On June 10, 2021, the U.S. Department of Labor's Occupational Safety and Health Administration ("OSHA") issued a highly anticipated emergency temporary standard (the "ETS") to protect healthcare workers in settings that place these workers at a heightened risk of contracting COVID-19. The ETS became effective earlier this week, on June 21, 2021, when OSHA published it to the Federal Register.
The ETS establishes new requirements for employers to protect employees in settings where people with suspected or confirmed cases of COVID-19 are reasonably expected to be present, including hospitals, nursing homes, assisted living facilities, home healthcare settings, and certain ambulatory care facilities that treat suspected or confirmed COVID-19 patients. Healthcare employers should review the OSHA guidance to make sure they are in compliance with these requirements, as well as any state-specific COVID-19 standards.
What Employers Are Subject to the ETS?
Subject to specific exceptions set forth in the standard, the ETS applies to all settings where any employee provides healthcare services or healthcare support services. Exceptions include:
- The provision of first aid by employees who are not licensed healthcare providers;
- The dispensing of prescriptions by pharmacists in retail settings;
- Non-hospital ambulatory care settings where all non-employees are screened for COVID-19 prior to entry and anyone with suspected or confirmed COVID–19 is prohibited from entering;
- Well-defined hospital ambulatory care settings where all employees are fully vaccinated and all non-employees are screened for COVID-19 prior to entry and anyone with suspected or confirmed COVID–19 is prohibited from entering;
- Home healthcare settings where all employees are fully vaccinated and all non-employees are screened for COVID-19 prior to entry and anyone with suspected or confirmed COVID–19 is not present;
- Healthcare support services not performed in a healthcare setting, such as off-site laundry and off-site medical billing; and
- Telehealth services performed outside of where direct patient care occurs.
Note that, with respect to healthcare settings that are embedded within a non-healthcare setting (e.g., 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, the ETS applies only to the provision of healthcare services provided by emergency responders or other licensed healthcare providers in a non-healthcare setting. OSHA published a flow chart to assist healthcare employers in determining whether the ETS applies, which may be found here.
Requirements for Employers
A brief summary of the ETS requirements is set forth below. The ETS requires covered healthcare employers to implement the following requirements at no cost to employees. Except for the requirements relating to physical barriers, ventilation, and employee training, which become enforceable on July 21, 2021, covered healthcare employers must comply with the following requirements by July 6, 2021.
1. COVID-19 Plan
Covered healthcare employers must develop and implement a COVID–19 plan for each workplace, except that covered healthcare employers with multiple, substantially similar workplaces, may develop their COVID-19 plan by workplace type, rather than by individual workplace, so long as all required site-specific information is included in the plan. If an employer has more than ten (10) employees, the COVID-19 plan must be in writing.
Covered healthcare employers must conduct a workplace-specific hazard assessment to identify potential COVID-19 workplace hazards and designate one or more workplace COVID-19 safety coordinators to implement and monitor compliance with the COVID-19 plan. The COVID-19 plan must address the hazards identified in the employer's assessment and include policies and procedures to: (i) minimize the risk of transmission of COVID–19 for each employee; (ii) effectively communicate and coordinate with other employers who share the same physical location or who control the physical location; and (iii) protect employees who in the course of their employment enter into private residences or other physical locations controlled by a person not covered by the Occupational Safety and Health Act.
2. Patient Screening and Management
In settings where direct patient care is provided, covered healthcare employers must: (i) limit and monitor points of entry into the healthcare setting; (ii) screen and triage all clients, patients, residents, and non-employees entering the setting; and (iii) implement other applicable patient management strategies in accordance with the CDC's ''COVID–19 Infection Prevention and Control Recommendations." Covered healthcare employers are encouraged to use telehealth services where possible and appropriate in order to limit the number of people in the workplace.
3. Standard and Transmission-Based Precautions
Covered healthcare employers must develop and implement policies and procedures to comply with Standard and Transmission-Based Precautions in accordance with the CDC's ''Guidelines for Isolation Precautions.''
4. Personal Protective Equipment
Subject to certain specified exceptions, covered healthcare employers must provide and ensure that employees wear facemasks appropriately when indoors and when occupying a vehicle for work purposes. Covered healthcare employers must provide a sufficient number of facemasks to each employee. In addition, when employees are exposed to, or performing aerosol-generating procedures on, a person with suspected or confirmed COVID-19, the employer must provide a respirator, gloves, an isolation gown or protective clothing, and eye protection to each employee. Covered healthcare employers also must comply with Standard and Transmission-Based Precautions in healthcare settings in accordance with the CDC's ''Guidelines for Isolation Precautions.''
Notwithstanding these requirements, however, the ETS also states that healthcare workers who are fully vaccinated are not required to wear masks or adhere to distancing requirements in "well-defined areas where all employees are fully vaccinated."
5. Aerosol-generating Procedures on Persons with Suspected or Confirmed COVID-19
When an "aerosol-generating procedure" (e.g., open suctioning or airways, cardiopulmonary resuscitation) is performed on a person with suspected or confirmed COVID–19, only essential employees may be present. In addition, covered healthcare employers must ensure that the procedure is performed in an "airborne infection isolation room" (i.e., a dedicated negative pressure patient-care room with special air handling capability), if available, and must clean and disinfect the surfaces and equipment in the room or area where the procedure was performed.
