By Adam R. Young, A. Scott Hecker, Patrick D. Joyce, Brent I. Clark, James L. Curtis, and Craig B. Simonsen
Seyfarth Synopsis: While completing the healthcare COVID-19 standard continues to be the Occupational Safety and Health Administration’s top rulemaking priority, Doug Parker, U.S. DOL’s Assistant Secretary of Labor for Occupational Safety and Health, told the National Safety Council (“NSC”) at its Annual Congress in San Diego, that “[i]t’s very hard to predict when it will be done.”
According to BNA, “[n]ew rules covering workplace violence, heat stress, and infectious diseases are on hold while OSHA completes its COVID-19 standard for the health-care industry.” Assistant Secretary Parker empathized with NSC Congress attendees, and interested stakeholders generally, stating: “We know this doesn’t move as fast as people would like.” But OSHA’s stated expectation to finalize this rule by fall represents an extremely truncated timeline to complete a rulemaking. Typically, OSHA’s process takes years, not months.
We have blogged about these topics previously, noting that while federal and state OSHA agencies continue to conduct inspections and issue citations relating to COVID-19 hazards, federal OSHA largely has abrogated its role in protecting employees from COVID-19, failing to advise employers on how to address new strains or to issue employers any updated guidance since August 13, 2021, despite the long-standing promise on its COVID-19 website of an “UPDATE COMING SOON.”
OSHA continues to use existing tools (e.g., standards addressing respiratory protection, personal protective equipment, sanitation, bloodborne pathogens, and recordkeeping, along with the General Duty Clause of the OSH Act) to enforce alleged COVID-related violations, pending the promulgation of a healthcare-focused permanent COVID rule. According to BNA and Assistant Secretary Parker, employers can expect the standard “to require employers to implement Covid infection control plans in workplaces where there may be patients with Covid, such as hospitals and nursing homes. It wouldn’t require that health-care employees get Covid vaccinations.”
Though federal OSHA has put the heat illness rule on the back burner, OSHA state plans continue to push forward. In addition to states on the West Coast implementing heat illness rules over the past several years, which we blogged about here, it appears Maryland will be the latest to issue heat illness regulations. A law enacted in 2020 (H.B. 722) gave Maryland’s Labor and Industry commissioner until Oct. 1, 2022, to develop and adopt regulations to protect employees for heat-related stress in the workplace.
For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.