{"id":5608,"date":"2022-01-03T15:01:30","date_gmt":"2022-01-03T20:01:30","guid":{"rendered":"https:\/\/oshadefensereport.com\/?p=5608"},"modified":"2026-03-20T13:16:58","modified_gmt":"2026-03-20T17:16:58","slug":"update-on-oshas-covid-emergency-rule-for-healthcare-and-how-it-affects-the-vaccinate-or-test-ets","status":"publish","type":"post","link":"https:\/\/www.connmaciel.com\/osha-defense-report\/update-on-oshas-covid-emergency-rule-for-healthcare-and-how-it-affects-the-vaccinate-or-test-ets\/","title":{"rendered":"Update on OSHA’s COVID Emergency Rule for Healthcare – And How It Affects the Vaccinate-or-Test ETS"},"content":{"rendered":"

By Conn Maciel Carey\u2019s\u00a0COVID-19 Task Force<\/a><\/strong><\/em><\/p>\n

Last week, on December 27th<\/sup>, OSHA announced the withdrawal of most of its COVID-19 ETS for Healthcare<\/a>, which was the first of the two COVID-19 emergency temporary standards OSHA issued in the first year of the Biden Administration.<\/p>\n

This Healthcare ETS was issued back in June 2021 in response to President Biden\u2019s Day 1 OSHA Executive Order<\/a>.\u00a0 Recall that this was the ETS that had been crafted by OSHA to apply to all employers in all industries, but as it was being finalized in late Spring, when it looked like we might just be approaching the end of the pandemic, the Administration decided to narrow the scope to just the healthcare industry.\u00a0 That ETS was what we call a \u201cprogrammatic\u201d standard; requiring the development of a comprehensive COVID-19 prevention program, complete with an array of required engineering and administrative controls.\u00a0 When the Healthcare ETS was issued, OSHA noted on its webpage for the ETS that it expected the ETS to be in effect for six months from the date of publication — until December 21, 2021.<\/p>\n

December 21st<\/sup> came and went without any word from OSHA.\u00a0 But on Monday of last week, , six days after the Healthcare ETS\u2019s six-month anniversary, OSHA issued a statement<\/a> that:<\/p>\n

\u201c[while OSHA] intends to continue to work expeditiously to issue a final standard that will protect healthcare workers from COVID-19 hazards, and will do so as it also considers its broader infectious disease rulemaking[,]\u201d it is \u201cwithdrawing the non-recordkeeping portions of the healthcare ETS. The COVID-19 log and reporting provisions … remain in effect.\u201d<\/strong><\/em><\/p><\/blockquote>\n

Here is the full statement posted on OSHA’s Healthcare ETS webpage<\/a>:<\/p>\n

\"Capture<\/a><\/p>\n

Why Did OSHA Withdraw Portions of the Healthcare ETS?<\/u><\/strong><\/p>\n

That\u2019s the million-dollar question.\u00a0 While some (including me) assert that the standard automatically expired after six months, others disagree, including, apparently, OSHA.\u00a0 Even though OSHA did withdraw the Healthcare ETS essentially at the six-month mark, the language OSHA used in that withdrawal announcement (and other rumblings we have heard out of OSHA) indicates that OSHA believes it has the legal authority to leave emergency temporary standards in place beyond six months, even if the agency is not prepared at the six-month mark to replace the ETS with a proper regulation that has gone through APA-compliant notice-and-comment rulemaking.\u00a0 Below is a quick summary of the controversy around the lawful duration of emergency OSHA standards.<\/p>\n

For background, emergency temporary standards promulgated pursuant to the OSH Act are, by design, intended to have a short, temporary lifespan.\u00a0 Under Sec. 6(c)(2) of the OSH Act, an ETS is \u201ceffective until superseded by a standard promulgated in accordance with the procedures prescribed in [Sec. 6(c)(3)<\/strong>].\u201d \u00a0Pursuant to Sec. 6(c)(3), the ETS serves as a proposed permanent standard, and the Act calls for that replacement permanent standard to be finalized within six months of publication of the ETS. \u00a0Specifically, Sec. 6(c)(3) states that \u201c[t]he Secretary shall<\/em><\/strong> promulgate a [permanent] standard under [Sec. 6(c)(3)] no later than six months<\/em><\/strong> after publication of the emergency standard, as provided in [Sec. 6(c)(2)].\u201d<\/p>\n

On the one hand, we would argue that the grant of emergency rulemaking authority; i.e., to regulate without meeting the requirements of the APA, was an extraordinary power, and Congress purposefully paired that extraordinary power with a very short lifespan of six months.\u00a0 In other words, while OSHA is permitted, in emergency circumstances, to issue a rule without following the APA, that rule only gets to last for a short time before it must be replaced by an APA-compliant rule or go in the wastebin.<\/p>\n

