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#71: OSHA is Considering an Emergency Temporary Standard

March 24, 2021 | 46 minutes  52 seconds

In this special episode of the podcast, series host Jill James interviews Mark Catlin. We have Mark in the studio today because OSHA is talking about issuing an emergency temporary standard (ETS) in response to the coronavirus pandemic.

Show Notes and Links

Transcript

Jill:

This is the Accidental Safety Pro brought to you by HSI. This episode was recorded March 16th, 2021. My name is Jill James, HSI's chief safety officer. Today I'm joined by my friend, Mark Catlin. Mark is a consulting industrial hygienist from Maryland. Many, many of us regard Mark as our health and safety historian. Many of us have used, enjoyed and taught using the historical health and safety films he's curated on his YouTube channel, which you can find at Mark D. Catlin. Today is also Mark's third time as a guest on the podcast. You can hear our conversations on episodes 11, 60 and now today. Welcome to the show, Mark.

Mark:

Thank you so much, Jill. It's wonderful to be back.

Jill:

Well, I asked you here for a very specific reason, and the reason is because OSHA is talking about issuing something called an emergency temporary standard. That isn't new to OSHA. It's also called an ETS, referred to as an ETS. And I know you've done some research for us on ETS's and what they mean in the context of OSHA. But before we get to that, I think maybe we should tell our audience kind of why we're ramping up to an ETS and what's been happening at OSHA since January 21st. So does that sound okay? Should we start there?

Mark:

Sure. Great. Lots happening these days.

Jill:

Yeah, lots happening. So maybe we can just kind of bounce back and forth about what we've been reading and know about some of these things. So maybe I'll start and then we can just kind of go back and forth if that's okay with you.

Mark:

Sure.

Jill:

Okay. So on January 21st, the first full day of the Biden Administration, President Biden signed an executive order. It was called the executive order on protecting worker safety and health. And in that executive order, it outlined a number of actions the Biden Administration expected OSHA to take, and then they associated some dates with some of those things as well. And so Mark, do you maybe want to start out with the first thing they asked them to do?

Mark:

Sure. The first thing was, well, two things. One is the first thing was OSHA was required to review their current guidance on COVID and update and modify that. And OSHA also had new leadership installed, the political leadership that OSHA installed. So those were the first two things happening. OSHA finished the revision of their COVID guidance earlier than the executive order had the deadline for. They beat it by a couple days, which was really amazing.

Jill:

Yeah, they did. So if anybody's paying attention, it was issued on January 29th and it's featured front and center of the OSHA homepage. It's called guidance on mitigating and preventing the spread of COVID-19 in the workplace.

Mark:

Right. Now that's simply guidance. And if OSHA determines that an ETS is needed and then puts out the ETS, then that will become mandatory requirements.

Jill:

Right. Actually, if anybody has been paying attention to that guidance document, it's quite lengthy and it goes over a number of things that they're expecting of employers under guidance, not law yet. But things like having a written prevention program and conducting hazard assessments and having specific policies on isolating and quarantining and screening employee health and recording work-related COVID-19 illness or death on the OSHA 300 log, which is also something that's new, offering vaccinations, and then reminding employers to comply with regulations that are standing right now on personal protective equipment and respiratory protection and sanitation, bloodborne pathogens and medical records.

Mark:

Right.

Jill:

Yeah, so that happened back in January, which now seems like a long time ago.

Mark:

Right. And just an addition there. So those are federal OSHA guidance. For folks living in Virginia, Oregon, and California, there are state OSHA ETS's that have already been promulgated. And in California, they've had a aerosol transmittable disease standard that's actually been in effect for more than a decade that's applied to COVID since the beginning. So in some ways the feds are catching up to what some of the other states are doing.

Jill:

Yeah. Right. And so as a reminder for people, federal OSHA says you have to be as good or better than if you're a state run OSHA program. So as good or better than the federal government. So those states that Mark just outlined have decided to promulgate their own emergency temporary standards. And those are in state plan OSHA states. And those have been in place, Mark, for some of them since like the summer, right?

