COVID-19, Enforcement and Inspection

Are You Ready For OSHA’s Wave of New Rules?

Are you ready for a wave of new federal worker safety and health regulations?

OSHA is moving forward with several rulemakings, three of which are healthcare-specific, that could affect many employers.

If you’re in the healthcare field, you could be facing a permanent COVID-19 standard based on the agency’s 2021 emergency temporary standard (ETS) and infectious disease and workplace violence standards.

Healthcare—COVID-19

OSHA is moving forward with establishing a permanent COVID-19 standard for healthcare based on the agency’s June 21, 2021, ETS. OSHA has requested comment on a permanent standard and scheduled a virtual public hearing on the rulemaking.

Most of the industry-specific ETS was allowed to expire, and OSHA withdrew all but the recordkeeping provisions of the emergency rule on December 27.

Last year, OSHA also issued a broader vaccination or testing ETS covering all private sector employers. However, the agency withdrew it on January 26 after the U.S. Supreme Court issued a judicial stay of the emergency rule.

While OSHA does not plan to include a vaccine mandate in the healthcare COVID-19 standard, most healthcare facilities are covered by a Centers for Medicare and Medicaid Services (CMS) vaccine mandate.

The benchmark for issuing permanent standards under the Occupational Safety and Health (OSH) Act differs from the agency’s authority for emergency rules. A permanent standard must reduce or eliminate significant risk of material impairment of safety or health, while emergency rules must satisfy a two-pronged test: evidence of a grave workplace danger and the need for a temporary rule to address such danger.

OSHA specifically asked for comment on whether a permanent standard should cover employers regardless of screening procedures for nonemployees and/or vaccination status of employees to ensure all workers are protected (indicators of significant risk).

Data has been gathered about and studies have been published on the Delta and Omicron variants of COVID-19 since OSHA closed the comment period for the ETS in August 2021. The agency is seeking submissions of or about new COVID-19 data.

Other issues the agency is weighing include:

  • Aligning the healthcare COVID-19 rule with Centers for Disease Control and Prevention (CDC) recommendations for healthcare infection control practices. Since the close of the original comment period for the ETS, CDC recommendations have evolved.
  • A trigger for the standard’s requirements based on community transmission levels. This would align the rule’s application with CDC guidance for healthcare settings.
  • Application of the rule for new strains of the SARS-CoV-2 virus, such as a hypothetical “COVID-22” that is significantly different from the variants of COVID-19.
  • Incorporating broader requirements in the permanent standard instead of interventions specified in the healthcare ETS, such as criteria for medical removal and return to work and requirements for aerosol-generating procedures, barriers, cleaning, and ventilation. The change would give employers greater flexibility in their compliance.
  • Possibly eliminating requirements contained in the healthcare ETS that applied to all areas of healthcare settings, like those where COVID-19-specific infection control measures may be unnecessary. These include areas where healthcare employees are not expected to encounter people with suspected or confirmed COVID-19.
  • Relaxing requirements like barriers, masking, and physical distancing in facilities where a high percentage of staff are vaccinated.
  • Capping the retention period for COVID-19 logs at one year from the last entry in the logs.

OSHA currently has a COVID-19 enforcement initiative in health care and a National Emphasis Program (NEP) covering healthcare facilities, along with ambulance and home healthcare services; correctional facilities; department stores, groceries, supermarkets, and restaurants; meatpacking and poultry processing facilities; and warehouses and storage facilities.

Healthcare—Infectious diseases

An infectious disease standard would cover the healthcare worker hazards posed by other diseases, as well as COVID-19—diseases like measles, methicillin-resistant Staphylococcus aureus (MRSA), pandemic influenza, severe acute respiratory syndrome (SARS), tuberculosis (TB), and varicella disease (chickenpox, shingles).

The standard would likely cover industries beyond healthcare facilities, such as coroners’ offices, correctional facilities, drug treatment programs, emergency response, homeless shelters, medical examiners, medical laboratories, pathologists, and mortuaries.

During the Obama administration, OSHA conducted a Small Business Regulatory Enforcement Fairness Act (SBREFA) review of a potential infectious disease standard. SBREFA review participants reported that an OSHA infectious disease standard risked overlapping with healthcare facility requirements from the CMS, the Joint Commission and other private sector accrediting organizations, and state accrediting boards.

While CDC infection control recommendations are voluntary, the CMS, the Joint Commission, and other accrediting organizations require healthcare facilities’ compliance with infection control (IC) guidelines. Hospitals and other healthcare facilities must have third-party accreditation to receive payments from the CMS and private insurers, giving healthcare facilities a financial incentive for conforming to voluntary IC recommendations.

Before the COVID-19 pandemic, the National Institute for Occupational Safety and Health (NIOSH) conducted a literature review on workplace infectious disease outbreaks, identifying high-risk industries and occupations. NIOSH’s report in Emerging Infectious Diseases looked at 66 investigations between 2006 and 2015. The institute concluded that cases appear to be concentrated in specific industries and occupations, like the healthcare industry, animal workers, laboratory workers, and public service workers.

