[Federal Register Volume 87, Number 56 (Wednesday, March 23, 2022)]
[Rules and Regulations]
[Pages 16426-16431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-06080]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. OSHA-2020-0004]
RIN 1218-AD36


Occupational Exposure to COVID-19 in Healthcare Settings

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Notice of limited reopening of comment period; notice of 
informal hearing.

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SUMMARY: OSHA is partially reopening the comment period to allow for 
additional public comment on specific topics and is scheduling an 
informal public hearing on its interim final rule establishing an 
Emergency Temporary Standard (ETS), ``Occupational Exposure to COVID-
19.'' The public hearing will begin on April 27, 2022.

DATES: Comments: Written comments in response to OSHA's limited 
reopening of the comment period must be submitted in Docket No. OSHA-
2020-0004 on or before April 22, 2022.
    Informal public hearing: The hearing will begin on April 27, 2022, 
and will be held virtually. If necessary, the hearing will continue on 
subsequent days. Additional information on how to access the informal 
hearing will be posted when available at https://www.osha.gov/coronavirus/healthcare/rulemaking. To testify at the hearing, 
interested persons must electronically submit their Notice of Intention 
to Appear (NOITA) by April 6, 2022.

ADDRESSES: 
    Notices of Intention to Appear: Notices of intention to appear at 
the hearing (NOITA) must be submitted electronically at https://www.osha.gov/coronavirus/healthcare/rulemaking. Follow the instructions 
online for making electronic submissions. See ``Notices of Intention to 
Appear'' in the SUPPLEMENTARY INFORMATION section of this document for 
additional requirements for NOITAs.
    Written comments: You may submit comments and attachments, 
identified by Docket No. OSHA-2020-0004, electronically at 
www.regulations.gov, which is the Federal e-Rulemaking Portal. Follow 
the instructions online for making electronic submissions. After 
accessing ``all documents and comments'' in the docket (Docket No. 
OSHA-2020-0004), check the ``proposed rule'' box in the column headed 
``Document Type,'' find the document posted on the date of publication 
of this hearing notice, and click the ``Comment Now'' link. When 
uploading multiple attachments to www.regulations.gov, please number 
all of your attachments because www.regulations.gov will not 
automatically number the attachments. This will be very useful in 
identifying all attachments in the preamble. For example, Attachment 
1_title of your document, Attachment 2_title of your document, 
Attachment 3_title of your document. For assistance with commenting 
and uploading documents, please see the Frequently Asked Questions on 
www.regulations.gov.
    Instructions: All submissions must include the agency's name and 
the docket number for this rulemaking (Docket No. OSHA-2020-0004). 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 and other materials submitted 
in the docket, or to view the hearing schedule and procedures when 
available, go to Docket No. OSHA-2020-0004 at www.regulations.gov. All 
comments and submissions are listed in the www.regulations.gov index; 
however, some information (e.g., copyrighted material) may not be 
publicly available to read or download through that website. All 
documents submitted to www.regulations.gov, 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 
rulemaking by author name and

[[Page 16427]]

publication year, when appropriate. This information can be used to 
search for a supporting document in the docket at www.regulations.gov. 
Contact the OSHA Docket Office at (202) 693-2350 (TTY number: (877) 
889-5627) for assistance in locating docket submissions. Please note 
that NOITAs will be gathered outside the docket and OSHA will add a 
list of individuals who have submitted NOITAs to the docket after the 
submission deadline has passed.

FOR FURTHER INFORMATION CONTACT: 
    For press inquiries: Contact Frank Meilinger, Director, Office of 
Communications, Occupational Safety and Health Administration, U.S. 
Department of Labor; telephone: (202) 693-1999; email: 
[email protected].
    For general information and technical inquiries: Contact Andrew 
Levinson, Acting Director, Directorate of Standards and Guidance, 
Occupational Safety and Health Administration, U.S. Department of 
Labor; telephone: (202) 693-1950; email: [email protected].
    For Hearing Inquiries: Contact Amy Tryon, Division of Occupational 
Safety and Health, Office of the Solicitor, U.S. Department of Labor; 
telephone: (202) 693-8081; email: [email protected].