Mark:

I think Virginia was the first and theirs came out in the fall and applied to most work sites. Then Oregon and then California, which passed their kind of an ETS for everybody else that weren't already covered by the aerosol transmittable disease standard has been around. Yeah.

Jill:

Yeah. And so back to the president's executive order, the second and third things that the president had asked took place, OSHA made some movement last Friday, March 12th. So one of those was to launch a national emphasis program. And then along with that was to update their enforcement guidance for investigators on coronavirus as well. So, Mark, do you want to talk about maybe what a national emphasis program is?

Mark:

Yeah. It's an internal policy matters. So OSHA does inspections for a number of reasons. Complaints is a primary one. But they also do programs inspections. And so what a national emphasis policy is, it's a targeted inspection program where OSHA focuses on specific hazards in specific industries. So in this case, it's aimed at industries that are considered to be at high risk for COVID concerns and it's specific to COVID. And so the target industries are healthcare and long-term care are sort of two of the target industries. So that covers a lot, offices for healthcare, ambulance services, hospitals. But the other industries that are covered include ones that you would be surprised by. So meat processing, meat and poultry processing, supermarkets and groceries, warehousing and storage, and then others. You can go on the OSHA website and you can get the NEP it's called and you can see the details that are in there.

Jill:

Yeah. Exactly. So if you're listening and you're like, "Okay, so now I'm on the OSHA website and I found that the guidance document called the national emphasis program on a coronavirus," and you're like, "Holy cow, this thing is 25 plus pages long," if you scroll to appendix A and B, you'll see the targeted industries that Mark is talking about there. :

But national emphasis programs aren't something new for OSHA. In fact, it is one of the reasons for inspections, like Mark was talking about, and there's currently 10 of them in place. And so if people aren't familiar with them, we have one on combustible dust. There's one on hexavalent chromium exposure, process safety management. I won't list all 10 of them, but like trenching and excavations. And when I was in an OSHA investigator, the trenching and excavation national emphasis program was in place as it continues to be right now, which meant whenever I was out and about doing my work as an investigator, if I happened upon a trencher and excavation, it was my duty to stop and to conduct an inspection because the rates of fatalities and injuries from collapses is so high. :

Yeah. And so the intentionality behind these national emphasis programs is really to find another lever for OSHA to use to curb injury and illness and death. And that's how it's being applied in this particular case.

Mark:

Right. Right. So that targeting of OSHA resources, because OSHA has such limited inspection resources, so that targeting becomes really important. And I think that's a prime use of this. It doesn't mean that if you're an employer in the covered sector for [inaudible 00:09:26] you're going to be inspected by a program inspection, but you're more likely. So there's a greater possibility, but complaints can still come in to a work site from a complaint by an employee or their union, or there could be a fatality or serious injuries that would trigger it or or other ways that an investigation might be triggered. So this is just one way to kind of more focus OSHA's resources [inaudible 00:09:55].

Jill:

Right. Exactly. Exactly. And then at the same time on March 12th, OSHA updated their policy for enforcement. When they find issues with coronavirus and prevention strategies that employers need to be doing, their investigators need to know what to do. It's like, "Okay, now I found something. How do I handle it? What do I do?" And so again, that's an internal policy to say, "Here are regulations that you can cite. This is how you would apply the general duty clause. Here are the things you should look for in terms of policies that you should be asking the employer for, things that you should be paying attention to on your inspection." And then it also explains how the investigators are to take care of themselves and protect themselves from transmission of the illness as well, when they're going about conducting their work.

Mark:

Right. And that's a really important issue when inspectors go out. I think it can be useful for employers and folks involved in safety and health to go on the OSHA website and sort of look at the enforcement guidance and sort of see what the inspector is going to be doing under the NEP, because that gives you a good idea of what you need to double check on and audit your own program so that you'll be prepared [crosstalk 00:11:17]-

Jill:

Exactly. And much of what you'll find in the NEP and in the enforcement policy are those guidelines. And so they're looking, that first document that they just updated that they have front and center on their website are the items that investigators will be asking about according to what's listed in those two directives.

