The Occupational Safety and Health Administration (OSHA) has announced a proposed permanent standard for healthcare workers related to protecting against COVID-19 in the workplace, in addition to, proposed amendments to its injury, illness and recordkeeping regulations.
Proposed Healthcare Standard
OSHA is seeking comments on a proposed Final Rule to protect healthcare workers from COVID-19. Recall that on June 21, 2021, OSHA issued an emergency temporary standard (ETS) to protect workers in healthcare settings from occupational exposure to COVID-19. At that time, OSHA announced its intent to continue to work expeditiously to issue a final standard to protect healthcare workers from COVID-19 hazards. However, because the Final Rule could not be completed within the required six month timeframe of the ETS’ expiration, OSHA announced on December 27, 2021 that it was withdrawing the non-recordkeeping portions of the ETS, but left the COVID-19 log and reporting provisions in effect as they were established under a separate provision of the OSH Act. Since this time, OSHA has been busy working on promulgating a permanent standard through the regular rulemaking process. In pursuing a permanent standard, employers have an opportunity to comment and express any concerns on the proposed rule.
As part of the rulemaking process, OSHA announced on March 22 that it is partially reopening the public comment period to allow for new data on the Delta and Omicron variants, in addition to, gathering more information on several topics, such as:
- Alignment with the Centers for Disease Control and Prevention’s recommendations for healthcare infection control procedures
- Additional flexibility for employers
- Tailoring controls to address interactions with people with suspected or confirmed COVID-19
- Employer support for employees who wish to be vaccinated
- COVID-19 recordkeeping and reporting provisions
- Triggering requirements based on community transmission levels
Next Step for Employers
Interested employers are encouraged to submit comments online, identified by Docket No. OSHA-2020-0004. Comments are due by April 22, 2022.
As OSHA works towards a permanent standard, employers must continue to comply with their obligations under the General Duty Clause, Personal Protective Equipment and Respiratory Protection Standards, as well as other applicable OSHA standards to protect their employees against the hazard of COVID-19 in the workplace.
Amendments to OSHA’s Injury, Illness and Recordkeeping Regulation
On March 28, 2022, OSHA announced a proposal to amend the occupational injury and illness recordkeeping regulation under 29 CFR 1904.41 aimed at improving OSHA’s ability to use its enforcement and compliance assistance resources to identify workplaces where workers are at high risk. The current regulation requires certain employers to electronically submit injury and illness information that they are required to keep to OSHA. The proposed amendments would create more reporting obligations for some employers, while lessening the reporting obligations for others.
In addition to reporting their Annual Summary of Work-Related Injuries and Illnesses (Form 300A), the proposed rule would require certain establishments in certain high-hazards industries (e.g., agriculture, construction, manufacturing, retail, transportation, healthcare) to electronically submit additional information from their Log of Work-Related Injuries and Illnesses (Form 300), as well as their Injury and Illness Incident Report (Form 301). The proposed rule would:
- Require establishments with 100 or more employees in certain high-hazard industries to electronically submit information from their OSHA Forms 300, 301 and 300A to OSHA annually.
- Update the classification system used to determine the list of industries covered by the electronic submission requirement.
- Remove the current requirement for establishments with 250 or more employees not in a designated industry to electronically submit information from their Form 300A to OSHA annually.
- Require establishments to include their company name when making electronic submissions to OSHA.
Establishments with 20 or more employees in certain high-hazard industries would continue to be required to electronically submit information from their OSHA Form 300A to OSHA annually. With the proposed amendments, this would mean that employers in certain high hazard industries with 20 to 100 employees would only need to submit the Form 300A annually, but not Forms 300 or 301.
Next Steps for Employers
OSHA is currently taking comments on the proposed rule. The comment period allows the public to submit input before the agency makes a final decision on a proposed rule. Employers that would like to submit comments may do so online using Docket No. OSHA-2021-0006 on the Federal eRulemaking Portal. Comments must be submitted by May 31, 2022.
Employers are also encouraged to visit OSHA’s website to learn more about OSHA’s Injury and Illness Recordkeeping and Reporting Requirements.
HR Works will continue to monitor both the proposed healthcare standard and the amendments to the recordkeeping requirements and provide updated information as it becomes available.