OSHA’s Emergency Temporary Standard imposes new COVID-19 requirements on healthcare providers.  Most of the new requirements go into effect fourteen days after the Standard’s effective date.

In January 2021, President Joe Biden issued an Executive Order directing the Department of Labor (“DOL”) to consider issuing an Emergency Temporary Standard (“ETS”) addressing COVID-19.  After numerous delays, the final ETS was issued on June 10, 2021, and addresses what healthcare employers, who are not excluded from its application, must do to protect workers from COVID-19.  Most of the new requirements go into effect fourteen days after the ETS’s effective date.  A copy of this guidance can be found here.

Who is a Healthcare Provider?

The ETS applies to “all settings where any employee provides healthcare services or healthcare support services.”  However, the applicability of the ETS is narrowed because it does not apply to certain situations discussed below.   The word “screening” as used below means “asking questions to determine whether a person is COVID-19 positive or has symptoms of COVID-19.”  The phrase “ambulatory care” means “healthcare services performed on an outpatient basis, without admission to a hospital or other facility.”  Examples of ambulatory care settings are “offices of physicians and other health care professionals; hospital outpatient departments; ambulatory surgical centers; specialty clinics or centers (e.g., dialysis, infusion, medical imaging); and urgent care clinics.”  The ETS will not apply to the following situations:

• The provision of first aid by an employee who is not a licensed healthcare provider;
• The dispensing of prescriptions by pharmacists in retail settings;
• Non-hospital ambulatory care settings where non-employees are screened for COVID-19 prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter;
• Well-defined hospital ambulatory care settings if all employees are vaccinated, all non-employees are screened for COVID-19 prior to entry, and people with suspected or confirmed COVID-19 are not permitted to enter;
• Home healthcare settings if all employees are fully vaccinated, all non-employees are screened for COVID-19 prior to entry, and people with suspected or confirmed COVID-19 are not present;
• Healthcare support services not performed in a healthcare setting (e. off-site laundry, off-site medical billing); or
• Telehealth services performed outside of a setting where direct patient care occurs.

One important takeaway, as indicated above, is that the ETS will not apply to, for example, non-hospital physician practices, outpatient practices, ambulatory surgical centers, specialty clinics, or urgent care clinics as long as non-employees are screened for COVID-19 prior to entry and people with suspected or confirmed COVID-19 are not allowed to enter.

Further guidance regarding the applicability of the ETS may be found in OSHA’s Applicability Flowchart.

Key Requirements of the Emergency Temporary Standard

The ETS specifies several requirements for healthcare providers who are not exempt from the ETS, including:

• COVID-19 Plan – The employer must develop and implement a COVID-19 plan, which must be written if the employer employs more than ten employees. The plan must designate workplace safety coordinator(s) who are knowledgeable about infection control and the employer’s COVID-19 plan, and it must include a workplace-specific hazard assessment;
• Patient Screening and Management – The employer must limit and monitor points of entry for settings where direct patient care is provided. The employer must also screen and triage all entrants for symptoms of COVID-19 and develop policies and procedures to ensure that it adheres to CDC guidelines regarding COVID-19;
• Personal Protective Equipment (“PPE”) – Subject to a few specific exceptions, the employer must provide and ensure that employees wear face masks and other necessary PPE when at work. The employer must also provide and ensure that employees use respirators and other PPE when exposed to people with suspected or confirmed COVID-19 in accordance with CDC guidelines, and the employer must limit exposure from aerosol-generating procedures on people with suspected or confirmed COVID-19 to only essential employees;
• Physical Distancing – Employers must ensure physical distancing of at least six feet from other people when indoors unless distancing is not feasible;
• Physical Barriers – Employers must install cleanable or disposable barriers at each fixed location in non-patient care areas where employees cannot be more than six feet apart unless barriers are not feasible;
• Cleaning and Disinfection – Employers must follow standard CDC guidelines and guidelines specified in the ETS for cleaning and disinfecting patient care areas, patient rooms, surfaces, and equipment;
• Ventilation – Employers must ensure that HVAC systems provide proper COVID-19 ventilation in accordance with CDC guidelines and guidelines specified in the ETS;
• Health Screening and Medical Management – Employers must screen employees before each workday and shift, require employees to promptly notify the employer when the employee is COVID-19 positive or when the employee exhibits symptoms of COVID-19, remove employees from the workplace when applicable, and notify other employees of COVID-19 exposure in the workplace according to the guidelines in the ETS. The employer may also be required to continue to pay the employee’s normal wages during any quarantine period;
• Vaccination – The employer must provide reasonable time and paid leave for vaccinations and vaccine side effects;
• Training – The employer must provide COVID-19 training to employees according to the guidelines in the ETS;
• Anti-Retaliation – The employer must inform employees of their rights under the ETS and not discriminate or retaliate against employees for exercising those rights; and
• Recordkeeping and Reporting – Unless exempt due to size, the employer must establish a COVID-19 log of all employee instances of COVID-19 and report all COVID-19 fatalities and hospitalizations to OSHA within the timing guidelines set forth in the ETS.

PPE, physical distancing, and physical barrier requirements do not apply in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present and employees are fully vaccinated.

Effective Date and Compliance

The ETS is immediately effective upon publication in the Federal Register, which we anticipate will occur within the next week.  Employers must comply with all provisions above except physical barriers, ventilation, and training within fourteen days after the date the final rule is published in the Federal Register.  Employers must comply with a physical barrier, ventilation, and training requirements within thirty days after the final rule is published in the Federal Register.  We will provide another update after the ETS is published.

Employers that meet the definition of a “healthcare provider” under the ETS should immediately review the requirements of the ETS to assess compliance.  Employers that could be excluded from the definition of a “healthcare provider” if certain steps are taken (e.g., all employees are fully vaccinated) should consider what steps they should take and what steps they are legally permitted to take. Employers must also be prepared to comply with the relatively short deadline set forth in the ETS, which is within fourteen days of the publication in the Federal Register.