covered by section

1910.502 to determine if they also have employees covered by this ETS. For example, a

healthcare employer with more than 100 employees that has non-hospital ambulatory

care facilities that are exempt under section 1910.502(a)(2)(iii) (for non-hospital

ambulatory care settings where all non-employees are screened prior to entry and those

with suspected or confirmed COVID-19 are prohibited from entry) would be required to

protect the employees in those ambulatory care facilities under this ETS. Similarly, a

retail pharmacy chain that operates a series of ambulatory care clinics embedded in its

stores, where those embedded clinics are the only areas in the store that are covered under

1910.502 (see section 1910.502(a)(3)(i)), would have to ensure that the remainder of its
employees in other parts of its stores are protected under this ETS if the company has 100

or more employees company-wide, including those covered under 1910.502.

Paragraph (b)(3) provides that, even where the standard applies to a particular

employer, its requirements do not apply to employees: (i) who do not report to a

workplace where other individuals such as coworkers or customers are present; (ii) while

working from home; or (iii) who work exclusively outdoors. OSHA intends these

provisions to exempt workplace settings where workers do not interact indoors with other

individuals, and to exempt work performed in the employee’s home regardless of

whether other individuals may be present in the home.

OSHA has determined that the provisions of this ETS are not necessary to protect

employees from COVID-19 when they are working alone, or when they are working

from home (see Grave Danger, Section III.A. of this preamble). These two provisions

may overlap in some cases, but also can apply to slightly different situations. Paragraph

(b)(3)(i) would apply to work in a solitary location, such as a research station where only

one person (the employee) is present at a time. In that situation, the employee is not

exposed to any potentially infectious individuals at work. Paragraph (b)(3)(ii) would

apply to employees working in their homes, regardless of whether other individuals who

are not employees of the same employer are present. In a home telework environment,

many factors – such as the presence of family members and other individuals unrelated to

the employee’s work, who may not be fully vaccinated or wearing face coverings – may

be beyond the employer’s control. Employees are typically in the best position to manage

COVID-19 risks in their homes. Note that the exemption in paragraph (b)(3)(ii) only

applies to employees while they are working from home. An employee who switches

back and forth from teleworking to working in a setting where other people are present

(e.g., an office) is covered by this ETS and must be vaccinated if required by the

employer. If the employer does not require vaccination, the teleworking employee must
either be vaccinated or complete testing and wear a face covering in accordance with

their employer’s policy under paragraph (d). How often such an employee must be tested

for COVID-19 and wear a face covering, however, depends on how often they report to

the office (see, e.g., paragraph (g)(1)(ii)).

Paragraph (b)(3)(iii) provides that, even if a particular employer is covered by the

standard, the requirements of the standard do not apply to employees who work

exclusively outdoors. OSHA has determined that COVID-19 does not pose a grave

danger to employees who work exclusively outdoors because of the significantly reduced

likelihood of transmission in outdoor settings. As discussed in more detail in Grave

Danger (Section III.A. of this preamble), the record contains very little evidence of

COVID-19 transmission in outdoor settings. And, in studies where clusters were

identified in worksites characterized as being outdoors, the study authors were not able to

identify specific incidents that led to transmission. In addition, workplaces characterized

as “outdoors” may in fact involve significant time spent indoors. For example, on a

construction site, workers inside a partially complete structure are not truly outdoors, and

some individuals on a construction site may spend significant amounts of time in a

construction trailer where other individuals are present. Workers at outdoor locations may

also routinely share work vehicles. These indoor exposures could account for COVID-19

clusters among employees at worksites otherwise characterized as being outdoors. And

employees whose outdoor time is interrupted by the indoor periods will still be subject to

the requirements in this ETS.

Studies of athletic teams further indicate that evidence of COVID-19 clusters

among workers characterized as working outdoors could actually be caused by indoor

exposures. Even where athletes were in very close contact during outdoor exposures on

the playing field, the study authors could not identify a single case of COVID-19

transmission between teams that occurred outdoors (see Mack et al., January 29, 2021;
Egger et al., March 18, 2021; Jones et al., February 11, 2021). For all of these reasons,

and as discussed more fully in Grave Danger (Section III.A. of this preamble), OSHA

has determined that COVID-19 does not pose a grave danger to employees who work

exclusively outdoors.

As a practical matter, determining the applicability of paragraph (b)(3)(iii)

depends on the working conditions of individual employees. For example, if a

landscaping contractor has at least 100 employees and is not covered by the exemptions

in paragraph (b)(2), the standard applies to that employer even if a majority of the

company’s employees work exclusively outdoors. The standard’s protections would only

apply to employees working in indoor settings around other individuals (other than

telework in their own homes), not to those employees working exclusively outdoors. In

some cases, it may be true that the standard applies to an employer but the employer

would not have to implement its provisions at all because all of its employees fall within

exemptions in paragraph (b)(3). Going back to the example of the large landscaping

contractor, if all indoor workers either work from home or in locations where no other

individuals are present, and all outdoors workers work exclusively outdoors and do not

drive to worksites together in a company vehicle, the employer would be covered by the

ETS but not required to comply with its provisions.

An employee will only be covered by the exemption in paragraph (b)(3)(iii) if the

employee works exclusively outdoors. Thus, an employee who works indoors on some

days and outdoors on other days would not be exempt from the requirements of this ETS.

Likewise, if an employee works primarily outdoors but routinely occupies vehicles with

other employees as part of work duties, that employee is not covered by the exemption in

paragraph (b)(3)(iii). However, if an employee works outdoors for the duration of every

workday except for de minimis use of indoor spaces where other individuals may be

present – such as a multi-stall bathroom or an administrative office – that employee

would be considered to work exclusively outdoors and covered by the exemption under

paragraph (b)(3)(iii) as long as time spent indoors is brief, or occurs exclusively in the

employee’s home (e.g., a lunch break at home). Extremely brief periods of indoor work

would not normally expose employees to a high risk of contracting COVID-19; however,

OSHA will look at cumulative time spent indoors to determine whether that time is de

minimis. Thus, if there are several brief periods in a day when an employee goes inside,

OSHA will total those periods of time when determining whether the exception for

exclusively outdoors work applies.

Finally, to qualify for this exception, the employee’s work must truly occur

“outdoors,” which would not include buildings under construction where substantial

portions of the structure are in place, such as walls and ceiling elements that would

impede the natural flow of fresh air at the worksite. Workplaces that are truly outdoors

typically do not include any of the characteristics that normally enable transmission of

SARS-CoV-2 to occur, such as poor ventilation, enclosed spaces, and crowding. As

discussed in Bulfone et al. (November 29, 2020), the lower risk of transmission in

outdoor settings (i.e., open air or structures with only one wall) is likely due to increased

ventilation with fresh air and a greater ability to maintain physical distancing (see Grave

Danger, Section III.A. of this preamble, for more information on risk of transmission

outdoors).

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Answer it. Insights and solutions for moving beyond risky ad hoc HR
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Bulfone TC et al. (2020, November 29). Outdoor Transmission of SARS-CoV-2 and

Other Respiratory Viruses: A Systematic Review. (2020). The Journal of Infectious
Diseases 223: 550–561. https://doi.org/10.1093/infdis/jiaa742. (Bulfone et al., November
29, 2020)

Centers for Disease Control and Prevention (CDC). (2021, August 26). Delta Variant:
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ncov/variants/delta-
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CDC, August 26, 2021)

Champredon D et al. (2021, May 12). Modelling approach to assessing risk of

transmission of SARS-CoV-2 at gatherings. https://www.canada.ca/en/public-
health/services/reports-publications/canada-communicable-disease-report-ccdr/monthly-
issue/2021-47/issue-4-april-2021/assessing-risk-transmission-sars-cov-2-
gatherings.html. (Champredon et al., May 12, 2021)

Colorado Department of Public Health and Environment (CDPHE). (2021, October 6).
CDPHE COVID-19 outbreak map updated October 6, 2021.
https://cdphe.maps.arcgis.com/apps/webappviewer/index.html?id=dcc0b993632a4bc68d
c7b9a1dd015cfe. (CDPHE, October 6, 2021)

Contreras Z et al. (2021, July). Industry Sectors Highly Affected by Worksite Outbreaks
of Coronavirus Disease, Los Angeles County, California, USA, March 19-September 30,
2020. Emerg Infect Dis. 2021; 27(7): 1769-1775. doi:10.3201/eid2707.210425.
(Contreras et al., July, 2021)

Egger F et al. (2021, March 18). Does playing football (soccer) lead to SARS-CoV-2
transmission? – a case study of 3 matches with 19 infected football players. Science and
Medicine in Football. doi:10.1080/24733938.2021.1895442. (Egger et al., March 18,
2021)

Jones B et al. (2021, February 11). SARS-CoV-2 transmission during rugby league
matches: do players become infected after participating with SARS-CoV-2 positive
players? Br J Sports Med doi:10.1136/bjsports-2020-103714. (Jones et al., February 11,
2021)

Mack CD et al. (2021, January 29). Implementation and evolution of mitigation

measures, testing, and contact tracing in the national football league, August 9–
November 21, 2020. MMWR 70: 130–135.
doi:http://dx.doi.org/10.15585/mmwr.mm7004e2. (Mack et al., January 29, 2021)

National Federation of Independent Business (NFIB) Research Center. (2021, July 12).
Covid-19 small business survey (18): federal small business programs, the vaccine, labor
shortage, and supply chain disruptions. https://assets.nfib.com/nfibcom/Covid-19-18-
Questionnaire.pdf. (NFIB, July 12, 2021)

Oregon Health Authority. (2021, October 6). COVID-19 weekly outbreak report –
October 6, 2021. https://www.oregon.gov/oha/covid19/Documents/DataReports/Weekly-
Outbreak-COVID-19-Report.pdf. (Oregon Health Authority, October 6, 2021)

Safer Federal Workforce Task Force. (2021, September 24). COVID-19 Workplace
Safety: Guidance for Federal Contractors and Subcontractors.
https://www.saferfederalworkforce.gov/downloads/Draft%20contractor%20guidance%2
0doc_20210922.pdf. (Safer Federal Workforce Task Force, September 24, 2021)

Safer Federal Workforce Task Force. (2021, October 11). Vaccinations: Vaccination
Documentation and Information.
https://www.saferfederalworkforce.gov/faq/vaccinations/. (Safer Federal Workforce Task
Force, October 11, 2021)
Shacham E et al. (2021, July 5). Examining the relationship between COVID-19
vaccinations and reported incidence. doi:https://doi.org/10.1101/2021.06.30.21259794.
(Shacham et al., July 5, 2021)

Society for Human Resource Management (SHRM). (2015). How organizational staff
size influences HR metrics. https://www.shrm.org/resourcesandtools/business-
solutions/documents/organizational%20staff%20size.pdf. (SHRM, 2015)

Society for Human Resource Management (SHRM). (2020a, May 6). Navigating
COVID-19: impact of the pandemic on small businesses.
https://shrm.org/hr-today/trends-and-forecasting/research-and
surveys/Documents/SHRM%20CV19%20SBO%20Research%20Presentation%20v1.1.pd
f. (SHRM, May 6, 2020a)

Society for Human Resource Management (SHRM). (2020b, May 6). Survey: COVID-19
could shutter most small businesses. https://www.shrm.org/about-shrm/press-room/press-
releases/pages/survey-covid-19-could-shutter-most-small-businesses.aspx. (SHRM, May
6, 2020b)

United States (US) Census Bureau. (2021, May). 2017 SUSB Annual Data Tables by
Establishment Industry, The annual data table titled “U.S. & states, NAICS, detailed
employment sizes U.S., 6-digit and states, NAICS sector,”
https://www.census.gov/data/tables/2017/econ/susb/2017-susb-annual.html. (US Census
Bureau, May 2021)

C. Definitions

Paragraph (c) of the ETS provides definitions of terms used in the section.

“Assistant Secretary” means the Assistant Secretary of Labor for Occupational

Safety and Health, U.S. Department of Labor, or designee. This definition provides

clarification about who can request and receive records specified in paragraph (l)(3) of

this section. A designee includes a representative conducting an inspection or an

investigation.

“COVID-19 (Coronavirus Disease 2019)” means the disease caused by SARS-

CoV-2 (severe acute respiratory syndrome coronavirus 2). SARS-CoV-2 is a highly

transmissible virus that spreads primarily through the respiratory droplets that are

produced when an infected person coughs, sneezes, sings, talks, or breathes. The nature

of the disease, variants of SARS-CoV-2, disease transmission, and associated health

effects are all described in great detail in Grave Danger (Section III.A. of this preamble).
For clarity and ease of reference, the ETS also uses the term “COVID-19” when

describing exposures or potential exposures to SARS-CoV-2. The requirements of the

ETS are intended to address the grave danger of exposure to COVID-19 in the

workplace.

A “COVID-19 test” means a test for SARS-CoV-2 that is: (1) cleared, approved,

or authorized, including in an Emergency Use Authorization (EUA), by the U.S. Food

and Drug Administration (FDA) to detect current infection with the SARS-CoV-2 virus

(e.g., a viral test); (2) administered in accordance with the authorized instructions; and (3)

not both self-administered and self-read unless observed by the employer or an

authorized telehealth proctor. Examples of tests that satisfy this requirement include tests

with specimens that are processed by a laboratory (including home or on-site collected

specimens which are processed either individually or as pooled specimens), proctored

over-the-counter tests, point of care tests, and tests where specimen collection and

processing is either done or observed by an employer.

Under paragraph (g), employees who are not fully vaccinated must be tested for

COVID-19. When an employee must be tested, the test is considered acceptable only if

the test and the administration of the test satisfy the definition of COVID-19 test in this

standard.

COVID-19 tests can broadly be divided into two categories, diagnostic tests and

antibody tests. Diagnostic tests detect parts of the SARS-CoV-2 virus and can be used to

diagnose current infection. On the other hand, antibody tests look for antibodies in the

immune system produced in response to SARS-CoV-2, and are not used to diagnose an

active COVID-19 infection. Antibody tests do not meet the definition of COVID-19 test

for the purposes of this ETS.

Diagnostic tests for current infection fall into two categories: nucleic acid

amplification tests (NAATs) and antigen tests. NAATs are a type of molecular test that
detect genetic material (nucleic acids); NAATs for COVID-19 identify the ribonucleic

acid (RNA) sequences that comprise the genetic material of the virus. NAATs can

reliably detect small amounts of SARS-CoV-2 and are unlikely to return a false-negative

result. NAATs use many different methods to detect the virus, including reverse

transcription-polymerase chain reaction (RT-PCR), which is a high-sensitivity, high-

specificity90 test for diagnosing SARS-CoV-2 infection. Other types of NAATs that use

isothermal amplification methods include nicking endonuclease amplification reaction

(NEAR), transcription mediated amplification (TMA), loop-mediated isothermal

amplification (LAMP), helicase-dependent amplification (HDA), clustered regularly

interspaced short palindromic repeats (CRISPR), and strand displacement amplification

(SDA) (CDC, June 14, 2021).

Most NAATs need to be processed in a laboratory with variable time to receive

results (approximately 1–2 days), but some NAATs are point-of-care tests with results

available in about 15–45 minutes. As of October 14, 2021, 264 molecular tests (NAATs)

and collection devices have EUA from the FDA for COVID-19 (FDA, October 14,

2021b). These tests may be acceptable under the ETS.

Antigen tests may also meet the definition of COVID-19 test under this standard.

Antigen tests indicate current infection by detecting the presence of a specific viral

antigen. Most can be processed at the point of care with results available in about 15-30

minutes. Antigen tests generally have similar specificity to, but are less sensitive than,

NAATs (CDC, October 7, 2021). As of October 14, 2021, thirty-seven antigen tests have

EUA from the FDA for COVID-19 (FDA, October 14, 2021a). These tests may be

acceptable under the ETS.

90Test sensitivity indicates the ability of a test to correctly identify people who have a disease. Test
specificity indicates the ability of a test to correctly identify people who do not have a disease. A test with
high sensitivity and high specificity minimizes inaccurate results.
 Most antigen tests and some NAATs are conducted at the point of care, which

means the test processing and result reading is performed at or near the place where a

specimen is collected so that results can be obtained within minutes rather than hours or

days. Rapid point-of-care tests are administered in various settings operating under a

Clinical Laboratory Improvement Amendments of 1988 (CLIA) certificate of waiver,

such as physician offices, urgent care facilities, pharmacies, school health clinics,

workplace health clinics, long-term care facilities and nursing homes, and at temporary

locations, such as drive-through sites managed by local health organizations (FDA,

November 16, 2020).

To be a valid COVID-19 test under this standard, a test may not be both self-

administered and self-read unless observed by the employer or an authorized telehealth

proctor. OSHA included the requirement for some type of independent confirmation of

the test result in order to ensure the integrity of the result given the “many social and

financial pressures for test-takers to misrepresent their results” (Schulte et al., May 19,

2021). This independent confirmation can be accomplished in multiple ways, including

through the involvement of a licensed healthcare provider or a point-of-care test provider.

If an over-the-counter (OTC) test is being used, it must be used in accordance with the

authorized instructions. The employer can validate the test through the use of a proctored

test that is supervised by an authorized telehealth provider. Alternatively, the employer

could proctor the OTC test itself.

Employers have the flexibility to select the testing scenario that is most

appropriate for their workplace. Some employees and employers may rely on testing that

is conducted by a healthcare provider (e.g., doctor or nurse) who arranges for the

specimen to be analyzed at a laboratory or at a point-of-care testing location (e.g., a

pharmacy). The involvement of licensed or accredited healthcare providers allows

employers to have a high degree of confidence in the suitability of the test and the test
results. Some large employers who set up their own on-site testing program may partner

with a healthcare organization (e.g., a local hospital or clinic) or rely on a licensed

healthcare provider to help obtain a CLIA certificate of waiver. Other employers may

simply require that employees perform and read their own OTC test while an authorized

employee observes the administration and reading of the test to ensure that a new test kit

was used and that the test was administered properly (e.g., nostrils were swabbed), and to

witness the test result.

Due to the potential for employee misconduct (e.g., falsified results), tests that are

both self-administered and self-read are not acceptable unless they are observed by the

employer or an authorized telehealth proctor. Some COVID-19 tests are authorized by

the FDA to be performed only with the supervision of a telehealth proctor, which is

someone who is trained to observe sample collection and provide instructions and result

interpretation assistance to individuals using the test. The term “authorized telehealth

proctor” refers to proctors who follow the requirements for proctoring specified by the

FDA authorization. For a more detailed discussion on COVID-19 testing requirements

under this ETS, see the Summary and Explanation for paragraph (g) (Section VI.G. of

this preamble).

A “face covering” means a covering that: (1) completely covers the nose and

mouth; (2) is made with two or more layers of a breathable fabric that is tightly woven

(i.e., fabrics that do not let light pass through when held up to a light source); (3) is

secured to the head with ties, ear loops, or elastic bands that go behind the head. If gaiters

are worn, they should have two layers of fabric or be folded to make two layers; (4) fits

snugly over the nose, mouth, and chin with no large gaps on the outside of the face; and

(5) is a solid piece of material without slits, exhalation valves, visible holes, punctures, or

other openings. This definition includes clear face coverings or cloth face coverings with

a clear plastic panel that, despite the non-cloth material allowing light to pass through,
otherwise meet this definition and which may be used to facilitate communication with

people who are deaf or hard-of-hearing or others who need to see a speaker’s mouth or

facial expressions to understand speech or sign language respectively. Face coverings

can be manufactured or homemade, and they can incorporate a variety of designs,

structures, and materials. Face coverings provide variable levels of protection based on

their design and construction.

As explained in paragraph (i), face covering use is required based on an

employee’s vaccination status. The criteria in the definition help to ensure that face

coverings that are worn by workers who are not fully vaccinated will provide effective

source control and some degree of personal protection. Source control means reducing

the spread of large respiratory droplets to others by covering a person’s mouth and nose.

The personal protection afforded by face coverings, as well as the benefits and necessity,

are described in the Summary and Explanation for paragraph (i) (Section VI.I. of this

preamble).

Face coverings differ from facemasks and respirators, which are also defined in

paragraph (c) of this section. Face coverings, unlike facemasks and respirators, are not

considered to be personal protective equipment (PPE) under OSHA’s general PPE

standard (29 CFR 1910.132), as discussed in the Summary and Explanation for paragraph

(i) (Section VI.I. of this preamble).

Lastly, face coverings as required by this standard do not have to meet a

consensus standard, although face coverings that adhere to such consensus standards,

with design and construction specifications, meet the definition and may offer both

greater protection and the confidence that at least a minimum level of protection has been

provided. The National Institute for Occupational Safety and Health (NIOSH)

recommends that employers and workers who want a face covering that provides a

known level of protection use face coverings that meet a new standard, called Workplace
Performance and Workplace Performance Plus masks, for workplaces. As discussed in

the Summary and Explanation for paragraph (i) (Section VI.I. of this preamble), the new

NIOSH criteria and the ASTM Specification for Barrier Face Coverings, F3502-21

(ASTM Standard) provide a greater level of source control performance for workers

when wearing the face covering according to manufacturer’s instructions. The NIOSH

criteria require that face coverings conform to the ASTM Standard and meet additional

quantitative leakage criteria. Although not required by the standard, OSHA notes that

face coverings that meet ASTM F3502-21 requirements and the new NIOSH criteria may

offer a higher level of source control and wearer protection than those face coverings that

do not meet a consensus standard.

A “facemask” means a surgical, medical procedure, dental, or isolation mask that

is FDA-cleared, authorized by an FDA EUA, or offered or distributed as described in an

FDA enforcement policy. Facemasks may also be referred to as “medical procedure

masks.” This definition provides clarification about the exception to the face covering

requirement under paragraph (i)(1)(iii) that permits facemask use in lieu of face

coverings. OSHA notes that facemasks are not respirators, which are also defined in this

section.

Facemasks provide protection against exposure to splashes, sprays, and spatter of

body fluids. Facemasks offer both source control, as defined in this section under face

coverings, and protection for the wearer. OSHA has previously established that

facemasks are essential PPE for employees in healthcare, under both the general PPE

standard (29 CFR part 1910.132) and the Bloodborne Pathogens standard (29 CFR part

1910.1030). Although not required, the Summary and Explanation for paragraph (i)

(Section VI.I. of this preamble) addresses their inclusion in this standard. Additional

information on such facemasks can be found in relevant FDA guidance.

 “Fully vaccinated” means (i) a person’s status 2 weeks after completing primary

vaccination with a COVID-19 vaccine with, if applicable, at least the minimum

recommended interval between doses in accordance with the approval, authorization, or

listing that is: (A) approved or authorized for emergency use by the FDA; (B) listed for

emergency use by the World Health Organization (WHO); or (C) administered as part of

a clinical trial at U.S. site, if the recipient is documented to have of primary vaccination

with the “active” (not placebo) COVID-19 vaccine candidate, for which vaccine efficacy

has been independently confirmed (e.g., by a data and safety monitoring board) or if the

clinical trial participant from the U.S. sites had received a COVID-19 vaccine that is

neither approved nor authorized for use by the FDA but is listed for emergency use by the

WHO. Currently-authorized FDA vaccines include Janssen (Johnson & Johnson), which

is a single-dose primary vaccination, and Pfizer-BioNTech and Moderna, which have a

two-dose primary vaccination series. This definition is consistent with the CDC definition

of fully vaccinated (CDC, September 16, 2021).

The definition of “fully vaccinated” also means a person’s status 2 weeks after

receiving the second dose of any combination of two doses of a COVID-19 vaccine that

is approved or authorized by the FDA, or listed as a two-dose series by the WHO (i.e.,

heterologous primary series of such vaccines, receiving doses of different COVID-19

vaccines as part of one primary series). The second dose of the series must not be

received earlier than 17 days (21 days with a 4-day grace period) after the first dose

(CDC, October 15, 2021). OSHA has included this because people who have received a

heterologous primary vaccination series (including mixing of mRNA, adenoviral, and

mRNA plus adenoviral products) are considered by the CDC to also meet this definition.

OSHA considers a vaccination series that meets the definition in subparagraph (ii) to be a

primary vaccination for purposes of the requirements to support vaccination in paragraph

(f).
 The employer obligations under the ETS differ based on whether each employee

is fully vaccinated. This definition is relevant to the definition of mandatory vaccination

policy, in this paragraph (c), as well as the provisions under paragraph (d) regarding

written vaccination policy requirements and relevant procedures for workers who are

fully vaccinated. Paragraph (e)(2) also addresses fully vaccinated employees, including

the determination of vaccination status and acceptable forms of proof. Lastly, the

definition provides clarity with regard to the requirements of paragraphs (g) and (i)

respectively, which contain requirements for regular COVID-19 testing and face covering

use among employees who are not fully vaccinated.

Paragraph (e) requires employers to determine each employee’s vaccination

status, including whether they are fully or partially vaccinated. By “partially vaccinated,”

OSHA means someone who has started a primary vaccination series but not completed it

(e.g., has received one dose of a two-dose series) or has completed their primary

vaccination and two weeks have not elapsed since the last dose of the primary

vaccination.

A “mandatory vaccination policy” is an employer policy requiring each

employee to be fully vaccinated. To meet the definition of a mandatory vaccination

policy, the policy must require: vaccination of all employees, including vaccination of all

new employees as soon as practicable, other than those employees (1) for whom a

vaccine is medically contraindicated, (2) for whom medical necessity requires a delay in

vaccination,91 or (3) who are legally entitled to a reasonable accommodation under

federal civil rights laws because they have a disability or sincerely held religious beliefs,

practices, or observances that conflict with the vaccination requirement. OSHA intends

that “employee,” as used in this definition, includes only employees that are covered by

91As defined by CDC’s informational document, Summary Document for Interim Clinical Considerations
for Use of COVID-19 Vaccines Currently Authorized in the United States (CDC, September 29, 2021).
this ETS and does not include employees who are excluded from coverage under

paragraph (b)(3).

Paragraph (d)(1) of the standard requires an employer to establish, implement,

and enforce a written mandatory vaccination policy that meets this definition. The

benefits of vaccination, including the effectiveness of vaccination mandates, are

discussed in Grave Danger (Section III.A. of this preamble) and Need for the ETS

(Section III.B. of this preamble).

OSHA recognizes that vaccination policies may vary, as indicated in paragraph

(d)(2). Any policy that permits the employee to choose between vaccination and COVID-

19 testing and face covering use would not be considered a mandatory vaccination policy

under paragraph (d)(1), although such policy is permissible under paragraph (d)(2). In

some cases, employers may implement vaccination policies that differ by location or type

of business operation and thus the application of paragraph (d)(2) might vary across an

employer’s workforce. This is discussed in greater detail in the Summary and

Explanation for paragraph (d) (Section VI.D. of this preamble).

A “respirator” is a type of PPE that is certified by NIOSH under 42 CFR part 84

or is authorized under an EUA by the FDA. These specifications are intended to ensure

some consistent level of testing, approval, and protection and to prevent the use of

counterfeit respirators that will not offer adequate protection, which is important because

respirators are intended to protect the wearer when directly exposed to hazards.

Respirators protect against airborne hazards by removing specific air contaminants from

the ambient (surrounding) air or by supplying breathable air from a safe source. Common

types of respirators include filtering facepiece respirators (e.g., N95), elastomeric

respirators, and powered air-purifying respirators (PAPRs). Face coverings, facemasks,

and face shields are not respirators.

 As stated above, there are various types of respirators that would fall within this

definition. A filtering facepiece respirator (FFR) is a negative-pressure particulate

respirator with a non-replaceable filter as an integral part of the facepiece or with the

entire facepiece composed of the non-replaceable filtering medium. N95 FFRs are the

most common type of FFR and are the type of respirator most often used to control

exposures to infections transmitted via the airborne route. When properly worn, N95

FFRs filter at least 95% of airborne particles. An elastomeric respirator is a tight-fitting

respirator with a facepiece that is made of synthetic or rubber material that permits it to

be disinfected, cleaned, and reused according to the manufacturer’s instructions.

Elastomeric respirators are equipped with replaceable cartridges, canisters, or filters.

Lastly, a powered air-purifying respirator (PAPR) is an air-purifying respirator that uses

a blower to force the ambient air through air-purifying elements to the inlet covering.

This standard does not require the use of respirators. This definition is included

because it relates to paragraph (i)(1)(iii), which exempts employees from wearing face

coverings when they are wearing respirators or facemasks. In addition, paragraph (i)(4)

requires employers to permit employees to wear a respirator instead of a face covering

and permits employers to provide respirators to their employees, instead of face

coverings. When respirators are used pursuant to paragraph (i)(4), the employer must also

comply with § 1910.504, the Mini Respiratory Protection Program.

NIOSH has developed a set of regulations in 42 CFR part 84 for testing and

certifying non-powered, air-purifying, particulate-filter respirators. To help address

concerns about availability during the COVID-19 pandemic, the FDA has issued EUAs

for certain PPE products, including respiratory protective devices such as respirators. For

the purposes of this standard, respirators certified by NIOSH, under 42 CFR part 84 or

authorized under an EUA by the FDA meet the definition. Additional information on

such respirators can be found in relevant FDA and NIOSH guidance.

 A “workplace” is a physical location (e.g., fixed, mobile) where the employer’s

work or operations are performed. It does not include an employee’s residence, even if

the employee is teleworking from their residence. Examples of fixed locations include:

offices, retail establishments, co-working facilities, and factories or manufacturing

facilities. A workplace includes the entire 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). The workplace 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. Examples of

employees who have mobile workplaces include maintenance and repair technicians who

go to homes or businesses to provide repair services, or those who provide delivery

services.

