The healthcare community is pushing back against OSHA adopting a more flexible final COVID-19 rule that could change with public health guidelines.
The agency is finalizing its Emergency Temporary Standard (ETS) to protect healthcare workers from COVID-19. It held a hearing in April before the comment period closed.1,2
Epidemiologists and others in infection prevention urged OSHA to be flexible enough to change with CDC guidelines, which have been modified frequently during the pandemic. In contrast, healthcare unions and occupational safety advocates urged OSHA to adopt a rigorous standard that emphasizes airborne transmission of COVID-19 and does not necessarily rely on changing CDC guidelines.
“On the front lines of the pandemic, nurses and other healthcare workers have experienced high rates of exposure, infection, death, and deep moral harm because our employers continue to fail to prepare and protect,” Jean Ross, RN, president of National Nurses United (NNU), testified at the hearing.3 “For more than two years, nurses and other healthcare workers have run toward the emergency of the pandemic. We have been lauded as heroes. But this praise rings empty without enforceable protections at work.”
Blasting healthcare employers and the “weak” efforts by the CDC, Ross described in bleak terms the price healthcare workers paid.
“As of April 19, 2022, NNU has tracked nearly 1.5 million healthcare worker COVID infections. At least 5,104 healthcare workers have died from COVID, including at least 492 registered nurses,” Ross said. “These nurse deaths from COVID are disproportionately nurses of color.”
Long COVID, Trauma
Healthcare workers also are suffering from long COVID, a panoply of neurological and physical symptoms that can last indefinitely in some people, said NNU co-president Deborah Burger, RN.
In an NNU nurse survey4 conducted last year, “a third of the nurses reported having symptoms lasting three to nine months,” Burger said. “Twelve percent had symptoms lasting nine to 12 months. Twelve percent, more than a year. The most 20 common symptoms reported included tiredness, fatigue, joint or muscle pain, memory or concentration difficulties, headaches or migraines, and difficulty breathing or shortness of breath.”
Nurses also are suffering from alarming rates of PTSD and moral injury. NNU’s most recent survey,5 conducted in February and March, revealed the increasing mental health effects of COVID-19.
“Nearly three-quarters of nurses said they are afraid they’ll infect a family member,” Burger said. “More than half feel traumatized by their experiences caring for patients during this pandemic.”
Many infections and deaths could have been prevented if airborne precautions were emphasized early and stopgap measures, like wearing surgical masks instead of scarce N95 respirators, were not allowed, the NNU leaders argued.
“For decades, we’ve known from the science of infectious disease and occupational health and safety how to protect people on the job from aerosol-transmissible diseases like COVID,” Ross said. “As nurses, we know what protections we need, and we know that when dealing with a novel virus, the response must be grounded in the precautionary principle. We should not wait until harm is proven to take preventive measure. Our healthcare employers’ historic and ongoing reliance on just-in-time resourcing that has stretched us thin on a normal day became a matter of life or death in the pandemic.”
The nurses’ union called for a final OSHA standard with a full range of hazard control measures, including engineering controls like ventilation, isolation rooms, and administrative controls. “At a minimum, the standard must fully recognize aerosol transmission of COVID,” Ross said.
Break with the CDC?
In doing so, OSHA need not remain in lockstep with CDC guidelines, said David Michaels, PhD, whose 2009-2017 tenure as assistant secretary of labor for OSHA makes him the longest-serving administrator in the agency’s history.
Now a professor at George Washington University, Michaels leveled a broadside at the CDC for emphasizing the importance of droplet spread over airborne transmission when the pandemic began. In May 2021, the CDC reported6 cases of airborne spread beyond six feet. The World Health Organization (WHO) eventually reversed its position on this controversial issue as well.
Saying “there is no longer debate over the importance of aerosol exposure,” Michaels urged OSHA to develop an evidence-based standard that formally recognizes “the primacy” of this route to protect workers from all respiratory pathogens.
Michaels refuted common criticism that an OSHA final rule would be “one size fits all.”
“In this new final standard, as with many other evidence-based OSHA standards, employers should be required to develop and implement an exposure control plan that reflects their specific situation,” he said at the hearing. “These plans are not one size fits all, but will be appropriate to the type and size of the workplace covered.”
Michaels was skeptical of an OSHA regulation that would change to reflect CDC guidance, in part because of the different standards the agencies use to create policy.