There is a big difference between OSHA missing the six-month deadline to replace an ETS with an APA-compliant regulation, and OSHA missing other statutory deadlines in the regular rulemaking process to promulgate a new regulation where there has been none before.\u00a0 The most important difference is that in the context of an ETS, while OSHA is derelict in meeting its deadline, employers are subject to enforcement of a rule that OSHA had been permitted to promulgate without following APA or OSH Act rulemaking requirements.\u00a0 An ETS is supposed to be a bridge to a permanent rule, and if an agency does not promulgate a replacement permanent rule in six months, or in the case of the Healthcare ETS, does not even work on a replacement permanent rule in any meaningful way, it would be a serious abuse of agency power to allow the non-APA compliant rule to remain in place.\u00a0 That cannot be what Congress intended.<\/p>\n

On the other hand, labor advocates and some former OSHA officials have publicly argued that Sec. 6(c)(2) speaks to the duration an ETS may remain effective \u2013 that is, there is no automatic expiration date on an ETS.\u00a0 Rather, ETSs remain effective until superseded by a permanent replacement standards, no matter how long it takes OSHA to promulgate the permanent replacement.\u00a0 Here is an article written by Jordan Barab<\/a>, former Deputy Assistant Sec\u2019y of Labor for OSHA during the Obama Administration, laying out this argument in more detail.\u00a0 Mr. Barab and others assert that the language in Sec. 6(c)(3) \u2013 the section setting forth the six-month deadline \u2013 speaks to OSHA\u2019s obligations to issue a permanent rule, not to a time limit on the duration an ETS may remain in effect.<\/p>\n

So, while OSHA would be in violation of Sec. 6(c)(3) if it did not promulgate a permanent standard within six months, the remedy for that is not the archiving of the ETS, but rather a judicial decree to OSHA to hurry-it-up with the replacement rule.\u00a0 Viewing the issue in that way rests in part on the assumption that Congress sets unrealistic deadlines in the OSH Act.\u00a0 To put six months in perspective, consider that in 2012, the Government Accountability Office found that it took OSHA on average of more than seven years to issue standards<\/a>.\u00a0 Advocates for long-lasting emergency rules point to other rulemaking contexts where agencies are essentially excused for missing rulemaking deadlines.\u00a0 For example, OSHA\u2019s hexavalent chromium standard and the Chemical Safety Board\u2019s accidental release reporting rule both ignored statutory deadlines for years until stakeholders took those agencies to court because they were not moving quickly enough.\u00a0 In those instances, the agencies were simply ordered by federal judges to move faster.\u00a0 If we assume that federal judges acknowledge that rulemaking deadlines in the APA and the OSH Act are unrealistic, they may not hold OSHA strictly liable to them in the context of an ETS.<\/p>\n

One reason OSHA may have voluntarily withdrawn this rule even though it believed it did not have to, is that it had a backstop of additional COVID-19 protections in the form of OSHA’s newer COVID-19 Vaccination, Testing, and Face Coverings ETS; i.e., withdrawing the Healthcare ETS would not leave healthcare workers without regulatory protections, because they would become covered by the Vaccination rule.\u00a0 That could explain why the rule was not withdrawn right at the six month mark, because as of that date, the Stay of the Vaccination ETS had been in place until just four days before December 21st.\u00a0 It was somewhat of a surprise that the conservative US Court of Appeals for the Sixth Circuit lifted the Stay of the Vaccinate-or-Test ETS that had been in place since the day after OSHA issued that newer ETS.\u00a0 It looks like OSHA was gearing up to leave the Healthcare ETS in place, but after the surprising decision by the Sixth Circuit, pivoted and decided to withdraw the Healthcare ETS to avoid a fight about that.<\/p>\n

But regardless whether the Healthcare ETS automatically expired on December 21st<\/sup> or if it was just a result of OSHA affirmatively withdrawing it (perhaps to avoid a possible lawsuit for extending the ETS much longer than six months), the Healthcare ETS is no longer in effect.\u00a0 In its announcement, OSHA explained its reasoning for withdrawing most of the Healthcare ETS, stating that it \u201canticipated a final rule cannot be completed in a timeframe approaching the one contemplated by the OSH Act.\u201d<\/p>\n

Are There Some Portions of the Healthcare ETS That Are Still in Effect? <\/u><\/strong><\/p>\n

While the majority of the Healthcare ETS has been withdrawn (or expired), OSHA does make clear in its announcement that the recordkeeping and reporting provisions of the ETS; i.e., 29 CFR 1910.502(q)(2)(ii), (q)(3)(ii)-(iv), and (r), remain in effect. \u00a0OSHA explains that:<\/p>\n

“These [recordkeeping and reporting] provisions were adopted under a separate provision of the OSH Act, Sec. 8, and OSHA found good cause to forgo notice-and-comment in light of the grave danger presented by the pandemic.\u201d<\/em><\/p><\/blockquote>\n

These are the provisions of the ETS that required employers to maintain a separate COVID-19 Log (i.e., the shadow log of all COVID-19 cases involving employees, regardless whether they are work-related), and the enhanced COVID-19 reporting provisions (i.e., reporting COVID-19 hospitalizations and deaths regardless how long after the work-related exposure they occur).\u00a0 Briefly, these provisions require covered healthcare employers to:<\/p>\n