On January 13^th, 2022, the Supreme Court stayed OSHA’s ETS requiring employers with over 100 employees to either require vaccination or require weekly testing of unvaccinated workers.  The case returns to the Sixth Circuit court of Appeals.  The Supreme Court found the standard far too broad.  If OSHA’s standard had addressed specific hazardous features of an employee’s job or workplace, it may have been upheld.

At this time, the requirements of the OSHA Vaccination and Testing ETS for employers with 100 or more employees need not be implemented.  We will issue more information as the Sixth Circuit Court of Appeals rules further.

In addition, OSHA’s original COVID Healthcare ETS has been withdrawn, other than the recordkeeping portions.  This does not mean that all COVID-19 measures can now come to an end.  In fact, OSHA fully intends to utilize the General Duty Clause to ensure that healthcare entities continue to protect employees from infectious disease hazards.  In addition, an infectious disease final rule is being expedited, and may be published within the first quarter of 2022.  This has been documented in the agency’s regulatory agenda.

Eagle Associates advises that all healthcare employers continue with existing COVID-19 protocols such as screening, PPE and engineering controls. Certain provisions, such as medical removal benefits are now expired, but safety protocols that have been implemented should remain in place.  Failing to do so would place workers at risk, and your organization would be vulnerable to OSHA enforcement actions.

Please see the quotes from OSHA below and contact our office if there are questions on maintaining protective measures with regard to infectious diseases such as COVID-19.

“OSHA announces today that 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. However, given that OSHA anticipates a final rule cannot be completed in a timeframe approaching the one contemplated by the OSH Act, OSHA also announces today that it is withdrawing the non-recordkeeping portions of the healthcare ETS. The COVID-19 log and reporting provisions, 29 CFR 1910.502(q)(2)(ii), (q)(3)(ii)-(iv), and (r), remain in effect.”

“With the rise of the Delta variant this fall, and now the spread of the Omicron variant this winter, OSHA believes the danger faced by healthcare workers continues to be of the highest concern and measures to prevent the spread of COVID-19 are still needed to protect them. Given these facts, and given OSHA’s anticipated finalization of this rule, OSHA strongly encourages all healthcare employers to continue to implement the ETS’s requirements in order to protect employees from a hazard that too often causes death or serious physical harm to employees.”

“As OSHA works towards a permanent regulatory solution, OSHA will vigorously enforce the general duty clause and its general standards, including the Personal Protective Equipment (PPE) and Respiratory Protection Standards, to help protect healthcare employees from the hazard of COVID-19. The Respiratory Protection Standard applies to personnel providing care to persons who are suspected or confirmed to have COVID-19. OSHA will accept compliance with the terms of the Healthcare ETS as satisfying employers’ related obligations under the general duty clause, respiratory protection, and PPE standards. Continued adherence to the terms of the healthcare ETS is the simplest way for employers in healthcare settings to protect their employees’ health and ensure compliance with their OSH Act obligations.”

OSHA published its Occupational Exposure to COVID-19: Emergency Temporary Standard (ETS) on Monday, June 21, 2021. Affected employers must comply with all requirements of the standard, except for requirements concerning physical barriers, ventilation and training, by July 6, 2021. The same employers are allowed two additional weeks to comply with physical barrier, ventilation and training requirements (by July 21, 2021).

How to Determine Whether Your Practice is Covered by the ETS

If your workplace meets all of the following conditions, the ETS does not apply to your workplace:

• It is a non-hospital ambulatory care setting;
• ALL non-employees are screened prior to entry; and
• People with suspected or confirmed COVID-19 are not permitted to enter.

There are additional exemptions for well-defined hospital ambulatory care settings and home healthcare settings that meet certain conditions. To view a flow chart that illustrates the various exemptions, please go to: https://www.osha.gov/sites/default/files/publications/OSHA4125.pdf

New Requirements

Some of the notable additions to OSHA’s guidance include:

• Medical removal policies and medical removal protection benefits for employees.
• A requirement to provide paid time off for employees to receive COVID-19 vaccination and to recover from side effects following vaccination.
• A requirement to install physical barriers where each employee is not separated from all other people by at least 6 feet of distance (except in patient care areas or resident rooms)*
• When respirators are not required, but are voluntarily provided by the employer or employees, the employer must develop a Mini Respiratory Protection Program. (A full Respiratory Protection Program is still required if respirators are required to be worn, as is the case when employees will be present during aerosol-generating procedures or exposed to patients with suspected or confirmed COVID-19 infection).
• Employers with more than 10 employees will be required to maintain a COVID-19 log to record each instance in which an employee is COVID-19 positive, without regard to occupational exposure.
• Employers who own or control their facility’s HVAC systems must ensure that the systems are used according to manufacturer’s instructions and design specifications, and that air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher if the system allows it.

* The ETS exempts fully vaccinated workers from masking, distancing, and barrier requirements when in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.

Please visit the following OSHA web page for a full copy of the ETS, FAQs, specific instructions for the COVID-19 log and more:  https://www.osha.gov/coronavirus/ets

OCR has been made aware of postcards being sent to health care organizations informing the recipients that they are required to participate in a “Required Security Risk Assessment” and they are directed to send their risk assessment to www.hsaudit.org.  This link directs individuals to a non-governmental website marketing consulting services.

Please be advised that this postcard notification did not come from OCR or the U.S. Department of Health and Human Services.  This communication is from a private entity – it is NOT an HHS/OCR communication.  HIPAA covered entities and business associates should alert their workforce members to this misleading communication.  Covered entities and business associates can verify that a communication is from OCR by looking for the OCR address or email address, which will end in @hhs.gov, on any communication that purports to be from OCR, and asking for a confirming email from the OCR investigator’s hhs.gov email address.  The addresses for OCR’s HQ and Regional Offices are available on the OCR website at https://www.hhs.gov/ocr/about-us/contact-us/index.html, and all OCR email addresses will end in @hhs.gov.  If organizations have additional questions or concerns, please send an email to: OCRMail@hhs.gov.

Suspected incidents of individuals posing as federal law enforcement should be reported to the Federal Bureau of Investigation.