Mark:

Yeah. Now I think that regarding state plan states, I think that it's not mandatory that the NEP apply to state plan states. In this case it's optional, but the States have to respond back to federal OSHA to say what their plans are. And if they're going to follow the NEP, then they need to provide what they're going to do in their own state program. :

... to provide what they're going to do in their own state program.

Jill:

Exactly. I think they have 60 days to respond to the federal government to say, hey, we're in or we're out, or we came up with our own thing.

Mark:

Right. Right. So again, your comment a few minutes ago about state plans need to meet or exceed federal requirements.

Jill:

Right. Right. So then that leads us to one of the other items in the executive order, which was the president asking OSHA to consider issuing something called an emergency temporary standard or ETS.

Mark:

Right.

Jill:

So that brings us, Mark, to the reason that I asked you here today. So yeah, take us to school. What is an ETS?

Mark:

Well, the ETS is, in more recent years, a rarely used power that OSHA has under the 1970 OSHA. It was passed 50 years ago. And so the ETS allows OSHA to temporarily promulgate an enforceable standard without going through the normal rulemaking process of public hearings and consideration and all that. And they don't have to supply a public notice or take public comment. The purpose is to allow OSHA to have the ability to respond to new, and to new hazards or new information about old hazards that require a quick response to begin to protect workers. And so the ETS is permitted. ETS allows OSHA to have an ETS to issue an ETS under these criteria. And then they have under the law, six months to then issue a permanent standard. So while the ETS is in effect, OSHA is supposed to then be working on developing a permanent standard to address that issue. And in that case, there are public hearings and some of the more normal process, but it's going to have to be accelerated.

Jill:

Right. Right. What kind of ETSs have there been in the past, Mark?

Mark:

Well, when I look at the history, and there's actually a really good history of ETSs that was put up by the Congressional Research Service in June 2020. So I'd urge people to go to the Congressional Research Service and look for this. It's called the Occupational Safety and Health Administration, OSHA, emergency temporary standards in COVID-19, so it's pretty [crosstalk 00:14:40]. :

And so there's sort of two... I sort of look at this as having sort of two timelines for the ETS. The ETS in the 1970s, OSHA used it quite frequently and had some success with it to protect workers. In the 1980s, OSHA attempted use it in 1983 to update the asbestos standard, and it was overturned in court and OSHA has not used it ever since.

Jill:

Oh wow.

Mark:

And in part because of some of the issues in the court ruling and in part because OSHA and its supporters have used other methods to get regulations passed, often having regulations passed by making it a congressional mandate, putting in a law like the HAZWOPER standard process safety management of lead in construction standard and others.

Jill:

Wow, fascinating.

Mark:

Yeah. During the 1970s though, the ETS power was used by OSHA in a number of circumstances, but the one that comes to my mind is in 1974 for the vinyl chloride industry, within the sort of chemical industry. There were a series of reports that came out of the industry that there were workers discovered with a rare liver disease called angiosarcoma. And it was pretty quickly that was tied to working in a vinyl chloride plant and exposure to vinyl chloride. So OSHA actually then issued an emergency temporary standard and then followed that up with a permanent standard, which is still on the books. :

In my looking back in history, that seems like one of the best examples of OSHA responding to, not a new hazard, but new information about the new dangers of an old hazard, and then responding to protect workers. And it did that. It both protected workers, there are very few cases of angiosarcoma after that, and also the industry was able to comply with the new standard pretty quickly. And there has been some economic research showing that the industry actually benefited from the standard by decreasing emissions and making their process more efficient. And actually they ended up making more money and hiring more people following the standard, which is not what you normally think about an OSHA standard.

Jill:

Right, exactly. But I mean, in this regard as well, I mean, if an emergency temporary standard is issued on COVID-19, I would think that there would be at least, well, those of us who are practicing health and safety professionals to say, oh my gosh, thank you, finally a roadmap. Right?

