OSHA Seeks Comments on Proposed Final Rule to Protect Health Care Workers from COVID-19

Allen Smith, J.D. By Allen Smith, J.D. March 22, 2022
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​On March 22, the Occupational Safety and Health Administration (OSHA) reopened the comment period on its proposed final rule to protect health care workers from COVID-19, indicating that the department is considering relaxing some of the standards from what it initially recommended.

Phillip Russell, an attorney with Ogletree Deakins in Tampa, Fla., called OSHA's announcement "a big deal for health care industry employers. OSHA is announcing it will be promulgating a permanent standard through the regular rulemaking process instead of using the emergency temporary standard (ETS) process it used in 2021. This announcement is an opportunity for employers to have a say about what the rule might contain."

All but the record-keeping requirements of the ETS for health care workers—a standard that was introduced in June 2021—expired in December 2021. OSHA is now seeking to implement a final rule.

Safe Harbor

"Some employers expressed concern that the provisions of the health care ETS were overly prescriptive," the agency said. The health care ETS required employers to create a written plan to identify and control COVID-19 workplace hazards and to implement certain measures to reduce workplace transmission of COVID-19. Unlike a subsequent ETS from OSHA for large employers, which failed to pass muster before the Supreme Court, this ETS did not have a vaccine-or-testing requirement.

"OSHA is considering restating various provisions as broader requirements," the agency stated, adding that it might provide a safe harbor enforcement policy for employers that comply with guidance from the U.S. Centers for Disease Control and Prevention (CDC).

The safe harbor is a "wonderful incentive for health care providers to comply with CDC guidance," said Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City. "The hard part will be staying up-to-date with CDC guidance."

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Greater Flexibility

OSHA also is considering whether COVID-19-specific infection control measures are needed in areas where health care employees don't encounter people with COVID-19. "This could include eliminating certain requirements that were included in the health care ETS and that applied to all areas of covered health care settings," the agency said.

For example, OSHA might impose cleaning requirements or medical removal provisions only for staff exposed to COVID-19 patients. The agency also might eliminate face mask requirements for staff not exposed to COVID-19 patients.

"It appears that employers are going to have more flexibility to implement the requirements of the permanent standard than they did with the ETS," said Nick Hulse, an attorney with Fisher Phillips in Charlotte, N.C. "This flexibility will be good news for employers, as every employer's situation is different, and the flexibility will allow them to determine the most effective manner to comply."

'Outbreak Provision'

If OSHA does restrict infection control requirements to particular areas of a facility or particular staff, it may consider balancing that narrower scope with a new "outbreak provision," it announced. This provision would ensure that health care employers would still have a duty to address an outbreak quickly if an outbreak occurred among staff in areas normally subject to fewer requirements, the agency explained.

For example, an outbreak could trigger a requirement for an employer to implement additional infection control measures or employer-provided testing and the medical removal of staff with COVID-19, even if they don't interact with COVID-19 patients.

Requirements for Vaccinated Workers

OSHA is not considering requiring mandatory vaccinations for employees who will be covered by this standard, the agency said.

Nonetheless, health care employees who work at Medicare- and Medicaid-certified providers and suppliers must be vaccinated, according to a Centers for Medicare & Medicaid Services rule that the U.S. Supreme Court allowed to proceed in states that challenged the directive.

OSHA is considering relaxing the health care standards requirements:

  • For masking, barriers or physical distancing for vaccinated workers in all areas of health care settings, not just where there is no reasonable expectation that someone with COVID-19 will be present.
  • In health care settings where a high percentage of staff is vaccinated.
  • For exposure notification for vaccinated employees.

Record-Keeping and Reporting

OSHA asked whether the COVID-19 log and reporting provisions should be adjusted in light of experiences involving the delta or omicron variants.

"In addition, the agency proposes to cap the record retention period for the COVID-19 log at one year from the date of the last entry in the log, rather than the current approach in which that retention period is tied to the duration of the standard," the agency said.

Evolution of a Second Strain

A future variant of the coronavirus might be designated another strain but still result in a disease similar to the current illness, such as a hypothetical "COVID-22," the agency noted.

"OSHA is considering specifying that this final standard would apply not only to COVID-19 but also to subsequent related strains of the virus that are transmitted through aerosols and pose similar risks and health effects," the agency stated.

Additional Information on Delta and Omicron Variants Sought

OSHA requested new studies or data related to the delta and omicron variants, including about:

  • The average number of days health care workers have taken away from work due to a COVID-19 infection or quarantine and the percentage of health care workers who have taken days away from work due to COVID-19.
  • The percentage of health care workers who are at elevated risk of severe COVID-19 infections.
  • The health effects and transmission rates of new and emerging variants and sublineages of variants, including omicron BA.2.

OSHA also sought information on:

  • Vaccination rates among health care workers, including the rate of health care workers who are fully vaccinated and boosted.
  • The clinical indicators that can reliably predict the degree of protection afforded by prior infection and how long such protection lasts.
  • Unintended consequences, such as decreases in staffing retention, due to the potential alternatives raised in the notice.

"Stay tuned as to how OSHA will attempt to strike a balance between workplace safety with COVID-19 and workers' objections to regulations," said Carlos Ortiz, an attorney with Polsinelli in Chicago.

OSHA will hold a virtual hearing regarding its interim final rule on April 27. If necessary, the hearing will continue on subsequent days, the agency said.

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