On December 27, the Occupational Safety and Health Administration issued a statement announcing the withdrawal of the non-recordkeeping portions of its health care emergency temporary standard (ETS). OSHA originally announced the ETS on June 21, and it applied to health care settings where any employee provides health care services or health care support services. But it did not apply to a few specific settings, for example, non-hospital ambulatory care settings where all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings, well-defined hospital ambulatory care settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings, or home health care settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not present.
OSHA’s health care ETS required covered employers with more than 10 employees to develop and implement written COVID-19 safety plans. The written COVID-19 safety plans required procedures such as assigning a safety coordinator for compliance, a workplace specific hazard assessment, involvement of non-managerial employees in hazard assessment and plan development/implementation, patient screening and management, PPE requirements, physically distancing indoors, and more, at no cost to the employee. Under OSHA’s statutory authority, the ETS can only remain in effect for six months.
In withdrawing the non-recordkeeping portions of the ETS this week, OSHA made clear that the “COVID-19 log and reporting provisions, 29 CFR 1910.502(q)(2)(ii), (q)(3)(ii)-(iv), and (r), remain in effect.” This means that, as of now, the mandatory written COVID-19 safety plan provision of the health care ETS is no more, but covered health care employers still need to:
- Establish and maintain a COVID-19 log to record each instance identified by the employer in which an employee is COVID-19 positive, regardless of whether the instance is connected to exposure to COVID-19 at work.
- Report to OSHA each work-related COVID-19 fatality within eight hours of the employer learning about the fatality, as well as each work-related COVID-19 inpatient hospitalization within 24 hours of the employer learning about the inpatient hospitalization.
What About OSHA’s Broader Vaccinate-or-Test Mandate?
Employers covered by OSHA’s health care ETS were specifically excluded from having to comply with OSHA’s broader vaccinate-or-test ETS, which applies across industries to employers with 100 or more employees. Since OSHA has chosen to keep parts of the health care ETS in effect, employers could argue that the exemption from the broader ETS remains applicable. However, OSHA’s withdrawal notice says that the remaining recordkeeping and reporting requirements are supported by statutory authority beyond the ETS authorization. This could be an indication that OSHA considers the broader ETS to apply to larger health care employers. Hopefully, the agency will soon provide clarification on this important question.
Next Steps for Health Care Employers
Finally, OSHA notes clearly that it will “vigorously enforce the general duty clause and its general standards, including the Personal Protective Equipment (PPE) and Respiratory Protection Standards, to help protect healthcare employees from the hazard of COVID-19.” It encourages health care employers that a simple way to come into compliance with these obligations is to comply with the (now optional) full terms of the OSHA health care ETS. This means that health care employers could still be cited if OSHA concludes that they are not following generally accepted industry safety practices, such as maintaining a written infection control plan. However, this general duty would not apply to the ETS requirement for employers to provide exclusion pay to employees who miss work due to a COVID-19 diagnosis. Health care employers are free to continue or discontinue this benefit.