By Benjamin D. Briggs, Adam R. Young, A. Scott Hecker, and Craig B. Simonsen
Seyfarth Synopsis: The federal Occupational Safety and Health Administration (OSHA) has reopened its rulemaking record and scheduled an informal public hearing to seek comments on specific topics that relate to the development of a permanent OSHA standard to protect healthcare and healthcare support service workers from workplace exposure to COVID-19.
OSHA’s two COVID-19 Emergency Temporary Standards (ETSs) are moribund. Its ETS pertaining to healthcare expired – and was explicitly withdrawn by OSHA – in December 2021, save for certain recordkeeping provisions. The Vaccination and Testing ETS was stayed by the Supreme Court and later withdrawn. But the COVID-19 enforcement train is plowing ahead. Two weeks ago, OSHA leadership publicly declared the COVID-19 “endemic” as its top enforcement focus of 2022. Along with a National Emphasis Program to effectuate enforcement, OSHA is developing two new permanent standards to address COVID-19 and related hazards. First, OSHA has a aerosolized transmissible diseases standard in the works, which likely will pertain to exposures from all airborne diseases.
Second, while the ETS to protect workers in healthcare settings from occupational exposure to COVID-19 has expired, OSHA has taken the position that it continues to serve as a proposed rule for a permanent standard. Pursuant to Section 6(c) of the OSH Act, rulemaking on a permanent standard should have concluded within six months of the ETS’s issuance, so challenges to a permanent standard’s legality may argue that it is inappropriate for OSHA to keep using the defunct ETS as a proposed rule. That will be for a court to decide on another day.
We blogged and wrote extensively on the substance of the COVID-19 Healthcare ETS, which addressed a range of COVID-19 precautions and protocols. The ETS also included wage payment provisions for medically removed employees, which may have exceeded OSHA’s regulatory authority; the permanent standard could include similar provisions. While vaccination was not addressed in the ETS, this regulated workforce is largely covered by the CMS vaccination mandate, which requires vaccination and does not permit a testing opt-out.
OSHA recently announced a limited reopening of the rulemaking record seeking additional comment by April 22, 2022 on specific topics, including:
- Alignment with the Centers for Disease Control and Prevention’s recommendations for healthcare infection control procedures.
- Additional flexibility for employers.
- Removal of scope exemptions.
- Tailoring controls to address interactions with people with suspected or confirmed COVID-19.
- Employer support for employees who wish to be vaccinated.
- Limited coverage of construction activities in healthcare settings.
- COVID-19 recordkeeping and reporting provisions.
- Triggering requirements based on community transmission levels.
- The potential evolution of SARS-CoV-2 into a second novel strain.
- The health effects and risk of COVID-19 since the ETS was issued.
In its March 23, 2022 Federal Register notices “of limited reopening of comment period” and “of informal hearing,” OSHA acknowledged that “the majority of the [original] comment period occurred prior to when the Delta and Omicron variants became prevalent in the United States,” so “OSHA requests new studies or data related to the Delta and Omicron variants since the close of the initial comment period,” presumably to ensure that the Agency is relying on current information in finalizing its rule. Similarly, OSHA is asking for information to inform its economic analyses and methodologies.
Those wishing to testify at the hearing on the standard must submit their notice of intention to appear no later than 14 days after March 23, 2022, the publication date of the Federal Register notice. The hearing will begin on April 27, 2022, and, if necessary, will continue on subsequent days.
For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.