OSHA Issues Emergency Temporary Standard for Healthcare Employers
On June 21, 2021, the Occupational Safety and Health Administration (OSHA) adopted its COVID-19 Healthcare Emergency Temporary Standard (ETS). Employers providing health care services will be required to comply with new COVID-19 specific standards to protect their workforces. The ETS focuses on protections for unvaccinated or otherwise “at-risk” workers, who are described as those that “cannot be protected through vaccination, cannot get vaccinated, or cannot use face coverings.” The ETS encourages vaccination by requiring employers to provide reasonable time and paid leave for employees to receive vaccinations and recovery from any side effects.
Covered Employers
The ETS defines “healthcare services” as:
“services that are provided to individuals by professional healthcare practitioners (e.g., doctors, nurses, emergency medical personnel, oral health professionals) for the purpose of promoting, maintaining, monitoring, or restoring health. Healthcare services are delivered through various means including: hospitalization, long-term care, ambulatory care, home health and hospice care, emergency medical response, and patient transport. For the purposes of this section, healthcare services include autopsies.”
and “healthcare support services” as:
“services that facilitate the provision of healthcare services. Healthcare support services include patient intake/admission, patient food services, equipment and facility maintenance, housekeeping services, healthcare laundry services, medical waste handling services, and medical equipment cleaning/reprocessing services.”
The ETS exempts from coverage certain workplaces where all employees are fully vaccinated and individuals with possible COVID–19 are prohibited from entry; and where fully vaccinated employees work in well-defined areas where there is no reasonable expectation that individuals with COVID–19 will be present.
OSHA has provided a flow chart to help employers determine whether their workplace is covered by the ETS.
Required Measures
Pursuant to the ETS, covered healthcare employers must implement the following measures to reduce transmission of COVID–19 in their workplaces:
- Conduct Daily Screenings of employees, patients, and other visitors;
- Supply Personal Protective Equipment (PPE), including surgical masks to their employees;
- Comply with the Mini Respiratory Protection Program (MRPP) by providing employees with instructions on respirator use using ETS-prescribed text, conducting a user seal check, and providing brief training for each applicable employee;
- Provide Paid Leave to employees removed from the workplace due to COVID-19 conditions;
- Develop and Implement a COVID-19 Plan with input from employees, establishing the policies and procedures to minimize the risk of transmission of COVID-19 to employees;
- Conform with the CDC’s Guidelines for the implementation of patient management strategies;
- Limit the number of employees present during Aerosol-Generating Procedures on a Person with Suspected or Confirmed COVID-19;
- Maintain Physical Distancing (at least six feet apart) while indoors where feasible;
- Maintain Physical Barriers at each fixed work location outside of direct patient care areas where employees are not separated from other people by at least six feet;
- Clean and Disinfect surfaces and equipment in patient-care areas, resident rooms, and other medical devices, high-touch surfaces and equipment routinely in accordance with CDC guidelines;
- Maintain Adequate Ventilation;
- Train employees on COVID-19 transmission risks and relevant policies and procedures;
- Develop and Implement an Anti-Retaliation policy and inform employees of their right to the protections required by the ETS;
- Maintain Records of the employer’s COVID-19 plan and all instances of COVID-19 exposure to employees;
- Report COVID-19 Fatalities and Hospitalizations to OSHA within 8 hours of a death or 24 hours of a hospitalization.
Employers must comply with most of the foregoing requirements by July 6, 2021. Employers must comply with the requirements concerning ventilation, physical barriers, and training by July 21, 2021.
Failure to comply with the ETS carries a maximum civil penalty of $13,494 per violation for serious and other than serious violations. A maximum penalty of $134,937 per violation may be assessed for willful or repeated violations. OSHA has indicated that it will use its enforcement discretion to avoid citing employers who are making a good faith effort to comply with the ETS.
Non-Covered Employers
OSHA’s updated voluntary guidance (the “Guidance”) outlines measures that can be taken by employers not covered by the ETS to help identify COVID-19 exposure risks to workers who are unvaccinated or otherwise at-risk and take appropriate steps to prevent exposure and infection. The Guidance recommends:
- Providing paid time off for employees to obtain vaccinations;
- Instructing workers that are infected, have been exposed, or present symptoms of COVID-19 to stay home from work;
- Implementing physical distancing measures for unvaccinated and at-risk employees in communal work areas, limiting the number of unvaccinated and at-risk workers that can be in one place at any time, and installing barriers at work stations where unvaccinated and at-risk workers cannot be six feet apart;
- Requiring unvaccinated and at-risk employees to wear face coverings and providing PPE and face coverings to them;
- Suggesting that unvaccinated customers, visitors, or guests wear face coverings, especially in public-facing workplaces such as retail establishments;
- Educating and providing accessible training to workers on COVID-19 policies and procedures;
- Recording and reporting COVID-19 infections and deaths;
- Following CDC routine cleaning and disinfection guidelines and maintaining ventilation systems; and
- Creating an anonymous reporting process for workers to voice COVID-19 related concerns and implementing protections against retaliation.
Under most circumstances, fully vaccinated people need not take all the precautions that unvaccinated people should take. Therefore, unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk of COVID-19 exposure.
BPS attorneys are continuing to monitor COVID-19 related guidance and are available to assist employers in understanding and complying with these directives.
For more information about this Client Advisory, please contact Joseph DeGuiseppe at JDeGiuseppe@bpslaw.com or 914-287-6144, or Gina Nicotera at gnicotera@bpslaw.com or 914-287-6190.