July 2, 2022

Volume XII, Number 183

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OSHA Reaffirms Arrival of Permanent Healthcare Industry Covid-19 Standard

On March 22, 2022, the US Occupational Safety and Health Administration (OSHA) announced a limited reopening of the rulemaking record for the COVID-19 emergency temporary standard for the healthcare industry, originally published on June 21, 2021 (the Healthcare ETS), and OSHA’s intention to hold an informal public hearing to gather certain additional information from healthcare industry stakeholders. With the announcement, OSHA reaffirmed its plans to publish a permanent COVID-19 safety standard (i.e., regulation) for the healthcare industry later this year.

IN DEPTH


PRACTICAL IMPLICATIONS

As with the Healthcare ETS, the permanent regulation is intended to protect healthcare and healthcare support service workers from occupational exposure to COVID-19 in settings where people with COVID-19 can be reasonably expected to be present.

Currently, OSHA does not have any COVID-19 focused regulations as the Healthcare ETS expired in December 2021. OSHA voluntarily withdrew its controversial “vax-or-test” ETS after the Supreme Court of the United States enjoined its enforcement in January 2022.

However, the 2021 Healthcare ETS’s recordkeeping obligations remain in effect, which require healthcare employers to record all workplace instances of COVID-19 on the OSHA 300 logs.

NO FURTHER CLARITY ON OSHA’S COVID-19 ENFORCEMENT INITIATIVE

OSHA did not provide further clarification on how the permanent standard might overlap with its new enforcement initiative, effective March 9, 2022, through June 9, 2022, to increase OSHA’s presence in healthcare settings at high risk for COVID-19 transmission. It is expected that the permanent COVID-19 standard and the enforcement initiative will remain separate.

PUBLIC COMMENTS

OSHA will reopen the regulation for public comment from March 23, 2022, through April 22, 2022. Public comments on this rulemaking (Docket Number OSHA-2020-0004) can be submitted via the Federal e-Rulemaking Portal.

PUBLIC HEARINGS

The hearing will begin on April 27, 2022, and will be held virtually.

Interested persons who intend to provide oral testimony or documentary evidence at the hearing must file a written notice of intention to appear prior to the hearing using the Notice of Intention to Appear (NOITA) web form no later than 14 days after the publication of the Federal Register Notice.

Before the hearing, OSHA will make the hearing procedures and hearing schedule available on its website and in the rulemaking docket.

STATE OSHA PLANS

As with all other OSHA standards, the 22 states with OSHA-approved State Plans will be required to adopt a healthcare industry COVID-19 safety standard that is at least as protective as OSHA’s standard.

NEXT STEPS

Healthcare and healthcare support service employers should continuously monitor their COVID-19 safety procedures to avoid falling behind on preparations for the upcoming permanent COVID-19 safety standard. In keeping with existing standards—such as the bloodborne pathogens standard, personal protective equipment (PPE) standard, respirator rules and others—this permanent COVID-19 safety standard is expected to require employers to maintain a safety plan, provide periodic training for employees on COVID-19 safety in the workplace, and clarify PPE expectations in the COVID-19 context, among other requirements.

© 2022 McDermott Will & EmeryNational Law Review, Volume XII, Number 82
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About this Author

Abigail M. Kagan Employment Attorney McDermott Will & Emery New York, NY
Associate

Abigail M. Kagan focuses her practice on employment law, with particular experience in conducting transactional due diligence, defending single-plaintiff, class and collective actions, second-chairing labor negotiations, and drafting personnel policies and other employment documents. She has advised clients on EEO concerns, the gig economy, data privacy, leaves of absence, reductions in force, wage and hour audits, unemployment insurance, short-term disability, restrictive covenants, and NLRA application to non-union members.

Abigail has conducted internal investigations and...

212 5475672
Associate

Evelyn (Evie) S. Atwater focuses her practice on regulatory and transactional matters affecting hospitals, health systems, and other health industry clients. Evie advises clients on a variety of issues, including licensure, accreditation, fraud & abuse matters, and compliance programs. She also conducts due diligence on healthcare transactions.

Before her time with McDermott Will & Emery, Evie served as a legal extern at an academic medical center and worked for the HLS Center for Health Law and Policy Innovation and the STRIPED program at the Harvard T.H. Chan School of...

312 277 8687
Lindsay Ditlow Employment Attorney McDermott Will & Emery New York, NY
Partner

Lindsay Ditlow is experienced in all aspects of employment law, including litigation, counselling, and corporate transactions.

As a trial lawyer, Lindsay has successfully represented numerous clients in employment litigations, including cases involving claims under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Fair Credit Reporting Act, the Family Medical Leave Act and state leave laws, the Inevitable Disclosure Doctrine, state discrimination and retaliation statutes, the Fair Labor Standards Act, and state wage and hour laws.

...

212-547-5425
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