OSHA Not Required To Accelerate Timeline For Healthcare COVID-19 Standard

• Published date: 05 September 2022
• Subject Matter: Employment and HR, Coronavirus (COVID-19), Health & Safety, Employment and Workforce Wellbeing
• Law Firm: Beveridge & Diamond
• Author: Mr Mark N. Duvall, Jayni A. Lanham and Sarah A. Kettenmann

The Occupational Safety and Health Administration (OSHA) is not legally required to enforce its emergency temporary standard for the healthcare industry (Healthcare ETS), nor must it replace the Healthcare ETS with a permanent standard. The D.C. Court of Appeals held on August 26 that OSHA does not have a clear duty to issue a permanent standard to replace the Healthcare ETS. In re: National Nurses United, et al., D.C. Circ., 22-1002, Doc. No. 1960989 (Aug. 26, 2022). The court's decision follows OSHA's announcement that it would be withdrawing most provisions of the Healthcare ETS and OSHA's withdrawal of its COVID-19 Vaccination and Testing Emergency Temporary Standard, which required the majority of private employers to mandate COVID-19 vaccination or require regular testing. Beyond the log and reporting provisions in the Healthcare ETS, employers face no temporary requirements specific to COVID-19.

In National Nurses United, the D.C. Court of Appeals responded to a petition from healthcare unions for a writ of mandamus requiring OSHA to issue a permanent COVID-19 standard for the healthcare industry. The permanent standard should, petitioners argued, supersede the Healthcare ETS within 30 days. The petitioners urged the court to require OSHA to refrain from withdrawing the Healthcare ETS before promulgating a permanent standard, and to continue to enforce the Healthcare ETS in the meantime.

The Healthcare ETS required healthcare employers to take precautionary measures to protect employees against COVID-19, including developing and implementing a COVID-19 plan for each workplace with policies and procedures to minimize the risk of transmission of COVID-19 for each employee. 29 C.F.R. ' 1910.502. Our prior alert regarding the Healthcare ETS is available here.

OSHA recognized that it would be unable to issue a permanent standard before its statutory deadline and announced its intent to withdraw most requirements of the Healthcare ETS in December 2021. In OSHA's announcement, it stated that it would publish a notice in the Federal Register to implement the withdrawal. Following OSHA's announcement but before any publication in...