Mark:

Right.

Jill:

I mean, because everybody's been sort of... it's been a bit of the wild West in the last year, trying to keep up with science. I mean, because it's a new hazard, we're all trying to figure it out and people are trying their best in many cases, and of course some that aren't, but for those of us in this professional practice, it's like, oh my gosh, please, something for us to follow. Right?

Mark:

Yeah. And I think OSHA standards often, I think often play that role. OSHA standards are minimum requirements that have to be followed for a specific hazard. Many employers often go beyond the OSHA standards, but at least you have a roadmap, as you said, and you have a floor, not a ceiling. And I've seen that over the years. I've been involved a lot with the Cal/OSHA ATD standard that applies mostly to healthcare and public safety. And that's been, I think, a good regulation because it shows a good roadmap with a decade of experience on how to deal with infectious disease that are airborne and droplet spread and healthcare. And so I've often been advocating that healthcare employers outside of California should at least be familiar with ATD standard and take the experience there to heart to build their own program.

Jill:

Right. Right. And so, as OSHA is considering this ETS, it's not like they're necessarily doing it in their own silo. There are other agencies, think tanks, scientific groups that are urging OSHA and the CDC along like saying, hey, I think you should, if you're going to do this, I think you should include X, Y, and Z. Is that what you've been paying attention to as well, Mark?

Mark:

Sure. Yeah. OSHA is certainly not doing this in a vacuum without sort of knowing what's currently happening in terms of COVID and the occupational safety and health science and experience. Certainly, the CDC guidance is going to play a powerful role in what OSHA is going to come up with. But I know a lot of folks are certainly sending information to OSHA, even though it's not a public commentary, but sending information to OSHA with suggestions and ideas. :

And OSHA's not starting from scratch. Actually, OSHA, after H1N1 and after the ATD standard was passed in California, OSHA actually initiated rulemaking on an infectious disease standard to cover airborne and droplet spread diseases like California had done. And because of the H1N1 experience, there were a lot of holes in the lack of that regulation at the federal level. So OSHA has been... that regulation's sort of been suspended in the last four years or so in the last administration in terms of moving forward. But OSHA has many years of experience looking at infectious disease issues and how they might be regulated. And they're building on that to create... I imagine they're building on that as they pull the CTS together.

Jill:

Yeah. So as you and I get our crystal balls out, right, and try to figure out what they may put in this ETS, that's one of them. Right? I mean, to start maybe with that framework that they already had started with H1N1 and what California has with the aerosol. The ATD stands for aerosol-

Mark:

Transmissible disease.

Jill:

... transmissible diseases. Okay.

Mark:

Yeah.

Jill:

Yeah.

Mark:

Yeah. And certainly, I think part of what OSHA has to do for the ETS legally is they have to show that there's a hazard that meets the requirement of an ETS. So for example, when OSHA tried to issue the ETS in the early '80s, they were sued and the courts overruled that. My memory of that is in part, the court said, not that asbestos at the time wasn't dangerous and needed maybe a better regulation, but it wasn't something that was an emergency that just showed up as a new hazard. It had been an existing hazard. So OSHA had to then go back to its more traditional rule making. :

I'm optimistic that if OSHA's sued on their ETS, which is likely to happen, that the courts will rule that this is a new hazard that OSHA has to deal with, even though OSHA has experience with infectious disease. And we saw that actually recently in California. California's ETS for infectious disease COVID, there was a suit filed by some industries, and the federal courts upheld Cal/OSHA's right to do that.

Jill:

So there's some positive precedents there.

Mark:

I think so.

Jill:

Yeah.

Mark:

Yeah. I'm sorry. But the ETS history, even back in the '70s is really mixed. I mean, in 1977, OSHA, based on new information about benzene, put out an emergency temporary standard, but it stayed in the courts and then OSHA had to go through a standard rule making process to get that accomplished. The same year, they issued an emergent temporary standard against the pesticide called DBCP that was found that cause sterility in workers. And that was never challenged in court, and so it went on to become a permanent standard that still exists. So there's a mixed history in the '70s about the court's rulings over how OSHA can use this ETS standard. So it's going to be interesting to see and we hope OSHA is able to use this power to protect workers today.