“OSHA standards that protect healthcare workers must be based on the best scientific evidence gathered through a transparent, public notice and comment process and rigorous study of current science to assure, and I quote, ‘to the extent feasible, that no employee will suffer material impairment of health or functional capacity,’” Michaels said. “That’s what the OSHA law requires. In contrast to OSHA’s evidence-based standards, CDC recommendations are not required by law to be based on the latest scientific evidence, nor do they go through any transparent public comment process as OSHA standards do.”
Michaels argued the CDC should have continued to recommend N95 respirators to protect healthcare workers treating COVID-19 patients, although a supply chain drought made them scarce, and surgical masks and N95 reprocessing procedures were used to bridge the gap. This has been a widely repeated criticism, but the CDC does not have the regulatory authority to require respirators, and the agency was frequently politically undermined during the early stages of the pandemic.
While CDC advisory committee meetings and guidelines are open to public review and comment, the agency had to change COVID-19 recommendations on the fly to meet the threat of a highly mutable virus.
The CDC compounded the situation by errors of its own, including deferring a WHO offer of a SARS-CoV-2 test to pursue a faulty diagnostic panel that delayed case identification in the United States when the pandemic began. Another incident that harmed the agency’s credibility was its 2021 announcement that those fully vaccinated could unmask indoors. Then came the delta variant outbreak, followed by the omicron surge. Both variants showed SARS-CoV-2 could cause breakthrough infections in vaccinated people, who could then transmit to others in maskless indoor gatherings.
“Given the inadequacy of many of CDC’s recommendations, providing a safe harbor enforcement policy for employers who are in compliance with the CDC guidance but not in compliance with OSHA standards could endanger the safety and health of that employer’s workers,” Michaels said.
That seems a bit strident, but taking the long view, if an eventual OSHA standard requires N95s for COVID-19 or other novel respiratory pathogens, healthcare facilities would be forced to correct supply line problems and better foresee increased needs during a future pandemic.
“Standards are OSHA’s most powerful tool,” Michaels testified. “Standards tell millions of employers across the country, first that they’re required to ensure workers are safe, and second, what OSHA expects them to do to meet those requirements. Recommendations and guidelines, such as those issued by CDC, are voluntary. While some employers may follow some, or even all recommendations, we know that many will not.”
Compliance Concerns, Recordkeeping
Still, OSHA breaking with the CDC could create a compliance conflict for hospitals.
“All of CDC’s guidance related to infection prevention, occupational health, and vaccination for COVID-19 are considered interim,” said Sharon Wright, MD, testifying for the Society for Healthcare Epidemiology of America (SHEA). “For this reason, we encourage OSHA to design a COVID-19 standard that aligns with the CDC and directs healthcare facilities to follow the most up-to-date CDC COVID-19 guidance and recommendations. If OSHA instead was to codify public health guidance within a final rule, it would quickly become outdated and could hold healthcare facilities to obsolete and potentially unsafe protocols.”
For example, the current OSHA ETS provides a list of aerosol-generating procedures, which the CDC based on the 2002-2003 SARS-CoV-1 outbreak. However, the CDC may revise this list based on ongoing research and other information gleaned from the pandemic, said Wright, an infectious disease physician and chief infection prevention officer at Beth Israel Lahey Health in Cambridge, MA.
Local epidemiology and circumstances may necessitate modifications to CDC guidance, as they have throughout the pandemic.
“SHEA recommends that OSHA refer to CDC guidance whenever possible for definitions and evaluation of exposure to SARS-CoV-2, surveillance and reporting, and necessary personnel protective equipment,” Wright said.
In a paperwork plea that may elicit a few “amens” from employee health professionals, Wright also argued against duplicative OSHA recordkeeping requirements in a final standard. “COVID-19 is a reportable disease to local health departments. Requiring healthcare facilities to maintain a separate log is redundant and unnecessary,” she said.
REFERENCES
- Occupational Safety and Health Administration. Occupational exposure to COVID-19 in healthcare settings. March 23, 2022.
- Occupational Safety and Health Administration. Subpart U — COVID-19 Emergency Temporary Standard.
- Occupational Safety and Health Administration. OSHA’s informal rulemaking hearing for occupational exposure to COVID-19 in healthcare setting. April 27, 2022.
- National Nurses United. National nurse survey reveals that health care employers need to do more to comply with OSHA emergency temporary standard. Sept. 27, 2021.
- National Nurses United. National nurse survey reveals significant increases in unsafe staffing, workplace violence, and moral distress. April 14, 2022.
- Centers for Disease Control and Prevention. Scientific brief: SARS-CoV-2 transmission. Updated May 7, 2021.
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