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. Continue reading →
OSHA will accept comments on the proposed permanent standard through April 22, 2022, and has scheduled a public hearing on the rulemaking for April 27th.
Below we provide some important background and recommendations on next steps to ensure the healthcare industry and other potentially impacted employers maximize this opportunity to influence the direction and outcome of the permanent COVID-19 rulemaking.
Importantly, we also identify below a potentialmajor expansionof the scope of coverage of the standard that OSHA is contemplating. OSHA is explicitly considering eliminating the coverage exemption that had been included in the COVID-19 Emergency Temporary Standard for Healthcare (the ETS) for those ambulatory care, non-hospital settings where some healthcare services are provided, but that screen individuals for COVID-19 before entry and prevent COVID-19 infected individuals from entering. If that exemption is not carried forward from the ETS into the permanent standard, then general industry manufacturers that have medical clinics onsite; dental and other doctors’ offices; retail pharmacies; etc. will be pulled into coverage under the permanent standard; i.e., any employer that operates any type of facility where any form of healthcare services are provided could be regulated by the permanent standard. It is imperative, therefore, that potentially impacted employers participate in this rulemaking.
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.”