OSHA’s COVID-19 prevention standard could lapse within days

The Occupational Safety and Health Administration has less than a week to extend its emergency temporary standard on COVID-19 prevention for healthcare facilities but hasn’t yet moved to make the policy permanent, and stakeholders aren’t sure what happens next.

Emergency temporary standards from OSHA are supposed to be finalized within six months of their release. Policies stay in effect until replaced by a final action, an OSHA spokesperson wrote in an email. The spokesperson wouldn’t say whether failing to extend the current standard would count as a final action. The standard is set to expire Dec. 21 unless OSHA issues a final rule.

Providers should continue to monitor developments but a permanent federal rule seems unlikely at this point, said Kevin Troutman, a partner at Fisher Phillips. “There’s still no sign of anything changing, so I don’t sense that there’s going to be any more activity from OSHA there,” he said.

The temporary policy for healthcare facilities, which went into effect June 21, directed employers to provide workers paid time off for COVID-19 vaccinations, erect physical barriers in spaces where social distancing isn’t feasible, record all employee COVID-19 infections and more. Providers maintained the rule was unnecessary and duplicative, and many asked OSHA to align it with Centers for Disease Control and Prevention guidance and to push back compliance dates.

“We urge OSHA to withdraw this [emergency temporary standard]. If, however, the agency declines to do so, we recommend that the [emergency temporary standard be allowed to expire at the end of the six months and not be published as a final rule,” the American Health Association wrote in comments on the regulation in August.

Opposition to the OSHA standard isn’t universal, however. National Nurses United, for example, asked regulators for a permanent rule in a letter last month. “The pandemic is not over. Transmission remains substantial in the United States and in many areas around the world. The potential for increasingly dangerous variants poses a grave threat to the safety of nurses, other healthcare workers and public health,” Deborah Burger, the union’s president, wrote to the Labor Department.

The law is quiet on what happens if OSHA doesn’t issue a permanent standard, Melanie Paul, a principal at Jackson Lewis, wrote in an email.

A permanent standard on COVID-19 prevention in healthcare facilities could be difficult to implement, since the virus is constantly changing. The standard might not even be necessary as more employees have become vaccinated since June, Paul wrote.

The Labor Department published its regulatory agenda for 2022 on Friday, and it includes publishing a broader rule about infection control at healthcare sites but nothing about the COVID-19 standards, suggesting the agency doesn’t intend to extend them.

“The bottom line is that there is a lot of confusion surrounding these issues and the lack of guidance and clarity regarding COVID-19 safety measures makes it difficult for employers to plan for the future,” Paul wrote.

Many providers considered the COVID-19 prevention rules in the temporary standard unnecessary from the beginning because they’d already taken precautions to protect patients and employees, said Claire Ernst, director of government affairs for the Medical Group Management Association.

“Whatever way that the administration goes with this, it would be appreciated if the messaging was clear in terms of whether it is going to lapse or not,” Ernst said.

OSHA’s separate emergency standard directing businesses with 100 or more employees to vaccinate or test workers complicates matters.

The policy, which a court has temporarily blocked, doesn’t affect healthcare facilities subject to the COVID-19 prevention standard. However, if the prevention policy were tossed out and the vaccine requirement were to resume, it’s possible the vaccine policy would apply to healthcare facilities that aren’t covered by a Centers for Medicare and Medicaid Services vaccination mandate, which also is on hold because of a lawsuit.

Providers should continue following other pandemic-related OSHA guidance if the temporary standards lapse so regulators know they are taking precautions to protect workers from COVID-19 infection, Troutman said. “If you’re deviating from that guidance, you better be prepared to explain why,” Troutman said.