Employment Law Report

OSHA Rulemaking on Permanent Healthcare COVID-19 Standard

By: Julie Laemmle Watts

The Occupational Safety and Health Organization (“OSHA”) has partially reopened the comment period for its rule on Occupational Exposure to COVID-19 in Healthcare Settings, the permanent healthcare COVID-19 standard, which was published in the Federal Register on March 23, 2022. Comments are due by April 22, 2022 and an online hearing will be held on April 27, 2022. Anyone wishing to testify must submit their notice of intention to appear no later than April 6, 2022.

OSHA is seeking additional comments on specific topics that would depart from the provisions of its COVID-19 Healthcare Emergency Temporary Standard (“ETS”), including:

  • Alignment with Centers for Disease Control and Prevention (“CDC”) Recommendations for Healthcare Infection Control Practices

OSHA is considering whether it is appropriate to align its final rule with some or all of the CDC recommendations that have changed between the close of the original comment period for this rule and the close of this comment period.

  • Additional Flexibility for Employers

OSHA is considering restating various provisions as broader requirements without the level of detail included in the Healthcare ETS and providing a ‘safe harbor’ enforcement policy for employers who are in compliance with CDC guidance applicable during the period at issue.

  • Removal of Scope Exemptions (e.g., ambulatory care facilities where COVID-19 patients are screened out; home healthcare)

OSHA is considering whether the scope of the final standard should cover employers regardless of screening procedures for non-employees and/or vaccination status of employees to ensure that all workers are protected to the extent there is a significant risk.

  • Tailoring Controls to Address Interactions with People with Suspected or Confirmed COVID-19

OSHA is considering the need for COVID-19-specific infection control measures in areas where healthcare employees are not reasonably expected to encounter people with suspected or confirmed COVID-19.

  • Vaccination

OSHA is considering how [the Advisory Committee on Immunization Practices (‘ACIP’)] and CDC recommendations [on doses] might impact the requirements in the ETS that take account of individuals’ vaccination status . . . . OSHA is not considering at this time requiring mandatory vaccination for employees covered by this standard. . . . OSHA is considering an adjustment to the requirement that would include paid time up to 4 hours, including travel time, for employees to receive a vaccine and paid sick leave to recover from side effects . . . . OSHA is considering requiring employer support for employees who wish to stay up to date on vaccination and boosters in accordance with ACIP and CDC recommendations. . . . OSHA is considering whether to limit the provisions that provide support for vaccination to employees not covered by the Centers for Medicare & Medicaid Services (CMS) vaccination rule . . . . OSHA is considering suggestions that requirements be relaxed for masking, barriers, or physical distancing for vaccinated workers in all areas of healthcare settings . . . , in healthcare settings where a high percentage of staff is vaccinated . . . . , for exposure notification for vaccinated employees.”

  • Limited Coverage of Construction Activities in Healthcare Settings

OSHA is considering clarifying the coverage [for the construction industry in hospitals, long-term care facilities, and other settings covered by the ETS].

  • Recordkeeping and Reporting: New Cap for COVID-19 Log Retention Period

OSHA is focused on whether any adjustments . . . should be made in light of experiences involving the Delta or Omicron variants.

  • Triggering Requirements Based on the Level of Community Transmission

OSHA is considering linking regulatory requirements to measures of local risk, such as CDC’s community transmission used in CDC’s guidance for healthcare settings or the CDC’s COVID-19 Community Levels used in CDC’s guidance for prevention measures in community settings.

  • Evolution of SARS-CoV-2 into a Second Novel Strain

OSHA is considering specifying that this final standard would apply not only to COVID-19, but also to subsequent related strains of the virus that are transmitted through aerosols and pose similar risks and health effects.

Healthcare employers should continue to comply with the terms of OSHA’s COVID-19 Healthcare ETS until a permanent standard is in place. Contact a member of Wyatt’s Labor and Employment team for additional information and assistance.

Julie Laemmle Watts
Julie Laemmle Watts is a member of the Firm’s Litigation & Dispute Resolution, Labor & Employment and Intellectual Property Protection & Litigation Service Teams. She concentrates her practice in the areas of commercial disputes, trademark and copyright transactions and litigation work, healthcare litigation and employment matters. Read More