In June of 2021, OSHA published an Emergency Temporary Standard (“ETS”) in order to protect health care and health care support service workers from exposure to COVID-19 while at work. The ETS took immediate effect, though at the time, OSHA requested comments on the specifics of the ETS, including whether it should become permanent.
OSHA is now preparing to make the ETS permanent, but because the majority of the comment period took place prior to when the Delta and Omicron variants became widespread in the US, OSHA has announced that it will reopen the comment period for an additional 30 days and hold an informal public hearing on the ETS beginning on April 27, 2022 and continuing for several days, if needed. Those who want to provide oral testimony or evidence on the issues need to notify OSHA by April 6, 2022.
OSHA has requested comments on topics that include the following:
- Whether the ETS should align with CDC recommendations for health care infection control practices
- Whether OSHA should broaden certain requirements on cleaning, ventilation and barriers
- Whether the ETS should provide a “safe harbor” for employers who are in compliance with CDC guidance applicable during the period at issue
- Whether scope exemptions should be removed such that employers will be covered by the final rule regardless of screening procedures for non-employees and/or vaccination status of employees
- Whether OSHA should tailor infection control requirements to particular areas of a facility or particular staff rather than applying the rule to all areas of covered health care settings
- Whether the ETS should apply to not only COVID-19 but also subsequent related strains which could be genetically different enough to be designated as their own novel coronavirus strains
- Whether paid time for employees to receive the vaccine should be adjusted to 4 hours and whether employers should be required to provide paid sick leave to its employees recovering from COVID side effects
- Whether the ETS should be relaxed or eliminated based on the vaccination status of the individual worker involved, the general vaccination rate of the entire staff and/or the community’s vaccination rate, thereby linking regulatory requirements to local COVID-19 transmission and risk levels.
In light of the US Supreme Court’s invalidation of OSHA’s vaccination-or-testing requirement earlier this year, OSHA is not currently considering requiring mandatory vaccination for employees covered by this final rule. Most of the rule’s covered employees already fall under the COVID-19 vaccination requirement for health care workers promulgated by CMS. OSHA indicated that it might limit paid vaccine leave requirements to employers not covered by the CMS mandate.
OSHA also requested that facilities submit data related to the burdens and costs of compliance and employee vaccination rates to help inform the final standard.
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