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Two lawmakers recently sent a letter to OSHA head Doug Parker urging his agency to abandon its efforts to publish a permanent, final COVID-19 rule for healthcare. The agency allowed the June 21, 2021, Emergency Temporary Standard (ETS) for Healthcare to expire last December. However, the agency intends to publish a permanent rule by the Fall of 2022.

What do the lawmakers say?

The legislators, House Rep. Virginia Foxx (R-NC) and Fred Keller (R-PA), both members of the House Subcommittee on Workforce Protections, point to the administration’s proclamation that “the pandemic is over” as evidence that such a rulemaking is unnecessary and “foolish.” Their letter goes on to list other reasons to withdraw the rulemaking. The two argue:

  • A permanent rule will be difficult to update when the CDC changes its guidance for evolving conditions;
  • An OSHA rule on top of CDC guidance is unnecessary and would cause confusion among healthcare employers; and
  • OSHA may not have the legal authority to use an ETS as the basis for a permanent COVID-19 rule because such a rule was required to be published no later than six months after publication of the ETS in the Federal Register.

“Given [the] declaration of the end of the pandemic, the potential COVID-19 healthcare industry rule’s impracticality, and OSHA’s lack of authority, we urge OSHA to cease rulemaking on this ill-advised standard immediately,” the letter states.

OSHA COVID-19 rule blocking progress on other rules

Parker stated in September that the COVID-19 for Healthcare final rule will be completed soon, and his agency is working diligently to get that done. In fact, the rule is the biggest rulemaking priority ahead of other rulemakings in the pipeline, such as one on outdoor and indoor heat hazards, according to the OSHA head.

OSHA had hoped to publish the COVID-19 rule in September, according to the semi-annual agenda. However, the rule has not yet reached the Office of Management and Budget (OMB), the last stop before it may appear in the Federal Register. OMB generally takes 90 to 120 days to review and approve a rule but can fast track a rule if necessary.

It’s noteworthy that a nurses’ union took OSHA to court last Spring to require OSHA to issue its permanent COVID-19 rule within 30 days and to adopt and enforce the ETS in the meantime. However, the D.C. Court of Appeals on August 26, denied the request.

While no clear date has been confirmed for issuance of the permanent COVID-19 for Healthcare rule, agency officials have indicated an October to December time frame.

Keys to remember

OSHA hopes to publish the COVID-19 rule in the October to December time frame. However, two lawmakers sent a letter to the agency urging it to abandon this rulemaking and suggest that OSHA has no legal authority to publish it at this time.