References:

Centers for Disease Control and Prevention (CDC). (2021, June 14). Nucleic Acid
Amplification Tests. https://www.cdc.gov/coronavirus/2019-ncov/lab/naats.html. (CDC,
June 14, 2021).

Centers for Disease Control and Prevention (CDC). (2021, September 16). When You’ve
Been Fully Vaccinated: How to Protect Yourself and Others.
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated.html. (CDC,
September 16, 2021)

Centers for Disease Control and Prevention (CDC). (2021, September 29). Summary
Document for Interim Clinical Considerations for Use of COVID-19 Vaccines Currently
Authorized in the United States. https://www.cdc.gov/vaccines/covid-
19/downloads/summary-interim-clinical-considerations.pdf. (CDC, September 29, 2021)

Centers for Disease Control and Prevention (CDC). (2021, October 7). Interim Guidance
for SARS-CoV-2 Testing in Non-Healthcare Workplaces.
https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/testing-non-
healthcare-workplaces.html. (CDC, October 7, 2021)

Centers for Disease Control and Prevention (CDC). (2021, October 15). Interim Public
Health Recommendations for Fully Vaccinated People.
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html.
(CDC, October 15, 2021)
Equal Employment Opportunity Commission (EEOC). (2021, October 25). What You
Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO
Laws. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-
rehabilitation-act-and-other-eeo-laws. (EEOC, October 25, 2021)

Food and Drug Administration (FDA). (2020, November 16). COVID-19 Test Settings:
FAQs on Testing for SARS-CoV-2. https://www.fda.gov/medical-devices/coronavirus-
covid-19-and-medical-devices/covid-19-test-settings-faqs-testing-sars-cov-2. (FDA,
November 16, 2020)

Food and Drug Administration (FDA). (2021a, October 14). In Vitro Diagnostics EUAs -
Antigen Diagnostic Tests for SARS-CoV-2. https://www.fda.gov/medical-
devices/coronavirus-disease-2019-covid-19-emergency-use-authorizations-medical-
devices/in-vitro-diagnostics-euas-antigen-diagnostic-tests-sars-cov-2. (FDA, October 14,
2021a)

Food and Drug Administration (FDA). (2021b, October 14)). In Vitro Diagnostics EUAs
- Molecular Diagnostic Tests for SARS-CoV-2. https://www.fda.gov/medical-
devices/coronavirus-disease-2019-covid-19-emergency-use-authorizations-medical-
devices/in-vitro-diagnostics-euas-molecular-diagnostic-tests-sars-cov-2. (FDA, October
14, 2021b)

Schulte P et al. (2021, May 19). Proposed Framework for Considering SARS-CoV-2
Antigen Testing of Unexposed Asymptomatic Workers in Selected Workplaces. J Occup
Environ Med. 2021 Aug; 63(8): 646–656. Published online 2021, May 19.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8327768/. (Schulte et al., May 19, 2021)

D. Employer Policy on Vaccination

Vaccination is a vital tool to reduce the presence and severity of COVID-19 cases

in the workplace, in communities, and in the nation as a whole. Despite the robust

protection against COVID-19 that vaccination affords, millions of eligible individuals

have not yet been vaccinated. Current efforts to increase the proportion of the U.S.

population that is fully vaccinated against COVID-19 are critical to ending the COVID-

19 pandemic (CDC, September 15, 2021). As described more fully in Need for the

ETS (Section III.B. of this preamble), mandatory vaccination policies work. Therefore,

OSHA has determined that requiring or strongly encouraging vaccination – the most

effective and efficient control for reducing COVID-19 – is key to ensuring the protection

of workers against the grave danger of exposure to SARS-CoV-2 in the workplace (see

Grave Danger, Section III.A. of this preamble). Therefore, this ETS requires employers

to adopt mandatory vaccination policies for their workplaces, with an exception for
employers that instead adopt a policy allowing employees to elect to undergo regular

COVID-19 testing and wear a face covering at work in lieu of vaccination. In Need for

the ETS (Section III.B of this preamble), OSHA explains its rationale for providing the

exception.

Paragraph (d) of this ETS is a critical element in ensuring employees’ protection,

as it requires covered employers to develop, implement, and enforce written policies on

COVID-19 vaccination for their workforces. Paragraph (d)(1) requires the employer to

establish, implement, and enforce a written mandatory vaccination policy. As defined in

paragraph (c), a mandatory vaccination policy is an employer policy requiring each

employee to be fully vaccinated. Such a policy must require vaccination of all employees,

other than those employees who fall into one of three categories: (1) those for whom a

vaccine is medically contraindicated, (2) those for whom medical necessity requires a

delay in vaccination, or (3) those who are legally entitled to a reasonable accommodation

under federal civil rights laws because they have a disability or sincerely held religious

beliefs, practices, or observances that conflict with the vaccination requirement. The

policy must also require all new employees to be vaccinated as soon as practicable.

Paragraph (d)(2) is a limited exemption from the mandatory vaccination policy

requirement. As discussed in Need for the ETS (Section III.B. of this preamble),

vaccination mandates are effective at increasing overall vaccination rates and protecting

employees and, therefore, the agency encourages all employers to implement a

mandatory vaccination policy. Under paragraph (d)(2), however, employers can avoid the

mandate in paragraph (d)(1) if the employer establishes, implements, and enforces a

written policy allowing any employee not subject to a mandatory vaccination policy to

choose either to: (1) be fully vaccinated against COVID-19 or (2) provide proof of

regular testing for COVID-19 in accordance with paragraph (g) of this section and wear a

face covering in accordance with paragraph (i). An employer who chooses to operate
under paragraph (d)(2), however, must still offer the support for vaccination required

under paragraph (f) and may not prevent employees from getting vaccinated. Adopting a

policy under paragraph (d)(2) simply means that employees themselves may choose not

to get vaccinated, in which case they must get tested and wear face coverings per the

requirements of the standard.

OSHA recognizes there may be employers who develop and implement partial

mandatory vaccination policies, i.e., that apply to only a portion of their workforce. An

example might be a retail corporation employer who has a mixture of staff working at the

corporate headquarters, performing intermittent telework from home, and working in

stores serving customers. In this type of situation, the employer may choose to require

vaccination of only some subset of its employees (e.g., those working in stores), and to

treat vaccination as optional for others (e.g., those who work from headquarters or who

perform intermittent telework). This approach would comply with the standard so long as

the employer complies in full with paragraph (d)(1) and (d)(2) for the respective groups.

OSHA uses the terms establish, implement, and enforce in paragraph (d) to

emphasize that it is necessary for an employer to first determine its policy and create a

written record of that policy. After determining the policy, an employer must then ensure

that it is following the policy, as laid out in its written plan. Finally, employers must

ensure that they enforce the requirements of their policies with respect to their workforce,

through training and the use of such mechanisms as work rules and the workplace

disciplinary system, if necessary. These requirements apply to the written policy required

under paragraph (d), whether employers choose to implement the mandatory vaccination

policy under paragraph (d)(1) or utilize the exemption under paragraph (d)(2) for all or a

portion of their workforce.

To ensure that employers’ vaccination policies under paragraph (d) are

comprehensive and effective, the policies should address all of the applicable
requirements in paragraphs (e)-(j) of this standard, including: requirements for COVID-

19 vaccination; applicable exclusions from the written policy (e.g., medical

contraindications, medical necessity requiring delay in vaccination, or reasonable

accommodations for workers with disabilities or sincerely held religious beliefs);

information on determining an employee’s vaccination status and how this information

will be collected (as described in paragraph (e)); paid time and sick leave for vaccination

purposes (as described in paragraph (f)); notification of positive COVID-19 tests and

removal of COVID-19 positive employees from the workplace (as described in paragraph

(h)); information to be provided to employees (pursuant to paragraph (j) – e.g., how the

employer is making that information available to employees); and disciplinary action for

employees who do not abide by the policy. In addition to addressing the requirements of

paragraphs (e)-(j) of this standard, the employer should include all relevant information

regarding the policy’s effective date, who the policy applies to, deadlines (e.g., for

submitting vaccination information, for getting vaccinated), and procedures for

compliance and enforcement, all of which are necessary components of an effective plan.

Having a comprehensive written policy will provide a solid foundation for an effective

COVID-19 vaccination program, while making it easier for employers to inform

employees about the program-related policies and procedures, as required under

paragraph (j)(1).

If an employer utilizes the exemption under paragraph (d)(2), its workplace may

contain employees who are vaccinated and unvaccinated. This might be the case even for

employers who establish a mandatory vaccination policy under paragraph (d)(1); for

example, an employer with a mandatory vaccination policy might have employees who

cannot be vaccinated for medical reasons. Given the additional safety protocols under this

standard for individuals who are not fully vaccinated (see paragraphs (g) and (i)), an

employer who has both vaccinated and unvaccinated employees will have to develop and
include the relevant procedures for two sets of employees in the written policy. The

procedures for those who are fully vaccinated should contain all the information

previously discussed relevant to establishing, implementing, and enforcing a

comprehensive written policy. However, the procedures applicable to employees who are

not fully vaccinated (i.e., those who decline vaccination, those who are unable to receive

vaccination and are, absent undue hardship to their employers, entitled to reasonable

accommodation) and those who are unable to provide proof of vaccination as required by

paragraph (e) (who must be treated as not fully vaccinated), must include COVID-19

testing and face covering use as required by paragraphs (g) and (i), respectively, unless

the reasonable accommodation from vaccination removes the employee from the scope of

§ 1910.501 (e.g., full time telework consistent with one of the exceptions in §

1910.501(b)(3)). OSHA intends that such an employer will develop one written plan that

includes different policies and procedures for vaccinated and unvaccinated employees.

The requirements of paragraphs (e), (f), (h), and (j) should be addressed in the policy

regardless of the vaccination requirements adopted by the employer.

As with all elements of the written plan, an effective written plan will explain the

testing requirements contained in paragraph (g) for unvaccinated employees, and how the

employer will implement and enforce those policies. As described in paragraph (g)(1),

the testing requirements differ for employees who report at least once every 7 days to a

workplace compared to those who do not. Thus, the policy may describe different testing

procedures for those different groups of employees, depending on how often they

physically report to a workplace where other individuals are present. As described in

paragraph (g)(3), the testing requirements are temporarily suspended for 90 days

following a positive COVID-19 test or diagnosis. Thus, the employer’s policy and

procedures to implement this temporary suspension of testing should be included in their

written workplace policy. In addition to the testing requirements in paragraph (g), an

effective policy must address mandatory face covering use as described in paragraph (i),

including procedures for employee compliance. Employers can get more information on

the requirements for paragraphs (e) through (j), and what they must do to comply with

those provisions of the standard, in the relevant Summary and Explanation sections (see

Section VI. of this preamble).

As an employer develops their written policy, they must address how the policy

will apply to new employees. Although many new hires will be fully vaccinated, there

should be procedures within the plan to collect information about the new employee’s

vaccination status, and determine when an unvaccinated new hire must be vaccinated

and, for employers using a plan under paragraph (d)(2), when COVID-19 testing and face

covering use will commence if an employee remains unvaccinated. All new hires should

be treated similarly to any employee who has not entered the workplace in the last seven

days and will need to be fully vaccinated or provide proof of a negative COVID-19 test

within the last seven days prior to entering the workplace for the first time. It is not

OSHA’s intention to discourage employers from hiring new employees, but rather to

ensure that new employees are as well-protected from COVID-19 hazards in the

workplace as current employees and are less likely to spread the virus to other

employees.

An employer may have already developed and implemented a written policy on

vaccination, testing, and/or face covering use to protect employees from COVID-19. It is

not OSHA’s intent for employers to duplicate current effective policies covering the

requirements of this ETS; however, each employer with a current policy must evaluate

that policy to ensure it satisfies all of the requirements of this rule. Employers with

existing policies must modify and/or update their current policies to incorporate any

missing required elements, and must provide information on these new updates or

modifications to all employees in accordance with paragraph (j)(1). Once the employer
has developed its policy pursuant to paragraph (d), the policy must be reduced to writing

in order to be compliant with paragraph (d).

The note to paragraph (d) was included in recognition that, under federal law,

some employees may be entitled to a reasonable accommodation from their employer,

absent undue hardship. If the worker requesting a reasonable accommodation cannot be

vaccinated and/or wear a face covering because of a disability, as defined by the

Americans with Disabilities Act (ADA), that worker may be entitled to a reasonable

accommodation. In addition, if the vaccination, and/or testing for COVID-19, and/or

wearing a face covering conflicts with a sincerely held religious belief, practice or

observance, a worker may be entitled to a reasonable accommodation. Such

accommodations exist independently of the Occupational Safety and Health Act and,

therefore, OSHA does not administer or enforce these laws. Examples of relevant federal

laws under which an accommodation can be requested include the Americans with

Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964.

For more information, the note refers to a resource produced by the Equal

Employment Opportunity Commission (EEOC), which is responsible for enforcing

federal laws that prohibit employment-related discrimination based on a person's race,

color, religion, sex (including pregnancy, gender identity, and sexual orientation),

national origin, age (40 or older), disability, or genetic information. The EEOC resource

listed in the note, What You Should Know About COVID-19 and the ADA, the

Rehabilitation Act, and Other EEO Laws, available at https://www.eeoc.gov/wysk/what-

you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws, should

be helpful to employers in navigating employees’ requests for accommodations,

including the process for determining a reasonable accommodation and information on

undue hardship (EEOC, October 25, 2021). An additional resource that might be helpful

is the CDC’s informational document, Summary Document for Interim Clinical

Considerations for Use of COVID-19 Vaccines Currently Authorized in the United States

(CDC, September 29, 2021), which lists the recognized clinical contraindications to

receiving a COVID-19 vaccine.

References:

Centers for Disease Control and Prevention (CDC). (2021, September 15). Science Brief:
Background rationale and evidence for public health recommendations for fully
vaccinated people. https://www.cdc.gov/coronavirus/2019-ncov/science/science-
briefs/fully-vaccinated-people.html. (CDC, September 15, 2021)

Centers for Disease Control and Prevention (CDC). (2021, September 29). Summary
Document for Interim Clinical Considerations for Use of COVID-19 Vaccines Currently
Authorized in the United States. https://www.cdc.gov/vaccines/covid-
19/downloads/summary-interim-clinical-considerations.pdf. (CDC, September 29, 2021)

Equal Employment Opportunity Commission (EEOC). (2021, October 25). What You
Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO
Laws. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-
rehabilitation-act-and-other-eeo-laws. (EEOC, October 25, 2021)

E. Determination of Employee Vaccination Status

To comply with the requirements of the standard, it is essential that employers are

aware of each employee’s vaccination status. As discussed in the Summary and

Explanation for paragraph (d) (Section VI.D. of this preamble), effective implementation

and enforcement of a written vaccination policy requires the employer to know the

vaccination status of all employees. Furthermore, the employer must know each

employee’s vaccination status in order to ensure that the vaccination, testing, and face

covering requirements of the standard are met. As such, paragraph (e) includes provisions

for determining each employee’s vaccination status. The standard requires employers to

determine the vaccination status of each employee (paragraph (e)(1)), and also to

maintain records of each employee’s vaccination status, preserve acceptable proof of

vaccination for each employee who is fully or partially vaccinated, and maintain a roster

of each employee’s vaccination status (paragraph (e)(4)). As discussed more fully below,

maintenance of records in accordance with this paragraph is subject to applicable legal

requirements for confidentiality of medical information. Additional provisions in

paragraph (e) define acceptable proof of vaccination status for vaccinated employees

(paragraph (e)(2)) and provide that any employee who does not submit an acceptable

form of proof of vaccination status must be treated as not fully vaccinated (paragraph

(e)(3)).

Paragraph (e)(1) requires the employer to determine the vaccination status of each

employee, including whether the employee is fully vaccinated. Under paragraph

(e)(2), the employer must require each vaccinated employee to provide acceptable proof

of vaccination status, including whether they are fully or partially vaccinated. This is an

ongoing requirement for the employer (i.e., the employer needs to update this information

as employees proceed through the vaccination process).

Paragraph (e)(2) defines what “acceptable proof of vaccination status” means for

purposes of the ETS, and employers must accept any of the proofs listed in accordance

with the terms of the standard and as explained more fully below. Under paragraph (e)(2),

the following are acceptable for proof of vaccination: (i) the record of immunization from

a health care provider or pharmacy; (ii) a copy of the U.S. CDC COVID-19 Vaccination

Record Card (CDC Form MLS-319813_r, published on September 3, 2020) (CDC,

October 5, 2021); (iii) a copy of medical records documenting the vaccination; (iv) a

copy of immunization records from a public health, state, or tribal immunization

information system; or (v) a copy of any other official documentation that contains the

type of vaccine administered, date(s) of administration, and the name of the health care

professional(s) or clinic site(s) administering the vaccine(s).

To be acceptable as proof of vaccination, any documentation should generally

include the employee’s name, type of vaccine administered, date(s) of administration, and

the name of the health care professional(s) or clinic site(s) administering the vaccine(s).

In some cases, state immunization records may not include one or more of these data

fields, such as clinic site; in those circumstances, an employer can still rely upon the State
immunization record as acceptable proof of vaccination. OSHA notes that clinic sites can

include temporary vaccination facilities used during large vaccine distribution campaigns,

such as schools, churches, or sports stadiums. Copies, including digital copies, of the

listed forms of proof are acceptable means of documentation so long as they clearly and

legibly display the necessary information. Digital copies can include, for example, a

digital photograph, scanned image, or PDF of an acceptable form of proof. Some state

governments are utilizing digital COVID-19 vaccine records showing the same

information as the U.S. CDC COVID-19 Vaccination Record Card (CDC Form MLS-

319813_r, published on September 3, 2020) and providing quick response (QR) codes

that when scanned will provide the same information (see, e.g., New York State

Government, n.d., Retrieved October 4, 2021). In certain states, the QR code confirms the

vaccine record as an official record of the state (see, e.g., State of California, n.d.,

Retrieved October 7, 2021) and therefore would provide acceptable proof of vaccination

under the ETS (see paragraph (e)(2)(iv)). However, as discussed later, the employer must

retain a copy of the vaccination information retrieved when the QR code is scanned, not

just the QR code itself, to comply with paragraph (e)(4). In requesting proof of

vaccination, the employer must take care to comply with any applicable Federal laws,

including requirements under the Privacy Act, 5 U.S.C. 552a, and the Americans with

Disabilities Act (ADA), 42 U.S.C. 12101 et seq.

Each employee who has been partially or fully vaccinated should be able to

provide one of the forms of acceptable proof listed above (paragraphs (e)(2)(i)-(e)(2)(v)).

An employee who does not possess their COVID-19 vaccination record (e.g., because it

was lost or stolen) should contact their vaccination provider (e.g., local pharmacy,

physician’s office) to obtain a new copy or utilize their state health department’s

immunization information system. In instances where an employee is unable to produce

acceptable proof of vaccination under paragraphs (e)(2)(i) - (e)(2)(v), paragraph (e)(2)(vi)

provides that a signed and dated statement by the employee will be acceptable. The

employee’s statement must: (A) attest to their vaccination status (fully vaccinated or

partially vaccinated); (B) attest that they have lost or are otherwise unable to produce

proof required by the standard; and (C) include the following language: “I declare (or

certify, verify, or state) that this statement about my vaccination status is true and

accurate. I understand that knowingly providing false information regarding my

vaccination status on this form may subject me to criminal penalties.” The note to

paragraph (e)(2)(vi) explains that an employee who attests to their vaccination status

should, to the best of their recollection, include the following information in their

attestation: the type of vaccine administered; date(s) of administration; and the name of

the health care professional(s) or clinic site(s) administering the vaccine(s). For example,

some of the information may be easier to recall, such as receiving a vaccine at a mass

vaccination site or local pharmacy, while the dates of administration might only be

remembered as falling within a particular month or months. OSHA understands that

employees may not be able to recall certain information, such as the type of vaccine

received. Employees providing attestations should include as much of this information as

they can remember to the best of their ability.

Any statement provided under paragraph (e)(2)(vi) must include an attestation

that the employee is unable to produce another type of proof of vaccination (paragraph

(e)(2)(vi)(B)). Thus, before an employee statement will be acceptable for proof of

vaccination under paragraph (e)(2)(vi), the employee must have attempted to secure

alternate forms of documentation via other means (e.g., from the vaccine administrator or

their state health department) and been unsuccessful in doing so. The agency recognizes

that securing vaccination documentation may be challenging for some members of the

workforce, such as migrant workers, employees who do not have access to a computer, or

employees who may not recall who administered their vaccines (e.g., if the vaccination
was provided at a temporary location, such as a church, or during a state or local mass

vaccination campaign). Thus, for employees who have no other means of obtaining proof

of vaccination, the standard permits employers to accept attestations meeting the

requirements in paragraph (e)(2)(vi) as proof of vaccination. However, employers should

explain to their employees that they need to produce vaccination proof through the other

means listed in paragraph (e)(2), such as by contacting the vaccination administrator, if

they are able to do so. Once the employee has provided a signed and dated attestation that

meets the requirements of paragraph (e)(2)(vi), the employer no longer needs to seek out

one of the other forms of vaccination proof for that employee and, depending on the

content of the attestation, the employer may consider that employee either fully or

partially vaccinated for purposes of the ETS.

Recently, there has been evidence of fraud associated with people attesting to

their vaccination status (Bergal, September 16, 2021). While employers may not invite or

facilitate fraud, the ETS does not require employers to monitor for or detect fraud. By

defining what constitutes acceptable proof of vaccination under the ETS, OSHA is

ensuring that employers can accept proof meeting the requirements of paragraph (e) for

purposes of compliance with the standard. However, the standard’s requirements for

proof of vaccination are integral to ensuring that employees are protected appropriately,

either through vaccination (the preferred and most effective workplace control in this

ETS), or through regular testing and use of face coverings. Thus, it is paramount that

employees provide truthful information regarding their vaccination status.

As discussed in more detail in the Summary and Explanation for paragraph (j)

(Section VI.J. of this section), 18 U.S.C. 1001(a), which provides for fines or

imprisonment of generally up to 5 years for any person who “in any matter within the

jurisdiction” of the executive branch U.S. Government “knowingly and willfully”

engages in any of the following:

 (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any

materially false, fictitious, or fraudulent statement or entry.

Similarly, the OSH Act recognizes that OSHA’s ability to protect workers’ safety and

health hinges on truthful reporting. For that reason section 17(g) of the OSH Act subjects

anyone who “knowingly makes any false statement, representation, or certification in any

application, record, report, plan, or other document filed or required to be maintained

pursuant to this chapter” to criminal penalties. 29 U.S.C. 666(g). False statements made

in any proof submitted under paragraph (e)(2) of the standard could fall under either or

both of 18 U.S.C. 1001 or section 17(g) of the OSH Act. And by requiring a specific

declaration about the truth and accuracy of employee statements provided under

paragraph (e)(2)(vi), employees who are unable to provide any means of proof other than

their own attestation are being made aware that their words are being held to the same

standard of truthfulness as any other record presented for proof of vaccination.

OSHA notes that these same prohibitions on false statements and documentation

can apply to employers. If an employer knows that proof submitted by an employee is

fraudulent, and even with this knowledge, accepts and maintains the fraudulent proof as a

record of compliance with this ETS, it may be subject to the penalties in 18 U.S.C. 1001

and 17(g) of the OSH Act.

Paragraph (e)(3) provides the mechanism for employers to determine vaccination

status for employees who do not submit any of the acceptable forms of proof of

vaccination status. Under paragraph (e)(3), any employee who does not provide their

employer with one of the acceptable forms of proof of vaccination status in paragraph

(e)(2) must be treated as not fully vaccinated for the purpose of the standard. An

unvaccinated employee does not need to provide any documentation regarding

vaccination status under this ETS; however, failing to provide acceptable proof of

vaccination status will signal the employer to consider the employee as not fully

vaccinated and to note that as their status in the roster. For employers that include

COVID-19 testing in their written policies under paragraph (d), employees without

acceptable proof of vaccination status must submit to weekly tests (as required by

paragraph (g)) and wear a face covering (as required by paragraph (i)).

Paragraph (e)(4) requires the employer to maintain a record of each employee’s

vaccination status and preserve acceptable proof of vaccination for each employee who is

fully or partially vaccinated. As discussed previously, the employer has various options

for acquiring proof of vaccination from each employee. An employer may allow

employees to provide a digital copy of acceptable records, including, for example, a

digital photograph, scanned image, or PDF of such a record that clearly and legibly

displays the necessary vaccination information. However, to be in compliance with

paragraph (e)(4), the employer must ensure they are able to maintain a record of each

employee’s vaccination status. Therefore, obtaining an employee’s vaccination

information verbally would not comply with paragraph (e)(2) or satisfy the record

maintenance requirements of the standard. Similarly, the record maintenance

requirements of paragraph (e)(4) cannot be fulfilled by an employee merely showing the

employer their vaccination status (e.g., by bringing the CDC COVID-19 vaccination card

to the workplace and showing it to an employer representative or showing an employer

representative a picture of the immunization records on a personal cellphone). To satisfy

paragraph (e)(4), the employer must retain a copy of the documentation. As mentioned

above, some states and local governments utilize QR codes to facilitate proof of

vaccination. This can be an acceptable form of proof for compliance with the standard so

long as the employer retains a copy of the information retrieved by scanning the QR code

and maintains that record. Required records of vaccination status can be maintained
physically or electronically, but the employer must ensure they have access to the records

at all times.

In addition to obtaining and maintaining individual records of each employee’s

vaccination status and preserving acceptable proof of vaccination for each employee who

is partially or fully vaccinated, under paragraph (e)(4) the employer must maintain a

roster of each employee’s vaccination status, subject to applicable confidentiality

requirements. The roster must list all employees and clearly indicate for each one whether

they are fully vaccinated, partially (not fully) vaccinated, not fully vaccinated because of

a medical or religious accommodation (see Note to paragraph (d)), or not fully vaccinated

because they have not provided acceptable proof of their vaccination status. As noted

previously, any employee that has not provided acceptable proof of their vaccination

status must be treated as not fully vaccinated. Although unvaccinated employees will not

have proof of vaccination status, the standard requires the employer to include all

employees, regardless of vaccination status, on the roster.

The roster allows the employer to easily access the vaccination status for any

employee quickly and easily. This will be useful should the employer need to respond to

a request from an employee or employee representative for the aggregate number of fully

vaccinated employees at a workplace (along with the total number of employees at that

workplace), as required under paragraph (l)(2). Additionally, the roster will help the

employer implement the written policy developed in accordance with paragraph (d) and

comply with other requirements of the ETS. And finally, the roster, which must be

provided to OSHA on request (paragraph (l)(3)), will aid OSHA’s ability to effectively

and efficiently enforce this ETS.

The records and roster required by paragraph (e)(4) are considered to be employee

medical records and must be maintained as such records in accordance with 29 CFR

1910.1020 and must not be disclosed except as required or authorized by this ETS or
other federal law, including the Americans with Disabilities Act (ADA), 42 U.S.C. 12101

et seq. These records and roster are not subject to the retention requirements of 29 CFR

1910.1020(d)(1)(i) but must be maintained and preserved while this ETS remains in

effect. OSHA considers vaccination records required by paragraphs (e)(2) and (e)(4) of

the ETS to be employee medical records concerning the health status of an employee and

is requiring this personally identifiable medical information to be maintained in a

confidential manner. OSHA notes that under paragraph (e)(4), vaccination records and

rosters are employee medical records, and must be treated as employee medical records

under 29 CFR 1910.1020, without regard to whether the records satisfy the definition of

employee medical record at 29 CFR 1910.1020(c)(6)(i).

Paragraph (e) in 29 CFR 1910.1020 includes requirements for access to employee

medical records by employees, their designated representatives, and OSHA. However, as

discussed in more detail below, paragraph (l) of the ETS includes specific timeframes

within which employers must make vaccine records available to employees, OSHA, and

other specified individuals. Accordingly, the timeframes for providing access to

employee medical records in 29 CFR 1910.1020(e) do not apply, and employers must

follow the specific timeframes set forth in paragraph (l) of the ETS for providing access

to vaccination records.

Additionally, 29 CFR 1910.1020(d) addresses the preservation of employee

exposure and medical records. Paragraph (d)(1)(i) in section 1910.1020 generally

provides that unless a specific occupational safety and health standard provides a

different period of time, each employer must preserve and maintain employee medical

records for at least the duration of employment plus thirty (30) years. Paragraph (e)(4) of

the ETS specifically provides that the vaccination records required by the ETS are not

subject to the retention requirements of 29 CFR 1910.1020(d)(1)(i). Instead, paragraph

(e)(4) states that vaccination records must be maintained and preserved only so long as

the ETS remains in effect.

Finally, while the provisions on timeframes for access to records and the retention

provisions of 29 CFR 1910.1020 do not apply to vaccine records required by the ETS,

other provisions in that regulation can still apply. For example, 29 CFR 1910.1020(h)

includes requirements for the transfer of employee medical records when an employer

ceases to do business.

