By Conn Maciel Carey’s COVID-19 Task Force
Nearly 16 months after the pandemic began, federal OSHA revealed its COVID-19 Emergency Temporary Standard (the ETS) that imposes a series of requirements on healthcare employers. While OSHA’s issuance of an ETS comes as no surprise to many who have been tracking the agency since Pres. Biden’s inauguration, the fact that it applies only to the healthcare sector and not to all industries is not what we expected. Looking back, the promulgation of an ETS applicable to all workplaces seemed a foregone conclusion when President Biden took office in January and issued an Executive Order that same day directing OSHA to update its COVID-19 guidance, adopt a COVID-19 National Emphasis Program, evaluate whether an ETS was necessary and, if so, issue the ETS on or before March 15, 2021.
On April 27, 2021, OSHA delivered to the White House Office of Management and Budget (OMB) an ETS, which, by all accounts, was a broad rule applicable to all industries, but because this was an emergency rulemaking, the proposed regulatory text was not available to the public. In the weeks that followed, the Office of Information and Regulatory Affairs (OIRA), within OMB, hosted a series of meetings to hear from stakeholders regarding a proposed rule they had not seen. On behalf of the Employers COVID-19 Prevention Coalition, Conn Maciel Carey organized and led two OIRA meetings at which we and our coalition members provided input and recommendations to OSHA and OMB. As the meetings continued, the success of the vaccine rollout became clearer, with a corresponding drop in COVID-19 cases, hospitalizations, and deaths, and then came the Centers for Disease Control (“CDC”) game-changing guidance on May 13, 2021 relaxing protocols for vaccinated individuals. All of this caused many to question whether an OSHA ETS was still necessary. With conditions on the ground improving rapidly, we continued to help stakeholder schedule and participate in OIRA meetings to argue that a general industry ETS was no longer needed.
On June 10, 2011, after more than 50 OIRA meetings, a final ETS applicable only to the healthcare industry was sent to the Office of the Federal Register for publication. The standard appears at 29 C.F.R. Section 1910.502, and will appear in the Federal Register within a couple of weeks.
Explaining the purpose of the ETS for Healthcare, U.S. Secretary of Labor Marty Walsh offered this statement: Continue reading