COVID-19 Healthcare Permanent Standard Remains Under White House Review
Blog Workplace Safety and Environmental Law Alert Blog

Seyfarth Synopsis: On December 7, 2022, OSHA submitted its permanent “Occupational Exposure to COVID-19 in Healthcare Settings” standard to the White House Office of Management and Budget’s Office of Information and Regulatory Affairs (“OIRA”) for final review.

As we blogged with respect to the long-defunct COVID-19 “Vax or Test” rulemaking, OIRA review is one of the last steps in the regulatory process before the Federal Register publishes a final rule. While OIRA’s review timelines vary, and the rule’s text is not yet public, healthcare sector employers should be aware of this development to prepare for compliance in the coming months, likely the late first quarter or early second quarter of 2023.

OSHA provided a flowchart to help workplaces determine if they were covered under OSHA’s expired COVID-19 Healthcare Emergency Temporary Standard (“ETS”), which the agency published in June 2021. OSHA announced the withdrawal of its healthcare-focused ETS on December 27, 2021, more than a year ago, acknowledging that it could not meet the OSH Act’s six-month deadline to issue a permanent standard. In the announcement withdrawing the non-recordkeeping provisions of the ETS, OSHA further advised “that it intend[ed] 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.”

OIRA continues to hold 12866 meetings – currently scheduled through at least January 9, 2023 – with worker and employer organizations over their concerns that the rule will do too little or too much. While interested stakeholders cannot comment on the standard’s specifics without regulatory text, we can expect, e.g., unions to express concerns that the permanent rule will not do enough to protect healthcare workers from COVID-19 and that delays in OIRA’s review will increase worker exposure during winter months when COVID-19 cases may increase. Employers, on the other hand, will want a narrow and clear rule that does not expand the scope of the ETS on which the permanent rule should be based.

While we may be approaching the end of the healthcare COVID-19 rulemaking process, stakeholders should remain mindful of ongoing developments. The rule, once issued, will likely face legal challenges, including arguments that OSHA violated the OSH Act when it failed to issue the permanent standard within six months of the underlying ETS.

We anticipate OSHA rulemaking on a “broader” infectious disease standard as well, so employers should remain on the lookout for movement on that front, and we will continue updating our readers on OSHA’s regulatory activities.

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.

Seyfarth Synopsis: Washington State’s COVID-19 emergency declaration expires October 31, 2022 but the Health Emergency Labor Standards Act (HELSA) administered by the Washington State Department of Labor & Industries (L&I), and codified at WAC 296-62-602 to -609, will remain in place for the time being.

HELSA is triggered by an emergency declaration related to an infectious disease either (1) from the Governor of the State of Washington or (2) the President of the United States. Therefore, even though Governor Inslee’s declaration expires October 31, 2022, employers must continue to abide by HELSA’s notice and reporting requirements until President Biden rescinds the national public health emergency declaration, which is currently set to expire on March 1, 2023. It is unclear whether President Biden will end the declaration at that time or continue to extend it.

The Washington State Legislature passed HELSA, a temporary law, on May 11, 2021, to address the spread of infectious or contagious disease, such as COVID-19, during a declared public health emergency (state or national). Note that this law applies to any “infectious or contagious disease” subject to a state or national declaration and is not limited to COVID-19.

Under HELSA, Washington employers must continue to:

• Provide Benefits. Provide workers’ compensation wage replacement and medical benefits to frontline workers, as defined in the law, who contract COVID-19, under a rebuttable presumption that exposure occurred on the job. Health care workers are also entitled to these benefits.
• Report COVID-19 Cases to L&I’s Division of Occupational Safety and Health (DOSH). Employers with 50 or more employees must continue to report COVID-19 outbreaks to DOSH within 24 hours – when 10 or more employees test positive for the disease and were in the workplace during their infectious period – by calling 1-800-4-BESAFE (1-800-423-7233).
• Notify Employees, Union Representatives, and Employees of Subcontracted Employees of Potential Exposures to COVID-19 at Work.
  • Non-health care employers must notify staff and others who were at the workplace at the same time as the infected individual of a potential exposure to COVID-19 within one business day.
  • Health care facilities must notify staff and others at the workplace about high-risk exposures within 24 hours.
• Not Discriminate. Employers must not discriminate against high-risk employees for seeking accommodations or utilizing leave to protect against an infectious or contagious disease.