OSHA recognizes the possibility that an employer may have already collected

information about the vaccination status of employees, including proof of vaccination,

prior to the effective date of this ETS. Under paragraph (e)(5), when an employer has

ascertained employee vaccination status prior to the effective date of the ETS through

another form of attestation or proof, and retained records of that ascertainment, the

employer is exempt from the requirements in paragraphs (e)(1) - (e)(3). The exemption

applies only for each employee whose fully vaccinated status has been documented prior

to the effective date of the standard. For example, an employer may have asked each

employee to self-report their vaccination status without requiring the employee to provide

any form of proof. If that self-reporting was through oral conversation only, and not

documented in some way, the employer is not considered to have retained records of that

ascertainment for the purposes of this ETS. However, if, for example, the employer had

the employees provide their vaccine information on a dated form, or through individual

emails retained by the employer, or on an employer portal specifically created for

employees to provide documentation status, or the employer created and retained some

other means of documentation, the employer is considered to have retained records of

ascertainment for the purposes of this ETS. Even if the record does not have all of the

elements of the acceptable forms of proof listed in paragraph (e)(2), so long as the

employer has ascertained employee vaccination status prior to the effective date of the
ETS through another form of attestation or proof, and retained records of that

ascertainment, the employer does not need to re-determine vaccination status (paragraph

(e)(1)) or obtain proof of vaccination status (paragraph (e)(2)) for fully vaccinated

employees. For purposes of paragraph (e)(4), the employer’s records of vaccination

status for each employee whose fully vaccinated status was previously documented

constitute acceptable proof of vaccination. However, the employer must still develop a

roster of each employee’s vaccination status and include on that roster the employees for

whom it had previously determined and retained records of vaccination status. OSHA

notes that if the employer has not ascertained employee vaccination status for employees

prior to the effective date of the ETS, then all requirements of paragraph (e) would apply.

And all requirements of paragraph (e) also apply with respect to employees for whom the

employer ascertained only partial vaccination status prior to the effective date of the ETS.

References:

Bergal J. (2021, September 16). Fake Vaccine Card Sales Have Skyrocketed Since Biden
Mandate. https://www.pewtrusts.org/en/research-and-
analysis/blogs/stateline/2021/09/16/fake-vaccine-card-sales-have-skyrocketed-since-
biden-mandate. (Bergal, September 16, 2021).

Centers for Disease Control and Prevention (CDC). (2021, October 5). Getting Your
CDC COVID-19 Vaccination Record Card. https://www.cdc.gov/coronavirus/2019-
ncov/vaccines/vaccination-card.html. (CDC, October 5, 2021)

New York State Government. (n.d.) Excelsior Pass and Excelsior Pass Plus. Retrieved
October 4, 2021 from https://covid19vaccine.health.ny.gov/excelsior-pass-and-excelsior-
pass-plus. (New York State Government, n.d., Retrieved October 4, 2021)

State of California. (n.d.) Frequently Asked Questions. Retrieved October 7, 2021

from https://myvaccinerecord.cdph.ca.gov/faq. (State of California, n.d., Retrieved
October 7, 2021)

F. Employer Support for Employee Vaccination

As discussed in the Summary and Explanation for paragraph (d) (Section VI.D. of

this preamble), as well as in Grave Danger and Need for the ETS (Sections III.A. and

III.B. of this preamble), vaccination is the single most efficient and effective method for

protecting unvaccinated workers from the grave danger posed by COVID-19. This
emergency temporary standard is therefore designed to strongly encourage vaccination.

As discussed in detail below, paragraph (f) requires employers to support vaccination by

providing employees reasonable time, including up to four hours of paid time, to receive

each primary vaccination dose, and reasonable time and paid sick leave to recover from

side effects experienced following each primary vaccination dose. For purposes of the

requirements to support vaccination in paragraph (f), OSHA considers a vaccination

series that meets the criteria in subparagraph (ii) of the definition of “fully-vaccinated”

(i.e., a heterologous primary series of such vaccines, receiving doses of different COVID-

19 vaccines as part of one primary series) to be a primary vaccination series, along with

the primary vaccination described in subparagraph (i) of that definition (see the Summary

and Explanation for paragraph (c), Section VI.C. of this preamble, for more information

on the definition of fully vaccinated).

Removing logistical barriers to obtaining vaccination is essential to increasing

workforce vaccination rates, and one such barrier for many employees is their lack of

time off of work to receive the vaccine and recover from any potential side effects (SEIU

Healthcare, February 8, 2021). Employees’ concerns about missing work to obtain and

recover from a COVID-19 vaccination dose are well documented. In a McKinsey survey,

12% of respondents stated that the time spent away from work to get vaccinated or due to

vaccine side effects was a barrier to vaccination (Azimi et al., April 9, 2021). In a survey

conducted of unvaccinated adults in April 2021, a fifth of respondents said they were

very or somewhat concerned that they may need to take time off to go and get the

vaccine, and 48% of respondents said that they were very or somewhat concerned that

they might miss work if the vaccine side effects make them feel sick (KFF, May 6, 2021).

Black and Hispanic adults were particularly worried about the potential time necessary to

receive the vaccine and to recover from vaccine side effects; 64% of unvaccinated

Hispanic adults and 55% of unvaccinated Black adults expressed concern that they might
have to miss work due to the side effects of a COVID-19 vaccine, and 30% of Hispanic

adults and 23% of Black adults were concerned that they might need to take time off

work to get a COVID-19 vaccine (KFF, May 6, 2021; KFF, May 17, 2021). News and

journal articles further evince this concern (Roy et al., December 29, 2020; Cleveland

Documenters, 2021; Rosenberg and Stein, August 18, 2021).

This concern reflects the fact that many workers do not have access to paid time

off to receive vaccination or to recover from side effects. A KFF survey found that only

half of all workers reported that their employer provided them with paid time off either to

get a COVID-19 vaccine or to recover from any side effects (KFF, June 30, 2021). A

subsequent KFF survey found that only about one-third of workers were sure that their

employer offered them paid time off to get a COVID-19 vaccine and recover from side

effects (KFF, September 28, 2021). Although employee access to paid sick leave is less

of a concern for employers with 100 or more employees, approximately 12% of

employees in these situations do not have paid sick leave (BLS, September 2021) and in

some cases, employees may have already exhausted paid sick leave they have received

and would need additional time from their employers to recover from vaccine side

effects.

The scarcity of paid time off for vaccination and side effect recovery is

particularly acute for certain demographic groups. The June 2021 KFF survey found that

only 38% of Black workers reported getting either paid time off to get a COVID-19

vaccine or to recover from side effects, and that only 41% of workers with household

incomes less than $40,000 annually had access to such paid time off (KFF, June 30,

2021). Similarly, the September 2021 KFF survey found that lower-wage workers were

particularly unlikely to report access to paid time off for vaccination or recovery, with

only 23% of workers whose household incomes was less than $40,000 reporting that they

could take paid time off to get vaccinated, and only 28% of that group reporting that they
could take paid time off to recover from side effects (KFF, September 28, 2021). Lower-

wage workers’ lack of access to paid time off for vaccination comports with a different

report indicating that, before the pandemic, about 65% of the lowest-wage workers had

no access to paid sick leave, meaning that any time off for vaccination or recovery would

result in lost wages for those who can least afford those losses (BLS, September 2021).

The need for paid time off to receive vaccination is also particularly important for

workers with disabilities and workers in rural areas because travel to and from

vaccination sites may take more time or be more logistically difficult for those

populations (National Safety Council, 2021).

Paying workers for the time spent to receive vaccination and to recover from side

effects has proven to be an effective method for increasing vaccination rates. In June

2021, KFF found that approximately 75% of employed adults surveyed who received

paid time off to get the vaccine or to recover from side effects had received at least one

dose of the vaccine compared to only 51% of those surveyed who did not receive paid

time off from their employer (KFF, June 30, 2021). KFF also found that employees who

are provided paid time off and are encouraged by their employers to get vaccinated are

more likely to get vaccinated, even after controlling for demographic characteristics that

may impact vaccination uptake (KFF, June 30, 2021). Another KFF survey found that

28% of unvaccinated respondents who did not want to get the vaccine as soon as possible

said that they would be more likely to obtain vaccination if their employer gave them

paid time off to get vaccinated and recover from any side effects (KFF, May 6, 2021).

KFF has also found that increasing access to paid leave for vaccination or recovery from

side effects can also help further reduce disparities in vaccination by age and income

(KFF, September 28, 2021).

In a different survey, paid time off for vaccination and the recovery period post-

vaccination was the single most-influential action for encouraging employee vaccination,
with 75% of respondents indicating that such paid time off would significantly or

moderately increase the likelihood that they would get vaccinated (Azimi et al., April 9,

2021). Another survey of nearly 9,000 service workers across large grocery, retail, food

service, pharmacy, and delivery firms, found that vaccination rates were lower than other

frontline workers who also regularly work in-person and indoors, and when employers

supported and facilitated vaccination, such as through providing paid time off or paid sick

leave for vaccination or for recovery from side effects, employee vaccination rates were

higher than if no support was provided, and in May 2021, workers with paid sick leave

were 15% more likely to have gotten the vaccine than workers without such leave

(Bellew et al., June 2021).

To address this barrier to vaccination, paragraph (f) requires employers to support

COVID-19 vaccination by providing each employee with reasonable time, including up

to four hours of paid time, to receive each primary vaccination dose, and reasonable time

and paid sick leave to recover from side effects experienced following any primary

vaccination dose. Providing this time is essential for all unvaccinated employees who are

covered by this rule to ensure that they can receive primary vaccination dose(s) and

recover from side effects without sacrificing pay or their jobs. In workplaces where

employers implement a mandatory vaccination policy in accordance with paragraph

(d)(1) of this rule, the requirements of paragraph (f) ensure that employees are able to

comply with the mandatory vaccination policy without concern about missing work to do

so. In workplaces where the employer opts out of implementing a mandatory vaccination

policy in accordance with paragraph (d)(2), the requirements of paragraph (f) encourage

employees to choose vaccination, and ensure that employees who choose to obtain

vaccination, rather than be regularly tested for COVID-19 and wear a face covering in

most situations when they work near others, are not penalized for making that choice.
 Paragraph (f)(1) requires employers to support COVID-19 vaccination for each

employee by providing reasonable time to each employee during work hours for each of

their primary vaccination dose(s), including up to four hours of paid time, at the

employee’s regular rate of pay, for the purposes of vaccination. Reasonable time may

include, but is not limited to, time spent during work hours related to the vaccination

appointment(s), such as registering, completing required paperwork, all time spent at the

vaccination site (e.g., receiving the vaccination dose, post-vaccination monitoring by the

vaccine provider), and time spent traveling to and from the location for vaccination

(including travel to an off-site location (e.g., a pharmacy), or situations in which an

employee working remotely (e.g., telework) or in an alternate location must travel to the

workplace to receive the vaccine).

Employers are not, however, obligated by this ETS to reimburse employees for

transportation costs (e.g., gas money, train/bus fare, etc.) incurred to receive the

vaccination. This could include the costs of travel to an off-site vaccination location (e.g.,

a pharmacy) or travel from an alternate work location (e.g., telework) to the workplace to

receive a vaccination dose.

Because employers are required to provide reasonable time for vaccination during

work hours, if an employee chooses to receive a primary vaccination dose outside of

work hours, employers are not required to grant paid time to the employee for the time

spent receiving the vaccine during non-work hours. However, even if employees receive

a primary vaccination dose outside of work hours, employers must still afford them

reasonable time and paid sick leave to recover from side effects that they experience

during scheduled work time in accordance with paragraph (f)(2).

An employer may make other efforts to facilitate vaccination of its employees by,

for example, hosting a vaccine clinic at the workplace (e.g., mobile trailer) or partnering

with another entity, such as a pharmacy or healthcare provider, so that employees can be
vaccinated at the workplace or at an off-site location. If an employer chooses to make the

vaccine available to its employees, it must support full vaccination (i.e., provide all doses

in a primary vaccination, as applicable), and assure the availability of reasonable time

and paid time to each employee to receive the full primary vaccination, and reasonable

time and paid sick leave to recover from side effects that they may experience. Any

additional costs incurred by the employer to bring vaccination on-site would be covered

by the employer, though such an approach would likely reduce the amount of paid time

needed for vaccine administration (but not side effects) because of reduced employee

travel time.

Paragraph (f)(1) specifies that the amount of paid time that an employer is

required to provide each employee to receive each primary vaccination dose is capped at

four hours. OSHA has determined that four hours would provide reasonable time for

most employees to get each vaccination dose. Vaccines are widely available to the public

at clinics, pharmacies, and other locations across the country (see CDC, October 8, 2021).

Providing four hours of paid time to receive each primary vaccination dose is consistent

with OSHA’s presumption of the amount of time needed to receive a vaccination dose in

the June 2021 Healthcare ETS (86 FR 32598), and with the U.S. Office of Personnel

Management’s guidance to federal government agencies on the use of the emergency

paid leave created for federal employees in the American Rescue Plan Act of 2021

(Public Law 117-2), which encouraged agencies to offer up to four hours of

administrative leave per dose to cover time spent getting a vaccine dose, plus additional

time if reasonably necessary, instead of having employees use emergency paid leave

(OPM, April 29, 2021). OSHA expects that most employees will need less than four

hours to receive a vaccination dose.

The maximum of four hours of paid time that employers must provide under

paragraph (f)(1)(ii) for the administration of each primary vaccination dose cannot be
offset by any other leave that the employee has accrued, such as sick leave or vacation

leave. OSHA is concerned that employees forced to use their sick leave or vacation leave

for vaccination would have a disincentive to gaining the health protection of vaccination.

Employers must pay employees for up to four hours of time at the employee’s regular

rate of pay. This may be achieved by paying for the time to be vaccinated as work hours

for up to four hours. Requiring employers to pay for vaccine administration is consistent

with OSHA’s normal approach of requiring employers to bear the costs of compliance

with safety and health standards.

OSHA understands that employees may need much less than four hours to receive

a primary vaccination dose, for example, if vaccinations are offered on-site. However,

OSHA also understands that, in some circumstances, an employee may need more than

four hours to receive a primary vaccination dose, in which case the additional time, as

long as it is reasonable, would be considered unpaid but protected leave. The employer

cannot terminate the employee if they use a reasonable amount of time to receive their

primary vaccination doses. The employee may use other leave time that they have

available (e.g., sick leave or vacation time) to cover the additional time needed to receive

a vaccination dose that would otherwise be unpaid.

Paragraph (f)(2) also requires employers to support COVID-19 vaccination for

each employee by providing reasonable time and paid sick leave to recover from side

effects experienced following any primary vaccination dose to each employee for each

dose. The paid sick leave can be in the form of an employee’s accrued sick leave, if

available. If the employee does not have available sick leave, leave must be provided for

this purpose.

Although some individuals experience no side effects from COVID-19

vaccination doses, the CDC has identified a range of side effects that other individuals

may experience following a vaccination dose (CDC, April 2, 2021; CDC, September 30,
2021). Side effects may affect individuals’ ability to engage in daily activities, are

typically mild-to-moderate in severity, and usually go away in a few days. Common side

effects include pain, redness, and swelling at the site of injection, and systemic side

effects throughout the body, including tiredness, headache, muscle pain, chills, fever, and

nausea. Side effects may be sufficiently severe to require the employee to take sick leave

from work, but will rarely extend beyond a few days. One study found that

“unanticipated paid administrative leave was only required for 4.9% and 19.79% of

individuals after the first and second doses of vaccine, respectively” (Levi et al.,

September 25, 2021). Employees would not typically be expected to need leave solely to

address redness or swelling at the site of injection, but it is not uncommon for vaccine

recipients to require some recovery time for many of the other side effects. The CDC

notes, however, that cough, shortness of breath, runny nose, sore throat, or loss of taste or

smell are not consistent with post-vaccination symptoms and instead may be symptoms

of COVID-19 or another infection (CDC, April 2, 2021).

If an employee already has accrued paid sick leave, an employer may require the

employee to use that paid sick leave when recovering from side effects experienced

following a primary vaccination dose. Additionally, if an employer does not specify

between different types of leave (i.e., employees are granted only one type of leave), the

employer may require employees to use that leave when recovering from vaccination side

effects. If an employer provides employees with multiple types of leave, such as sick

leave and vacation leave, the employer can only require employees to use the sick leave

when recovering from vaccination side effects. Employers cannot require employees to

use advanced sick leave to cover reasonable time needed to recover from vaccination side

effects under paragraph (f)(2). An employer may not require an employee to accrue

negative paid sick leave or borrow against future paid sick leave to recover from

vaccination side effects. In other words, the employer cannot require an employee to go
into the negative for paid sick leave if the employee does not have accrued paid sick

leave when they need to recover from side effects experienced following a primary

vaccination dose. Neither the paid time required to receive any vaccine dose(s) nor the

paid sick leave required to recover from side effects experienced following any

vaccination dose are retroactive requirements for vaccine dose(s) received prior to the

promulgation of this ETS.

Paragraph (f)(2) requires employers to provide reasonable time and paid sick

leave to employees to recover from side effects experienced following a primary

vaccination dose, but does not specify the amount of paid sick leave that the employer is

required to provide for that purpose. Employers may set a cap on the amount of paid sick

leave available to employees to recover from any side effects, but the cap must be

reasonable. CDC notes that although some people have no side effects, side effects, if

experienced, should go away in a few days (CDC, September 30, 2021). Another study

found that the average unanticipated paid administrative leave required by individuals

experiencing side effects was around two days (1.66 days for the first dose and 1.39 days

for the second dose) (Levi et al., September 25, 2021). Generally, OSHA presumes that,

if an employer makes available up to two days of paid sick leave per primary vaccination

dose for side effects, the employer would be in compliance with this requirement. When

setting the cap, an employer would not be expected to account for the unlikely possibility

of the vaccination resulting in a prolonged illness in the vaccinated employee (e.g., a

severe allergic reaction).

OSHA is aware that other federal, state, or local laws, or collective bargaining

agreements, may require employers to provide employees additional paid time for

vaccination and/or paid sick leave to recover from vaccination side effects. Where such

an overlap exists, the requirements of this standard are satisfied so long as the employer

provides each employee reasonable time and four hours of paid time to receive each
primary vaccination dose, and reasonable time and paid sick leave to recover from side

effects experienced following a primary vaccination dose.

References:

Azimi T et al. (2021, April 9). Getting to work: Employers’ role in COVID-19
vaccination. https://www.mckinsey.com/industries/pharmaceuticals-and-medical-
products/our-insights/getting-to-work-employers-role-in-covid-19-vaccination#. (Azimi
et al., April 9, 2021)

Bellew E et al. (2021, June). Half of service sector workers are not yet vaccinated for
COVID-19: What gets in the way? The Shift Project: Research Brief.
https://shift.hks.harvard.edu/wp-content/uploads/2021/06/Vax_Brief_6.28.21-2.pdf.
(Bellew et al., June 2021)

Centers for Disease Control and Prevention (CDC). (2021, April 2). Post-vaccination
considerations for workplaces. https://www.cdc.gov/coronavirus/2019-
ncov/community/workplaces-businesses/vaccination-considerations-for-workplaces.html.
(CDC, April 2, 2021)

Centers for Disease Control and Prevention (CDC). (2021, September 30). Possible side
effects after getting a COVID-19 vaccine. https://www.cdc.gov/coronavirus/2019-
ncov/vaccines/expect/after.html. (CDC, September 30, 2021)

Centers for Disease Control and Prevention (CDC). (2021, accessed October 8). We can
do this: Vaccines.gov website. https://www.vaccines.gov/. (CDC, October 8, 2021)

Cleveland Documenters. (2021). Why some Clevelanders are still on the fence or not
getting vaccinated: Voices on the vaccine. The Cleveland
Observer. https://www.freshwatercleveland.com/street-
level/VaccineVoice050521.aspx. (Cleveland Documenters, 2021)

Kaiser Family Foundation (KFF). (2021, May 6). KFF COVID-19 Vaccine Monitor:
April 2021. https://www.kff.org/coronavirus-covid-19/poll-finding/kff-covid-19-vaccine-
monitor-april-2021/. (KFF, May 6, 2021)

Kaiser Family Foundation (KFF). (2021, May 17). How employer actions could facilitate
equity in COVID-19 vaccinations. https://www.kff.org/policy-watch/how-employer-
actions-could-facilitate-equity-in-covid-19-vaccinations/. (KFF, May 17, 2021)

Kaiser Family Foundation (KFF). (2021, June 30). KFF COVID-19 Vaccine Monitor:
June 2021. https://www.kff.org/report-section/kff-covid-19-vaccine-monitor-june-2021-
findings/. (KFF, June 30, 2021)

Kaiser Family Foundation (KFF). (2021, September 28). KFF COVID-19 Vaccine
Monitor: September 2021. https://www.kff.org/coronavirus-covid-19/poll-finding/kff-
covid-19-vaccine-monitor-september-2021/. (KFF, September 28, 2021)

Levi ML et al. (2021, September 25). COVID-19 mRNA vaccination, reactogenicity,

work-related absences and the impact on operating room staffing: A cross-sectional
study. Perioperative Care and Operating Room Management preprint.
https://doi.org/10.1016/j.pcorm.2021.100220. (Levi et al., September 25, 2021)

National Safety Council. (2021). A Year in Review, and What’s Next: COVID-19
Employer Approaches and Worker Experiences. https://www.nsc.org/faforms/safer-year-
one-final-report. (National Safety Council, 2021)

Rosenberg E and Stein J. (2021, August 18). America’s failure to pay workers time off
undermines vaccine campaign, according to surveys, policy experts. Washington Post.
https://www.washingtonpost.com/us-policy/2021/08/16/paid-leave-covid-vaccine/.
(Rosenberg and Stein, August 18, 2021)

Roy B et al. (2020, December 29). Health Care Workers’ Reluctance to Take the
COVID-19 Vaccine: A Consumer-Marketing Approach to Identifying and Overcoming
Hesitancy. NEJM Catalyst. https://catalyst.nejm.org/doi/pdf/10.1056/CAT.20.0676. (Roy
et al., December 29, 2020)

SEIU Healthcare. (2021, February 8). Research shows 81% of healthcare workers willing
to take COVID-19 vaccines but personal financial pressures remain a significant barrier
for uptake. https://www.newswire.ca/news-releases/research-shows-81-of-healthcare-
workers-willing-to-take-covid-19-vaccines-but-personal-financial-pressures-remain-a-
significant-barrier-for-uptake-888810789.html. (SEIU Healthcare, February 8, 2021)

United States Bureau of Labor Statistics (BLS). (2021, September). National

Compensation Survey: Employee Benefits in the United States, March 2021.
https://www.bls.gov/ncs/ebs/benefits/2021/employee-benefits-in-the-united-states-march-
2021.pdf. (BLS, September, 2021)

United States Office of Personnel Management (OPM). (2021, April 29). American
Rescue Plan: COVID-19 Emergency Paid Leave for Federal Employees.
https://chcoc.gov/sites/default/files/Attachment%205%20COVID-
19%20Emergency%20Paid%20Leave%20Questions%20and%20Answers_0.pdf. (OPM,
April 29, 2021)

G. COVID-19 Testing for Employees Who are Not Fully Vaccinated

Paragraph (g) of this ETS addresses employers’ obligations with respect to

employees who are not fully vaccinated, including the requirement to ensure

unvaccinated employees are tested for COVID-19. As explained in Need for the ETS

(Section III.B. of this preamble), OSHA strongly prefers that employers implement

written mandatory vaccination policies because that is the most effective and efficient

workplace control available for preventing the spread of COVID-19. However, this ETS

is also necessary to protect workers who remain unvaccinated through required regular

testing, use of face coverings, and removal of infected employees from the workplace,
and to protect other workers from the greater likelihood that unvaccinated workers may

spread COVID-19 in the workplace. People who are unvaccinated are at increased risk of

becoming infected with COVID-19 and are more likely to spread the disease when

compared to people who are fully vaccinated (CDC, September 15, 2021). Additionally,

people who are unvaccinated are more likely to experience severe clinical outcomes if

they become infected than people who are vaccinated (Lopez Bernal et al., July 21,

2021). Therefore, routine COVID-19 testing of unvaccinated employees is necessary to

identify employees with COVID-19 so they can be removed from the workplace to

prevent transmission to other employees and to facilitate early medical intervention for

infected employees when appropriate.

Routine testing of unvaccinated employees is necessary regardless of whether the

unvaccinated employees have symptoms because SARS-CoV-2 infection is often

attributable to asymptomatic and/or pre-symptomatic transmission (i.e., individuals who

are not exhibiting symptoms) (Bender et al., February 18, 2021; Klompas, September

2021; Johansson et al., January 7, 2021; Byambasuren et al., December 11, 2020).

Although less effective and efficient than vaccination, the CDC has recognized regularly

testing unvaccinated employees for COVID-19 as a useful tool for identifying

asymptomatic and/or pre-symptomatic infected individuals so that they can be isolated

(CDC, May 4, 2021; CDC, October 7, 2021). In contrast, the CDC recommends that fully

vaccinated employees with no symptoms and no known exposure should be exempt from

routine testing programs (CDC, May 4, 2021). Additional information about the risks of

COVID-19 transmission in vaccinated and unvaccinated workers is discussed in Grave

Danger (Section III.A. of this preamble).

Testing for COVID-19 can broadly be divided into two categories: diagnostic

testing and screening testing. The purpose of diagnostic testing is to identify current

infection when a person has signs or symptoms consistent with COVID-19, or when a
person is asymptomatic but has recent known or suspected exposure to SARS-CoV-2.

The information provided by diagnostic testing can be used by a healthcare provider to

diagnose or treat a patient. The purpose of screening testing is to identify infected people

who are asymptomatic and do not have known, suspected, or reported exposure to

COVID-19. Screening testing helps to identify unknown cases both so that measures can

be taken to prevent further transmission to others (e.g., removal from the workplace and

home isolation) and also to allow infected, but asymptomatic, people to begin medical

treatment, as appropriate, so they can better avoid the most severe outcomes of COVID-

19 (e.g., high risk individuals seeking monoclonal antibody treatment or anti-viral

medication). Although the testing required in paragraph (g)(1) of this ETS is screening

testing, both screening and diagnostic testing can help prevent the spread of COVID-19.

Paragraph (g) does not preclude additional diagnostic testing if an employee shows signs

or symptoms consistent with COVID-19 or has recent known or suspected exposure to

SARS-CoV-2.

Both screening and diagnostic testing involve the use of viral COVID-19 tests to

detect current infection, as opposed to antibody COVID-19 tests, which are used to detect

whether a person has antibodies for COVID-19. A positive antibody test indicates

someone has antibodies to SARS-CoV-2, the virus that causes COVID-19, which could

either be the result of a prior infection with the virus or vaccination against COVID-19

(FDA, May 19, 2021; CDC, September 10, 2021). Viral tests for current infection fall

into two categories: nucleic acid amplification tests (NAATs) and antigen tests. The Food

and Drug Administration (FDA) (October 6, 2021) has issued a number of Emergency

Use Authorizations (EUAs) for viral COVID-19 tests. It is important to note that OSHA’s

definition of “COVID-19 test” requires that COVID-19 tests be cleared, approved, or

authorized by the FDA and administered in accordance with authorized instructions, with

the noted exception of not allowing tests that are both self-administered and self-read by
the employee unless observed by the employer or an authorized telehealth proctor. In this

regard, OSHA recognizes that it is within FDA’s authority and jurisdiction to help to

assure the appropriate safety, efficacy, and accuracy of COVID-19 tests. The definition

of “COVID-19 test” has previously been discussed in the Summary and Explanation for

paragraph (c) (Section VI.C. of this preamble). Additional information about the type of

COVID-19 tests that would satisfy the requirements of paragraph (g) are available in that

section of this preamble.

As explained above, the most effective and efficient workplace control for

preventing the spread of COVID-19 is vaccination and OSHA strongly prefers that

employers implement written mandatory vaccination policies. However, where

employers have unvaccinated employees, regular COVID-19 screening tests are

necessary so infected employees can be identified and removed from the workplace to

prevent workplace transmission and to facilitate early medical intervention, when

appropriate. In addition to being more likely to become infected with COVID-19, people

who are unvaccinated are more likely to experience severe clinical outcomes from

COVID-19 than fully vaccinated people (see Grave Danger, Section III.A. of this

preamble). In a recent CDC Morbidity and Mortality Weekly Report (MMWR) out of

Los Angeles County, the SARS-CoV-2 infection rate among unvaccinated persons was

4.9 times and the hospitalization rate was 29.2 times the rates among fully vaccinated

persons (Griffin et al., August 27, 2021). As explained below, regular screening testing of

individuals for COVID-19 is an effective method of identifying asymptomatic and pre-

symptomatic infections. Screening testing of unvaccinated employees is necessary

because symptom and temperature checks will miss both asymptomatic and pre-

symptomatic infections, which is a serious problem because pre-symptomatic and

asymptomatic transmission are significant drivers of the continued spread of COVID-19

(Johansson et al., January 7, 2021). Once infected employees are identified, they can be

removed from the workplace, thereby reducing virus transmission to other employees.

Several studies have indicated that the time from exposure to becoming

contagious for COVID-19 is shorter than the time for symptoms to develop (incubation

period), meaning that individuals can transmit SARS-CoV-2 before they begin to feel ill

(i.e., pre-symptomatic transmission) (Nishiura et al., March 4, 2020; Tindale et al., June

22, 2020). Pre-symptomatic individuals can transmit the virus to others before they know

they are sick. These individuals should isolate but would not know to do so if they are

unaware of their infection. It is also possible for individuals to be infected and

subsequently transmit the virus without ever exhibiting symptoms. This is called

asymptomatic transmission. A meta-analysis of 351 studies from January 1, 2020, to

April 2, 2021, estimated that 42.8% of those infected with the SARS-CoV-2 virus

exhibited no symptoms at the time of testing and so had either asymptomatic or pre-

symptomatic infections (Sah et al., August 10, 2021). In another meta-analysis of studies,

which included people of all ages at risk of contracting COVID-19 who were tested

regardless of presence or absence of symptoms, seventeen percent of cases never

developed symptoms during entire COVID-19 infection (i.e., asymptomatic infection). In

those studies, a diagnosis was confirmed with a positive result on a RT-PCR and all

positive cases had a follow-up period of at least seven days to distinguish asymptomatic

cases from pre-symptomatic cases (Byambasuren et al., December 11, 2020). In another

study, researchers used a decision analytical model to assess the proportion of SARS-

CoV-2 transmission from pre-symptomatic, never symptomatic, and symptomatic

individuals in the community. Based on their modeling, they predicted that 59% of

transmission came from asymptomatic transmission, including 35% from pre-

symptomatic individuals and 24% from individuals who never develop symptoms

(Johansson et al., January 7, 2021).

