Court Won’t Force Permanent COVID-19 Safety Standard for Health Care Employers

Leah Shepherd By Leah Shepherd September 7, 2022
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​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 emergency temporary standard 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.

OSHA's temporary standard requires health care employers to screen patients for COVID-19 symptoms upon entry, provide personal protective equipment and physical distancing, limit the number of employees present during procedures that generate aerosols, implement cleaning and ventilation protocols, and train employees on various COVID-19-related topics.

We rounded up a selection of relevant news articles from SHRM Online and other trusted news sources.

OSHA Can Take More Time on Permanent Standard

A group of unions lost its bid to force the federal government to quickly enact a permanent rule aimed at protecting health care workers from COVID-19 infections, after the federal court ruled that it lacked the ability to do so. The court doesn't have the jurisdiction to set OSHA's enforcement policies or dictate a timeline for enacting them, a three-judge panel ruled. The court decision allows OSHA to issue a permanent standard at its own pace.

(Bloomberg Law)

Enforcement Continues

To protect worker safety, the unions urged the court to require OSHA to refrain from withdrawing its temporary standard for health care workers before issuing a permanent standard. In December 2021, OSHA announced its intent to withdraw most requirements of the health care emergency temporary standard. Unions sued soon afterwards. OSHA may still issue a permanent standard before the end of this year. Last year, OSHA opened a rulemaking docket, seeking public comment to develop a final standard. In the meantime, employers should expect an increased emphasis on enforcement of OSHA's general duty clause.

(The National Law Review)

Expect Action This Fall

In June, Labor Secretary Marty Walsh testified before the Senate Labor, Health and Human Services, Education, and Related Agencies Subcommittee that a permanent standard on COVID-19 for the health care industry may be published sometime in the fall, echoing comments made by OSHA Assistant Secretary of Labor Doug Parker a few weeks earlier during a House Workforce Protections Subcommittee hearing.

(Safety + Health)

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COVID-19 and Communicable Diseases

Duty to Provide Safe Workplace

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 emergency temporary standard 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.

For now, OSHA will continue to inspect worksites for COVID-19 safety under the agency's current standards, including the COVID-19 National Emphasis Program, which targets high-risk industries, as well as housekeeping and respiratory standards and the Occupational Safety and Health Act's general duty clause. Under the general duty clause, all employers must provide a work environment that is "free from recognized hazards that are causing or are likely to cause death or serious physical harm."

OSHA continues to encourage the vaccination of employees.

(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)

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