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OSHA Seeks Additional Comments on the COVID-19 Healthcare ETS

OSHA Seeks Additional Comments on the COVID-19 Healthcare ETS

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Courtesy of the National Association for Home Care & Hospice (NAHC)

The Occupational Safety and Health Administration (OSHA) has issued a Federal Register notice to allow for additional public comments and scheduled an informal public hearing related to the development of a final standard to protect health care and health care support service workers from workplace exposure to the COVID-19 virus.

On June 21, 2021, OSHA issued an Emergency Temporary Standard (ETS) to protect workers in health care settings from occupational exposure to COVID-19. The ETS focused on health care workers most likely to have contact with people infected with the virus. The ETS took effect immediately, and all but the recordkeeping and reporting requirements, expired on December 27, 2021, The ETS served as a proposed rule for COVID-19 standards. OSHA requested public comments on whether the ETS should become permanent.

OSHA is requesting stakeholder comments on changes to the ETS along with other areas of interest.

Potential changes from the ETS:

  • Alignment with the Centers for Disease Control and Prevention (CDC) recommendations for health care infection control practices
    • OSHA is considering whether it is appropriate to align its final rule with some or all of the CDC recommendations that have changed between the close of the original comment period for this rule and the close of this comment period.
  • Additional flexibility for employers
    • OSHA is considering restating various provisions as broader requirements without the level of detail included in the ETS and providing a “safe harbor” enforcement policy for employers.
  • Removal of scope exemptions (e.g., ambulatory care facilities where COVID-19 patients are screened out; home health care)
    • OSHA is considering whether the scope of the final standard should cover employers regardless of screening procedures for non-employees and/or vaccination status of employees.
  • Tailoring controls to address interactions with people with suspected or confirmed COVID-19
    • OSHA is considering the need for COVID-19-specific infection control measures in areas where health care employees are not reasonably expected to encounter people with suspected or confirmed COVID-19.
  • Booster doses, employer support of employee vaccination, and requirements for vaccinated workers; although OSHA is not considering at this time requiring mandatory vaccination for employees
    • OSHA is considering an adjustment to the requirement that would include paid time up to four (4) hours, including travel time, for employees to receive a vaccine and paid sick leave to recover from side effects.
    • OSHA is considering whether to limit the provisions that provide support for vaccination to employees not covered by the Centers for Medicare & Medicaid Services (CMS) vaccination rule.
    • OSHA is considering suggestions that requirements be relaxed: for masking, barriers, or physical distancing for vaccinated workers in all areas of health care settings, not just where there is no reasonable expectation that someone with suspected or confirmed COVID-19 will be present.
  • Limited coverage of construction activities in health care settings
    • OSHA is considering the same coverage for workers engaged in construction work inside a hospital.
  • New cap for the COVID-19 log retention period
    • OSHA proposes to cap the record retention period for the COVID-19 log at one year from the date of the last entry in the log.
  • Triggering requirements based on the level of community transmission
    • OSHA is considering linking regulatory requirements to measures of local risk, such as the CDC’s community transmission used in the CDC’s guidance for health care settings.
  • Evolution of SARS-CoV-2 into a second novel strain
    • OSHA is considering specifying that this final standard would apply not only to COVID-19, but also to subsequent related strains of the virus that are transmitted through aerosols and pose similar risks and health effects.

OSHA is also seeking data requests on the impact of COVID-19 and information for economic analysis for implementing permanent COVID-19 related standards.

Public comments are due April 22, 2022. A virtual public hearing will begin on April 27, 2022. If necessary, the hearing will continue on subsequent days. Individuals interested in testifying at the hearing must submit a notice of intention to appear by April 6, 2022. Before the hearing, OSHA will make the hearing procedures and hearing schedule available on this webpage.

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