 The existence of pre-symptomatic and asymptomatic infections pose serious

challenges to containing the spread of SARS-CoV-2. Although the risk of asymptomatic

transmission is 42% lower than from symptomatic COVID-19 patients (Byambasuren et

al., December 11, 2020), asymptomatic transmission may result in more transmissions

than symptomatic cases because asymptomatic persons are less likely to be aware of their

infection and can unknowingly continue to spread the disease to others (Sah et al., August

10, 2021). The challenge of containing pre-symptomatic and asymptomatic SARS-CoV-2

transmission is amplified among unvaccinated individuals because, as explained above,

they are more likely to become infected with COVID-19 in the first place.

Because unvaccinated employees are at higher risk of COVID-19 infection and

COVID-19 transmission among individuals without symptoms is a significant driver of

the spread of COVID-19, OSHA has determined it is necessary to prevent the pre-

symptomatic and asymptomatic transmission of COVID-19 from unvaccinated workers,

through a requirement for weekly screening testing. Screening testing with antigen tests

is a rapidly evolving and important tool that can be used to reduce the spread of SARS-

CoV-2 in the workplace, particularly when coupled with other COVID-19 prevention and

control measures (e.g., workplace removal of infected persons, proper use of face

coverings) (Schulte et al., May 19, 2021). The CDC recommends screening testing of

unvaccinated asymptomatic workers as a useful tool to detect COVID-19 and stop

transmission quickly. Screening testing is particularly useful in areas with moderate to

high community transmission of COVID-19, which is currently the overwhelming

majority of the United States (CDC, October 7, 2021). In a study with a well-defined

population of SARS-CoV-2 infected individuals, researchers found that frequent testing

(i.e., at least twice per week) maximizes the likelihood of detecting infected individuals.

However, even when used weekly, rapid antigen tests still had a 76% probability of

detection (i.e., weekly rapid antigen tests correctly identified 76% of true positive
infected COVID-19 individuals) (Smith et al., September 15, 2021). By identifying pre-

symptomatic and asymptomatic unvaccinated employees, employers can remove them

from the workplace to prevent those employees from spreading SARS-CoV-2 to other

employees. More information about the removal requirements in this ETS is available in

the Summary and Explanation for paragraph (h) (Section VI.H. of this preamble).

Since the incubation period for COVID-19 can be up to 14 days, the CDC

recommends that screening testing be conducted at least weekly in non-healthcare

workplaces (CDC, October 7, 2021; CDC, May 4, 2021). Other researchers also

recognize the effectiveness of weekly screening testing to control surges of COVID-19

infections (Larremore, January 1, 2021). Consequently, in workplaces with unvaccinated

employees, OSHA has set the minimum frequency of testing unvaccinated workers at

seven days because the agency expects that it will be effective in slowing the spread of

COVID-19 in those workplaces, when used in tandem with face coverings (paragraph (i))

and removal of infected individuals (paragraph (h)). OSHA emphasizes that each of these

infection controls provides some protection from COVID-19 by itself, but that they work

best when used together, layering their protective impact to boost overall effectiveness.

Although some studies have shown that more regular screening testing (e.g., twice

weekly) would identify even more cases, OSHA has decided to require testing only on a

weekly basis. This is in line with the CDC recommendations, and as noted above the

evidence shows that this frequency is effective in detecting asymptomatic and pre-

symptomatic cases. A more frequent testing schedule would result in significant

additional costs, and OSHA is hesitant to impose these costs and depart from CDC

recommendations without a fuller record generated through the benefit of notice and

comment rulemaking. OSHA seeks comment on this issue. Nonetheless, it should be

noted that nothing in this rule prevents screening testing from being conducted more

frequently based on factors such as the level of community transmission, workplace

experience with outbreaks, and type of workplace (e.g., specific workplace factors such

as high volume retail or critical infrastructure sector).

Early detection of COVID-19-positive employees through screening testing of

unvaccinated employees also facilitates early medical intervention, when appropriate, to

avoid the most severe health outcomes associated with COVID-19. Early effective

treatment of disease can help avert progression to more serious illness, especially for

patients at high risk of disease progression and severe illness, with the additional benefit

of reducing the burden on healthcare systems (CDC, December 4, 2021). For example,

anti-SARS-CoV-2 monoclonal antibodies have been shown to reduce the risk of

hospitalization and death in the outpatient setting in those with mild to moderate COVID-

19 symptoms and certain risk factors for disease progression. Treatment should be started

as soon as possible after the patient receives a positive result on a COVID-19 test and

within 10 days of symptom onset (NIH, September 24, 2021). Any COVID-19 medical

treatment should be used in accordance with a licensed healthcare provider. The

screening tests required by this rule will facilitate such treatment.

Pursuant to paragraph (g)(1)(i), covered employers must ensure that each

employee who is not fully vaccinated and reports at least once every seven days to a

workplace where other individuals (e.g., coworkers, customers) are present: (A) is tested

for COVID-19 at least once every seven days; and (B) provides documentation of the

most recent COVID-19 test result to the employer no later than the 7th day following the

date on which the employee last provided a test result. Employers must ensure these

unvaccinated employees are tested at least once every seven calendar days, regardless of

their work schedule. For example, an unvaccinated part-time employee who is scheduled

to work only every Monday and Tuesday must still be tested at least once every seven

days. Because employees must provide documentation of their most recent COVID-19

test results to their employers no later than the 7th day following the date on which they
last provided a test result, employees may want to set a schedule for their testing (e.g., get

a COVID-19 test every Wednesday). A consistent testing day may help employees ensure

their documentation is provided every seven calendar days.

Paragraph (g)(1)(ii) addresses situations where an employee does not report to a

workplace where other individuals, such as coworkers or customers, are present during a

period of seven or more days (e.g., when an employee is teleworking for an extended

period of time). In such cases, the employer must ensure the employee is tested for

COVID-19 within seven days prior to returning to the workplace and provides

documentation of that test result to the employer upon return to the workplace. For

example, if an unvaccinated office employee has been teleworking for two weeks but

must report to the office, where other employees will be present (e.g., coworkers, security

officers, mailroom workers), on a specific Monday to copy and fax documents, that

employee must receive a COVID-19 test within the seven days prior to the Monday and

provide documentation of that test result to the employer upon return to the workplace.

The employee’s test must occur within the seven days before the Monday the employee is

scheduled to report to the office, but it also must happen early enough to allow time for

the results to be received before returning to the workplace. Similarly, unvaccinated new

hires would need to be tested for COVID-19 within seven days prior to reporting to a

workplace where other employees will be present and provide documentation of their test

results no later than arrival on their first day of work. Since point-of-care testing that uses

an antigen test allows for results within minutes, OSHA does not expect that scheduling

tests or providing results to employers will be an impediment.

OSHA chose the seven-day period for employees returning to work after more

than a week away from the workplace based on the evidence noted above about the

effectiveness of testing at seven-day intervals. While it considered using a shorter time

period in this situation, OSHA concluded that it would be less confusing for employers to
use a uniform time period for both situations. OSHA was concerned that requiring

different time periods in the two situations would cause confusion among both employees

and supervisors implementing the program that would undermine the effectiveness of the

testing scheme. OSHA seeks comment on this issue.

An employer has some discretion regarding how to satisfy its obligations under

paragraph (g)(1), but those policies and procedures must be detailed in the employer’s

written policy pursuant to paragraph (d)(2) of this ETS. For example, the employer must

specify how testing will be conducted (e.g., testing provided by the employer at the

workplace, employees independently scheduling tests at point-of-care locations, etc.).

The employer must also specify in their policy how employees should provide their

COVID-19 test results to the employer (e.g., an online portal, to the human resources

department). The Summary and Explanation for paragraph (d) (Section VI.D. of this

preamble) provides additional information regarding the requirements of paragraph (d)(2)

of this ETS. Test results given to the employer must contain information that identifies

the worker (i.e., full name plus at least one other identifier, such as date of birth), the

specimen collection date, the type of test, the entity issuing the result (e.g., laboratory,

healthcare entity), and the test result.

If an employer is notified that an employee has a positive screening test, the

employer must remove that employee from the workplace pursuant to paragraph (h)(2) of

this ETS. The employee should quarantine and the employer must not allow the

employee to return to the workplace until they meet the requirements in paragraphs

(h)(2)(i) through (iii). More discussion of employee notification to their employer of a

COVID-19 positive status and removal requirements is available in the Summary and

Explanation for paragraph (h) (Section VI.H. of this preamble).

OSHA expects that most screening testing will be antigen testing that is

conducted at point-of-care locations due to the reduced cost and faster processing time
when compared to NAAT testing in laboratories. Most NAATs need to be processed in a

laboratory with variable time to results (approximately 1–2 days). In contrast, most

antigen tests can be processed at the point of care with results available in about 15-30

minutes (CDC, October 7, 2021). Rapid point-of-care tests are administered in various

settings, such as: physician offices, urgent care facilities, pharmacies, school health

clinics, workplace health clinics, long-term care facilities and nursing homes, and at

temporary locations, such as drive-through sites managed by local organizations. As

explained above, COVID-19 tests that are both self-administered and self-read do not

meet the definition of “COVID-19 test” in this ETS (unless observed by the employer or

an authorized telehealth proctor) and therefore do not satisfy the testing requirements of

paragraph (g).

Because antigen testing in point-of-care locations will typically produce results

within minutes, the use of antigen testing should not result in an inability to provide the

employer with test results in a timely fashion. However, the agency recognizes that where

the employee or employer uses an off-site laboratory for testing, there may be delays

beyond the employee’s or employer’s control. In the event that there is a delay in the

laboratory reporting results and the employer permits the employee to continue working,

OSHA will look at the pattern and practice of the individual employee or the employer’s

testing verification process and consider refraining from enforcement where the facts

show good faith in attempting to comply with the standard.

OSHA has determined that employers may use pooling procedures to satisfy the

requirements of screening testing under paragraph (g)(1). Pooling (also referred to as

pool testing or pooled testing) means combining the same type of specimen from several

people and conducting one laboratory test on the combined pool of specimens to detect

SARS-CoV-2 (e.g., four samples may be tested together, using only the resources needed

for a single test). The advantages of pooling include preserving testing resources,
reducing the amount of time required to test large numbers of specimens (increasing

throughput), and lowering the overall cost of testing (CDC, June 30, 2021).

If pooling procedures are used and a pooled test result comes back negative, then

all the specimens can be presumed negative with the single test. In other words, all of the

employees who provided specimens for that pool test can be assumed to have a negative

test result for SARS-CoV-2 infection. Therefore, documentation of the negative pooled

test result would satisfy the paragraph (g)(1) documentation requirement for each

employee in the pool and no additional testing is necessary. However, if the pooled test

result is positive, immediate additional testing would be necessary to determine which

employees are positive or negative. Each of the original specimens collected in the pool

must be tested individually to determine which specimen(s) is (are) positive. If original

specimens from the workers in a pooled test with a positive result are insufficient to be

subsequently tested individually, those workers in the positive pool would need to be

immediately re-swabbed and tested. The individual employee test results would be

necessary to satisfy the employee documentation requirements of paragraph (g)(1).

Where pooled testing is used (in accordance with paragraph (g)(1)), CDC and FDA

procedures and recommendations for implementing screening pooled tests should be

followed (CDC, June 30, 2021; FDA, August 24, 2020). OSHA notes that only some

tests are authorized for pooled testing, and should be performed per the authorization.

In a note to paragraph (g)(1), OSHA explains that this section does not require the

employer to pay for any costs associated with testing. As explained in Pertinent Legal

Authority, Section II. of this preamble, the OSH Act authorizes OSHA to require

employers to bear the costs of compliance with occupational safety and health standards,

but OSHA has discretion to decide whether to impose certain costs—such as those

related to medical examinations or other tests—on employers “[w]here [it determines that

such costs are] appropriate.” 29 U.S.C. 655(b)(7). OSHA has commonly required
employers to bear the costs of compliance with standards as a cost of doing business,

including requiring employers to bear the costs of medical examinations and procedures

(see, e.g., 29 CFR 1910.1018(n)(1)(i) (inorganic arsenic standard requires employers to

ensure that medical examinations and procedures are provided “without cost to the

employee”); see also United Steelworkers, 647 F.2d at 1229-31 (discussing Lead

standard’s medical removal provisions and OSHA’s authority for imposing cost of

medical removal on employers)). Requiring employers to bear the costs of compliance

makes it more likely that employees will take advantage of workplace protections (see 86

FR 32605). For example, employees are more likely to use personal protective

equipment (PPE) when employers provide the PPE to their employees at no cost (see 72

FR 64342, 64344).

In this ETS, OSHA has largely required employers to bear the costs of

compliance, including the typical costs associated with vaccination, but has determined

that it would not be appropriate to impose on employers any costs associated with

COVID-19 testing for employees who choose not to be vaccinated. As explained in Need

for the ETS, Section III.B. of this preamble, this ETS is designed to strongly encourage

vaccination because vaccination is the most efficient and effective control for protecting

unvaccinated workers from the grave danger posed by COVID-19. COVID-19 testing is

only required under the ETS where an employee has made an individual choice to forgo

vaccination and pursue a less protective option. Given the superior protectiveness of

vaccination, and OSHA’s intent for this ETS to strongly encourage vaccination, requiring

employers to bear the costs of COVID-19 testing would be counter-productive. As

mentioned above, requiring employers to pay for workplace protections makes it more

likely that employees will take advantage of that protection, and in this ETS, OSHA

intends to strongly encourage employees to choose vaccination, not regular COVID-19

testing. Because employees who choose to remain unvaccinated will generally be

required to pay for their own COVID-19 testing, this standard creates a financial

incentive for those employees to become fully vaccinated and avoid that cost.

Although this ETS does not require employers to pay for testing, employer

payment for testing may be required by other laws, regulations, or collective bargaining

agreements or other collectively negotiated agreements. This section also does not

prohibit the employer from paying for costs associated with testing required by paragraph

(g)(1) of this section. Otherwise, the agency leaves the decision regarding who pays for

the testing to the employer. Because OSHA does not specify who pays for the testing,

OSHA expects that some workers and/or their representatives will negotiate the terms of

payment. OSHA has also considered that some employers may choose to pay for some or

all of the costs of testing as an inducement to keep employees in a tight labor market.

Other employers may choose to put the full cost of testing on employees in recognition of

the employee’s decision not to become fully vaccinated. It is also possible that some

employers may be required to cover the cost of testing for employees pursuant to other

laws or regulations. OSHA notes, for instance, that in certain circumstances, the

employer may be required, under the Fair Labor Standards Act, to pay for the time it

takes an employee to be tested (e.g., if employee testing is conducted in the middle of a

work shift). The subject of payment for the costs associated with testing pursuant to other

laws or regulations not associated with the OSH Act is beyond OSHA’s authority and

jurisdiction. As explained in a note to paragraph (d) of this ETS, under various anti-

discrimination laws, workers who cannot be tested because of a sincerely held religious

belief may ask for a reasonable accommodation from their employer. For more

information about evaluating requests for reasonable accommodation for a sincerely held

religious belief, employers should consult the Equal Employment Opportunity

Commission’s website: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-

19-and-ada-rehabilitation-act-and-other-eeo-laws.
 Pursuant to paragraph (g)(2), if an employee does not provide the result of a

COVID-19 test as required by paragraph (g)(1), the employer must keep the employee

removed from the workplace until the employee provides a test result. This provision is

imperative because workers with asymptomatic or pre-symptomatic SARS-CoV-2

infection are significant contributors to COVID-19 transmission, and screening testing

will help to identify and remove those individuals from the workplace. Employees

providing accurate and weekly test results to their employer is of utmost importance for

preventing and reducing the transmission of COVID-19 in the workplace.

Paragraph (g)(3) provides that when an employee has received a positive COVID-

19 test, or has been diagnosed with COVID-19 by a licensed healthcare provider, the

employer must not require that employee to undergo COVID-19 testing for 90 days

following the date of their positive test or diagnosis. This provision is specifically

intended to prohibit screening testing for 90 days because of the high likelihood of false

positive results that do not indicate active infection but are rather a reflection of past

infection. Studies of patients who were hospitalized and recovered indicate that SARS-

CoV-2 RNA can be detected in upper respiratory tract specimens for up to three months

(90 days) after symptom onset (CDC, August 2, 2021; CDC, September 14, 2021). If

employees were to be subjected to screening tests in such a situation it would both

undermine the confidence in the COVID-19 screening tests and could result in a harm to

the worker of being unnecessarily removed from the workplace and subjected to the

additional burden of unnecessary tests. Where employers implement a vaccination policy

that allows employees to choose to provide proof of regular testing and wear a face

covering rather than getting vaccinated, the employer’s policy and procedures to

implement this temporary suspension of testing must be included in their written

workplace policy as required by paragraph (d)(2) of this ETS.

 Paragraph (g)(4) provides that the employer must maintain a record of each test

result required to be provided by each employee under paragraph (g)(1) of this ETS or

obtained during tests conducted by the employer. These records must be maintained in

accordance with 29 CFR 1910.1020 as an employee medical record and must not be

disclosed except as required by this ETS or other federal law. However, these records are

not subject to the retention requirements of 29 CFR 1910.1020(d)(1)(i) (Employee

medical records), but must be maintained and preserved while this ETS remains in effect.

Additionally, paragraph (l) of this ETS includes specific timeframes for providing

access to records, including the COVID-19 test results required by paragraph (g)(1). As a

result, the timeframes for providing access to employee medical records in 29 CFR

1910.1020(e) do not apply. Instead, when providing access to an employee, anyone with

written authorized consent from that employee, and OSHA, employers must follow the

access timeframes set forth in paragraph (l) of this ETS. The Summary and Explanation

for paragraph (l) (Section VI.L. of this preamble) contains additional information about

accessing records gathered pursuant to paragraph (g)(1).

Finally, while the access timeframes in 29 CFR 1910.1020(e) and retention

requirements of 29 CFR 1910.1020(d)(1)(i) do not apply to test result records required by

this ETS, the other provisions in 29 CFR 1910.1020 do apply. For example, 29 CFR

1910.1020(h) includes requirements for the transfer of employee medical records when

an employer ceases to do business. Like the vaccine records required by paragraph (e)(4)

of this ETS, and because they concern the health status of an employee, test result records

required by paragraph (g)(1) are employee medical records for purposes of 29 CFR

1910.1020. These test result records contain personally identifiable medical information

and must be maintained in a confidential manner. The Summary and Explanation for

paragraph (e) (Section VI.E. of this preamble) contains additional information about the

interplay between this ETS and OSHA’s regulation at 29 CFR 1910.1020.

References:

Bender et al., (2021, February 18). Analysis of Asymptomatic and Presymptomatic

Transmission in SARS-CoV-2 Outbreak, Germany, 2020.
https://wwwnc.cdc.gov/eid/article/27/4/20-4576_article. (Bender et al., February 18,
2021).

Byambasuren O et al. (2020, December 11). Estimating the extent of asymptomatic

COVID-19 and its potential for community transmission: Systematic review and meta-
analysis. Official Journal of the Association of Medical Microbiology and Infectious
Disease Canada. 5(4): 223-234 doi:10.3138/jammi-2020-0030. (Byambasuren et al.,
December 11, 2020).

Centers for Disease Control and Prevention (CDC). (2020, December 4). Information for
Clinicians on Investigational Therapeutics for Patients with COVID-19.
https://www.cdc.gov/coronavirus/2019-ncov/hcp/therapeutic-options.html. (CDC,
December 4, 2020).

Centers for Disease Control and Prevention (CDC). (2021, May 4). Antigen Testing for
Screening in Non-Healthcare Workplaces: A tool to prevent the spread of COVID-19.
https://www.cdc.gov/coronavirus/2019-ncov/community/workplaces-businesses/antigen-
testing.html. (CDC, May 4, 2021).

Centers for Disease Control and Prevention (CDC). (2021, June 30). Interim Guidance
for Use of Pooling Procedures in SARS-CoV-2 Diagnostic and Screening Testing.
https://www.cdc.gov/coronavirus/2019-ncov/lab/pooling-procedures.html. (CDC, June
30, 2021).

Centers for Disease Control and Prevention (CDC). (2021, August 2). COVID-19 Testing
Overview. https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/testing.html.
(CDC, August 2, 2021).

Centers for Disease Control and Prevention (CDC). (2021, September 10). Using
Antibody Tests for COVID-19. https://www.cdc.gov/coronavirus/2019-
ncov/lab/resources/antibody-tests.html. (CDC, September 10, 2021).

Centers for Disease Control and Prevention (CDC). (2021, September 14). Ending
Isolation and Precautions for People with COVID-19: Interim Guidance.
https://www.cdc.gov/coronavirus/2019-ncov/hcp/duration-isolation.html. (CDC,
September 14, 2021).

Centers for Disease Control and Prevention (CDC). (2021, September 15). Science
Brief:COVID-19 Vaccines and Vaccination. https://www.cdc.gov/coronavirus/2019-
ncov/science/science-briefs/fully-vaccinated-people.html. (CDC, September 15, 2021).

Centers for Disease Control and Prevention (CDC). (2021, October 7) Interim Guidance
for SARS-CoV-2 Testing in Non-Healthcare Workplaces.
https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/testing-non-
healthcare-workplaces.html. (CDC, October 7, 2021).

Food and Drug Administration (FDA). (2020, August 24). Pooled Sample Testing and
Screening Testing for COVID-19. https://www.fda.gov/medical-devices/coronavirus-
covid-19-and-medical-devices/pooled-sample-testing-and-screening-testing-covid-19.
(FDA, August 24, 2020).

Food and Drug Administration (FDA). (2021, May 19). Antibody Testing Is Not
Currently Recommended to Assess Immunity After COVID-19 Vaccination: FDA Safety
Communication. https://www.fda.gov/medical-devices/safety-communications/antibody-
testing-not-currently-recommended-assess-immunity-after-covid-19-vaccination-fda-
safety. (FDA, May 19, 2021).

Food and Drug Administration (FDA). (2021, October 6). In Vitro Diagnostics EUAs.
https://www.fda.gov/medical-devices/coronavirus-disease-2019-covid-19-emergency-use-
authorizations-medical-devices/in-vitro-diagnostics-euas. (FDA, October 6, 2021).

Griffin JB et al. (2021, August 27). SARS-CoV-2 infections and hospitalizations among
persons aged ≥16 years, by vaccination status — Los Angeles County, California, May
1–July 25, 2021. MMWR 70: 1170–1176. http://dx.doi.org/10.15585/mmwr.mm7034e5.
(Griffin et al., August 27, 2021).

Johansson MA et al. (2021, January 7). SARS-CoV-2 transmission from people without
COVID-19 symptoms. JAMA Network Open. 4(1): e2035057.
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Klompas M et al., (2021, September). The case for mandating COVID-19 vaccines for
health care workers. Annals of Internal Medicine. https://doi.org/10.7326/M21-2366.
(Klompas et al., September 2021).

Larremore DB et al. (2021, January 1). Test sensitivity is secondary to frequency and
turnaround time for COVID-19 screening. Sci Adv 2021; 7(1): eabd5393.
https://doi.org/10.1126/sciadv.abd5393. (Larremore, January 1, 2021).

Lopez Bernal et al. (2021, July 21). Effectiveness of Covid-19 vaccines against the
B.1.617.2 (Delta) variant. The New England Journal of Medicine, 385(7), 585–594.
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National Institutes of Health (NIH). (2021, September 24). Therapeutic Management of

Nonhospitalized Adults With COVID-19.
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management/nonhospitalized-adults--therapeutic-management/. (NIH, September 24,
2021).

Nishiura H et al. (2020, March 4). Serial interval of novel coronavirus (COVID-19)
infections. Int J Infect Dis. 2020 Apr; 93: 284-286. doi:10.1016/j.ijid.2020.02.060. Epub
2020 Mar 4. PMID: 32145466; PMCID: PMC7128842. (Nishiura et al., March 4, 2020).

Sah P et al. (2021, August 10). Asymptomatic sars-cov-2 infection: A systematic review
and meta-analysis. Proceedings of the National Academy of Sciences, 118(34), 1–12.
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Schulte P et al. (2021, May 19). Proposed Framework for Considering SARS-CoV-2
Antigen Testing of Unexposed Asymptomatic Workers in Selected Workplaces. J Occup
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Smith R et al. (2021, September 15). Longitudinal assessment of diagnostic test
performance over the course of acute SARS-CoV-2 infection. The Journal of Infectious
Diseases; 224(6), 976–982. https://doi.org/10.1093/infdis/jiab337. (Smith et al.,
September 15, 2021).

Tindale LC et al. (2020, June 22). Evidence for transmission of COVID-19 prior to
symptom onset. Elife. 2020; 9: e57149. Published 2020 Jun 22. doi:10.7554/eLife.57149.
(Tindale et al., June 22, 2020).

H. Employee Notification to Employer of a Positive COVID-19 Test and Removal

Employers can substantially reduce disease transmission in the workplace by

removing employees who are confirmed to have COVID-19 based on a COVID-19 test

or diagnosis by a healthcare provider. It is necessary that employees who are confirmed

to have COVID-19 be removed from the workplace to prevent transmission to other

employees. Several studies have focused on the impact of isolating persons with COVID-

19 from others during their likely known infectious period, and those studies show that

isolation is a strategy that reduces the transmission of infections. For example, Kucharski

et al. (2020) found that transmission of SARS-CoV-2 would decrease by 29% with self-

isolation within the household, which would extend to 37% if the entire household

quarantined. Similarly, Wells et al. (2021) found that isolation of individuals at symptom

onset would decrease the reproductive rate (R0) of COVID-19 from 2.5 to 1.6. Lastly,

Moghadas et al. (2020) reported results that highlight the role of silent transmission, from

a combination of the pre-symptomatic stage and asymptomatic infections, as the primary

driver of COVID-19 outbreaks and underscore the need for mitigation strategies,

including those that detect and isolate infectious individuals prior to the onset of

symptoms. Isolating contagious employees from their co-workers can prevent further

spread at the workplace and safeguard the health of other employees.

Paragraph (h) provides that employers must require each employee to promptly

notify the employer when the employee receives a positive COVID-19 test or is

diagnosed with COVID-19 by a licensed healthcare provider. This notification must

occur regardless of employee vaccination status. As discussed in Grave Danger (Section

III.A. of this preamble), exposure to SARS-CoV-2 in the workplace presents a grave

danger to employees; removing those who are confirmed to have COVID-19 from the

workplace mitigates that grave danger. This is true even for fully vaccinated employees

since they also have the potential to transmit COVID-19 to other individuals, including

other employees. Because the goal of this ETS, and the notification requirements in this

paragraph, is to reduce transmission of COVID-19 in the workplace, employees are

required to notify the employer of any COVID-19 positive test or diagnosis that they

receive, not just positive results that are received from testing required under paragraph

(g) of this ETS.

Paragraph (h)(1) states that the employer must require each employee who is

COVID-19 positive to notify the employer of their COVID-19 test result or diagnosis

“promptly.” For employees who are not at the workplace when they receive a positive

COVID-19 test result or diagnosis, “promptly” notifying the employer means notifying

the employer as soon as practicable before the employee is scheduled to start their shift or

return to work. In the event that the employee is in the workplace when they receive a

positive COVID-19 test result or diagnosis of COVID-19, “promptly” notifying the

employer means notifying the employer as soon as safely possible while avoiding

exposing any other individuals in the workplace.

The employer should establish notification procedures and inform employees

about these procedures (see paragraph (j)(1)), so that employees are aware of the

appropriate method for providing this notification to their employer. These notification

procedures can be based on the employer’s current protocols for employees to notify the

employer if they are not able to come to work or need to leave work because of illness or

injury. However the employer chooses to implement its notification procedures, it must

ensure that an employee notification of a positive COVID-19 test or diagnoses results in

the employee’s immediate removal from the workplace, as required under paragraph

(h)(2). For example, the employer may require employees to report any positive COVID-

19 test or diagnosis to a company supervisor with the authority to temporarily remove the

employee from the workplace. If an employer takes all steps required under this

paragraph but an employee fails to report required information, the ETS does not dictate

that any disciplinary action be taken against the employee. If an employer is cited by

OSHA under this provision under such circumstances, the employer is entitled to contest

the citation if it can establish an employee misconduct defense in accordance with

applicable case law.

The notification requirement in paragraph (h)(1) is an important measure to

ensure employers can take adequate steps to protect their employees from the hazard of

COVID-19 because it is connected to a parallel requirement in paragraph (h)(2) to

remove, from the workplace, any employee who receives a positive COVID-19 test or is

diagnosed with COVID-19. It is important to remove employees who test positive or are

diagnosed with COVID-19 from the workplace as soon as possible to prevent the

transmission of COVID-19 to other employees. Therefore, the requirement that

employees promptly inform their employer of a positive COVID-19 test result or

COVID-19 diagnosis is necessary because this information allows the employer to take

actions to protect other employees, including most critically by removing employees

whose illness poses a direct threat of infection to other employees in the workplace.

