Hey Compliance Warriors!

OSHA announced, on December 27th, 2021, that it 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.

However, given that OSHA anticipates a final rule cannot be completed in a timeframe approaching the one contemplated by the OSH Act, OSHA also announced that it is withdrawing the non-recordkeeping portions of the healthcare ETS.

The COVID-19 log and reporting provisions, 29 CFR 1910.502(q)(2)(ii), (q)(3)(ii)-(iv), and (r), remain in effect. These provisions were adopted under a separate provision of the OSH Act, section 8, and OSHA found good cause to forgo notice and comment in light of the grave danger presented by the pandemic. See 86 FR 32559.

With the rise of the Delta variant this fall, and now the spread of the Omicron variant this winter, OSHA believes the danger faced by healthcare workers continues to be of the highest concern and measures to prevent the spread of COVID-19 are still needed to protect them. Given these facts, and given OSHA’s anticipated finalization of this rule, OSHA strongly encourages all healthcare employers to continue to implement the ETS’s requirements in order to protect employees from a hazard that too often causes death or serious physical harm to employees.

As OSHA works towards a permanent regulatory solution, OSHA will vigorously enforce the general duty clause and its general standards, including the Personal Protective Equipment (PPE) and Respiratory Protection Standards, to help protect healthcare employees from the hazard of COVID-19. The Respiratory Protection Standard applies to personnel providing care to persons who are suspected or confirmed to have COVID-19. OSHA will accept compliance with the terms of the Healthcare ETS as satisfying employers’ related obligations under the general duty clause, respiratory protection, and PPE standards.

Continued adherence to the terms of the healthcare ETS is the simplest way for employers in healthcare settings to protect their employees’ health and ensure compliance with their OSH Act obligations.

OSHA believes the terms of the Healthcare ETS remain relevant in general duty cases in that they show that COVID-19 poses a hazard in the healthcare industry and that there are feasible means of abating the hazard. OSHA plans to publish a notice in the Federal Register to implement this announcement.

OSHA “strongly urges” continued compliance with the withdrawn standard, promising to use the discontinued requirements of the Healthcare ETS to “vigorously enforce” the General Duty Clause, a “catch-all” provision of the OSH Act covering hazards not addressed in promulgated standards. OSHA also promised to renew enforcement of general standards governing respiratory protection and personal protective equipment.

Next Steps for Healthcare Employers

Considering the aggressive posture OSHA has taken with healthcare employers throughout the pandemic, healthcare employers would be wise to heed OSHA’s warning and continue to follow the rescinded Healthcare ETS as best practices for mitigating COVID-19 in the workplace. They should also be aware that they must continue to maintain COVID-19 logs of positive COVID-19 cases of employees, regardless of whether those cases are work-related (for employers with more than 10 employees) and report work-related COVID-19 inpatient hospitalizations within 24 hours and work-related fatalities within eight hours of learning of such events to OSHA (regardless of the number of employees). In addition, according to OSHA’s FAQs for its vaccine-or-test ETS, healthcare employers with at least 100 employees are required to comply with OSHA’s vaccine-or-test ETS because the Healthcare ETS is no longer in effect.

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