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OSHA Limits Long-Awaited Virus Safety Rule to Health Care (3)

June 10, 2021, 3:36 PM; Updated: June 10, 2021, 5:26 PM

The first nationwide emergency workplace safety rule, requiring health-care employers to protect workers against on-the-job Covid-19 infection, has been published on OSHA’s website.

The emergency temporary standard released Thursday applies only in the health-care sector and will be supplemented by voluntary guidance for other industries. The rule takes effect upon publication in the Federal Register, but it’s not immediately clear when that will happen.

It requires implementation of an infection-control plan developed with worker participation as well as the wearing of masks and respirators, mandates Covid-19 screenings at entry points, and compels paid time off for employees to get vaccinated or recover from a shot’s side effects.

Its unveiling comes more than four months after President Joe Biden‘s January executive order directing the Labor Department’s Occupational Safety and Health Administration to pursue an emergency temporary standard for Covid-19. The Trump administration had refused to issue a regulation mandating virus protections in the workplace.

Release of the emergency regulation is a partial victory for worker advocates and congressional Democrats, who had pressured OSHA since the earliest days of the pandemic to enact a standard to safeguard workers.

When Labor Secretary Marty Walsh disclosed during a House hearing Wednesday that the rule would apply only in the health-care industry, many advocates said they were disappointed it wouldn’t encompass other sectors also hard hit by Covid-19, such as meatpacking. Mounting a successful legal challenge based on exclusion will be exceedingly difficult, public interest lawyers say.

Rulemaking proponents complained the federal government lacked a regulation specifically requiring employers to take steps to protect workers against airborne spread of pathogens. But many Republicans and business groups opposed the agency’s issuance of a Covid-19 measure, arguing that the nationwide availability of vaccinations, declining infection rates and relaxed mask guidance for vaccinated individuals from the U.S. Centers for Disease Control and Prevention make an emergency rule unnecessary.

Walsh said Wednesday that the vaccine rollout and relaxed guidelines for inoculated individuals influenced the decision to limit the rule to health care.

Employer Mandates

The standard applies to employers providing patient care, such as hospitals and their health-care support services such as billing and laundry, according to OSHA’s compliance guidance. Also covered are skilled service nursing homes and home health-care providers.

There are exceptions. The standard doesn’t apply to medical support services performed in buildings separate from patient treatment facilities. It also doesn’t apply to pharmacies and ambulatory outpatient clinics where all patients are screened for Covid-19 prior to entry and those with suspected or confirmed infections aren’t permitted entry.

The standard’s core mandate is development and implementation of a Covid-19 transmission prevention plan with the participation of non-managerial workers. That plan must be in writing if more than 10 people are employed.

Specific requirements for a such a plan include designating a safety coordinator to oversee implementation; screening patients and anyone else before they enter a work site; providing respirators for workers when exposed to people with suspected or confirmed Covid-19 infection; six feet of separation between people when indoors; and ensuring ventilation systems operate at their designed specifications.

The standard exempts fully vaccinated workers from masking, distancing, and barrier requirements when in well-defined areas where there’s no reasonable expectation a person with suspected or confirmed Covid-19 will be present.

Health-care employers must comply with most sections of the standard within 14 days of its appearance in the Federal Register, according to the text. Other mandates that could require physical changes to workspaces and buildings, such as erecting barriers, and worker training have a 30-day compliance deadline.

Expedited Rulemaking Format

The rulemaking faced extended delays in the drafting and review process that included OSHA missing a March deadline Biden had imposed for its release. The White House Office of Information and Regulatory Affairs conducted dozens of stakeholder meetings after OSHA submitted its proposal for final review on April 26.

OSHA’s expedited emergency rulemaking format doesn’t require the safety agency to seek public input, but the White House regulatory office chose to solicit opinion from a wide range of advocacy groups.

The standard is limited by the federal Occupational Safety and Health Act of 1970 to a duration of six months. OSHA is legally required to complete a permanent standard during that time.

An April 27 Congressional Research Service report said it isn’t clear what would happen if OSHA tried to extend the six-month window, because no court has ruled on that issue.

A major question is whether the administration’s decision to limit its emergency rule to health care will discourage legal challenges from those who opposed any such measure.

The Occupational Safety and Health Act allows OSHA to protect workers against new hazards that pose a “grave danger” by issuing an emergency rule without going through the public hearings and comment periods that are required during the regular rulemaking process.

The agency has proposed nine such emergency rules since 1981, and five of them were stayed or vacated by judges, according to CRS.

Into the Current Landscape

Potentially undermining this newest effort is the reality that the public health battle has changed significantly since Biden’s Jan. 21 executive order.

As of Thursday, 305 million doses of the vaccine had been administered to the U.S. population, with 42.5% of the population fully vaccinated, according to Bloomberg data. State rates varied from 59.5% in Vermont to 27.9% in Mississippi. Newly reported cases have been on a sustained downturn since April, according to Bloomberg News data. The mortality rate too has been declining.

Attorneys who frequently represent employers in workplace safety matters have said the rule could be vulnerable to federal lawsuits on the grounds that—given those trends—OSHA can’t successfully claim a “grave danger” to workers still exists.

Jonathan Snare, a partner with Morgan Lewis in Washington, D.C. and former acting OSHA administrator during the George W. Bush administration, said that the agency appears to have tried to limit the standard’s vulnerability to a “grave danger” challenge by focusing on health care and defending the rule in a nearly 900-page preamble that accompanies the regulation.

Snare and John Martin, a shareholder with Ogletree Deakins in Washington, D.C., both said their medical clients are already following most of the rule’s protective mandates.

Public Justice, a Washington, D.C.-based legal advocacy group, assailed the new regulation for not going far enough in a statement posted on its website on Thursday.

“While Public Justice applauds the administration’s issuance of mandatory protections for health-care workers, the ETS must be expanded to include all workplaces where workers are in danger of contracting the virus,” the law group said. “Even as some workers have been vaccinated, COVID-19 outbreaks have continued to regularly happen as recently as this May, especially in facilities related to the food system.”

The group stopped short of saying whether it would challenge the emergency temporary standard in court.

Adam Pulver, an attorney with a separate Washington, D.C.-based organization, Public Citizen, said mounting a legal challenge based on who the rule does not cover, will be difficult.

“Non-issuance is a very high legal hurdle,” he said in an e-mailed statement, adding that he’s not aware of any group contemplating a suit on that basis or whether the health-care industry would do so. “Certainly a fear of litigation was a factor in the decision not to issue a broader ETS. I think people see this as a political decision rather than a legal one.”

— With assistance from Fatima Hussein

(Updated with details from the regulation.)

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com; Travis Tritten at ttritten@bgov.com

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