OSHA Withdraws Most Provisions of the Healthcare ETS

The Occupational Safety and Health Administration (OSHA) announced today that it is withdrawing the non-recordkeeping portions of the healthcare Emergency Temporary Standard put in place to protect healthcare workers from COVID-19.

The COVID-19 log and reporting provisions, 29 CFR 1910.502(q)(2)(ii), (q)(3)(ii)-(iv), and (r), remain in effect. These provisions were adopted under a separate provision of the OSH Act, section 8, and OSHA found good cause to forgoe notice and comment in light of the grave danger presented by the pandemic. See 86 FR 32559.

OSHA intends to continue to work expeditiously to issue a final standard that will protect healthcare workers from COVID-19 hazards, and will do so as it also considers its broader infectious disease rulemaking. OSHA withdrew the non-recordkeeping portions of the ETS because it anticipates a final rule cannot be completed in a timeframe approaching the one contemplated by the OSH Act.

On June 21, 2021, OSHA adopted a Healthcare Emergency Temporary Standard (Healthcare ETS) protecting workers from COVID-19 in settings where they provide healthcare or healthcare support services. 86 FR 32376. Under the OSH Act, an ETS is effective until superseded by a permanent standard – a process contemplated by the OSH Act to occur within 6 months of the ETS’s promulgation. 29 U.S.C. 655(c).

With the rise of the Delta variant this fall, and now the spread of the Omicron variant this winter, OSHA believes the danger faced by healthcare workers continues to be of the highest concern and measures to prevent the spread of COVID-19 are still needed to protect them. Given these facts, and given OSHA’s anticipated finalization of this rule, OSHA strongly encourages all healthcare employers to continue to implement the ETS’s requirements in order to protect employees from a hazard that too often causes death or serious physical harm to employees.

As the agency works towards a permanent regulatory solution, OSHA 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. The Respiratory Protection Standard applies to personnel providing care to persons who are suspected or confirmed to have COVID-19. OSHA will accept compliance with the terms of the Healthcare ETS as satisfying employers’ related obligations under the general duty clause, respiratory protection, and PPE standards. Continued adherence to the terms of the healthcare ETS is the simplest way for employers in healthcare settings to protect their employees’ health and ensure compliance with their OSH Act obligations.

OSHA believes the terms of the Healthcare ETS remain relevant in general duty cases in that they show that COVID-19 poses a hazard in the healthcare industry and that there are feasible means of abating the hazard. OSHA plans to publish a notice in the Federal Register to implement this announcement.

It is unclear what OSHA’s expectations are for providers in relation to its Vaccination and Testing ETS if healthcare providers continue to follow the provisions of the OSHA Healthcare ETS. The National Association for Home Care & Hospice will continue to follow the developments closely and provide updates as we learn more.