OSHA Covid-19 Standard Needs to Keep Pace With Medical Guidance


August 20, 2021 3:31 pm

As OSHA considers requirements for a permanent Covid-19 standard, groups representing employers and workers agree the standard must be flexible enough to adopt changing medical recommendations.

“Throughout Covid-19, a lack of uniform guidance has led to confusion and apprehension on behalf of providers and facilities as they work to comply with rapidly changing standards and regulations,” Jon Fanning, chief executive officer of the American Association of Nurse Practitioners, said in a letter to the U.S. Occupational Safety and Health Administration during its open comment period that ends at midnight Aug. 20.

From an employer perspective, it’s important to allow OSHA regulations to keep pace with federal health-care recommendations, Janis Orlowski, chief health care officer for the Association of American Medical Colleges, told the agency in a letter for the association.

“We believe that putting these requirements into regulation instead of guidance will make it more difficult for OSHA to have the flexibility to adapt quickly to changes,” Orlowski said.

The comments were among the hundreds sent to the agency as it considers whether changes will be made to the Covid-19 emergency temporary standard that covers only health-care workers and what will be included in a permanent standard due by late December.

Under Review

The agency isn’t discussing its timetable for a permanent standard or how it would differ from the temporary standard.

“OSHA will review the comments carefully,” said U.S. Department of Labor spokesperson Denisha Braxton. “Our priority is the safety and health of workers, and the agency will continue to assess its next steps in light of the evolving situation.” 

OSHA adopted its Covid-19 emergency temporary standard on June 21 without going through the public review and comment period required for permanent rules. Before its release, the temporary standard was the subject of more than 40 meetings between interest groups, OSHA, and the White House’s Office of Information and Regulatory Affairs.

One example of Covid-19’s evolving medical guidance OSHA needs to keep pace with is describing precisely what it means to be “fully vaccinated.”

The OSHA emergency standard defines fully vaccinated as “two weeks or more following the final dose of a Covid-19 vaccine.”

With booster shots being urged by the federal Centers for Disease Control and Prevention, the definition of “fully vaccinated” will need to include booster shots, Debbie Hatmaker, chief nursing officer for the American Nurses Association, told OSHA.

State hospital associations have concerns with existing differences between the OSHA temporary standard and guidance issued by the CDC and the Centers for Medicare and Medicaid Services.

“We are concerned that the OSHA guidance contradicts CDC guidance that healthcare providers have already been observing, such as requirements for the use of respirators, physical distancing barriers, screening of asymptomatic healthcare personnel, and contact tracing,” Tim Rave, president of the South Dakota Association of Healthcare Organizations, said in submitted remarks.

Small clinics and nursing homes criticized the OSHA mandate that employers pay workers up to $1,400 a week if the workers can’t do their job because of isolation or quarantine restrictions, arguing it would strain their budgets.

“The requirements to pay staff for missed work when they have chosen to refuse a Covid-19 vaccination is misguided,” wrote Steven Buck, president of Care Providers Oklahoma, a nursing home trade association, said in comments to the agency. “Except for those with a valid contraindication for the vaccine, individuals who refuse a vaccination should be required to exhaust paid-time off and sick leave instead of being compensated by the employer.”

Expand Mandates

Workers groups urged OSHA to go beyond CDC guidance.

The American Nurses Association called on the safety agency to toughen the rule by requiring employers to have mandatory vaccination programs with some exceptions granted.

The nurses group also called for more stringent requirements for employees to stock N95 respirators. OSHA must make it clear “just-in time” delivery of personal protection equipment to hospitals isn’t acceptable, the association said.

Unions with members outside of health care want OSHA to enact a permanent rule that covers all workers and sued the agency in federal court to force the change. Currently workplaces not under the standard are asked to follow OSHA guidance, however no rule mandates they do so.

To treat Covid-19 as a hazard that only warrants guidance rather than regulation “falls short in keeping out members safe on the job,” John “Scotty” MacNeil, national safety director for the Utility Workers of America, told OSHA.

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

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