On June 10, 2021, the Occupational Safety and Health Administration (OSHA) announced its COVID-19 Emergency Temporary Standards (ETS). The ETS was developed to protect healthcare and healthcare support service workers from occupational exposure to COVID-19 in settings where people with COVID-19 are reasonably expected to be present. The ETS was published in the Federal Register on June 21, making it effective immediately. However, most of the provisions will not be enforceable by OSHA until July 5, while other provisions, such as the requirements related to physical barriers, ventilation and training will not become enforceable until July 21.
Covered employers include hospitals, nursing homes and assisted living facilities; emergency responders; home healthcare workers; and employees in ambulatory care settings where suspected or confirmed coronavirus patients are treated.
There are several exceptions to coverage under the ETS. The ETS does not apply in the following circumstances:
- When first aid is provided by an employee who is not a licensed healthcare provider.
- The dispensing of prescriptions by pharmacists in retail settings.
- Non-hospital ambulatory care settings (i.e., outpatient settings) where (1) all non-employees are screened prior to entry, and (2) people with suspected or confirmed COVID-19 are not permitted to enter.
- Well-defined hospital ambulatory care settings where (1) all employees are fully vaccinated, (2) all non-employees are screened prior to entry and (3) people with suspected or confirmed COVID-19 are not permitted to enter.
- Home healthcare settings where (1) all employees are fully vaccinated, (2) all non-employees are screened prior to entry and (3) 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).
- Telehealth services performed outside of a setting where direct patient care occurs.
All covered employers are required to have infection control measures in place to reduce the transmission of COVID-19 in the workplace. These requirements include, but are not limited to:
- Health screenings for employees, including screening employees for COVID-19 prior to each workday and shift;
- Personal protective equipment (PPE), including providing at no cost to employees facemasks, respirators and other PPE to employees in accordance with CDC Guidelines for Isolation Precaution;
- Controls for aerosol-generating procedures;
- Physical distancing including ensuring that employees are practicing social distancing and staying at least six feet apart while indoors and/or installing cleanable or disposable solid barriers at each fixed workstation in non-patient care areas;
- Cleaning and disinfection protocols including following standard practices for cleaning and disinfecting patient care areas, medical devices and equipment; cleaning high-touch surfaces daily, and cleaning and disinfecting workplaces where a COVID-19 positive person was present within the last 24 hours;
- Complying with ventilation standards (i.e., use of air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher; and
- Conducting employee training on COVID-19 policies, transmission prevention procedures, anti-retaliation rights and other topics.
Additionally, covered healthcare employers with 10 or more employees must develop, implement and maintain a written COVID-19 plan to identify and control COVID-19 hazards in the workplace. The plan must include:
- A designated safety coordinator who must have compliance enforcement authority;
- A workplace-specific hazard assessment;
- An outline of the involvement of non-supervisory employees in hazard assessment and the development and implementation of the plan; and
- Policies and procedures to minimize the risk of transmission of COVID-19 to other employees.
OSHA has developed a model plan to assist employers with this requirement. The model plan is available on OSHA’s ETS webpage and may be downloaded by selecting “COVID-19 Plan Template.”
Fully Vaccinated Employees
Notably, under the ETS, “fully vaccinated” employees do not have to wear masks, keep physically distant or use barriers “when in well-defined areas where there is no reasonable expectation that any person will be present with suspected or confirmed coronavirus.” ”Fully vaccinated” means two weeks have passed since the employee received the final dose of a vaccine authorized by the U.S. Food and Drug Administration (FDA).
Paid Time for Vaccination
The ETS also encourages more employees to get vaccinated by requiring employers to provide reasonable time off and paid leave for employees to receive vaccinations and to recover from any vaccination side effects. Generally, OSHA presumes that, if an employer makes available to its employees four hours of paid leave for each dose of the vaccine, as well as up to 16 additional hours of leave for any side effects of the dose(s) (or eight hours per dose), the employer would be compliant with this requirement.
Removing Employees from the Workplace and Paid Leave
Employees who test positive for COVID-19 or could be contagious must work remotely or separately from other workers or be provided paid time off (up to $1,400 a week).
Employers with more than 10 employees must provide job-protected paid leave to employees, at their regular wages, up to a permissible cap of $1,400 a week, if the employee is unable to work due to COVID-19 or COVID-19 exposure, regardless of whether the employee was exposed at work or outside the workplace. For employers with more than 10 but fewer than 500 employees, the $1,400 cap applies for first two weeks of leave and then is reduced to two-thirds of regular pay, up to $200 a day, for any time needed beyond two weeks. Tax credits under the American Rescue Plan may cover paid time off for employers with fewer than 500 employees.
It should be noted that nothing in the ETS suggests that there is any cap on how many times an employee may be entitled to paid leave.
Recordkeeping and Reporting Requirements
Employers with more than 10 employees must retain all versions of any COVID-19 plan they implement while the ETS is in effect. These employers also must log and record each instance in which an employee is COVID-19 positive regardless of whether the infection is connected to an exposure at work.
The ETS also requires employers to report each work-related COVID-19 fatality or in-patient hospitalization of any employee, regardless of the amount of time between the exposure to COVID-19 in the work environment and the death or in-patient hospitalization. Employers must report each employee COVID-19 fatality to OSHA within eight hours of learning about the fatality. Employers must also report each employee COVID-19 in-patient hospitalization to OSHA within 24 hours of learning about the in-patient hospitalization.
It is unclear what effect the ETS will have on requirements for healthcare employers in the four OSHA “State Plan” states that have enacted their own COVID-19 standards under their authority pursuant to the Occupational Safety and Health Act. These are California, Michigan, Oregon and Virginia. Generally, 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 federal standard.
Next Steps for Employers
Many healthcare employers have already been practicing most of the ETS requirements. However, some of the rules may require employers to adjust their policies or take additional steps. Employers in healthcare settings, such as hospitals, nursing homes, assisted living facilities, ambulatory care facilities and those employing home healthcare workers, must review the ETS and take action to develop and implement plans to comply with the standard within the stipulated timelines.
Healthcare employers should also be aware of the host of other state and local requirements relating to COVID-19 in healthcare settings to ensure compliance with the strictest measures.
Employers must not retaliate against employees for exercising rights under the ETS or for taking any action required by the ETS.
OSHA has provided several resources for compliance assistance including a fact sheet, a helpful flow-chart to determine if an entity is subject to the ETS, and a fact sheet on the new Mini Respiratory Protection Program that is part of the ETS, among other resources. There is also a FAQs page to assist employers with better understanding their compliance obligations under the ETS.