SUPPLEMENTARY INFORMATION: On June 21, 2021, OSHA published an ETS to 
protect healthcare and healthcare support service workers from 
occupational exposure to COVID-19 in settings where people with COVID-
19 are reasonably expected to be present (86 FR 32376). Although the 
ETS took effect immediately, OSHA also requested comment on whether it 
should become permanent, as well as on all other aspects of the ETS. 
OSHA received 481 comments concerning the ETS during the comment 
period, which was to end on July 21, 2021, but was extended to August 
20, 2021, in response to requests from the public (86 FR 38232). To 
read or download comments and other materials submitted in the docket, 
go to Docket No. OSHA-2020-0004 at www.regulations.gov. In accordance 
with 29 U.S.C. 655(c)(3), the agency is now preparing to promulgate a 
final standard.

I. Additional Information and Request for Comment

    OSHA is seeking public comment on certain specific topics and 
questions for the development of a final standard. Accordingly, the 
agency is partially reopening the comment period for the ETS to allow 
for additional comment on the topics identified below. 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. OSHA seeks 
comments on the following topics:

A. Potential Changes From the ETS

    The following is a list of potential rulemaking outcomes that would 
depart from the provisions of the ETS such that OSHA has decided to 
provide this additional notice and an opportunity to comment. OSHA has 
not made any decisions about these potential provisions or approaches, 
nor is this intended to list all of the potential changes from the ETS. 
Other changes may result after due consideration of all comments and 
hearing testimony.
    A.1--Alignment with CDC Recommendations for Healthcare Infection 
Control Practices: Evolving CDC recommendations have resulted in 
inconsistencies between those recommendations and some of the 
Healthcare ETS provisions (e.g., isolation and return-to-work 
guidance). A number of commenters requested that OSHA align its ETS 
more closely with various CDC recommendations. OSHA is considering 
doing so, but notes that, in some cases, CDC recommendations have 
continued to evolve even after the close of the comment period. OSHA is 
considering whether it is appropriate to align its final rule with some 
or all of the CDC recommendations that have changed between the close 
of the original comment period for this rule and the close of this 
comment period. OSHA seeks comment on this approach.
    A.2--Additional Flexibility for Employers: Some employers expressed 
concern that the provisions of the Healthcare ETS were overly 
prescriptive. The ETS, while rooted in a programmatic approach (e.g., 
COVID-19 plan, hazard assessment, policies and procedures to minimize 
the risk of transmission of COVID-19), also specified how employers 
were required to implement particular policies and procedures (e.g., 
criteria for medical removal and return to work, cleaning, ventilation, 
barriers, aerosol-generating procedures). OSHA is considering restating 
various provisions as broader requirements without the level of detail 
included in the Healthcare ETS and providing a ``safe harbor'' 
enforcement policy for employers who are in compliance with CDC 
guidance applicable during the period at issue. OSHA seeks comment on 
this approach.
    A.3--Removal of Scope Exemptions (e.g., ambulatory care facilities 
where COVID-19 patients are screened out; home healthcare): A final 
standard will be adopted under Section 6(b) of the OSH Act, which 
requires a finding of significant risk from exposure to COVID-19, 
rather than the finding of grave danger OSHA made in issuing the 
Healthcare ETS under Section 6(c) of the OSH Act. Section 6(b) requires 
that the standard substantially reduce or eliminate significant risk of 
material impairment of health to the extent feasible. In view of this 
different risk finding, OSHA is considering whether the scope of the 
final standard should cover employers regardless of screening 
procedures for non-employees and/or vaccination status of employees to 
ensure that all workers are protected to the extent there is a 
significant risk. OSHA seeks comment on this approach.
    A.4--Tailoring Controls to Address Interactions with People with 
Suspected or Confirmed COVID-19: OSHA is considering the need for 
COVID-19-specific infection control measures in areas where healthcare 
employees are not reasonably expected to encounter people with 
suspected or confirmed COVID-19. This could include eliminating certain 
requirements that were included in the Healthcare ETS and that applied 
to all areas of covered healthcare settings. For example, OSHA could 
consider imposing cleaning requirements or medical removal provisions 
only with respect to staff exposed to COVID-19 patients or eliminating 
facemask requirements for staff not exposed to COVID-19 patients. If 
OSHA did restrict infection control requirements to particular areas of 
a facility or particular staff, it could consider balancing that 
narrower scope with a new ``outbreak provision'' to ensure that 
healthcare employers would still have a duty to address an outbreak 
quickly if an outbreak occurs among staff in the areas normally subject 
to fewer requirements. For example, an outbreak could trigger a broad 
performance requirement for the employer to implement additional 
infection control measures to stop the outbreak, or it could trigger 
more specific requirements, such as employer-provided testing and/or 
medical removal of staff with COVID-19 even if they do not interact 
with COVID-19 patients. OSHA seeks comment on these approaches, 
including comment on how OSHA should define an ``outbreak'' if it were 
to implement that approach (the CDC discusses ``outbreaks'' at https://www.cdc.gov/coronavirus/2019-ncov/php/contact-tracing/contact-tracing-plan/outbreaks.html).

