OSHA pursues new safety rule for health-care facilities after previous efforts faltered expired

After previous attempts expired or were knocked down in federal court, the Labor Department is now working to create a permanent set of coronavirus safety rules for health-care facilities, trying to establish the only enforceable workplace safety rules two years after the virus began spreading through the United States.

The agency's effort, which is in an early stage, shows how much the Biden administration has struggled to stand up a set of policies aimed at protecting workers from an easily transmissible virus. Writing and implementing the rules could take months, or even years, because of pushback and court challenges. But White House officials believe the policies are important for safeguarding public health.

The policy would include things like mandatory mask-wearing, social distancing, and create new cleaning and disinfecting procedures. They could also require the notification of workers when they are exposed to infections among co-workers, under the threat of penalty.

The policy, which officials hope would be permanent, would come after a temporary policy was allowed to lapse.

The Biden administration also worked to impose vaccine-or-test requirements at businesses, but the bulk of its effort was recently blocked by the Supreme Court. The Court did allow the White House's vaccine rule for health-care workers to stay in place.

Still, the new effort comes after more than 872,000 Americans have died of the coronavirus amid more than 73 million infections.

Though there is no detailed data on the issue, workplaces have made for a significant part of the pandemic's spread, experts say, and safety advocates and labor unions have been disappointed that federal officials have been slow to create broad safety protections for workers during the pandemic.

Some safety advocates said they didn't fully understand why the Occupational Safety and Health Administration (OSHA) would pursue a permanent rule while letting the temporary rule expire in the meantime -- which leaves a months or even years long gap in mandatory protections amid the ongoing pandemic.

"It doesn't make a whole lot of sense," said Jordan Barab, a former OSHA official during the Obama years. "Their intention to issue a standard within six months is almost impossible. Their argument for withdrawing it didn't make sense and now they find themselves in a pickle where no worker has protection. They're in a mess that I think they're having trouble figuring out how to get out of."

The news emerged in a court filing that the agency issued while battling a lawsuit filed against it by a group of unions including National Nurses United, the American Federation of Labor and Congress of Industrial Organizations federation, and the American Federation of State, County and Municipal Employees (AFSCME). The unions charge that the agency unlawfully let the temporary health-care rule expire -- and that legally it should remain in effect.

"We were appalled and disappointed that something like this would be withdrawn, leaving us in grave danger," NNU president Zenei Cortez said in an interview. "And with that withdrawal, the employers would go back to doing what they did before -- denying us PPE, and [operating] without infection protocols. We don't need any more accolades or compliments or whatever. What we need is protection."

In its court filing, OSHA said that it was moved to pursue the permanent health-care rule after the Supreme Court shot down the vaccination or testing rule -- freeing up resources for the effort.

"In light of the Supreme Court's decision staying the Vaccination and Testing [policy], OSHA has determined that it will re-prioritize its resources to focus on finalizing a permanent health care Standard," Labor Department officials wrote in the filing. "These actions reflect an appropriate and permissible exercise of OSHA's discretion in allocating scarce agency resources and ordering agency priorities during this unprecedented crisis."

The Department's decision to pursue a permanent rule may ward off some of the criticism that has been directed at its emergency rules.

Critics and business groups, for example, said one of the main reasons they had been opposed to the vaccination requirement was that it was being implemented on an emergency basis -- meaning that the agency could implement it quickly, and without the lengthy public comment period and hearings that are required of typical rules.

The health-care rule will now be subject to that process, which OSHA estimates will take between six and nine months.

But the bureaucratic system often takes considerably longer, in practice. Labor officials note that the Government Accountability Office found that the average time for an OSHA rule to be created was more than three years in a 2012 study cited in the court filing.

"With the rise of the Delta variant this fall, and now the spread of the Omicron variant this winter, OSHA believes the danger faced by health-care workers continues to be of the highest concern and measures to prevent the spread of covid-19 are still needed to protect them," OSHA said in a statement distributed by spokeswoman Amanda McClure.

Baruch Fellner, a lawyer who specializes in occupational safety at the firm Gibson Dunn, said he felt like the permanent rule was OSHA's attempt to split the difference between choosing either more forceful and potentially divisive emergency rules, and doing nothing.

"If they lose, they tell their base, 'Boy, have we tried and we're continuing to try,' " he said. "If they win, it would have been even better. So that's why I think inordinate resources are being poured into this effort, knowing full well that in the fullness of time, we hope that omicron and the whole nine yards is going to become manageable and we're not going to be in the midst of a pandemic. And if that happens, OSHA, takes some credit for it. 'You know, we didn't succeed in court, but we were the ones who encouraged employers to do this, et cetera.' So they become a white knight win or lose."

Labor unions who have been frustrated by the agency's actions said they supported the push for the permanent rule, just didn't think it was wise to let the temporary rule expire in the meantime.

"We've long called on OSHA to create a permanent standard to protect health-care workers against infectious-disease, so it is good to hear they are moving forward with permanent covid protections," said Lee Saunders, the president of AFSCME. "However, Congress and the courts have made it far too difficult for OSHA to meet workers' needs in an urgent moment like we're in now. It would have been far better for workers if OSHA had left in place its emergency protections for health-care settings until it can issue a permanent rule, as AFSCME argues in a recent lawsuit it has filed against OSHA."

Some hospitals said that the lapse in OSHA rules would not result in any changes to their safety procedures at work two years into the pandemic.

"We don't find OSHA to be in any way a challenge, because it's the stuff that we do," said Alan Vierling, president of Sparrow Hospital in Lansing, Mich. Vierling said the hospital had detailed procedures around providing protective gear, disinfecting, screening employees, and processing patient visitors throughout the pandemic.

"There's nothing extraordinary about what they've asked. It's all good, logical, common sense kind of things," he said. "Of all the public buildings, a hospital is likely the safest place you go."