On March 23, 2022, the Occupational Safety and Health Administration (OSHA) published a notice in the federal register announcing a limited re-opening of the comment period regarding OSHA’s final standard to protect healthcare and healthcare support service workers from occupational exposure to COVID-19. The comment period will end on April 22, 2022, and the virtual public hearing will be held on April 27, 2022. The Emergency Temporary Standard (ETS) for Occupational Exposure to COVID-19 for healthcare and healthcare support service workers (OSHA Healthcare ETS) was originally published on June 21, 2021. OSHA has re-opened the comment period to allow stakeholders to address changes the agency is considering that depart from the June 2021 version of the OSHA Healthcare ETS.
Potential changes in the OSHA Healthcare ETS
Below is a partial list of the potential changes proposed by OSHA to the OSHA Healthcare ETS:
- Aligning the OSHA Healthcare ETS with CDC recommendations which have evolved since the June 2021 OSHA Healthcare ETS was published.
- Adding Flexibility for Employers: Restating and broadening implementation requirements regarding required policies and procedures and providing a safe-harbor enforcement policy for employers that comply with CDC guidance.
- Removing Scope Exemptions: the OSHA Healthcare ETS will be adopted under section 6(b) of the OSH Act requiring that the standard substantially reduce or eliminate a significant risk of material impairment to health to the extent feasible. Due to the different risk assessment, OSHA is considering subjecting employers to the final standard regardless of screening procedures for non-employees or vaccination status of employees.
- Limiting controls based on the potential for exposure: OSHA is considering an infection control approach that is better balanced to address the level of risk in the specific area of the healthcare setting.
- Redefining vaccination status: OSHA is considering changes based on recommended additional COVID-19 vaccine doses and booster shots.
- Requiring paid leave related to obtaining a COVID-19 vaccine: OSHA is considering an adjustment to the provisions to provide employees with up to four hours, including travel time for employees to receive a vaccine and recover from any side effects. OSHA is considering whether to limit provisions regarding support for vaccinations to employees not covered by the Centers for Medicare & Medicaid Services (CMS). OSHA is not considering mandating vaccines for employees.
- Relaxing OSHA Healthcare ETS requirements in settings with vaccinated workers or based on the general vaccination rate in the community.
- Extending coverage of the OSHA Healthcare ETS to the construction industry when working in healthcare settings.
- Adjusting recordkeeping and reporting requirements for COVID-19.
- Linking OSHA Healthcare ETS requirements to local community transmission levels.
- Extending the OSHA Healthcare ETS to subsequent related strains and mutations of the SARS-COV-2 virus.
- Revising the data used for economic analysis to improve estimated costs.
OSHA also seeks updated data related to 1) the effects of the Delta and Omicron variants on the health of healthcare workers, 2) vaccination rates and vaccine efficacy and 3) impacts on staffing retention.
Individuals or businesses interested in presenting testimony at the public hearing, must comply with the requirements listed in the federal register and submit a notice of intention to appear at the hearing by April 6, 2022.
If you have questions regarding the OSHA Healthcare ETS or seek information regarding the related commentary period and public hearing, contact Donna Pryor, Tracey O’Brien or your Husch Blackwell attorney.