This Healthcare ETS was issued back in June 2021 in response to President Biden’s Day 1 OSHA Executive Order. Recall that this was the ETS that had been crafted by OSHA to apply to all employers in all industries, but as it was being finalized in late Spring, when it looked like we might just be approaching the end of the pandemic, the Administration decided to narrow the scope to just the healthcare industry. That ETS was what we call a “programmatic” standard; requiring the development of a comprehensive COVID-19 prevention program, complete with an array of required engineering and administrative controls. When the Healthcare ETS was issued, OSHA noted on its webpage for the ETS that it expected the ETS to be in effect for six months from the date of publication — until December 21, 2021.
December 21st came and went without any word from OSHA. But on Monday of last week, , six days after the Healthcare ETS’s six-month anniversary, OSHA issued a statement that:
“[while OSHA] intends to continue to work expeditiously to issue a final standard that will protect healthcare workers from COVID-19 hazards, and will do so as it also considers its broader infectious disease rulemaking[,]” it is “withdrawing the non-recordkeeping portions of the healthcare ETS. The COVID-19 log and reporting provisions … remain in effect.”
On June 10th, federal OSHA finally revealed its much anticipated COVID-19 Emergency Temporary Standard (ETS), but rather than a rule applicable to all industries, OSHA developed a regulation that is narrowly tailored only to certain healthcare settings. For everyone else, federal OSHA simultaneously published significant updates to its workplace COVID-19 guidance that it had originally prepared in Jan. 2021 in response to President Biden’s Day 1 OSHA Executive Order.
The COVID-19 ETS, and its 900+ page Preamble, is a dizzying piece of regulation. While there are lots of generalizations about how it applies only to hospital settings, there are quirks in the Applicability section that could sweep in other employers, including on-site medical clinics at manufacturing plants, COVID-19 testing facilities in otherwise non-healthcare workplaces, and general facilities support at healthcare locations, such as maintenance, housekeeping, and laundry services. And in terms of substantive provisions, the ETS does depart from the COVID-19 landscape we have all grown accustomed to over the past year and a half – the ETS requires creation of new roles, will likely require updates to written prevention plans and training, may require new engineering installations and work on HVAC systems, and will definitely affect record making, recordkeeping, and reporting policies.
The updated guidance for all other industries will also likely result in material changes to the way employers are managing the COVID-19 crisis in the workplace. However, those will be mostly welcome changes, as, at its core, OSHA’s updated guidance aligns OSHA’s recommendations with the CDC’s May guidance regarding dropping masks and distancing for fully vaccinated workers. But the devil is in the details.