Update on the Timeline for OSHA to Finalize the Permanent COVID Rule for Healthcare

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

BREAKING – OSHA Reopens Rulemaking for a Permanent COVID-19 Standard for Healthcare (Expanded Scope)

By Conn Maciel Carey LLP’s COVID-19 Task Force

After OSHA just recently initiated a three-month COVID-19 focused enforcement blitz targeting the healthcare industry, earlier this week, on March 22nd, OSHA announced that it has officially reopened the rulemaking record for a “permanent” COVID-19 standard applicable to the healthcare industry, and perhaps now some industries tangentially related to healthcare.

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 potential major expansion of 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.

Why is OSHA Partially Reopening the Rulemaking? Continue reading

BREAKING – OSHA Launches New COVID-19 Enforcement Blitz for Healthcare Employers

By Conn Maciel Carey LLP’s COVID-19 Task Force

On Tuesday, March 8th, OSHA announced a major COVID-19 enforcement blitz in the healthcare industry that will last for the next three months.  OSHA issued an enforcement memorandum announcing the enforcement program, which OSHA is referring to as a major “saturation effort,” to ensure that hospitals and others in the healthcare industry have appropriate COVID-19 mitigation protocols in place to protect workers today and are prepared for a future variant.  The program will be comprised of a short-term burst of highly-focused inspections directed at hospitals and skilled nursing care facilities that treat COVID-19 patients.  Below is a summary of who is covered, when the enforcement effort will end, the impact on State OSH Plans, and what to expect during the inspections.

OSHA states that the goal of this inspection program is to expand its presence to ensure continued mitigation of the spread of COVID-19 and preparation for future variants of the SARS-CoV-2 virus, and to protect the health and safety of healthcare workers at heightened risk for contracting the virus.  New Assistant Secretary of Labor for OSHA Doug Parker stated:

“We are using available tools while we finalize a healthcare standard….  We want to be ahead of any future events in healthcare.”

OSHA plans to conduct as many as 1,000-1,500 inspections in the next 90 days to determine whether hospital and other healthcare workers are being adequately protected from COVID-19 spread at work.  The inspections will last 2-4 days and will focus on what had been the major elements of OSHA’s COVID-19 Emergency Temporary Standard for Healthcare.  The OSHA resources designated for this enforcement blitz and the revised COVID-19 National Emphasis Program (NEP) will comprise at least 15% of OSHA’s enforcement activity for the year.

Who is Covered by the Enforcement Effort?

The initiative supplements OSHA’s targeted enforcement under the Revised COVID-19 NEP [DIR 2021-03 (CPL 03)], by conducting focused, partial follow-up and monitoring inspections of previously inspected or investigated hospitals and skilled nursing care facilities within four North American Industry Classification System (NAICS) codes listed in the enforcement memorandum, where COVID-19 citations or Hazard Alert Letters were issued, including remote-only inspections where COVID-19-related citations were issued.  Specifically, facilities in the four NAICS codes listed below may be selected for inspections under the initiative if they meet one of the following criteria: Continue reading

OSHA Withdraws Its Vaccinate-or-Test ETS, But Continues Rulemaking for Two Permanent COVID-19 Rules

By Conn Maciel Carey LLP’s COVID-19 Task Force

Earlier today, January 26, 2022, OSHA published in the Federal Register a Notice of Withdrawal of its COVID-19 Vaccination, Testing, and Face Covering ETS.  After the Supreme Court’s January 13th decision in Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor reinstituting the Stay of the ETS, the writing was on the wall for OSHA’s vaccinate-or-test ETS, but today’s announcement made it official.  The Notice of Withdrawal does not call for comment, as it is “impracticable, unnecessary, and contrary to the public interest.”  OSHA further explained that it would unnecessarily delay the resolution of ambiguity for employers and workers.  So that’s that for the Vaccinate-or-Test ETS, effective immediately.

Nevertheless, this dead horse may be in store for some more beating.  As you know, the day the ETS was published in the Federal Register back in November, pursuant to Sec. 6(c)(3) of the OSH Act, it became the “proposed rule” in a rulemaking that automatically kicked off to establish a permanent replacement vaccinate-or-test standard.  In OSHA’s other big announcement today, the agency indicated that it has not withdrawn that rulemaking.  Rather, OSHA declared its intent to move forward with a permanent rulemaking.

This was yet another fascinating development in this roller coaster.  While we anticipated that OSHA would withdraw the vaccinate-or-test ETS to avoid having a full merits adjudication by the Supreme Court that would establish more concrete precedent narrowing OSHA’s rulemaking authority, we continue to be surprised to see that OSHA is continuing on with the permanent rulemaking.

Recall that the Supreme Court did not say that OSHA’s ETS exceeded the agency’s emergency rulemaking authority.  Rather, the Court found that Continue reading

Update on OSHA’s COVID Emergency Rule for Healthcare – And How It Affects the Vaccinate-or-Test ETS

By Conn Maciel Carey’s COVID-19 Task Force

Last week, on December 27th, OSHA announced the withdrawal of most of its COVID-19 ETS for Healthcare, which was the first of the two COVID-19 emergency temporary standards OSHA issued in the first year of the Biden Administration.

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.”

