A bill to require the Occupational Safety and Health Administration to promulgate an emergency temporary standard to protect employees from occupational exposure to SARS-CoV-2, and for other purposes.

II 116TH CONGRESS 2D SESSION S. 3677 To require the Occupational Safety and Health Administration to promulgate an emergency temporary standard to protect employees from occupational exposure to SARS–CoV–2, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 11, 2020 Ms. BALDWIN (for herself, Ms. DUCKWORTH, Mrs. MURRAY, Mr. BROWN, Mr. VAN HOLLEN, Mr. BLUMENTHAL, Mr. MARKEY, Ms. HARRIS, Ms. WAR- REN, Mrs. GILLIBRAND, Mr. KING, Mr. DURBIN, Mr. WYDEN, Ms. SMITH, Mr. SANDERS, Mr. MENENDEZ, Ms. KLOBUCHAR, Mr. CASEY, Mr. BOOKER, Mr. KAINE, Mrs. SHAHEEN, Mr. REED, Ms. STABENOW, Mr. SCHATZ, Ms. HIRONO, Mr. PETERS, Mrs. FEINSTEIN, Mr. COONS, Mr. WHITEHOUSE, Mr. MERKLEY, Mr. UDALL, Mr. CARDIN, and Mr. HEINRICH) introduced the following bill; which was read twice and re- ferred to the Committee on Health, Education, Labor, and Pensions A BILL To require the Occupational Safety and Health Administra- tion to promulgate an emergency temporary standard to protect employees from occupational exposure to SARS–CoV–2, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This division may be cited as the ‘‘COVID–19 Every 4 Worker Protection Act of 2020’’. 5 VerDate Sep 11 2014 18:43 May 22, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3677.IS S3677 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 3677 IS SEC. 2. EMERGENCY TEMPORARY AND PERMANENT STAND- 1 ARDS. 2 (a) EMERGENCY TEMPORARY STANDARD.— 3 (1) IN GENERAL.—In consideration of the grave 4 risk presented by COVID–19 and the need to 5 strengthen protections for employees, pursuant to 6 section 6(c)(1) of the Occupational Safety and 7 Health Act of 1970 (29 U.S.C. 655(c)(1)) and not- 8 withstanding the provisions of law and the Executive 9 order listed in paragraph (7), not later than 7 days 10 after the date of enactment of this Act, the Sec- 11 retary of Labor shall promulgate an emergency tem- 12 porary standard to protect from occupational expo- 13 sure to SARS–CoV–2— 14 (A) employees of health care sector em- 15 ployers; 16 (B) employees of employers in the para- 17 medic and emergency medical services, includ- 18 ing such services provided by firefighters and 19 other emergency responders; and 20 (C) other employees at occupational risk of 21 such exposure. 22 (2) CONSULTATION.—In developing the stand- 23 ard under this subsection, the Secretary of Labor 24 shall consult with the Director of the Centers for 25 Disease Control and Prevention, the Director of the 26 VerDate Sep 11 2014 18:43 May 22, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3677.IS S3677 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 3677 IS National Institute for Occupational Safety and 1 Health, and professional associations and represent- 2 atives of the employees in the occupations and sec- 3 tors described in subparagraphs (A) through (C) of 4 paragraph (1) and the employers of such employees. 5 (3) ENFORCEMENT DISCRETION.—If the Sec- 6 retary of Labor determines it is not feasible for an 7 employer to comply with a requirement of the stand- 8 ard promulgated under this subsection (such as a 9 shortage of the necessary personal protective equip- 10 ment), the Secretary may exercise discretion in the 11 enforcement of such requirement if the employer 12 demonstrates that the employer— 13 (A) is exercising due diligence to come into 14 compliance with such requirement; and 15 (B) is implementing alternative methods 16 and measures to protect employees. 17 (4) EXTENSION OF STANDARD.—Notwith- 18 standing paragraphs (2) and (3) of section 6(c) of 19 the Occupational Safety and Health Act of 1970 (29 20 U.S.C. 655(c)), the emergency temporary standard 21 promulgated under this subsection shall be in effect 22 until the date on which the final standard promul- 23 gated under subsection (b) is in effect. 24 VerDate Sep 11 2014 18:43 May 22, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3677.IS S3677 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 3677 IS (5) STATE PLAN ADOPTION.—With respect to a 1 State with a State plan that has been approved by 2 the Secretary of Labor under section 18 of the Oc- 3 cupational Safety and Health Act of 1970 (29 4 U.S.C. 667), not later than 14 days after the date 5 of enactment of this Act, such State shall promul- 6 gate an emergency temporary standard that is at 7 least as effective in protecting from occupational ex- 8 posure to SARS–CoV–2 the employees in the occu- 9 pations and sectors described in subparagraphs (A) 10 through (C) of paragraph (1) as the emergency tem- 11 porary standard promulgated under this subsection. 12 (6) EMPLOYER DEFINED.—For purposes of the 13 standard promulgated under this subsection, the 14 term ‘‘employer’’ (as defined in section 3 of the Oc- 15 cupational Safety and Health Act of 1970 (29 16 U.S.C. 652)) includes any State or political subdivi- 17 sion of a State, except for a State or political sub- 18 division of a State already subject to the jurisdiction 19 of a State plan approved under section 18(b) of the 20 Occupational Safety and Health Act of 1970 (29 21 U.S.C. 667(b)). 22 (7) INAPPLICABLE PROVISIONS OF LAW AND 23 EXECUTIVE ORDER.