Federal Agency Plans for a Permanent COVID-19 Standard for Healthcare

On March 22nd, 2022, the U.S. Occupational Safety and Health Administration (OSHA) reaffirmed a plan to create a permanent COVID-19 standard for the healthcare industry this year. Accordingly, OSHA will reopen the rulemaking record for the emergency temporary standard (ETS). Stakeholders may also voice their opinion on the proposed permanent ETS during an informal public hearing. A permanent standard for healthcare workers has been one of OSHA’s goals since they withdrew it in December 27th, 2021, after the ETS’s six-month effective period expired. In January 2022, the U.S. Supreme Court blocked OSHA’s vaccine-or-test mandate, while allowing a separate mandate for health care facilities.

Background of the Healthcare Emergency Temporary Standard

OSHA originally adopted the healthcare emergency temporary standard on June 21st, 2021. In general, the ETS’s goal was to protect workers from COVID-19 infection within the healthcare industry. Under the ETS, covered employers would be required to:

• Develop and implement a plan for the workplace (with a written plan for employers with more than 10 employees).
• Screen patients for COVID-19 symptoms and use patient management strategies.
• Follow the Centers for Disease Control and Prevention (CDC) guidelines on preventing transmission.
• Provide personal protective equipment (PPE).
• Implement a variety of other preventative measures.
• Allow time off for vaccinations.
• Establish recordkeeping for instances of COVID-19 (for employers of more than 10 employees).

The healthcare ETS was effective for six months, expiring on December 21st, 2021. OSHA withdrew the ETS on December 27. However, the recordkeeping requirements under the ETS have remained in effect since then.

Proposed Permanent COVID-19 Standard for Healthcare

OSHA has since proposed a permanent COVID-19 standard for healthcare workers. Specifically, the permanent standard is intended to prevent occupational exposure to the virus within the healthcare industry. As of the time of this post, OSHA has not given final details on the standard or its implementation. However, potential changes may include:

• More flexibility in implementation;
• Aligning requirements with CDC’s recommendations;
• Tailoring the standard’s coverage to only reasonably expected encounters with COVID-19;
• Relaxing restrictions for fully vaccinated people; and
• Shortening the record retention period.

In the end, these potential changes remain topics of discussion as OSHA reopens the rulemaking record for the proposed standard.

Public Commenting and Hearing

The public may submit comments online through April 22. Interested parties can use the Federal Rulemaking Portal and locate Docket Number OSHA-2020-0004. Following the commenting period, the public hearing will begin on April 27, virtually. Those wanting to provide testimony or evidence must file a written notice no later than 14 days after the Federal Register publishes the proposed rule.