[[Page 16428]]

A.5--Vaccination
    A.5.1--Booster Doses: In the ETS, certain requirements take account 
of whether individuals are ``fully vaccinated,'' which is defined in 
paragraph (b) of the ETS as meaning ``2 weeks or more following the 
final dose of a COVID-19 vaccine.'' Subsequent to the publication of 
the ETS, the Advisory Committee on Immunization Practices (ACIP) has 
recommended additional doses and booster doses. CDC has also adopted 
the concept of ``up to date'' to describe vaccination recommendations 
beyond the primary vaccination series. OSHA is considering how these 
ACIP and CDC recommendations might impact the requirements in the ETS 
that take account of individuals' vaccination status (e.g., fully 
vaccinated, up to date) and seeks comment on this issue.
    A.5.2--Employer Support of Employee Vaccination: OSHA is not 
considering at this time requiring mandatory vaccination for employees 
covered by this standard.
    [cir] The Healthcare ETS included a provision requiring employers 
to inform employees about the safety, efficacy, and benefits of 
vaccination and provide reasonable time and paid leave to each employee 
for vaccination and side effects experienced following vaccination. 
OSHA is considering an adjustment to the requirement that would include 
paid time up to 4 hours, including travel time, for employees to 
receive a vaccine and paid sick leave to recover from side effects and 
seeks comment on the approach.
    [cir] OSHA is considering requiring employer support for employees 
who wish to stay up to date on vaccination and boosters in accordance 
with ACIP and CDC recommendations. OSHA seeks comment on the approach.
    [cir] OSHA is considering whether to limit the provisions that 
provide support for vaccination to employees not covered by the Centers 
for Medicare & Medicaid Services (CMS) vaccination rule (86 FR 61555) 
and seeks comment on this approach. The CMS vaccination rule requires 
healthcare staff in facilities regulated by CMS to be vaccinated. The 
majority of healthcare employees covered by this final rule work in 
facilities covered by the CMS vaccination rule and are subject to the 
CMS requirements.
    A.5.3--Requirements for Vaccinated Workers: During the initial 
comment period, stakeholders raised questions about whether the 
Healthcare ETS requirements should be relaxed or eliminated based on 
the vaccination status of the individual worker involved, the general 
vaccination rate of the entire staff, and/or the general vaccination 
rate of the community. OSHA is considering suggestions that 
requirements be relaxed:

[cir] For masking, barriers, or physical distancing for vaccinated 
workers in all areas of healthcare settings, not just where there is no 
reasonable expectation that someone with suspected or confirmed COVID-
19 will be present
[cir] in healthcare settings where a high percentage of staff is 
vaccinated (OSHA also is accepting comment on what that percentage 
should be)
[cir] for exposure notification for vaccinated employees

