The Occupational Safety and Health Administration (OSHA) officially ended its COVID-19 Emergency Temporary Standard (ETS) for workers in the healthcare industry, but employers should not consider themselves off the hook. OSHA says it will continue to enforce the standard under the general duty clause while it is working on a permanent rule to replace the ETS.
On Dec. 27, 2021, OSHA announced withdrawal of the non-recordkeeping components of the healthcare ETS, which was adopted last June under an Executive Order issued by President Biden the day after he was inaugurated. (This was completely unrelated to the later ETS issued by OSHA requiring employers of 100 or more workers to make sure they are vaccinated.)
Unless renewed, an OSHA ETS automatically expires after six months under the law, unless the agency decides to renew it. OSHA said it “strongly encourages all healthcare employers to continue to implement the ETS’s requirements in order to protect employees from a hazard that too often causes death or serious physical harm to employees.”
The agency also stressed that “the danger faced by healthcare workers continues to be of the highest concern and measures to prevent the spread of COVID-19 are still needed to protect them.”
OSHA also asserted that it will continue to vigorously enforce certain general standards it has adopted to help protect healthcare employees from the dangers of COVID-19, including personal protective equipment (PPE) and respiratory protection standards, which will be enforced through application of the general duty clause of the Occupational Safety and Health Act.
When the agency later adopted the separate vaccination ETS, healthcare employers who fell under OSHA’s earlier standard issued specifically for their industry were exempted from the vax order, and as such they could be seen as no longer being exempt. It would be wise for healthcare employers to proceed as if that is true, warn employment lawyers.
“This update to the healthcare ETS contributes to an evolving and challenging compliance landscape for healthcare employers in the COVID-19 era,” say attorneys Virginia A. Talley and Shelley M. Jackson of the Krieg DeVault law firm, who also offer some key risk management considerations for employers who were covered by the healthcare ETS:
- Maintain full compliance with all recordkeeping provisions of the healthcare ETS because these provisions remain in effect.
- Determine whether to continue maintaining compliance with the remaining provisions of the healthcare ETS. “While these provisions are technically no longer in force, continued compliance will be viewed favorably by OSHA and may facilitate a smoother transition to achieving compliance with a final standard, once promulgated,” Talley and Jackson point out.
- Determine whether to establish compliance under the OSHA vaccine ETS in settings subject to the healthcare ETS. Although there is a technical argument that it remains in effect (and thus exempts such settings from the OSHA vaccine ETS), the lawyers say that choosing not to comply with the vaccine order without definitive guidance from OSHA may subject a covered employer to heightened risk.
- Continue to monitor the legal and regulatory landscape to identify new or updated compliance obligations.
The Centers for Medicaid and Medicare Services (CMS) late last year issued its own rules for Medicare and Medicaid service providers requiring them to make sure their workers were vaccinated. This took place around the same time as the OSHA vaccination ETS, and both agency actions subsequently faced court challenges mounted throughout the U.S.
The end result was that the Supreme Court recently struck down the OSHA vax order but chose to uphold the CMS vaccination requirement for the workers who are employed by Medicare and Medicaid service providers.
