OSHA Issues Long Awaited Emergency Temporary Standard Focused On The Health Care Sector

Seyfarth Synopsis: As the number of COVID-19 related cases, hospitalizations and deaths fall, and states and cities reopen across the country. the Occupational Safety and Health Admission (“OSHA”) published its long-anticipated COVID-19 emergency temporary standard (“ETS”) on June 10, 2021. The ETS was published in the federal register effective June 21, 2021, resulting in compliance requirements as of July 6, 2021 and July 21, 2021, respectively, as discussed below. The ETS focuses on the overburdened health care industry.  Key ETS requirements include developing a COVID-19 plan, patient screening and management, standard and transmission-based precautions, personal protective equipment, precautions for aerosol-generating procedures, physical distancing and barriers, cleaning and disinfection, ventilation, health screening and medical management, vaccination pay, training, anti-retaliation, recording and reporting.  Health care employers now must review their COVID-19 policies with fresh eyes to ensure compliance with the ETS.

Overview

Since the outset of COVID-19 pandemic, unions, worker advocates, and similar groups have called for OSHA to issue regulations aimed at protecting front line employees from potential workplace hazards caused by the virus.  By April 26, 2021, OSHA finally had submitted its proposed ETS -- more than a month after initially promised by President Biden and over a year into the pandemic.  The ETS became effective June 21, 2021, when published in the federal register. Accordingly, employers must comply with most provisions as of July 6, 2021, and must put physical barriers, ventilation and training obligations in place by July 21, 2021. 

While OSHA expressed an intention to extend enforcement discretion to employers who make a good faith effort to comply with the ETS, OSHA is widely expected to undertake aggressive enforcement since it expended such time and effort in promulgation.  Both science and CDC guidance suggest the ETS is unnecessary, however, so OSHA acknowledges it will monitor trends in COVID-19 infections and deaths in the workforce to update the ETS when grave danger from the virus no longer is threatened in workplaces.

Covered Workplaces

OSHA’s catalogue of ETS-covered workplaces is located here.  At bottom, the ETS applies only to workplaces where health care or support services are provided.[1] If an employer meets this definition, then OSHA will explore whether the workplace is a non-hospital ambulatory care setting, all non-employees are screened prior to entry, and people with suspected or confirmed COVID-19 are not permitted to enter.[2]  Employers who answer no to these questions must proceed to determine whether a portion(s) of the workplace is a well-defined hospital ambulatory care setting, all employees are fully vaccinated, all non-employees are screened prior to entry, and people with suspected or confirmed COVID-19 are not permitted to enter.  If the employer answers no it must move on to consider whether the workplace is a home health care setting where all employees are fully vaccinated, all non-employees are screened prior to entry, and people with suspected or confirmed COVID-19 are not present.  If no, the final question is whether there are well-defined areas of the workplace where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.

For employers who make it through this gauntlet of questions answering a resounding “no”, the PPE, physical distancing, and physical barrier provisions of the ETS do not apply to fully vaccinated employees when they are in these well-defined areas. However, all other provisions of the ETS still apply (barring other exceptions).  The employer must have a COVID-19 plan, however, that includes policies and procedures to determine employees’ vaccination status.

The ETS applies 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 (barring other exceptions).

ETS Requirements

If covered, employers are required to follow the provisions outlined below, unless otherwise exempt:

• Develop and implement a written COVID-19 plan that: identifies a designated safety coordinator to ensure compliance; includes a workplace-specific hazard assessment; involves non-managerial employees in COVID-19 planning; and outlines policies to minimize transmission risk.
• Manage patients by limiting and monitoring points of entry, and screen and triage patients, clients, or other visitors.
• Manage employees  by screening each before their workday and shift; requiring employees to notify management when they are COVID-19 positive, suspected of having COVID or symptomatic; notifying employees within 24 hours when a person has been in the workplace and is COVID-19 positive, such as with the sample notification included here; following requirements for removing employees from the workplace; and providing medical removal protection benefits in accordance with the standard for workers who must isolate or quarantine.

OSHA acknowledges there are many ways to communicate and implement an employee screening process. OSHA includes a sample questionnaire on its website, available here, and notes that employers may:

- Ask employees to self-monitor at home before reporting to work.

