by Lindsey Phillips
On June 21, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) that was designed to protect healthcare workers from exposure to COVID-19 in settings where people with COVID-19 were reasonably expected to be present. The ETS is separate and apart from OSHA's vaccine mandate, which has been held unenforceable. On December 27, 2021, OSHA announced that it was withdrawing certain aspects of the ETS, but other portions of the ETS (e.g. the COVID-19 log and reporting requirements) would remain in effect. At that time, OSHA stated it would work expeditiously to issue a final rule. OSHA is now prepared to issue a final rule and is requesting additional feedback regarding the ETS during a comment period. This comment period supplements the initial comment period that ended on August 20, 2021 when the ETS was first issued.
On March 22, 2022, OSHA announced that it is reopening the comment period to allow for additional public responses and feedback on specific topics. OSHA is requesting comments from stakeholders on three main categories: 1) potential changes from the ETS; 2) additional information and data; and 3) information necessary for economic analysis. Impacted stakeholders should closely review the specific topics to determine their impact and whether commentary is warranted prior to implementation of the new standards.
Potential Changes
from the ETS
OSHA announced in its notice that there are several provisions it is considering implementing in the final rule that would deviate from those set out in the ETS. Accordingly, OSHA is providing the public an opportunity to comment. Those deviations include, but are not limited to, the following:
Alignment with CDC Recommendations for Healthcare Infection Control Practices - OSHA has acknowledged that there are inconsistencies between CDC recommendations and the ETS requirements; multiple stakeholders made note of this in the initial comment period in 2021. Accordingly, OSHA is considering whether it is appropriate to align its final rule with current CDC recommendations.
Additional Flexibility for Employers - In the initial comment period, some employers expressed that the provisions of the ETS were too rigid and inflexible. The rule required providers to develop specific policies and procedures along with hazard plans. Additionally, the ETS specified how employers were required to implement particular polices and procedures. In response, OSHA is considering restating various provisions as broader requirements and providing a "safe harbor" for employers who are in compliance with the CDC guidelines applicable during the relevant time period.
Tailoring Controls to Address Interactions with People with Suspected or Confirmed COVID-19 - OSHA is considering whether there is a need to have COVID-19 control measures in areas where healthcare workers are not reasonably expected to encounter people with suspected or confirmed COVID-19. For example, OSHA might consider removing facemask requirements for staff who are not exposed to COVID-19 patients. If OSHA were to make this adjustment in its final rule and tailor control requirements to particular areas of a facility or particular staff, it would still require an "outbreak provision," which would require employers to implement stricter control measures during an outbreak.
Requirements for Vaccinated Workers - In the initial comment period, stakeholders voiced that the ETS requirements should be relaxed or eliminated based on either the vaccination status of the specific employee involved, the general vaccination rate of the entire staff, or the general vaccination rate of the community. OSHA is now considering whether to relax facemasking, barrier, and physical distancing requirements in accordance with this feedback.
Evolution of SARS-CoV-2 into a Second Novel Strain - OSHA has acknowledged that it is possible that a future variant of SARS-CoV-2 will have a significant genetic drift to be designated another novel coronavirus strain but will still result in a disease that has similar effects to the current virus. With this in mind, OSHA is considering whether its final rule should explicitly state that it applies to potential subsequent related strains of the virus and not just COVID-19.
Additional Information and Data
OSHA is also requesting that stakeholders provide additional information and data for its consideration in implementing the final rule. The additional information and data OSHA is requesting includes but is not limited to:
The percentage of healthcare workers that have taken days away from work due to a COVID-19 infection and the average number of days healthcare workers have taken away from work,
The rates of infection, hospitalization, and death among healthcare workers compared to that of the general population,
The vaccination rate among healthcare workers and the health effects for fully vaccinated employees, and
Unintended consequences, such as decreases in staffing retention, due to the potential alternatives raised in its notice.
Information for Economic Analysis
The last category OSHA is seeking feedback on is related to information needed to conduct an analysis of the financial impact of the final rule. When implementing a rule, OSHA estimates how much it would cost for an affected entity to be in compliance. In order to determine whether OSHA made a correct analysis in that regard with the ETS, it is requesting information from providers to determine the number of providers impacted and the costs associated with compliance, which may vary by type of provider.
The public comment period opened on March 23, 2022 and closes on April 22, 2022. Stakeholders are encouraged to provide their feedback on these three categories and can do so by submitting a comment electronically to the Federal e-Rulemaking Portal. A public hearing on the final rulemaking will be held virtually on April 27, 2022 and will continue for subsequent days if necessary. People interested in testifying at the hearing or providing documentary evidence must file a written notice of intention to appear using the Notice of Intention to Appear (NOITA) web form by April 6, 2022.
Lindsey Phillips is an associate at Burr & Forman LLP practicing exclusively in the firm's Healthcare Industry Group.
