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ASA Submits Comments to OSHA’s COVID-19 Healthcare (Construction Work) Setting Rule

On Thursday, April 28, 2022, ASA, along with the Construction Industry Safety Coalition (CISC) submitted comments to OSHA regarding the agency’s limited reopening of the Occupational Exposure to COVID-19 in Healthcare Settings rule and possible coverage of construction activities being performed in healthcare facilities.  These comments oppose OSHA’s proposal to expand coverage of the COVID-19 final rule to include construction work in healthcare settings and support our coalition’s August 2021 comments on this rulemaking.

Additionally, ASA participated in the Informal Rulemaking Hearing for Occupational Exposure to COVID-19 in Healthcare Settings hearing on Friday, April 29th.  Here is the full hearing schedule:

Per our comments:

“Any attempts by OSHA to expand the ETS to cover construction is not supported by the evidence and would be impermissible under the Occupational Safety and Health Act of 1970 (“OSH Act” or “Act”). As in the Coalition’s August 20, 2021 comments on the ‘Occupational Exposure to COVID-19; Emergency Temporary Standard,’ these comments support the Agency’s original determination not to include the construction industry within the scope of this rule.  An expansion of the Occupational Exposure to COVID-19 in Healthcare Settings Rule is inappropriate and expanding the rule to cover employers in low-risk industries, like construction, only months after the U.S. Supreme Court’s ruling that OSHA’s COVID-19 Vaccine and Testing: Emergency Temporary Standard was not authorized by the Occupational Safety and Health Act of 1970, is bewildering. As explained by the Court, ‘[t]he Act empowers the Secretary to set workplace safety standards, not broad public health measures.’ In proposing to expand the healthcare ETS to cover additional industries, OSHA risks the same type fails to account for [the] crucial distinction – between occupational risk and risk more generally – …’ for which it was chided by the Supreme Court.  For these reasons and those addressed below, the CISC respectfully opposes OSHA’s proposal to expand coverage under any promulgated final rule to include certain construction work. OSHA has not provided sufficient information regarding its various ‘proposed rulemaking outcomes’ to allow for meaningful substantive comment on the merits of its proposal. Instead, our comments address (1) deficiencies in the process taken by OSHA in promulgating this rule; (2) the low risk posed by COVID-19 in the construction industry; (3) difficulties in applying the healthcare ETS to construction; and (4) recommendations, based on industry experience, on how best to mitigate the risk of occupational exposure to COVID-19 in construction.”