Jill:

Yeah. I mean, how interesting that it hasn't been tested since 1983?

Mark:

Yeah.

Jill:

That's really interesting.

Mark:

Well, what I recall, and this is based on my memory, it may be faulty, but as I recall, because of the ETS and the court ruling, what happened after that is that when there was a real need for a standard that might've met an ETS requirement, or a need for a standard that was going to be hard to get through the normal regulatory process, or it was going to take 10 or 15 years, that the route that...

Mark:

... or it was going to take 10 or 15 years. The route that became common to use was to get the requirement for that regulation put into a law passed by Congress that ordered OSHA to do that. :

So the [HAZWOPER 00:24:15] Standard actually developed that way, there was language in the Superfund amendment to the Reauthorization Act in 1986 that said, "OSHA will have a HAZWOPER Standard." And it's actually spelled out in great detail what that standard would look like. :

And then we saw the same thing with lead in construction, and process safety management, and then the bloodborne pathogen standard that came out in the early nineties, Congress didn't do that directly, but there was sort of resolutions passed on the thinking of Congress that if OSHA didn't come out with one soon, OSHA might be ordered to do it by Congress. And then they passed one.

Mark:

So the sort of congressional direct ordering of OSHA to do things I think has become a another way to get standards passed. And there were efforts in the summer and the fall in some of the COVID relief bills to actually get such an order into the law, that OSHA would be required to come up with infectious disease standard for COVID, but this is the route we're at now.

Jill:

Interesting. I guess I've been doing compliance stuff long enough that one of the gripes I would hear from employers was, "Ugh, how do I keep up with all this safety stuff? It changes so often." :

And I would kind of laugh. I'm like, "No, it doesn't" I mean, all of these things take time. And what we're talking about today with an ETS is probably the fastest way to a law that exists for OSHA purposes.

Mark:

Yeah, I think if you look back at OSHA, especially OSHA health regulations, on average it takes OSHA 10 and 15 years to successfully promulgate an OSHA health regulation, or update an OSHA standard. :

The recent silica dust standard update took more than 15 years, and actually was something that was begun at the very earliest beginnings of OSHA almost 50 years ago. And the examples where we see OSHA moving fast on regulations are usually because of the ETS, or because of a congressional mandate. And there we see regulations that come into place within just two to four years. :

And that's not instantly, even two to four years means there's still public input, there's still a chance for all stakeholders to have a say, and a chance for people to get up to speed.

Jill:

And my gosh with this particular hazard, that's just way too long.

Mark:

Yeah.

Jill:

We're already a year into a recognized hazard.

Mark:

And I think one of the issues that's got to be difficult for OSHA, for everybody, is the aerosol transmittable disease standard in California came out of experience with tuberculosis in the nineties, and then other, H1N1, and SARS, and other concerns before 2009. But that was focused really on health care and kind of related work sites. Now we're facing the issue of an infectious disease standard that pretty much has to cover everybody because of the unique features of COVID, with asymptomatic spread, and trying to control this worldwide pandemic.

Jill:

Yeah, yeah. So [Mark 00:27:44] with your crystal ball out, what would, I know right? Didn't know you had one of those, right? What would you guess would be some of those items that might be in this ETS, or would you rather not even go to educated guessing?

Mark:

No, I'm happy to, because I think there's some basics here that that would have to be in a minimum OSHA standard. And they're are also the basis of, I think, any employer's programs that's going to look at this. :

And I think the first piece really has to be that employers have to do site-specific exposure assessments of their work site. And that's part of the California ATD standard, is because there are lots of varied sites and sort of unique issues, if you require the employer to do their site assessment, then you're not putting a one-size-fits-all plan on it. You're telling the employers, "Here's requirements of what you have to look at, but then do your own site assessment. And then based on a site assessment, you should develop a site-specific exposure control plan that would have all the common elements of training of an OSHA standard." :

Sort of like the requirement for using the hierarchy of controls, engineering controls, work practice controls, PPQ, worker training, how do you identify disease in your work site? How do you keep track? How do you do contact tracing? How do you keep records? How do you inform people? What's the connection to local health departments? :

All that can be outlined in requirements in an OSHA standard, and then employers would fill in the details of that based on their specific site. So if I'm an acute care hospital seeing COVID patients, then that plan is going to be very detailed and extensive. If I'm a work site that's mostly shut down and everyone's working from home, then there's a lot less I have to do.

