OSHA’s COVID-19 Emergency Standard for Healthcare Employers

OSHA has issued an Emergency Temporary Standard (ETS) for occupational exposure to COVID-19 that is applicable only to healthcare employers. The genesis for this ETS came one day after President Biden’s inauguration when, on January 21, 2021, he asked OSHA to consider whether any emergency temporary standards on COVID-19 are necessary. President Biden gave OSHA until March 15, 2021 to issue any such standards. That date came and went, and a lot has changed with the COVID-19 pandemic over the past few months. Nonetheless, on June 10, 2021, OSHA issued its ETS for healthcare employers. That same day, OSHA separately issued updated COVID-19 guidance for all industries. [Quarles & Brady will highlight this guidance in a separate alert once live].

As of the date of this client alert, the ETS has not yet been published in the Federal Register. Once it is, healthcare employers must comply with most provisions of the ETS within 14 days of its publication, and with all provisions within 30 days. The ETS can remain in effect only up to six months, but OSHA has noted that it will respond and react appropriately to the dynamic and changing circumstances presented by COVID-19. Healthcare employers should quickly familiarize themselves with the ETS, including to identify what aspects of it they are already performing, and what they will need to do.

Which Healthcare Workplaces Are Covered By The Emergency Temporary Standard?

The ETS applies to all settings where any employee provides healthcare services or healthcare support services, subject to the exceptions noted below. The ETS also applies to healthcare settings embedded within a non-healthcare setting, such as a medical clinic in a manufacturing facility or a walk-in clinic in a retail setting, and to circumstances where emergency responders or other licensed healthcare providers enter a non-healthcare setting to provide healthcare services.

The ETS does not apply to:

Well-defined hospital ambulatory care settings where 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 those 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;
Home healthcare settings 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;
Healthcare support services not performed in a health care setting (e.g., off-site laundry, off-site medical billing);
Telehealth services performed outside of a setting where patients are physically present;
First aid performed by an employee who is not a licensed healthcare provider; or
Dispensing of prescriptions by pharmacists in retail settings.

OSHA has released a flow chart for guidance determining whether the COVID-19 Healthcare ETS covers your workplace.

Requirements of the Emergency Temporary Standard

Most hospitals and healthcare employers have already assessed and implemented measures to minimize the spread of COVID-19 throughout the public health crisis, including following CDC guidance. Several ETS requirements might therefore not be perceived as new requirements for healthcare employers who have been following CDC guidance since the pandemic started. These include measures such as:

Patient screening including limiting and monitoring points of entry, and screening all individuals entering the facility;
Physical distancing including ensuring that employees are separated by six feet unless such distancing is not feasible or is required by the job;
Cleaning and disinfecting of patient care areas, medical equipment, and high-touch surfaces;
Providing employees with personnel protective equipment including facemasks, respirators (e.g., N95 masks, and PAPR) for those working with suspected COVID-19 patients, and during aerosol-generating procedures;
Meeting certain HVAC ventilation requirements for healthcare employers who own or control their buildings; and
Implementing barriers such as transparent acrylic glass that are intended to block face-to-face pathways at fixed work locations outside of direct patient care areas (e.g., entryway/lobby, check-in desks, triage, hospital pharmacy windows, and bill payment).

Although employers may already be engaged in some of these activities, all healthcare employers should review the ETS to ensure their existing programs meet its technical requirements.

Notably, 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, e.g. an employee break room. This provision might cause hospitals who have voluntary vaccination polices to consider whether to implement a mandatory vaccination program.

The ETS also contains elements that may vary from or expand upon current general, COVID-19 practices. These include:

COVID-19 Plan – The ETS requires employers with more than ten employees to create a written COVID-19 plan. The concept of a COVID-19 plan is not new, but under the ETS the plan must include a designated safety coordinator with authority to ensure compliance, a work-specific hazard assessment, involve non-managerial employees in hazard assessment and plan development/implementation, and identify policies and procedures to minimize the risk of transmission of COVID-19 to employees. The express requirement to include non-managerial employees underscores the need to form a multi-disciplinary team. Employers should ensure both clinical staff and employees in supporting departments (i.e., transporters, environmental services, etc.) are included on the assessment team.
Aerosol-generating Procedures – The ETS requires healthcare employers to limit the number of employees present during aerosol-generating procedures to essential staff only, to perform the procedure in an existing negative-pressure patient-care room if available, and to clean and disinfect the patient room after the procedure.
Employee Health Screening, Notification and Medical Removal Benefits – Employers must screen employees each day and each shift, which can be accomplished through self-monitoring by the employee for COVID-19 symptoms. In the event of a COVID-19 exposure, healthcare employers are required to notify certain other employees who were in close contact with the infected individual and remove them from the workplace within 24 hours, unless the exposed employee was wearing a respirator. A significant new requirement of the ETS is that employers must compensate employees removed from work due to the employee’s own COVID-19 diagnosis, certain symptoms, or close contact with a person who has tested positive for COVID-19. A general overview of compensation guidelines are as follows:

Healthcare employers with less than 500 employees may utilize tax credits available under the American Rescue Plan Act, if available. Additionally, all employers with more than ten employees must continue to provide benefits during a medical removal of an employee.

Recordkeeping – OSHA requires all employers to record any employee injury or illness treated with more than first aid or that led to a worker missing more than one day of work in an OSHA 300 Log. Normally, a COVID-19 diagnosis would only be recorded if the infection were work related, which is difficult to establish. The ETS requires recordkeeping for any worker who becomes infected. Because employees will not visit local occupational health clinics like a typical incident, employers will need to coordinate a centralized method to track applicable incidents.
Anti-retaliation – Employees’ willingness to notify their employers of exposure plays an integral part in the ETS’s effectiveness. To this end, employers are required to inform employees of their rights and protections specific to the ETS as part of the training on the standards. The anti-retaliation requirement overlaps with Section 11(c) of the OSHA Act, which bars an employer from discriminating against an employee for filing a safety complaint.

Finally, the ETS requires that employers support vaccination by providing reasonable time and paid leave from available leave banks, train employees on its COVID-19 policies and practices, and report to OSHA each work-related COVID-19 fatality within eight hours of learning of the fatality and each work-related COVID-19 in-patient hospitalization within 24 hours.

States with their own OSHA-approved occupational safety and health plans (state plans) are required to have an ETS or their own plan that is at least as effective as an ETS issued by federal OSHA 30 days following publication.

Additional details on the requirements of the ETS, and the OSHA fact sheet are available here.