Paragraph (h)(2) requires employers to immediately remove from the workplace

any employee, regardless of vaccination status, who receives a positive COVID-19 test or

is diagnosed with COVID-19 by a licensed healthcare provider. OSHA determined that

directing an employee who tests positive or is diagnosed with COVID-19 to stay home

until return to work criteria are achieved is critical to preventing the transmission of

COVID-19 in the workplace. Similar to the notification required in paragraph (h)(1), this
removal must occur regardless of employee vaccination status since someone who is fully

vaccinated can still transmit COVID-19 to others, including other employees (see Grave

Danger, Section III.A. of this preamble).

OSHA notes that, in most circumstances, any positive COVID-19 test would

result in removal. However, this is not necessarily the case where an employer uses

pooled COVID-19 testing, a method where one laboratory test is conducted using the

specimens of several people to detect the virus that causes COVID-19 (CDC, June 30,

2021). If an employer conducts pooled testing for COVID-19, a positive pooled test

result would trigger a need to immediately re-test those employees in the pool using an

individual COVID-19 test because the positive pooled result would not satisfy the

requirements of paragraph (g). Only those employees who test positive on their

individual re-test would need to be removed from the workplace.

OSHA intends “removal” under paragraph (h)(2) to refer only to the temporary

removal from the workplace of an employee while that employee is infectious. The

requirement in paragraph (h)(2) to temporarily remove a COVID-19 positive employee

from the workplace does not mean permanent removal of an employee from their

position. Any time an employee is required to be removed from the workplace under

paragraph (h)(2) of this section, the employer can require the employee to work remotely

or in isolation if suitable work is available and if the employee is not too ill to work. In

cases where working remotely or in isolation is not possible, OSHA encourages

employers to consider flexible and creative solutions, such as a temporary reassignment

to a different position that can be performed by telework. However, if an employee is too

ill to work, remote work should not be required, and sick leave or other leave should be

made available as consistent with the employer’s general policies and practices, and as

may be required under applicable laws.

 After an employee has been removed from the workplace as required by

paragraph (h)(2), the employer must ensure that they do not return to the workplace until

the employee meets one of three criteria outlined in paragraphs (h)(2)(i) through

(h)(2)(iii). The purpose of these provisions is to ensure that an employee who has

COVID-19 does not return to work until the risk that they will transmit the disease to

others in the workplace has been minimized. Each of these provisions is based on the best

scientific evidence available on when a person with COVID-19 is no longer likely to

transmit the virus.

Under paragraph (h)(2)(i), the employee can return to work if they receive a

negative result on a COVID-19 nucleic acid amplification test (NAAT) following a

positive result on a COVID-19 antigen test (the most common screening test). There is a

small possibility for employees to receive false positive test results when conducting

regular screening with an antigen test. Positive results are usually highly accurate at

moderate-to-high peak viral load, but false positives can occur, depending on the course

of infection (FDA, April 2021). OSHA recognizes that an employee might choose to seek

a NAAT test for confirmatory testing. NAATs are considered the “gold standard” for

clinical diagnosis of SARS-CoV-2 and may have a higher sensitivity (i.e., ability to

correctly generate a positive result) than antigen tests (CDC, September 9, 2021). If an

employee tested positive for COVID-19 via an antigen test, but then received follow-up

confirmatory testing via a NAAT and the NAAT was negative, the positive antigen test

can be considered a false positive and the employee can return to work (CDC, September

9, 2021). For a more detailed discussion of COVID-19 tests, see the Summary and

Explanation for paragraph (c) (Section VI.C. of this preamble).

The employee may also return to work if they meet the return to work criteria in

CDC’s “Isolation Guidance” (incorporated by reference, § 1910.509) (CDC, February 18,

2021) as described in paragraph (h)(2)(ii). CDC’s guidance states that a COVID-19

positive person can stop isolating when three criteria are met: (1) at least ten days have

passed since the first appearance of the person’s symptoms; (2) the person has gone at

least 24 hours without a fever (without the use of fever-reducing medication); and (3) the

person’s other symptoms of COVID-19 are improving (excluding loss of taste and smell).

If a person has tested positive but never experiences symptoms, then the person can stop

isolating after ten days from the date of their positive test. These recommendations are

based on scientific evidence reviewed by CDC, which indicates that levels of viral RNA

in upper respiratory tract samples begin decreasing after the onset of symptoms (CDC,

September 14, 2021). The rationale for including CDC’s “Isolation Guidance” in the ETS

was addressed in detail in Need for Specific Provisions in the agency’s prior rulemaking

on 1910.502 (see 86 FR 32376, 32455).

Finally, the employee may return to work, per paragraph (h)(2)(iii), if the

employee receives a return-to-work recommendation from a licensed healthcare provider.

The appropriate duration of removal from work for any given individual may differ

depending on factors such as disease severity or the health of the employee’s immune

system. For this reason, the ETS permits employers to make decisions about an

employee’s return to work in accordance with guidance from a licensed healthcare

provider (who would be better acquainted with a particular employee’s condition). If a

licensed healthcare provider recommends a longer period of isolation for a particular

employee than the CDC’s “Isolation Guidance” would otherwise recommend, then the

employer would need to abide by that longer period rather than returning the employee to

work after ten days.

OSHA’s removal requirements as outlined in paragraph (h)(2) are intended to set

the floor for what is required; however, OSHA encourages employers who are able to do

so to have a more robust program of medical removal, as indeed some employers have

already done. In addition to removal from the workplace based on a positive COVID-19
test or diagnosis of COVID-19, employers may consider removal based on COVID-19

symptoms or certain exposure or close contacts employees have had outside of the

workplace. Similarly, employers may consider removing employees from the workplace

if the employer learns that the employee was notified by a state or local public health

authority to quarantine or isolate; the employer might even be contacted by such an

authority directly. Although this ETS does not require removal from the workplace in

those situations, the employer might choose to remove employees from the workplace,

above and beyond what is required by this ETS.

Finally, the note to paragraph (h)(2) clarifies that this ETS does not require

employers to provide paid time to any employee for removal as a result of a positive

COVID-19 test or diagnosis of COVID-19; however, paid time may be required by other

laws, regulations, or collective bargaining agreements or other collectively negotiated

agreements. On the other hand, the ETS does not preclude employers from choosing to

pay employees for time required for removal under this standard. Additionally,

employers should allow their employees to make use of any accrued leave in accordance

with the employer’s policies and practices on use of leave. This provision, while not

placing the burden on the employer to provide paid time, should not be read as depriving

employees of the benefits they are normally entitled to as part of their employment.

Because it does not require employers to provide paid time to employees who are

removed for a positive COVID-19 test or diagnosis of COVID-19, this ETS differs from

OSHA’s COVID-19 Healthcare ETS, which applies to employees in the healthcare

industry who are expected to be exposed to COVID-19, and requires paid medical

removal protection benefits (§ 1910.502(l)(5)) for most employees. This difference

reflects the structure and focus of this ETS relative to the Healthcare ETS. The

Healthcare ETS requires employees to report symptoms of COVID-19 to their employers,

as well as positive COVID-19 tests or diagnoses (see § 1910.502(l)(2)), but does not
require employees to be regularly tested for COVID-19. A primary function of the

payment for medical removal in that standard is, therefore, to remove the potential for

financial disincentives that might deter employees from reporting any signs or symptoms

of COVID-19 that they experience. Because this ETS already requires testing for

unvaccinated workers, which should result in employers learning of cases of COVID-19

in unvaccinated workers, and does not otherwise require employees to report signs and

symptoms of COVID-19 to their employers, OSHA found that requiring employer

payment for removal was not necessary in this standard.

As the note to paragraph (h) indicates, the employer may be required to follow

other laws or regulations that would require paid medical removal. For example, if an

employee covered by this ETS believes they were exposed to COVID-19 in the

workplace and then tested positive, that employee may be entitled to workers’

compensation benefits. Workers’ compensation is a system already in place to provide

benefits to employees who get sick or injured on the job from occupational disease or a

work-related injury. Some states have expressly clarified or expanded their workers

compensation rules to allow for COVID-19 claims during the pandemic (see, e.g.,

Industrial Commission of Arizona, May 15, 2020; Connecticut Executive Order No. 7JJJ,

July 24, 2020; Minn. Stat. Ann. § 176.011 Subd. (15)(f), 2020)).

Finally, the ETS does not contain specific requirements under this paragraph for

the employer to establish or maintain records of employee notifications of a positive

COVID-19 test or diagnosis of COVID-19 by a licensed healthcare provider. However,

should an employer determine that a reported case of COVID-19 is work-related, the

employer must continue to record that information on the OSHA Forms 300, 300A, and

301, or on equivalent forms, if required to do so under 29 CFR part 1904. This also

includes confirmed cases of COVID-19 identified under paragraph (h) that an employer

determines are work-related. Under 29 CFR part 1904, COVID-19 is a recordable illness
and employers are responsible for recording cases of COVID-19 if: (1) the case is a

confirmed case of COVID-19 as defined by the Centers for Disease Control and

Prevention (CDC); (2) the case is work-related as defined by 29 CFR part 1904.5; and (3)

the case involves one or more of the general recording criteria in set forth in 29 CFR part

1904.7 (e.g., medical treatment beyond first aid, days away from work). Under 29 CFR

part 1904, employers must generally provide access to the 300 log to employees, former

employees, and their representatives with the names of injured or ill employees included

on the form. If, however, the employee requests that their name not be entered on the 300

log, the employer must treat their illness as a privacy concern case and may not enter

their name on the log (see 29 CFR 1904.29(b)(6), (b)(7)(vi)).

References:

Centers for Disease Control and Prevention (CDC). (2021, February 18). Isolate if you
are sick. https://www.cdc.gov/ coronavirus/2019-ncov/if-you-are-sick/ isolation.html.
(CDC, February 18, 2021).

Centers for Disease Control and Prevention (CDC). (2021, June 30). Interim Guidance
for Use of Pooling Procedures in SARS-CoV-2 Diagnostic and Screening Testing.
https://www.cdc.gov/coronavirus/2019-ncov/lab/pooling-procedures.html. (CDC, June
30, 2021)

Centers for Disease Control and Prevention (CDC). (2021, September 9). Interim
Guidance for Antigen Testing for SARS-CoV-2. https://www.cdc.gov/coronavirus/2019-
ncov/lab/resources/antigen-tests-guidelines.html. (CDC, September 9, 2021).

Centers for Disease Control and Prevention (CDC). (2021, September 14). Ending
Isolation and Precautions for People with COVID-19: Interim Guidance.
https://www.cdc.gov/coronavirus/2019-ncov/hcp/duration-isolation.html. (CDC,
September 14, 2021).

Connecticut Executive Order No. 7JJJ. (2020, July 24). Executive Order No. 7JJJ
Protection of public health and safety during COVID-19 pandemic and response –
rebuttable presumption regarding workers compensation benefits related to contraction of
COVID-19. https://portal.ct.gov/-/media/Office-of-the-Governor/Executive-
Orders/Lamont-Executive-Orders/Executive-Order-No-7JJJ.pdf. (Connecticut Executive
Order No. 7JJJ, July 24, 2020).

Food and Drug Administration (FDA). (2021, April). Coronavirus Disease 2019 Testing
Basics. https://www.fda.gov/media/140161/download. (FDA, April 2021).
Industrial Commission of Arizona. (2020, May 15). COVID-19 Workers’ Compensation
Claims. https://www.azica.gov/sites/default/files/SPS%20-COVID-19%20FINAL.pdf.
(Industrial Commission of Arizona, May 15, 2020).

Kucharski AJ et al. (2020). Effectiveness of isolation, testing, contact tracing, and

physical distancing on reducing transmission of SARS-CoV-2 in different settings: a
mathematical modelling study. The Lancet Infectious Disease. 2020 Oct; 20(10): 1151-
1160. doi:10.1016/S1473-3099(20)30457-6. Epub 2020 Jun 16. PMID: 32559451;
PMCID: PMC7511527. (Kucharski et al., 2020) 

Minnesota Statutes Annotated, Section 176.011 Definitions. Subd. 15(f). (2020).

https://www.revisor.mn.gov/statutes/cite/176.011/pdf. (Minn. Stat. Ann. § 176.011 Subd.
(15)(f), 2020)

Moghadas S et al. (2020, July 6). The implications of silent transmission for the control of
COVID-19 outbreaks. Proceedings of the National Academy of Sciences of the United
States of America, 117(30), 17513-17515. doi:https://doi.org/10.1073/pnas.2008373117.
(Moghadas et al., July 6, 2020) 

Wells CR et al. (2021). Optimal COVID-19 quarantine and testing strategies.

Nature Communications 2021 Jan 7; 12(1): 356. doi:10.1038/s41467-020-20742-8.
PMID: 33414470; PMCID: PMC7788536. (Wells et al., 2021)

I. Face Coverings

Paragraph (i) of this standard addresses the use of face coverings. As previously

discussed in Grave Danger (Section III.A. of this preamble), COVID-19 spreads when an

infected person breathes out droplets and very small particles that contain the virus.

These droplets and particles can be breathed in by other people or land on their eyes,

noses, or mouth. Face coverings reduce the risk of droplet transmission of COVID-19.

The CDC recommends that people who are not fully vaccinated wear a face covering

(e.g., a mask) in indoor public places. (CDC, July 14, 2021). Additional discussion on the

efficacy of face coverings is provided below.

Face coverings are simple bi-directional barriers that tend to keep droplets, and to

a lesser extent airborne particulates, on the side of the filter from which they originate.

An explanation of the term “face covering”, as used in this ETS, can be found in the

Summary and Explanation for paragraph (c) (Section VI.C. of this preamble). The CDC

(August 13, 2021) recommends unvaccinated people wear face coverings when indoors

to prevent getting and spreading COVID-19 mostly by blocking large respiratory droplets
from either leaving the face covering of the wearer (source control) or by preventing

someone else’s droplets from reaching the wearer (personal protection). The need for

face coverings in workplaces applies particularly to unvaccinated workers due to their

increased potential for asymptomatic and pre-symptomatic transmission of COVID-19.

The CDC Healthcare Infection Control Practices Advisory Committee’s

(HICPAC) “Isolation Guidance” for healthcare settings has long recommended

facemasks, among other controls, to prevent the transmission of viruses that cause

respiratory illnesses (Siegel et al., 2007). Face coverings play an important dual role in

protecting workers from droplet transmission of COVID-19. One of their key purposes is

to function as source control. In this role, the face covering helps protect people around

the wearer by reducing the number of infectious droplets released into the air by the

wearer and limiting the distance traveled by any particles that are released. As a result,

anyone near the wearer is exposed to fewer (if any) droplets and the transmission risk is

lowered (OSHA, January 28, 2021; Siegel et al., 2007). Face coverings also provide a

degree of particulate filtration to reduce the amount of inhaled particulate matter,

meaning face coverings can help protect the wearer themselves, by reducing their

inhalation of droplets produced by an infected person nearby (CDC, May 7, 2021; Brooks

et al., February 10, 2021).

The efficacy of any given face covering in either functioning as source control or

protecting the wearer will depend on the construction, design, and material used for the

face covering. The CDC has stated that “masks are primarily intended to reduce the

emission of virus-laden droplets (“source control”), which is especially relevant for

asymptomatic or presymptomatic infected wearers who feel well and may be unaware of

their infectiousness to others, and who are estimated to account for more than 50% of

transmissions” (CDC, May 7, 2021). The CDC has also stated that: “Multi-layer cloth

masks block release of exhaled respiratory particles into the environment, along with the
microorganisms these particles carry. Cloth masks not only effectively block most large

droplets (i.e., 20-30 microns and larger) but they can also block the exhalation of fine

droplets and particles (also often referred to as aerosols) smaller than 10 microns; which

increase in number with the volume of speech and specific types of phonation. Multi-

layer cloth masks can both block up to 50-70% of these fine droplets and particles and

limit the forward spread of those that are not captured. Upwards of 80% blockage has

been achieved in human experiments that have measured blocking of all respiratory

droplets, with cloth masks in some studies performing on par with surgical masks as

barriers for source control” (CDC, May 7, 2021). Thus, the construction of the face

covering is a significant factor in determining its efficacy at reducing COVID-19

transmission.

While face coverings are generally effective as source control, because of the

potential variations in protective properties, OSHA has not considered face coverings that

are not certified to a consensus standard to be personal protective equipment (PPE) under

OSHA’s general PPE standard (29 CFR 1910.132), as there is insufficient assurance that

any given face covering is of safe design and construction for the work to be performed,

which is required by the PPE standard. Despite these limitations, many of the available

face coverings have proven to be effective at providing source control, and where a face

covering is also effective in providing personal protection, the wearer will be at reduced

risk of, and could be protected from, infection. Accordingly, over the course of the

pandemic, through its guidance, OSHA has strongly encouraged workers to wear face

coverings when they are in close contact with others to reduce the risk of spreading

COVID-19 despite the shortcomings that have prevented the agency from considering

them to be PPE that complies with the requirement of the PPE standard. To enhance the

effectiveness of any face covering required by this standard, this ETS imposes certain

minimum design criteria, consistent with CDC recommendations. Thus, the face covering
must consist of at least two layers of material that is either tightly woven or non-woven,

and the face covering must not have visible holes or openings. CDC has found face

coverings that are tightly woven and made with at least two layers are more effective at

filtering droplets than face coverings that are loosely woven or consist of a single layer of

fabric (CDC, May 7, 2021; Ueki et al., June 25, 2020).

OSHA’s determination on the importance of face coverings is supported by a

substantial body of evidence. As described in further detail below, consistent and correct

use of face coverings is widely recognized and scientifically supported as an important

evidence-based strategy for COVID-19 control. Accordingly, with specific exceptions

relevant to outdoor areas and vaccinated persons, the CDC recommends everyone two

years of age and older wear a face covering in public settings and when around people

outside of their household (CDC, August 13, 2021). And, on January 21, 2021, President

Biden issued Executive Order 13998, which recognizes the use of face coverings or

facemasks as a necessary, science-based public health measure to prevent the spread of

COVID-19, and therefore directed regulatory action to require that they be worn in

compliance with CDC guidance while traveling on public transportation (e.g., buses,

trains, subway) and while at airports (Executive Order 13998, 86 FR 7205, 7205 (Jan. 21,

2021); CDC, February 2, 2021). Similarly, the World Health Organization (WHO) has

recognized face coverings as a key measure in suppressing COVID-19 transmission, and

thus, saving lives. The WHO observes that face coverings serve two purposes, to both

protect healthy people from acquiring COVID-19 and to prevent sick people from further

spreading it. Since December of 2020, the WHO has recommended that the general

public wear face coverings in indoor settings and in outdoor settings where physical

distancing cannot be maintained (WHO, December 1, 2020).

In the United States, several states have imposed statewide face covering

mandates in order to mitigate the spread of COVID-19. One study examined data on
statewide face covering mandates during March 1–October 22, 2020, and found that

statewide face covering mandates were associated with a decline in weekly COVID-19–

associated hospitalization growth rates by up to 5.6 percentage points for adults aged 18–

64 years after mandate implementation, compared with growth rates during the 4 weeks

preceding implementation of the mandate (Joo et al., February 12, 2021). Similarly,

another study examined the association of state-issued face covering mandates with

COVID-19 cases and deaths during March 1–December 31, 2020, and found mandating

face coverings was associated with a decrease in daily COVID-19 case and death growth

rates within 20 days of implementation (Guy et al., March 12, 2021).

School face covering policies for students, staff members, faculty, and visitors are

associated with a reduction in COVID-19 outbreaks. Between July 15 and August 31,

2021, schools in Arizona were analyzed for school mask policies, which provided that all

persons, regardless of vaccination status, were required to wear a mask indoors. The odds

of a school-associated COVID-19 outbreak in schools without a mask requirement were

3.5 times higher than those in schools with an early mask requirement (Odds Ratio = 3.5;

95% Confidence Interval = 1.8–6.9) (Jehn et al., October 1, 2021).

The effectiveness of face coverings in limiting the emission and spread of droplets

has also been demonstrated in numerous studies. For example, multiple studies in which

droplets were visualized while individuals were talking or a manikin was used to simulate

coughs and sneezes demonstrated that two-layer face coverings limited the number of

droplets released into the air, and limited the forward spread of those not captured

(Fischer et al., September 2, 2020; Verma et al., June 30, 2020; CDC, May 7, 2021).

The effectiveness of face coverings in preventing infections was also observed in

a number of epidemiological studies. For example, in June of 2020 an outbreak was

studied aboard the USS Theodore Roosevelt, an environment notable for congregate

living quarters, close working environments, and a sample of mostly young, healthy
adults. The investigation found that use of face coverings on board was associated with a

70% reduced risk of transmission, which demonstrates that the use of face coverings,

especially among asymptomatic cases, can help mitigate future transmission (Payne et al.,

June 12, 2020). Another publication, released in July of 2020, included an investigation

of a high-exposure event among 139 clients exposed to two symptomatic hair stylists

with confirmed cases of COVID-19. Both of the stylists and all of their clients wore face

coverings during their interactions. Among 67 clients subsequently tested for COVID-19,

all test results were negative; no symptomatic secondary cases were reported by any

clients, including those who were not tested. The study concluded that the strict use of

face coverings likely mitigated the spread of COVID-19 (Hendrix et al., July 17, 2020).

Several other observational epidemiological studies have reviewed data regarding

the “real-world” effectiveness of face covering usage. First, in a study of 124 Beijing

households with one or more laboratory-confirmed case of COVID-19, face covering use

by both the index patient and all family contacts before the index patient developed

symptoms reduced secondary transmission (i.e., infections occurring within two weeks of

symptom onset in the index case) within the households by 79% (Wang et al., May 11,

2020). Second, a retrospective case-control study from Thailand documented that, among

more than 1,000 persons interviewed as part of contact tracing investigations, those who

reported having always worn a face covering during high-risk exposures experienced a

greater than 70% reduced risk of infection compared with persons who did not wear face

coverings under these circumstances. The risk for infection was not significantly lower in

those who reported only sometimes wearing face coverings compared to those who did

not wear face coverings at all. This evidence supports the conclusion that face coverings

must be worn consistently and correctly to meaningfully reduce the risk of infection

(Doung-ngern et al., September 14, 2020).

 Community-level analyses have also confirmed the benefit of universal face

covering use in: a unified hospital system (Wang et al., July 14, 2020); a German city

(Mitze et al., June 1, 2020); a U.S. state (Gallaway et al., October 6, 2020); a panel of 15

U.S. states and Washington, D.C. (Lyu and Wehby, June 16, 2020; Hatzius et al., June

29, 2020); as well as both Canada (Karaivanov et al., October 1, 2020) and the U.S.

(Chernozhukov et al., September 15, 2020) nationally. Each community analysis

demonstrated that, following universal face covering directives from both organizational

and political leadership, new infections were shown to fall significantly. These analyses

have also shown reductions in mortality and the need for lockdowns, with their associated

monetary/gross domestic product losses (Leffler et al., December 2, 2020; Hatzius et al.,

June 29, 2020). Additionally, multiple investigations involving infected passengers

aboard flights longer than ten hours strongly suggest that face covering usage prevented

in-flight transmissions, as demonstrated by the absence of infection developing in other

passengers and crew in the 14 days following exposure (Schwartz et al., April 14, 2020;

Freedman and Wilder-Smith, September 25, 2020).

Researchers from the COVID-19 Systematic Urgent Review Group Effort

investigated the effects of face coverings and eye protection on virus transmission in both

healthcare and non-healthcare settings. They identified 172 observational studies for their

systematic review and 44 comparative studies for their meta-analysis, including data on

25,697 COVID-19, SARS, or MERS patients. They concluded for the general public,

based mainly on evidence from face covering use within households and among contacts

of cases, that disposable surgical masks or face coverings (reusable multi-layer cotton

face coverings) are associated with protection from viral transmission. Through the meta-

analysis, combining 39 of the studies’ results, they found a 14.3% reduction in the

difference of anticipated absolute effect (e.g., the chance of viral infection or

transmission) between no face covering and face covering groups (Chu et al., June 27,

2020).

Ueki et al. (June 25, 2020) evaluated the effectiveness of cotton face coverings,

facemasks, and N95s (a commonly used respirator) in preventing transmission of SARS-

CoV-2 using a laboratory experimental setting with manikins. The researchers found that

all offerings provided some measure of protection as source control, limiting droplets

expelled from both infected and uninfected wearers. For instance, when spaced roughly

20 inches apart, an uninfected person can reduce inhalation of infectious virus by 37% by

wearing a cotton face covering. If only the infected person wears a cotton face covering,

the amount breathed in by the uninfected recipient is reduced by 57%. However, if both

individuals wear a cotton face covering, the exposure is reduced 67%. If both are wearing

facemasks, exposure is reduced by 76%. When an infected individual wore an N95

respirator, exposure was reduced by 96% or, when the seams were taped, 99.7%.

As demonstrated by the studies above, proper face covering usage leads to a

substantial reduction in the emission of virus-containing droplets and consequent

transmission of the virus. This is especially critical for asymptomatic or pre-symptomatic

infected wearers who feel well and may not be taking other preventative measures—like

self-isolation—because they are unaware of their infectiousness to others. Combined,

these individuals are estimated to account for more than 50% of COVID-19 transmissions

(Honein et al., December 11, 2020; Moghadas et al., July 6, 2020; Johansson et al.,

January 7, 2021). This figure could be substantially reduced if face coverings are

required, even for individuals who do not feel sick. Face covering use is also especially

important in indoor spaces (Honein et al., December 11, 2020). The studies reviewed

above show that face coverings reduce the release of droplets but do not completely

eliminate them. CDC guidance affirms that COVID-19 pandemic control requires face

covering use (Honein et al., December 11, 2020; CDC, May 7, 2021). Similarly, the
WHO advises face covering use as a critical measure of a comprehensive package of

prevention and control measures to limit the spread of COVID-19 (WHO, December 1,

2020).

Although increasing COVID-19 vaccination coverage remains the most effective

means to achieve control of the pandemic, additional layered prevention strategies will be

needed in the short term to minimize preventable morbidity and mortality among

unvaccinated individuals. Unvaccinated individuals remain at substantial risk for

infection, severe illness, and death, especially in areas where the level of SARS-CoV-2

community transmission is high (discussed in detail in Grave Danger (Section III.A. of

this preamble)). Among strategies to prevent COVID-19, CDC recommends all

unvaccinated individuals wear face coverings in public indoor settings. A proven

effective strategy against SARS-CoV-2 transmission, beyond vaccination, includes using

face coverings consistently and correctly (Christie et al., July 30, 2021).

The agency is not requiring the use of face coverings by workers who are fully

vaccinated because vaccination is sufficient to reduce the grave danger to themselves or

others. While vaccination is sufficient to reduce grave danger to the workers themselves,

the agency recognizes that there may still be residual risk (e.g., breakthrough infections);

severe health outcomes among vaccinated workers, however, are unlikely. Vaccination is

also sufficient to reduce the grave danger that fully vaccinated workers present to others

given the reduced likelihood of transmission (see Grave Danger in Section III.A. of this

preamble). Nonetheless, the use of face coverings by fully vaccinated workers, while not

required by this ETS, is strongly encouraged in a wide range of circumstances to reduce

the overall risk of transmitting COVID-19, particularly in areas of substantial or high

transmission, when indoors and when in crowded outdoor areas. The use of face

coverings by customers and visitors to workplaces is also beneficial in reducing the

overall risk of workplace transmission of COVID-19.

 OSHA has always considered recognized consensus standards, with design and

construction specifications, when determining the PPE requirements of the agency’s

standards. The OSH Act (29 U.S.C. 655(b)(8)) requires the agency to generally give

deference to consensus standards unless setting its own specifications would better

effectuate the purposes of the Act. The agency’s standards generally require PPE to

conform to the specifications in consensus standards through incorporation by reference

(e.g., eye and face protection, head protection, foot protection). ASTM released a

specification standard on February 15, 2021, to establish a national standard baseline for

barrier face coverings (ASTM F3502-21). OSHA considered, as required, incorporation

of ASTM F3502-21 in this ETS. 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 any new product. OSHA notes

the CDC’s guidance on types of masks, including those that meet ASTM F3502-21

requirements, and respirators as helpful to employers and workers in selecting an

appropriate product (CDC, September 23, 2021).

Relatedly, OSHA has previously established that medical facemasks are essential

PPE for workers in healthcare and associated industries, and are already used by workers

under both the general PPE standard (29 CFR 1910.132), and more specifically, the

Bloodborne Pathogens standard (29 CFR 1910.1030). Facemasks are intended for a

medical purpose, such as prevention of infectious disease transmission (including uses

related to COVID-19). Facemasks can function as a barrier to protect the wearer from

hazards such as splashes or large droplets of blood and bodily fluids. Facemasks, such as

surgical masks, must be FDA-cleared or authorized by FDA, including under an EUA

and provide a similar or greater level of protection when serving the purposes of a face
covering. Respirators are another type of personal protective device that OSHA has

regulated under the Respiratory Protection standard (29 CFR 1910.134).