Jill:

Right. And if you're a grocery store, even less.

Mark:

Yeah. Yeah. But the key of that is-

Jill:

I mean, I'm sorry, I didn't mean to say even less, different than healthcare.

Mark:

It would be different, yeah.

Jill:

Different, yeah.

Mark:

So the real issue is what are the hazards to employees at that work site? And then what do you do to control the hazards? And I suspect that's the approach of the longstanding OSHA bloodborne pathogen standard that applies to all work sites, but it's focused on the healthcare, but it applies to all work site. :

And I think that's been an incredibly successful standard at reducing bloodborne pathogen diseases among workers. And OSHA's had a lot of experience with that. :

So I think those would be the couple things I would see that would be in there. I think one of the things I'd like to see in the standard would be clear language on what an employer policy responsibility would be toward workers who have suspected COVID, or known COVID. And they are issues of how do you identify those people, and then what do you do in terms of having... Those people need to be not at work and quarantining so we're not spreading COVID more, then there should be some responsibility for people to be paid to stay at home, because they're sick through no fault of their own. :

And in those cases, most states, those folks don't fall under workers' comp, because you don't fall under workers' comp in most states until you actually get sick. So while you're in quarantine waiting to see what's going to happen, you're not sick. :

So it's a sort of gray area that often I see workers get put in the position of, "Well, you're supposed to stay home, but we're not going to pay you, but we're going to wait and see to get sick." :

And so it's a real struggle for both, for workers, but also for employers to have policies that support proper infection control, and help us shut this virus down.

Jill:

Right, exactly. And some of the the things that you're just describing are many of the things that are in the revised guidance document that we could expect, or suspect, hope, would be in an ETS. :

And then the things that you're talking about right now regarding some of the worker rights issues, that's another thing that was addressed in President Biden's executive order and is really asking OSHA to work in concert with the Secretary of Agriculture, the Secretary of Labor, Health and Human Services, to cover some of those things like you're talking about that are gaps. :

Like with work comp, what do we do if somebody is home, but we're just waiting to find out? There shouldn't be reprisal. :

And the other thing that's peppered throughout the executive order, and the National Emphasis Program, and the enforcement guideline is for OSHA personnel to be paying attention to retaliation that could be happening to employees who voice their concerns to their employers or to OSHA about exposures that they have in the workplace. And for the employer to really explain to their employees they have a right to voice their concerns and to be free from retaliation as well. And that's really emphasized heavily.

Mark:

Yeah. And I think that's that's a huge issue in many work sites. Because I've always advised to really have a good health and safety program, you really do want to hear from your employees, and you want to gain the experience and creativity and ideas of your employees. :

So if employees have either a real, or imagined fear of retaliation if they say anything, then you're not going to get that. :

And I saw a poll or a survey that was put out in the last week or so I think by the Ford Foundation of employer/employee issues in COVID, and I think there was a survey question that showed almost half of employees said they were concerned about retaliation if they talked about COVID safety and health. Which was really a sad number.

Jill:

Right.

Mark:

Because we really do need that creativity and experience. And I've seen this in other, over the years in settings where good supervisors, good frontline employees who really understand what the purpose of the safety program is, like this, like with COVID, can come up with really wonderful ideas that fit their work site. But they really need to feel like they can say something so they'll do it.

Jill:

Yeah. To create that atmosphere in your work environment.