    OSHA seeks comment on these approaches.
    A.6--Limited Coverage of Construction Activities in Healthcare 
Settings: OSHA did not expressly include employers that engage in 
construction work in hospitals, long-term care facilities and other 
settings that are covered by the ETS. The construction industry was not 
included in OSHA's industrial profile for the rule. OSHA is considering 
clarifying this coverage and seeks comment on this approach. For 
example, OSHA is considering the same coverage for workers engaged in 
construction work inside a hospital (e.g., installing new ventilation 
or new equipment or adding a new wall) as for workers engaged in 
maintenance work or custodial tasks in the same facility. OSHA could 
consider exceptions for construction work in isolated wings or other 
spaces where construction employees would not be exposed to patients or 
other staff.
    A.7--Recordkeeping and Reporting: New Cap for COVID-19 Log 
Retention Period: The COVID-19 log and reporting provisions, 29 CFR 
1910.502(q)(2)(ii), (q)(3)(ii)-(iv), and (r), have remained in effect 
because OSHA found good cause to forgo notice and comment in light of 
the grave danger presented by the pandemic. See 86 FR 32559. Now that 
OSHA is re-opening the comment period for the final rule, the agency 
also seeks additional comment on 1910.502(q) and (r). In general, OSHA 
is focused on whether any adjustments to those paragraphs should be 
made in light of experiences involving the Delta or Omicron variants. 
In addition, the agency proposes to cap the record retention period for 
the COVID-19 log at one year from the date of the last entry in the 
log, rather than the current approach in which that retention period is 
tied to the duration of the standard (see 29 CFR 
1910.502(q)(2)(ii)(C)).
    A.8--Triggering Requirements Based on the Level of Community 
Transmission: When employees are treating people with suspected or 
confirmed COVID-19, the ETS requires certain control strategies (e.g., 
PPE) regardless of community transmission levels. Under the CDC's 
current guidance for healthcare workers,\1\ many requirements for those 
workers are triggered based on the level of community transmission of 
COVID-19 (e.g., controls needed in areas of substantial or high 
transmission, controls not needed in areas of low or moderate 
transmission). OSHA is considering linking regulatory requirements to 
measures of local risk, such as CDC's community transmission used in 
CDC's guidance for healthcare settings or the CDC's COVID-19 Community 
Levels used in CDC's guidance for prevention measures in community 
settings.\2\ OSHA is seeking comment on that approach, including 
impacts of such an approach on compliance and enforcement.
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    \1\ Centers for Disease Control and Prevention (CDC). (2022, 
February 2). Interim Infection Prevention and Control 
Recommendations for Healthcare Personnel During the Coronavirus 
Disease 2019 (COVID-19) Pandemic. https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-recommendations.html.
    \2\ See Centers for Disease Control and Prevention (CDC). (2022, 
February 2); see also Centers for Disease Control and Prevention 
(CDC). (2022, March 4). COVID-19 Community Levels. https://www.cdc.gov/coronavirus/2019-ncov/science/community-levels.html.
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    A.9--Evolution of SARS-CoV-2 into a Second Novel Strain: It is 
possible that a future variant of SARS-CoV-2 will have sufficient 
genetic drift to be designated another novel coronavirus strain but 
still results in a disease that is similar to the current illness 
(e.g., a hypothetical ``COVID-22''). OSHA is considering specifying 
that this final standard would apply not only to COVID-19, but also to 
subsequent related strains of the virus that are transmitted through 
aerosols and pose similar risks and health effects. OSHA seeks comment 
on this approach and alternatives to addressing the potential for new 
strains related to SARS-CoV-2.

B. Additional Information/Data Requested

    OSHA recognizes that the majority of the comment period occurred 
prior to when the Delta and Omicron variants became prevalent in the 
United States. OSHA requests new studies or data related to the Delta 
and Omicron variants since the close of the initial comment period in 
August 2021, particularly with respect to:

B.1: The average number of days healthcare workers have taken away from 
work resulting from a COVID-

[[Page 16429]]

19 infection or quarantine and the percentage of healthcare workers who 
have taken days away from work due to a COVID-19 infection or 
quarantine
B.2: The health effects for fully vaccinated employees, and fully 
vaccinated and boosted employees, who test positive for COVID-19, 
including data on days away from work, hospitalizations, long COVID, 
and fatalities
B.3: The percentage of healthcare workers who are at elevated risk of 
severe COVID-19 infections (e.g., resulting in hospitalization or 
extended days away from work), including for age-related or 
immunocompromised reasons (not based solely on vaccination status)
B.4: The rate of infection, long COVID, hospitalization, and death 
among healthcare workers compared to those rates among the general 
adult population
B.5: The health effects and transmission rate of new and emerging 
variants and sub-lineages of variants, including Omicron BA.2

    Additionally, OSHA requests data and information on:

B.6: The vaccination rate among healthcare workers, including the rate 
of healthcare workers who are fully vaccinated and boosted
B.7: The clinical indicators that will reliably predict the degree of 
protection afforded by prior infection (i.e., infection-acquired 
immunity), and how long such protection lasts
B.8: Vaccine efficacy and how such efficacy decreases over time
B.9: The appropriate periodicity of additional vaccine doses and 
booster doses
B.10: Unintended consequences, such as decreases in staffing retention, 
or other impacts, such as increases in staffing retention, due to the 
potential alternatives raised in this notice