On August 4, 2022, L&I filed an updated emergency rulemaking to refine the regulatory language implementing HELSA. The full rule can be found here. L&I has also prepared a FAQ, which can be found here.

The emergency rule expounds on, defines, interprets, and implements HELSA. The rule provides definitions such as who is considered a “covered employee”, what constitutes “test-confirmed,” and the method, content, and form of the notice to be issued to employees impacted by a potential exposure. The August 4, 2022 update slightly changed some definitions in the rule and clarified other confusing language, but did not alter the content of the ruleThe emergency rule expounds on, defines, interprets, and implements HELSA. The rule provides definitions such as who is considered a “covered employee”, what constitutes “test-confirmed,” and the method, content, and form of the notice to be issued to employees impacted by a potential exposure. The August 4, 2022 update slightly changed some definitions in the rule and clarified other confusing language, but did not alter the content of the rule.

According to DOSH, once the employer has reported an outbreak, no further reporting is required for that outbreak, even if additional cases occur. However, a new outbreak may occur after passing 28 days without a new case.

• Employers with 50 or fewer covered employees at a particular worksite do not have to report outbreaks to DOSH. However, they are still required to notify employees (see below).
• Notice. All employers are required to notify employees in writing of potential exposure. However, health care facility employers and non-health care employers have different requirements, including triggers for notification.
• Non-health care employers – WAC 296-62-605. Each time an employer receives a notice of potential exposure, notice must be given within one business day to all employees who were on the premises at the same worksite on the same day(s) as a qualifying individual who may have been infectious or contagious. Notice must also be given to union representatives and temporary help service, employee-leasing service, or personnel supply service employers of a covered employee.
• Form & Content of notice. The notice must be in English and in the language understood by the majority of employees (if they are different), and must be issued in the usual way in which the employer communicates with its employees. The notice must state that the covered employee may have been exposed to COVID-19. Employee names and personal identifying information must not be included.
• Health care facility employers – WAC 296-62-606. Health care facility employers must notify any employee with known or suspected high-risk exposure to COVID-19 within 24 hours. With employee authorization, the employer must also notify the union representative of the employee’s known or suspected high-risk exposure to COVID-19 within 24 hours. Temporary help service, employee-leasing service, or personnel supply service employers of a covered employee must also be notified within this time period.
• Form & Content of notice. The employer must provide written notice in a manner normally used to communicate employment-related information (i.e. personal service, email, or text message) where it is reasonably expected that it will be received within 24 hours. Written notification must be in both English and the language understood by the majority of the employees. The notice must state that the employee has had a known or suspected high risk exposure to COVID-19. If feasible, it must include information about the worksite location where the exposures are believed to occur. The notice must not include any employee names or personal identifying information. Notices may include information such as the program or area where the covered employee works as long as the information will not lead to the identity of the covered employee.

• Use of Personal PPE – WAC 296-62-609. Employees and contractors must be permitted to voluntarily use PPE, but only after the employer has determined use:
  • will not create a safety or health hazard;
  • does not conflict with the related rules for PPE for that specific type of equipment established by DOSH; and
  • face coverings will not interfere with the employer’s security requirements;
  • note that, employers are not required to pay for PPE that is voluntarily used.
• Employees are not required to disclose any medical condition or diagnosis to their employer.

Many employers were anticipating the end of HELSA’s requirements with the conclusion of Governor Inslee’s COVID-19 emergency declaration. Unfortunately, due to the triggering language in the Act and implementing regulations, these requirements will remain in effect until President Biden also rescinds the Administration’s COVID-19 emergency declaration.

It is important to keep in mind that HELSA will automatically return into effect during any future pandemics or other public health emergencies involving an infectious or contagious disease as declared by the President of the United States or by the Washington state governor. Even when the current COVID-19 emergency declaration is over at the state and national level, employers should review their infectious disease reporting, notice, and PPE policies on a regular basis to ensure they are prepared for a future health emergency.