On December 27, OSHA announced it is allowing its Emergency Temporary Standard (“ETS”) for healthcare facilities to sunset but that it would continue to work on a permanent standard for COVID-related hazards. OSHA formally withdrew the non-recordkeeping portions of the ETS, but the recordkeeping requirements for employers covered under a separate rule which require them to maintain logs of all employee COVID cases regardless of whether they are considered work-related or not would remain in effect. In addition, healthcare facilities must continue to affirmatively report COVID work-related inpatient hospitalizations within 24 hours and fatalities within 8 hours.
OSHA also reminded healthcare facilities that they continue to have an obligation to protect employees in the workplace under the general duty clause and that “continued adherence” to the terms of the ETS would be the simplest way comply with this obligation. Although the provisions of the Healthcare ETS no longer have the force of law, best practices would suggest employers continue to implement their COVID-19 plan and other requirements set forth in the Healthcare ETS.
In addition, the FAQ’s for OSHA’s general duty COVID ETS specifically states that if the Healthcare ETS is no longer in effect while the general industry ETS is in effect, some employees working in those healthcare settings may become covered by the general duty ETS. As a reminder, the shot or test mandate covers employers with at least 100 employees and the Supreme Court is set to hear consolidated legal challenges to the general duty ETS on January 7, 2022.