Labor & Employment Law Daily Wrap Up, FEDERAL REGULATIONS—OSHA has extended the comment period on multiple NPRMs, (Aug 19, 2025)

By Brandi O. Brown, J.D.

This includes an NRPM related to interpretation of the general duty clause “to exclude from enforcement known hazards that are inherent and inseparable from the core nature of a professional activity or performance.”

OSHA is announcing in the upcoming Federal Register that it is extending the comment period by 60 days for a group of NPRMs initially published on July 1, 2025. Among those on the list, which includes a slew of NPRMs related to respiratory standards, are three of particular note: (1) Occupational Safety and Health Standards; Interpretation of the General Duty Clause: Limitation for Inherently Risky Professional Activities (RIN 1218—AD71); (2) Occupational Exposure to COVID—19 in Healthcare Settings (RIN 1218-AD36); and (3) Amending the Medical Evaluation Requirements in the Respiratory Protection Standard for Certain Types of Respirators (RIN 1218—AD48).

General duty clause. In this proposed rule, OSHA proposes to clarify its interpretation of the General Duty Clause, 29 U.S.C. 654(a)(1), to exclude from enforcement known hazards that are inherent and inseparable from the core nature of a professional activity or performance. It cites as background for the proposed rulemaking the appeals court’s decision in SeaWorld of Florida, LLC v. Perez, 748 F.3d 1202 (D.C. Cir. 2014), in which OSHA relied on the General Duty Clause to prohibit SeaWorld from exposing its trainers to the recognized hazard of close contact with orca whales during live performances. The D.C. Circuit upheld the citation, holding that Seaworld was required to abate the hazard by requiring a barrier or minimum distance between trainers and orcas. Then-D.C. Circuit Judge Brett Kavanaugh had dissented, the notice explains, arguing that the General Duty Clause does not authorize OSHA to regulate hazards arising from normal activities that are intrinsic to professional, athletic, or entertainment occupations.

“In light of the issues raised in that dissent and subsequent developments in administrative and constitutional law,” the notice explained, “OSHA has reexamined its authority under Section 5(a)(1)” and “now preliminarily concurs with the dissent’s concerns.” Thus, the NPRM “responds to those concerns and codifies the principle that the General Duty Clause does not authorize OSHA to prohibit, restrict, or penalize inherently risky activities that are intrinsic to professional, athletic, or entertainment occupations.” Comments are now due November 1, 2025.

COVID-19 exposure in healthcare settings. In this proposed rule, OSHA is proposing to remove OSHA’s COVID—19 Emergency Temporary Standard and its associated recordkeeping and reporting provisions from the Code of Federal Regulations. The COVID—19 recordkeeping and reporting provisions require covered healthcare employers to: (1) establish and maintain a COVID—19 log to record all cases of COVID—19 among their employees, regardless of whether the cases are work-related (29 CFR 1910.502(q)(2)(ii)); (2) make the COVID—19 log or some version of it available to their employees, employee representatives, and OSHA (29 CFR 1910.502(q)(3)(ii)—(iv)); and (3) report work-related COVID—19 fatalities and hospitalizations among employees to OSHA, regardless of how much time passed between the work-related exposure to COVID—19 and the employer learning about the fatality or hospitalization (29 CFR 1910.502(r)). Comments are now due November 1, 2025.

Amending the medical evaluation for certain respirators. In this proposed rule, OSHA is proposing to remove some medical evaluation requirements in the Respiratory Protection Rule for certain types of respirators. OSHA is proposing an update to the Respiratory Protection Standard to amend certain specified medical evaluation requirements where an employee is required to wear either a filtering facepiece respirator (FFR) or loose-fitting powered air-purifying respirator (PAPR) and seeks comment on all aspects of this proposal. Using a respirator may place a physiological burden on employees that varies with the type of respirator worn, the job and workplace conditions in which the respirator is used, and the medical status of the employee, the notice explains. OSHA has preliminarily determined this burden differs based on the type of respirator worn and therefore proposes an amendment to the medical evaluation requirements of the standard for FFRs and loose-fitting PAPRs. Comments are now due November 1, 2025.

News: FederalRegulations Covid19 Safety AgencyNews