UPDATED: OSHA Issues Emergency Temporary Standard for Healthcare Services

On June 10, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) on COVID-19 applicable to healthcare services and healthcare support services. The ETS became effective immediately upon publication in the Federal Register, which occurred on June 21, 2021, and employers must comply with most provisions within 14 days after the date of publication (July 6, 2021) and 30 days after publication for certain provisions (July 21, 2021). In addition to the ETS, OSHA also issued updated guidance for protecting unvaccinated not covered by the ETS workers.[1]

On his first full day in office, President Biden directed the Occupational Safety and Health Administration (OSHA) to consider whether an ETS on COVID-19 was necessary and, if so, to issue it by March 15, 2021. A proposed draft of the ETS had been under review at the White House since late April and officials met with various stakeholders over a period of several weeks, leaving the proposal lingering long past the original deadline. Some commenters had questioned whether the ETS would be issued at all, given the changing dynamics of the pandemic, as more Americans were vaccinated and new case numbers dropped. The basis for OSHA’s authority to issue an ETS is that workers are exposed to a grave danger and that an emergency standard—as opposed to one issued through the formal regulatory process, including public review and comment—is necessary to protect them from that danger. Once issued, an ETS remains in effect until superseded and, as published in the Federal Register, serves as a proposed permanent standard, which then follows the normal rulemaking process with the exception that the permanent standard must be promulgated within six months. The validity of an ETS is subject to challenge in the federal courts of appeals.

The ETS does not apply to all employers, but only to settings where any employee provides healthcare services or healthcare support services, with the following exceptions: 1) provision of first aid by an employee who is not a licensed healthcare provider; 2) dispensing of prescriptions by pharmacists in retail settings; 3) non-hospital ambulatory care settings where all non-employees are screened prior to entry and people with confirmed/suspected COVID-19 are not permitted entry; 4) well defined hospital ambulatory care settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with confirmed/suspected COVID-19 are not permitted entry; 5) home healthcare settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with confirmed/suspected COVID-19 are not present; 6) healthcare support services not performed in healthcare setting (e.g. off-site laundry, off-site medical billing); or 7) telehealth services performed outside of a setting where direct patient care occurs.[2] Where a healthcare setting is embedded within a non-healthcare setting (e.g., medical clinic in a manufacturing facility, walk-in clinic in a retail setting), the ETS applies only to the embedded healthcare setting and not to the remainder of the physical location. In addition, where emergency responders or other licensed healthcare providers enter a non-healthcare setting to provide healthcare services, the ETS applies only to the provision of the healthcare services by that employee. Finally, in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present, the requirements discussed below for PPE, physical distancing, and physical barriers do not apply to employees who are fully vaccinated; however, the ETS does apply in full to all other employees in these well-defined areas, as well as to all employees, including those who are fully vaccinated, in other areas of the workplace (assuming no other exception applies). OSHA has published a flow chart to aid in the determination of coverage: “Is your workplace covered by the COVID-19 Healthcare ETS.”

The ETS requires the following for all covered services:
 

