OSHA Withdraws All but Recordkeeping Requirements of its Healthcare ETS

On Dec. 27, 2021, the U.S. Occupational Safety and Health Administration (OSHA) withdrew the vast majority of its Healthcare Emergency Temporary Standard (ETS), which was issued in June 2021. This ETS provided, among other things, stringent requirements for PPE and safety protocols to protect health care workers from COVID-19. It also required covered health care facilities to pay time off for employees missing work due to either a positive test result or experiencing Covid symptoms. Currently, all that remains of the Healthcare ETS are the recordkeeping requirements outlined below.

Why OSHA Withdrew the ETS. Under the OSH Act, an ETS is effective until superseded by a permanent standard – a process contemplated by the OSH Act to occur within six months of the ETS’s promulgation. Because OSHA did not think it could complete the final rule within the allotted timeframe, it withdrew the lion’s share of the Healthcare ETS and has stated, “it intends to continue to work expeditiously to issue a final standard that will protect healthcare workers from COVID-19 hazards, and will do so as it also considers its broader infectious disease rulemaking.”

What About Mandatory Vaccination and Testing? Withdrawal of the Healthcare ETS does not impact OSHA’s Vaccination and Testing ETS, which generally applies to all businesses with 100 or more employees. The Vaccination and Testing ETS remains in place until and unless the U.S. Supreme Court (or some other court) blocks enforcement of the standard. The U.S. Supreme Court is set to hear arguments on OSHA’s Vaccination and Testing ETS on January 7. The U.S. Supreme Court will also hear arguments on the Centers for Medicare and Medicaid Services (CMS) Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (CMS Vaccine Mandate) the same day. Enforcement of the CMS Vaccine Mandate has been blocked in some states, but not others, pending a ruling from the high court.

What Do Employers Still Need to Do? Because compliance obligations related to COVID-19 in the workplace are changing rapidly, businesses should routinely consult with their human resources and legal teams to assess what risks, if any, presently exist for their businesses. With that in mind, below are the remaining obligations for covered health care facilities under the Healthcare ETS.

The following are the OSHA Healthcare ETS recordkeeping requirements, which are still in place for businesses subject to the Healthcare ETS:

• Establish and maintain a COVID–19 log to record each instance identified by the employer in which an employee is COVID–19 positive, regardless of whether the instance is connected to exposure to COVID–19 at work.
• If requested, by the end of the next business day after a request, the employer must provide, for examination and copying:
  • All written COVID–19 plans to any employees or their personal/authorized representatives.
  • The individual COVID–19 log entry for a particular employee to that employee and to anyone having written authorized consent of that employee.
  • A version of the COVID–19 log that removes the names of employees, contact information and occupation and only includes – for each employee in the COVID–19 log – the location where these employee worked, the last day that the employee was at the workplace before removal, the date of the employee’s positive test for or diagnosis of COVID–19, and the date the employee first had one or more COVID–19 symptoms (if any were experienced) to any employee or their personal/authorized representatives.
  • All records required to be maintained by this section to OSHA’s Assistant Secretary.
• Reporting COVID–19 fatalities and hospitalizations to OSHA. Generally, work-related fatalities must be reported within eight hours and work-related in-patient hospitalizations must be reported within 24 hours.