Federal OSHA Issues Emergency Temporary Standards for Healthcare Industry
By: Steven G. Gatley
On January 21, 2021, President Biden issued an Executive Order, which declared that ensuring the health and safety of workers is a national priority and a moral imperative. The order directed the Occupational Safety and Health Administration (OSHA) to take action to reduce the risk that workers may contract COVID-19 in the workplace. The agency determined that existing standards and regulations, and the Occupational Safety and Health Act’s General Duty Clause, were inadequate to address the COVID-19 hazard for healthcare workers. Additionally, a federal standard was needed to ensure sufficient protection for healthcare workers in all states. On June 10, 2021, OSHA issued an emergency temporary standard (ETS) to address this industry.
The ETS is aimed at protecting workers facing the highest COVID-19 hazards – those working in healthcare settings where suspected or confirmed COVID-19 patients are treated. This includes employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in ambulatory care facilities where suspected or confirmed COVID-19 patients are treated. The ETS exempts fully vaccinated workers from masking, distancing, and barrier requirements when in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.
The ETS is effective immediately upon publication in the Federal Register. Employers must comply with most provisions within 14 days (by June 24), and with provisions involving physical barriers, ventilation, and training within 30 days (by July 11). OSHA will use its enforcement discretion for employers who are making a good faith effort to comply with the ETS. OSHA will continue to monitor trends in COVID-19 infections and deaths as more of the workforce and the general population become vaccinated and the pandemic continues to evolve.
How to Protect Workers from COVID-19
The main section of the ETS (1910.502 – Healthcare) requires employers to develop and implement effective COVID-19 plans. Controlling COVID-19 requires employers to use multiple overlapping controls in a layered approach to better protect workers. The key requirements of the ETS are:
COVID-19 Plan: Develop and implement a COVID-19 plan (in writing if more than 10 employees) that includes a designated safety coordinator with authority to ensure compliance, a workplace-specific hazard assessment, involvement of non-managerial employees in hazard assessment and plan development/implementation, and policies and procedures to minimize the risk of transmission of COVID-19 to employees.
Patient Screening and Management: Limit and monitor points of entry to settings where direct patient care is provided; screen and triage patients, clients, and other visitors and non-employees; implement patient management strategies.
Standard and Transmission-Based: Develop and implement policies and procedures to adhere to Standard and Transmission-Based precautions based on CDC guidelines.
Personal Protective Equipment (PPE): Provide and ensure each employee wears a facemask when indoors and when occupying a vehicle with other people for work purposes; provide and ensure 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.
Aerosol-Generating Procedures on a Person with Suspected or Confirmed COVID-19: Limit employees present to only those essential; perform procedures in an airborne infection isolation room, if available; and clean and disinfect surfaces and equipment after the procedure is completed.
Physical Distancing: Keep people at least 6 feet apart when indoors.
Physical Barriers: Install cleanable or disposable solid barriers at each fixed work location in non-patient care areas where employees are not separated from other people by at least 6 feet.
Cleaning and Disinfection: 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.
Ventilation: Ensure that employer-owned or -controlled existing HVAC 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.
Health Screening and Medical Management: (1) Screen employees before each workday and shift; (2) Require each employee to promptly notify the employer when the employee is COVID-19 positive, suspected of having COVID-19, or experiencing certain symptoms; (3) Notify certain employees within 24 hours when a person who has been in the workplace is COVID-19 positive; (4) Follow requirements for removing employees from the workplace; (5) Employers with more than 10 employees, provide medical removal protection benefits in accordance with the standard to workers who must isolate or quarantine.
Vaccination: Provide reasonable time and paid leave for vaccinations and vaccine side effects.
Training: 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.
Anti-Retaliation: Inform employees of their rights to the protections required by the standard and do not discharge or in any manner discriminate against employees for exercising their rights under the ETS or for engaging in actions required by the standard.
Recordkeeping: Establish a COVID-19 log (if more than 10 employees) of all employee instances of COVID-19 without regard to occupational exposure and follow requirements for making records available to employees/representatives.
Note that these requirements must be implemented at no cost to employees.
What impact does the ETS have on state or local government mandates or guidance?
Twenty-eight states have their own OSHA-approved plans. When federal OSHA promulgates an ETS, states and U.S. territories 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 standard, or show that an existing state standard covering this area is “at least as effective” as the new federal standard. Adoption of the ETS by State Plans must be completed within 30 days of the promulgation date of the final federal rule, and State Plans must notify federal OSHA of the action they will take within 15 days. The State Plan standard must remain in effect for the duration of the federal ETS.
State or local government mandates or guidance (e.g., legislative action, executive order, health department order) that go beyond and are not inconsistent with the ETS are not intended to be limited by this ETS. OSHA recognizes that many states have taken action with mandatory requirements applicable to general industry, and that states have additional powers that OSHA does not (e.g., criminal sanctions). OSHA does not intend to preempt these powers or requirements. For example, OSHA does not intend to preempt state or local COVID-19 testing requirements or state or local requirements for customers to wear face coverings whenever they enter a hospital or other health care facility, or in public places generally.
For more information on this federal OSHA ETS, contact the author of this post. You can also subscribe to this blog to receive email alerts when new posts go up. Visit our COVID-19 Response Resource Center to find more blogs and alerts on the many areas of law impacted by the pandemic.