On August 31, 2021, the Occupational Safety and Health Administration (OSHA) tipped its hand that it will let the federal emergency temporary standard (ETS) expire in December 2021.
The long-awaited ETS went into effect on June 21, 2021. It requires covered healthcare and health support services employers to ensure specific policies and procedures are in place to identify and control COVID-19 hazards in the workplace.
Unless OSHA supersedes the ETS with a permanent infectious disease standard, the ETS can only remain in effect for six months. During a healthcare symposium, Deputy Director of OSHA’s Directorate of Standards and Guidance Andy Levinson told participants that a proposed permanent infectious disease standard would not be forthcoming this year or next. Levinson stated that it is not OSHA’s plan at this time to extend the ETS.
Still, healthcare employers should not let their guard down. The surge in COVID-19 cases due to the transmissibility of the delta variant and breakthrough cases in vaccinated workers could cause OSHA to reconsider extending the ETS. In the past, OSHA has successfully extended an emergency temporary standard without notice-and-comment. Given that labor unions consistently urge OSHA to make the ETS permanent and expand its coverage to non-healthcare industry employers, the December sunset is uncertain.
Even if the ETS expires as of December 21, 2021, meaning, there will be no specific standard for OSHA to enforce, all employers should be mindful that the Biden Administration favors aggressive enforcement. Recently, OSHA stated that its COVID-19 guidance to non-healthcare employers is not a standard or regulation, and that it creates no new legal obligations. Despite this, employers should keep in mind that, during the Biden Administration, OSHA has more than tripled its use of the General Duty Clause of the Occupational Safety and Health Act to cite employers for COVID-19 hazards not covered by an existing standard, such as those that govern respiratory protection, personal protective equipment, and sanitation. As always, employers should remain cognizant of different requirements under state OSHA plans.
Levinson also confirmed that OSHA plans to engage in rulemaking for a permanent infectious disease standard in 2022. This standard will cover all infectious diseases that are not covered by OSHA’s blood-borne pathogens standard. Therefore, the standard would cover airborne, droplet, and non-blood-borne contact diseases. The standard likely will apply to a wide variety of occupational settings where employees are at an increased risk of exposure to potentially infectious people, such as healthcare, emergency response, correctional facilities, homeless shelters, and drug treatment programs, to name a few.
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View original article here: https://www.jdsupra.com/legalnews/osha-s-covid-19-emergency-temporary-8080357/