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First Health-Care Worker Covid-19 Rule Ends as OSHA Goes Mum (1)

Dec. 21, 2021, 9:38 PMUpdated: Dec. 21, 2021, 10:38 PM

Six months after OSHA issued its initial Covid-19 emergency temporary standard protecting health-care workers from infection, the measure has expired with no word from the workplace safety agency about what, if anything, will replace it.

Because the standard was an emergency measure enacted June 21 without the usual public comment and review periods, its duration was limited by law to six months, a deadline that arrived Tuesday.

As of midday Tuesday, the federal Occupational Safety and Health Administration hasn’t said whether it will replace the ETS with a permanent regulation or regard it as still in force. The agency hasn’t responded to numerous requests for comment from Bloomberg law, dating back to last week.

President Joe Biden’s administration has prioritized combating the resurgent Covid-19 pandemic, enacting measures mandating federal employees and those who work for federal contractors be inoculated against the virus. The federal Centers for Medicare and Medicaid Services issued a vaccination rule for those employed by its affiliates, while OSHA issued a rule for businesses with 100 or more workers.

But even in the aggregate, those measures don’t cover all the practices required by the initial measure issued in June. And each of them is now the target of federal lawsuits, making their future uncertain at best.

OSHA’s silence on the subject is leading to divergent views on whether and to what degree health-care facilities can still be held to its strictures.

“Lots of employers are assuming, based on the law, that they can’t be held accountable,” said Alka Ramchandani-Raj, a shareholder with Littler Mendelson in Walnut Creek, Calif., and co-chair of the firm’s Workplace Safety & Health Practice Group.

Surging Infections

National Nurses United, a health-care union, had campaigned for the standard to be become permanent.

“It is unconscionable that OSHA would not issue a permanent Covid-19 health-care standard to protect nurses and other healthcare workers,” NNU Executive Director Bonnie Castillo said in statement. “Without an eventual permanent standard, we will see more transmission of the virus, more hospitalizations, and more deaths from Covid-19.”

Still, some union officials believe the standard will continue to be enforceable.

“Under the clear terms of the statute, the health care ETS remains in effect until rescinded or replaced by a permanent rule,” said Rebecca Reindel, director of safety and health for the AFL-CIO labor federation.

“At a time when Covid-19 infections are surging amidst the highly transmissible Omicron variant, it would be totally irresponsible for health-care employers to ignore or roll back their compliance with this health-care standard,” Reindel added.

The standard mandated health-care employers to implement a Covid-19 infection prevention plans and protect workers through health screenings, personal protective equipment, building ventilation, physical distancing, and barriers.

The standard also requires employers to remove any employees with Covid-19 from the workplace while continuing to provide them pay and benefits and to keep records of employee infections.

The American Hospital Association said it believes employers will carry on with safe practices.

“We continue to urge our members to follow the scientific and medical recommendations on how to effectively protect patients, staff and their communities,” the association said in written statement.

Other Backstops

And Littler’s Ramchandani-Raj said even in the absence of an OSHA health-care standard, employers still would have to be sure they weren’t violating OSHA’s general duty clause. The law requires employers to provide workplaces free of known, potentially fatal hazards that can be feasibly corrected.

Arlene Kline, a partner with Akerman LLP in West Palm Beach, Fla., said employers also need to be aware of state and local laws and rules that mandate health protections for workers or limit employer from enacting policies.

Most employers would have to follow the Centers for Medicare and Medicaid Services rule requiring workers to be vaccinated or obtain an exemption, Ramchandani-Raj said.

If federal courts overturn the CMS vaccination rule, large health-care employers would have to comply with OSHA’s mandate for vaccination or weekly testing that applies to employers with 100 or more workers, unless judges overturn that standard, too.

That OSHA shot-or-test standard is also under challenge in federal courts. The U.S. Supreme Court on Monday indicated it wouldn’t decide on staying it until January.

(Adds comment from National Nurses United at eighth and ninth paragraphs.)

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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