OSHA Issues COVID-19 Safety Rule: Emergency Temporary Standard (ETS)

On June 10, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) workplace safety rule that requires health care employers to protect workers from on-the-job risk of COVID-19 infection. This rule follows President Biden’s executive order directing OSHA to pursue an ETS for COVID-19 in high-risk workplaces. The rule does not apply to other high-risk workplaces such as meatpacking plants, grocery stores, and high-volume retail locations, but OSHA plans to issue updated guidance for such employers. The ETS takes effect upon publication in the Federal Register and requires health care employers to comply with most of the safety standards within 14 days of publication.

Applicability of the ETS

The rule applies to health care employers in all settings where any employee provides health care services (services provided by professional health care practitioners) or health care support services (patient admission, food services, equipment and facility maintenance, housekeeping, laundry, medical waste handling, medical equipment cleaning). The rule does not apply to the following:

• dispensing of prescriptions by pharmacies
• 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
• well defined hospital ambulatory care settings where all employees are fully vaccinated, and all non-employees are screened prior to entry and those with suspected or confirmed COVID-19 are not permitted to enter
• home health care settings where all employees are fully vaccinated, and all non-employees are screened prior to entry and those with suspected or confirmed COVID-19 are not permitted to enter
• health care support services not performed in a health care setting (off-site laundry or medical billing)
• telehealth services performed outside of a direct patient care setting

Requirements of the ETS

The ETS requires the health care employer to take the following actions:

1. Develop and Implement a COVID 19 Plan for each workplace. The OSHA website contains a model plan for those employers who do not have a COVID-19 plan in place. The COVID-19 plan, which must be in writing if the employer has more than then employees, must include the following:
   1. To implement the plan, the employer must designate a COVID-19 safety coordinator who is knowledgeable in infection control principles
   2. The employer must conduct a workplace-specific hazard assessment to identify potential COVID-19 workplace hazards
   3. The employer must seek the input of non-managerial employees in the hazard assessment and implementation of the COVID-19 plan
   4. The COVID-19 plan must address the hazards identified by the assessment
   5. The employer must monitor each workplace to ensure the effectiveness of the COVID-19 plan
   6. The COVID-19 plan must include policies and procedures to:
      1. Minimize the risk of transmission of COVID-19 to employees
      2. Effectively communicate and coordinate with other employers when employees of different employers share the same physical location
      3. Protect employees who must enter residences or locations controlled by persons not covered by OSHA
2. Conduct Patient Screening and Management in settings where direct patient care is provided, including limiting and monitoring points of entry, screening all patients and non-employees entering the setting, and implementing the CDC’s “COVID-19 Infection Prevention and Control Recommendations.”
3. Provide Personal Protective Equipment including facemasks and respirators and ensure they are used by employees in specified settings.
4. Ensure Physical Distancing except where not feasible such as when providing hands-on medical care.
5. Install Physical Barriers at fixed work locations outside of direct patient care areas (lobby, check-in desk, hospital pharmacy) where feasible.
6. Follow Standard CDC Guidelines for Cleaning and Disinfecting patient care areas and medical equipment.
7. Ensure HVAC System Proper Ventilation, cleaning and air filter maintenance.
8. Conduct Health Screening of Employees each workday and ensure required notifications of COVID-19 illness or symptoms and medical removal from the workplace where appropriate.
9. Provide Employees COVID-19 Vaccination Related Leave.
10. Provide Employee Training on COVID-19 transmission, policies regarding patient screening and prevention of COVID-19 spread, sick leave policies and identification of COVID-19 safety coordinator.
11. Prohibit Retaliation against employees who exercise their right to protections required by the ETS.
12. Comply with COVID-19 Plan Recordkeeping Requirements for employers with more than ten employees.

The ETS and the above requirements are limited to a duration of six months, during which OSHA must complete a permanent standard. We will apprise you of any changes in the above requirements once the permanent standard is published.

If you have any questions concerning this rule or any other legal health care matters, please contact me at sjarvaweiss@norris-law.com.