Argentum and LeadingAge Urge OSHA Not to Make COVID Standards Permanent

Posted on April 28, 2022 by Jonathan Lips

In public comments filed last week, Argentum and LeadingAge urged the Occupational Safety & Health Administration (OSHA) not to make the agency's Emergency Temporary Standard (ETS) for COVID-19 a permanent part of the regulatory landscape.

This relates to the so-called "Healthcare ETS," issued in June 2021, that imposed various infection control and related requirements on healthcare settings, including hospitals, nursing homes, and assisted living facilities. That temporary standard expired after six months. When it did, OSHA said it planned to work on converting the ETS to a permanent regulatory standard during 2022. Notably, OSHA is not considering mandatory vaccination for employees at this time.

In the most recent stage of this proposed rulemaking, OSHA recently published a notice that the agency is considering changes to the previously-issued ETS, such as closer alignment with CDC recommendations and restating requirements in more general, less prescriptive terms. The agency is also calling for public comments on these issues.

In their comments, Argentum and LeadingAge each asserted that a permanent OSHA standard is fundamentally unnecessary and will be unduly burdensome. Argentum, for example, argued that assisted living settings primarily assist residents with basic self-care or activities of daily living and should not be subject to rulemaking targeted at healthcare facilities. Further, Argentum stated that assisted living settings have numerous COVID-19 protocols in response to various state and federal guidance and oversight mechanisms, which already achieve the goals OSHA seeks to address.

Both organizations also offered comments on specific questions OSHA has raised about whether and how it might change the Healthcare ETS. For example, OSHA is considering restating various provisions as broader requirements without the level of detail included in the Healthcare ETS and providing a "safe harbor" enforcement policy for employers in compliance with applicable CDC guidance. LeadingAge commented that flexibility under a broader approach is preferred over a highly detailed approach that limits flexibility to adapt to changing circumstances. Argentum added that an overly prescriptive approach disregards differences among the diverse types of entities covered by the ETS and prevents employers from developing and applying standards and best practices that are most effective and least burdensome for their setting.

OSHA will take all public comments under advisement, including testimony delivered in an April 27 public hearing. It continues its work and evaluation regarding a permanent workplace safety standard relating to COVID.