Labor department issues emergency rules to protect health care workers from Covid

Reviewed by Emily Henderson, B.Sc.Jun 10 2021

Labor Department officials on Thursday announced a temporary emergency standard to protect health care workers, saying they face "grave danger" in the workplace from the ongoing coronavirus pandemic.

The new standard would require employers to remove workers who have Covid-19 from the workplace, notify workers of Covid exposure at work and strengthen requirements for employers to report worker deaths or hospitalizations to the Occupational Safety and Health Administration.

"These are the workers who continue to go into work day in and day out to take care of us, to save our lives," said Jim Frederick, acting assistant secretary of Labor for occupational safety and health. "And we must make sure we do everything in our power to return the favor to protect them."

The new rules are set to take effect immediately after publication in the Federal Register and are expected to affect about 10.3 million health care workers nationwide.

The government's statement of reasons for the new rules cites the work of KHN and The Guardian in tallying more than 3,600 health care worker Covid deaths through April 8. Journalists documented far more deaths than the limited count by the Centers for Disease Control and Prevention, which through May tallied 1,611 deaths on case-reporting forms that were often incomplete.

The Lost on the Frontline project documented early calls for better respiratory protection for health care workers than loose-fitting face masks, noted serious complaints to OSHA from hospital workers that went unaddressed and revealed repeated employer failures to report dozens of worker deaths. It also found that health care employers were often remiss in notifying workers about exposure to the coronavirus on the job.

The new standard would address some of those problems.

The rules require workers to wear N95 or elastomeric respirators when in contact with people with either suspected or confirmed Covid. They strengthen employer record-keeping requirements, saying employers must document all worker Covid cases (regardless of whether they were deemed work-related) and report work-related deaths even if they occur more than 30 days after exposure.

Until now, employers were required to report a hospitalization only if it came within 24 hours of a workplace exposure. Now all work-related Covid hospitalizations must be reported. The rules also mandate notification about exposure to a sick colleague, patient or customer if the worker was not wearing a respirator.

There is a lot to like about the new rule - except for the timing, according to Barbara Rosen, vice president of the Health Professionals and Allied Employees union in New Jersey.

"It's a little late," she said. "If we had had this in place at the beginning, it would have saved a lot of lives and a lot of suffering that has gone on with health care workers and probably patients in hospitals because of the spread."

She said she was pleased with the requirement that workers be paid when they isolate with Covid and that employers formulate a detailed Covid plan with the input of non-managers.

The day after he took office, President Joe Biden issued an executive order calling on OSHA to "take swift action to reduce the risk that workers may contract Covid-19 in the workplace." The rule has been criticized for coming late — about which Labor Department officials said on a press call that such standards typically take years, not months, to formulate. It has also been derided for failing to enact requirements on employers outside of health care.

"OSHA's failure to issue a Covid-specific standard in other high-risk industries, like meat and poultry processing, corrections, homeless shelters and retail establishments is disappointing," according to a statement from David Michaels, a former OSHA administrator and professor with the George Washington University School of Public Health. "If exposure is not controlled in these workplaces, they will continue to be important drivers of infections."

The new rule also cites 67,000 worker complaints during the pandemic, with "more complaints about healthcare settings than any other industry." The rule would protect workers from retaliation for staying home when sick with Covid, alerting their employer about a Covid hazard or exercising their rights under the emergency rule.

Through March 7, about half of health care workers said they had received at least their first dose of a Covid vaccine, according to a KFF-Washington Post poll. About one-third of those polled said they were unsure if they would get a vaccine. The issue has been controversial, especially in Houston, where workers at one hospital staged a protest over their employer's vaccine mandate.

The new rules exempt some office-based health care workplaces where all staff members are vaccinated and measures are taken to screen people with potential illness. The rule summary estimates the measures will prevent 776 deaths and 295,000 infections.

The new rule also says it will "enable OSHA to issue more meaningful penalties for willful or egregious violations, thus facilitating better enforcement and more effective deterrence against employers who intentionally disregard … employee safety."

Kristin Carbone said the measure came too late for her mother, Barbara Birchenough, 65, a New Jersey hospital nurse who'd asked family members to gather gardening gloves and trash bags to serve as makeshift personal protective equipment before she fell ill and later died on April 15, 2020. Still, she said, it's a necessary step.

"If there is a silver lining," she said, "I'm glad that out of this tragedy come positives for the people that are left behind."