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Worker, Business Groups Push to Influence Health-Care Covid Rule

Jan. 3, 2023, 10:40 AM

Worker and employer organizations alike are continuing to meet with White House officials over concerns that OSHA’s proposed rule to protect health-care workers from Covid-19 will either be too broad or not strict enough.

Meetings with the White House’s Office of Information and Regulatory Affairs over the Occupational Safety and Health Administration proposal are currently scheduled through at least Jan. 6.

OIRA’s review is usually the last outside analysis of a rule before it’s cleared for release, and the scheduled sessions are a last chance for advocates to make their case before that review is concluded.

OSHA hasn’t yet released the rule’s (RIN:1218-AD36) proposed text, leaving advocates to guess what requirements will be included. Overall, it’s expected to resemble OSHA’s 2021 emergency temporary standard for health-care workers that OSHA stopped enforcing a year ago.

OSHA officials have said the rule won’t include a vaccination mandate.

Increasing Infections

“The unions continue to advocate for strong OSHA protections in health care settings,” said Rebecca Reindel, the AFL-CIO’s director of safety and health.

The labor federation is advocating for methods to reduce the airborne spread of Covid, such as respiratory protections and ventilation systems that filter out the virus, Reindel told Bloomberg Law.

Unions are also concerned the OIRA review could last several weeks, while infections continue to increase during the winter. The regulatory office’s analysis of the 2021 emergency temporary standard lasted about six weeks.

“We will strongly be urging OIRA to expedite its review process so the final rule can be issued as soon as possible to ensure that nurses and other health care workers get the protection they need in this current surge of Covid, RSV, and influenza cases,” said Ken Zinn, political director for National Nurses United.

Coverage Concerns

Many business groups are concerned the permanent standard will cover a broader range of health-care providers like retail pharmacies, dentist offices, and medical clinics inside factories, which were largely exempted from the temporary rule.

“The standard is written for hospitals,” said attorney Eric Conn of Conn Maciel Carey LLP, which is representing several of the business groups meeting with OIRA.

The thrust of the temporary standard was to protect workers in facilities where Covid patients were likely to be treated, Conn said. Places that could screen patients for Covid symptoms before entry were exempted because staff weren’t especially likely to be exposed, he said.

In March, OSHA announced that the agency “is considering whether the scope of the final standard should cover employers regardless of screening procedures for non-employees and/or vaccination status of employees.”

The emergency rule could be read to only apply to workers who faced a “grave danger” from Covid, while by law the permanent rule must have the lower threshold of “significant risk,” the agency said. A pharmacist might not be in “grave danger” from Covid but could face a “significant risk,” OSHA reasoned.

Potentially Illegal

The American Hospital Association declined to comment on what issues it will address at its meeting with OIRA, but said concerns the organization raised earlier haven’t abated.

In an April 22 letter to OSHA, the AHA said a permanent rule wasn’t needed because the Centers for Medicare and Medicaid Services already require hospitals to follow Centers for Disease Control and Prevention recommendations.

The association also objected to OSHA getting involved in personnel decisions such as paid time off for vaccinations.

The US Chamber of Commerce maintains that the proposed permanent rule isn’t legal because OSHA needed to enact it a year ago, said Marc Freedman, the Chamber’s vice president for employment policy. The Occupational Safety and Health Act requires permanent rules to be enacted within six months of the temporary rule taking effect, he said.

A 2022 Congressional Research Service review of previous OSHA emergency rules found no clear federal court direction on whether a permanent rule would be enforceable if enacted outside the six-month window.

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

To contact the editor responsible for this story: Laura D. Francis at lfrancis@bloomberglaw.com; Rebekah Mintzer at rmintzer@bloombergindustry.com