OSHA Scraps Its Healthcare ETS While CMS Moves Forward With the Vaccine Mandate in Half of the Country

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OSHA Withdraws the Healthcare ETS. The Healthcare ETS, which was promulgated by the Occupational Safety and Health Administration (“OSHA”) on June 21, 2021, has been largely withdrawn by OSHA.  On December 27, 2021, OSHA announced its withdrawal of the non-recordkeeping components of the Healthcare ETS.  We previously described the requirements of the Healthcare ETS in our June 15, 2021 E-lert.

The Occupational Safety and Health Act envisions that emergency temporary standards expire if a permanent standard is not promulgated within six months after the promulgation of the emergency temporary standard.  The six-month timeframe for promulgating a permanent standard passed on December 21, 2021.  OSHA explained its rationale for the withdrawal as its failure to timely adopt a permanent standard for healthcare workers, but the announcement also made clear that OSHA will continue to work toward a permanent standard.

In the meantime, OSHA “strongly encouraged” healthcare employers to continue to abide by the terms of the Healthcare ETS, suggesting that failure to do so could be construed as violations of the generally duty clause and other general standards.  In fact, the announcement states that “OSHA will accept compliance with the terms of the Healthcare ETS as satisfying employers’ related obligations under the general duty clause, respiratory protection, and PPE standards.”  This portion of the announcement was inconsistent with language OSHA used in promulgating the Healthcare ETS finding the general duty clause insufficient to protect healthcare workers from grave danger.

It is not yet clear how this announcement impacts the scope of the Vaccination and Testing ETS.  In promulgating the Vaccination and Testing ETS, OSHA carved out from its coverage the workplaces covered by the Healthcare ETS describing one of its reasons for doing so as a higher propensity of healthcare workers to be vaccinated against COVID-19.  Now that the Healthcare ETS has been withdrawn, it is unclear from the language of the Vaccination and Testing ETS whether it will now apply to workplaces previously covered by the Healthcare ETS.  OSHA has not yet commented on this coverage question.

Employers in states with OSHA-approved state plans should consult their state resources.  Maryland, which maintains an OSHA-approved state plan, meaning its regulations must be “at least as effective” as OSHA standards, adopted the Healthcare ETS effective through January 30, 2022. Maryland Occupational Safety and Health (“MOSH”) has not yet commented on whether it will continue to enforce the OSHA Healthcare ETS through January 30, 2022, but the MOSH website links directly to the OSHA website containing the withdrawal notice.

CMS Will Enforce its Vaccination Rule in Half of the Country. On December 28, 2021, CMS announced a change in its enforcement position regarding its COVID-19 Healthcare Staff Vaccination Interim Final Rule (the “Rule”).  We discussed the basic requirements of the Rule in our November 8, 2021 E-lert.  Multiple lawsuits had been filed to enjoin CMS from enforcing the Rule, one of which resulted in a nationwide injunction prohibiting enforcement of the Rule.  The nationwide injunction was subsequently limited by a federal appeals court, leaving injunctions in place in only twenty-five states: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming.

CMS had previously, following the issuance of the injunctions, provided a litigation update indicating that it would not enforce the Rule at all while litigation was pending, stating that it would continue to assess the situation.  The continued assessment resulted in the change announced on December 28, 2021, that CMS will enforce the Rule in the twenty-five states, the District of Columbia, and territories in which it is not enjoined.  CMS also revised the deadlines for compliance with the Rule in the jurisdictions in which the Rule is not enjoined.  Covered employees must now receive the first dose of a vaccine by January 27, 2022, and they must complete the vaccine series by receiving a second dose by February 28, 2022.

As a reminder, both the CMS Interim Final Rule and the OSHA Vaccination and Testing ETS mentioned above are set for a special hearing with the Supreme Court on January 7, 2022.