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Osha Healthcare Workers

Regulatory Update: OSHA Targets Healthcare Employers

Feb. 24, 2022
OSHA plans to step up enforcement and is seeking to revive earlier ETS.

American healthcare workers suffered from a massive 249% rise in workplace injury and illness rates reported to the Occupational Safety and Health Administration (OSHA) in 2020, the U.S. Department of Labor (DOL) reported on Feb. 17.

Much of this was blamed on the extraordinary strains put on healthcare workers at all career levels by the explosive growth of COVID-19 as it ran through the population during the pandemic’s first year.

“They encountered serious safety and health hazards while serving those in need and labored countless hours battling the pandemic,” the department said of these frontline workers. “In fact, healthcare and social assistance workers combined for more injuries and illnesses than any other industry in the nation.”

However, healthcare workers face numerous safety hazards every day that exist well beyond the dangers associated with COVID-19, observe attorneys for the law firm of Seyfarth Shaw. As a result, OSHA is urging healthcare employers to continue to comply with their worksite safety and health obligations under the General Duty Clause, the Personal Protective Equipment (PPE) and Respiratory Protection Standards, as well as other applicable OSHA standards to protect their employees against the multiple hazards they face.

“We recognize our caregivers for the extraordinary sacrifices they continue to make working on the frontline throughout the pandemic to keep us healthy and safe—and we owe it to them to ensure their employers are doing all they can to protect them,” said Assistant Secretary of Labor for Occupational Safety and Health Douglas Parker, who heads the DOL agency. “The dangers healthcare workers face continue to be of the highest concern and measures to prevent the spread of COVID-19 are still needed to protect them.”

Based on the mammoth increase reported in workplace injuries and illnesses being experienced by healthcare workers, employers should expect that OSHA also will increase its oversight and enforcement activity, although in what form that will take has not yet been spelled out.

However, the Seyfarth Shaw attorneys stress, “Employers are advised to review their safety and health policies and procedures to ensure they are accurate and up to date, and to double check that employees have been trained and have the necessary PPE.”

Before the Supreme Court issued its decision striking down OSHA’s mandated vaccine Emergency Temporary Standard (ETS), the agency had announced on Dec. 27, 2021, that it was withdrawing the COVID-19 ETS for healthcare workers, which was adopted last June under a separate executive order Biden signed on Jan. 21, 2021, one day after his inauguration. That non-vaccine ETS was issued last June, applying only to workers in the healthcare industry.

Because any ETS order can last only six months unless formally renewed by the agency, the withdrawal announcement was redundant except that it laid out how the agency intended to pursue the same requirements in the future after conducting a more normal rulemaking proceeding to establish a permanent standard aimed at instructing employers how to handle infectious diseases in the workplace.

In a separate development, a panel of the D.C. Circuit U.S. Court of Appeals scheduled an April hearing to hear oral arguments on whether it should require OSHA to issue a permanent standard for healthcare occupational exposure to COVID-19. This was in response to a petition filed by nurses and other labor unions.

The unions explained to the court that OSHA was unable to finalize a permanent healthcare standard because it had chosen to focus the agency’s resources on its COVID-19 vaccination and testing ETS program.

The agency earlier had said that it expects to complete rulemaking for a permanent healthcare standard within six-to-nine months. OSHA also has indicated its forthcoming permanent infectious disease standard will cover all industries and address airborne, droplet and non-bloodborne contact diseases.

In the meantime, OSHA may look to its earlier healthcare ETS standards when applying the General Duty Clause to the healthcare employers it regulates, says attorney Catherine A. Cano of the Jackson Lewis law firm. These earlier standards applied to employers with 10 or more employees and dealt with things like assigning a designated safety coordinator; patient screening and management; facemask and PPE requirements; workstation safety design; and cleaning and disinfection protocols.

“While OSHA has indicated it may use the now-withdrawn healthcare ETS to support citations against healthcare employers under the General Duty Clause of the OSH Act, only the COVID-19 log and reporting provisions formally remain in effect,” Cano points out.

“Reinstatement of the healthcare ETS would have a significant impact on covered employers, particularly as COVID-19 cases appear to be dropping throughout the country and more jurisdictions are loosening restrictions.”

In January, at the same time the Supreme Court struck down OSHA’s vaccine and testing ETS, the court upheld a vaccine mandate issued by the federal Centers for Medicare and Medicaid Services (CMS) requiring the 76,000 healthcare facilities that accept federal money—including hospitals and long-term care facilities—vaccinate their more than 10.3 million workers.

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