After more than 15 months of legal, scientific, and business debate about whether an OSHA standard specific to COVID-19 is appropriate, OSHA recently issued an Emergency Temporary Standard (“ETS”) governing COVID-19 precautions in the health care setting. OSHA has also updated its non-mandatory COVID-19 guidance for employers in all industries.
The ETS applies to settings “where any employee provides health care services or health care support services.” The scope of the rule is significantly narrower than expected, leading to criticism by labor unions and worker advocates who argue that a broader standard is necessary, and celebration by business leaders who question the necessity of a regulation they say will impede economic growth as the pandemic winds down.
While employers in the health care and health care support industries may welcome some clarity after a year of chaos and uncertainty, they are likely to have questions about how to implement some of the requirements of the ETS.
The ETS excludes from coverage retail pharmacies, settings where first aid is performed by an employee who is not a health care provider, non-hospital ambulatory care settings where all non-employees are screened prior to entry, certain hospital ambulatory care settings where all employees are fully vaccinated and non-employees are screened prior to entry, certain home care settings, health care support services not performed in a health care setting (e.g., off-site laundry or medical billing), and settings where only telehealth services are performed.
The following is a summary of the major requirements of the standard:
- Creation of a COVID-19 plan with site-specific information for each workplace;
- Designation of a COVID-19 “Safety Coordinator”;
- Completion of a workplace-specific hazard assessment;
- Implementation of policies and procedures to minimize the risk of COVID-19 transmission among workers and protect employees who enter into locations not covered by the OSH Act;
- Communication of the COVID-19 plan to other employers who share the same physical location;
- Conducting patient screening and management in direct care settings;
- Developing and implementing policies and procedures to adhere to “Standard and Transmission-Based Precautions” in accordance with CDC’s “Guidelines for Isolation Precautions”;
- Ensuring that personal protective equipment (“PPE”) such as facemasks, respirators, gloves, protective clothing, and eye protection, is worn in certain circumstances;
- Using special precautions when performing aerosol-generating procedures on a person with suspected or confirmed COVID-19;
- Maintaining physical distancing;
- Physical barriers;
- Cleaning and disinfecting;
- Ensuring proper ventilation;
- Conducting employee health screenings and medical management; and
- “Support[ing] COVID-19 vaccination for each employee by providing reasonable time and paid leave” to each employee for vaccination and for side effects experienced following vaccination.
In addition, the ETS includes training and recordkeeping requirements and a provision protecting employees from retaliation.
Employee vaccination status is relevant to the determination of whether an employer is covered by the ETS. 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 will be present with suspected or confirmed coronavirus.
Significantly, the ETS mandates the payment of wages and benefits for certain employees who work remotely or are removed from the workplace for possible COVID-19 exposure. It also contains requirements for reinstating employees removed from the workplace for COVID-19-related reasons. These provisions, along with the requirement for paid leave for vaccinations and vaccine-related side effects, may face legal challenges involving the extent of OSHA’s authority to regulate wage and paid leave issues.
While OSHA requires that all work-related fatalities and hospitalizations be reported to the agency, the ETS includes a specific requirement that employers report work-related COVID-19 fatalities and hospitalizations to OSHA. We previously reported on OSHA’s guidance for determining whether a COVID-19 fatality or hospitalization is “work-related.”
The rule also contains a “Mini Respiratory Protection Program.” The program, which does not replace OSHA’s normal Respiratory Protection standard (29 CFR 1910.134), is designed to improve worker protections with limited provisions for the safe use of respirators that can be implemented more quickly and easily than the more comprehensive program required by the Respiratory Protection standard.
Violation of the ETS carries the potential for substantial fines and, in rare instances, criminal liability. The ETS will take effect as soon as it is published in the Federal Register and may remain in place for up to six months, during which time OSHA may consider a permanent rule.