On January 21, 2021, President Biden enacted the Executive Order “Protecting Worker Health and Safety” which tasked OSHA with developing safety measures to help protect workers as the nation continued its post-pandemic reopening. On June 10, 2021, in response to that direction, OSHA issued an emergency temporary standard (“ETS”) focused on healthcare settings where workers are most likely to have contact with individuals infected by the virus.
Below are some of the salient points of the ETS:
What are the new provisions?
The ETS is added as new Subpart U to 29 CFR § 1910.500 and includes:
- § 1910.502 which provides that the ETS applies to all settings where any employee provides healthcare services or healthcare support services.
- § 1910.504 which addresses limited requirements for situations where respirators are used in accordance with specific provisions in § 1910.502.
- § 1910.505 which provides that each section of Subpart U and each provision within those sections is separate and severable from the other sections and provisions.
- § 1910.509 which contains materials adopted as part of the ETS, including, among other things, CDC guidance.
Which healthcare providers are covered by the ETS?
The ETS applies to healthcare settings where any employee provides healthcare services or healthcare support services. This includes hospitals, nursing homes, and assisted living facilities; emergency responders; home health care workers; and ambulatory care settings where suspected or confirmed coronavirus patients are treated.
The ETS does not apply to
- First aid performed by an employee who is not a licensed healthcare provider;
- 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 nonemployees 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.
What are a covered employer’s obligations under the ETS?
Under the ETS, covered healthcare employers with 10 or more employees must develop and implement a written COVID-19 plan for the workplace, which includes:
- Designating one or more workplace COVID-19 safety coordinators to implement and monitor the COVID-19 plan;
- Conducting a workplace-specific hazard assessment to identify potential workplace hazards related to COVID-19;
- Involving non-managerial employees in the plan’s development and implementation; and
- Monitoring each workplace to ensure the ongoing effectiveness of the COVID-19 plan and update it as needed.
The plan must plan must address the hazards identified by the assessment and include policies and procedures to minimize the risk of transmission of COVID-19 for each employee consistent with the ETS, which touch on the following areas:
- Patient screening and management. Employers need to monitor and limit entry access when workers are providing patient care, as well as screen patients, clients and visitors;
- Standard and Transmission-Based Precautions in accordance with CDC’s “Guidelines for Isolation Precautions”;
- Aerosol-generating procedures on a person with suspected or confirmed COVID-19;
- Personal protective equipment: Employers must provide and ensure workers wear a facemask indoors or in a vehicle with other people. As necessary, workplaces must provide and ensure employees use respirators and other PPE to protect them from exposure to people with suspected or confirmed COVID-19;
- Physical distancing;
- Cleaning and disinfection;
- Maintaining ventilation systems in employer-owned or controlled buildings;
- Employee health screenings and management;
- Vaccinations. Employers must provide workers with paid time off to get vaccinated and recover from any side effects;
- Training. All workers must be trained in a language they understand on COVID-19 policies and ways the virus could be transmitted at work; and
- Anti-retaliation. Employers must provide employees notice that they have a right to protection under these sections and OSHA can cite employers for retaliating against workers who voice concerns about unsafe working conditions related to COVID-19.
When will the ETS become effective?
The ETS will be effective immediately after its publication in the Federal Register. Once effective, covered employers must comply with most of the provisions within 14 days, but they will have 30 days to comply with the provisions involving physical barriers, ventilation, and training.
Other reporting and record keeping requirements?
The ETS requires employers to report each work-related COVID-19 fatality within 8 hours of the employer learning and each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about the in-patient hospitalization.
Small employers (less than 10 employees) are excluded from recordkeeping obligations, but employers with more than 10 employees on the effective date of this section must retain all versions of the COVID-19 plan implemented and establish and maintain a COVID-19 log to record each instance identified by the employer in which an employee is COVID-19 positive, regardless of whether the instance is connected to exposure to COVID-19 at work.
Though nearly six months have passed since President Biden’s Executive Order and positive COVID-19 tests have fallen to record lows, healthcare employers must now develop a written COVID-19 plan to meet the ETS standards. Given that we are more than a year into the pandemic, this may feel like an exercise in futility for some employers, but once effective covered employers will have a relatively short period of time to comply with the ETS mandate and develop a written plan. If you have questions about your compliance obligations or need assistance with drafting a COVID-19 plan, please reach out to Kelley Drye’s Labor and Employment team.