Upcoming OSHA COVID-19 rule aims to protect construction workers

Healthcare employers still on the hook

OSHA said it wants to require healthcare employers to notify construction employers of site-specific COVID-19 hazards and keep COVID-19 patients away from construction workers. These duties would rely on a requirement for a healthcare employer to share its written COVID-19 plan in order to enable a construction employer to identify appropriate means of abatement for its construction workers entering the setting.

OSHA poses two construction options

The coverage of construction work at healthcare facilities is a sticking point for the OSHA rulemaking writers. Specifically, regarding the duties of the construction employer, OSHA asked the ACCSH membership whether the agency should:

1. Clarify in the preamble to the final rule that construction employers are obligated to protect their workers from site hazards (including COVID-19) under existing 29 CFR 1926 Subpart C; or
2. Require construction employers to meet 29 CFR 1910.502, including mandates for construction employers to write a COVID-19 plan and take other protective measures, but only if that employer has workers in construction jobs not fully segregated from COVID-19 hazards.

Other protective measures under §1910.502 would include, but are not limited to, respiratory protection, physical distancing and barriers, cleaning and disinfection, ventilation, medical management, vaccination support, training, anti-retaliation, recordkeeping, and reporting.

Option 2 offered an exemption for locations fully segregated from COVID-19 hazards. Yet the term “segregated” is not defined by OSHA but “could” include floor-to-ceiling barriers and separate ventilation, in accordance with Centers for Medicare & Medicaid Services regulations on not allowing dust/fumes to escape construction areas.

The ACCSH vote

After a lengthy debate, ACCSH members voted in favor of recommending option 1, not option 2, to OSHA. Fourteen members were in favor of option 1, while only five sided with option 2. The representative for state-plan states abstained his vote, and some members voted for both options.

What about maintenance?

Note that OSHA still intends to cover maintenance work (e.g., plumbing repairs in patient rooms) under §1910.502. OSHA admits that there can be challenges distinguishing between maintenance (i.e., work covered under 29 CFR 1910) and construction (i.e., work covered under 29 CFR 1926) that have led to confusion about the extent to which these activities/employers will be covered by one CFR part or the other. However, ACCSH members felt that this is nothing new for construction employers and has been a gray area long before the pandemic.