thesynergist | NEWSWATCH
Supreme Court Blocks COVID-19 Vaccination and Testing Standard
On Jan. 13, a 6-3 majority of the United States Supreme Court blocked OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), which required employers with 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy. Under the ETS, employees who chose to remain unvaccinated were required to undergo regular testing for COVID-19 and wear a face covering at work. The ETS also required employers to provide paid time off for workers to get vaccinated and paid leave for workers suffering from side effects of the vaccines, and to maintain records of each test result. In its majority opinion, the Court held that requiring vaccination is an exercise of power that would need to be explicitly granted by Congress and that OSHA had overstepped its authority, which is limited to the workplace. “Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most,” the majority write. “COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather.… Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.” The majority acknowledge OSHA’s authority “to regulate occupation-specific risks related to COVID-19 … [w]here the virus poses a special danger because of the particular features of an employee’s job or workplace.” Such risks would be present for researchers who handle the COVID-19 virus or in workplaces that are particularly crowded, according to the majority. But the opinion states that “OSHA’s indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure.” A concurring opinion by Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito, holds that even if the Occupational Safety and Health Act had granted OSHA the power to mandate vaccination, doing so would have represented “an unconstitutional delegation of legislative authority.” In their dissent, Justices Stephen Breyer, Sonia Sotomayor, and Elana Kagan object to the majority’s characterization of the ETS as a “vaccine mandate” because the standard allows employers to institute a policy of masking and testing instead of vaccination. The dissenting opinion challenges the majority’s finding that the ETS represents an overreach of OSHA’s authority. “OSHA’s rule perfectly fits the language of the applicable statutory provision,” the minority write, which “not just enables, but commands … OSHA to issue an emergency temporary standard whenever it determines” that workers face grave danger in workplaces. In a statement, Secretary of Labor Marty Walsh described the court’s decision as “a major setback to the health and safety of workers across the country.” According to Walsh, “OSHA stands by the Vaccination and Testing Emergency Temporary Standard as the best way to protect the nation’s workforce from a deadly virus that is infecting more than 750,000 Americans each day and has taken the lives of nearly a million Americans.” The Court’s majority, concurring, and dissenting opinions are available as a PDF download.
NIOSH Rescinds Respirator Approvals Issued to ALG Health
NIOSH announced on its website that it has honored a request by ALG Health to voluntarily rescind all respirator approvals issued to the company. As of Jan. 6, 2022, respirators marked with a NIOSH approval label indicating any of the following 13 rescinded approval numbers are no longer NIOSH-approved: TC-84A-9259, TC-84A -9262, TC-84A-9270, TC-84A-9271, TC-84A-9273, TC-84A-9274, TC-84A-9275, TC-84A-9280, TC-84A-9281, TC-84A-9282, TC- 84A-9288, TC-84A-9290, and TC-84A-9292. Due to the voluntary rescission of these approvals, respirators bearing any of the rescinded NIOSH approval numbers may no longer be manufactured, assembled, sold, or distributed. In its announcement, NIOSH urges interested individuals to contact ALG Health for additional details related to the company’s decision to voluntarily rescind the approvals. NIOSH directs users to its Certified Equipment List to confirm testing and certification approval numbers, which are printed on NIOSH-approved respirators.
Flame-Retardant Chemical, Water Disinfection Byproducts Added to Report on Carcinogens
The 15th Report on Carcinogens, a congressionally mandated publication of the U.S. Department of Health and Human Services National Toxicology Program (NTP), was released in December and includes eight new substances: the flame-retardant chemical antimony trioxide, the bacterium Helicobacter pylori (H. pylori), and six haloacetic acids found as water disinfection byproducts. Antimony trioxide and the six haloacetic acids are listed as “reasonably anticipated to be a human carcinogen,” while H. pylori, which colonizes in the stomach and can cause gastritis and peptic ulcers, is described as a known human carcinogen. According to NTP, chronic infection with the bacterium may lead to stomach cancer and lymphoma.
