On June 10, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) submitted for publication in the Federal Register its COVID-19 Emergency Temporary Standard (ETS), setting forth new mandatory safety requirements designed to protect workers from COVID-19. The much-anticipated ETS is generally applicable only to certain healthcare workplaces.
The provisions of the ETS will be effective immediately upon publication in the Federal Register. Compliance will be required within 14 days of publication, with the exception of provisions relating to physical barriers, ventilation, and training, which go into effect within 30 days of publication.
Coverage
The ETS generally applies to all workplace settings where any employee provides healthcare or healthcare support services, except for the following:
- The provision of first aid by an employee who is not a licensed healthcare provider;
- The dispensing of prescriptions by pharmacists in retail settings;
- Nonhospital ambulatory (outpatient) care settings where all nonemployees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings;
- Well-defined hospital ambulatory (outpatient) care settings where all employees are fully vaccinated and all nonemployees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings;
- Home healthcare settings where all employees are fully vaccinated and all nonemployees are screened prior to entry and people with suspected or confirmed COVID-19 are not present;
- Healthcare support services not performed in a healthcare setting (e.g., off-site laundry, off-site medical billing); or
- Telehealth services performed outside of a setting where direct patient care occurs.
Where a healthcare setting is embedded within a nonhealthcare 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. When emergency responders or other licensed healthcare providers enter a nonhealthcare setting to provide healthcare services, this ETS applies only to the provision of healthcare services by that employee.
In addition, the ETS provides that in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present, fully vaccinated workers will be exempt from the masking and other PPE, distancing and barrier requirements that are otherwise mandated as described below.
Overview of Key Requirements for Covered Healthcare Employers
Covered healthcare employers must comply with certain safety requirements aimed at reducing the spread of COVID-19 in the workplace. Those requirements include, but are not limited to:
- Developing and implementing a COVID-19 plan that designates a safety coordinator, addresses hazards assessed by the employer with the involvement of nonmanagerial employees and includes policies and procedures to minimize COVID-19 transmission, among other things. Notably, the ETS indicates that the OSHA website provides a model COVID-19 plan, however, as of the date of this Alert, no such model COVID-19 plan is available online.
- In settings where direct patient care is provided, screening patients, visitors and other nonemployees, limiting and monitoring entry points to settings where direct patient care is provided, and implementing patient management strategies. The ETS also encourages the use of telehealth services where available and appropriate.
- Adhering to CDC guidelines on standard and transmission-based precautions.
- Providing personal protective equipment (PPE). More specifically, providing and ensuring each employee wears a face mask (as defined in the ETS) when indoors and when occupying a vehicle with other people for work purposes, providing and ensuring that employees use respirators and other PPE for exposure to people with suspected or confirmed COVID-19, and for aerosol-generating procedures on a person with suspected or confirmed COVID-19.
- Limiting employees present during aerosol-generating procedures on a person with suspected or confirmed COVID-19, performed in an airborne infection isolation room, if available, in addition to other cleaning and disinfecting requirements.
- Keeping everyone at least 6 feet apart when indoors.
- Installing cleanable or disposable barriers at fixed work locations in nonpatient care areas where employees are not separated from other people by at least 6 feet.
- Following CDC guidelines for cleaning and disinfecting surfaces in patient care areas, resident rooms, and for medical devices and equipment. In other areas, follow procedures for cleaning high-touch surfaces and, where an employer is aware that a person who is COVID-19 positive has been in the workplace within 24 hours, follow the CDC’s cleaning and disinfecting guidance.
- Ensuring that employer-owned or -controlled existing HVAC systems are used properly and air filters meet a certain minimum rating if permitted by an employer’s ventilation system.
- Conducting daily employee health screenings, requiring employees to report positive or suspected COVID-19 cases or symptoms, notifying certain employees of positive COVID-19 cases, following requirements to remove employees who have suspected or confirmed COVID-19 cases and, for employers with more than 10 employees, providing medical removal protection benefits (i.e., paid leave) to workers who must isolate or quarantine.
- Providing reasonable time and paid leave for vaccinations and vaccine side effects.
- Training all employees so that they understand COVID-19 transmission, tasks and situations that could result in infection and relevant policies and procedures.
- Informing employees of their rights relating to anti-retaliation and anti-discrimination protections under the ETS.
- Keeping an up-to-date log of all employee instances of COVID-19 (whether occupational or otherwise) by all employers with more than 10 employees and making records, including the COVID-19 plan and certain log information, available to employees and their representatives by the end of the next business day after a request.
- Reporting work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.
- Requirements for the implementation of ETS’s mini respiratory protection program where healthcare employers provide employees with respirators in lieu of facemasks or permit employees to wear their own respirators instead of facemasks.
Next Steps for Employers
Healthcare employers should immediately take steps to confirm whether the ETS applies to all or only a portion of their operations and begin updating existing COVID-19 policies and procedures to meet ETS requirements. By way of example only, the ETS includes definitions of terms such as “COVID-19 symptoms” that may require revisions to existing policies and plans. The ETS specifies when employees must not enter or be removed from the workplace due to COVID-19 symptoms, diagnosis or close contact, and the timing and conditions for when they may return. Specific requirements apply when employees of different employers share the same physical location and when workers enter into private residences in the course of their employment.
In focusing on the necessary updates, there are a few notable changes based on the ETS that will require particular planning. By way of example:
- Given that some of the exceptions to employer coverage are dependent upon whether all employees are fully vaccinated and, in other instances, certain ETS requirements for covered employers do not apply to fully vaccinated employees, employers may consider requiring all employees be vaccinated or confirming vaccination status. Indeed, an increasing number of employers may require vaccinations in light of the recent dismissal of a highly publicized employee suit challenging hospital-mandated employee vaccinations in Bridges v. Houston Methodist Hospital.
- Employers availing themselves of these exceptions will need to consider, among other issues, how to determine which employees are vaccinated in a way that protects confidential medical information.
- In addition, employers requiring employee vaccination must be mindful of the obligation to provide reasonable accommodations based on disability, pregnancy or religious belief. The ETS specifically provides that if an employer reasonably accommodates an employee who is unable to be vaccinated in a manner that does not expose the employee to COVID-19 hazards, certain exemptions requiring that all employees be vaccinated may nevertheless apply.
- When employers remove an employee from the workplace due to the need to isolate or quarantine based on the requirements of the ETS, and they are not working remotely or in isolation, the ETS requires the continuation of benefits and regular pay, up to $1,400 per week and, for employers with fewer than 500 employees, a reduced amount of up to $200 per day starting in the third week of paid leave. Employers may set off these obligations through compensation employees receive through other sources such as state or local paid COVID-19 leave or employer-provided paid sick leave. In addition, when an employee returns to the workplace after a COVID-19-related workplace removal, they must not suffer any adverse action as a result of their removal, including any to their former job status.
- Employer notification requirements to employees (not wearing a respirator and any other required PPE) of a COVID-19 exposure in the workplace (as well as to the employers of third parties within the workplace) are quite detailed and go beyond those who were a “close contact” to include those who were in the well-defined portion of the workplace in which the potential transmission took place. The ETS provides a Model Employer Notification Tool that may be used for these purposes. Importantly, employers may not include an employee’s name, contact information, or occupation.