The Occupational Safety and Health Administration (OSHA) is preparing to implement a permanent COVID-19 safety standard for healthcare employers, nearly three years after the pandemic first emerged in the United States.
OSHA has not issued any COVID-specific regulations for employers in the healthcare industry as of the June 19, 2021, Emergency Temporary Standard (ETS). Because the ETS was temporary in nature, it expired after six months. The only remaining component of the ETS in effect is the record-keeping requirement, which requires employers to create and maintain a COVID-19 registry to record cases of COVID-19 on their premises. OSHA subsequently announced in March 2022 its intention to participate in permanent rule-making and is now in the final stages of that process. Although the text of the rule is not public, the standing rule is expected to reflect the educational testing system in some ways and change to reflect the dynamic nature of the COVID-19 pandemic in other ways.
During the notice and comment period for permanent rule-making, OSHA has been soliciting feedback from the organizing community. Based on its public comments and press releases, OSHA seems likely to enact a permanent standard with some deviations from ETS based on the evolving nature of the COVID-19 virus and guidance around preventing its spread. Simply put, both the virus itself and the recommended mitigation strategies have changed since ETS, so it is likely that the OSHA rule will reflect these changes. Possible changes are expected to include:
- Align the final rule with Centers for Disease Control and Prevention (CDC) recommendations regarding COVID-19, including isolation and return-to-work guidelines.
- Develop broader objective requirements rather than detailed and specific requirements to address issues such as cleaning, ventilation or the use of barriers, which would allow employers to adjust to changing government guidance.
- Design controls and requirements according to some specific real-world circumstances rather than requiring the same controls regardless of local infectious disease cases.
- Consider the continued need for vaccinations by deleting the concept of “fully vaccinated” from the final rule, and requiring employer support to obtain vaccinations.
- Certain requirements, including masking and physical distancing, may be relaxed depending on vaccination rates among all employees and/or the general community.
- Implement a time limit of one year from the date of last entry for COVID-19 record retention.
- The presence of a record cover potential new strain originated from the current COVID-19.
The Occupational Safety and Health Administration (OSHA) has also stated that it does not intend to introduce any type of vaccination mandate. While OSHA has suggested that there will be some changes in the requirements of the standard compared to the ETS, some requirements are also expected to remain. For example, the standard would likely focus on the importance of HVAC and ventilation improvements, removing infectious people from the workplace, training employees in the signs and symptoms of COVID-19, and recording and reporting COVID-19 infections that occur among employees.
The rule is subject to review by the Office of Information and Regulatory Affairs (OIRA). The final rule will be published after the conclusion of the OIRA review. Healthcare related companies should be ready to reactivate any pre-existing plan that had to comply with ETS if any/all of their protocols are shelved, and those who have maintained protocols will need to adjust based on any nuances in the permanent standard . Covered employers who do not comply with ETS should prepare to quickly develop a plan to be ready for implementation.
Susan F. Wiltsey and Stephen B. Kobstein are attorneys with Hunton Andrews Court in Washington, D.C. Riley Moore is an attorney with Hunton Andrews Kurth in Richmond, Virginia © 2023 Hunton Andrews Kurth. All rights reserved. Reposted with permission.