May 24, 2022

Volume XII, Number 144

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After OSHA COVID-19 Emergency Temporary Standard for Healthcare Employers Expired …

More than six months after the Occupational Safety and Health Administration (OSHA) promulgated an Emergency Temporary Standard for healthcare employers (Healthcare ETS), OSHA announced its intentions to propose an infectious diseases standard covering all industry sectors in April 2022. The agency said the new standard will address airborne, droplet, and non-bloodborne contact diseases.

Healthcare ETS

The Occupational Safety and Health Act (OSH Act) authorizes OSHA to “provide … for an emergency temporary standard to take immediate effect upon the publication in the Federal Register” which “shall be effective until superseded by” a permanent standard. The OSH Act directs the agency to promulgate a permanent standard “no later than six months after publication of the emergency temporary standard.” 29 USC § 655(6)(c).

OSHA promulgated the Healthcare ETS on June 21, 2021, and it expired on December 21, 2021. More than 40 unions and employee advocates petitioned OSHA to promulgate a permanent standard, but OSHA demurred and provided no public response to the petitioners. The National Nurses Union has implored the agency to continue enforcement of the healthcare employer ETS under a National Emphasis Program that extends through July 2022 and to make the healthcare standard’s provisions permanent.

But the agency’s authority to do so is in doubt. The OSH Act does not explain what happens to the ETS if a permanent standard is not promulgated within six months.

To date, OSHA has not made any public statements concerning the continued applicability of the Healthcare ETS. The agency’s website still touts the Healthcare ETS. Its last statement, from November:

OSHA has determined that the requirements of the healthcare ETS released on June 10, 2021, remain necessary to address the grave danger of COVID-19 in healthcare. OSHA will continue to monitor and assess the need for changes in the healthcare ETS each month.

The agency’s FAQs on the vaccine-or-test emergency temporary standard states, “[I]f the Healthcare ETS is no longer in effect at any point while the [the vaccine-or-test ETS] is in effect, some employees in settings covered under [the healthcare ETS] may become covered by [the vaccine-or-test ETS].” However, it is uncertain whether OSHA believes the Healthcare ETS is still in effect or whether under the law it is possible for it to still be in effect.

The Healthcare ETS applied to healthcare settings where COVID-19 patients are treated, and it required employers with more than 10 employees to develop and implement written COVID-19 plans that included the following elements:

  • Assigning a designated safety coordinator;

  • Patient screening and management;

  • Policies and procedures to comply with CDC guidelines;

  • Facemask and PPE requirements;

  • Protections while using aerosol-generating procedures on persons with suspected or confirmed COVID-19;

  • Physical distancing;

  • Solid barriers at employee work stations;

  • Cleaning and disinfection protocols;

  • HVAC system requirements;

  • Health screening and medical management requirements;

  • Paid leave for vaccinations and vaccination recovery;

  • Employee training;

  • Anti-retaliation protections;

  • Employee COVID-19 logs; and

  • Reporting work-related COVID-19 fatalities and in-patient hospitalizations.

If the Healthcare ETS has expired, do employers still need to comply with these requirements, many of which are not included in the new vaccine-or-test ETS? Alternatively, do healthcare employers need to comply with the vaccine-or-test ETS requirements to which they had been excepted while the Healthcare ETS was in effect? As has been throughout the pandemic, this is unchartered waters. In the absence of further guidance or clarity from OSHA, it is unclear what position OSHA may take on this. Regardless of whether the Healthcare ETS or the vaccine-or-test ETS applies, OSHA could utilize the General Duty Clause of the OSH Act to require that healthcare employers take greater precautions than generally required for healthcare workplaces. On December 23, 2021, the U.S. Centers for Disease Control and Prevention issued updated Emergency Guidance for Healthcare Facilities to Prepare for Potential Omicron Surge.

Next Steps

Until additional guidance is available, healthcare 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. In addition, they may want to continue the precautions advised by the Healthcare ETS while waiting for further guidance.

The issues are far from resolved. The U.S. Supreme Court is set to hear oral arguments on the vaccine-or-test ETS on January 7, 2022.

Kristina T. Brooks also contributed to this article.

Jackson Lewis P.C. © 2022National Law Review, Volume XI, Number 361
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About this Author

Courtney Malveaux, OSHA Lawyer, Employment, Richmond, Virginia, Jackson Lewis Law Firm
Principal

Courtney Malveaux is a Principal in the Richmond, Virginia, office of Jackson Lewis P.C.

Mr. Malveaux represents employers cited by the Occupational Safety and Health Administration and other regulatory agencies. He also advises and represents employers in employment law matters, including retaliation claims, employment discrimination, unemployment benefits and wage claims. Mr. Malveaux also represents business associations in state and federal legislative and regulatory matters.

Mr. Malveaux represents industry on the Virginia Safety and...

804-212-2862
Melanie L. Paul Trial Attorney Jackson Lewis Atlanta, GA
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Melanie L. Paul is Of Counsel in the Atlanta, Georgia office of Jackson Lewis P.C.  Her practice focuses on occupational safety and health and wage and hour issues.  Ms. Paul’s clients benefit from her unique inside experience as a trial attorney for the U.S. Department of Labor (DOL) for more than a decade. 

During Ms. Paul’s time with the DOL, she regularly appeared at hearings and trials before federal administrative tribunals and federal district courts throughout the southeastern United States in matters of Occupational Safety and Health (OSHA) law, Mine...

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Patricia Anderson Pryor, Class Action, Litigator
Principal and Office Litigation Manager

Patricia Anderson Pryor is a Shareholder in the Cincinnati, Ohio office of Jackson Lewis P.C. Ms. Pryor is an experienced litigator in both state and federal courts, representing and defending employers in nearly every form of employment litigation, including class actions.

She represents and advises employers in federal and state administrative proceedings, in all forms of dispute resolution, including mediation and arbitration, and in managing all aspects of the employment relationship. She has represented...

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Michael Bertoncini, Jackson Lewis, labor relations attorney, employment litigation lawyer, NLRB proceedings counsel, arbitration law
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Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, and employment law counseling and litigation.

In labor relations matters, he regularly counsels clients on the practice of positive employee relations, negotiates collective bargaining agreements on behalf of organized clients, represents clients in labor arbitrations and National Labor Relations Board proceedings, and counsels clients with...

617-367-0025
Jenifer Bologna Employment Lawyer Jackson Lewis
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Jenifer Bologna is Of Counsel in the White Plains, New York, office of Jackson Lewis P.C.

Ms. Bologna has extensive experience counseling employers on a variety of employment law issues. Ms. Bologna specializes in assisting employers in meeting the legal and practical challenges posed by federal and state laws protecting injured and ill employees, the most notable being the Americans with Disabilities Act and the Family and Medical Leave Act. In addition to counseling and training employers, Ms. Bologna represents management in workplace litigation in both...

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