6. Physical Distancing
Covered healthcare employers must ensure that each employee is separated from all other people by, at a minimum, six (6) feet when indoors, unless such physical distancing is infeasible for a specific activity (i.e., hands-on medical care). If physical distancing of six feet is infeasible, covered healthcare employers must ensure that employees are as far apart from all other people as feasible. Methods of physical distancing may include the utilization of telehealth, reduction in the number of people at the workplace, and physical distancing visual cues (e.g., signs and floor markings).
7. Physical Barriers
Other than at direct patient care areas, covered healthcare employers must install cleanable or disposable solid barriers at each fixed work location (e.g., check-in desks, triage, hospital pharmacy windows) where each employee is not separated from all other people by at least six feet, unless the employer can demonstrate that this is not feasible.
8. Cleaning and Disinfection
With respect to the cleaning of patient care areas, resident rooms, and medical devices and equipment, covered healthcare employers must follow standard practices for cleaning and disinfection of surfaces and equipment in accordance with the CDC's "COVID–19 Infection Prevention and Control Recommendations" and the CDC's "Guidelines for Environmental Infection Control." In all other areas, covered healthcare employers must clean high-touch surfaces and equipment at least once daily and, when aware that a person who is COVID–19 positive has been in the workplace within the last twenty-four (24) hours, clean and disinfect, in accordance with the CDC's "Cleaning and Disinfecting Guidance" all areas and materials potentially contaminated by that person. In addition, covered healthcare employers must provide alcohol-based hand rub that is at least 60% alcohol or provide readily accessible hand washing facilities.
9. Ventilation
Covered healthcare employers who own or control buildings with HVAC systems must ensure the proper use, maintenance, and cleaning of the HVAC system and that all air filters are maintained and replaced as necessary. In addition, all air filters must be rated Minimum Efficiency Reporting Value (MERV) 13 or higher, if compatible with the HVAC system.
10. Health Screening and Medical Management
Covered healthcare employers must screen each employee prior to each workday and shift. Covered healthcare employers must provide COVID-19 tests at no cost to employees if they are required for screening purposes. Covered healthcare employers must also require that all employees promptly notify them when the employee is COVID-19 positive, suspected of having COVID-19, or is experiencing certain symptoms. When a person who has been in the workplace tests positive for COVID-19, covered healthcare employers must notify certain employees within twenty-four (24) hours, follow requirements regarding the removal of workers from the workplace, and follow guidance from a licensed healthcare provider or specified CDC guidance when making decisions regarding the return of employees to the workplace.
11. Vaccination
Covered healthcare employers must provide reasonable time and paid leave to each employee for COVID-19 vaccination and any side effects experienced following vaccination.
12. Training
Covered healthcare employers must train employees on their COVID-19 workplace policies and procedures in a language and literacy level they understand, and must also include training regarding anti-retaliation.
13. Recordkeeping
Covered healthcare employers with ten (10) or more employees must: (i) retain all versions of the COVID-19 plan implemented and (ii) establish and retain a COVID-19 log to record all instances in which an employee is COVID-19 positive, without regard to whether these employees were infected at work. In addition, employers must make such records available to employees upon request.
14. Reporting COVID-19 Fatalities and Hospitalizations to OSHA
Covered healthcare employers must: (i) report to OSHA each work-related COVID–19 fatality within eight (8) hours of the employer learning about the fatality; and (ii) report to OSHA each work-related COVID–19 inpatient hospitalization within twenty-four (24) hours of the employer learning about the inpatient hospitalization.
15. Mini Respiratory Protection Program
The ETS also includes limited requirements for instances where respirators are used. OSHA issued a fact sheet summarizing the Mini Respiratory Program, which is available here.
Anti-Retaliation and Employee Protection
In order to protect employees, covered healthcare employers are expected to develop the required COVID-19 plan taking employee input into account, in addition to the various requirements set forth above. The ETS also requires that a covered healthcare employer remove any employee from the workplace who has or is suspected to have COVID-19, as well as any employee who has had close contact with anyone confirmed to have COVID-19 (if the employee is not fully vaccinated or has not recovered in the prior three months). OSHA requires employers (with less than 10 employees) to continue providing employees' benefits and paying them in such removal situations, up to $1,400 a week.
The ETS goes even further, protecting employees from retaliation for removal from the workplace, taking leave to receive vaccinations, or exercising their other rights under the ETS. Notably, for all work covered by the ETS, employers are prevented from taking any adverse actions against employees for their reporting of workplace hazards or concerns. Healthcare employers are required to provide notice to their employees that such retaliation is prohibited for engaging in any protected activity under the ETS. Employees who believe they have been retaliated against may file a complaint with OSHA, who may issue citations or may file a lawsuit against the employer in federal court, after an investigation.
Next Steps
Over the next two weeks, covered healthcare employers should review their COVID-19 and anti-retaliation policies to make sure that they are prepared to implement these new requirements and to provide the required notice to employees.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
