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Volume XII, Number 223

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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OSHA “strongly urges” continued compliance with the withdrawn standard, promising to use the discontinued requirements of the Healthcare ETS to “vigorously enforce” the General Duty Clause, a “catch-all” provision of the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
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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
Of Counsel

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...

404-586-1869
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...

513-322-5035
Michael Bertoncini, Jackson Lewis, labor relations attorney, employment litigation lawyer, NLRB proceedings counsel, arbitration law
Principal

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
Of Counsel

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...

914-872-6869
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