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Health-Care Virus Standard Close to Nine Months Away, OSHA Says

Jan. 21, 2022, 10:15 PM

A new OSHA Covid-19 standard to protect health-care workers should be completed in six to nine months, the agency said Friday.

James Frederick, deputy assistant secretary of labor for occupational safety and health, revealed the timeline in a statement that is part of the agency’s legal defense of its Dec. 27 decision to cancel the health-care Covid-19 emergency temporary standard.

The claim was made in response to a lawsuit filed Jan. 5 by several labor unions asking the U.S. Court of Appeals for the District of Columbia Circuit to revive the emergency standard.

If the unions prevail, hospitals, nursing homes, and many medical clinics nationwide would have to have in place infection control plans and take other actions, such as using air ventilation systems that filter out Covid-19, controlling who enters buildings, and social distancing of unvaccinated workers.

The Occupational Safety and Health Administration had been intending to issue a permanent version of the health-care emergency standard, Frederick said in response to the unions’ lawsuit. But after the rise of the delta variant, OSHA “redirected all of its available rulemaking resources away from developing a permanent Healthcare standard” to draft the vaccination-and-testing emergency temporary standard for employers with more than 100 workers.

That regulation issued Nov. 5 was blocked by the U.S. Supreme Court on Jan. 13, prohibiting the agency from enforcing the rule while an appeals court considered the standard’s legality.

“In light of the Supreme Court’s decision staying the Vaccination and Testing ETS, OSHA has determined that it will re-prioritize its resources to focus on finalizing a permanent Healthcare Standard,” OSHA’s Friday court filing said.

OSHA Violated Law

The labor groups’ petition for writ of mandamus argued that OSHA violated the law that allows it to issue emergency temporary standards, the Occupational Safety and Health Act, when it decided to withdraw the health-care emergency rule. The unions asked the court to give OSHA 30 days to issue a permanent version of the emergency standard.

When OSHA determines there is an emergency situation and issues an emergency standard, “that emergency standard must stay in effect until a final rule is issued, which must be done within six months of publication of the emergency standard,” according to the groups’ petition.

Since OSHA’s Dec. 27 announcement it was withdrawing the standard, Democratic lawmakers have called for the agency to reverse course.

“The risks these workers face are so severe that we call on you to reconsider that decision and, following the reinstatement of the protections under the ETS, move with maximum urgency to a final standard that will secure the protections of the ETS for some of the nation’s most essential workers,” Rep. Bobby Scott (D-Va.), chair of the House Committee on Education and Labor, told President Joe Biden in a Jan. 15 letter.

The case is Nat’l Nurses United v. Sec’y of Labor, D.C. Cir., No. 22-1002, 1/21/22.

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

To contact the editor responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com