Here is the full statement posted on OSHA’s Healthcare ETS webpage:

Why Did OSHA Withdraw Portions of the Healthcare ETS? Continue reading

Fed OSHA’s COVID-19 ETS: What You Need to Know About Health Screening and Medical Management

By Conn Maciel Carey’s COVID-19 Task Force

Today’s topic on the Fed OSHA COVID-19 ETS is health screening and medical management.

29 C.F.R. Section 1910.502(l) sets forth employee screening, employer/employee notification, medical removal, medical removal protection benefits, and return-to-work requirements.  This summary describes those requirements of the ETS.

A. Employee Screening

Employers have discretion in choosing whether to implement self-monitoring and/or in-person screening.  Employers who choose to have employees self-monitor for COVID-19 symptoms can assist employees in that effort by providing them with a short fact sheet to remind them of the symptoms of concern.  Employers may also consider posting a sign stating that any employee entering the workplace certifies that they do not have symptoms of COVID-19, to reinforce the obligation to self-screen before entering the workplace.

Employers who choose to conduct in-person employee screening for COVID-19 symptoms may use methods such as temperature checks and asking the employee if they are experiencing symptoms consistent with COVID-19.  Employers should conduct this screening before employees come into contact with others in the workplace, such as co-workers, patients, or visitors.

To the extent employers choose to conduct onsite screening, there are important safety considerations to take into account.  Continue reading

New Cal/OSHA Issues that California Employers Must Understand [Webinar Recording]

On April 11th, Andrew J. Sommer and Eric J. Conn of Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding “New Cal/OSHA Issues that California Employers Must Understand.” 

The state of California’s Division of Occupational Safety and Health (DOSH), better known as Cal/OSHA, is perhaps the most aggressive and enforcement-heavy approved state OSH Program in the nation.  California employers face a host of requirements that other employers around the country do not.  Likewise, the Cal/OSHA inspection and appeal process creates several unique landmines for California employers.

In light of new Cal/OSHA standards taking effect in 2017 and others on the horizon, this is the perfect time for companies doing business in the Golden State to revamp their safety programs and take necessary steps to ensure compliance with the latest Cal/OSHA safety regulations.

Participants in this complimentary webinar learned about the following:

  • Cal/OSHA’s New Repeat Violation Rule
  • Cal/OSHA’s New Workplace Violence Rule for Health Care Facilities
  • New Law Mandating the Development of Heat Illness Prevention Regulations for Indoor Workplaces
  • Changes to Cal/OSHA Penalties on the Horizon
  • Other Industry Specific Developments

Here is a link to the recording of the webinar. Continue reading

Cal/OSHA’s Workplace Violence Rules for Health Care Take Effect April 2017

By Andrew J. Sommer and Eric J. Conn

Effective April 1, 2017, a new California Occupational Safety and Health Standards Board (“Standards Board”) regulation at Title 8, Section 3342 requires certain employers in the health care industry to develop and implement a Workplace Violence Prevention Plan.  The passage of these regulations came after nearly two years of meeting and work within the Agency, and more than two years after the California legislature passed Senate Bill 1299, which instructed the Standards Board to implement these workplace violence regulations.

Rules Apply to Health Care Facilities

Senate Bill 1299 only directed the Standards Board to adopt regulations requiring licensed hospitals to adopt violence prevention plans to protect health care workers and other facility personnel from aggressive and violent behavior.  The regulations that were adopted by the Standards Board, however, apply not just to licensed hospitals, but more broadly to any “health facility,” defined as:

“any facility, place or building that is organized, maintained, and operated for diagnosis, care, prevention or treatment of human illness, physical or mental…to which [] persons are admitted for a 24-hour stay or longer.”

Additionally, the regulations apply to the following facilities regardless of their size or how long a patient stays there:

  1. Home health care and home-based hospice;
  2. Emergency medical services and medical transport, including services provided by firefighters and other emergency responders;
  3. Drug treatment programs;
  4. Outpatient medical services to the incarcerated in correctional and detention settings.

Immediate Requirement to Begin Reporting Violent Incidents

Beginning April 1, 2017, every general acute care hospital, acute psychiatric hospital and special hospital generally must report to the Division of Occupational Safety and Health (DOSH) any incident involving Continue reading

A Healthy Dose of OSHA Enforcement Coming to the Healthcare Industry

By Eric J. Conn and Kathryn M. McMahon

On June 25, 2015, the Occupational Safety and Health Administration (OSHA) issued an Enforcement Memorandum entitled: Inspection Guidance for Inpatient Healthcare Settings.  Health Initiative 1The Enforcement Memorandum expands the scope of inspections OSHA will conduct at hospitals, nursing homes and other healthcare facilities as part of an on-going enforcement effort targeting the healthcare industry.

OSHA’s Healthcare Enforcement Initiative

OSHA’s healthcare enforcement initiative covers “Hospitals” (NAICS 622) and “Nursing and residential care facilities” (NAICS 623). It requires all OSHA inspections (whether programmed or in response to an incident of complaint) in the covered industries to include an evaluation of the following five major hazards:

  • Ergonomics (i.e., musculoskeletal disorders from patient/resident handling);
  • Bloodborne pathogens;
  • Workplace violence;
  • Tuberculosis; and
  • Slips, trips and falls.

This initiative follows the April 2015 expiration of the Nursing Home National Emphasis Program, which also focused on similar hazards.

OSHA’s increased scrutiny of the healthcare industry can be attributed to Continue reading