By A. Scott HeckerAdam R. Young, Patrick D. JoyceJames L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: On December 7, 2022, OSHA submitted its permanent “Occupational Exposure to COVID-19 in Healthcare Settings” standard to the White House Office of Management and Budget’s Office of Information and Regulatory Affairs (“OIRA”) for final review.

As we blogged with respect to the long-defunct COVID-19 “Vax or Test” rulemaking, OIRA review is one of the last steps in the regulatory process before the Federal Register publishes a final rule. While OIRA’s review timelines vary, and the rule’s text is not yet public, healthcare sector employers should be aware of this development to prepare for compliance in the coming months, likely the late first quarter or early second quarter of 2023.

OSHA provided a flowchart to help workplaces determine if they were covered under OSHA’s expired COVID-19 Healthcare Emergency Temporary Standard (“ETS”), which the agency published in June 2021. OSHA announced the withdrawal of its healthcare-focused ETS on December 27, 2021, more than a year ago, acknowledging that it could not meet the OSH Act’s six-month deadline to issue a permanent standard. In the announcement withdrawing the non-recordkeeping provisions of the ETS, OSHA further advised “that it intend[ed] to continue to work expeditiously to issue a final standard that will protect healthcare workers from COVID-19 hazards, and will do so as it also considers its broader infectious disease rulemaking.”

OIRA continues to hold 12866 meetings – currently scheduled through at least January 9, 2023 – with worker and employer organizations over their concerns that the rule will do too little or too much. While interested stakeholders cannot comment on the standard’s specifics without regulatory text, we can expect, e.g., unions to express concerns that the permanent rule will not do enough to protect healthcare workers from COVID-19 and that delays in OIRA’s review will increase worker exposure during winter months when COVID-19 cases may increase. Employers, on the other hand, will want a narrow and clear rule that does not expand the scope of the ETS on which the permanent rule should be based.

While we may be approaching the end of the healthcare COVID-19 rulemaking process, stakeholders should remain mindful of ongoing developments. The rule, once issued, will likely face legal challenges, including arguments that OSHA violated the OSH Act when it failed to issue the permanent standard within six months of the underlying ETS.

We anticipate OSHA rulemaking on a “broader” infectious disease standard as well, so employers should remain on the lookout for movement on that front, and we will continue updating our readers on OSHA’s regulatory activities.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.