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GAO reviewed Department of Labor, Occupational Safety and Health Administration's (OSHA) new rule entitled "Occupational Exposure to COVID-19; Emergency Temporary Standard." GAO found that the interim final rule issues an emergency temporary standard (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.







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B-333381
July 9, 2021
The Honorable Patty Murray
Chair
The Honorable Richard Burr
Ranking Member
Committee on Health, Education, Labor, and Pensions
United States Senate
The Honorable Robert C. ?Bobby? Scott
Chairman
The Honorable Virginia Foxx
Ranking Member
Committee on Education and Labor
House of Representatives
Subject: Department of Labor,
Occupational Safety and Health Administration:  Occupational Exposure to COVID-19;
Emergency Temporary Standard
Pursuant to section 801(a)(2)(A) of title 5, United States Code, this is our report on a
major rule promulgated by the Department of Labor, Occupational Safety and Health
Administration (OSHA) entitled ?Occupational Exposure to COVID-19; Emergency Temporary
Standard? (RIN:  1218-AD36).  We received the rule on June 24, 2021.  It was
published in the Federal Register as an interim final rule; request for comments on
June 21, 2021.  86 Fed. Reg. 32376.  The effective date is June 21, 2021.
According to OSHA, the interim final rule issues an emergency temporary standard
(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.  During the period of the emergency standard, OSHA determined covered
healthcare employers must develop and implement a COVID-19 plan to identify and control
COVID-19 hazards in the workplace.  OSHA stated that covered employers must also
implement other requirements to reduce transmission of COVID-19 in their workplaces,
related to the following:  patient screening and management; standard and
transmission-based precautions; personal protective equipment, including facemasks or
respirators; controls for aerosol-generating procedures; physical distancing of at least 6
feet, when feasible; physical barriers; cleaning and disinfection; ventilation; health
screening and medical management; training; anti-retaliation; recordkeeping; and reporting.
 OSHA stated the standard issued in the interim final rule encourages vaccination by
requiring employers to provide reasonable time and paid leave for employee vaccinations and
any side effects.  OSHA further stated the standard also encourages use of
respirators, where respirators are used in lieu of required facemasks, by including a mini
respiratory protection program that applies to such use.  Finally, OSHA stated the
standard exempts from coverage certain workplaces where all employees are fully vaccinated
and individuals with possible COVID-19 are prohibited from entry; and it exempts from some
of the requirements of the standard, fully vaccinated employees in well-defined areas where
there is no reasonable expectation that individuals with COVID-19 will be
present.
The Congressional Review Act (CRA) requires a 60-day delay in the effective date
of a major rule from the date of publication in the Federal Register or receipt of
the rule by Congress, whichever is later.  5 U.S.C. § 801(a)(3)(A).  The 60-day
delay in effective date can be waived, however, if the agency finds for good cause that
delay is impracticable, unnecessary, or contrary to the public interest, and the agency
incorporates a statement of the findings and its reasons in the rule issued.  5 U.S.C.
§ 808(2).  OSHA determined it had good cause to make this rule effective upon
publication because it determined notice and comment procedures were impracticable and
contrary to the public interest, given the expedited timeline on which the ETS was
developed and the grave danger threatening healthcare workers? lives and health.
Enclosed is our assessment of OSHA?s compliance with the procedural steps required by
section 801(a)(1)(B)(i) through (iv) of title 5 with respect to the rule.  If you have
any questions about this report or wish to contact GAO officials responsible for the
evaluation work relating to the subject matter of the rule, please contact Shari Brewster,
Assistant General Counsel, at (202) 512-6398.
Shirley A. Jones
Managing Associate General Counsel
Enclosure
cc:  Andrew Levinson
  Acting Director
  Directorate of Standards and Guidance
  Department of Labor
ENCLOSURE
REPORT UNDER 5 U.S.C. § 801(a)(2)(A) ON A
MAJOR RULE
ISSUED BY THE
DEPARTMENT OF LABOR,
OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION
ENTITLED
?OCCUPATIONAL EXPOSURE TO COVID-19;
EMERGENCY TEMPORARY STANDARD?
(RIN:  1218-AD36)
(i) Cost-benefit analysis
The Department of Labor, Occupational Safety and Health Administration (OSHA) estimated
the interim final rule would create costs of $3,969,645,432, and generate benefits, in the
form of infections and deaths prevented, amounting to $26,851,729,237, for a net benefit
total of $22,882,083,805.
(ii) Agency actions relevant to the Regulatory Flexibility Act (RFA), 5 U.S.C. §§
603-605, 607, and 609
OSHA determined an analysis under RFA is impracticable because OSHA promulgated this
interim final rule on an expedited basis in response to an emergency.
(iii) Agency actions relevant to sections 202-205 of the Unfunded Mandates Reform Act
of 1995, 2 U.S.C. §§ 1532-1535
OSHA determined the required analysis under the Act was completed by its analysis of the
interim final rule?s benefits and economic feasibility.
(iv) Other relevant information or requirements under acts and executive
orders
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
OSHA waived the notice and comment procedures for good cause.  OSHA determined it
had good cause because of the critical importance of implementing the requirements in
this emergency temporary standard (ETS), including the recordkeeping and report provisions,
as soon as possible to address the grave danger that COVID-19 presents to healthcare
workers. 
Paperwork Reduction Act (PRA), 44 U.S.C. §§ 3501-3520
OSHA determined the interim final rule contained information collection requirements
(ICRs) subject to the Act.  The ICRs are entitled ?COVID-19 Emergency Temporary
Standard (29 part CFR 1910, subpart U),? and are associated with Office of
Management and Budget (OMB) Control Number 1218-0277.  OSHA estimated the ICRs would
lead to 19,260,202 burden hours and a cost of $3,016,812.57.  OSHA stated that
it received authorization from OMB to use the emergency procedures under PRA for this ETS,
and that it submitted the ICRs to OMB for approval.
Statutory authorization for the rule
OSHA promulgated the interim final rule pursuant to section 553 of title 5; and sections
653, 655, and 657 of title 29, United States Code.
Executive Order No. 12866 (Regulatory Planning and Review)
OSHA stated the interim final rule is economically significant and has been reviewed by
OMB.
Executive Order No. 13132 (Federalism)
OSHA stated it reviewed the interim final rule under the terms of the Order and found
that it complies with the Order.




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