Update on OSHA Emergency Temporary Standards

Posted on January 6, 2022 by Jonathan Lips

We continue to monitor the status of the OSHA emergency temporary standards relating to COVID-19, and here is the latest available information.

Healthcare Emergency Temporary Standard Remains in Effect Until Jan. 19

Federal OSHA announced last week that it is withdrawing the non-record-keeping portions of the COVID-19 Healthcare ETS issued in June 2021. Because Minnesota OSHA (MNOSHA) adopted the Healthcare ETS effective July 19, 2021, the expiration date for the non-record-keeping provisions in our state is Jan. 19, 2022 (six months after its adoption). MNOSHA will continue to enforce those provisions until then. 

The agency updated the CDC's interim guidance for Managing Healthcare Personnel with SARS-CoV-2 Infection or Exposure to SARS-CoV-2 on Dec. 23, 2021. The website notes that, until the ETS expires in Minnesota, employers following the current CDC guidance for isolation and quarantine will be considered in compliance with the ETS.

After Jan. 19, MNOSHA will enforce and require employers to comply with obligations under the general duty clause and other current standards, such as the personal protective equipment and respiratory protection measures, to help protect healthcare employees from the hazard of COVID-19. Notably, federal OSHA strongly encourages all healthcare employers to continue implementing the Healthcare ETS requirements to protect employees.

As noted, the following record-keeping requirements will remain in effect beyond Jan. 19:

• 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 (§1910.502(q)(2)(ii));
• Make logs available for examination and copying (§1910.502(q)(3)(ii)-(iv)); and
• Reporting COVID–19 fatalities and hospitalizations to OSHA (§1910.502(r)).

Vaccination-and-Testing ETS Implementation Deadlines Lie Ahead

The US Supreme Court will hear arguments on Friday, Jan. 7, about whether to reinstate an injunction to block implementation of OSHA's Vaccination and Testing ETS, in addition to arguments concerning the CMS vaccination mandate. The hearings will be broadcast live at the Supreme Court’s homepage beginning at 9 a.m.

Pending the Supreme Court decision, federal OSHA intends to implement and enforce the Vaccination and Testing ETS and has established compliance dates of Jan. 10 (policy development and other requirements) and Feb. 9 (implementation of testing protocols).

Minnesota OSHA, in turn, has adopted the Vaccination and Testing ETS by reference on Jan. 3 and issued a statement noting that it will exercise similar enforcement discretion for the compliance dates and will follow federal OSHA's timeline.

The withdrawal of the Healthcare ETS noted above means that the Vaccination and Testing ETS will apply to Minnesota settings covered by the Healthcare ETS when that ETS expires on Jan. 19 for those employers with 100 or more employees. MNOSHA confirmed for LeadingAge Minnesota that, for settings subject to the Healthcare ETS, the Jan. 10 compliance deadline identified above will extend to Jan. 20, and the Feb. 9 deadline for implementation of testing protocols will remain the same.

In a Jan. 4 webinar, MNOSHA stated that the Vaccination and Testing ETS will apply to organizations covered by the CMS staff vaccination mandate. We know, however, that CMS rules and the OSHA standard overlap to some extent. We have written to MNOSHA to request guidance on what specific provisions of the OSHA standard will apply to employees covered by the CMS mandate. For example:

• The CMS vaccination mandate requires all staff to be fully vaccinated for COVID-19 (or have a qualifying exemption), while the OSHA standard allows employers to offer a testing alternative. There is an apparent conflict between the rules, and CMS has indicated that certified facilities must follow the CMS rule.
• However, the OSHA Vaccination and Testing ETS also establishes requirements relating to issues that are not covered by the CMS mandate, such as employers providing support (time off) for employees to receive or recover from the effects of vaccination, employers reporting of workplace-related COVID-19 illnesses and fatalities, and other topics. These types of requirements under the Vaccination and Testing ETS were generally included under the Healthcare ETS described above. Continuing to meet those requirements should not represent a change in practice for providers complying with that ETS.

We assume that providers covered by the CMS rule will be expected to follow that rule regarding the issues it covers. In other words, where there is a conflict between the CMS rule and the OSHA standard, the CMS rule will govern. Additionally, we anticipate that employers will be expected to implement those aspects of the OSHA ETS for issues and areas not covered by the CMS rule. As noted, however, we are seeking specific guidance from MNOSHA, and we will provide additional information for members as soon as we possibly can.

MNOSHA will repeat its informational webinar about the Vaccination and Testing ETS on Friday, Jan. 7, at 10 a.m. You may join online (click the registration link in the upper left-hand corner) or by phone at 415-655-0003 or 855-282-6330 and enter code 2492 459 4165.