OSHA Withdraws Most of Temporary COVID-19 Health Care Safety Rule

The Occupational Safety and Health Administration (OSHA) is withdrawing all but the record-keeping requirements under a COVID-19 emergency temporary standard (ETS) that applied only to health care workers.

The health care ETS, which was issued in June, focused on settings where coronavirus patients are treated, including hospitals, nursing homes and assisted living facilities. The directive required covered employers to implement certain COVID-19-related safety measures and provide workers with paid time off to get vaccinated.

An ETS can remain in place only for six months, and a permanent rule must go through a formal process that includes an opportunity for the public to comment on the proposal.

OSHA said it intends to work on a final COVID-19 standard for health care workers, as well as broader rulemaking on safety standards related to infectious diseases. "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 health care workers continues to be of the highest concern and measures to prevent the spread of COVID-19 are still needed to protect them," the agency said. "Given these facts, and given OSHA's anticipated finalization of this rule, OSHA strongly encourages all health care 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."

OSHA's health care ETS does not mandate COVID-19 vaccination and is a separate rule from the agency's vaccine-or-testing directive for businesses with at least 100 employees. A separate directive from the Centers for Medicare & Medicaid Services (CMS) requires COVID-19 vaccination for staff employed at Medicare- and Medicaid-certified providers and suppliers. Lawsuits challenging OSHA's vaccine-or-testing-rule and the CMS health care rule are currently pending Supreme Court review.

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

General Duty Clause Applies

Under the Occupational Safety and Health (OSH) Act's 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." As OSHA works on a permanent workplace safety standard for health care settings, the agency said it will "vigorously enforce the general duty clause and its general standards, including the Personal Protective Equipment (PPE) and Respiratory Protection Standards, to help protect health care employees from the hazard of COVID-19."

The Respiratory Protection Standard applies to workers who provide care to patients who are suspected of having or confirmed to have COVID-19. "OSHA will accept compliance with the terms of the health care ETS as satisfying employers' related obligations under the general duty clause, respiratory protection, and PPE standards," according to an agency announcement. "Continued adherence to the terms of the health care ETS is the simplest way for employers in health care settings to protect their employees' health and ensure compliance with their OSH Act obligations."

(OSHA)

Does OSHA's Vaccine-or-Testing Rule Apply?

"Until additional guidance is available, health care employers should determine if they may be covered under the vaccine-or-test OSHA ETS for employers with at least 100 employees and begin to prepare for compliance," according to law firm Jackson Lewis. "In addition, they may want to continue the precautions advised by the health care ETS while waiting for further guidance."

(Jackson Lewis)

Supreme Court to Hear Challenges to Vaccine-or-Testing and CMS Rule

Lawsuits aiming to block OSHA's vaccine-or-testing ETS and the CMS health care rule are being reviewed by the U.S. Supreme Court, which is set to hear oral arguments on Jan. 7 in each matter.

Under OSHA's vaccine-or-testing ETS, employers may choose to require vaccination or allow covered employees who are unvaccinated to wear a mask and provide proof of a negative COVID-19 test on a weekly basis. A federal appeals court had temporarily blocked the rule, but the 6th U.S. Circuit Court of Appeals lifted the stay on Dec. 17 in a consolidated action, meaning that employers will have to comply unless the Supreme Court rules otherwise. The start date for the testing requirement has been extended to Feb. 9, but many other components of the ETS take effect on Jan. 10, such as the requirement for employers to determine the vaccination status of each employee and develop a written policy.

The CMS rule requires COVID-19 vaccination for staff employed at Medicare- and Medicaid-certified providers and suppliers. State attorneys general challenged the health care rule in multiple lawsuits with different outcomes. The 5th U.S. Circuit Court of Appeals lifted a district court's order that had blocked the directive nationwide, but the requirement remains blocked in 25 states. 

The U.S. Department of Justice asked the Supreme Court to reinstate the rule nationwide. In the meantime, the CMS will enforce its vaccination requirement in every location that is not subject to an injunction, according to Jackson Lewis. The CMS will not enforce the directive in Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming.

(SHRM Online) and (Jackson Lewis)

Time to Review Compliance Steps

Now that OSHA's vaccine-or-testing ETS has been revived, employers should refamiliarize themselves with the standard's requirements. Here are some of the main provisions employers should once again prepare to fulfill, barring Supreme Court action blocking the directive.

(SHRM Online)