It’s been a while since our last update about OSHA’s rulemaking for the permanent COVID-19 rule for healthcare, which is very good news. It was always a possibility that by the time OSHA got around to finalizing and issuing its permanent COVID-19 regulation that the pandemic would be in such a state that it would not make any practical, health, or political sense to actually issue the rule. But that does not appear to be OSHA’s thinking right now, or the thinking of the DC Circuit and the nurses unions that continue to push OSHA to finalize the rule.
According to a sworn statement by Assistant Secretary of Labor for OSHA Doug Parker on July 25, 2022, OSHA remains “on track” to complete its long-term COVID-19 safety healthcare standard in September to October of 2022. This is consistent with OSHA’s January 2022 statement that it intended to develop a permanent COVID-19 standard for healthcare workers within six to nine months.
Assistant Secretary Parker’s statement appears to be a reaction to inconsistent testimony from Secretary of Labor Marty Walsh before the Senate Appropriations Committee on June 15, 2022. There, Secretary Walsh testified that OSHA would finalize the standard in three to six months, which sounded like a shift in OSHA’s target issuance date to later in the year or even next year.
As a result of that testimony, the petitioners in In re: National Nurses United (NNU), et al., filed a motion to inform the DC Circuit and to supplement the record over what it complained was further delay in OSHA’s timeline for promulgating the final rule. The petitioners had filed suit asking the federal court to mandate that OSHA resume implementation of the earlier Emergency Temporary Standard and follow-through on finalizing a permanent rule. The DC Circuit has heard oral argument on the case, but has not ruled yet, likely because OSHA had assured the court that it would finalize the rule by this Summer.
Assistant Secretary Parker’s sworn statement was clearly in response to the petitioner’s motion, and an effort to assure the DC Circuit that despite Secretary Walsh’s June testimony, OSHA was still on track to meet the timeline it had represented to the court. He explained that OSHA’s experience during the pandemic had been one of unpredictability, and that changes in science or the course of the pandemic could require the Agency to reevaluate their decisions. Parker suggested that Walsh’s remarks were simply allowing time for potential setbacks that might force OSHA to alter their timeline, but that the September to October deadline remains OSHA’s expectation for completion of the rule.
To date, however, OSHA has not delivered a proposed final rule to OMB. We will continue to monitor OMB’s docket for any sign of that, and will take steps to secure a meeting (or multiple meetings) with OMB to advocate for the positions we have staked out in the written comments we submitted and at the rulemaking hearings in which our firm participated earlier this year.