The United States Labor Department’s Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) on June 10 to help combat the unique and elevated occupational hazards that exist for healthcare employees during the COVID-19 pandemic. The 916-page ETS, "Occupational Exposure to COVID-19; Emergency Temporary Standard," which was released as an interim final rule, is effective immediately upon publication in the Federal Register. The document was published in the Federal Register on June 21 and is also available on the GovInfo website. The goal of the ETS is to provide workers of the healthcare industry adequate assurances that precautions are being utilized to properly protect them from the dangers associated with COVID-19. Employers must comply with all requirements set forth in the ETS, except for requirements in paragraphs (i), (k), and (n) by July 6, 2021. Employers must comply with the requirements in paragraphs (i), (k), and (n) by July 21, 2021.

OSHA also published Fact Sheets, FAQs and other guidance covering implementation of the ETS on its website at this link.^[1]

Application to Healthcare Employers and Exemptions

The ETS requires most healthcare employers to implement new standards that will assist in protecting healthcare workers from COVID-19.^[2] The ETS applies broadly to settings where any employee provides healthcare services or healthcare support services. This includes hospitals, nursing homes, assisted living facilities, emergency responders, home healthcare settings, and ambulatory care facilities where employees are expected to treat patients with COVID-19. Employers must comply with most provisions within 14 days (July 6, 2021), and with provisions involving physical barriers, ventilation, and training within 30 days (July 21, 2021). OSHA will use its enforcement discretion for employers who are making a good faith effort to comply with the ETS.

The ETS exempts certain workplaces where all employees are fully vaccinated and individuals with possible COVID-19 are not allowed to enter. It also exempts from some of the requirements of the standard fully vaccinated employees in well-defined areas where there is no reasonable expectation that individuals with COVID-19 will be present. It 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 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; or

• Dispensing of prescriptions by pharmacists in retail settings.

Further, 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.

Compliance Requirements of OSHA Emergency Temporary Standard - Healthcare Employers Must Implement by July 6, 2021, unless otherwise noted

• Written Covid-19 Plan

  • Healthcare employers are required to develop a written plan, as well as appoint a designated coordinator who will oversee the execution of the plan.

  • Key facets of the plan include: Worker participation, hazard identification and assessment, hazard prevention, evaluation, coordination and communication at multi-employer sites, and employee training.

• Screening and Medical Management

  • Monitor points of entry to settings where direct patient care is provided. Develop and implement patient management strategies.

  • Screen and triage patients, clients, residents, delivery people and other visitors and nonemployees entering the setting for symptoms of COVID-19.

• Standard and Transmission-Based Precautions

  • Develop and implement policies and procedures to adhere to Standard and Transmission-Based Precautions in accordance with updated CDC guidelines.^[3]

• Personal Protective Equipment (PPE)

  • Provide and ensure that all employees are wearing facemasks while indoors and when in a vehicle for specified work purposes.

  • Provide and ensure that employees wear respirators (and other appropriate PPE) when encountering a person with suspected or a confirmed case of COVID-19.

• Aerosol-Generating Procedures (AGP) on Persons with Suspected or Confirmed COVID-19

  • Limit the number of employees present during AGP’s to those only necessary for the procedure.

  • If available, perform procedures in an airborne infection isolation room (AIIR).

  • Clean and disinfect all surfaces and equipment as per CDC guidelines.

• Physical Distancing

  • Keep employees at least 6 feet apart from all other people when indoors except when impossible, such as when performing medical care on a patient.

• Physical Barriers (compliance by July 21, 2021)

  • Install cleanable or disposable physical barriers at fixed work locations in non-patient areas where workers are not physically distanced by at least 6 feet.

• Hygiene and Cleaning

  • Ensure that the CDC recommended cleaning and disinfection guidelines are being followed in patient care rooms, resident rooms, and on all medical devices.

  • For all other areas, clean high-touch surfaces and equipment at least once a day.

  • Provide at least 60% alcohol hand rubs or provide accessible handwashing stations.

• Ventilation (compliance by July 21, 2021)

  • Improve existing ventilation systems and ensure that ventilation systems are being utilized to their maximum design-allowed performance level.

  • Ensure that air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher if the system allows it. If not allowable by the system, ensure that the highest rated air filter that the system will allow is in use.

  • All air filters are maintained and replaced as necessary to ensure the proper function and performance of the HVAC systems.

• Health Screening and Medical Management

  • Perform health screening of employees before each workday or shift.

  • Require each employee to promptly notify the employer when the employee is COVID-19 positive, suspected of having COVID-19, or experiencing certain symptoms.

  • Notification to certain employees within 24 hours when a person who has been in the workplace is COVID-19 positive.

  • Removal of workers from the workplace if they have or are suspected of having COVID-19. Removed workers cannot be penalized for isolating and avoiding the workplace.

• Vaccination

  • Provide employees reasonable time and paid leave for vaccinations and vaccine side effects.

  • Healthcare employers should note that compliance requirements and risk mitigation protocols are reduced by calculation of percentage of fully vaccinated employees.

• Training (compliance by July 21, 2021)

  • Provide and ensure that all employees receive adequate training regarding proper procedures, policies, and potential COVID-19 relate hazards in the workplace.

• 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.

• Requirements must be implemented at no cost to employees.

• 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.

Despite declining COVID-19 cases throughout most of the U.S., OSHA justified the regulations because healthcare employees were among the most heavily affected employee groups in terms of COVID-19 related deaths: “ For the first time in its 50-year history, OSHA faces a new hazard so grave that it has killed nearly 600,000 people in the United States in barely over a year, and infected millions more. And the impact of this new illness has been borne disproportionately by the healthcare and healthcare support workers tasked with caring for those infected by this disease.”^[4] In addition, OSHA recognizes that vaccines have not yet alleviated all of the dangers presented by COVID-19 on the healthcare workforce. However, OSHA has recognized that if new data or information is presented to OSHA, it will update the ETS appropriately to reflect these changes.

Matthew Smekens is participating in the Nelson Mullins Summer Associate Program working on the Health Care Compliance and Litigation Team. He attends the University of Miami School of Law, where he is a rising 3L and Articles and Comments Editor for the International and Comparative Law Review.

^[1] The ETS is in response to an Executive Order issued by President Biden at the outset of his presidency: “Protecting Worker Health and Safety.”  In the upcoming months, OSHA will also release additional guidance for non-healthcare employers that are also heavily impacted by the hazardous effects of COVID-19.

^[2] To determine whether your workplace is covered by the ETS, OSHA published a flow chart which can be found at https://www.osha.gov/sites/default/files/publications/OSHA4125.pdf.

^[3] CDC, EPA and other guidelines incorporated by reference in the ETS can be found at https://www.osha.gov/coronavirus/ets/ibr.

^[4] Occupational Exposure to COVID-19; Emergency Temporary Standard, Executive Summary.