C. Information for Economic Analysis

    C.1 Industry Profile: For the Healthcare ETS Industry Profile, OSHA 
based the number of Affected Employees for Affected Industries on 
whether employees performed healthcare services or healthcare support 
services under the ETS. If employees did not perform healthcare 
services or healthcare support services, OSHA did not consider them 
Affected Employees. See 86 FR 32485. While this approach covered the 
appropriate North American Industry Classification System (NAICS), the 
approach may have resulted in an underestimate of Affected Employees. 
As stated in 29 CFR 1910.502(a), ``this section applies to all settings 
where any employee provides healthcare services or healthcare support 
services.'' To address this potential underestimate for the final rule, 
OSHA is considering revising its approach to base the number of 
Affected Employees on setting, rather than occupation. OSHA seeks 
comment on this potential approach.
C.1.1--Covered Industries
    C.1.1A: OSHA acknowledged in the Healthcare ETS that it did not 
``determine[ ] how many non-hospital ambulatory care providers will 
screen patients for COVID-19 infections and symptoms, and therefore 
might be fully exempt from the standard under paragraph (a)(2)(iii)'' 
of the ETS (86 FR at 32485). While OSHA included in the Healthcare ETS 
Industry Profile several NAICS outside of healthcare where embedded 
clinics are prevalent, such as schools, OSHA did not include a number 
of industries that may have settings with embedded clinics (e.g., 
embedded clinics in manufacturing facilities) in the industry profile. 
The Healthcare ETS applies to these embedded clinics, as OSHA made 
clear both in the regulatory text and the Summary and Explanation for 
the ETS. See 29 CFR 1910.502(a)(3)(i); 86 FR at 32563. To address this, 
OSHA is considering including these industries in the final rule's 
industry profile. OSHA notes that compliance with the final rule for 
these industries would most likely result in minimal costs or no costs 
because, under the Healthcare ETS, OSHA anticipated that many embedded 
clinics will be fully exempt under the non-hospital ambulatory care 
exception; and, if the rule applies, it will apply only with respect to 
embedded clinics and not the entire facility. OSHA seeks comment on 
this potential approach.
    C.1.1B: As discussed above, OSHA noted in the Healthcare ETS that 
it did not determine ``how many non-hospital ambulatory care providers 
will screen patients for COVID-19 infections and symptoms, and 
therefore be fully exempt from this rule under paragraph (a)(2)(iii)'' 
(86 FR at 32485). OSHA also noted that ``[t]o the extent that providers 
meet these exemption criteria, they will incur no costs for compliance 
with respect to these settings,'' and that ``[t]herefore, for this 
subset of establishments, the costs presented in OSHA's analysis will 
be dramatic overestimates (i.e., OSHA assumes full costs where costs 
should be zero).'' (Id.) For the final rule, OSHA is considering 
estimating the number of employers subject to this exemption, if it 
remains in the standard, but seeks information and data to support such 
an estimate.
    C.1.2 Telework Employees: In the Healthcare ETS, OSHA accounted for 
reduced employee exposure due to telework for benefits, but did not 
explicitly account for telework in the number of employees affected by 
the final rule in the Industry Profile. This may have resulted in an 
overestimate of several employee-based costs, like the costs of 
respirators and personal protective equipment, because OSHA may have 
overestimated the number of employees affected by the final rule. In 
the Vaccination and Testing ETS, OSHA adjusted its telework estimates 
to reflect then-current teleworking conditions (see 86 FR 61462-61467). 
OSHA is considering making similar adjustments to the final Healthcare 
rule to estimate the current number of employees who telework. OSHA 
seeks comment on this potential approach.
C.2 Costs
    C.2.1--One-time costs: OSHA requests comments on the extent to 
which some costs (e.g., costs associated with initial training, 
upgrading ventilation, rule familiarization, COVID-19 Plan development, 
respiratory protection program development) have already been incurred 
to comply with the ETS. OSHA further requests comments on the extent to 
which employers and other entities will bear ongoing costs (e.g., 
ongoing costs associated with training, PPE, respirators and the 
respiratory protection program, medical removal protection, COVID-19 
plan monitoring and modification, and ventilation maintenance) under a 
final rule.
C.2.2--Age Group 65-74
    C.2.2A: OSHA had not included employees in the age group 65-74 in 
the economic analysis of the Healthcare ETS out of concern that the 
population-wide average of workers in this age bracket would overcount 
the number of such workers in this sector. See 86 FR at 61470 n. 32. 
OSHA is rethinking this approach for the Healthcare final rule and 
seeks comment on including this age group in the analysis of both costs 
and benefits.
    C.2.2B: OSHA will likely update its estimates to reflect the 
current baseline of vaccinated employees (for example, to incorporate 
the effects of the CMS vaccine-mandate rule on vaccination rates). OSHA 
will likely rely on the most recent CDC COVID-19 data tracker, as it 
did for the Healthcare ETS and the Vaccination and Testing ETS,