The best available experimental and epidemiological data support consistent use

of face coverings by unvaccinated workers in work settings to reduce the spread of

COVID-19 through droplet transmission. As discussed in Need for the ETS (Section

III.B. of this preamble), adopting face covering policies is necessary, as part of a strategy

combined with testing, to protect employees from exposure to COVID-19. Requiring

unvaccinated workers to wear face coverings in the workplace will reduce the likelihood

that, in conjunction with the testing (paragraph (g)) and removal, of infected workers,

(paragraph (h)) requirements, they will spread the virus to others, including other

unvaccinated coworkers. Based on the proven effectiveness of face covering use,

OSHA’s COVID-19 ETS includes necessary provisions for required use of face

coverings by unvaccinated workers and provisions to allow vaccinated workers and

customers and visitors to wear face coverings or respirators as a component of reducing

the overall risk of COVID-19 transmission in the workplace.

The benefits that result from the use of face coverings for preventing transmission

of COVID-19 are derived from the combination of source control (i.e., reducing the

spread of large respiratory droplets to others by covering an infected person’s mouth and

nose) and some personal protection for the wearer, as was discussed above in the Need

for Face Coverings section. Face coverings are a vital layer of protection, and the benefit

to any given individual increases with increasing community use. Paragraph (i) contains

requirements for the use of face coverings by each employee who is not fully vaccinated,

as well as alternatives to face coverings (e.g., facemasks, respirators) that may be

acceptable in some situations (described in detail below). As defined in paragraph (c), a

face covering means a covering that completely covers the nose and mouth of the wearer,

excluding face shields, which is made with two or more layers of a breathable fabric that
is tightly woven, is secured to the wearer’s head with ties, ear loops, or elastic bands that

go behind the head, and is a solid piece of material without slits, exhalation valves,

visible holes, or other openings in the material. This definition encompasses face

coverings that otherwise meet the definition of face covering under paragraph (c), but

include clear plastic windows, such as those utilized by persons communicating with

those who are deaf or hard-of-hearing or when seeing a person’s mouth is otherwise

important. Face coverings can be manufactured or homemade, and they can incorporate a

variety of designs, structures, and materials. Face coverings can be disposable or

reusable. Face coverings do not have to meet a consensus standard, although they might.

Apart from any applicable FDA or NIOSH regulatory requirements that might otherwise

apply, such requirements are not required solely for the purposes of meeting the

requirements of this standard.

As a general rule, OSHA has authority to, and does, require employers to bear the

costs for protective equipment, among other worker protections, required by an OSHA

standard. See, e.g., 29 CFR 1910.1018(j) (requiring the employer to provide protective

clothing at no cost to the employee). However, in limited circumstances, OSHA has

chosen not to require employers to pay for some forms of non-specialized protective

equipment, such as every-day clothing, products providing weather-related protection,

and non-specialized equipment that the employee wears off the job site. See 29 CFR

1910.132(h)(2)-(5). Like the analogous situations listed above, here employees may use

their personal face coverings in a variety of circumstances on and off the job site as part

of their every-day protection. Because the types of face coverings permitted under this

ETS are widely used and readily available, (see Technological Feasibility (Section IV.A.

of this preamble)), employees will have no difficulty obtaining them. OSHA is requiring

employers to bear the costs for employee vaccination, because it is the more protective

control, (Need for the ETS (Section III.B. of this preamble). OSHA does not believe it
appropriate to impose the costs of personal face coverings on an employer where an

employee has made an individual choice to pursue a less protective option. For these

reasons, OSHA has determined not to impose the costs of face coverings on the employer

as a requirement under this ETS.

Paragraph (i)(1) requires employers to ensure that each employee who is not fully

vaccinated wears a face covering when indoors or when occupying a vehicle with another

person for work purposes, except (i) when an employee is alone in a room with floor to

ceilings windows and a closed door. However, if that employee exits the room or another

individual enters the room, they are required to wear a face covering. The second

exception is (ii) for a limited time while an employee is eating or drinking at the

workplace or for identification purposes in compliance with safety and security

requirements. Under this exception, employees are not required to wear face coverings

during the limited time while eating or drinking at the workplace. Employers may also let

employees eat or drink outside where there may be more space and reduced risk of

transmission. Additionally, under the exception in paragraph (i)(1)(ii), employees are not

required to wear a face covering for a limited time for identification purposes in

compliance with safety and security requirements. This means that an unvaccinated

employee can temporarily remove their face covering when at a security checkpoint

within their worksite and when identification is otherwise required.

Another exception for required face coverings is under paragraph (i)(1)(iii) for

when an employee is wearing a respirator or facemask in accordance with other OSHA

standards (e.g., 1910.134, 1910.504, 1910.1030, 1910.502). Facemask or respirator use in

accordance with other OSHA standards takes precedence over face covering use in this

ETS. For example, OSHA standard 1910.1030 has requirements for facemasks in

healthcare settings and requires that workers should continue to use the required

facemask appropriate for that setting. Another example may include a worker who is
required to use a respirator under 1910.134 for workplace exposure to harmful dusts,

where effective engineering controls are not feasible; that worker should continue to use

the required respirator. Employees must resume wearing a face covering when not

engaged in the activity where a facemask or respirator is required as an essential part of

their job. The last exception, contained in paragraph (i)(1)(iv), is for a very limited set of

circumstances where employers can show that the use of the face covering is infeasible or

creates a greater hazard. Situations where it is important to see an employee’s mouth for

reasons related to their job duties, or their job requires the use of their uncovered mouth,

or when the use of a face covering presents a risk of serious injury or death to the

employee, would also be covered under this provision. As has been previously discussed

in Summary and Explanation for paragraph (d) (Section VI.D. of this preamble), OSHA

recognizes that there may be certain workers who may not be able to wear a face

covering due to a disability or sincerely held religious belief and are entitled to an

accommodation.

If employers receive accommodation requests relating to face coverings or other

protective gear, for example due to disability or religious garb or grooming, they should

evaluate those requests under applicable laws (EEOC, October 25, 2021).

Paragraph (i)(2) requires that employers ensure that any face covering required to

be worn by this section is: (i) worn by the employee to fully cover the employee’s nose

and mouth; and (ii) replaced when wet, soiled, or damaged (e.g., is ripped, has holes, or

has broken ear loops). To be worn properly, face coverings must completely cover the

wearer’s mouth and nose and must fit snugly against the sides of the face without gaps.

Gaps can let air with respiratory droplets leak in and out around the edges of the mask.

Face coverings with a nose wire help to avoid issues with glasses fogging and create a

snug fit. Workers can also use a mask fitter or brace over a disposable mask or a cloth

mask to prevent air from leaking around the edges of the mask. To ensure face coverings
are worn properly, an employer might appoint a manager or senior employee to check

that each unvaccinated employee is properly wearing a face covering at the start of and

throughout each shift. Many aspects of proper mask use are easily observable (e.g.,

covering the mouth and nose, as well as no observable gaps). Additionally, employers

may consider utilizing workplace announcements (e-mail messages, safety talks, etc.) or

displaying signs or posters throughout the facility about proper face covering usage.

The employer must ensure that employees replace face coverings when wet,

soiled, or damaged (paragraph (i)(2)(ii)). Face coverings can become soiled by splashes,

sprays, or splatters, from contact with a contaminated surface, or by touching/adjusting

them with contaminated hands. Damaged face coverings may not fit properly and thus

will have reduced effectiveness. Employees who work where there is potential for spills,

sprays, or splashes may need to change or replace their face coverings more frequently

(e.g., in food, meat, or poultry processing plants; water, sanitation, or wastewater

treatment facilities; or restaurants). As note 1 to paragraph (i) addresses, face shields may

be worn in addition to face coverings to prevent them from getting wet and soiled. For

work where face coverings are expected to become dirty or soiled less frequently,

employees may only need to replace their face coverings daily (e.g., in retail or office

buildings). Regardless of work location, reusable face coverings can become soiled after

each use and may be contaminated with bacteria and viruses, including the virus that

causes COVID-19. To ensure performance and minimize the risk of contaminating

employees after contact with a soiled face covering, as described previously, the CDC

recommends washing them whenever they get dirty, but at least once a day. The CDC

also has guidance on the selection, proper wearing, cleaning, and storage of face

coverings (CDC, August 13, 2021).

The employer must not prevent any employee, regardless of vaccination status,

from voluntarily wearing a face covering or facemask unless the employer can
demonstrate that doing so would create a hazard (paragraph (i)(3)). While vaccination

greatly reduces the risk of the most severe consequences of COVID-19 (e.g.

hospitalizations and fatalities) to workers, it does not reduce the risk to zero and thus

workers must be permitted to wear face coverings or facemasks even when not required

to in order to allow the workers to further address residual risk. The agency has

determined this provision is necessary because employees may themselves have

additional medical risk factors that employers may or may not be aware of, and which

require enhanced precautions. Similarly, employees may live with or have frequent

contact with family members or others who have enhanced risk if infected with COVID-

19 and thus justify assuring the employees’ ability to take reasonable precautions to

protect their own health and safety or that of loved ones.

Paragraph (i)(4) states that the employer must permit the employee to wear a

respirator instead of a face covering whether required or not (i.e., without regard to

vaccination status), and the employer may provide respirators to the employee, even if

not required. This means that when a face covering is not required by paragraph (i)(1),

the employer must permit the employee to wear a respirator or the employer may even

provide a respirator; in such circumstances, the employer must also comply with

1910.504 (the mini respiratory protection program). Respirators, as defined in paragraph

(c), are a type of PPE that are certified by NIOSH or authorized under an Emergency Use

Authorization (EUA) by the FDA, and protect against airborne hazards by removing

specific air contaminants from the ambient (surrounding) air or by supplying breathable

air from a safe source. Respirator use can provide an additional level of comfort and

protection beyond that provided by face coverings for employees in circumstances that do

not require a respirator to be used. As discussed previously, the agency has determined

that workers need the ability to wear PPE, even when it is not required, in order to

address residual risk and due to health conditions that either they or their close contacts
may have that warrant enhanced precautions. For a more in-depth description of the mini

respiratory protection program, see the preamble to the Healthcare ETS (86 FR 32615-

32617). OSHA intends the mini respirator protection program to be preserved for the

duration of this ETS, and any references relied upon by OSHA in those sections of the

Healthcare ETS are also incorporated explicitly into the rulemaking docket for this ETS.

The mini respiratory protection program is designed to strengthen employee

protections with a small set of provisions for the safe use of respirators designed to be

easier and faster to implement than the more comprehensive respiratory protection

program under 29 CFR 1910.134. This ETS is addressing an emergency health crisis, so

it is critical for employers to be able to get more employee protection in place quickly.

OSHA expects that this approach will facilitate additional employee choice for the

additional protection provided by respirators while reducing disincentives that may have

discouraged employers from allowing or voluntarily providing respirators. A mini

respirator program is therefore an important control to protect employees from the hazard

posed by COVID–19.

The mini respiratory protection program is primarily intended to be used for

addressing circumstances where employees are not exposed to suspected or confirmed

sources of COVID–19, but where respirator use could offer enhanced protection to

employees. Examples include when a respirator could offer enhanced protection in

circumstances where a less protective (in terms of filtering and fit) face covering is

required under the ETS (See 29 CFR 1910.501(i)(1)). The decision to use a respirator in

place of a face covering could be due to the higher filter efficiency and better sealing

characteristics of respirators when compared to face coverings. For additional discussion,

the rationale for the mini respiratory protection program was addressed in detail in Need

for Specific Provisions in the agency’s prior rulemaking on 1910.504, and the
requirements of the mini respiratory protection program section are discussed in

Summary and Explanation in the agency’s prior rulemaking on 1910.504.

As required by paragraph (i)(5), the employers must not prohibit customers or

visitors from wearing face coverings. Face coverings are a vital layer of protection

against the risk of COVID-19. (See the discussion earlier in this section on the benefits

to individuals associated with increased community use.) This provision is necessary

because increased use of face coverings also reduces the overall risk of COVID-19

transmission from the customers and visitors to workers, both unvaccinated and

vaccinated alike. Additionally, it allows customers and visitors to protect their own health

and safety. Employers may even want to create a policy encouraging the use of face

coverings by anyone who enters the business; they are encouraged to coordinate with

state and local health officials to obtain and respond appropriately to timely and accurate

information (e.g., level of community transmission, health system capacity, vaccination

coverage, capacity for early detection of increases in COVID-19 cases, and populations at

risk for severe outcomes from COVID-19). Local conditions will influence the decisions

that public health officials make regarding community-level strategies. Additionally,

workers and their representatives may also negotiate additional face covering measures

not required by the ETS through collective bargaining agreements or other collectively

negotiated agreements.

Lastly, for the reasons explained above, note 2 to paragraph (i) clarifies that this

section does not require the employer to pay for any costs associated with face coverings.

However, the note also makes clear that this section does not prohibit the employer from

paying for costs associated with face coverings required by this section. OSHA notes that

employer payment for face coverings may be required by other laws, regulations, or

collective bargaining agreements or other collectively negotiated agreements.

Additionally, workers and their representatives may also negotiate employer payment for
face coverings not required by the ETS through collective bargaining agreements or other

collectively negotiated agreements.

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Transmission of SARS-CoV-2. mSphere 5: e00637-
20. https://doi.org/10.1128/mSphere.00637-20. (Ueki et al., October 21, 2020)

Verma S et al. (2020, June 30). Visualizing the effectiveness of face masks in obstructing
respiratory jets. Physics of Fluids, 32(6), 061708. doi:https://doi.org/10.1063/5.0016018.
(Verma et al., June 30, 2020)
Wang X et al. (2020, July 14). Association between universal masking in a health care
system and SARS-CoV-2 positivity among health care workers. Journal of the American
Medical Association, 324(7), 703-704. doi:10.1001/jama.2020.12897. (Wang et al., July
14, 2020)

Wang Y et al. (2020, May 11). Reduction of secondary transmission of SAR-CoV-2 in

households by face mask use, disinfection and social distancing: a cohort study in
Beijing, China. BMJ Global Health, 5, e002794. doi:10.1136/bmjgh-2020-002794.
(Wang et al., May 11, 2020)

World Health Organization (WHO). (2020, December 1). Mask use in the context of
COVID-19. https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-
for-public/when-and-how-to-use-masks. (WHO, December 1, 2020)

J. Information Provided to Employees

In order to successfully implement the provisions of the ETS, it is critical that

employers provide relevant information to employees. Employers must provide

employees with the information specified in paragraph (j), an essential part of this ETS,

because it helps to ensure that employees understand both their rights and responsibilities

under the ETS and their employer’s policies and procedures. The ETS cannot be effective

if employees do not have sufficient knowledge and understanding of the requirements of

the ETS, their employers’ policies and procedures, information about available COVID-

19 vaccines, their protections against retaliation and discrimination, and the potential

penalties for knowingly providing false information to their employer.

Paragraph (j) provides that employers must provide the required information to

each employee in a language and at a literacy level the employee understands. This

means that if an employer has employees that speak different languages or are at different

literacy levels, the employer must present information in a way that ensures each

employee can understand it. This may require an employer to create different materials

for different groups of employees (e.g., materials in different languages). When

information must be translated into different languages, employers must ensure the

translation is one the employees can understand. When an employer provides employees
with the required information in a manner employees understand, they help ensure that

their implementation of this ETS is successful.

The manner in which employers provide the required information to employees

may vary based on the size and type of workplace. Employers have flexibility to

communicate this information to employees using any effective methods that are

typically used in their workplaces, and may choose any method of informing employees

so long as each employee receives the information specified in the standard in a language

and at a literacy level they understand. For example, an employer may provide this

information to employees through email communications, printed fact sheets, or during a

discussion at a regularly scheduled team meeting. To ensure comprehension of the

information provided, employers can identify a point-of-contact for employees who have

questions about the information provided.

Paragraphs (j)(1)-(4) specify the information that employers must provide to

employees. Paragraph (j)(1) requires employers to provide each employee with

information regarding the requirements of § 1910.501 and any policies and procedures

the employer establishes to implement this ETS. The information provided to employees

must cover any employer policies under paragraph (d), including the details of the

employer’s vaccination policy. Employers must also inform employees about the process

that will be used to determine employee vaccination status, as required under paragraph

(e). In addition, employers must inform employees about the time and pay/leave they are

entitled to for vaccinations and any side effects experienced following vaccinations, as

required by paragraph (f). And employers must also inform employees about the

procedures they need to follow to provide notice of a positive COVID-19 test or

diagnosis of COVID-19 by a licensed healthcare provider, as required under paragraph

(h), as well as the procedures to be used for requesting records under paragraph (l).

Employers must provide additional information to unvaccinated employees, including

information about the employer’s policies and procedures for COVID-19 testing and face

coverings, as required by paragraphs (g) and (i), respectively.

Some employers may have informed employees about their COVID-related

workplace-specific policies, e.g., policies on vaccination, testing, and face coverings,

prior to the effective date of this ETS. Employers may rely on any such prior

communications for purposes of complying with paragraph (j)(1) to the extent that the

prior communications meet the relevant requirements of paragraph (j) and there have

been no changes to the relevant policies. Employers must review and evaluate the

information already provided to determine whether it covers all of the information

necessary under paragraph (j)(1). If previous information provided to employees did not

cover all of the required elements, the employer must provide employees the information

on those missing elements to come into compliance with the ETS. For example, if an

employer has a mandatory vaccination policy and has already provided information to the

employees on the policies and procedures the employer has established to implement that

policy, and provided that information in a language and at a literacy level each employee

can understand, the employer would not need to expend resources to provide that

information again to meet the requirements under this ETS. However, the employer

would still need to provide information to its employees about other new policies and

procedures established to implement the ETS.

When an employer’s policies or procedures change, the employer must provide

any updated or supplemental information to employees. For example, an employer may

initially opt to allow only paper copies as proof of COVID-19 test results. Over time,

however, the employer may decide that it wants to accept electronic proof of test results.

If that employer modifies its policy to permit employees to submit electronic proof of test

results, the employer must inform employees of any new or altered policies and

procedures that the employer implements as a result.

 Paragraph (j)(2) requires employers to provide information to each employee

about COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated. To meet

this requirement, employers must provide the CDC’s document, “Key Things to Know

About COVID-19 Vaccines,” available at https://www.cdc.gov/coronavirus/2019-

ncov/vaccines/keythingstoknow.html (CDC,October 7, 2021), to each employee. The

employer may choose to provide this information to employees in either an electronic or

print format. The CDC currently provides this document in multiple languages; however,

employers may need to provide additional translations if necessary to inform each

employee of the contents of the document in a language they understand. Employers do

not have any further obligations to create or provide information on vaccine efficacy,

safety, or the benefits of being vaccinated beyond providing the aforementioned CDC

document to each employee.

Paragraph (j)(3) requires employers to inform each employee about the

requirements of 29 CFR 1904.35(b)(1)(iv) and section 11(c) of the OSH Act. These two

provisions work together to protect employees from retaliation for engaging in activities

protected by OSHA statute or regulation. The first of these provisions, section

1904.35(b)(1)(iv), prohibits employers from discharging or in any manner discriminating

against any employee for reporting a work-related injury or illness. The second provision,

section 11(c) of the OSH Act, prohibits employers from discriminating against employees

for exercising rights under, or as a result of actions required by, the ETS. Section 11(c)

also protects employees from retaliation for filing an occupational safety or health

complaint, reporting a work-related injury or illness, or otherwise exercising any rights

afforded by the OSH Act.

Retaliation takes many forms; it occurs when an employer (through a manager,

supervisor, or administrator) fires an employee or takes any other type of adverse

employment action against an employee for engaging in a protected activity. Adverse

employment actions include discipline, reducing pay or hours, reassignment to a less

desirable position, denying overtime or promotion, intimidation or harassment, and any

other action that would dissuade a reasonable employee from raising a concern about a

possible violation or engaging in other protected activity (see Burlington Northern &

Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006) holding, in the Title VII context,

that the test for determining whether a particular employment action is materially adverse

is whether it “could well dissuade” a reasonable person from engaging in protected

activity).

The ETS does not change employers’ substantive obligations under either 29 CFR

1904.35(b)(1)(iv) or section 11(c) of the OSH Act. Rather, it simply requires employers

to make employees aware of these provisions and their requirements. By increasing

awareness, OSHA believes that paragraph (j)(3) will prevent acts of retaliation from

occurring in the workplace, encourage employees to exercise their right to the protections

of the ETS, and engage employees in actions required by the ETS.

It is critically important for employees to be aware of, and to be able to exercise,

their rights under the ETS. Employee participation is essential to mitigating the spread of

COVID-19 in the workplace, and fear of retaliation would undermine the effectiveness of

the ETS. For example, per paragraph (f) of this ETS, employers must provide employees

up to 4 hours of paid time at the employee’s regular rate of pay for each vaccination dose,

as well as reasonable time and paid sick leave for employees to recover from side effects

experienced following any vaccination dose. If an employer fails to comply with

paragraph (f) and then retaliates against employees who object, employees may be

deterred from being vaccinated. Similarly, if employees fear retaliation, they will be less

likely to voice concerns about unvaccinated co-workers who do not wear required face

coverings (see paragraph (i)(1)). A workplace free from the threat of retaliation promotes
collaboration between employers and employees and allows employers to more

effectively implement the various requirements of this ETS.

OSHA has received a record number of complaints of retaliation during the

COVID-19 pandemic. The agency's website shows that, as of September 26, 2021,

OSHA had received 5,788 complaints of retaliation related to workplace protections from

COVID-19 (OSHA, September 29, 2021). These figures indicate that some employers

need to be reminded that they are legally prohibited from engaging in retaliatory actions.

Additionally, employees likely need reassurance of their legal right to engage in

protected activity without fear of suffering from adverse employment actions. As such, it

is critical for employers to inform employees of the prohibitions against retaliation in 29

CFR 1904.35(b)(1)(iv) and section 11(c) after the effective date of the ETS, without

regard to any information they may have provided previously on these anti-retaliation

provisions. As with the other parts of paragraph (j), employers have flexibility regarding

how they will provide the required information.

Paragraph (j)(4) requires employers to provide each employee with information regarding

the prohibitions of 18 U.S.C. 1001 and Section 17(g) of the OSH Act, which provide for

criminal penalties associated with knowingly supplying false statements or

documentation. The first of these two provisions, 18 U.S.C. 1001(a) is described earlier

in this preamble and provides for fines or imprisonment for persons who “knowingly and

willfully” (1) falsifies, conceals, or covers up by any trick, scheme, or device a material

fact; (2) makes any materially false, fictitious, or fraudulent statement or representation;

or (3) makes or uses any false writing or document knowing the same to contain any

materially false, fictitious, or fraudulent statement or entry. And section 17(g) of the

OSH Act provides for fines up to $10,000, and imprisonment for not more than six

months, or both, for anyone who “knowingly makes any false statement, representation,

or certification” in any application, record, report, plan, or other document “filed or

required to be maintained pursuant to this chapter.” False statements or documents made

or submitted for purposes of complying with policies required by this ETS could fall

under either or both of these statutory provisions.

This ETS requires that each employee provide their employer either COVID-19

vaccination documentation (paragraph (e)), or, if applicable, regular COVID-19 test

results (paragraph (g)). There is a significant public health interest in ensuring employees

provide this information truthfully to the employer. Employers cannot effectively

implement the requirements of this ETS based on false information. By increasing

awareness of the possible penalties an employee may face for misrepresenting their

vaccination status or test results, OSHA intends to discourage such behavior. Employers

can satisfy the requirement of paragraph (j)(4) by providing each employee with the text

of the two statutory provisions in hard copy or via electronic communication (e.g., e-

mail), translated as necessary into other languages, emphasizing the importance of

providing truthful information about vaccine status and test results, and explaining that

providing false information could be punishable under the two provisions. Employers are

not required to provide further explanation of the statutory provisions or to provide legal

advice.

Information requirements are routine components of OSHA standards. The

inclusion of information requirements in this ETS reflects the agency's conviction, as

noted above, that informed employees are essential to the implementation of any

effective occupational safety and health policy or procedure. OSHA believes that

informing employees about their rights and responsibilities under the ETS; the

employer’s policies and procedures; and the safety, efficacy, and benefits of vaccination

will help increase the number of employees vaccinated and will facilitate effective

implementation of the standard by employers.

References:
Centers for Disease Control and Prevention (CDC). (2021, October 7). Key Things to
Know About COVID-19 Vaccines. https://www.cdc.gov/coronavirus/2019-
ncov/vaccines/keythingstoknow.html. (CDC, October 7, 2021).

Occupational Safety and Health Administration (OSHA). (2021, September 29). COVID-
19 Response Summary: Summary Data for Federal Programs--
Whistleblower Data. https://www.whistleblowers.gov/covid-19-data.
(OSHA, September 29, 2021).

K. Reporting COVID-19 Fatalities and Hospitalizations to OSHA

OSHA has required employers to report work-related fatalities and certain work-

related hospitalizations under its recordkeeping regulation since 1971. These

requirements have been an important part of the agency’s statutory mission to assure safe

and healthful working conditions for all working people. All employers covered by the

OSH Act, including employers who are partially exempt from maintaining injury and

illness records, are required to comply with OSHA reporting requirements at 29 CFR

1904.39. Under OSHA’s current reporting regulation, employers are required to report

each work-related fatality to OSHA within 8 hours of the event, and each work-related

in-patient hospitalization, amputation, and loss of an eye within 24 hours of the event.

The purpose of the reporting requirement in § 1904.39 is to provide OSHA with

information to determine whether it is necessary for the agency to conduct an immediate

investigation at a specific establishment. Employer reports of work-related COVID-19

fatalities and in-patient hospitalizations are an important element of the agency’s efforts

to reduce occupational exposure to the virus. After receiving an employer report, OSHA

decides whether an inspection is needed to determine the cause of a work-related

COVID-19 fatality or in-patient hospitalization, and whether any OSHA standards may

have been violated. These reports are critical for the agency to respond quickly to

COVID-19 exposure that may pose an ongoing risk to other employees at the worksite.

Timely investigation also allows OSHA to view evidence at a workplace soon after a

work-related COVID-19 fatality or in-patient hospitalization has occurred, and can make

it easier for the agency to gather relevant information from others at the worksite that
might be useful in protecting other employees. Moreover, prompt inspection enables

OSHA to gather information to evaluate whether its current standards adequately

address the workplace hazard presented from COVID-19. The information gathered from

employer reports is also used by the agency to form the basis of statistical data on the

causes and remediation of work-related COVID-19 fatalities and in-patient

hospitalizations.

In order to address the unique circumstances presented by COVID-19, and to

facilitate OSHA investigation and better workplace health surveillance, paragraph (k)(1)

requires covered employers to report each work-related COVID-19 fatality to OSHA

within 8 hours of the employer learning about the fatality, and each work-related

COVID-19 in-patient hospitalization to OSHA within 24 hours of the employer learning

about the in-patient hospitalization. As described in more detail in the following

discussion, OSHA is adding these additional COVID-19 reporting requirements because

the delay in the manifestation and progression of symptoms of COVID-19 can lead to

hospitalization or fatality outside the normal window for reporting those workplace

events.

Paragraph (k)(1)(i) provides that employers must report each work-related

COVID-19 fatality to OSHA within 8 hours of the employer learning about the

fatality. Under this paragraph, an employer must make a report to OSHA within 8 hours

of learning both (1) that an employee has died from a confirmed case of COVID-19, and

(2) that the cause of death was the result of a work-related exposure to COVID-19.

Employers are only required to report confirmed cases of COVID-19 as defined by the

Centers for Disease Control and Prevention (CDC) (CDC, May 20, 2020). Typically, the

cause of death is determined by the physician who was responsible for a patient who died

in a hospital, although the cause of death can also be determined by others such as

medical examiners or coroners (Pappas, May 19, 2020).

 The requirement in paragraph (k)(1)(i) is similar to the fatality reporting

requirement in OSHA’s regulation at 29 CFR 1904.39(a)(1), which requires an employer

to report to OSHA within 8 hours after the death of any employee as the result of a work-

related incident. However, 29 CFR 1904.39(b)(6) requires employers to report a work-

related fatality to OSHA only if the fatality occurs within 30 days of “the work-related

incident.” Prior to this ETS, for purposes of reporting events involving COVID-19,

OSHA interpreted the phrase “the work-related incident” to mean “exposure” in the work

environment. Therefore, in order to be reportable under 29 CFR 1904.39(a)(1), a work-

related fatality due to COVID-19 needed to have occurred within 30 days of an

employee’s exposure in the work environment. Given the possibility of long-term illness

before death, the 30-day limitation for reporting fatalities to OSHA could restrict

OSHA’s ability to receive information about work-related COVID-19 fatalities.

To address these issues, OSHA has chosen not to apply the 30-day limitation

period from 29 CFR 1904.39(b)(6) to the reporting provision in paragraph (k) (see

paragraph (k)(2)). Therefore, the requirement to report these fatalities is not limited by

the length of time between workplace exposure and death. The reporting of work-related

COVID-19 fatalities that occur beyond 30 days from the time of exposure will enable the

agency to evaluate more work-related COVID-19 fatalities to determine whether

immediate investigations are needed to prevent other employees at the same worksite

from being exposed to the virus. The report of these fatalities to OSHA facilitates the

agency’s timely tracking of this data. Accordingly, paragraph (k)(1)(i) requires employers

to report each work-related COVID-19 fatality to OSHA within 8 hours of the employer

learning about the fatality regardless of when the exposure in the work environment

occurred.

Paragraph (k)(1)(ii) of the standard requires an employer to report each work-

related COVID-19 in-patient hospitalization to OSHA within 24 hours of the employer

learning about the in-patient hospitalization. Under this paragraph, and similar to

OSHA’s reporting regulation at 29 CFR 1904.39, an employer must make a report to

OSHA within 24 hours of learning that (1) an employee has been in-patient hospitalized

due to a confirmed case of COVID-19, and (2) the reason for the hospitalization was the

result of a work-related exposure to the illness.

