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What Makes a Strong COVID-19 Emergency Temporary Standard?

With no emergency temporary standard (ETS) for COVID-19 at the federal OSHA level, more governors are directing their state’s OSHA programs to create their own standards to protect workers. Since Virginia became the first state in the country to issue its own ETS in July, OSHA programs in Michigan, Oregon and California have followed suit. In other states, including but not limited to Kentucky, Minnesota, Washington and New Jersey, governors are using executive orders to fill a similar role.

Photo courtesy of the LIUNA Mid-Atlantic Region

“While we’re happy states are stepping up, the differences between all these rules can get confusing for contractors who work in multiple states,” says Travis Parsons, the LHSFNA’s Associate Director of Occupational Safety and Health. “That’s one reason labor groups continue to advocate for federal OSHA to issue an ETS. We need a strong, consistent message from the top that sets expectations for employers and employees alike.”

President-elect Joe Biden has committed to using his first 100 days in office to get COVID-19 under control. It’s likely that will include directing federal OSHA to develop a nationwide COVID-19 ETS. If that happens, the agency will have several strong state programs to use as a foundation for a national standard. So what do these state programs require, and which highlights from each could make their way into a federal ETS?

The Virginia ETS took many CDC recommended guidelines for employers and made them required. The standard directs employers to perform a risk assessment, protect workers using the hierarchy of controls and maintain a written plan that covers all aspects of the program. For more on this state standard, see our August article, “LHSFNA Plays Critical Role in First-in-Nation COVID-19 Standard.”

In addition to using the risk assessment framework for all workplaces, Michigan’s standard includes specific requirements for healthcare workers, who have been on the front lines of the pandemic since the beginning. Besides this key difference, what sets Michigan apart so far has been its enforcement strategy, which has been stronger than other states.

Strengths of Oregon’s ETS include strict physical distancing, sanitation and signage requirements. However, there is one notable area where the standard could have been improved – the ETS permits face shields as a type of source control. While face shields are effective at stopping droplets breathed out by others, there are more effective options for source control, such as a cloth face covering. A stronger option would be to require face shields to protect the face and eyes against droplet exposure while also requiring use of at least a cloth face covering.

MK Fletcher and Travis Parsons discuss ETSs in the Fund’s latest video episode

California, the latest state to issue an ETS, already has an aerosol transmissible disease standard in effect, but it only covers certain occupations (e.g., healthcare workers, corrections officers, emergency responders). Unique aspects of the California ETS include certain additional requirements (e.g., testing, removal of workers from the jobsite) that trigger automatically when a workplace outbreak occurs.

For more details on what goes into making a strong ETS, check out the Fund’s latest video episode on our YouTube channel. In that episode, Travis Parsons is joined by MK Fletcher, Safety and Health Specialist at the AFL-CIO. Travis and MK discuss how the hierarchy of controls should factor into COVID-19 control measures, the importance of including anti-retaliation language, why employers and employees should work together to identify hazardous tasks and many other aspects of these COVID-19 standards.

[Nick Fox]

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