OSHA's emergency temporary standard (ETS) requiring healthcare employers to adhere to numerous regulatory requirements addressing COVID-19 was largely withdrawn in December 2021. On June 21, 2022, the U.S. Department of Labor (DOL) published its regulatory agenda forecasting that employers in healthcare settings can anticipate that the Occupational Safety and Health Administration (OSHA) will roll out permanent COVID-19 regulations in September 2022.1 It is expected that many, perhaps most, of the requirements in the ETS will be resurrected in the new final rule. Healthcare employers will be well-served to prepare now to ensure compliance later this year if OSHA, in fact, publishes its new final rule.
OSHA Healthcare Regulations
One year ago, OSHA issued the 900-page healthcare ETS, which will serve as a starting point for its forthcoming permanent COVID-19 healthcare regulations. The healthcare ETS required employers to develop and implement COVID-19 plans that included paid time off for vaccination, social distancing, personal protective gear, physical barriers, ventilation, patient and employee screening, employee training, recordkeeping and reporting. Although the ETS immediately went into effect, the bulk of the emergency regulation was withdrawn in December 2021 when OSHA was unable to meet the six-month deadline to complete a final standard.2
Nevertheless, OSHA strongly recommended employers continue to adhere to all of the terms of the healthcare ETS and has asserted that doing so will offer protection against citations under the General Duty clause, respiratory standard, and PPE standards as they relate to COVID-19. However, the only healthcare ETS regulations that actually remain in effect are the healthcare ETS's log and reporting requirements, found at 29 CFR 1910.502(q)(2)(ii), (q)(3)(ii)-(iv), and (r).
OSHA opened (and has completed) two comment periods on its proposed final rule and held public hearings on a broad range of topics, including the necessity of permanent standards, compliance with CDC recommendations, and the scope of healthcare workers to be covered. Although it is anticipated that the new permanent regulations will be based upon and have similarities to the healthcare ETS, there are also potential differences. By definition, OSHA can only authorize an ETS in limited circumstances in which workers are in "grave danger." Given that a permanent standard will not have such restrictions, it is possible that the new rule will be applicable (or more clearly applicable) to a broader scope of workers in nonemergency situations, such as home healthcare settings and embedded clinics at non-healthcare workplaces (e.g., a clinic at a manufacturing or processing plant). Additionally, OSHA's requested comments and public hearings suggest that the new, permanent healthcare regulations will not include a mandatory vaccination requirement for employees. OSHA also appears to be contemplating allowing more flexibility in implementing required policies in areas where healthcare employees do not encounter people with COVID-19.
Assuming the new regulations are issued in September, it is likely that legal challenges will ensue targeting specific provisions or the new regulations altogether. DWT will continue to monitor OSHA's progress on these regulations and any potential lawsuits, and provide updates as they occur.
Not Just COVID-19 – OSHA Is Considering a Broader Infectious Disease Regulation
The DOL's regulatory agenda also includes a potential infectious disease regulation for healthcare and other high-risk environments that was initially considered in 2010 and is now scheduled for proposed rulemaking in May 2023. OSHA indicates the prospective rule will address safety standards for COVID-19, among other infectious diseases, in workplace settings that include healthcare, emergency response, correctional facilities, homeless shelters, and drug treatment programs. OSHA would first publish a proposed rule, then allow a period for comments. More will be revealed over the next year.
What Will Happen to Healthcare Employers in States with State Plans?
OSHA's forthcoming healthcare regulations will apply immediately to states in which federal OSHA directly enforces the federal Occupational Safety and Health (OSH) Act and its regulations. But approximately half of U.S. jurisdictions, including California, Washington, Oregon, Alaska, and Virginia have state plans that OSHA has approved and, as such, are administered by local state agencies. Any new OSHA regulations will not immediately be enforceable in these "state plan" states. Subject to OSHA oversight and approval, these state plans must adopt rules within six months of the federal regulation's adoption that are either identical to or more protective of employee safety and health than any new federal regulation. Thus, although any new federal OSHA COVID-19 or infectious disease regulations may not immediately apply to healthcare employers in these state-plan jurisdictions, they or something similar to them (and possibly even more restrictive) may apply in short order.
1 In the ETS, OSHA broadly defined "healthcare setting" to include places where practitioners (e.g., doctors, nurses, and dentists) provided healthcare services and where individuals provided healthcare support services, such as patient intake/admission, patient food services, housekeeping, and medical equipment cleaning. However, the ETS included several exceptions, which limited the application to more traditional healthcare settings (e.g., hospitals). As discussed below, OSHA will have a greater ability to define healthcare setting broadly with a non-emergency regulation than it did with the ETS.
2 The OSHA healthcare COVID-19 ETS is not to be confused with OSHA's general industry COVID-19 ETS. The U.S. Supreme Court blocked the enforcement of OSHA's general industry ETS on January 13, 2022, which ruling effectively killed the general industry ETS.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.