[[Page 16430]]

and may also rely on estimates or data from CMS or other credible 
sources, to update its estimates. OSHA seeks comment on whether there 
is other data OSHA should rely on.
C.2.3--Ancillary Costs
    C.2.3A: In the Healthcare ETS, OSHA offset the cost to employers 
associated with medical removal and vaccination support with tax 
credits employers would receive. OSHA is considering how to adjust its 
methodology in the final rule given the expiration of these tax credits 
and seeks data and information on this issue. OSHA notes that it could 
take an approach similar to the one it took in the Vaccination and 
Testing ETS, i.e., by estimating the number of employers that would 
(and would not) incur costs because employees could be required to use 
accrued sick leave benefits for medical removal and vaccination support 
(Compare 86 FR 32512 (including footnote 61) with 86 FR 61480).
    C.2.3B: OSHA is considering updating the manner in which it 
estimates side effects associated with vaccine doses using CDC 
estimates (86 FR 32513 & n.63). OSHA is considering following an 
approach similar to the one it followed in the Vaccination and Testing 
ETS (86 FR 61480) where OSHA calculated the estimated time off using a 
more recent study that surveyed workers at a state-wide healthcare 
system who had been vaccinated.\3\ OSHA seeks data and information on 
this issue.
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    \3\ 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.
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    C.3 Benefits Data Sources: For the final rule, OSHA is considering 
using CDC COVID-19 case and fatality data which was unavailable when 
the Healthcare ETS was initially issued, and seeks comment on this 
issue. OSHA based the Vaccination and Testing ETS impact analysis on 
the CDC data which tabulates the respective number of cases and 
fatalities for the unvaccinated and vaccinated populations.
    OSHA also seeks information and data on cases, illnesses, 
hospitalizations, and fatalities that are specific to employees that 
would be subject to the final rule (i.e., those in the healthcare 
field). OSHA notes that it is aware of one potential source that 
measured deaths in healthcare occupations during the first year of the 
pandemic.\4\
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    \4\ Kaiser Health News and the Guardian. (2021, April). Lost on 
the Frontline. The Guardian. https://www.theguardian.com/us-news/ng-interactive/2020/aug/11/lost-on-the-frontline-covid-19-coronavirus-us-healthcare-workers-deaths-database.
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    OSHA is considering using all sources of data on which it relied in 
the Healthcare ETS and the Vaccination and Testing ETS, as well some 
new data sources it did not rely on, including, for example:
     CDC Daily Tracker: Daily Tracker Home,\5\
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    \5\ CDC Daily Tracker: Daily Tracker Home: https://covid.cdc.gov/covid-data-tracker/#datatracker-home.
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     Demographic Trends of COVID-19 cases and deaths in the US 
reported to CDC,6 7 8
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    \6\ COVID-19 Weekly Cases and Deaths per 100,000 Population by 
Age, Race/Ethnicity, and Sex: https://covid.cdc.gov/covid-data-tracker/#demographicsovertime.
    \7\ Demographic Trends of COVID-19 cases and deaths in the U.S. 
reported to CDC: https://covid.cdc.gov/covid-data-tracker/#demographics.
    \8\ Trends in COVID-19 Cases and Deaths in the United States, by 
County-level Population Factors
    Maps, charts, and data provided by CDC: https://covid.cdc.gov/covid-data-tracker/#pop-factors_7daynewcases.
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     Rates of COVID-19 Cases and Deaths by Vaccination 
Status,\9\
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    \9\ Rates of COVID-19 Cases and Deaths by Vaccination Status: 
https://covid.cdc.gov/covid-data-tracker/#rates-by-vaccine-status.
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     Rates of laboratory-confirmed COVID-19 hospitalizations by 
vaccination status,\10\
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    \10\ https://covid.cdc.gov/covid-data-tracker/#covidnet-hospitalizations-vaccination.
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     United States COVID-19 Cases, Deaths, and Laboratory 
