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January 11, 2023
OSHA proceeding with healthcare rulemakings

The Occupational Safety and Health Administration (OSHA) will proceed with three rulemakings focused on the healthcare industry—standards for COVID-19, infectious diseases, and workplace violence—the Department of Labor (DOL) announced as part of the fall 2022 unified regulatory agenda unveiled January 4.

The agency also is moving forward with developing a federal heat illness prevention standard, according to Secretary of Labor Marty Walsh’s statement of regulatory priorities for OSHA and the rest of the DOL.

The healthcare COVID-19 final rule is undergoing regulatory review at the White House Office of Information and Regulatory Affairs (OIRA). The OIRA continues to schedule stakeholder meetings regarding the final rule, which is based on OSHA’s 2021 healthcare emergency temporary standard (ETS), but the agency considered changes and updates, possibly making the rule more performance-based than specification-based. The agency also weighed whether to exclude areas of healthcare facilities where workers are unlikely to have contact with confirmed or suspected cases of COVID-19.

OSHA will propose an infectious diseases rulemaking to protect employees in health care and other high-risk environments from exposure to and transmission of persistent and new infectious diseases, according to Walsh’s statement of regulatory priorities. The rulemaking would focus on exposures to infectious diseases that include chickenpox and shingles (varicella disease), measles, methicillin-resistant Staphylococcus aureus (MRSA), and tuberculosis (TB), as well as new and emerging infectious diseases like COVID-19, pandemic influenza, and severe acute respiratory syndrome (SARS), according to OSHA.

The agency already has a standard addressing the hazards of bloodborne pathogens and needlesticks, and California has a state airborne transmissible disease (ATD) standard for health care, correctional facilities, diagnostic laboratories, and police and public health services.

OSHA plans to initiate small business consultations in developing its rulemaking for workplace violence prevention in health care and social services. There is no current federal workplace violence standard, and OSHA cites employers under the General Duty Clause (§5(a)(1)) of the Occupational Safety and Health Act when it finds employees exposed to workplace violence hazards.

In 1996, the agency issued voluntary prevention guidelines for health care and social assistance that may point to elements of a possible federal standard.

OSHA also plans to launch small business consultations as a next step in advancing the agency’s rulemaking on heat illness prevention. In addition to the rulemaking, OSHA last year launched an indoor and outdoor heat-related hazards National Emphasis Program (NEP). As with workplace violence, OSHA cites employers for heat stress violations using its General Duty Clause authority.

The NEP allows agency inspectors to make “self-referrals,” inspecting worksites they encounter during their daily travels where workers may be exposed to heat hazards. The NEP also allows area offices to act on referrals from the Labor Department’s Wage and Hour Division (WHD).

American Airlines cited for whistleblower violations

On January 4, OSHA also announced that American Airlines retaliated against flight attendants who reported illnesses caused by toxic fumes entering aircraft cabins. The agency’s proposed penalties for the whistleblower violations total $6,837.

OSHA investigators concluded that American Airlines retaliated against employees who filed complaints with the company about their illnesses. The flight attendants alleged that the airline docked attendance points and discouraged them from reporting work-related injuries and illnesses.

American Airlines Inc., based in Fort Worth, Texas, operates a domestic and international network, according to OSHA, with almost 6,800 flights to nearly 350 destinations in more than 50 countries. The company employs about 109,016 employees, including approximately 24,000 flight attendants.

“Federal law protects workers’ rights to voice workplace safety and health concerns without the fear of retaliation,” Timothy Minor, OSHA’s Fort Worth area director, said in an agency statement. “When employers punish employees for doing so, they create a chilling effect that may stop workers from reporting future issues, putting their health and well-being, and that of co-workers, at risk.”

OSHA’s whistleblower protection authority was first established in the 1970 Occupational Safety and Health (OSH) Act to protect workers who lodge safety or health complaints or cooperate in investigations of workplace safety and health violations. The agency is now responsible for investigating whistleblower complaints under more than 20 federal statutes, ranging from aviation, commercial motor carrier, consumer product, food, motor vehicle, nuclear, and pipeline safety to anti-money laundering, criminal antitrust, environmental, financial reform, health insurance reform, maritime, public transportation, railroad, securities, and tax laws.

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