OSHA’s current reporting regulation at 29 CFR 1904.39(a)(2) provides that,

within 24 hours after the in-patient hospitalization of one or more employees, as the

result of a work-related incident, an employer must report the in-patient hospitalization to

OSHA. 29 CFR 1904.39(b)(6) requires employers to only report in-patient

hospitalizations to OSHA if the hospitalization occurs within 24 hours of the work-

related incident. For example, if an employee trips in the workplace and sustains an

injury on Monday, but is not hospitalized until Thursday, the employer does not need to

report the event. In this example, “the work-related incident” occurred on Monday when

the employee tripped and was injured in the workplace. Also, under § 1904.39,

employers must report in-patient hospitalizations to OSHA within 24 hours of knowing

both that the employee has been in-patient hospitalized and that the reason for the

hospitalization was the result of “the work-related incident” (see 29 CFR 1904.39(a)(2),

(b)(7)-(b)(8)). In non-COVID cases, the work-relatedness of the injury is typically

apparent immediately.

Since the beginning of the pandemic, the reporting of work-related COVID-19 in-

patient hospitalizations under 29 CFR 1904.39 has presented unique challenges. As noted

above, for purposes of reporting COVID-19 fatalities and in-patient hospitalizations,

OSHA has interpreted the phrase “the work-related incident” in 29 CFR 1904.39(b)(6) to

mean an employee’s “exposure” to COVID-19 in the work environment. Thus, in order

to be reportable, an in-patient hospitalization needed to occur within 24 hours of an

employee’s exposure to COVID-19 in the work environment. Given the incubation

period of the virus, and the typical timeframe between exposure and the emergence of

symptoms serious enough to require hospitalization, it is extremely unlikely for an in-

patient hospitalization to occur within 24 hours of an employee’s exposure to the virus.

To address these issues, paragraph (k)(1)(ii) does not limit the COVID-19

reporting requirement to only those hospitalizations that occur within 24 hours of

exposure, as in 29 CFR 1904.39(b)(6). This change in the reporting requirement will

result in OSHA making more determinations as to whether immediate investigations are

needed at additional worksites. Given the severity of the disease, and how quickly it can

spread, it is essential that remediation efforts at a workplace be undertaken immediately.

As noted above, it is critical for OSHA to respond quickly to hazardous conditions where

employees have been hospitalized. The elimination of the 24-hour limitation period will

not only allow OSHA to receive more employer reports about work-related COVID-19

in-patient hospitalizations and, as a result, shed light on where severe COVID-19 events

are occurring, but it will also enable the agency to respond more quickly and effectively

to these situations. Accordingly, employers must report each work-related COVID-19 in-

patient hospitalization to OSHA regardless of when the employee’s exposure in

the workplace occurred (paragraph (k)(1)(ii)). But consistent with OSHA’s normal

reporting requirements, when hospitalization for a work-related case of COVID-19 does

occur, the employer must report it within 24 hours of learning about the hospitalization.

Additionally, for purposes of this section, OSHA defines in-patient hospitalization

as a formal admission to the in-patient services of a hospital or clinic for care or treatment

(see 29 CFR 1904.39(b)(9) and (b)(10)). The determination as to whether an employee is

formally admitted into the in-patient service is made by the hospital or clinic. Treatment

in an Emergency Room only is not reportable.

I. Work-Relatedness Determinations.
 Given the nature of the disease, and the extent of community spread, in some

cases, it may be difficult for an employer to determine whether an employee’s COVID-19

illness is work-related, especially when an employee has experienced potential exposure

both in and out of the workplace. For purposes of this ETS, when evaluating whether a

fatality or in-patient hospitalization is the result of a work-related case of COVID-19,

employers must follow the criteria in OSHA’s recordkeeping regulation at 29 CFR

1904.5 for determining work-relatedness. Applying the criteria in 29 CFR 1904.5 under

paragraph (k) of this ETS is consistent with how employers make work-relatedness

determinations when reporting fatalities and other serious events under 29 CFR

1904.39.

Under § 1904.5, employers must consider an injury or illness to be work-related if

an event or exposure in the work environment either caused or contributed to the

resulting condition, or significantly aggravated a pre-existing injury or illness. An injury

or illness is presumed work-related if it results from events or exposures occurring in the

work environment, unless an exception in § 1904.5(b)(2) specifically applies. Under this

language, an injury or illness is presumed work-related if an event or exposure in the

work environment is a discernable cause of the injury or illness (see 66 FR 66,943

(December 27, 2001)).

According to 29 CFR 1904.5(b)(3), the “work environment” includes the

employer’s establishment and any other location where work is performed or where

employees are present as a condition of their employment. Under 29 CFR 1904.5(b)(3),

employers should evaluate the employee’s work duties and environment and determine

whether it is more likely than not that exposure at work caused or contributed to the

illness (see 66 FR 5958-59 (January 19, 2001)).

Because of the typical incubation period of 3 to 14 days, an employee’s exposure

to COVID-19 will usually be determined after the fact. Employers must make reasonable
efforts to acquire the necessary information to make good-faith work-relatedness

determinations under this section. In addition, the employer should rely on information

that is reasonably available at the time of the fatality or in-patient hospitalization.

A work-related exposure in the work environment would likely include close

contact with a person known to be infected with COVID-19. For example, although

work-relatedness must be determined on a case-by-case basis, if a number of COVID-19

illnesses develop among coworkers who work closely together without an alternative

explanation, it is reasonable to conclude that an employee’s fatality or in-patient

hospitalization is work-related. On the other hand, if there is not a known exposure to

COVID-19 that would trigger the presumption of work-relatedness, the employer must

evaluate the employee’s work duties and environment to determine whether it is more

likely than not that the employee was exposed to COVID-19 during the course of their

employment. Employers should consider factors such as:

 The type, extent, and duration of contact the employee had at the work

environment with other people, particularly the general public.

 Physical distancing and other controls that impact the likelihood of work-related

exposure.

 The extent and duration of time spent in a shared indoor space with limited

ventilation.

 Whether the employee had work-related contact with anyone who exhibited signs

and symptoms of COVID-19.

Since 1971, under OSHA’s recordkeeping system, employers have been making

work-relatedness determinations regarding workplace fatalities, injuries, and illnesses. In

general, employers are in the best position to obtain information, both from the employee

and the workplace, necessary to make a work-relatedness determination. Although

employers may rely on experts and healthcare professionals for guidance, the

determination of work-relatedness ultimately rests with the employer.

Finally, OSHA wishes to emphasize that, under OSHA’s recordkeeping

regulation at 29 CFR 1904, employers must record on the OSHA 300 log each work-

related fatality, injury, and illness reported to OSHA under § 1904.39. The work-

relatedness determination for fatality and in-patient hospitalization is no different than the

requirement to determine work-relatedness when entering fatalities, injuries and illness

on the OSH 300 log. Accordingly, the work-relatedness determination for reporting

COVID-19 fatalities and in-patient hospitalizations is a determination that is already

required to be made by the employer.

II. Time Periods for Reporting COVID-19 Fatalities and In-Patient Hospitalizations.

As noted above, under paragraph (k), employers must report each work-related

COVID-19 fatality or hospitalization to OSHA within the specified timeframes based on

when any agent or employee of the employer becomes aware of the reportable event. For

example, an employer “learns” of a COVID-19 fatality or in-patient hospitalization when

a supervisor, receptionist, or other employee at the company receives information from a

family member or medical professional about an employee fatality or in-patient

hospitalization. It is the employer’s responsibility to ensure that appropriate instructions

and procedures are in place so that managers, supervisors, medical personnel, as well as

other employees or agents of the company, who learn of an employee’s death or in-

patient hospitalization due to COVID-19 know that the company must make a report to

OSHA.

Consistent with OSHA’s regulation at 29 CFR 1904.39, the reporting clock

begins to run with the occurrence of the reportable event. Under paragraph (k), in

situations where the employer or the employer’s agent does not learn about the work-

related COVID-19 fatality or in-patient hospitalization right away, the employer must
make the report to OSHA within 8 hours for a fatality, or 24 hours for an in-patient

hospitalization, from the time the employer (or the employer’s agent) learns about the

reportable event. For example, if an employee dies from a work-related case of COVID-

19 on Sunday at 6:00 a.m., but the employer does not learn about the death until Monday

at 8:00 a.m., the employer has until 4:00 p.m. that day to make the report to OSHA.

Similarly, if an employee is in-patient hospitalized for a work-related case of COVID-19

at 8:30 p.m. on Monday, but the employer or the employer’s agent(s) does not learn about

the hospitalization until 9:00 a.m. the next day (Tuesday), then the employer would be

required to make the report to OSHA within 24 hours of learning of the in-patient

hospitalization (i.e., by 9:00 a.m. on Wednesday) (see 29 CFR 1904.39(b)(7)).

Likewise, if an employer does not learn right away that a reportable fatality or in-

patient hospitalization is work-related, the employer must make the report to OSHA

within 8 hours or 24 hours of learning that the death or in-patient hospitalization was the

result of a work-related COVID-19 exposure. For example, if an employee is in-patient

hospitalized for a case of COVID-19 at 9:00 a.m. on Monday, but the employer does not

have enough information to make a work-relatedness determination until 11:00 a.m. on

Monday, then the employer would be required to report the hospitalization within 24

hours of learning that the hospitalization was work-related (i.e., by 11:00 a.m. on

Tuesday) (see 29 CFR 1904.39(b)(8)).

Finally, if an employer makes a report to OSHA concerning a work-related

COVID-19 in-patient hospitalization and that employee subsequently dies from the

illness, the employer does not need to make an additional fatality report to OSHA.

III. How to Report COVID-19 Fatalities and In-Patient Hospitalizations and What

Information Must be Included in the Report.

Paragraph (k)(2) of the standard provides that when reporting work-related

COVID-19 fatalities and in-patient hospitalizations to OSHA in accordance with

paragraph (k)(1), the employer must follow the requirements in 29 CFR 1904.39, except

for 29 CFR parts 1904.39(a)(1)-(2) and (b)(6). As explained above, OSHA has included

specific provisions for the reporting of work-related COVID-19 fatalities and in-patient

hospitalizations that differ from 29 CFR 1904.39. However, when making COVID-19

fatality and in-patient hospitalization reports to OSHA, employers must follow the other

reporting procedures set forth in § 1904.39. Specifically, under § 1904.39(a)(3),

employers have three options for reporting work-related fatalities and in-patient

hospitalizations to OSHA:

1. by telephone to the OSHA Area Office that is nearest to the site of the incident;

2. by telephone to the OSHA toll-free central telephone number, 1-800-321-OSHA

(1-800-321-6742);

3. by electronic submission using the reporting application located on OSHA's

public website at www.osha.gov.

Section 1904.39(a)(3) also allows employers to report work-related fatalities and

in-patient hospitalizations to OSHA in person to the OSHA Area Office that is nearest to

the site of the incident. However, because many OSHA Area Offices are closed to the

public during the COVID-19 pandemic, employers must use one of the three options

listed above. In addition, § 1904.39(b)(1) makes clear that, if the OSHA Area Office is

closed, an employer may not report a work-related fatality or in-patient hospitalization by

leaving a message on OSHA’s answering machine, faxing the Area Office, or sending an

email. Instead, the employer must make the report by using the 800 number or the

reporting application located on OSHA's public website at www.osha.gov.

The other provisions in 29 CFR 1904.39 (except for 29 CFR 1904.39(a)(1)-(2)

and (b)(6)) also apply to the reports required by paragraph (k). For example, employers

should consult 29 CFR 1904.39(b)(2) to determine what information employers must

give to OSHA when making COVID-19 fatality or in-patient hospitalization reports. Per
that provision, employers must give OSHA the following information for each fatality or

in-patient hospitalization: the establishment name, the location of the work-related

incident, the time of the work-related incident, the type of reportable event (i.e., fatality

or in-patient hospitalization), the number of employees who suffered a fatality or in-

patient hospitalization, the names of the employees who suffered a fatality or in-patient

hospitalization, the employer’s contact person and his or her phone number, and a brief

description of the work-related incident.

References:

Centers for Disease Control and Prevention. (2020, May 20). Reporting and Coding
Deaths Due to COVID-19. https://www.cdc.gov/nchs/covid19/coding-and-reporting.htm.
(CDC, May 20, 2020).

Pappas, S. (2020, May 19). How COVID-19 Deaths are Counted. Scientific American.
https://www.scientificamerican.com/article/how-covid-19-deaths-are-counted1/. (Pappas,
May 19, 2020).

L. Availability of Records

Section 8(c)(1) of the Act requires employers to “make, keep and preserve, and

make available to the Secretary [of Labor] or the Secretary of Health and Human

Services, such records regarding his activities relating to this Act as the Secretary, in

cooperation with the Secretary of Health and Human Services, may prescribe by

regulation as necessary or appropriate for the enforcement of this Act or for developing

information regarding the causes and prevention of occupational accidents and

illnesses.” Section 8(c)(2) of the Act specifically directs the Secretary of Labor to

promulgate regulations requiring employers to maintain accurate records of work-related

injuries and illnesses. Section 8(c)(3) of the Act requires employers to “maintain accurate

records of employee exposures to potentially toxic materials or harmful physical agents

which are required to be monitored or measured under section 6 [of the Act.]” In

accordance with section 8(c), paragraph (l) of the ETS includes availability of records

requirements for certain COVID-19-related records required to be created and maintained

by the ETS. This paragraph provides a right of access to records by employees, employee

representatives, and OSHA.

Paragraph (l)(1) specifies that the employer must make available, for examination

and copying, the individual COVID-19 vaccine documentation and any COVID-19 test

results required by the ETS for a particular employee to that employee and to anyone

having written authorized consent of that employee by the end of the next business day

after a request. Prompt employee access to this information ensures that employees have

the information necessary to take an active role in their employers’ efforts to prevent

COVID-19 transmission in the workplace. In particular, in circumstances where

employers or employees choose to have the employee’s COVID-19 test results go

directly to the employer, paragraph (l)(1) gives the employee access to their own records.

Access to COVID-19 test results may be helpful for a requesting employee in evaluating

information relevant to COVID-19 exposure, including if that exposure occurred at the

workplace. Prompt production of these records can also assist employees in making

personal medical decisions and seeking care from a licensed healthcare provider if

necessary.

Employers should note that employee privacy is protected under the access to

records provisions in paragraph (l)(1). Specifically, as noted above, paragraph (l)(1)

requires employers to provide access to the vaccination records or COVID-19 test results

for a particular employee to that employee or to anyone having that employee’s written

permission. However, it does not authorize employers to allow anyone other than the

particular employee to access their records or results without the written consent of that

employee (except as provided for under paragraph (l)(3)).

Paragraph (l)(2) requires the employer to make the following information

available to an employee or an employee representative on request: (1) the aggregate

number of fully vaccinated employees at a workplace and (2) the total number of
employees at that workplace. This information must be made available to these

individuals by the end of the next business day after a request. Employers will be able to

utilize the roster of each employee’s vaccination status they are required to maintain

under paragraph (e)(4) of this section to provide this information promptly to a requester.

Since the aggregate totals of fully vaccinated employees and total employees

made available by request in paragraph (l)(2) do not contain any personal identifiable

information or personal medical information, OSHA does not believe that access to these

records raises any serious confidentiality or privacy concern if disclosed to employees or

their representatives.

OSHA believes that access to this information will allow employees and

employee representatives to calculate a percentage of fully vaccinated employees at a

workplace, evaluate the efficacy of the employer’s vaccination policy, raise any concerns

identified to OSHA, and actively participate in the employer’s vaccination efforts.

Without the provision of this information to employees and their representatives, the only

potential check on whether the employer is complying with the requirements of the ETS

would be OSHA inspections. The agency believes that making this information available

to employee representatives will help ensure compliance with the requirements of the

ETS and thereby protect workers.

Consistent with 29 CFR 1904.35(a)(3), OSHA interprets the term “employee” as

used in paragraph (l) to include former employees. In addition, for purposes of paragraph

(l)(2), the term “representative” is intended to have the same meanings as in 29 CFR

1904.35(b)(2), which encompasses two types of employee representatives. The first is a

personal representative of the employee, who is a person the employee designates, in

writing, as his or her personal representative, or is a legal representative of a deceased or

legally incapacitated employee. The second is an authorized representative, which is

defined as an authorized collective bargaining agent of one or more employees working

at the employer’s worksite. In accordance with these interpretations, OSHA also

interprets the phrase “employee representative,” as used in paragraph (l)(2), to include the

personal and authorized representatives of former employees. These interpretations are

limited to these provisions.

Under paragraphs (l)(1) and (l)(2), requesters are entitled to one free copy of each

requested record, which is consistent with OSHA’s recordkeeping regulation at 29 CFR

1904.35. The cost of providing one free copy to employees, former employees, and/or

their representatives is minimal, and these individuals are more likely to access the

records if it is without cost. Allowing the employer to charge for a copy of the record

would only delay the production of the information. After receiving an initial, free copy

of a requested record or document, an employee, former employee, or representative may

be charged a reasonable fee for copying duplicative records. However, no fee may be

charged for an update to a previously requested record. It should be noted that each

COVID-19 test is a separate record, and, as such, the employee or the representative is

entitled to one free copy of each COVID-19 test record.

Paragraph (l)(3) provides OSHA with a specific right of access. Under paragraph

(l)(3)(i), employers must provide the written policy required by paragraph (d), and the

aggregate numbers described in paragraph (l)(2) of this section (both the aggregate

number of fully vaccinated employees at a workplace and the total number of employees

at that workplace), to the Assistant Secretary for examination and copying within 4

business hours of a request. Consistent with the requirements in 29 CFR 1904.40(b)(2), if

the records are maintained at a location in a different time zone, the employer may use

the business hours of the establishment at which the records are located when calculating

the deadline.

Providing OSHA with prompt access to the written policy and the aggregate

numbers allows the agency to more rapidly focus inspections on employers that may not
be in compliance with the requirements of this ETS. In addition, this information will

help OSHA determine what to focus on in an investigation. For example, if an employer

has established, implemented, and is enforcing a written mandatory vaccination policy

under paragraph (d)(1) and their aggregate numbers indicate that their entire workforce is

fully vaccinated against COVID-19, the agency might approach the investigation

differently than in a workplace where the employer’s written policy (under paragraph

(d)(2)) allows employees to provide proof of regular testing for COVID-19 in accordance

with paragraph (g) and wear a face covering in accordance with paragraph (i), instead of

being fully vaccinated. This information also provides OSHA representatives with the

ability to quickly check any vaccination claims made by an employer without

undertaking an employee-by-employee assessment and assists OSHA representatives in

their evaluation of the effectiveness of the employer’s written policy.

Having this information within 4 business hours of the request helps the agency

act more quickly to protect employees and preserves agency resources. In addition, the 4-

hour response time is consistent with similar obligations under other OSHA

recordkeeping requirements, such as the recordkeeping requirement in 29 CFR

1904.40(a).

Paragraph (l)(3)(ii) requires employers to provide all other records and other

documents that are required to be maintained by this section to the Assistant Secretary for

examination and copying by the end of the next business day after a request. This means

that employers must allow OSHA representatives to examine and copy each

employee’s COVID-19 vaccine documentation (required to be maintained under

paragraph (e)(4)), the roster of employee vaccination status (required to be maintained

under paragraph (e)(4)), and each employee’s COVID-19 test results (required to be

maintained under paragraph (g)(4)), upon request.

 As indicated in paragraph (c), the term Assistant Secretary includes the Assistant

Secretary’s designees. Consequently, the records and information required to be provided

to the Assistant Secretary under paragraph (l)(3) must be given to the Assistant Secretary

or their representatives, such as OSHA’s Compliance Safety and Health Officers.

As noted above, section 8 of the OSH Act recognizes OSHA’s right of access to

records relating to employer compliance with occupational safety and health standards

and regulations, including access to relevant employee medical records. OSHA does not

believe that its inspectors need to obtain employee permission to access and

review personally identifiable information. Gaining this permission would essentially

make it impossible to obtain full access to the records in a timely manner, which is

needed by OSHA to perform a meaningful workplace investigation. OSHA also has

policies and procedures in place to ensure the privacy and confidentiality of employee

records it accesses during inspections. Finally, without complete and timely access to

the vaccine and testing records, agency efforts to conduct immediate interventions to

ensure employees are protected from COVID-19 at a specific workplace would be

limited.

OSHA does not prescribe specific methods for requests for records in this ETS.

Employees, employee representatives, and the Assistant Secretary and designees can

submit requests in any manner that provides adequate notice of the request to the

employer. This may include requests by in writing (e.g., email, fax, letter), by phone, or

in person.

M. Dates

To minimize transmission of COVID-19 in the workplace, it is essential that

employers ensure that the provisions of this ETS are implemented as quickly as possible,

but no later than the dates outlined in paragraph (m). This paragraph sets forth the

effective date of the section and the compliance dates for specific requirements of the
standard. The effective date for this ETS, as required by section 6(c)(1) of the OSH Act

(29 U.S.C. 655(c)(1)), is the date of publication in the Federal Register. The compliance

date for all provisions in the ETS is 30 days after the effective date, except for paragraph

(g) (COVID-19 testing for employees who are not fully vaccinated), which requires

compliance within 60 days of the effective date. Given the grave danger to employees

from occupational exposure to COVID-19, as previously described, the effective date and

compliance dates provided for this ETS are reasonable and appropriate.

For over a year and a half—since at least January 2020, when the Secretary of

Health and Human Services declared COVID-19 to be a public health emergency for the

entire United States—all employers have been made acutely aware of the importance of

minimizing employees’ exposure to COVID-19 and many have willingly joined the

global response to stop the spread of COVID-19 and to protect their employees.

Therefore, many employers have already been encouraging their employees to get

vaccinated against COVID-19. Many employers have also instituted vaccination

mandates (see Technological Feasibility, Section IV.A. of this preamble, for more

information).

OSHA has published this ETS because there is great urgency in instituting the

workplace protections OSHA has found to be necessary as quickly as possible.

Unvaccinated workers are being hospitalized with COVID-19 every day, and many are

dying, so it is particularly critical to remove obstacles as soon as possible for those who

wish to be vaccinated. At the same time, OSHA has set the compliance dates to allow

enough time for employers to obtain and read the standard, become knowledgeable about

the standard’s requirements, and undertake the necessary steps for compliance.

OSHA anticipates that employers will be able to implement measures to comply

with most provisions of the ETS well within 30 days, pursuant to paragraph (m)(2)(i).

Even in situations where an employer has not previously taken the required actions to
address COVID–19 hazards in the workplace, steps such as developing a vaccination

policy, determining employee vaccination status, providing support for employee

vaccination, ensuring employees who are not fully vaccinated wear face coverings, and

most other measures required under the standard can readily be completed within the 30-

day time period. These measures do not require extensive lead times for large employers

to implement. The scope of the standard is limited to employers with more than 100

employees largely because OSHA is especially confident that these employers will have

the ability to implement the standard.

Paragraph (m)(2)(ii) of the ETS provides a longer period of time – 60 days – for

employers to comply with the requirements for COVID-19 testing in paragraph (g).

Paragraph (g) requires employers to implement COVID-19 testing and reporting of

results for employees who are not fully vaccinated. One reason for this extended period

of time for testing is that employers may need additional time to develop policies and

procedures regarding COVID-19 testing and associated recordkeeping.

Perhaps more critically, this ETS is intended to incentivize vaccination, so this

delayed compliance date was established to allow sufficient time for employees to

complete a COVID-19 primary vaccination before it is necessary to comply with the

testing requirements in paragraph (g). The 60-day compliance period in paragraph

(m)(2)(ii) provides employees with sufficient time to receive one dose of a single-dose

primary vaccination (e.g., Janssen (Johnson & Johnson)) or both doses of a two-dose

primary vaccination series (e.g., Pfizer-BioNTech, Moderna). For the Janssen COVID-19

vaccine, the primary vaccination takes 1 day to complete (CDC, August 10, 2021).

Employees who receive the Janssen vaccine could therefore begin their primary

vaccination at any time up to and including the 60th day from the date of publication in

the Federal Register in order to be exempt from the testing requirements of paragraph

(g). For the Pfizer-BioNTech COVID-19 vaccine, the primary vaccination series takes
21 days to complete (CDC, August 25, 2021). Employees receiving the Pfizer-BioNTech

series could begin their primary vaccination series up to 39 days from the date of

publication in the Federal Register. Finally, for the Moderna COVID-19 vaccine, the

primary vaccination series takes 28 days to complete (CDC, August 23, 2021).

Employees receiving the Moderna series could therefore begin their primary vaccination

series up to 32 days from the date of publication in the Federal Register.

As specified in paragraph (m)(2)(ii), if an employee completes the entire primary

vaccination within 60 days following publication in the Federal Register, that employee

does not have to be tested under paragraph (g), even if they have not yet completed the

two week waiting period that is required to meet the definition of fully vaccinated in

paragraph (c). Employers must begin compliance with the testing requirements of

paragraph (g) only for employees who have not yet completed primary vaccination (i.e.,

employees who have not received any doses, employees who have received only one

dose of a two-dose series) within 60 days from the date of publication in the Federal

Register. And because employers must have their vaccination support processes (as

required by paragraph (f)) in place before employees would need to initiate their primary

vaccination in time to avoid testing under this section, employees will be able to avoid all

testing costs required by this ETS.

Compliance with the requirements of the ETS within the specified dates is

achievable. Many employers are likely already in compliance with at least some of the

provisions of the ETS. Resources are also readily available to help employers achieve

compliance. These resources include guidance issued by OSHA, the CDC, state and local

governments, trade associations, and other organizations to help employers successfully

implement vaccination, testing, and face covering requirements to minimize the

transmission of COVID-19 in the workplace. OSHA therefore concludes that the

compliance dates in this ETS strike a reasonable balance between incentivizing

vaccination and allowing enough time for employers to comply.

Although employers are not required to comply with the requirements of this ETS

until 30 days from the date of publication in the Federal Register (60 days for paragraph

(g)), OSHA strongly encourages employers to implement the required measures to

support employee vaccination as soon as practicable. Providing support for employees to

receive the COVID-19 vaccine and recover from side effects, as required in paragraph (f)

of the ETS, prior to the compliance date may encourage employees to receive a COVID-

19 vaccination at the earliest possible date. This would not only reduce the grave danger

of COVID-19 in the workplace but also reduce burdens on both employers and

employees when the compliance dates for the additional requirements for employees who

are not fully vaccinated arrive.

References:

Centers for Disease Control and Prevention (CDC). (2021, August 10). Janssen COVID-
19 Vaccine (Johnson & Johnson). https://www.cdc.gov/vaccines/covid-19/info-by-
product/moderna/index.html. (CDC, August 10, 2021)

Centers for Disease Control and Prevention (CDC). (2021, August 23). Moderna
COVID-19 Vaccine. https://www.cdc.gov/vaccines/covid-19/info-by-
product/moderna/index.html. (CDC, August 23, 2021)

Centers for Disease Control and Prevention (CDC). (2021, August 25). Pfizer-BioNTech
COVID-19 Vaccine. https://www.cdc.gov/vaccines/covid-19/info-by-
product/pfizer/index.html. (CDC, August 25, 2021)

N. Severability

OSHA’s amendment to its COVID-19 ETS, Part 1910, Subpart U, includes a

republication of § 1910.505, Severability. Section 1910.505 contains a severability

clause, the primary purpose of which is to express OSHA’s intent that if any section or

provision of the COVID-19 ETS is held invalid or unenforceable or is stayed or enjoined

by any court of competent jurisdiction, the remaining sections or provisions should

remain effective and operative. OSHA is including 29 CFR 1910.505 as part of this ETS
for the same reasons the agency included the provision in the Healthcare ETS, and OSHA

intends for it to have the same purposes and effects as those expressed in the preamble to

the Healthcare ETS (86 FR 32617-32618), which is hereby included in the record for this

ETS.

Because subpart U is the result of two separate ETSs published at different times

and subject to different time frames, but OSHA intends for both ETSs to be subject to the

same principles of severability, OSHA has relied on the same centralized severability

section for both for efficiency. For the benefit of the reader and for administrative

convenience, this centralized severability section is located in the same subpart as the

other provisions of the ETS. While either ETS remains in effect, it is OSHA’s intent that

29 CFR 1910.505 remain in subpart U and operative as to either ETS still in effect. If

both ETSs are not made permanent, 29 CFR 1910.505 will cease to have effect along

with the rest of subpart U. If either ETS is made permanent, OSHA will provide notice at

that time of the agency’s intended application of 29 CFR 1910.505 to the newly

permanent standard. For example, if 29 CFR 1910.502 becomes permanent because it

has been finalized, but 29 CFR 1910.501 remains a temporary requirement because it is

not yet finalized, 29 CFR 1910.505 would remain in subpart U and operative as to 29

CFR 1910.501 and the agency would separately provide notice of how severability is

intended to apply to the newly permanent 29 CFR 1910.502.

O. Incorporation by Reference

OSHA's amendment to its COVID-19 ETS, Part 1910, Subpart U, includes the

addition of § 1910.501, Vaccination, Testing, and Face Coverings. This section

incorporates by reference CDC’s “Isolation Guidance.”

This document, listed below, will be fixed in time and made publicly available.