Testing (NAATs) by State, Territory, and Jurisdiction,\11\
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    \11\ https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days.
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     Nationwide COVID-19 Infection-Induced Antibody 
Seroprevalence,12 13
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    \12\ Nationwide COVID-19 Infection-Induced Antibody 
Seroprevalence (Commercial laboratories): https://covid.cdc.gov/covid-data-tracker/#national-lab.
    \13\ Nationwide COVID-19 Infection- and Vaccination-Induced 
Antibody Seroprevalence (Blood donations): https://covid.cdc.gov/covid-data-tracker/#nationwide-blood-donor-seroprevalence.
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     Kaiser Health News/UK Guardian,\14\
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    \14\ Kaiser Health News and the Guardian. (2021, April). Lost on 
the Frontline. The Guardian. https://www.theguardian.com/us-news/ng-interactive/2020/aug/11/lost-on-the-frontline-covid-19-coronavirus-us-healthcare-workers-deaths-database.
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     US Census: Current Population Statistics,\15\
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    \15\ https://www.census.gov/programs-surveys/cps/data.html.
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     The National Panel Study of COVID-19 
(NPSC19),16 17
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    \16\ https://www.brookings.edu/blog/up-front/2020/08/13/the-covid-19-public-health-and-economic-crises-leave-vulnerable-populations-exposed/.
    \17\ https://static1.squarespace.com/static/57c9d7602994ca1ac7d06b71/t/60243c4a2c291024fa12e979/1612987471528/UW_IRP_Grooms_Feb_2021.pdf.
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     Census Bureau Household Pulse Survey,\18\
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    \18\ Household Pulse Survey: Measuring Social and Economic 
Impacts during the Coronavirus Pandemic: https://www.census.gov/programs-surveys/household-pulse-survey.html.
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     National Center for Health Statistics,\19\
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    \19\ https://www.cdc.gov/nchs/data_access/ftp_data.htm.
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     American Community Survey,\20\ and
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    \20\ https://www.census.gov/programs-surveys/acs/data.html.
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     Optum Clinformatics Data Mart.\21\
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    \21\ https://web.uri.edu/optum/.
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    C.4 Small Business: In developing the Final Regulatory Flexibility 
Analysis (FRFA), OSHA is seeking comments on whether there are specific 
issues regarding small covered healthcare entities (i.e., small 
businesses, small non-profits, and small government jurisdictions) that 
OSHA should consider, particularly with respect to the technical or 
economic feasibility of complying with a possible revised rule.
C.5--Assumptions
    C.5.1 Vaccine Efficacy: For the Healthcare ETS, OSHA accounted for 
vaccine efficacy in its benefits analysis. For the final rule, OSHA is 
considering accounting for booster efficacy using the CDC Data Tracker, 
which was the same source for determining vaccine efficacy. OSHA seeks 
comment on this potential approach and data on which to update its 
estimates.
    C.5.2 Frequency, Severity, and Distribution of Infections: There 
was ``still some uncertainty surrounding the frequency and severity of 
COVID-19 infections and their distribution'' when the Healthcare ETS 
was issued (86 FR 32545), so OSHA focused that economic analysis on 
hospitalizations and fatalities. More time and data have brought more 
certainty regarding other outcomes, so for the final rule OSHA is 
considering also accounting in its economic analysis for COVID-19-
related long-term effects (i.e., long COVID), hospitalization, and 
shorter illness (due to variants, increased vaccinations, and improved 
treatments). Additionally, OSHA is considering using an approach 
similar to that in the Vaccination and Testing ETS, where OSHA took 
account of breakthrough cases and fatalities in vaccinated employees 
when it assessed the health impacts. OSHA seeks comment and data on 
these potential modifications.

