OSHA Reopens Rulemaking Record for a Permanent Standard to Protect Health Care Workers Against COVID-19 and Considers Expanding Its Scope

On March 22, 2022, the Occupational Safety and Health Administration (OSHA) announced that it had partially reopened the comment period for its permanent standard to protect health care and health care support workers from exposure to COVID-19 in the workplace.

In June 2021, OSHA issued an Emergency Temporary Standard (“ETS”), to protect health care workers and began taking public comment to develop a permanent standard. In December 2021, OSHA withdrew the ETS, with the exception of the recordkeeping and reporting portions, because a final rule could not be completed within the timeframe contemplated by the OSH Act. The ETS, however, continues to serve as a proposed rule for the permanent standard, and OSHA cautioned health care employers to continue to comply with the ETS.

In preparation of issuing the permanent standard, OSHA reopened the rulemaking record to seek comments on topics identified below, which provide insight into the potential differences that may appear in the permanent standard when compared to the ETS.

• 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 health care 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.

Of particular note, OSHA is considering removing the exemptions in the ETS that apply to covered health care settings where all employees are fully vaccinated and/or all non-employees are screened and those with suspected or confirmed COVID-19 are denied entry. (See our earlier blog addressing these exemptions.). As a result, the standard may potentially apply to all facilities where health care services are provided, including non-hospital facilities.

Employers who are potentially impacted by the final rule may submit their comments here, no later than April 22, 2022. Following the comment period, the agency will hold a virtual hearing that will begin on April 27, 2022. Those who wish to speak at the hearing must submit their notice of intention to appear by April 6, 2022.

In the meantime, health care employers must continue to comply with their obligations under the General Duty Clause, Personal Protective Equipment and Respiratory Protection standards, and recordkeeping standards to protected employees against COVID-19 in the workplace.  As a reminder, OSHA is currently engaging in a three-month enforcement initiative that will continue though June 9, during which it intends to conduct between 800-1,250 inspections of hospitals, skilled nursing, and assisted living facilities to assess compliance efforts to address ongoing and future COVID-19 surges.