• Development and implementation of a COVID-19 Plan (in writing if more than ten (10) employees):The COVID-19 Plan must include: 1) designated safety coordinator with authority to ensure compliance; 2) workplace-specific hazard assessment (which, if seeking exemption from providing controls in a well-defined area based on vaccination status, must include procedures to determine employees’ vaccination status); 3) involvement of non-managerial employees (or their representatives, if any) in hazard assessment and plan development/implementation; and 4) address the hazards identified and include policies and procedures to minimize the risk of transmission of COVID-19 to employees. The employer must monitor to ensure effectiveness of the plan and update as necessary and effectively communicate with other employers at the worksite.
• Patient screening and management: Limit and monitor points of entry to settings where direct patient care is provided; screen and triage patients, clients, and other visitors and non-employees; and implement patient management strategies in accordance with CDC guidance.
• Standard and transmission-based precautions: Develop and implement policies and procedures to adhere to Standard and Transmission-Based precautions in accordance with the CDC’s “Guidelines for Isolation Precautions.”
• Personal protective equipment (PPE): Provide and ensure each employee wears a facemask (as defined in the standard) when indoors and when occupying a vehicle with other people for work purposes, subject to certain exceptions; and provide and ensure employees use respirators and other PPE for exposure to people with confirmed/suspected COVID-19.
• Aerosol-generating procedures on a person with confirmed/suspected COVID-19: Limit employees present to only those essential; perform procedures in an airborne infection isolation room, if available; and clean and disinfect surfaces and equipment after the procedure is completed.
• Physical distancing: Keep people at least six (6) feet apart when indoors, subject to certain exceptions.
• Physical Barriers: Install cleanable or disposable solid barriers at each fixed work location outside of direct patient care areas (e.g., entryway/lobby, check-in desks, triage, hospital pharmacy windows, bill payment) where employees are not separated from other people by at least six (6) feet.
• Cleaning and disinfection: Follow standard practices for cleaning and disinfection of surfaces and equipment in accordance with CDC guidelines in patient care areas, resident rooms, and for medical devices and equipment; in all other areas, clean high-touch surfaces and equipment at least once a day; follow CDC cleaning and disinfecting guidance when a person with COVID-19 has been in the workplace within the previous 24 hours; and provide alcohol based hand rub that is at least 60% alcohol or provide readily accessible handwashing facilities.
• Ventilation: Ensure that employer owned or controlled existing HVAC systems are used in accordance with manufacturer’s instructions and design specifications for the systems and that air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher if the system allows it, among other requirements.
• Health screening and medical management: 1) Screen employees before each workday and shift (self-monitoring or in-person); 2) Require each employee to promptly notify the employer when the employee is COVID-19 positive, suspected of having COVID-19, or experiencing certain symptoms; 3) Notify certain employees and other employers within twenty four (24) hours when a person who has been in the workplace is COVID-19 positive (without identifying the name, contact information, or occupation of the person) – these notification requirements are not triggered by the presence of a patient with COVID-19 where services are provided to such patients (e.g., emergency rooms, urgent care facilities, testing sites, COVID-19 wards); 4) Follow requirements for removing employees from the workplace when they are positive, suspected, or symptomatic and follow certain return to work procedures; and 5) For employers with more than ten (10) employees, provide medical removal protection benefits in accordance with the standard to workers who must isolate or quarantine, including regular pay up to $1,400 per week until return to work, subject to certain limitations.
• Vaccination. Provide reasonable time and paid leave for vaccination and vaccine side effects.
• Training. Ensure all employees received training so they comprehend, among other things, COVID-19 transmission, employer policies and procedures on patient screening and management, tasks and situations in the workplace that could result in infection, relevant policies and procedures to prevent spread that are applicable to their duties, multi-employer agreements and policies related to infection control, the use of common areas, and the use of shared equipment, and employer-specific policies for PPE, cleaning and disinfection, health screening and medical management, available sick leave policies and COVID-19-related benefits, the identity of the safety coordinator, the ETS itself, how they may obtain copies of the ETS and employer-specific procedures and the written plan.
• Anti-Retaliation. Inform employees of their rights to the protections required by the standard and do not discharge or in any manner discriminate against employees for exercising their rights under the ETS or for engaging in actions required by the standard.
• Requirements must be implemented at no cost to employees.
• Recordkeeping. Establish a COVID-19 log (if more than ten (10) employees) of all employee instances of COVID-19 without regard to occupational exposure and follow requirements for making records available to employees/representatives.  Information must be recorded in the log within 24 hours of the employer learning that an employee is COVID-19 positive.
• Report work-related COVID-19 fatalities and inpatient hospitalizations to OSHA.

The ETS also included a “Mini Respiratory Protection Program” applicable only to respirator use pertaining to part of the ETS addressing the use of respirators when not required, such as when an employer provides a respirator to an employee instead of a facemask or an employee chooses to use a respirator instead of a facemask.

OSHA has published FAQs relating to the ETS that provide some details in question and answer format.

As noted previously, the COVID-19 ETS was effective as of June 21, 2021. Covered employers must comply with the standard by July 6, 2021, except as to the requirements relating to physical barriers, ventilation, and training, which require compliance by July 21, 2021. States that operate under their own OSHA-approved state plans (22 states that cover both private and public-sector employers, 6 covering only state and local public-sector employees) have 30 days to adopt the ETS or implement an identical or “at least as effective” standard of their own.
 
For more information, contact Ryan Poor, Tami Earnhart, Cameron Ritsema or the Labor & Employment attorney with whom you normally work.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.