Anticipated OSHA COVID-19 Rule for Health Care Employees Criticized

Allen Smith, J.D. By Allen Smith, J.D. September 29, 2022
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On Sept. 26, House Education and Labor Committee Republican Leader Virginia Foxx, R-N.C., and Workforce Protections Subcommittee Republican Leader Fred Keller, R-Pa., wrote Occupational Safety and Health Administration (OSHA) Assistant Secretary Douglas Parker to oppose the agency's anticipated COVID-19 rule. The rule would implement a permanent standard for health care industry employers, reviving the 2021 emergency temporary standard (ETS). We've gathered articles on the news from SHRM Online and other outlets.

Agency Urged to Abandon Rulemaking

In the letter, Foxx and Keller wrote, "You testified before the Committee on Education and Labor that the agency is working to finalize the ETS as a permanent COVID-19 standard for the health care industry and expects to issue a final standard this fall. In light of President Biden's recent proclamation regarding the end of the pandemic, the impracticality of the forthcoming regulatory scheme and OSHA's questionable legal authority, we write to express our strong disapproval of your decision to move forward with this ill-advised rule and urge your agency to abandon it."

On June 21, 2021, OSHA issued an ETS that mandated workplace protections related to COVID-19 for employers in the health care industry. OSHA withdrew the COVID-19 ETS for health care workers on Dec. 21, 2021.

(House Committee on Education & Labor Republicans)

Court Wouldn't Force Permanent COVID-19 Standard for Health Care Employers

A collection of nurses' unions asked the U.S. Court of Appeals for the District of Columbia Circuit to order the U.S. Department of Labor to make permanent the agency's ETS for health care workers during the COVID-19 pandemic, but their request was denied on Aug. 26.

"We cannot order the Occupational Safety and Health Administration [OSHA] to promulgate a permanent standard because at the conclusion of the rulemaking process, OSHA is permitted to determine that no standard should issue," the court stated.

The court doesn't have the jurisdiction to set OSHA's enforcement policies or dictate a timeline for enacting them, the three-judge panel ruled. The court decision allows OSHA to issue a permanent standard at its own pace.

(SHRM Online) and (Bloomberg Law)

High Court Halted Temporary Standard for Large Businesses

On Jan. 13, the U.S. Supreme Court halted OSHA's temporary standard for private businesses with at least 100 employees. The high court's ruling meant that OSHA couldn't enforce this ETS while the 6th U.S. Circuit Court of Appeals considered the merits of lawsuits against the directive. 

OSHA officially ended the litigation by withdrawing this temporary standard effective Jan. 26, but employers should note that this temporary directive served a dual purpose. The temporary standard also acts as a proposal for a permanent standard, which is separate from the litigation and requires the agency to undergo a formal rulemaking process with a notice-and-comment period.

(SHRM Online)

CMS Rule Upheld

In a separate opinion on Jan. 13, the Supreme Court allowed the federal Centers for Medicare & Medicaid Services (CMS) to require COVID-19 vaccination for health care workers at Medicare- and Medicaid-certified providers.

(SHRM Online)

Cal/OSHA's COVID-19 Prevention Rule

The California Division of Occupational Safety and Health (Cal/OSHA) first adopted its COVID-19 ETS in 2020, a standard that is set to expire at the end of this year. The Cal/OSHA Standards Board is expected to adopt a rule to take effect on Jan. 1, 2023. Prior to becoming assistant secretary of OSHA, Parker was chief of Cal/OSHA.

A Sept. 15 hearing and subsequent board discussion demonstrated that there remains disagreement about whether a nonemergency standard is needed, and that there are concerns from management and labor representatives about the provisions currently contained in the proposed nonemergency regulation.

(Davis Wright Tremaine via JD Supra), (OSHA) and (SHRM Online)

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