The Occupational Safety and Health Administration (“OSHA”) recently issued an Emergency Temporary Standard (“ETS”) with significant implications for health care employers. The purpose of the ETS is to protect health care workers from contracting COVID-19. For months, there has been great anticipation that OSHA would announce updated COVID-19 rules generally applicable to all workplaces. But OSHA chose instead to limit the COVID ETS and new mandatory rules to the health care industry, while issuing separate, optional recommendations for all other employers.
The ETS was published in the Federal Register on June 21, 2021. Although publication gives the ETS immediate effect, most elements of the ETS became enforceable as of July 5, 2021, with some limited requirements enforceable beginning on July 21, 2021.
The ETS is aimed at protecting workers facing the highest COVID-19 hazards—those in health care settings where COVID-19 patients are treated—and applies generally to “all settings where any employee provides health care services or health care support services.” This includes hospitals, nursing homes, assisted living facilities, emergency responders, home health care workers, and employees in ambulatory care facilities. Despite this broad wording, there are a number of settings excluded from the ETS’ coverage, including:
- First aid provided by an unlicensed health care provider;
- Dispensing of prescriptions by pharmacists in retail settings;
- Non-hospital ambulatory care settings where all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings;
- Well-defined hospital ambulatory care settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings;
- Home health care settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not allowed;
- Health care support services performed outside of a health care setting (i.e. off-site medical billing or laundry); or
- Telehealth services performed outside of a direct patient care setting.
To help employers determine whether and how their workplace is covered by the ETS, OSHA has published a flowchart detailing its applicability in various settings.
For covered workplaces, the ETS addresses a variety of workplace safety topics and imposes detailed requirements on employers, all of which must be implemented at no cost to employees.
The key component of the ETS is a mandate that covered health care employers develop and implement a COVID-19 plan that includes policies and procedures to minimize the risk of COVID-19 to employees, which must be in writing for employers with more than 10 employees. Development and implementation of the plan must be based on a workplace-specific hazard assessment and input from non-managerial employees. Employers are then required to communicate the plan’s requirements to employees and designate a safety coordinator to ensure compliance and overall effectiveness.
The ETS imposes numerous additional requirements on covered employers, including:
- Patient screening and management: Screen patients and other non-employees and implement patient management strategies, including limit and monitor points of entry to settings where direct patient care is provided, and screen and triage patients, residents, delivery people and other visitors and nonemployees entering the setting for symptoms of COVID-19.
- Policies and procedures: Develop and implement policies and procedures to adhere to standard and transmission-based precautions in accordance with Centers for Disease Control and Prevention (“CDC”) guidelines.
- Physical barriers: Install physical barriers that are cleanable or disposable in non-patient care areas (i.e. check-in, lobby, bill payment, triage) where physical distancing between each employee and all other people is not possible.
- Personal protective equipment (PPE): Provide and ensure employees wear: (i) facemasks when indoors and in vehicles with another person for work purposes, (ii) respirators and other PPE for exposure to and for aerosol-generating procedures on a person with suspected or confirmed COVID-19, and (iii) respirators and other PPE in accordance with the CDC’s Standard and Transmission-Based Precautions. Employers should also allow voluntary use of respirators instead of facemasks.
- Cleaning and disinfection: Follow standard practices for cleaning and disinfection in accordance with CDC guidelines in patient care areas, resident rooms, and for medical devises and equipment. In all other areas, clean high-touch surfaces at least once a day. Provide alcohol-based hand rub that is at least 60% alcohol or readily accessible handwashing facilities.
- Ventilation: OSHA does not require employers to install new HVAC systems or AIRRs to replace or augment functioning systems. But employers must ensure that (i) existing HVAC systems are used in accordance with manufacturer instructions, design and specifications, (ii) the amount of outside air circulated through the HVAC system and number of air changes per hour are maximized to the extent possible, (iii) air filters are rated for MERV 13 or higher, if compatible with the system, or, if not compatible, then use filters with the highest compatible filtering efficiency for the HVAC system, (iv) air filters are maintained and replaced as necessary to ensure proper function and performance of the HVAC system, and (v) all intake ports that provide outside air to the HVAC system must be cleaned, maintained and cleared of debris. Where employers have an existing airborne infection isolation room (“AIIR”), they must maintain and operate it in accordance with the design and construction criteria.
- Health screening and medical management: Screen employees before each shift, require employees to notify employer of COVID-19 positive tests or symptoms, and inform employees of potential exposure. If testing is required, the employer must provide at no cost to the employee. Follow requirements to remove employees with suspected or confirmed COVID-19, have certain COVID-19 symptoms, or have had close contact to a person infected with COVID-19 in the workplace. Continue to pay employees removed from the workplace in most circumstances.
- Vaccination: Provide reasonable time and paid leave for employees to get vaccinated and recover from any side effects.
- Training and anti-retaliation: Ensure all employees receive training on COVID-19 transmission and related policies at a literacy level that the employees understand and ensure that employees engaging in conduct required by the ETS are not discriminated against for doing so.
- Recordkeeping and reporting: Report all work-related COVID-19 fatalities (within 8 hours) and work-related COVID-19 in-patient hospitalizations to OSHA (within 24 hours). Employers with more than 10 employees must also maintain a written log of employees that test positive for COVID-19.
The requirements regarding installing physical barriers, effective onsite ventilation and employee training on COVID-19 risks and mitigation will be enforced beginning on July 21, 2021. All other ETS requirements are enforceable as of July 5, 2021. Also, states with their own OSHA-approved occupational safety and health plans (“State Plans”) must either amend their standards to be identical or at least as effective as the new federal standard. State Plans, including other state or local government mandates or guidance that go beyond the ETS are not inconsistent with it and are not intended to be limited by the ETS. Thus, health care employers also need to ensure compliance with State Plans and any applicable state or local government mandates or other guidance that may be even more protective than the ETS.
While the ETS does not include a vaccination mandate, it does exempt fully vaccinated employees from the provisions addressing PPE, physical distancing, and physical barriers in well-defined areas where there is no reasonable expectation that a person with confirmed or suspected COVID-19 will be present. The ETS also encourages employers to comply with CDC guidance, however, making clear that it is not intended to limit any state or local guidelines that impose additional requirements on employers.
Many health care employers likely already follow many of the ETS standards, but as the pandemic continues to evolve, it is important that each employer understands the new requirements and updates their relevant policies accordingly. For any questions regarding applicability or implementation of the new OSHA recommendations for health care employers, please do not hesitate to contact us. We are here to help.