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Employers, Unions Want Answers on OSHA Health-Care Covid Rule

Dec. 3, 2021, 8:21 PM

Time is running out for OSHA’s original Covid-19 health-care emergency temporary standard.

The standard is set to expire Dec. 21, six months after it was enacted June 21. While the Occupational Safety and Health Administration issued the rule saying the mandate would be replaced with a permanent one within six months, as of Friday, OSHA hasn’t said when that permanent standard will be issued or how the measure will differ from the temporary version.

Asked for guidance regarding the release, a Department of Labor spokeswoman said Friday that OSHA “does not have an update at this time.”

“Employers surely need guidance from OSHA on where the agency intends to go next,” said workplace safety attorney Darren Crook, a partner with Baker & Hostetler LLP in Cleveland.

The agency’s silence comes at the same time employers and workers are figuring out how the health-care standard fits with newer federal workplace Covid-19 vaccination and testing mandates, let alone the standard aimed at facilities affiliated with the Centers for Medicare and Medicaid Services.

“I feel we’re in really uncharted water here,” said Claire Ernst, government affairs director for the Medical Group Management Association, which represents about 15,000 medical clinics.

Catherine Cano, a principal with Jackson Lewis P.C. in Omaha, Neb., hears the concerns, too.

“There are many questions employers have about whether they fall under the Centers for Medicare and Medicaid rule, the OSHA healthcare ETS or the vaccine or testing ETS,” she said. “Employers have been more focused on the CMS vaccination rule in recent weeks, but that was largely driven by the initial compliance deadlines under the CMS rule.”

Ernst pointed out that if OSHA withdraws the health-care standard, that could mean large clinics with 100 and more employees may have to comply with OSHA’s vaccination or weekly test mandate, since the mandate now exempts employers covered by the health-specific standard.

Federal courts largely have placed on hold enforcement of the CMS, federal contractor, and OSHA shot-or-test standard as they consider challenges to the requirements. There are no court-ordered restrictions on the OSHA health-care standard, which wasn’t challenged in court by employers.

Unions Want Permanency

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

Specific requirements for a such a prevention plan include 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; six feet of separation between people when indoors; and ensuring ventilation systems operate at their designed specifications.

The standard exempts 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 will be present.

Unions representing medical workers want OSHA to issue a permanent rule at least preserving, if not bolstering those provisions and without the temporary standard first lapsing.

“The Covid-19 health care ETS has been an important step forward in ensuring safe working conditions for frontline health care workers by mandating optimal personal protection equipment and other protections, but it has also been a stopgap,” National Nurses United President Zenei Triunfo-Cortez said in a Dec. 2 written statement. The spread of new Omicron variant, unknown when OSHA released the standard, shows the pandemic isn’t over, Triunfo-Cortez added.

The NNU in November sent OSHA detailed changes it wants the agency to include in a permanent standard.

The revisions included mandating precautions that go beyond Centers for Disease Control and Prevention recommendations, requiring hospitals to be prepared to handle surges of Covid-19 patients, and ending many exemptions for fully vaccinated workers because the exemptions didn’t take into account the higher transmissibility of the delta variant.

Employer groups have largely asked OSHA to not extend the standard.

“Given that standards already exist in this setting to ensure the health and safety of staff, we recommend that the ETS not be continued beyond six months and not be converted into a permanent standard,” the American Health Care Association/National Center for Assisted Living said in a Dec. 1 statement to Bloomberg Law.

If OSHA issues a permanent rule, the agency should allow employers at least 30 days to comply with new requirements, said Kevin Troutman, a partner with Fisher Phillips LLP in Houston who specializes in health care.

Why Six Months?

“The Occupational Safety and Health Act contemplates a six-month period for an emergency temporary standard to be in effect before being replaced by a permanent standard, but it is unclear what happens if the agency does not do so,” Jackson Lewis’s Cano said.

In the health-care standard, OSHA acknowledged several times that the OSH Act calls for the permanent standard to be finalized within six months after publication of the temporary standard.

If the provisional standard was to lapse, Troutman said, he would expect most employers to continue complying with protective measures because the requirements parallel common Covid-19 safety protocols. If employers did change practices in absence of a standard, they’d likely wait until after the holidays.

The Congressional Research Service in a report updated Nov. 17 looked at OSHA emergency temporary standards and concluded the agency was unlikely to meet a six-month deadline to enact a permanent standard.

“Six months is well outside of historical and currently expected time frames for developing and promulgating a standard under the notice and comment provisions of the Administrative Procedure Act and OSH Act, as well as under other relevant federal laws and executive orders,” the report said.

Because OSHA hasn’t issued any temporary standards between 1983 and this year, there aren’t recent examples of how it would handle a delay.

The report found that in the 1970s, when public comment requirements were less strict, OSHA in at least one case missed the six-month deadline but later issued a permanent standard.

The 1978 permanent standard on exposure to vinyl cyanide was enacted 10 months after the temporary standard was released, the report said. In the months leading up to the permanent rule’s release, OSHA held a two-week-long informal public hearing and issued an economic impact statement, factors that could have helped delay the permanent standard.

Absent any current guidance, health-care workers and their employers can only wait for the safety agency’s next move.

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; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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