As of Tuesday, December 22, it has been 6 months since OSHA issued its Emergency Temporary Standard (ETS) protecting the nation’s health care workers from COVID-19. Although OSHA has not made a statement, the standard remains in effect and enforceable.
Some reporters have declared the health care ETS dead, assuming that Emergency Temporary Standards are only in effect for 6 months because section 6(c)(3) of the Occupational Safety and Health Act (OSHAct) states that the ETS shall serve as a proposal for a final standard that shall be issued “no later than six months after publication of the emergency standard.”
But Section 6(c)(2) of the OSHAct states clearly that the ETS “shall be effective until superseded by a standard promulgated in accordance with the procedures prescribed in paragraph (3) of this subsection.” In other words, employers should continue to comply with the standard and OSHA will continue to enforce the standard.
The OSHAct states clearly that the ETS “shall be effective until superseded by a standard promulgated in accordance with the procedures prescribed in paragraph (3) of this subsection.”
OSHA’s has simply missed a deadline contained in the standard. Despite the intention of the original authors of the OSHAct, it is impossible in 2021 to go through the entire regulatory process and issue a final standard in 6 months. In fact, in 2011, the Government Accountability Office estimated that it takes an average of 7 years to issue a final OSHA standard, but recent major standards, like silica and beryllium, have taken almost 20 years to issue.
There are other impossible deadlines in the OSHAct that OSHA routinely ignores and the Courts have never shown any concern. For example, Section 6(b)(4) of the OSHAct requires OSHA to issue a final standard (or to decide not to issue a final standard) within sixty days of the end of the public hearing or the deadline for submission of comments. Now I wouldn’t swear on my life that OSHA has never met that deadline, but certainly not in the last 40 years.
In fact, just conducting the small business review process (SBREFA) takes close to 6 months from beginning until final report. Add in hearings, pre-hear and post-hearing comments, time to respond to every witness testimony and comment submitted, as well as White House review — all starts adding up to years, even with adequate funding and resources, which OSHA does not have. In fact, not only has OSHA’s standards budget not received an increase in over ten years, but it was actually cut by 10% in the first year of the Trump administration.
Although OSHA has not yet issue a statement concerning the continuing enforceability of the standard (possibly due to the ongoing judicial quagmire surrounding its more recent Vax-or-Test standard), its heart still beats strong, according to experts.
“If you are healthcare worker, please let your employer know the OSHA Healthcare ETS is still in effect. — Dr. David Michaels
Former OSHA Assistant Secretary David Michaels tweeted that OSHA’s inability to meet the 6 month deadline, “does NOT mean the old standard disappears at the end of 6 months. It just means OSHA missed its deadline. ” Michaels advised
“If you are healthcare worker, please let your employer know the OSHA Healthcare ETS is still in effect. Healthcare facilities should not be rollbacking worker protections. In fact, with Omicron surging, they should be increasing worker protections. “
According to AFL-CIO health and safety director Rebecca Reindel,
“Under the clear terms of the statute, the health care ETS remains in effect until rescinded or replaced by a permanent rule, at a time when Covid-19 infections are surging amidst the highly transmissible Omicron variant, it would be totally irresponsible for health-care employers to ignore or roll back their compliance with this health-care standard.”
Meanwhile, More than 40 unions and other organizations signed a petition, along with more than 6,300 individuals, to urge OSHA to issue a permanent standard on Covid-19 in health care workplaces. National Nurses United, the union that sponsored the petition has called on OSHA to issue a permanent COVID-19 standard.
“It is unconscionable that OSHA would not issue a permanent Covid-19 health care standard to protect nurses and other healthcare workers,” said NNU Executive Director Bonnie Castillo, RN. “Without an eventual permanent standard, we will see more transmission of the virus, more hospitalizations, and more deaths from Covid-19. Nurses and other health care workers have been putting their lives on the line since the pandemic began.
Unlike the most recent ETS which only requires vaccination or testing. the health care ETS is a much more comprehensive standard requiring covered health care employers to conduct a hazard assessment, and develop and implement a written COVID-19 plan to mitigate virus spread. The health care ETS also requires healthcare employers to provide some employees with N95 respirators or other personal protective equipment. In addition, covered employers must ensure 6 feet of distance between workers where feasible, or in situations where this is not possible, employers must erect barriers between employees, where feasible, provide adequate ventilation and train employees about the plan.
Other Legal Updates
Meanwhile, on the vax-or-test ETS front, following the 6th Circuit Court of Appeals decision to lift the stay issued by the 5th Circuit, the Supreme Court has agreed to hold a special hearing on January 7 to consider whether to re-apply the stay, and at the same time determine whether to lift the stay on the health care worker vaccination mandate issued last month by the Center for Medicare and Medicaid Services (CMS). The OSHA standard would cover an estimated 80 million workers, while the CMS regulation would cover approximately 17 million health care workers. In a clear declaration of a war on Christmas, the Court has required OSHA to submit briefs by December 30. No figgy pudding for you, DOL staff!!