President Joe Biden's executive order directing OSHA to consider a national emergency temporary standard for COVID-19 in the workplace could finally provide contractors with a national playbook for fighting COVID-19 on jobsites, while standardizing the reporting and tracking of people exposed to the virus at work.
The order, issued Thursday, directs OSHA to issue updated, national guidance on workplace safety for COVID-19 within two weeks. But it also directed the agency to revisit issuing an emergency temporary standard to keep workers safe from COVID-19, including whether masks should be worn at work, a step OSHA declined to take under the Trump administration. If the agency decides to implement a nationwide ETS, it would need to do so by March 15.
A national ETS, mandatory and enforceable by OSHA, would give contractors a single checklist for COVID-19 compliance, versus the patchwork of state, local and federal rules that they have had to follow to date. While some states have issued ETS for COVID-19, there's no single set of rules across industries.
Contractors say the range of rules, and which ones apply to which jobsites, has hampered productivity while costing them real money.
"We've spent a fortune on that," said Rosana Privitera Biondo, president of Kansas City, Missouri-based Mark One Electric, during an industry call earlier this month. "You're talking hundreds of thousands of dollars."
Biden's order won praise from the AFL-CIO union federation, which unsuccessfully sued last year to force OSHA to create an ETS rule focused on the coronavirus pandemic.
"By issuing this overdue and desperately needed executive order on his first full day in office, President Biden is clearly prioritizing strong COVID-19 protections for working people," said Richard Trumka, AFL-CIO's president, in a statement. "Strong enforceable standards would require employers to develop workplace safety plans, implement science-based protection measures, train workers and report outbreaks."
Brian Turmail, vice president of public affairs at the Associated General Contractors of America, said the group is fine with a common standard that provides clarity and protects workers from the coronavirus.
"Our worry is that a possible ETS would include measures that have little to do with protecting workers and a lot to do with advancing the president’s avowed bias toward organized labor," Turmail said. "So the short answer is, it depends on the standard."
Mandatory industry reporting
An official who formerly worked at OSHA during the Obama administration told Construction Dive that any ETS implemented by the agency would likely include a reporting mechanism to better track where workplace outbreaks are taking place across the country. The official spoke on the condition of anonymity to describe internal staff thinking.
For example, California requires employers to report COVID-19 exposures at work, along with the North American Industry Classification System code for their industry. A similar measure at the national level would provide insight into the relative percentage of COVID-19 infections among workers in different industries, a metric that has been elusive at the national level to date.
The lack of a good data collection system across the country for tracking COVID-19 in the workplace has been noted by many health experts and elected officials as a serious problem in fighting workplace spread. But given the degree of community spread in the country, a challenge of such a system is in determining whether workers were exposed to the virus at their jobs, or elsewhere, experts say.
Varied tracking among states
Nevertheless, putting that kind of system in place would be a game changer for tracking COVID-19 at work in all industries. To date, local and state health agencies have only sporadically cataloged workplace spread by industry, including construction. The result has been a far-ranging spread of infection rates in similar work environments, with no holistic insight into how well or poorly any given industry is doing at fighting COVID-19.
Take recent data from the Sonoma County, California, health department, and an analysis from the Santa Rosa Press Democrat newspaper, which found one in six people contracted the virus at their jobs, and concluded that simply going to work was one of the riskiest activities people engaged in during the pandemic.
Of the 662 confirmed cases among construction workers in the report, it traced 23% of them back to jobsite exposure. That put construction in the mid-range of workplace exposure in Sonoma County, below the 49% of healthcare workers who were exposed at work, but ahead of education professionals, where 11.5% of cases were traced to educators' jobs.
But the county conceded that in 24% of cases, it couldn’t determine where the individual was exposed, showing the difficulty of tracing the disease as community spread becomes more far flung.
The numbers add to health agency and academic studies that have traced COVID-19 exposure to construction jobsites. Contractors and construction trade associations have stressed that the industry has gone to extreme lengths to keep workers safe, and argue that community spread is often responsible instead.
Measures include strict entry screening and temperature checks at the jobsite, mandatory adherence to donning personal protective equipment, such as masks, gloves and face shields, and maintaining social distancing at work. Boston Mayor Marty Walsh, Biden’s labor secretary nominee, has pointed to construction as a model industry whose example other sectors should follow to keep workers safe.
Biden's executive order specifically includes a provision for the agency to launch a national program to focus on OSHA enforcement, as well.
"The federal government must take swift action to reduce the risk that workers may contract COVID-19 in the workplace," the order reads. "That will require issuing science-based guidance to help keep workers safe from COVID-19 exposure, including with respect to mask-wearing, partnering with state and local governments to better protect public employees, enforcing worker health and safety requirements and pushing for additional resources to help employers protect employees."
This story was updated to clarify AGC’s position on the executive order.