Impending Argument for Reinstating COVID-19 Healthcare ETS – The National Law Review

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Monday, February 21, 2022

On April 4, 2022, a merits panel of the D.C. Circuit Court of Appeals will hear oral arguments on a petition seeking to force OSHA to issue a permanent standard for healthcare occupational exposure to COVID-19 and to reinstate the Healthcare Emergency Temporary Standard on Occupational Exposure (Healthcare ETS) to COVID-19 pending the permanent standard. The D.C. Circuit Court of Appeals referral of this matter to a merits panel was initiated by the Courts own motion.

On December 27, 2021, OSHAannouncedthe withdrawal of the Healthcare ETS and confirmed its intent to issue a permanent infectious disease standard. Less than two weeks later, on January 5, 2022, National Nurses United and several other labor unions filed an Emergency Petition for a Writ of Mandamus and Request for Expedited Briefing and Disposition with the D.C. Circuit Court of Appeals.In re: National Nurses United, et al., No. 22-1002 (D.C. Cir. Jan. 5, 2022).

The unions argue that OSHA has failed to adequately protect nurses and other healthcare workers from COVID-19. OSHA filed its opposition to the petition on January 21, 2022, arguing, among other things, that OSHA was unable to finalize a permanent healthcare standard because it focused the agencys resources on its COVID-19 Vaccination and Testing Emergency Temporary Standard (which was alsowithdrawn). OSHA indicated it expects to complete rulemaking for a permanent healthcare standard within six-to-nine months.

The Healthcare ETS applied in settings where COVID-19 patients are treated, and it required healthcare employers with more than 10 employees to develop and implement written COVID-19 plans that included the following elements:

Assigning a designated safety coordinator;

Patient screening and management;

Policies and procedures to comply with CDC guidelines;

Facemask and PPE requirements;

Protections while using aerosol-generating procedures on persons with suspected or confirmed COVID-19;

Physical distancing;

Solid barriers at employee work stations;

Cleaning and disinfection protocols;

HVAC system requirements;

Health screening and medical management requirements;

Paid leave for vaccinations, vaccination recovery, and medical removal from work due to COVID-19 infection or certain COVID-19 exposures;

Employee training;

Anti-retaliation protections;

Employee COVID-19 logs; and

Reporting work-related COVID-19 fatalities and in-patient hospitalizations.

OSHA has indicated its forthcoming permanent infectious disease standard will cover all industries and address airborne, droplet, and non-bloodborne contact diseases.

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.

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.

Jackson Lewis P.C. 2022National Law Review, Volume XII, Number 52

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Impending Argument for Reinstating COVID-19 Healthcare ETS - The National Law Review