OSHA Withdraws Most of Its COVID-19 Healthcare ETS
On December 27, 2021, the Occupational Safety and Health Administration (“OSHA”) announced its intention to soon issue “a final standard that will protect healthcare workers from COVID-19 hazards” in line with its earlier Healthcare Emergency Temporary Standard (“Healthcare ETS”).
Recall that on June 21, 2021, OSHA promulgated the Healthcare ETS to provide protections in all settings where any employees provide healthcare services or healthcare support services. Recently, there has been confusion over whether the temporary standard has a firm expiration date. An OSHA ETS does not automatically expire 6 months after being issued; instead, 6 months is the timeframe contemplated in the OSH Act for the agency to issue a permanent standard on the topic covered by the ETS.
Citing the rising concerns over the spread of COVID-19 variants, OSHA announced its intent to finalize the Healthcare ETS. However, the agency recognized that a final rule for healthcare workers could not be completed within the 6-month timeframe contemplated by the OSH Act. Due to this timing issue, OSHA announced it would be withdrawing the non-recordkeeping portions of the Healthcare ETS. Note, however, that the COVID-19 log requirements and reporting provisions of the Healthcare ETS (29 CFR 1910.502(q)(2)(ii), (q)(3)(ii)-(iv), and (r)) will remain in effect.
At this time, OSHA “strongly encourages all healthcare employers to continue to implement the ETS’s requirements in order to protect employees” from COVID-19 hazards. Until a rule is finalized, the agency also stated its plans to “vigorously enforce the general duty clause and its general standards, including the Personal Protective Equipment (PPE) and Respiratory Protection Standards, to help protect healthcare employees from the hazard of COVID-19.” OSHA stated that compliance with the Healthcare ETS would satisfy an employers’ obligations under the OSH Act.
What This Means for Employers
While the COVID-19 Healthcare ETS has not expired by operation of law, OSHA has withdrawn a significant portion of the standard (i.e., all provisions other than the recordkeeping requirements). However, some of the Healthcare ETS remains intact for those workplaces where employees provide healthcare services or healthcare support services. Those settings subject to the Healthcare ETS will not be subject to OSHA’s temporary standard from November 5, 2021 which mandated COVID-19 vaccination or testing for employers with 100 or more employees. This is because OSHA’s Vaccination or Testing ETS specifically states it does not apply to any employer subject to 29 CFR §1910.502 (the Healthcare ETS).
As a reminder, the U.S. Supreme Court will hear oral arguments on stays issued for both OSHA’s Vaccination or Testing ETS and the Centers for Medicare & Medicaid Services’ (“CMS”) COVID-19 Vaccine rule on January 7, 2022. While the results will not directly affect OSHA’s Healthcare ETS, the Supreme Court’s decision may provide valuable insight into the ability of Executive Branch agencies (like OSHA) to issue vaccination mandates.
With changes to the Healthcare ETS following OSHA’s announcement, impacted employers may consider revisiting their COVID-19 plans. It is important to keep the COVID-19 Healthcare ETS’s recordkeeping provisions in place. Also note that OSHA will continue to inspect healthcare employers and may issue citations under the agency’s General Duty Clause for “recognized hazards” that may result in serious injury/illness or death to an employee. To issue such a citation, OSHA needs to prove that the employer or its industry recognized something as being a hazard—which may be shown, for example, if a healthcare employer deviates from the Healthcare ETS in a manner resulting in hazards to the employee. OSHA has stated that continued compliance with the Healthcare ETS would satisfy employers’ obligations under the OSH Act and the General Duty Clause.