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OSHA Withdraws COVID-19 Healthcare Emergency Temporary Standard, Vows to Use General Duty Clause

The Occupational Safety and Health Administration (OSHA) has announced that it is withdrawing most of the Emergency Temporary Standard for healthcare employers (Healthcare ETS) it promulgated more than six months ago.

The agency did not withdraw recordkeeping provisions requiring COVID-19 logs and case reports, as they were promulgated under separate provisions of the Occupational Safety and Health Act (OSH Act).

OSHA “strongly urges” continued compliance with the withdrawn standard, promising to use the discontinued requirements of the Healthcare ETS to “vigorously enforce” the General Duty Clause, a “catch-all” provision of the OSH Act covering hazards not addressed in promulgated standards. OSHA also promised to renew enforcement of general standards governing respiratory protection and personal protective equipment. OSHA will formalize its announcement with a notice in the Federal Register.

The Healthcare ETS included the following requirements:

  • A COVID-19 plan, which must be in writing for covered healthcare employers with more than 10 employees;

  • Patient screening and management;

  • Policies and procedures to adhere to standard and transmission-based precautions based on guidelines promulgated by the U.S. Centers for Disease Control and Prevention (CDC);

  • Personal protective equipment, including face masks while workers are indoors or in vehicles together and respirators when employees are exposed to or engaging in aerosol-generating procedures with individuals with known or suspected cases of COVID-19;

  • Additional requirements to limit exposure and to disinfect areas when engaging in aerosol-generating procedures with individuals with known or suspected cases of COVID-19;

  • Physical distancing while indoors;

  • Cleaning and disinfection in accordance with CDC guidelines;

  • Paid leave for vaccinations and recovery;

  • Anti-retaliation protections for engaging in actions required by the ETS;

  • For covered healthcare employers with more than 10 employees, a COVID-19 log;

  • Reporting COVID-19 fatalities and hospitalizations to OSHA; and

  • Medical management requirements, including:

    • Daily health screenings;

    • Employee notification of employers if an employee tests positive for COVID-19, suspect they have COVID-19, or have symptoms;

    • Employer notification of employees within 24 hours of known cases;

    • Removal of employees from the workplace in accordance with CDC guidance; and

    • For covered healthcare employers with more than 10 employees, medical removal protection benefits for isolated or quarantined employees.

Next Steps for Healthcare Employers

Considering the aggressive posture OSHA has taken with healthcare employers throughout the pandemic, healthcare employers would be wise to heed OSHA’s warning and continue to follow the rescinded Healthcare ETS as best practices for mitigating COVID-19 in the workplace. They should also be aware that they must continue to maintain COVID-19 logs of positive COVID-19 cases of employees, regardless of whether those cases are work-related (for employers with more than 10 employees) and report work-related COVID-19 inpatient hospitalizations within 24 hours and work-related fatalities within eight hours of learning of such events to OSHA (regardless of the number of employees). In addition, according to OSHA’s FAQs for its vaccine-or-test ETS, healthcare employers with at least 100 employees are required to comply with OSHA’s vaccine-or-test ETS because the Healthcare ETS is no longer in effect.

Jackson Lewis P.C. © 2022National Law Review, Volume XI, Number 363

About this Author

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

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.

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