II. Informal Public Hearing--Purpose, Rules, and Procedures

    One commenter requested that OSHA hold a public hearing on the

[[Page 16431]]

rulemaking. See OSHA-2020-0004-1034, Attachment 1. OSHA has agreed to 
do so. OSHA invites interested persons to participate in this 
rulemaking by providing oral testimony and documentary evidence at the 
informal public hearing to provide the agency with the best available 
evidence to use in developing the final rule.
    Pursuant to 29 CFR 1911.15(a) and 5 U.S.C. 553(c), members of the 
public have an opportunity at the informal public hearing to provide 
oral testimony and evidence on issues raised by the proposal. An 
administrative law judge (ALJ) presides over each OSHA hearing and will 
resolve any procedural matters relating to the hearing.
    OSHA's regulation governing public hearings (29 CFR 1911.15) 
establishes the purpose and procedures of informal public hearings. 
Although the presiding officer of the hearing is an ALJ and questioning 
of witnesses may be allowed on crucial issues, the proceeding is 
largely informal and essentially legislative in purpose. Therefore, the 
hearing provides interested persons with an opportunity to make oral 
presentations in the absence of rigid procedures that could impede or 
protract the rulemaking process. The hearing is not an adjudicative 
proceeding subject to the Federal Rules of Evidence. Instead, it is an 
informal administrative proceeding convened for the purpose of 
gathering and clarifying information. Accordingly, questions of 
relevance, procedure, and participation generally will be resolved in 
favor of developing a clear, accurate, and complete record within the 
available time frame.
    The available time frame for this rulemaking is short as the agency 
hopes to complete the rulemaking as quickly as possible. OSHA remains 
aware of the dangers to healthcare workers exposed to COVID-19, as well 
as the potential for new variants and the surges of patients with 
COVID-19 that could follow in healthcare. Pursuant to 29 CFR 1911.4, 
the Assistant Secretary may, on reasonable notice, issue additional or 
alternative procedures to expedite the proceedings.
    Although the ALJ presiding over the hearing makes no decision or 
recommendation on the merits of the proposal, the ALJ has the 
responsibility and authority necessary to ensure that the hearing 
progresses at a reasonable pace and in an orderly manner. To ensure a 
full and fair hearing, the ALJ has the power to regulate the course of 
the proceedings; dispose of procedural requests, objections, and 
comparable matters; confine presentations to matters pertinent to the 
issues the proposed rule raises; use appropriate means to regulate the 
conduct of persons present at the hearing; question witnesses and 
permit others to do so; limit such questioning; and leave the record 
open for a reasonable time after the hearing for the submission of 
additional data, evidence, comments, and arguments from those who 
participated in the hearing (29 CFR 1911.16).
    At the close of the hearing, there will be a post-hearing comment 
period during which stakeholders may submit final briefs, arguments, 
summations, and additional data and information to OSHA.

III. Notice of Intention To Appear at the Hearing

    Interested persons who intend to provide oral testimony or 
documentary evidence at the hearing must file a written NOITA prior to 
the hearing and in accordance with the instructions in the ADDRESSES 
section earlier in this document. To testify at the hearing, interested 
persons must electronically submit their NOITA on or before April 6, 
2022. The NOITA must provide the following information:
    (1) Name, address, email address, and telephone number of each 
individual who will give oral testimony;
    (2) Name of the establishment or organization each individual 
represents, if any;
    (3) Occupational title and position of each individual testifying; 
and
    (4) A brief statement of the position each individual will take 
with respect to the issues raised by the ETS (e.g., ``I generally 
support/oppose the whole standard,'' ``the requirement for [specific 
provision] should be removed,'' ``the scope of the rule should be 
changed to include/exclude . . .'').
    The agency will consider the information in each submission when 
setting the hearing schedule. Before the hearing, OSHA will make the 
hearing procedures and hearing schedule available at https://www.osha.gov/coronavirus/healthcare/rulemaking and in the docket. OSHA 
emphasizes that the hearing is open to the public; however, only 
individuals who file a NOITA may testify at the hearing.

IV. Certification of the Hearing Record and Agency Final Determination

    Following the close of the hearing and the post-hearing comment 
period, the ALJ will certify the record to the Assistant Secretary of 
Labor for Occupational Safety and Health. The record will consist of 
all of the written comments, oral testimony, and documentary evidence 
received during the proceeding. The ALJ, however, will not make or 
recommend any decisions as to the content of the final standard. 
Following certification of the record, OSHA will review all the 
evidence received into the record and will issue the final rule based 
on the record as a whole.

Authority and Signature

    This document was prepared under the direction of Douglas L. 
Parker, Assistant Secretary of Labor for Occupational Safety and 
Health, U.S. Department of Labor, 200 Constitution Avenue NW, 
Washington, DC 20210. It is issued under the authority of 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. 8-2020 (85 FR 58393 
(Sept. 18, 2020)); 29 CFR part 1911; and 5 U.S.C. 553.

Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2022-06080 Filed 3-22-22; 8:45 am]
BILLING CODE 4510-26-P


