On June 10, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced that it will issue an emergency temporary standard (the “ETS”) to protect healthcare workers from contracting COVID-19. The ETS is aimed at protecting workers facing the highest coronavirus hazards—those working in healthcare settings where suspected or confirmed COVID-19 patients are treated.

Applicability of the ETS

The ETS applies, with some exceptions, to settings where any employee provides healthcare services or healthcare support services. This includes employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home health care workers; and employees in ambulatory care settings where suspected or confirmed COVID-19 patients are treated.

It does not apply to:

• First aid performed by an employee who is not a licensed healthcare provider;
• Dispensing of prescriptions by pharmacists in retail setting;
• 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.

For healthcare settings embedded in non-healthcare settings, the ETS applies only to the embedded healthcare setting and not to the remainder of the physical location. Where emergency responders or other licensed healthcare providers enter a non-healthcare setting to provide healthcare services, the ETS applies only to the provision of healthcare services by that employee. In addition, 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 (for example, an employee break room).

Employers should keep in mind that regardless of the application of the OSHA’s new ETS to their businesses, many states and municipalities may still maintain COVID-19-specific safety and health mandates and requirements that must be followed (e.g., masking, distancing, cleaning, etc.).

Key Mandatory ETS Requirements

• COVID-19 Plan: OSHA will now require every qualifying employer to develop and implement a COVID-19 plan for each workplace site:
  • For workplaces with more than 10 employees, this plan must be memorialized in writing;
  • Designate workplace safety coordinator(s), knowledgeable in infection control principles and practices, with authority to implement, monitor, and ensure compliance with the plan;
  • Conduct a workplace-specific hazard assessment;
  • Seek the input and involvement of nonmanagerial employees and their representatives in the hazard assessment and the development and implementation of the plan;
  • Monitor each workplace to ensure the ongoing effectiveness of the plan, updating it as needed; and
  • Include policies and procedures to minimize the risk of transmission of COVID-19 to employees.
• Patient Screening and Management: Limit and monitor entry points, and screen and triage all clients, patients, residents, delivery people and other visitors, and other non-employees entering the setting. Employers must also implement patient management strategies.
• Standard and Transmission-Based Precautions: Develop and implement policies and procedures to adhere to Standard and Transmission-Based Precautions in accordance with CDC’s “Guidelines for Isolation Precautions”.
• Personal Protective Equipment (PPE): Provide and ensure employees wear facemasks, with certain exceptions:
  • Ensure facemasks are properly worn over the nose and mouth;
  • Provide and ensure employees use respirators and other PPE for exposure to people with suspected or confirmed COVID-19 and for aerosol-generating procedures on a person with suspected or confirmed COVID-19;
  • Provide respirators and other PPE in accordance with Standard and Transmission-based Precautions; and
  • Allow voluntary use of respirators instead of facemasks (under the mini respiratory protection program at 1910.504).
• Aerosol-Generating Procedures (AGP): Consistent with CDC guidelines, for aerosol-generating procedures on persons with suspected or confirmed COVID-19, limit employees present to only those who are essential. Perform procedures in an airborne infection isolation room (AIIR), if available, and clean and disinfect surfaces and equipment once the procedure is completed.
• Physical Distancing: Ensure each employee is separated from all other people unless impossible.
• Physical Barriers: Where physical distance is not feasible, the employer must ensure that the employee is as far apart from all other people as feasible, and must install cleanable or disposable solid barriers in fixed work locations outside of direct-care areas (e.g., entryway/lobby, check-in desk, triage, hospital pharmacy windows, bill payment).
• Cleaning and Disinfection: Follow standard practices for cleaning and disinfection of surfaces and equipment in accordance with CDC guidelines in patient care areas, resident rooms, and for medical devices and equipment. In all other areas, clean high-touch surfaces and equipment at least once a day. Provide alcohol-based hand rub that is at least 60% alcohol or provide readily accessible handwashing facilities.
• Ventilation: Ensure that all HVAC systems are used in accordance with the manufacturer’s instructions, and that all air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher, or the highest compatible with the system. OSHA clarifies that this section does not require installation of new HVAC systems or AIIRs to replace or augment functioning systems.
• Health Screening and Medical Management: Screen each employee daily at no cost to the employee, which may be done through self-monitoring by the employee. Each employee must report COVID-19 confirmed and suspected illness, or symptoms to the employer. Employers must also notify all employees who were not wearing respirators and/or required PPE of any COVID-19 exposure at the workplace as well as continue to pay removed employees in most circumstances.
• Vaccination: Provide reasonable time and paid leave for vaccinations and vaccine side effects.
• Training: Train and educate employees on COVID-19 transmittal, hygiene, and other prevention policies and procedures.
• Recordkeeping: For employers with more than 10 employees, establish a COVID-19 log of all employee cases of COVID-19 without regard to occupational exposure and follow requirements to make records available to employees.
• Reporting: Report to OSHA each work-related COVID-19 fatality within eight hours of learning of the fatality and each work-related COVID-19 in-patient hospitalizations within 24 hours.

Effective Date and Enforcement

The ETS is effective immediately upon publication in the Federal Register. All provisions are subject to change until the date of publication. Employers must comply with most provisions within 14 days and with the remaining provisions within 30 days (i.e., “Physical Barriers”, “Training”, and “Recordkeeping”). OSHA will use its enforcement discretion to avoid citing employers who miss a compliance deadline but are making a good faith effort to comply with the ETS. OSHA will update the standard, if necessary, to align with CDC guidelines and changes in the pandemic.

What About Non-Healthcare Settings?

Unless the workplace meets all criteria set forth above, the workplace is considered a non-healthcare setting and is not subject to the ETS. All other workplaces will continue to be subject to OSHA’s regular regulations and guidance (“the Guidance”). OSHA updated the Guidance to address the updated recommendations from the Centers of Disease Control (“CDC”). Unlike the healthcare ETS, the Guidance for non-healthcare settings is advisory and not legally binding.

The Guidance provides that most employers no longer need to take steps to protect employees who are not otherwise at-risk from COVID-19 when all employees are fully vaccinated. A worker is “otherwise at-risk,” according to OSHA, if the worker has a health condition such as a prior transplant or takes certain medications limiting the worker’s ability to have a full immune response to the COVID-19 vaccine. Unvaccinated or at-risk employees, however, must still be protected from COVID-19.

The Guidance encourages employers to continue offering alternative working arrangements to these employees, such as telework or flexible schedules when possible, and to continue other prevention programs, such as enhanced cleaning protocols, social distancing, maintaining ventilation systems, and providing face coverings. It also encourages unvaccinated or at-risk employees to continue wearing face coverings, social distance when possible, and receive a vaccine. OSHA encourages employers to provide paid time off to employees to receive the vaccine, and to continue to separate and quarantine employees who are in close contact with someone who tests positive or who exhibits symptoms of COVID-19.

For “higher-risk workplaces” – defined by the Guidance to include manufacturing, meat, poultry, and seafood processing, and high-volume retail and grocery – the Guidance recommends additional steps for protecting unvaccinated and otherwise at-risk workers. These steps include staggering employee arrival, departure and break times; providing signage and floor markings to promote physical distancing; improving ventilation; properly spacing workers on assembly lines; encouraging customers to wear masks in retail settings; and making sure that all unvaccinated and otherwise at-risk workers sharing vehicles wear appropriate face coverings.

Please contact a member of the Maynard Labor and Employment Team with any questions regarding the ETS.