OSHA had previously incorporated this same document into 29 CFR 1910.502 and listed

it in subpart U’s incorporation by reference (IBR) section, 29 CFR 1910.509. Because

subpart U is the result of two separate ETSs published at different times and subject to

different time frames, but both incorporate documents by reference, OSHA has relied on

the same centralized IBR section for both. For the benefit of the reader and for

administrative convenience, this centralized IBR section is located in the same subpart as

the other provisions of the ETS.

While either ETS remains in effect, it is OSHA’s intent that 29 CFR 1910.509

remain in subpart U. If both ETSs are not made permanent, 29 CFR 1910.509 will cease

to have effect along with the rest of subpart U. If either ETS is made permanent, OSHA

intends to recodify the relevant standards for that ETS from 29 CFR 1910.509 into 29

CFR 1910.6, the centralized IBR section for part 1910. For example, if 29 CFR 1910.502

becomes permanent because it has been finalized, but 29 CFR 1910.501 remains a

temporary requirement because it is not yet finalized, OSHA would relocate all of 29

CFR 1910.502’s incorporated documents into 29 CFR 1910.6, but 29 CFR 1910.509

would remain in subpart U and would list the one document incorporated by reference

into 29 CFR 1910.501.

In this section, OSHA includes a list of the titles, editions/versions, and years of

the incorporated documents. Stakeholders may consult 29 CFR 1910.509 both to locate

all of the documents incorporated by reference in subpart U (the paragraph in which the

document is incorporated is listed there) and to find more details regarding how to locate

the specific consensus standard and guidelines that have been incorporated by reference

in the ETS.

OSHA recognizes that the Centers for Disease Control and Prevention (CDC)

may update their guidelines based on the most current available scientific evidence, but

OSHA is only requiring compliance with CDC’s “Isolation Guidance” as incorporated by

reference, which is fixed in time as of February 18, 2021.

 As discussed in the preamble of the Healthcare ETS at 86 FR 32619, CDC’s

guidance, including its “Isolation Guidance,” is not expressed in mandatory terms. As

such, OSHA has determined it is not sufficiently protective or a meaningful alternative to

a mandatory standard. OSHA has reviewed this guidance and determined that compliance

with the safety measures and specific instructions in CDC’s “Isolation Guidance” is

important to protect workers who work for employees with over 100 employees. For the

same reasons as described in the Healthcare ETS (86 FR 32619), OSHA is incorporating

this guidance by reference, and compliance with the recommendations will be mandatory.

OSHA will be able to cite employers who do not follow them. Compliance with all

applicable provisions of the incorporated document is required where the provisions into

which they are incorporated are mandatory, whether the incorporated document sets out

its directions in mandatory language or recommendations. OSHA recognizes that this

document incorporated by reference into the ETS may become outdated when newer

versions are published or other entities revise those documents. In that case, OSHA will

work quickly to update the ETS through a new rulemaking or issue enforcement

guidance, as appropriate. But OSHA also has a longstanding de minimis enforcement

policy to allow employers to rely on documents that are at least as protective.

OSHA is incorporating by reference (in 29 CFR 1910.509) the material below. A

brief description of the guidance is provided in the text below. A description of its use

can be found in the Regulatory Text, and Summary and Explanation (Section VI. of this

preamble), where the guidance is referenced.

Regulatory Text-- §§ 1910.501(h); 1910.502(l)

CDC's Isolation Guidance (2021): This guidance provides steps to take when

someone is experiencing COVID-19 symptoms and/or tested positive for COVID-19.

This document is available at www.osha.gov/coronavirus/ets/ibr.

 The CDC document is available at no cost through the contact information listed

above. In addition, in accordance with § 1910.509(a)(1), this guidance is available for

inspection at any Regional Office of the Occupational Safety and Health Administration

(OSHA), or at the OSHA Docket Office, U.S. Department of Labor, 200 Constitution

Avenue, NW, Room N-3508, Washington, DC 20210; telephone: 202-693-2350 (TTY

number: 877-889-5627). Due to copyright issues, OSHA cannot post consensus standards

on the OSHA website or through www.regulations.gov.

List of Subjects

29 CFR Part 1910

COVID-19, Disease, Health, Health care, Health facilities, Incorporation by

reference, Occupational safety and health, Public health, Quarantine, Reporting and

recordkeeping requirements, Respirators, SARS-CoV-2, Telework, Vaccines, Viruses

29 CFR Parts 1915, 1917, 1918, 1926, and 1928

COVID -19, Disease, Health, Health care, Health facilities, Occupational safety

and health, Public health, Quarantine, Reporting and recordkeeping requirements,

Respirators, SARS-CoV-2, Telework, Vaccines, Viruses.

Authority and Signature

James S. Frederick, Acting Assistant Secretary of Labor for Occupational

Safety and Health, U.S. Department of Labor, authorized the preparation of this

document pursuant to the following authorities: Sections 4, 6, and 8 of the Occupational

Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor’s Order 8–

2020 (85 FR 58393 (Sept. 18, 2020)); 29 CFR part 1911; and 5 U.S.C. 553.

______________________________
James S. Frederick,
Acting Assistant Secretary of Labor for Occupational Safety and Health.

For the reasons set forth in the preamble, chapter XVII of title 29 of the Code of

Federal Regulations is amended as follows:

PART 1910—OCCUPATIONAL SAFETY AND HEALTH STANDARDS

Subpart U — COVID-19

1. Revise the heading for Subpart U to read as set forth above.

2. The authority citation for subpart U continues to read as follows:

Authority: 29 U.S.C. 653, 655, and 657; Secretary of Labor’s Order No. 8-2020

(85 FR 58393); 29 CFR part 1911; and 5 U.S.C. 553.

3. Add § 1910.501 to subpart U to read as follows:

§ 1910.501 Vaccination, testing, and face coverings.

(a) Purpose. This section is intended to establish minimum vaccination, vaccination

verification, face covering, and testing requirements to address the grave danger of

COVID-19 in the workplace, and to preempt inconsistent state and local requirements

relating to these issues, including requirements that ban or limit employers’ authority to

require vaccination, face covering, or testing, regardless of the number of employees.

Note 1 to paragraph (a): This section establishes minimum requirements that employers

must implement. Nothing in this section prevents employers from agreeing with workers

and their representatives to additional measures not required by this section and this

section does not supplant collective bargaining agreements or other collectively

negotiated agreements in effect that may have negotiated terms that exceed the

requirements herein. The National Labor Relations Act of 1935 (NLRA) protects

the right of most private-sector employees to take collective action to improve their

wages and working conditions.

(b) Scope and application. (1) This section covers all employers with a total of 100 or

more employees at any time this section is in effect.

 (2) The requirements of this section do not apply to:

(i) Workplaces covered under the Safer Federal Workforce Task Force COVID-

19 Workplace Safety: Guidance for Federal Contractors and Subcontractors;

or

(ii) Settings where any employee provides healthcare services or healthcare

support services when subject to the requirements of § 1910.502.

(3) The requirements of this section do not apply to the employees of covered

employers:

(i) Who do not report to a workplace where other individuals such as coworkers

or customers are present;

(ii) While working from home; or

(iii) Who work exclusively outdoors.

(c) Definitions. The following definitions apply to this section.

Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety

and Health, U.S. Department of Labor, or designee.

COVID-19 (Coronavirus Disease 2019) means the disease caused by SARS-CoV-2

(severe acute respiratory syndrome coronavirus 2). For clarity and ease of reference, this

section also uses the term “COVID-19” when describing exposures or potential

exposures to SARS-CoV-2.

COVID-19 test means a test for SARS-CoV-2 that is:

(i) Cleared, approved, or authorized, including in an Emergency Use

Authorization (EUA), by the FDA to detect current infection with the SARS-

CoV-2 virus (e.g., a viral test);

(ii) Administered in accordance with the authorized instructions; and

(iii) Not both self-administered and self-read unless observed by the employer or

an authorized telehealth proctor. Examples of tests that satisfy this

 requirement include tests with specimens that are processed by a laboratory

(including home or on-site collected specimens which are processed either

individually or as pooled specimens), proctored over-the-counter tests, point

of care tests, and tests where specimen collection and processing is either

done or observed by an employer.

Face covering means a covering that:

(i)(A) completely covers the nose and mouth;

(B) Is made with two or more layers of a breathable fabric that is tightly

woven (i.e., fabrics that do not let light pass through when held up to a

light source);

(C) Is secured to the head with ties, ear loops, or elastic bands that go behind

the head. If gaiters are worn, they should have two layers of fabric or be

folded to make two layers;

(D) Fits snugly over the nose, mouth, and chin with no large gaps on the

outside of the face; and

(E) Is a solid piece of material without slits, exhalation valves, visible holes,

punctures, or other openings.

(ii) This definition includes clear face coverings or cloth face coverings with a

clear plastic panel that, despite the non-cloth material allowing light to pass

through, otherwise meet this definition and which may be used to facilitate

communication with people who are deaf or hard-of-hearing or others who

need to see a speaker’s mouth or facial expressions to understand speech or

sign language respectively.

Facemask means a surgical, medical procedure, dental, or isolation mask that is FDA-

cleared, authorized by an FDA EUA, or offered or distributed as described in an FDA

enforcement policy. Facemasks may also be referred to as ‘‘medical procedure masks.’’

 Fully vaccinated means:

(i) A person’s status 2 weeks after completing primary vaccination with a

COVID-19 vaccine with, if applicable, at least the minimum recommended

interval between doses in accordance with the approval, authorization, or

listing that is:

(A) Approved or authorized for emergency use by the FDA;

(B) Listed for emergency use by the World Health Organization (WHO); or

(C) Administered as part of a clinical trial at a U.S. site, if the recipient is

documented to have primary vaccination with the active (not placebo)

COVID-19 vaccine candidate, for which vaccine efficacy has been

independently confirmed (e.g., by a data and safety monitoring board) or if

the clinical trial participant at U.S. sites had received a COVID-19 vaccine

that is neither approved nor authorized for use by FDA but is listed for

emergency use by WHO; or

(ii) A person’s status 2 weeks after receiving the second dose of any combination

of two doses of a COVID-19 vaccine that is approved or authorized by the

FDA, or listed as a two-dose series by the WHO (i.e., a heterologous primary

series of such vaccines, receiving doses of different COVID-19 vaccines as

part of one primary series). The second dose of the series must not be received

earlier than 17 days (21 days with a 4-day grace period) after the first dose.

Mandatory Vaccination Policy is an employer policy requiring each employee to be

fully vaccinated. To meet this definition, the policy must require: vaccination of all

employees, including vaccination of all new employees as soon as practicable, other than

those employees:

(i) For whom a vaccine is medically contraindicated;

(ii) For whom medical necessity requires a delay in vaccination; or

 (iii) Who are legally entitled to a reasonable accommodation under federal civil

rights laws because they have a disability or sincerely held religious beliefs,

practices, or observances that conflict with the vaccination requirement.

Respirator means a type of personal protective equipment (PPE) that is certified by

the National Institute for Occupational Safety and Health (NIOSH) under 42 CFR part 84

or is authorized under an EUA by the FDA. Respirators protect against airborne hazards

by removing specific air contaminants from the ambient (surrounding) air or by

supplying breathable air from a safe source. Common types of respirators include

filtering facepiece respirators (e.g., N95), elastomeric respirators, and powered air

purifying respirators (PAPRs). Face coverings, facemasks, and face shields are not

respirators.

Workplace means a physical location (e.g., fixed, mobile) where the employer’s work

or operations are performed. It does not include an employee’s residence.

(d) Employer policy on vaccination. (1) The employer must establish, implement, and

enforce a written mandatory vaccination policy.

(2) The employer is exempted from the requirement in paragraph (d)(1) of this

section only if the employer establishes, implements, and enforces a written

policy allowing any employee not subject to a mandatory vaccination policy to

choose either to be fully vaccinated against COVID-19 or provide proof of regular

testing for COVID-19 in accordance with paragraph (g) of this section and wear a

face covering in accordance with paragraph (i) of this section.

Note 1 to paragraph (d): Under federal law, including the Americans with Disabilities

Act (ADA) and Title VII of the Civil Rights Act of 1964, workers may be entitled to a

reasonable accommodation from their employer, absent undue hardship. If the worker

requesting a reasonable accommodation cannot be vaccinated and/or wear a face

covering because of a disability, as defined by the ADA, the worker may be entitled to a
reasonable accommodation. In addition, if the vaccination, and/or testing for COVID-19,

and/or wearing a face covering conflicts with a worker’s sincerely held religious belief,

practice or observance, the worker may be entitled to a reasonable accommodation. For

more information about evaluating requests for reasonable accommodation for disability

or sincerely held religious belief, employers should consult the Equal Employment

Opportunity Commission’s regulations, guidance, and technical assistance including at:

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-

rehabilitation-act-and-other-eeo-laws.

(e) Determination of employee vaccination status. (1) The employer must determine the

vaccination status of each employee. This determination must include whether the

employee is fully vaccinated.

(2) The employer must require each vaccinated employee to provide acceptable proof

of vaccination status, including whether they are fully or partially vaccinated.

Acceptable proof of vaccination status is:

(i) The record of immunization from a health care provider or pharmacy;

(ii) A copy of the COVID-19 Vaccination Record Card;

(iii) A copy of medical records documenting the vaccination;

(iv) A copy of immunization records from a public health, state, or tribal

immunization information system; or

(v) A copy of any other official documentation that contains the type of vaccine

administered, date(s) of administration, and the name of the health care

professional(s) or clinic site(s) administering the vaccine(s);

(vi) In instances where an employee is unable to produce acceptable proof of

vaccination under paragraphs (e)(2)(i) through (v) of this section, a signed and

dated statement by the employee:

 (A) Attesting to their vaccination status (fully vaccinated or partially

vaccinated);

(B) Attesting that they have lost and are otherwise unable to produce proof

required by this section; and

(C) Including the following language: “I declare (or certify, verify, or state)

that this statement about my vaccination status is true and accurate. I

understand that knowingly providing false information regarding my

vaccination status on this form may subject me to criminal penalties.”

Note 1 to paragraph (e)(2)(vi): An employee who attests to their vaccination

status should, to the best of their recollection, include the following information in

their attestation: the type of vaccine administered; date(s) of administration; and

the name of the health care professional(s) or clinic site(s) administering the

vaccine(s).

(3) Any employee who does not provide one of the acceptable forms of proof of

vaccination status in paragraph (e)(2) of this section to the employer must be

treated as not fully vaccinated for the purpose of this section.

(4) The employer must maintain a record of each employee’s vaccination status and

must preserve acceptable proof of vaccination for each employee who is fully or

partially vaccinated. The employer must maintain a roster of each employee’s

vaccination status. These records and roster are considered to be employee

medical records and must be maintained as such records in accordance with

§1910.1020 and must not be disclosed except as required or authorized by this

section or other federal law. These records and roster are not subject to the

retention requirements of § 1910.1020(d)(1)(i) but must be maintained and

preserved while this section remains in effect.

 (5) When an employer has ascertained employee vaccination status prior to the

effective date of this section through another form of attestation or proof, and

retained records of that ascertainment, the employer is exempt from the

requirements in paragraphs (e)(1) through (3) of this section only for each

employee whose fully vaccinated status has been documented prior to the

effective date of this section. For purposes of paragraph (e)(4) of this section, the

employer’s records of ascertainment of vaccination status for each such person

constitute acceptable proof of vaccination.

(f) Employer support for employee vaccination. The employer must support COVID-19

vaccination as described in this paragraph.

(1) Time for vaccination. The employer must:

(i) Provide a reasonable amount of time to each employee for each of their

primary vaccination dose(s); and

(ii) Provide up to 4 hours paid time, including travel time, at the employee’s

regular rate of pay for this purpose.

(2) Time for recovery. The employer must provide reasonable time and paid sick

leave to recover from side effects experienced following any primary vaccination

dose to each employee for each dose.

(g) COVID-19 testing for employees who are not fully vaccinated. (1) The employer

must ensure that each employee who is not fully vaccinated complies with paragraph

(g)(1)(i) or (ii) of this section:

(i) An employee who reports at least once every 7 days to a workplace where

other individuals such as coworkers or customers are present:

(A) Must be tested for COVID-19 at least once every 7 days; and
 (B) Must provide documentation of the most recent COVID-19 test result to

the employer no later than the 7th day following the date on which the

employee last provided a test result.

(ii) An employee who does not report during a period of 7 or more days to a

workplace where other individuals such as coworkers or customers are present

(e.g., teleworking for two weeks prior to reporting to a workplace with

others):

(A) Must be tested for COVID-19 within 7 days prior to returning to the

workplace; and

(B) Must provide documentation of that test result to the employer upon return

to the workplace.

Note 1 to paragraph (g)(1): This section does not require the employer to pay for any

costs associated with testing; however employer payment for testing may be required

by other laws, regulations, or collective bargaining agreements or other collectively

negotiated agreements. This section also does not prohibit the employer from paying

for costs associated with testing required by paragraph (g)(1) of this section.

(2) If an employee does not provide documentation of a COVID-19 test result as

required by paragraph (g)(1) of this section, the employer must keep that

employee removed from the workplace until the employee provides a test result.

(3) When an employee has received a positive COVID-19 test, or has been diagnosed

with COVID-19 by a licensed healthcare provider, the employer must not require

that employee to undergo COVID-19 testing as required under paragraph (g) of

this section for 90 days following the date of their positive test or diagnosis.

(4) The employer must maintain a record of each test result provided by each

employee under paragraph (g)(1) of this section or obtained during tests

conducted by the employer. These records are considered to be employee

 medical records and must be maintained as such records in accordance with §

1910.1020 and must not be disclosed except as required or authorized by this

section or other federal law. These records are not subject to the retention

requirements of § 1910.1020(d)(1)(i) but must be maintained and preserved while

this section remains in effect.

(h) Employee notification to employer of a positive COVID-19 test and removal.

Regardless of COVID-19 vaccination status or any COVID-19 testing required under

paragraph (g) of this section, the employer must:

(1) Require each employee to promptly notify the employer when they receive a

positive COVID-19 test or are diagnosed with COVID-19 by a licensed

healthcare provider; and

(2) Immediately remove from the workplace any employee who receives a positive

COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider

and keep the employee removed until the employee:

(i) Receives a negative result on a COVID-19 nucleic acid amplification test

(NAAT) following a positive result on a COVID-19 antigen test if the

employee chooses to seek a NAAT test for confirmatory testing;

(ii) meets the return to work criteria in CDC’s “Isolation Guidance” (incorporated

by reference, § 1910.509); or

(iii) Receives a recommendation to return to work from a licensed healthcare

provider.

Note 1 to paragraph (h)(2): This section does not require employers to provide paid

time to any employee for removal as a result of a positive COVID-19 test or

diagnosis of COVID-19; however, paid time may be required by other laws,

regulations, or collective bargaining agreements or other collectively negotiated

agreements.
(i) Face coverings. (1) The employer must ensure that each employee who is not fully

vaccinated wears a face covering when indoors and when occupying a vehicle with

another person for work purposes, except:

(i) When an employee is alone in a room with floor to ceiling walls and a closed

door.

(ii) For a limited time while the employee is eating or drinking at the workplace

or for identification purposes in compliance with safety and security

requirements.

(iii) When an employee is wearing a respirator or facemask.

(iv) Where the employer can show that the use of face coverings is infeasible or

creates a greater hazard that would excuse compliance with this paragraph

(e.g., when it is important to see the employee’s mouth for reasons related to

their job duties, when the work requires the use of the employee’s uncovered

mouth, or when the use of a face covering presents a risk of serious injury or

death to the employee).

(2) The employer must ensure that any face covering required to be worn by this

section:

(i) Is worn by the employee to fully cover the employee’s nose and mouth; and

(ii) Is replaced when wet, soiled, or damaged (e.g., is ripped, has holes, or has

broken ear loops).

(3) The employer must not prevent any employee from voluntarily wearing a face

covering or facemask unless the employer can demonstrate that doing so would

create a hazard of serious injury or death, such as interfering with the safe

operation of equipment.

(4) The employer must permit the employee to wear a respirator instead of a face

covering whether required or not. In addition, the employer may provide

 respirators to the employee, even if not required. In such circumstances, the

employer must also comply with § 1910.504.

(5) The employer must not prohibit customers or visitors from wearing face

coverings.

Note 1 to paragraph (i)(5): Nothing in this section precludes employers from

requiring customers or visitors to wear face coverings.

Note 1 to paragraph (i): Face shields may be worn in addition to face coverings to

prevent them from getting wet and soiled.

Note 2 to paragraph (i): This section does not require the employer to pay for any costs

associated with face coverings; however employer payment for face coverings may be

required by other laws, regulations, or collective bargaining agreements or other

collectively negotiated agreements. This section also does not prohibit the employer

from paying for costs associated with face coverings required by this section.

(j) Information provided to employees. The employer must inform each employee, in a

language and at a literacy level the employee understands, about:

(1) The requirements of this section as well as any employer policies and procedures

established to implement this section;

(2) COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated, by

providing the document, “Key Things to Know About COVID-19 Vaccines,”

available at https://www.cdc.gov/coronavirus/2019-

ncov/vaccines/keythingstoknow.html;

(3) The requirements of 29 CFR 1904.35(b)(1)(iv), which prohibits the employer

from discharging or in any manner discriminating against an employee for

reporting a work-related injuries or illness, and section 11(c) of the OSH Act,

which prohibits the employer from discriminating against an employee for

exercising rights under, or as a result of actions that are required by, this section.
 Section 11(c) also protects the employee from retaliation for filing an

occupational safety or health complaint, reporting a work-related injuries or

illness, or otherwise exercising any rights afforded by the OSH Act; and

(4) The prohibitions of 18 U.S.C. 1001 and of section 17(g) of the OSH Act, which

provide for criminal penalties associated with knowingly supplying false

statements or documentation.

(k) Reporting COVID-19 fatalities and hospitalizations to OSHA. (1) The employer must

report to OSHA:

(i) Each work-related COVID-19 fatality within 8 hours of the employer learning

about the fatality.

(ii) Each work-related COVID-19 in-patient hospitalization within 24 hours of the

employer learning about the in-patient hospitalization.

(2) When reporting COVID-19 fatalities and in-patient hospitalizations to OSHA in

accordance with paragraph (j)(1) of this section, the employer must follow the

requirements in 29 CFR part 1904.39, except for 29 CFR part 1904.39(a)(1) and

(2) and (b)(6).

(l) Availability of records. (1) By the end of the next business day after a request, the

employer must make available, for examination and copying, the individual COVID-19

vaccine documentation and any COVID-19 test results for a particular employee to that

employee and to anyone having written authorized consent of that employee.

(2) By the end of the next business day after a request by an employee or an

employee representative, the employer must make available to the requester the

aggregate number of fully vaccinated employees at a workplace along with the

total number of employees at that workplace.

(3) The employer must provide to the Assistant Secretary for examination and

copying:
 (i) Within 4 business hours of a request, the employer’s written policy required by

paragraph (d) of this section, and the aggregate numbers described in

paragraph (l)(2) of this section; and

(ii) By the end of the next business day after a request, all other records and other

documents required to be maintained by this section.

(m) Dates—(1) Effective date. This section is effective as of [INSERT DATE OF

PUBLICATION IN THE FEDERAL REGISTER].

(2) Compliance dates. (i) Employers must comply with all requirements of this

section, except for requirements in paragraph (g) of this section, by [INSERT

DATE 30 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL

REGISTER].

(ii) Employers must comply with the requirements of this section in paragraph (g)

by [INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE

FEDERAL REGISTER], but employees who have completed the entire

primary vaccination by that date do not have to be tested, even if they have

not yet completed the 2-week waiting period.

4. Amend § 1910.504 by revising paragraph (a) to read as follows:

§ 1910.504 Mini Respiratory Protection Program.

(a) Scope and application. This section applies only to respirator use in accordance with

§§ 1910.501(i)(4) and 1910.502(f)(4).

*****

5. Republish § 1910.505 to read as follows:

§ 1910.505 Severability.

Each section of this subpart U, and each provision within those sections, is separate and

severable from the other sections and provisions. If any provision of this subpart is held

to be invalid or unenforceable on its face, or as applied to any person, entity, or

circumstance, or is stayed or enjoined, that provision shall be construed so as to continue

to give the maximum effect to the provision permitted by law, unless such holding shall

be one of utter invalidity or unenforceability, in which event the provision shall be

severable from this subpart and shall not affect the remainder of the subpart.

6. Amend § 1910.509 by revising paragraph (b)(5) to read as follows:

§ 1910.509 Incorporation by reference.

*****

(b) * * *

(5) Isolation Guidance. COVID-19: Isolation If You Are Sick; Separate yourself from

others if you have COVID-19, updated February 18, 2021, IBR approved for §§

1910.501(h) and 1910.502(l).

*****

PART 1915—OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR

SHIPYARD EMPLOYMENT

7. The authority citation for part 1915 is revised to read as follows:

Authority: 33 U.S.C. 941; 29 U.S.C. 653, 655, 657; Secretary of Labor's Order

No. 12-71 (36 FR 8754); 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-

96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 65008), 5-2007 (72 FR 31160), 4-

2010 (75 FR 55355), 1-2012 (77 FR 3912), or 8-2020 (85 FR 58393); 29 CFR part 1911;

and 5 U.S.C. 553, as applicable.

Subpart Z – Toxic and Hazardous Substances

8. Add § 1915.1501 to subpart Z to read as follows:

§ 1915.1501 COVID-19.

The requirements applicable to shipyard employment under this section are identical to

those set forth at 29 CFR 1910.501.

PART 1917—MARINE TERMINALS

9. The authority citation for part 1917 is revised to read as follows:

Authority: 33 U.S.C. 941; 29 U.S.C. 653, 655, 657; Secretary of Labor's Order

No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-

96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 65008), 5-2007 (72 FR 31160), 4-

2010 (75 FR 55355), 1-2012 (77 FR 3912), or 8-2020 (85 FR 58393), as applicable; and

29 CFR part 1911.

Sections 1917.28 and 1917.31 also issued under 5 U.S.C. 553.

Section 1917.29 also issued under 49 U.S.C. 1801-1819 and 5 U.S.C. 553.

Subpart B – Marine Terminal Operations

10. Add § 1917.31 to subpart B to read as follows:

§ 1917.31 COVID-19.

The requirements applicable to marine terminal work under this section are identical to

those set forth at 29 CFR 1910.501.

PART 1918—SAFETY AND HEALTH REGULATIONS FOR LONGSHORING

11. The authority citation for part 1918 is revised to read as follows:

Authority: 33 U.S.C. 941; 29 U.S.C. 653, 655, 657; Secretary of Labor's Order

No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-

96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 65008), 5-2007 (72 FR 31160), 4-

2010 (75 FR 55355), 1-2012 (77 FR 3912), or 8-2020 (85 FR 58393), as applicable; and

29 CFR 1911.

Sections 1918.90 and 1918.110 also issued under 5 U.S.C. 553.

Section 1918.100 also issued under 49 U.S.C. 5101 et seq. and 5 U.S.C. 553.

12. Add subpart K to part 1918 to read as follows:

Subpart K – COVID-19.

Sec.

1918.107 -- 1918.109 [Reserved]

1918.110 COVID-19.

1918.107 through 1918.109 [Reserved]

§ 1918.110 COVID-19.

The requirements applicable to longshoring work under this section are identical to those

set forth at 29 CFR 1910.501.

PART 1926—SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION

13. The authority citation for part 1926 is revised to read as follows:

Authority: 40 U.S.C. 3704; 29 U.S.C. 653, 655, and 657; and Secretary of

Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90

(55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 65008), 5-2007

(72 FR 31159), 4-2010 (75 FR 55355), 1-2012 (77 FR 3912), or 8-2020 (85 FR 58393),

as applicable; and 29 CFR part 1911.

Sections 1926.58, 1926.59, 1926.60, and 1926.65 also issued under 5 U.S.C. 553

and 29 CFR part 1911.

Section 1926.61 also issued under 49 U.S.C. 1801-1819 and 5 U.S.C. 553.

Section 1926.62 also issued under sec. 1031, Public Law 102-550, 106 Stat. 3672

(42 U.S.C. 4853).

Section 1926.65 also issued under sec. 126, Public Law 99-499, 100 Stat. 1614

(reprinted at 29 U.S.C.A. 655 Note) and 5 U.S.C. 553.

Subpart D – Occupational Health and Environmental Controls

14. Add § 1926.58 to read as follows:

§ 1926.58 COVID-19.

The requirements applicable to construction work under this section are identical to those

set forth at 29 CFR 1910.501 Subpart U.

PART 1928—OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR

AGRICULTURE
15. The authority citation for part 1928 is revised to read as follows:

Authority: Sections 4, 6, and 8 of the Occupational Safety and Health Act of

1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-

76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65

FR 50017), 5-2002 (67 FR 65008), 4-2010 (75 FR 55355), or 8-2020 (85 FR 58393), as

applicable; and 29 CFR 1911.

Section 1928.21 also issued under 49 U.S.C. 1801-1819 and 5 U.S.C. 553.

Subpart B – Applicability of Standards

16. Amend § 1928.21 by adding paragraph (a)(8) to read as follows:

§ 1928.21 Applicable standards in 29 CFR part 1910.

(a) * * *

(8) COVID-19- §1910.501, but only with respect to -

(i) Agricultural establishments where eleven (11) or more employees are engaged

on any given day in hand-labor operations in the field; and

(ii) Agricultural establishments that maintain a temporary labor camp, regardless

of how many employees are engaged on any given day in hand-labor

operations in the field.

*****

[FR Doc. 2021-23643 Filed: 11/4/2021 8:45 am; Publication Date: 11/5/2021]