Mark:

Yeah, I remember my own father who was a mechanic, and pretty much a curmudgeon as a worker. And I remember he once submitted a suggestion for making things safer, and not only it was ignored, but he got some sort of negative feedback. And he was like, "Well, I'll never do that again." :

And I was young just starting off in industrial hygiene. So it was like, "Oh no, we want you to tell us ideas!"

Jill:

It's exactly what we want.

Mark:

Right, but in terms of that case the employer reaction was such that I know he never gave them another idea again. So we really want to encourage, in this really difficult time of trying to figure out how to deal with this in work sites of all types, we really want that frontline worker, frontline supervisor experience on how to do this. And then we need to capture that experience by industry somehow during and after this COVID crisis is over, and capture that for the future and- :

... crisis is over and capture that for the future and record it and analyze it, and then figure out how we do better next time. Because if we look back at the past 15 years or so, every five years, we're having an infectious disease that affects work sites. We didn't have SARS. Canada had SARS. We were lucky. But we had H1N1, we had Ebola, we had Zika, and now we have this. All the infectious disease experts say, "This is going to be a continuing trend that we're going to have to always be watching for."

Jill:

Right. Do you think that perhaps what we'll see out of an ETS will cover infectious diseases as a bigger, broader topic? You had said before, "If OSHA is successful in issuing an ETS, they'll have six months before it either expires, or you can turn it into a permanent standard." And so if it's done broadly on a topic like infectious disease, do you think that might be what we would see in this case as well?

Mark:

That's my understanding of what OSHA is looking at, that this won't be written to just be COVID-specific but it'll be specific to respiratory-spread diseases. What that means, to me, that means droplet and airborne spread or what we kind of call, if you lump those together, we call it aerosol spread. And so that's the concern about being indoors in a enclosed airspace, like most workplaces are, with not the best ventilation and you're breathing other people's air. That's the way this disease seems to spread.

Jill:

That's right. Well, I'm so interested to see what they come up with, particularly as it relates to aerosols, like you're talking about. I think that so many people, whether at work or in their personal lives, have thought that the way to protect is to clean.

Mark:

Yeah.

Jill:

And we've certainly learned that that's not the end all, be all. It's not the thing. But what are we doing with that air? I mean, it's important, but it's not the primary piece.

Mark:

Right. And I hope that OSHA in the ETS will make that really clear. Because what I see in my work under COVID is a work site might say, "Well, we can't improve the ventilation anymore, but we're going to do more hand-washing." That might sound like, "Okay, that's a good idea," but if a control for a different route of transmission, doesn't help to protect workers. But I think it's a hard concept of controlling infectious disease for people to get their minds around that, and I think it's OSHA needs to really be clear and help people understand that.

Mark:

I think it's something the CDC hasn't been as good as I would've hope they are because they're not focused on specific work sites. They're focused on this much broader world, and it'd be better if there was a way to clearly help employers, employees focus in on, "Here's the route of transmission and here's three or four ways we're going to control it. Here's the controls, but it's for a different route of transmission and they're not interchangeable for [inaudible 00:39:23]."

Jill:

Yeah. I guess I hope that an ETS would also address things within the hierarchy of controls, so that people don't immediately jump to personal protective equip.

Mark:

Exactly. Although, I think our experience in California with [ATD 00:39:43] centers is that in the most cases we probably need all the different layers of the hierarchy to be used. But we still really want to emphasize engineering controls and vaccinations as a part of that too, to do the best to protect people.

Jill:

Right. Is that what people refer to as the Swiss cheese model then, that we have all these different layers?

Mark:

Yeah. Yeah. I think so, but again, layers of control within each route of transmission. And so, again, they're not interchangeable, and I think that's been something I've come to learn at how difficult that is for many work sites to understand.

Jill:

Yeah. Well, Mark, anything else that you've been thinking or reading about historically or otherwise that you'd like to share with our audience as we're waiting for this ETS?

