The Occupational Safety and Health Administration (“OSHA”) announced on its website on December 27, 2021 that it was “withdrawing the non-recordkeeping portion” of its healthcare emergency temporary standard (“Healthcare ETS”). That rule, described in detail here, regulated most healthcare facilities with obligations that included, among other things, employee screening, the designation of a COVID-19 safety coordinator, removing employees from the workplace and paying them if they were positive for, diagnosed with or symptomatic of COVID‑19. In its December 27 statement, OSHA emphasized that it would nevertheless “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.” OSHA goes on to state that compliance with the standards of the Healthcare ETS will be deemed to meet the general duty clause and, with such a statement, seems to imply that compliance with the infection control portions of the ETS may still be expected.
Many Questions Remain
Although OSHA’s announcement technically alleviates all but the recordkeeping obligations imposed by the Healthcare ETS, it leaves many important questions unanswered regarding healthcare organizations’ other obligations. First and foremost is whether they are now covered by OSHA’s November 2021 “vaccine-or-test” emergency temporary standard described here (“vaccine-or-test mandate”). Importantly, OSHA’s own regulations confirm that the vaccine-or-test mandate requirements “do not apply to … [s]ettings where any employee provides healthcare services or healthcare support services when subject to the requirements of §1910.502.” Because the remaining recordkeeping requirements of the Healthcare ETS fall under §1910.502, a strong argument remains that most healthcare organizations are still not covered by OSHA’s vaccine-or-test mandate. As a practical matter, it is also helpful to recall the White House’s previous statement that OSHA’s vaccine-or-test mandate “will not be applied to workplaces subject to the federal contractor [mandate] or CMS [mandate], so employers will not have to track multiple vaccination requirements for the same employees.”
For healthcare organizations that are not covered by OSHA’s Healthcare ETS or the CMS mandate, coverage under the OSHA vaccine-or-test mandate will depend on a number of factors, including whether they have 100 or more employees, whether they operate in states that are covered by federal OSHA or a state OSHA plan, and the outcome of litigation over state laws prohibiting or restricting vaccine mandates.
Of course, the broadest short-term impact on OSHA’s vaccine-or-test mandate may turn on the U.S. Supreme Court’s review of an earlier injunction against that rule scheduled to be heard on January 7, 2022. On that same date, the Court will hear arguments about the partial injunction against the CMS mandate. Hall Render will report on these developments.
Practical Takeaways
- OSHA’s Healthcare ETS is mostly (but not entirely) withdrawn.
- Covered healthcare employers must continue their recordkeeping and reporting obligations under that rule and maintain their general obligations such as honoring the PPE and Respiratory Protection Standards.
- Although a strong argument exists that most healthcare employers will remain uncovered by OSHA’s vaccine-or-test mandate, this position is not risk-free and the analysis could change pending further statements or activity by OSHA or the White House. Consultation with experienced legal counsel is recommended.
- All employers will need to exercise still more patience as the legal issues over their obligations are sorted out by both the courts and administrative agencies.
If you have any questions about the OSHA Healthcare ETS or your organization’s vaccine or testing obligations, please contact:
- Jonathon A. Rabin at (248) 457-7835 or jrabin@wp.hallrender.com;
- Robin M. Sheridan at (414) 721-0469 or rsheridan@wp.hallrender.com;
- Jonathan C. Bumgarner at (317) 977-1474 or jbumgarner@wp.hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer an individual’s questions that may constitute legal advice.
