On March 22, 2022, the US Occupational Safety and Health Administration (OSHA) announced a limited reopening of the rulemaking record for the COVID-19 emergency temporary standard for the healthcare industry, originally published on June 21, 2021 (the Healthcare ETS), and OSHA’s intention to hold an informal public hearing to gather certain additional information from healthcare industry stakeholders. With the announcement, OSHA reaffirmed its plans to publish a permanent COVID-19 safety standard (i.e., regulation) for the healthcare industry later this year.
As with the Healthcare ETS, the permanent regulation is intended to protect healthcare and healthcare support service workers from occupational exposure to COVID-19 in settings where people with COVID-19 can be reasonably expected to be present.
Currently, OSHA does not have any COVID-19 focused regulations as the Healthcare ETS expired in December 2021. OSHA voluntarily withdrew its controversial “vax-or-test” ETS after the Supreme Court of the United States enjoined its enforcement in January 2022.
However, the 2021 Healthcare ETS’s recordkeeping obligations remain in effect, which require healthcare employers to record all workplace instances of COVID-19 on the OSHA 300 logs.
NO FURTHER CLARITY ON OSHA’S COVID-19 ENFORCEMENT INITIATIVE
OSHA did not provide further clarification on how the permanent standard might overlap with its new enforcement initiative, effective March 9, 2022, through June 9, 2022, to increase OSHA’s presence in healthcare settings at high risk for COVID-19 transmission. It is expected that the permanent COVID-19 standard and the enforcement initiative will remain separate.
OSHA will reopen the regulation for public comment from March 23, 2022, through April 22, 2022. Public comments on this rulemaking (Docket Number OSHA-2020-0004) can be submitted via the Federal e-Rulemaking Portal.
The hearing will begin on April 27, 2022, and will be held virtually.
Interested persons who intend to provide oral testimony or documentary evidence at the hearing must file a written notice of intention to appear prior to the hearing using the Notice of Intention to Appear (NOITA) web form no later than 14 days after the publication of the Federal Register Notice.
Before the hearing, OSHA will make the hearing procedures and hearing schedule available on its website and in the rulemaking docket.
STATE OSHA PLANS
As with all other OSHA standards, the 22 states with OSHA-approved State Plans will be required to adopt a healthcare industry COVID-19 safety standard that is at least as protective as OSHA’s standard.
Healthcare and healthcare support service employers should continuously monitor their COVID-19 safety procedures to avoid falling behind on preparations for the upcoming permanent COVID-19 safety standard. In keeping with existing standards—such as the bloodborne pathogens standard, personal protective equipment (PPE) standard, respirator rules and others—this permanent COVID-19 safety standard is expected to require employers to maintain a safety plan, provide periodic training for employees on COVID-19 safety in the workplace, and clarify PPE expectations in the COVID-19 context, among other requirements.
Affected employers should consult with their McDermott lawyer to ensure they remain in compliance with the latest COVID-19 safety standards under OSHA and other applicable laws.