OSHA Healthcare Emergency Temporary Standard (ETS) Status Update
MAJORITY OF OSHA’S HEALTHCARE ETS NO LONGER IN EFFECT, INCLUDING PAID TIME OFF
On June 21, 2021, OSHA published a Healthcare Emergency Temporary Standard (Healthcare ETS) requiring certain employers to follow various provisions to protect workers from COVID-19 in settings where healthcare or healthcare support services is provided.
An OSHA ETS is in effect until superseded by a permanent standard, a process that is to occur within six months of the ETS’s implementation date.
On December 27, 2021, OSHA announced on its Healthcare ETS webpage that it intends to formulate a final standard regarding COVID-19 workplace hazards as part of a broader approach to infectious disease rulemaking.
Given a final rule was not completed within six months of issuing the Healthcare ETS, OSHA announced that it is withdrawing the non-recordkeeping portions of the healthcare ETS.
The COVID-19 log and reporting provisions, 29 CFR 1910.502(q)(2)(ii), (q)(3)(ii)-(iv), and (r), remain in effect. However, all other provisions, including the Medical Removal Protection Benefits, are no longer in effect.
OSHA made clear that, even though only the recordkeeping portions of the Healthcare ETS officially remain in effect, healthcare employers are strongly encouraged to continue to implement the ETS requirements in order to protect employees from COVID-19 hazards.
While OSHA continues to work on a permanent standard, they will be “vigorously” enforcing the general duty clause and its general standards including the Personal Protective Equipment (PPE) and Respiratory Protection Standards.
OSHA views healthcare employer compliance with the Healthcare ETS as meeting the employer obligations under the general duty clause, respiratory protection, and PPE standards. Healthcare and healthcare support services employers may wish to consider continued adherence to the terms of the Healthcare ETS, as OSHA states this is the simplest way for employers in healthcare settings to ensure compliance with their OSHA obligations.
Note: Employers who were previously covered under the Healthcare ETS may now fall under OSHA’s COVID-19 Vaccination and Testing ETS. This ETS requires that employers with 100 or more employees implement mandatory vaccinations or weekly testing.
The vaccine/testing ETS is currently in effect as of December 17th with updated compliance dates of January 10th for most provisions and February 9th for testing requirements.
The US Supreme Court is set to hear oral arguments on January 7th regarding emergency applications to re-impose a stay on the vaccine/testing ETS, along with emergency applications to stay the injunctions that put the CMS vaccine mandate on hold in 25 states. Employers are recommended to begin or continue compliance efforts with the vaccine/testing ETS.