OSHA issues emergency temporary standard applicable to healthcare providers
The U.S. Department of Labor's Occupational Safety and Health Administration (“OSHA”) has announced it will issue an emergency temporary standard (ETS) to protect healthcare workers from contracting coronavirus.
The standard will apply to health care workers in hospitals, nursing homes, and assisted living facilities; emergency responders; home health care workers; and employees in ambulatory care settings where suspected or confirmed coronavirus patients are treated. The OSHA materials on the ETS include a Flow Chart to help employers assess coverage.
Health care employers will want to note that the ETS does not apply in the following circumstances:
- 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 health 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 present.
- Health care 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 health care provider.
- Dispensing of prescriptions by pharmacists in retail settings.
Also, 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.
The ETS establishes the following key requirements for covered employers:
- Conduct a hazard assessment and then develop and implement a safety hazard plan that minimize the risk of transmission of COVID-19. Covered employers must designate coordinator to ensure compliance.
- Limit and monitor points of entry and screen visitors and other non-employees as well as employees and patients.
- Develop and implement policies and procedures to adhere to Standard and Transmission-Based precautions based on CDC guidelines.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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. Report work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.
The standard requires that covered employers inform employees of their rights against retaliation for exercising their rights under the standard. That all requirements be implemented at no cost to the employees. The standard also requires covered employees to provide workers with paid time off to get vaccinated and to recover from any side effects. Covered employees who have coronavirus or who may be contagious must work remotely or otherwise be separated from other workers if possible, or be given paid time off up to $1400 per week. For most businesses with fewer than 500 employees, tax credits in the American Rescue Plan may be reimbursed through these provisions.
Full details of the ETS and related materials published by OSHA are available on the OSHA website.
The Emergency Standard is effective publication in the Federal Register. Compliance with most provisions is required within 14 days of publication, except for the physical barrier, ventilation, and training requirements which must be implemented in 30 days. OSHA will accept written comments on any aspect of this ETS and whether this ETS should become a final rule by 30 days after publication. If permanent final rule is determined to be necessary, it must be promulgated within six months of the ETS.
This emergency standard seemingly comes a bit late as indications are that the country is in the waning days of the pandemic. This timing leads to a question about the viability of the emergency standard, which must address a grave danger and be necessary to protect employees from that danger. Courts have overturned other emergency rules issued by OSHA where those elements were deemed to be missing. In fact, in the nine times OSHA has issued an ETS, the courts have fully vacated or stayed the emergency temporary standard in four cases and partially vacated it in one case. Given the timing of the ETS and easing of restrictions across the country it is likely that this new standard will face many challenges.
Other Applicable Rules
In addition to the ETS, health care employers and non-healthcare employers should review the rules of all the states in which they operate as there are varying standards as many state OSHA agencies and health department have rules that are often stricter than the emergency standard and apply more broadly to all employers. The emergency standard expressly permits applicable of broader state laws. Currently, California, Oregon, and Virginia have permanent state OSHA standards.
In addition to the healthcare-focused ETS, OSHA has indicated that it will issue updated guidance to help employers and workers in other industries protect workers who are still not vaccinated, with a special emphasis on other industries noted for prolonged close-contacts like meat processing, manufacturing, seafood, and grocery and high-volume retail.
The McDonald Hopkins Labor and Employment team will continue to monitor these developments and provide updates as they occur. Contact your McDonald Hopkins employment attorney with any questions.