- Provide an online screening tool, if feasible.

 - Have employees stationed at each entrance asking health screening questions.

- Maintain an “employee only” entrance to facilitate screening.

• Develop and implement policies and procedures to adhere to Standard and Transmission-Based Precautions in accordance with CDC’s “Guidelines for Isolation Precautions”.
• Provide and ensure employees wear facemasks when indoors or occupying a vehicle carrying other people for work purposes, with certain exceptions. Under certain circumstances, N95 respirators or other personal protective equipment must be provided by the employer to employees. Where N95s are not required but in use, employers must follow the new mini respiratory protection program included as 29 CFR 1910.504.
• Follow specific protocols when an aerosol-generating procedure is performed on a person with suspected or confirmed COVID-19. Employers must limit employees present to only those essential to the procedure; use an airborne infection isolation room, if available; and clean and disinfect surfaces and equipment after completing the procedure.
• Ensure physical distancing, including ensuring six feet of distance between workers when indoors and where feasible. Where physical distance is not feasible, the employer must ensure that the employee is as far apart from all other people as feasible, and must install cleanable or disposable solid barriers in fixed work locations outside of direct-care areas.
• 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 and provide alcohol-based hand rub that is at least 60% alcohol or provide readily accessible handwashing facilities.
• Ensure that employer-owned or controlled existing ventilation 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.
• Provide reasonable time and paid leave for vaccinations and vaccine side effects. Employees who have coronavirus or who may be contagious must work remotely or be separated from others, or they must be provided paid time off, up to $1,400 per week.
• Ensure all employees receive training so they comprehend COVID-19 transmission, tasks and situations in the workplace that could result in infection, and relevant policies and procedures.
• Socialize anti-retaliation expectations by informing employees of the right to protections and avoid discharging or discriminating against employees for exercising their rights under the ETS or for engaging in actions it requires.
• Establish a COVID-19 log of all employee instances of COVID-19 without regard to occupational exposure and follow requirements for making records available to employees and their representatives. OSHA provides guidance on maintaining a COVID-19 log available here, which must include: the employee’s name, one form of contact information, occupation, the location where the employee worked, the date of the employee’s last day at the workplace, the date of a positive COVID-19 test or diagnosis, and the date the employee first had one or more COVID-19 symptoms (if any were experienced).
• Report work-related COVID-19 fatalities and in-patient hospitalizations to OSHA. Employers can report COVID-19 fatalities and in-patient hospitalizations by calling the OSHA Area Office that is nearest to the site of the incident (see osha.gov/contactus/bystate); calling the OSHA toll-free telephone number, 1-800-321-OSHA (1-800-321-6742); or submitting information through OSHA's website at www.osha.gov. When reporting a COVID-19 fatality or in-patient hospitalization, the employer should have the following information available: the employer’s business name; the name of the deceased or hospitalized employee; the time and location of the work-related incident (i.e., exposure) that led to the fatality or in-patient hospitalization, if known; the type of reportable event (i.e., fatality or in-patient hospitalization); the number of employees who suffered a fatality or in-patient hospitalization (if applicable); a brief description of the incident; and the name and contact information of the employer’s designated contact person.
• These ETS requirements must be implemented at no cost to employees.

What’s Next

In light of the ETS, health care employers must reevaluate their current COVID-19 policies and procedures to ensure compliance with the new requirements.  OSHA has issued almost 100 FAQ’s available here. Consult your Seyfarth attorney to ensure that policies and procedures meet the ETS requirements and when managing interactions with OSHA regarding the ETS.

 

[1] “Health care services” mean services that are provided to individuals by professional health care practitioners for the purpose of promoting, maintaining, monitoring, or restoring health. “Health care support services” mean services that facilitate the provision of health care services.

[2] For purposes of this section, “ambulatory care” means health care services performed on an outpatient basis, without admission to a hospital or other facility, but does not include home health care settings for the purposes of the ETS. A non-employee, for the purposes of the relevant exceptions, is any person who is not an employee of the employer who owns or controls the setting (e.g., contractors working on the HVAC system).