OSHA turns 50

This month the Occupational Safety and Health Administration (OSHA) turns 50. It was created on April 28, 1971, but the battle against COVID-19 has made this anything but an occasion to celebrate. More than 3,600 healthcare workers are dead in the US, the majority under 60, disproportionately people of color. Roughly one in three were nurses.

Workplace-related COVID illness and fatalities in healthcare and other industries are under-counted. According to the Wall Street Journal, “Infection sources have been publicly identified for just a small fraction of what Center for Disease Control and Prevention data show as 90,000 people of working age who have died of the disease.” OSHA’s role as the nation’s watchdog for workplace safety has never been more critical.

Tip of the iceberg

In 2020, worker complaints of COVID exposure in the workplace poured in from around the country — from UPS Worldport to Walmart, from Tesla to Tyson Foods, from nursing homes to e-commerce warehouses. Sick employees were pressured to work … Social distancing was not enforced … Or mask-wearing … Employees were never notified of co-workers’ infections.

In January, using federal, state, and local government data and news accounts, Reuters identified 106 U.S. workplaces, “where employees complained of slipshod pandemic safety practices around the time of outbreaks. ... [OSHA] never inspected 70 of those workplaces, where at least 4,500 workers were infected by the coronavirus and 26 died after contracting COVID-19 ... As of mid-December, just 12 of the 106 facilities had been penalized.”

The January report from Reuters on OSHA was anything but comprehensive: “most state and local governments do not track or publicize data on workplace outbreaks.”

Renew the promise

Workers Memorial Day has been set aside each year since 1989 to commemorate those who have died or suffered from injury or illness because of their job. It is observed annually on April 28 to coincide with the anniversary of OSHA’s formation. The number of worker deaths alone this year is unprecedented in the holiday’s history. In observance of Workers Memorial Day 2021, unions around the country are calling on OSHA to “Renew the Promise” — safety at work for all Americans.

On his first full day in office, President Biden signed an Executive Order on Protecting Worker Health and Safety, which required OSHA to, “consider whether any emergency temporary standards on COVID-19, including with respect to masks in the workplace, are necessary.

An Emergency Temporary Standard (ETS) can be issued only if OSHA determines that employees are exposed to “grave danger” and that an emergency standard is “necessary” to protect them from that danger. Because OSHA has no infectious disease standard other than the Bloodborne Pathogens Standard, an ETS would allow for expedited action and the greater likelihood of employer citations and fines. The President’s Executive Order called for the ETS to be issued by March 15. That deadline came and went.

While the fate of the ETS is at best uncertain, your complaints to OSHA are generating responses. OSHA has launched another effort, the National Emphasis Program (NEP), allowing OSHA inspections even when a complaint has not been filed or when a workplace death occurs in industries where COVID exposure is high, including hospitals.

This is a win for labor. The NEP mandates that 5% of each OSHA region’s total inspections be related to COVID-19. This is expected to amount to approximately 1,600 total inspections.

OSHA has strongly encouraged the 28 states with their own state worker protection plans in place, such as NYS’ PESH and NJ’s PEOSH (both regulating public sector facilities), to adopt the NEP as well. States such as California, Michigan, Oregon and Washington already have their own COVID ETS in place. Virginia has made its ETS permanent.

The NYS Senate and Assembly have just passed the NY HERO Act, championed by NYSNA’s own Assemblymember Karines Reyes. The HERO Act, if signed into law by the governor, would require the NYS Department of Labor to create an airborne infectious disease standard covering all private sector employers. NYSNA will continue to push for workplace protections for public sector workers as well.

On March 26, OSHA launched yet another program aimed at fighting COVID-19: an updated Enforcement Response Plan (ERP) that calls for in-person worksite inspections of employers, targeting the healthcare industry, followed by meat processing and warehousing.

Still, an ETS on COVID-19 conditions would pack a powerful punch. It could give workers and employers a baseline for safe working conditions and make it easier for OSHA to issue citations and fines against employers who do not comply.

Contact and airborne transmission standards needed

The vast number of U.S. workers who have been, and continue to be, exposed to COVID-19 in the workplace is evidence of the need for a permanent OSHA standard on all infectious diseases. Yet there are no standards covering pathogens that are transmissible through contact or airborne exposure, saving employers millions of dollars at the expense of worker’s health and safety.

As it stands now, the Bloodborne Pathogen Standard, adopted in 1991, is the only OSHA standard that covers infectious disease. It is estimated to have saved 9,000 workers from infection and 200 from death every single year.

In lieu of its own standards, OSHA has traditionally followed CDC guidance on infectious diseases. Unfortunately, the CDC has not issued adequate guidance to protect healthcare workers and the public from COVID-19, particularly related to respiratory PPE and other controls to limit airborne exposure.

Along with the CDC, the Food and Drug Administration (FDA) oversees standards for N95s and other medical devices. The FDA has moved away from “crisis standards” because of the glut of N95s and other respirators now available (on March 1 U.S. mask manufacturers wrote President Biden that nearly 300 million N95s or equivalents sit unused in warehouses).

The CDC is slowly heading in this same direction, stating that, “Once PPE supplies and availability return to normal, healthcare facilities should promptly resume conventional practices.” (See CDC’s “Strategies for Optimizing the Supply of N95 Respirators” updated April 9, 2021.) The CDC also states in this updated document that, “N95 respirators are intended to be used once and then properly disposed of and replaced with a new N95 respirator.”

The data keep coming

It is time for healthcare facilities, which used earlier, weaker CDC guidelines governing healthcare worker protections, to follow the newer guidance and return to the standard of protection and care that healthcare workers and patients deserve.

The fight to make OSHA and CDC more responsive to the needs of the people is our fight.

Peer-reviewed research from Harvard University’s School of Public Health, published in November “found a correlation between a rise in OSHA complaints in a specific region and a rise in COVID-19 deaths within four weeks in the same area,” underscoring the need for rapid follow-up from OSHA on worker complaints. Hospitals are designated by OSHA as “high exposure risk” workplaces.

In 2020, according to Reuters, OSHA “closed out complaints from about 1,800 hospitals and nursing homes.” Onsite inspections were conducted at about 15% of those facilities. Of that 15 percent, just one in five was fined.

As nurses on the frontlines, we have lived daily with the staggering human cost of this pandemic. We are calling on OSHA, on the occasion of its 50th anniversary, to act now.

Renew the promise: keep America’s workers safe and injury free.

Still, an Emergency Temporary Standard on COVID-19 conditions would pack a powerful punch.”

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