On January 21, 2021, President Biden issued an Executive Order which declared that ensuring the heath and safety of workers is a national priority and moral imperative. That order directed the Occupational Safety and Health Administration (“OSHA”) to take action to reduce the risk that workers may contract COVID-19 in the workplace. OSHA determined that employee exposure to SARS-CoV-2, the virus that causes COVID-19 presents a grave danger to workers in healthcare settings; and, that existing standards and regulations were inadequate to protect these workers. Last week, OSHA issued an emergency temporary standard (“ETS”) to address this hazard. Full text of the ETS can be found here: https://www.osha.gov/coronavirus/ets
The ETS applies, with some exceptions, to settings where any employee provides healthcare services or healthcare support services. The ETS is aimed at protecting workers facing the highest COVID-19 risks, including employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in ambulatory care facilities where suspected or confirmed COVID-19 patients are treated. However, it generally 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 al non-employees 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.
Key requirements of the ETS include:
- Requires Employers to develop and implement a COVID-19 Plan for each workplace;
- Requires Patient Screening and management – Limit and monitor points of entry to settings where direct patient care is provided; screen and triage patients, clients, residents, delivery people and other visitors and non-employees entering the setting for symptoms of COVID-19; and implement patient management strategies.
- Standards and Transmission-Based Precautions – Requires Employers to develop and implement policies and procedures to adhere to Standard and Transmission-Based Precautions in accordance with CDC guidelines.
- Standards for the provision and use of Personal Protective Equipment (“PPE”).
- Standards for Physical Distancing and Physical Barriers.
- Cleaning and disinfection standards.
- Ventilation requirements.
- Heath screening and medical management of employees – requiring employers provide employer-required testing at no cost to the employee and follow requirements for removing workers from workplace. Employers are required to continue to pay removed employees in most circumstances.
- Requires employers to provide a reasonable time and paid leave for vaccinations and vaccine side effects.
- Provides Anti-Retaliation Protection for Employees.
- Requires recordkeeping through a COVID-19 log.
- Requires reporting to OSHA of all COVID-19 fatalities and hospitalizations.
- Mini respiratory protection program.
The ETS was officially filed in the Office of the Federal Register on June 17, 2021, and it became effective when it was published on June 21, 2021. Employers must comply with most provisions within 14 days, and with the remaining provisions within 30 days. OSHA will use its enforcement discretion to avoid citing employers who are making a good faith effort to comply with the ETS. For questions about the ETS, including whether it applies to you and what is required for compliance, contact Schuyler Geller.