OSHA's Healthcare Emergency Temporary Standard Is Promulgated: The Countdown To A Legal Challenge Begins

Published date09 July 2021
Subject MatterEmployment and HR, Food, Drugs, Healthcare, Life Sciences, Coronavirus (COVID-19), Health & Safety, Employment and Workforce Wellbeing
Law FirmJenner & Block
AuthorMs Gabrielle Sigel

On June 21, 2021, the federal Occupational Safety and Health Administration (OSHA) had its Occupational Exposure to COVID-19, Emergency Temporary Standard (ETS) published in the Federal Register, making it immediately effective on that date. 86 FR 32377 (June 21, 2021). OSHA has the authority to issue an ETS, for immediate application upon publication in the Federal Register, without first proceeding through typical notice-and-comment rulemaking, if OSHA "determines" that "employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards," and an ETS is "necessary to protect employees from such danger." 29 USC '655(c)(1).

Any person "adversely affected" by the ETS may raise a legal challenge in the U.S. Court of Appeals of their principal place of business or residence, within 60 days after the ETS's publication, and the court could then issue a stay of the rule's implementation. 29 USC '655(f)(1). By statute, the "determinations of [OSHA] shall be conclusive if supported by substantial evidence in the record considered as a whole." Id. OSHA has not successfully issued an ETS in more than four decades; the open legal issue is whether OSHA's ETS will survive legal challenge, if any is raised.

Despite its broad title in the Federal Register, the ETS, to be codified at 29 CFR '1910.502, is targeted to specific employment "settings," i.e., "all settings where any employee provides healthcare services or healthcare support services." 29 CFR '1910.502(a)(1). OSHA further narrows the scope of the ETS to apply to those employees who are licensed healthcare providers and likely to be involved in the care of people suspected or confirmed to have COVID-19 and certain fully vaccinated employees. See generally, id. at '1910.502(a)(2) and the OSHA decision tree "Is Your Workplace Covered by the ETS?" The ETS requires that affected employers (1) have a COVID-19 plan, typically in writing, with a designated person in charge of implementing the plan, and based on a risk assessment, providing policies and procedures for control of COVID-19 transmission; (2) institute patient screening and management; (3) implement policies and procedures for precautions, including regarding PPE, response to aerosol-generating procedures, cleaning/disinfecting, physical distancing, and barriers; (4) ventilation standards; (5) have health screening and paid medical removal of employees after illness and exposure; (6) have paid vaccination leave; (7) provide training and communication, including regarding anti-retaliation protections; (8) institute recordkeeping of all COVID-19 cases, regardless of...

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