NIOSH researchers also found that bacteria were responsible for most reported cases, followed by viruses, fungi, and parasites or protozoa. Researchers also found reports of emerging or reemerging diseases, such as the Ebola virus, lymphocytic choriomeningitis virus, norovirus, Bacillus anthracis (anthrax), and Yersinia pestis (plague), which have caused several clusters of workplace diseases.

California has had an aerosol transmissible diseases (ATD) standard since 2009 that applies to correctional facilities and emergency services, as well as healthcare facilities.

The standard requires that covered employers have written programs and procedures; engineering and work practice controls; biosafety plans for laboratories; respiratory protection; medical services, such as vaccinations and postexposure evaluations; and follow-ups, training, and recordkeeping.

Under the New York Health and Essential Rights (HERO) Act, employers in the state must have infectious disease exposure prevention plans that go into effect when an airborne infectious disease is designated by the New York state commissioner of health as a highly contagious, communicable disease. The commissioner’s designation of COVID-19 as a highly contagious, communicable disease recently ended.

Employer plans in New York must cover employee health screenings, face coverings, personal protective equipment (PPE), hand hygiene stations, regular cleaning and disinfection of frequently touched surfaces and shared equipment, social distancing, compliance with isolation or quarantine orders, proper airflow and ventilation, and a designated supervisor responsible for an employer’s infectious disease exposure prevention plan, as well as antiretaliation protections.

Healthcare—Workplace violence

In the final days of the Obama administration, OSHA granted petitions from the National Nurses Union and a coalition of other labor unions for a rulemaking on workplace violence in healthcare and social services.

There currently is no federal workplace violence standard. OSHA cites employers under the General Duty Clause §5(a)(1) of the OSH Act. The agency also issued voluntary guidelines in 1996 for healthcare and social assistance.

OSHA put out a request for information (RFI) in December 2016, seeking input from healthcare employers, workers, and subject matter experts on the impacts of violence, prevention strategies, and other information about a possible industry-specific standard.

According to the agency, workplace violence is a “widespread problem,” and workers in healthcare and social services occupations face unique safety risks. OSHA pointed to Bureau of Labor Statistics (BLS) data showing that workers at psychiatric and substance abuse hospitals experience the highest rate of violent injuries that result in days away from work—a rate six times that for workers at nursing and residential care facilities.

Electronic filing

OSHA recently proposed reinstating requirements for electronic submission of injury and illness logs and incident reports. Many employers already must electronically submit information from their OSHA annual summary (Form 300A) to the agency. However, the agency had established requirements for larger employers to electronically submit their injury and illness logs and incident reports (OSHA Forms 300 and 301).

On May 12, 2016, OSHA set up requirements for establishments with 250 or more employees to electronically submit information from their OSHA Forms 300, 300A, and 301 once a year.

Filing deadlines were repeatedly extended, and the agency never received the data submissions from Forms 300 and 301 required under the 2016 rule. On January 25, 2019, the agency removed the requirement for electronic submission of OSHA Forms 300 and 301.

The agency now seeks to reinstate those filing requirements, enabling it to post case-specific and establishment-specific data on its website.

Heat illness prevention

Like its workplace violence enforcement, OSHA currently handles heat illness incidents under its General Duty Clause authority in the OSH Act.

On October 27, 2021, OSHA issued an advance notice of proposed rulemaking (ANPRM) containing questions for stakeholders about a possible heat illness prevention standard but no proposed regulatory text.

However, a federal heat standard could apply to hundreds of industries. OSHA noted heat-related hospitalizations and fatalities investigated across nearly 275 industries. A heat illness prevention standard also could apply to small businesses; an assessment of workplace heat-related fatalities found that almost half occurred in “very small establishments” with fewer than 10 employees.

On September 20, 2021, the White House and OSHA announced “enhanced and expanded efforts” to address worker exposures to excessive heat and heat-related illnesses, including developing a federal standard and an NEP. The NEP likely will build upon the agency’s Regional Emphasis Program on heat illness in Arkansas, Louisiana, Oklahoma, New Mexico, and Texas (Region 6) focused on outdoor workers.

Other developments at OSHA

OSHA also has rulemakings in the works for:

  • Communication tower safety,
  • Emergency response,
  • Process safety management and prevention of major chemical accidents, and
  • Tree care.

The agency currently covers communication tower safety and the tree care industry under various existing standards, but it’s looking for more focused approaches to regulating safety in these industries. The agency’s regulations for emergency response have not kept pace with developments in accepted practices and nongovernmental consensus standards.

The U.S. Chemical Safety and Hazard Investigation Board (CSB), which investigates chemical accidents, has 14 open recommendations for OSHA to address catastrophic chemical accidents.

OSHA also is pursuing revocation of its approval of Arizona’s safety and health plan because the state did not adopt the federal healthcare COVID-19 ETS.

The workplace safety and landscape could change in the next few years. Will you be ready?