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ABC Makes Recommendations to OSHA as it Considers Whether to Issue a COVID-19 Emergency Temporary Standard

March 3, 2021

On March 2, ABC, as a member of the Construction Industry Safety Coalition’s steering committee, sent a letter to the U.S. Department of Labor’s Occupational Safety and Health Administration Principal Deputy Assistant Secretary James “Jim” Frederick that outlined recommendations that OSHA should consider as it deliberates the need for an emergency temporary standard on COVID-19.  President Biden’s recent Executive Order 13999 on Protecting Worker Health and Safety directed OSHA to consider whether an ETS is warranted to address COVID-19 in the workplace.

Workplace safety and health is a priority for all members of the coalition and each is committed to helping create safer construction jobsites for workers, according to the CISC letter. For example, to ensure all members can easily access resource materials, CISC developed a COVID-19 Exposure Prevention Preparedness and Response Plan in March 2020 that has been made available in both English and Spanish and was provided at no cost to the construction industry. CISC updated the response plan four times to account for changes in guidance from the Centers for Disease Control and Prevention. The response plan is tailored to construction work and provides a comprehensive approach for minimizing the risk of exposure to COVID-19 in the construction work environment.  In addition to the response plan, CISC organized two safety standdowns related to COVID-19, one in April 2020 and the other just recently in January 2021.

The letter also highlights CISC’s concerns with potential provisions in a COVID-19 ETS and outlines the following recommendations that OSHA should consider if it decides to issue a COVID-19 standard:

• An ETS that does not account for the novel nature of the virus and the constantly changing public health knowledge would not be workable. This has become evident in the states that have adopted temporary or permanent COVID-19 standards, particularly California. California adopted its ETS effective Nov. 30, 2020, and based many of its worker protection provisions on the CDC guidance in effect at that time. The CDC updated its guidance less than a week after California adopted its ETS, rendering a key provision of the ETS obsolete. California’s ETS contains no mechanism to account for changes in CDC guidance. Therefore, Gov. Gavin Newsom (D) had to issue an executive order amending the relevant provision of the ETS to correspond to the CDC’s revised guidance.

More recently, the CDC released guidance advising that fully vaccinated individuals who are exposed to an infected individual are not required to quarantine. Although Virginia and California have endorsed the CDC’s guidance, neither Virginia’s permanent standard nor California’s ETS incorporate the CDC’s new guidance. In fact, Cal/OSHA’s latest ETS FAQs still state that “all prevention measures must continue to be implemented” after an employee is vaccinated. This means that, per the California ETS, employers must exclude a fully vaccinated employee from work if the employee has been exposed to an infected individual, despite the CDC and state guidance stating the exact opposite. Such an inflexible approach illustrates why an ETS is not workable.

• OSHA should avoid a broad standard that is generally applicable to all industries and instead should pursue a flexible approach that accommodates the unique needs of the wide variety of workplaces to which it would apply. As just one example, construction work is very different from general industry work, which is why construction has separate OSHA standards (29 Code of Federal Regulations Part 1926). Construction work is frequently performed outside in ever-changing conditions and varied work environments. A construction project can span for miles with work being performed at various stages along the span. Studies have shown that the risk of infection of a viral disease is greatest in indoor environments where there is a higher likelihood of “possible buildup of the airborne virus-carrying droplets” and the virus likely has “higher stability in indoor air.” As stated above, construction work often occurs outdoors with continuous air flow and this could substantially impact an appropriate regulatory approach. Even with construction work performed indoors, contractors have established mechanisms to protect employees in practical, effective ways.

• OSHA should avoid any provisions that exceed appropriate engineering, work practice controls and PPE. The temporary and permanent standards adopted by various states include excessive provisions, which have shown themselves to be unworkable. One such provision is a mandatory testing requirement. California’s ETS includes robust COVID-19 testing requirements covering all employees present in an exposed workplace during a COVID-19 outbreak. This type of mandate is not sustainable.

If OSHA chooses to go forward with an ETS for COVID-19, CISC recommends that OSHA adopt a specific approach for construction worksites modeled after CISC’s COVID-19 response plan. The plan has been implemented throughout the industry and adopted by large and small contractors. Further, it includes several components, including responsibilities of managers, supervisors and employees; control and preventative guidance to all employees; familiarization with the symptoms of COVID-19; jobsite protective measures specific to construction; personal protective equipment; and jobsite cleaning and disinfecting.

The CISC response plan is specifically geared to construction work and will be more effective at protecting workers in the construction industry than a broad, generally applicable standard created for traditional or indoor workspaces.

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