Antimony trioxide is a component of flame retardants used in consumer products including plastics and textiles. The highest exposure to the chemical occurs among workers who produce antimony trioxide or use it to make flame retardants. NTP notes that other people may be exposed to antimony trioxide by breathing outdoor air contaminated with the chemical or dust from the wear and tear of products treated with flame retardants.
The six haloacetic acids found as water disinfection byproducts listed in the 15th Report on Carcinogens are bromochloroacetic acid, bromodichloroacetic acid, chlorodibromoacetic acid, dibromoacetic acid, dichloroacetic acid, and tribromoacetic acid. Haloacetic acids “are formed during the disinfection of water from a reaction between the chlorine-based disinfection agents and organic matter in the source water,” NTP explains.
The 15th Report on Carcinogens and related materials can be found on NTP’s website.
NIOSH Finds Modified EHMRs Meet Exhalation Resistance Performance Requirement
Elastomeric half-mask respirators (EHMRs) with either modified or covered exhalation valves met NIOSH’s performance requirement for exhalation resistance, according to an agency report released earlier this month. The report describes a NIOSH study that tested whether such adjustments increase breathing resistance and concentrations of CO2 inside respirators mounted on a headform. In the modified EHMRs, investigators removed the membranes around the inhalation valves and covered the exhalation valves with duct tape. For covered respirators, investigators used surgical masks positioned over the exhalation valves.
The modified respirators allowed both inhalations and exhalations to pass through the inhalation valve port. While eight of the nine modified EHMR configurations exhibited increased exhalation resistance, all nine passed the NIOSH test. According to the report, removing the membranes resulted in increases in mean inspired CO2 levels ranging from 0.33 to 0.98 percent. At the high end of this range, users may experience discomfort, the report states.
For the covered respirators, the investigators centered the surgical masks over the exhalation valve. Exhalations passed through the valve and were either deflected by the mask or flowed through it. All covered EHMR configurations passed the NIOSH requirement for exhalation resistance without significant increases in inspired CO2.
The study may be useful for manufacturers considering new EHMR designs that eliminate exhalation valves. NIOSH cautions that the study’s scope was limited, assessing only nine EHMR configurations and using small sample sizes. For more information, download the report from the agency’s website.

NIOSH Booklet Provides Solutions for Controlling Dust in Mines
Simple Solutions for Dusty Environments at Metal/Nonmetal Mines, a booklet published by NIOSH in December, is intended to help health and safety professionals control occupational exposures to dust at surface mines and facilities. According to NIOSH, the solutions presented in the booklet can help reduce dust exposures as well as risks for musculoskeletal disorders (MSDs) and traumatic injuries. The booklet lists common contributors to dust exposure and risk factors for MSDs and traumatic injuries, then describes common work tasks and practices at mining operations. For each task or practice, NIOSH describes the associated risk factors, potential problems and accompanying solutions, and suggestions for additional improvements. A separate section of the booklet focused on additional resources provides links to other NIOSH publications covering mine health and safety. For more information or to download the booklet as a free PDF, visit NIOSH’s website.
NIOSH Document Focuses on Field-Based Monitoring for Respirable Crystalline Silica
A document published in January by NIOSH describes how to implement field-based monitoring for respirable crystalline silica using portable Fourier transform infrared spectroscopy (FTIR). The publication is primarily intended for industrial hygienists and allied professionals who have health and safety responsibilities within the mining industry, though NIOSH states that IHs working in other industries may also find it useful. According to the agency, the document is written for users with experience in respirable dust or respirable crystalline silica exposure assessment who do not necessarily have specialized training in analytical techniques. AIHA member Emanuele Cauda, PhD, co-director of the NIOSH Center for Direct Reading and Sensor Technologies, is a coauthor of the new publication.
The document explains that field-based monitoring for respirable crystalline silica can enable timely evaluation of workplace exposures and be a valuable component of control strategies, but that the accuracy of the results depends on field conditions and user diligence. It includes instructions for setting up the equipment and software required for field-based respirable crystalline silica monitoring; technical details of the monitoring method; quality assurance procedures to ensure consistent data; and examples and case studies related to the use of different types of samplers in conjunction with field-based monitoring. Appendices include links to additional resources, operational checklists for field-based monitoring, and a comparison of FTIR data obtained using different methods or parameters.