—The requirements of chapter 6 24 of title 5, United States Code (commonly referred to 25 VerDate Sep 11 2014 18:43 May 22, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3677.IS S3677 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 3677 IS as the ‘‘Regulatory Flexibility Act’’), subchapter I of 1 chapter 35 of title 44, United States Code (com- 2 monly referred to as the ‘‘Paperwork Reduction 3 Act’’), the Unfunded Mandates Reform Act of 1995 4 (2 U.S.C. 1501 et seq.), and Executive Order 12866 5 (58 Fed. Reg. 190; relating to regulatory planning 6 and review), as amended, shall not apply to the 7 standard promulgated under this subsection. 8 (b) PERMANENT STANDARD.—Not later than 24 9 months after the date of enactment of this Act, the Sec- 10 retary of Labor shall promulgate a final standard— 11 (1) to protect employees in the occupations and 12 sectors described in subparagraphs (A) through (C) 13 of subsection (a)(1) from occupational exposure to 14 infectious pathogens, including novel pathogens; and 15 (2) that shall be effective and enforceable in the 16 same manner and to the same extent as a standard 17 promulgated under section 6(b) of the Occupational 18 Safety and Health Act of 1970 (29 U.S.C. 655(b)). 19 (c) REQUIREMENTS.—Each standard promulgated 20 under this section shall include— 21 (1) a requirement that the employers of the em- 22 ployees in the occupations and sectors described in 23 subparagraphs (A) through (C) of subsection (a)(1) 24 develop and implement a comprehensive infectious 25 VerDate Sep 11 2014 18:43 May 22, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3677.IS S3677 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 3677 IS disease exposure control plan, with the input and in- 1 volvement of employees or, where applicable, the rep- 2 resentatives of employees, as appropriate, to address 3 the risk of occupational exposure in such sectors and 4 occupations; 5 (2) no less protection for novel pathogens than 6 precautions mandated by standards adopted by a 7 State plan that has been approved by the Secretary 8 of Labor under section 18 of the Occupational Safe- 9 ty and Health Act of 1970 (296 U.S.C. 667); 10 (3) the incorporation, as appropriate, of— 11 (A) guidelines issued by the Centers for 12 Disease Control and Prevention, the National 13 Institute for Occupational Safety and Health, 14 and the Occupational Safety and Health Ad- 15 ministration which are designed to prevent the 16 transmission of infectious agents in healthcare 17 or other occupational settings; and 18 (B) relevant scientific research on novel 19 pathogens; and 20 (4) a requirement for the recording and report- 21 ing of all work-related COVID–19 infections and 22 deaths as set forth in part 1904 of title 29, Code of 23 Federal Regulations (as in effect on the date of en- 24 actment of this Act). 25 VerDate Sep 11 2014 18:43 May 22, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3677.IS S3677 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 3677 IS (d) ANTI-RETALIATION.— 1 (1) POLICY.—Each standard promulgated 2 under this section shall require employers to adopt 3 a policy prohibiting the discrimination and retalia- 4 tion described in paragraph (2) by any person (in- 5 cluding an agent of the employer). 6 (2) PROHIBITION.—No employer (including an 7 agent of the employer) shall discriminate or retaliate 8 against an employee for— 9 (A) reporting to the employer, to a local, 10 State, or Federal Government agency, or to the 11 media or on a social media platform— 12 (i) a violation of a standard promul- 13 gated pursuant to this Act; 14 (ii) a violation of an infectious disease 15 exposure control plan described in sub- 16 section (c)(1); or 17 (iii) a good faith concern about a 18 workplace infectious disease hazard; 19 (B) seeking assistance or intervention from 20 the employer or a local, State, or Federal Gov- 21 ernment agency with respect to such a report; 22 (C) voluntary use of personal protective 23 equipment with a higher level of protection than 24 is provided by the employer; or 25 VerDate Sep 11 2014 18:43 May 22, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3677.IS S3677 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 3677 IS (D) exercising any other right under the 1 Occupational Safety and Health Act of 1970 2 (29 U.S.C. 651 et seq.). 3 (3) ENFORCEMENT.—This subsection shall be 4 enforced in the same manner and to the same extent 5 as any standard promulgated under section 6(b) of 6 the Occupational Safety and Health Act of 1970 (29 7 U.S.C. 655(b)). 8 SEC. 3. SURVEILLANCE, TRACKING, AND INVESTIGATION 9 OF WORK-RELATED CASES OF COVID–19. 10 The Director of the Centers for Disease Control and 11 Prevention, in conjunction with the Director of the Na- 12 tional Institute for Occupational Safety and Health, 13 shall— 14 (1) collect and analyze case reports, including 15 information on the work status, occupation, and in- 16 dustry classification of an individual, and other data 17 on COVID–19, to identify and evaluate the extent, 18 nature, and source of COVID–19 among employees 19 in the occupations and sectors described in subpara- 20 graphs (A) through (C) of section 2(a)(1); 21 (2) investigate, as appropriate, individual cases 22 of COVID–19 among such employees to evaluate the 23 source of exposure and adequacy of infection and ex- 24 posure control programs and measures; 25 VerDate Sep 11 2014 18:43 May 22, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3677.IS S3677 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 3677 IS (3) provide regular periodic reports on COVID– 1 19 among such employees to the public; and 2 (4) based on such reports and investigations, 3 make recommendations on needed actions or guid- 4 ance to protect at-risk employees from COVID–19. 5 Æ VerDate Sep 11 2014 18:43 May 22, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6301 E:\BILLS\S3677.IS S3677 pamtmann on DSKBC07HB2PROD with BILLS