The Occupational Safety and Health Administration (OSHA) has scheduled an April 27 public hearing on establishing a permanent healthcare COVID-19 standard. The agency is seeking input on changes to its June 21, 2021, emergency temporary standard (ETS).
All but the recordkeeping provisions of the ETS was withdrawn on December 27.
The agency does not plan to include a vaccine mandate in the healthcare COVID-19 standard. However, most healthcare facilities are covered by a Centers for Medicare and Medicaid Services’ (CMS) vaccine mandate.
OSHA withdrew its vaccination or testing ETS for all private sector employers on January 26 after the U.S. Supreme Court issued a judicial stay of the emergency rule.
The agency is considering the limited application of the healthcare rule to construction activity inside hospitals.
OSHA also must address a key issue surrounding its rulemaking authority. A final standard requires a finding of “significant risk” from a workplace exposure, while the ETS required a finding of “grave danger.”
OSHA’s rulemaking authority under the Occupational Safety and Health Act also requires that a standard reduce or eliminate significant risk of material impairment of health. The agency is seeking comment on whether the final standard should cover employers regardless of screening procedures for nonemployees and/or vaccination status of employees to ensure all workers are protected.
Other issues identified by the agency include:
- Alignment of the rule with Centers for Disease Control and Prevention (CDC) recommendations for healthcare infection control practices. The CDC’s recommendations have changed since the close of the original comment period for the ETS; OSHA is considering whether it is appropriate to align its final rule with some or all of the CDC recommendations that have changed since then.
- Triggering requirements based on community transmission levels, aligning the rule’s application to the CDC guidance for healthcare settings, which are based on community levels of COVID-19 transmission.
- Application of the rule for new strains of the SARS-CoV-2 virus, such as a hypothetical “COVID-22.”
- Flexibility for employers, restating some of the rule’s provisions (for example, criteria for medical removal and return to work and requirements for aerosol-generating procedures, barriers, cleaning, and ventilation) as broader requirements without the level of detail included in the healthcare ETS.
- Need for COVID-19-specific infection control measures in areas where healthcare employees are not expected to encounter people with suspected or confirmed COVID-19, possibly eliminating certain requirements in the healthcare ETS that applied to all areas of covered healthcare settings.
- Substituting “up to date” for “fully vaccinated” to conform to recommendations from the Advisory Committee on Immunization Practices (ACIP) for additional vaccine doses and boosters.
- Relaxing some requirements (barriers, masking, physical distancing) for facilities in which a high percentage of staff are vaccinated.
- Capping the retention period for COVID-19 logs at 1 year from the last entry in the log.
OSHA also is seeking data gathered and studies completed of the Delta and Omicron variants since August 2021, when the agency closed the comment period for the ETS. The agency also is seeking cost-benefit data for a final rule.
The April 27 public hearing will be held virtually, and additional information will be posted here. The rulemaking notice is scheduled to appear in the Federal Register on March 23, and comments on the rulemaking Docket No. OSHA-2020-0004 would be due April 22.