“Direct-on-Filter Analysis for Respirable Crystalline Silica Using a Portable FTIR Instrument” is freely available to download as a PDF from the NIOSH website.
OSHA Withdraws COVID-19 Emergency Temporary Standard for Healthcare Settings
OSHA has withdrawn the non-recordkeeping portions of its COVID-19 emergency temporary standard (ETS) for healthcare settings, the agency announced in a statement on Dec. 27. The COVID-19 healthcare ETS, which went into effect on June 21, was intended to protect healthcare workers from contracting SARS-CoV-2 in settings where suspected or confirmed COVID-19 patients are treated. Under the Occupational Safety and Health Act, an ETS is effective until superseded by a permanent standard, which is intended to occur within six months of the ETS’ issuance. The agency’s decision to withdraw the ETS is based on its anticipation that a final rule will not be completed during this timeframe. OSHA says it will continue work on a final standard to protect healthcare workers from COVID-19.
Recordkeeping requirements remain in effect because they were adopted under a separate provision of the OSH Act. Due to the agency’s anticipated finalization of the rule, OSHA encourages employers to continue to implement the requirements of the ETS. “Continued adherence to the terms of the healthcare ETS is the simplest way for employers in healthcare settings to protect their employees’ health and ensure compliance with their OSH Act obligations,” the agency states.
The ETS covered an estimated 10.3 million workers, including those in hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in ambulatory care settings. For further details, visit OSHA’s COVID-19 healthcare ETS webpage.
NIOSH Releases Future of Work Initiative Research Agenda
NIOSH has published an agenda outlining the research priorities of its Future of Work Initiative, a program introduced in 2019 to address occupational health and safety research needs related to ongoing and emerging changes in work, the workplace, and the workforce. According to NIOSH, the initiative’s vision is “to prepare the occupational safety and health ecosystem for a safer, healthier, and more productive future.” In support of this vision, the new Future of Work Initiative Research Agenda describes an organized approach for considering safety and health issues affecting workers in the near future, with applications in OHS practice, policy, and capacity-building.
The agenda is intended to assist agency scientists in identifying and prioritizing research output under NIOSH’s current strategic plan. It also informs the wider safety and health community of the agency’s research efforts related to the future of work. NIOSH encourages OHS professionals and other allied or interested groups within academia, government, industry, organized labor, and elsewhere to help address the needs identified within the agenda.
Additional information on the Future of Work Initiative Research Agenda, including a link to download the agenda as a free PDF, can be found on NIOSH’s website.
Four Substances Added to ECHA Hazardous Chemicals List
The European Chemicals Agency (ECHA) announced on Jan. 17 the addition of four hazardous chemicals to its Candidate List of substances of very high concern for authorization. Details about these substances—including hazard classification and labeling information and properties of concern—are available on “infocards” published by ECHA, accessible from the Candidate List webpage. The substances newly added to the list are 6,6'-di-tert-butyl-2,2'-methylenedi-p-cresol; tris(2-methoxyethoxy)vinylsilane; (±)-1,7,7-trimethyl-3-[(4methylphenyl)methylene] bicyclo[2.2.1]heptan-2-one, or 4-MBC; and S-(tricyclo(,6)deca-3-en-8(or 9)-yl O-(isopropyl or isobutyl or 2-ethylhexyl) O-(isopropyl or isobutyl or 2-ethylhexyl) phosphorodithioate.
According to ECHA’s website, the first two of the newly added substances listed above are known to have reproductive toxicity, while the third has persistent, bioaccumulative, and toxic properties. These three chemicals are used in products such as rubbers, lubricants, and plastics. The fourth chemical, 4-MBC, is used in cosmetics and was identified as a substance of very high concern due to its endocrine-disrupting properties.
The Candidate List now contains 223 substances. Identifying a chemical as a substance of very high concern and including it in the Candidate List is the first step of the authorization procedure under REACH, the European Union’s Regulation on Registration, Evaluation, Authorization and Restriction of Chemicals.