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First Health-Care Worker Virus Rule Officially Ended by OSHA (2)

Dec. 28, 2021, 4:01 PMUpdated: Dec. 29, 2021, 3:10 PM

OSHA has officially withdrawn its original Covid-19 health-care emergency temporary standard but is continuing to work on a permanent version of the rule.

The federal Occupational Safety and Health Administration’s announcement came on Monday evening, one week after its ETS had reached its six-month expiration date with no word from the agency on what lay ahead.

“OSHA announced today that it is withdrawing the healthcare ETS issued on June 21, 2021, with the exception of the recordkeeping requirements within the healthcare ETS, which remain in place under a separate provision of the Occupational Safety and Health Act,” the agency said in a written statement.

These recordkeeping “provisions were adopted under a separate provision of the OSH Act, Section 8, and OSHA found good cause to forgo notice and comment in light of the grave danger presented by the pandemic,” the agency said.

Its decision doesn’t affect OSHA’s Covid-19 vaccination and testing emergency temporary standard that applies to American businesses with 100 or more employees. Enforcement of that measure is slated to begin on Jan. 10, three days after the U.S. Supreme Court hears arguments on whether to block it and a health-care worker vaccination mandate.

Clarity Welcomed

OSHA’s decision ends weeks of speculation over the agency’s intentions for the standard, especially after the Dec. 21 expiration date was reached without OSHA explaining its plans.

“The Medical Group Management Association appreciates OSHA’s update regarding the status of the health-care ETS, especially at a time where much is up in the air about the other Covid-19 vaccination and testing rules,” said Claire Ernst, director of government affairs for the organization, which represents medical clinics.

The AFL-CIO labor federation and unions representing health-care workers and employees in other high-risk industries issued a statement late Tuesday criticizing the Biden administration decision.

“With the Omicron variant surging and no permanent standard in place, our front-line heroes are in grave danger of Covid-19 infection,” the unions said, adding that while they support OSHA’s long-term pursuit of an infection disease standard that would cover multiple airborne illnesses, that effort doesn’t have an immediate impact.

“To protect workers now, we need to build on the emergency Covid-19 standard by making it permanent, not scrapping it altogether,” the unions said.

The June temporary standard’s core mandate was that employers develop and implement a Covid-19 transmission prevention plan with the participation of non-managerial workers. That plan needed to be in writing if more than 10 people were employed. The measure didn’t require workers to be vaccinated.

Specific requirements for such a prevention plan included designating a safety coordinator to oversee implementation; screening patients and anyone else before they enter a work site; providing respirators for workers when exposed to people with suspected or confirmed Covid-19 infection; maintaining six feet of separation between people when indoors; and ensuring ventilation systems operate at their designed specifications.

The standard exempted fully vaccinated workers from masking, distancing, and barrier requirements when in well-defined areas where there’s no reasonable expectation a person with suspected or confirmed Covid-19 would be present.

‘Stay the Course’

Employer-side attorneys told Bloomberg Law they’re advising health-care employers to continue practices as if the measure was still in effect.

“To the greatest extent possible, covered employers should continue to follow the provisions in it,” said A. Kevin Troutman, a partner with Fisher & Phillips LLP in Houston.

Brian Hendrix, a partner with Husch Blackwell LLP in Washington, said employers who have been complying with the health-care standard should “stay the course” by continuing to follow the standard unless a safety and health concern justifies a change.

In a written statement, the American Hospital Association said hospitals will “continue to follow the latest scientific and medical recommendations on how to effectively protect patients, staff and their communities.”

Requirements Remain

Both attorneys noted that OSHA’s withdrawal announcement said that in the absence of the health-care standard, the agency “will vigorously enforce” the general duty clause and rules covering personal protective equipment and respiratory protection such as the use of N95 respirators. The general duty clause requires employers to provide a workplace that is free of known, fatal hazards that can be feasibly mitigated.

OSHA said employers who continue to adhere to the health-care standard will be considered in compliance with those other requirements.

The standard’s cancellation also means health-care employers with 100 or more workers will be expected to comply with OSHA’s Covid-19 vaccination or testing standard if it withstands challenges in federal court. The shot-or-test standard specifically exempts employers who had been covered by the now-lapsed health-care rule.

Troutman noted that OSHA’s actions are separate from the Centers for Medicare and Medicaid emergency standard requiring most health-care workers to be vaccinated. The CMS rule is the other matter being argued over at the Supreme Court during the Jan. 7 session.

OSHA, in its press statement, said it “intends to continue to work expeditiously” to issue a final standard aimed at protecting health-care workers from Covid-19 in conjunction with its consideration of broader infectious disease rulemaking.

As of late Tuesday afternoon, the AFL-CIO labor federation and other unions hadn’t commented on the agency’s decision. The AFL-CIO was among labor groups that urged OSHA to expand the standard to include all industries, not just health care.

(Updated with union comments in eighth through 10th paragraphs. Story originally published Dec. 28.)

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com