OSHA Releases COVID Safety Standard for Healthcare Employees Only

The Labor Department released on Thursday the much-anticipated workplace safety standard for the novel coronavirus pandemic. However, it is only for healthcare settings, which is prompting mixed reactions. 

President Biden on January 21 issued an executive order directing the Occupational Safety and Health Administration, a division of the Labor Department, to revise its coronavirus guidance and take other actions to protect workers from the ongoing pandemic. This included determining whether or not an emergency temporary standard for COVID-19 was needed and if so, issuing it by March 15. OSHA was heavily criticized during the Trump administration for not doing enough to protect workers. 

“This standard follows the science and will provide increased protections for those whose health is at heightened risk from coronavirus while they provide us with critical healthcare services,” said Labor Secretary Marty Walsh on Thursday, which is just shy of three months past Biden’s deadline. “Given the pace of vaccinations, this standard, along with the guidance OSHA, the [Centers for Disease Control and Prevention] and other agencies have released, will help us protect frontline healthcare workers and end this pandemic once and for all.” 

Some of the main requirements of the emergency temporary standard for healthcare employers include: develop and implement coronavirus safety policies; limit and monitor entrance to areas where there is direct patient care; ensure employees are wearing masks inside and when in a vehicle for work purposes; maintain physical distancing; screen employees before coming into work; keep a log of employee COVID-19 cases; inform employees of their rights under the temporary standard; and do not retaliate against them for exercising such rights and provide time off and paid leave for employees to get vaccinated.

Most businesses with fewer than 500 employees can be reimbursed for the paid time off through tax credits in the American Rescue Plan. 

“The [temporary standard] exempts fully vaccinated workers from masking, distancing and barrier requirements when in well-defined areas where there is no reasonable expectation that any person will be present with suspected or confirmed coronavirus,” said the Labor Department in a press release. 

OSHA posted a slew of documents online to help understand the scale and scope of the emergency temporary standard and implementing it. The standard will take effect upon publication in the Federal Register (the date is unknown yet) and employers must complete most of the provisions within two weeks and the others within 30 days. 

OSHA also issued new guidance for all industries on protecting unvaccinated employees and preventing the spread of the coronavirus. This has a special focus on industries such as meat processing, manufacturing and grocery store work where employees are in close contact. 

The Labor Department did not send a draft of the standard to the Office of Management and Budget for review until April 26. Between the time Biden issued the executive order to the Labor Department sending the standard for review to the standard being issued, vaccinations have increased in the United States and the CDC has updated guidance for vaccinated individuals, such as on wearing masks and social distancing. OMB’s Office of Information and Regulatory Affairs took many meetings with interest groups during its review process, Roll Call reported.

Walsh, who was confirmed on March 22, announced the standard would be released and what it would entail on Wednesday during a House hearing, and since then there have been a range of reactions. 

National Nurses United, the largest registered nurses union, applauded the move. 

Jordan Barab, who served as OSHA deputy assistant secretary from 2009-2017, said it was “disappointing” the standard is only for healthcare workers because “voluntary guidelines are not enough” as “less than half the working age population is fully vaccinated.” Many workplace safety advocates and experts have been calling for the issuance of this standard for over a year. 

“This is a new insult on top of the injuries, illnesses and deaths suffered by frontline workers and their families. Vaccines have not reached all workers and COVID-19 is not over,” said Jessica Martinez, co-executive director of the National Council for Occupational Safety and Health, in a statement. “President Biden needs to have workers’ backs - by ensuring that the nation’s federal safety agency has the resources and teeth needed to hold employers accountable.”

Amit Narang, regulatory policy advocate for the nonprofit Public Citizen, said there is an “irony” in then-President Trump issuing an executive order in October 2019 aimed at preventing government employees from creating unofficial regulations through guidance documents “while the business lobby celebrates a win because OSHA issued guidance instead of a binding rulemakings.” 

Rep. Virginia Foxx, R-Va., top Republican on the House Education and Labor Committee, criticized OSHA for different reasons than some of the other groups and organizations. 

“We appreciate the Department of Labor refuted the ridiculous claims from Democrats and their union allies that all American workers are presently in grave danger from the virus,” she said in a statement. “Yet still, despite widespread vaccinations and COVID-19 cases at lows not seen since the beginning of the pandemic, OSHA caved to political pressure from special interests to adopt an emergency temporary standard in the health care sector.” She said a “new and burdensome regulation” is “completely unnecessary” now.

Meanwhile, the Associated General Contractors of America said it’s a “victory” that the standard will not apply to the construction industry. 

This “reflects the strong working relationship and trust” between federal safety officials and AGC of America staff and “is also thanks to the tireless work member firms are doing to protect their workers.” 

After reviewing the standard, Patrick Dennison, partner at the law firm Fisher Phillips and a member of the firm’s workplace safety and catastrophe management practice group, told Government Executive “there were no major surprises” as “many of the requirements of the [temporary standard] were included in COVID-19 standards already implemented in states like California and Virginia.”

The Government Accountability Office noted in a report published in February that OSHA has not used its authority to issue an emergency temporary standard since 1983. 

When asked about the delay in issuing the standard past the president’s March 15 deadline on a call with reporters on Thursday, acting assistant secretary of Labor for OSHA Jim Frederick said that the time frame for OSHA using a standard is usually measured in years, not months. 

“We went through the process necessary to ensure that we met all of the requirements that OSHA has to meet in order to issue the emergency temporary standard and that brings us to where we are today,” he said. He also complimented the hard work of OSHA staff since the beginning of the pandemic.

Under the Biden administration, the agency also has issued updated COVID workplace guidance, launched a “national emphasis program” to focus on companies that are putting workers at risk for contracting the coronavirus as well as retaliating against them for filing complaints, and updated its interim enforcement response plan to prioritize doing on-site inspections of workplaces when possible.