In June, the federal Occupational Safety and Health Administration issued an Emergency Temporary Standard (ETS) for COVID-19 preventative measures by health care employers. Among other steps, the ETS required covered employers to adopt a written plan that detailed their infection control procedures, including patient screening, masking, and physical distancing requirements. Federal OSHA withdrew the ETS in December without issuing a permanent safety standard.

Under the OSH Act, states that administer their own OSHA programs had additional time to consider whether to adopt the federal ETS or to propose their own equivalent rules covering these risks. North Carolina, like most state programs, eventually adopted the federal ETS verbatim, but not until the statutory deadline. This left North Carolina in the unusual position of having the healthcare ETS in effect after federal OSHA withdrew the rule in December. NCOSHA said that the ETS would need to remain in effect until at least February 28.

Last week as expected, NCOSHA announced that it is repealing the healthcare ETS effective March 4. This means that covered employers are no longer required to follow the specific steps contained in that rule. However, NCOSHA continues to have the ability to cite health care employers for unsafe infection control measures under the General Duty Clause. This allows the agency to issue citations when it concludes that an employer is placing employees at risk of death or serious injury, even in the absence of a specific safety standard.

Health care employers in North Carolina should continue to monitor and implement COVID-19 control measures recommended by OSHA and the CDC. These measures should be incorporated into a written policy that is regularly reviewed and updated. In addition, federal OSHA has announced its intent to issue both a permanent COVID-19 standard for health care employers, and a broader infectious disease control regulation that would include health risks beyond the coronavirus.