Should OSHA's new COVID-19 protections become permanent? Comment until August 20

by A.J. Plunkett (aplunkett@decisionhealth.com)

You still have time to comment on OSHA’s emergency temporary standard (ETS) to protect healthcare workers against COVID-19, which was issued on June 21 with only 14 days-notice to implement most of the requirements. 

OSHA announced on July 8 that it was extending the comment period until August 20 on the interim rule that creates a new Subpart U in the OSHA standards. The federal agency is asking, among other things, whether the emergency temporary requirements should become permanent.

Already more than 70 people, representing doctor’s offices, health organizations, medical clinics, long-term care facilities, hospitals, and hospital associations, have submitted comments on the interim rule that took up 258 pages in the printed Federal Register.

A sampling of the comments shows how frustrated many healthcare leaders and organizations are at the sudden push to implement OSHA requirements for a pandemic threat that is already 16-months old.

“I am a pediatrician in a mid-sized private practice in Central Florida. I was shocked to find that we have such a limited time to implement a policy that is not a small feat. There are over 250 pages to read, interpret, digest and implement and we have been given less than 14 days to do so,” said one doctor. “This is quite onerous. Several of the mandates are not entirely clear, further complicating the ability to implement them. After 16 months of providing a safe environment for our staff and patients and having zero cases of COVID among our staff from the workplace, I am now going to be held to a standard of having to pay employees who stay home, perhaps for weeks on end, while actively and currently struggling to fill open positions that no one wants since many are getting stimulus subsidies.”

Many of those commenting noted that it is already becoming increasingly hard to fill open jobs for nurses, doctors, and other healthcare and hospital personnel. Trying to train and implement the new requirements at the same time will make the task even harder, they say.

There were also concerns about cost and about how much the ETS conflicted with state and local requirements in many areas. Federal law requires states to have worker protection requirements that are equal or stronger than OSHA standards but bringing those state standards into line is often a long and equally complicated process.

“These regulations are unreasonable expectations to place on long-term care facilities that already need to comply with a host of COVID-19 regulations from CMS, CDC, and state health departments,” noted one facility administrator. “There is a very desperate shortage of health care workers, and facilities can't hire enough workers to care for the residents; therefore, health care workers do not have time to attend meetings to give their input in a Covid-19 plan. Administrators are taking on additional roles as they care for residents and manage the plethora of reporting that CMS is now requiring due to Covid-19. They do not have time to create an OSHA Covid-19 plan, even with templates and resources provided.”

A representative of a community access hospital in Washington said, “I can appreciate OSHA's work. However, this standard is once again placing a continued financial burden on cash-strapped rural hospitals. Our facility has been ahead of the curve throughout the pandemic. Now when those state we are moving towards the end of the pandemic a mask mandate is being initiated. This new standard is well beyond the State of Washington and the Department of Labor and Industries.”

The American Hospital Association submitted comments that it said was “speaking on behalf of almost 5,000 member hospitals, health systems and other health care organizations, and our clinician partners – including more than 270,000 affiliated physicians, 2 million nurses and other caregivers – and the 43,000 health care leaders who belong to our professional membership groups.”

“First, we request that the Occupational Safety and Health Administration (OSHA) delay the ETS compliance dates for at least an additional six months. The agency has dictated that the COVID-19 Health Care ETS be effective immediately upon publication in the Federal Register. This rule is long and complex, and would require changes in hospital policies, procedures and structures. Hospitals and health systems are just now emerging from the disruption caused by the COVID-19 pandemic. Our members have told us that they need more time to implement the many new requirements contained” in the page ETS, wrote Stacey Hughes, the AHA’s Executive Vice President Government Relations and Public Policy.

“For example, hospitals and health systems will have to consider how to deal with the differences between the ETS requirements and guidelines established by the Centers for Disease Control and Prevention, particularly in areas in which the ETS approach will put health care workers at greater risk of COVID-19 infection,” wrote Hughes.

“Among these are the barrier requirements that could impede airflow; another area of concern is the requirement that rooms in which an aerosol-generating procedures are performed be cleaned/disinfected after every such procedure – even when the patient remains in the room and staff are protected by vaccines and personal protective equipment (PPE). Our members also are unsure how they will implement the provisions in the mini respiratory protection standard that permit employees who are not required to wear respirators to bring their own into the hospital,” the AHA comments continued.

“Moreover, this provision will allow employers to provide respirators to employees who are not required to wear them, and without the benefit of fit-testing, medical evaluation or a written program. Many of our members have noted that these requirements, which contradict OSHA’s own PPE and respiratory protection standards, raise huge liability exposures for the employer and puts these employees at additional risk. Changes in hospital policies and procedures are not simply a matter of changing words on paper; they require careful analysis and planning, the acquisition of needed materials and tools, and the retraining of personnel,” wrote Hughes.

This from organizations “that are already busy caring for their communities’ ill and injured,” said the AHA.

If you want to add your comments, OSHA says comments can be submitted electronically “for Docket No. OSHA-2020-0004 via the Federal eRulemaking Portal at www.regulations.gov. Follow the online instructions for making electronic submissions.”

For more on the OSHA ETS, including fact sheets and other information, go to https://www.osha.gov/coronavirus/ets.