Mark:

Well, I think we've gone through some of the issues with, I think, the history of the ETS. It's going to be interesting to see how this turns out in this case and adds to the history. OSHA's had a 30-plus-year experience with some levels of disease. I was hearing from somebody a little while back who was reminding me that when OSHA first thought about the bloodborne pathogen standard, there was a real question as to OSHA even had the legal right or should be covering infectious diseases, and so the idea that that was sort of the jurisdiction or realm of CDC. OSHA moved forward on bloodborne pathogen and other issues related to healthcare. But it's interesting that historically that was a question in the early days of OSHA as to whether this was something they should cover. I think the standard's pretty clear about OSHA coverage in this area where there are workers and workers exposed to hazards and OSHA has a role to play.

Jill:

Yeah. I'll be interested to see how the state-run agencies react to this as well. As you and I have been talking, I've been thinking about my own home state of Minnesota that has a state-run program. Back in the, I'm trying to remember what year, might've been in the eighties, maybe '83, Minnesota's OSHA program started a state rule called the Right-to-Know Law. It was to meet or exceed the Hazard Communication Law on the federal level. And so, it took all of those pieces of the Hazard Communication Law that have to do with hazardous substances and the reasons why we have SDSs and all of labeling requirements, all of that stuff. But it also additionally addressed infectious agents.

Mark:

Right. I remember that. Yeah.

Jill:

Yeah, and harmful physical substances. And so, as an investigator, I'd be explaining that to people like, "Yeah, we have our HazCom," and I'm like, "Yes, but in Minnesota we also have to do training on infectious agents." And so that usually came into play, and then they'd say, "What's that?" I'd say, "Well, like seasonal influenza." It also came into play when I would do investigations in long-term care facilities where they would have transmission of different infectious agents like scabies. That was something that was not uncommon in long-term care facilities, and so we would talk about education, training and prevention around that as well. I'll be interested to see what happens in my own state in that same regard.

Mark:

It's interesting you bring that up because I was working in the... At that time, I was working in Alaska, and Alaska had just passed their version of HazCom, which applied to chemical hazards. And then there was an effort actually to enlarge the HazCom standard to add in infectious diseases like you did in Minnesota, because I remember we read what you all were doing. And then there was a effort to add in what was called physical agent. And that actually got adopted in Alaska, so things like heat, cold, radiation, vibration, those sorts of noise to the HazCom standards.

Jill:

Yeah. That happened in Minnesota as well.

Mark:

It's the unique laboratory of state standards where this idea of doing better than federal OSHA's minimum requirements is a place to do these things, test them out and see how they work.

Jill:

Well, I think there's great hope for this ETS, and I know that the executive order from the president asked for OSHA to make this determination by March 15th, which we're now passed by one day. I know that the press secretary from the White House was asked by the press pool yesterday about the ETS and when is it coming. Her response was OSHA is taking its time. It's doing the work it needs to and they'll be ready when they're ready. I suspect we'll see something before the month is out.

Mark:

Yeah. I mean, I'm optimistic because I think the new leadership at OSHA... OSHA didn't have any Senate-approved leaders during the entire past administration. AND we're still waiting to get the Senate approval, but there are acting deputy secretaries. Jim Frederick is sort of the lead, and he's a remarkable health and safety professional. He's been around for more than 25 years and has lots of experience in industrial sites and working in several labor management settings. Jim and the other appointees that are there, I think are going to be a wonderful crew and they're going to help us through this.

Jill:

They're working fast right now and they've done a lot already.

Mark:

Exactly. Exactly. That's what we need.

Jill:

Well, exactly. Well, Mark, thank you so much for coming back to the podcast again, always appreciate it and your perspective. Thank you so much.

Mark:

Thank you, Jill.

Jill:

And thank you all for spending your time listening today, and more importantly, thank you for your contribution toward the common good, making sure your workers, including your temporary workers, make it home safe every day. If you'd like to join the conversation about this episode or any of our previous episodes, you can follow our page and join the Accidental Safety Pro Community Group on Facebook. If you aren't subscribed and want to hear past or future episodes, you can subscribe in iTunes, the Apple podcast app, or any other podcast player that you'd like. :

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