|On June 21, 2021, OSHA published its long-awaited COVID-19 Emergency Temporary Standard (ETS). Rather than issue an ETS applicable to all industries, OSHA focused on healthcare. At the same time, OSHA also issued new general industry guidance applicable to employers not covered by the healthcare ETS. This post will summarize the ETS and associated requirements. |
1. How do employers determine if they are covered by the ETS?
The ETS applies to all settings where any employee provides healthcare services or healthcare support services. OSHA has developed a flow chart for employers to use to determine if they are covered by the ETS. That flowchart is here.
The ETS does not apply to 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;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;
– Well-defined hospital ambulatory care settings where all employees are fully vaccinated and 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 and 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 healthcare setting (e.g., off-site laundry, off-site medical billing);
– or Telehealth services performed outside of a setting where direct patient care occurs.
2. What are the requirements?
The ETS requires employers to implement increased safety measures to protect their workers from COVID-19. Below are the requirements imposed by the ETS:
– Conduct a hazard assessment and develop a COVID-19 plan. The hazard assessment is intended to help employers identify and understand where COVID-19 hazards potentially exist and what controls must be implemented in their workplace in order to minimize the risk of transmission of COVID-19. The hazard assessment is the initial step in development of the employer’s COVID-19 plan.
– 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 in accordance with CDC’s “COVID–19 Infection Prevention and Control Recommendations.”
– Standard and transmission-based precautions. Develop and implement policies and procedures to adhere to Standard and Transmission-Based precautions based on CDC guidelines.
– 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. For such procedures on a person 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.
– 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. (a) Screen each employee at the beginning of the workday and each shift; (b) Require each employee to promptly notify the employer when the employee is COVID-19 positive, suspected of having COVID-19, or experiencing certain symptoms; (c) Notify certain employees within 24 hours when a person who has been in the workplace is COVID-19 positive; (d) Follow requirements for removing employees from the workplace; (e) Employers with more than 10 employees must 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. Employers with more than 10 employees must establish a COVID-19 log of all employee instances of COVID-19 without regard to occupational exposure and must follow requirements relating to making such records available to employees.
– Reporting. Employers must report to OSHA certain COVID-19 fatalities and hospitalizations.
The requirements must be implemented at no cost to employees.
See the Fact Sheet here.
3. What is the compliance deadline?
Employers subject to the ETS must ensure that the majority of the requirements outlined above are implemented no later than July 6, 2021. The provisions governing physical barriers, ventilation and training must be implemented no later than July 21, 2021. OSHA has indicated that it will use “enforcement discretion” in situations where an employer has made a good faith effort to comply with the requirements of the standard but has been unable to do so.
Finally, it is important to note that the ETS was released as an interim final rule. The rule was effective on publication, but OSHA will accept written comments on the rule and whether it should become a final rule until July 21, 2021.
As these issues continue to develop and evolve, we will continue to monitor the changes and keep our clients informed. Be on the lookout for further communications from the Bradley & Riley, PC team. For more information, contact Kim Blankenship at email@example.com.
Kimberly H. Blankenship
Civil Litigation, Commercial Litigation, Employment Law, Health Law, Immigration Law