On December 27, 2021, OSHA announced that because it could not finalize a permanent standard to replace its Healthcare Emergency Temporary Standard (the “Healthcare ETS”) within the 6-month window it had to do so, “it is withdrawing the non-recordkeeping portions of the healthcare ETS.” OSHA says the COVID-19 log and reporting provisions remain effective, and signaled that it intends to use the so-called General Duty clause of the OSHA Act to require healthcare employers to meet standards similar to those that had been in the Healthcare ETS. “OSHA believes the terms of the Healthcare ETS remain relevant in general duty cases in that they show that COVID-19 poses a hazard in the healthcare industry and that there are feasible means of abating the hazard,” and OSHA opines that “[c]ontinued adherence to the terms of the healthcare ETS is the simplest way for employers in healthcare settings to protect their employees’ health and ensure compliance with their OSH Act obligations.”
On June 21, 2021, OSHA released its Healthcare ETS governing healthcare employers such as hospitals, nursing homes, assisting living facilities, emergency responders, home health workers, and certain ambulatory care settings dealing with known or suspected COVID-19 patients. The Healthcare ETS required these employers develop written plans to mitigate the spread of COVID-19, implement patient screening and management strategies, providing PPE and tale other precautions in accordance with CDC guidelines, conduct health screenings of employees, follow requirements for removing employees from the workplace (in most circumstances, with continued pay), and take other precautions.
The Occupational Safety and Health Act (“OSH Act”) authorizes OSHA to implement this kind of emergency temporary standard “to take immediate effect upon publication in the Federal Register” when employees face a “grave danger” justifying such prompt action without the normal formalities. However, the OSH Act contemplates that any such ETS is effective only until superseded by a permanent standard “no later than six months after publication of the emergency standard…” Therefore, the Healthcare ETS expired on December 21, 2021 — that is, six months after its June 21, 2021 publication.
OSHA was silent on the many questions surrounding this issue as that six-month deadline approached (and even for almost a week thereafter). It was not until December 27, 2021, that OSHA released a statement announcing “it intends 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.” However, because OSHA could not complete a final rule within the 6-month window, it also announced “it is withdrawing the non-recordkeeping portions of the healthcare ETS.” The agency takes the position that the COVID-19 log and reporting provisions remain in effect because these were adopted under a separate provision of the OSH Act. The agency “strongly encourages all healthcare employers to continue to implement the ETS’s requirements” to protect employees. OSHA said that as it works on the permanent standard, it “will vigorously enforce the general duty clause and its general standards, including the Personal Protective Equipment (PPE) and Respiratory Protection Standards” and that it “will accept compliance with the terms of the Healthcare ETS as satisfying employers’ related obligations under the general duty clause, respiratory protection, and PPE standards.”
Although many questions remain, OSHA has made clear its opinion that “continued adherence to the terms of the healthcare ETS is the simplest way” for healthcare employers to satisfy their OSH Act obligations. Much less clear, however, is the best route to compliance for healthcare employers trying to navigate these unprecedented times. Separate from the OSHA Healthcare ETS is the more recent “test or vaccinate” ETS applicable to employers with 100 or more employees. That so-called “large employer” ETS faces its own legal challenges, with oral arguments before the Supreme Court set for next week on the status of an emergency stay initially issued by the Fifth Circuit in November and then lifted by the Sixth Circuit on December 17. The FAQs issued by OSHA under the large employer ETS note that it “does not apply to employees in settings covered by the Healthcare ETS while that ETS is in effect.” Consequently, many healthcare employers presumably need to shift their focus from the Healthcare ETS to compliance with the test-or-vaccinate mandate under the large employer ETS and developments in that case.
The CMS vaccine mandate also impacts many healthcare employers. Specifically, certain Medicare- and Medicaid-certified providers and suppliers are grappling with the interim final rule issued by the Centers for Medicare and Medicaid Services (“CMS”), which requires vaccination of all healthcare employees working at CMS-covered facilities. The CMS vaccine mandate also faces legal challenges, including injunctions issued by two federal courts that enjoined the CMS rule across multiple states. Emergency applications to stay those injunctions were filed with the US Supreme Court, and in an extraordinary move, the US Supreme Court has scheduled oral arguments on those emergency applications on the same day it will hear oral argument on the emergency applications to reinstate the stay on the large employer OSHA ETS.
We encourage businesses that have questions about their compliance obligations with respect to the Healthcare ETS, vaccination mandates, or other challenging workplace issues to work with an experienced BrownWinick employment law attorney.