OSHA Issues COVID-19 Emergency Temporary Standard for Health Care Workplaces
What Employers Need to Know
On June 10, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) applicable to workplaces where employees provide health care or health care support services. The purpose of the ETS is to protect workers most at risk of exposure to COVID-19 (a.k.a. coronavirus), such as employees in:
- hospitals, nursing homes and assisted living facilities
- emergency responders
- home health care workers and
- employees in certain ambulatory care facilities.
That said, the ETS is not applicable to all health care workplaces, so employers should consult the flow chart provided by OSHA summarizing exemptions to the ETS to determine whether their workplace is covered. Notably, fully vaccinated employees are exempt from the masking, distancing and barrier requirements of the ETS (discussed below) when those employees are in well-defined areas where there is no reasonable expectation that any person suspected or confirmed to have COVID-19 will be present.
The key requirements of the ETS include:
- COVID-19 Plan. Develop and implement a COVID-19 plan to minimize COVID-19 risk among employees, and designate a workplace safety coordinator to implement, monitor and ensure compliance with the plan.
- Patient Screening and Management. Implement strategies for patient screening and management, such as limiting and monitoring points of entry to areas where direct patient care is provided.
- Standard and Transmission-Based Precautions. Develop and implement policies and procedures to adhere to Standard and Transmission-Based Precautions in accordance with CDC guidelines.
- PPE. Ensure employees wear personal protective equipment (PPE) and allow voluntary use of respirators instead of facemasks pursuant to the “mini respiratory protection program.”
- Aerosol-Generating Procedures. For patients with a suspected or confirmed case of COVID-19, perform procedures in an airborne infection isolation room with only essential employees.
- Physical Distancing and Barriers. Promote physical distancing and install physical barriers at fixed workstations where employees are less than six feet apart.
- Cleaning and Disinfection. Follow standard practices for cleaning and disinfecting of surfaces and equipment in accordance with CDC guidelines.
- Ventilation. Ensure employer-owned HVAC systems are used in accordance with manufacturer and design specifications and air filters are rated MERV 13 or higher, if possible.
- Health Screening and Medical Management. Develop policies for:
- screening employees before each workday and shift;
- requiring that employees notify the employer of COVID-19 symptoms; and
- testing, and notifying employees of potential exposure.
- Employee Pay. OSHA advises that employees covered under the ETS who are removed from the workplace due to a potential or confirmed case of COVID-19 should continue to be paid in most circumstances.
- Vaccination. Covered employers must provide reasonable time and paid leave for vaccinations and vaccine side effects.
- Training. Train employees on disease transmission, situations in which a COVID-19 infection could result and relevant policies and procedures.
- Anti-Retaliation and No Cost. Employees must be informed of their rights under the ETS and cannot be discharged or discriminated against for enforcing them. ETS requirements must be implemented at no cost to employees.
- Recordkeeping and Reporting. A covered employer should establish a COVID-19 log to record COVID-19 cases among the employer’s workforce. Under the strengthened record-keeping requirement:
- employers must document all worker COVID-19 cases, regardless of whether they are deemed work-related;
- report all COVID-19 related hospitalizations even if they occur more than 24 hours after a workplace exposure; and
- report work-related COVID-19 fatalities even if they occur more than 30 days after exposure.
ETS Effective Dates
The ETS became effective on June 21, 2021, with its publication in the Federal Register. Covered employers are expected to comply with most new requirements by July 6, 2021. Employers have until July 21, 2021, to comply with the other requirements (i.e., those related to physical barriers, ventilation and training).
It is important to note the above list only summarizes OSHA’s new requirements, and employers should consult the full ETS text and legal counsel to ensure they are entirely compliant. Using its enforcement discretion, OSHA will avoid citing employers that make a good faith effort to comply with the ETS. OSHA also will continue to monitor COVID-19 trends and update the ETS as necessary.
For questions about the ETS and how your workplace can comply with its requirements, contact one of our Labor & Employment or Health Care attorneys.
At the date of publication, the above information was correct. It is quite possible the information above has changed as COVID-19 is a rapidly evolving situation.
The article in this publication has been prepared by Eastman & Smith Ltd. for informational purposes only and should not be considered legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney/client relationship.