OSHA Challenges Several States on COVID-19 Rules

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The Occupational Safety and Health Administration (OSHA) might take over workplace safety enforcement in three states the agency said failed to adopt adequate COVID-19 standards for health care workers.

The federal Occupational Safety and Health Act covers most private employers and their workers. However, OSHA allows states to develop their own workplace health and safety plans, so long as those plans are "at least as effective" as the federal program.

OSHA officials recently cited concerns that state agencies in Arizona, Utah and South Carolina did not adopt COVID-19 standards that are at least as effective as a federal emergency temporary standard (ETS) that the agency issued in June for health care settings.

The news comes as OSHA officials prepare to issue another ETS, which will require private employers with at least 100 employees to mandate that employees get vaccinated against the coronavirus or submit weekly proof of a negative COVID-19 test.

We've gathered articles on the news from SHRM Online and other media outlets.

OSHA Issues Warning

State plans typically have six months to adopt a new OSHA standard or alternative measures that are "at least as effective." However, state plans have only 30 days to adopt an ETS.

"Despite these obligations, Arizona, South Carolina and Utah have yet to adopt the healthcare ETS or what OSHA is considering to be an equally effective alternative," noted law firm Jackson Lewis. OSHA officials said the agency plans to revoke state-plan approval because the states failed to adopt the health care ETS. If that happens, the states could lose federal funding for their safety and health programs and federal OSHA would take over those plans and their enforcement.

(Jackson Lewis)

Notice and Comment Period

To revoke the state plans, OSHA (which is part of the U.S. Department of Labor), will need to follow a formal process by first publishing a notice in The Federal Register announcing its intent to revoke the state plans. Then, members of the public will have 35 days to comment on the proposal before it can be finalized. Labor Department Solicitor Seema Nanda said the states' authority to regulate their own workplace safety plans could be revoked entirely or partially for certain industries.

(The New York Times)

States Defend Their Plans

"The longer these states refuse to adopt an emergency temporary standard for health care workers, the longer they're needlessly putting thousands of workers at risk of the spread of the coronavirus," said Acting Assistant Secretary of Labor for Occupational Safety and Health Jim Frederick.

Leaders in Arizona, South Carolina and Utah, however, defended their workplace safety plans and are among the states that signed a letter expressing their intent to sue the federal government when OSHA issues its vaccine-or-testing mandate for private employers.

"With no state regulators in the way, the federal Labor Department will be free to penalize employers who do not comply with President Biden's unconstitutional vaccine mandate," said South Carolina Gov. Henry McMaster.

Trevor Laky, a spokesman for the Industrial Commission of Arizona, said, "It seems like federal OSHA is trying to stop us from getting public input on this emergency temporary standard."

Utah leaders said they told the federal government that the emergency standard for health care workers "would place an unfair burden on the health care industry."

(The Wall Street Journal)

The Federal Health Care Standard

The health care ETS focuses on settings where coronavirus patients are treated, including hospitals, nursing homes and assisted living facilities. Among other steps, covered employers must conduct a hazard assessment and have a written plan to mitigate the spread of COVID-19. The ETS sets safety protocols for masking, distancing and paying for time off related to vaccination. Employees who test positive for the coronavirus or could be contagious must work remotely or separately from other workers or be given paid time off.

"This standard is necessary to give our healthcare workers deeply needed protections," Frederick of OSHA said. "This tailored standard allows OSHA to help the workers most in danger of contracting the virus, while the updated guidance will give other businesses across the country the information they need to help protect unvaccinated workers and continue mitigating spread in the workplace."

(SHRM Online) and (OSHA)

How to Approach Federal and State Conflicts on Vaccine Mandates

When the White House announced COVID-19 vaccination requirements for federal employees and contractors—and the pending vaccine-or-testing rule for certain private employers—several states responded by initiating their own rules that allow for more exemptions than the federal requirements. This has caused confusion for many business leaders and HR professionals. How should businesses approach their workplace vaccination policies in light of conflicting directives? Here's what employment law attorneys had to say.

(SHRM Online)

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The Department of Health & Human Services has clarified the HIPAA Privacy Rule does not prohibit an employer from requesting an employee’s vaccination status as part of the terms and conditions of employment.

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