Key Takeaways

• OSHA issued an Emergency Temporary Standard (ETS) to protect health care workers from COVID-19-related hazards

• The ETS establishes new requirements for employers in the health care industry―to the extent not already in place through state requirements or other agency requirements

• The ETS applies to any setting where an employee provides health care or health care support services, including hospitals, nursing homes, assisted living facilities, home health care, emergency response, and ambulatory care facilities

In June 2021, OSHA issued an Emergency Temporary Standard (ETS) to protect health care workers from COVID-19-related hazards. Alongside the ETS, OSHA also issued new COVID-19 guidance for workers in all other industries. The ETS establishes new requirements for employers in the health care industry―to the extent not already in place through state requirements or other agency requirements, such as the Centers for Medicare and Medicaid Services (CMS).

THE EMERGENCY TEMPORARY STANDARD FOR HEALTH CARE INDUSTRIES

Application

Generally speaking, the ETS applies to any setting where an employee provides health care or health care support services, including hospitals, nursing homes, assisted living facilities, home health care, emergency response, and ambulatory care facilities. As with nearly every aspect of OSHA, however, there are exceptions, including:

• First aid performed by an employee who is not a licensed health care provider
• Pharmacists dispensing prescriptions in retail settings
• Non-hospital care settings where all employees are screened prior to entry, and those confirmed/suspected to have COVID-19 are denied entry
• Well-defined hospital ambulatory care settings, so long as all employees are fully vaccinated and all non-employees are screened prior to entry, with confirmed/suspected cases denied entry
• Home health care settings where all employees are fully vaccinated, non-employees are screened prior to entry, and confirmed/suspected individuals are not present
• Health care support services not performed in a health care setting (i.e., off-site laundry or medical billing)
• Telehealth services done in a setting where no direct patient contact occurs

If a health care setting is contained within another non-healthcare setting, the ETS only applies to the health care setting. Where emergency responders or licensed health care providers enter a non-healthcare setting to provide health care services, the ETS only applies to the provision of health care services by that employee.

Vaccinated Employees

With the ever-increasing number of vaccinated individuals in the workforce, it should come as no surprise that OSHA would address their status in its ETS. Fully vaccinated employees are exempt from masking, distancing, and barrier requirements when in a well-defined area with no reasonable expectation that any person confirmed or suspected of having COVID-19 will be . Employers should check with state and other agency requirements that may have more stringent masking requirements.

Under OSHA, a person is “fully vaccinated” two weeks or more after he or she has completed the final dose of a COVID-19 vaccination approved the U.S. Food and Drug Administration in the United States. The ETS does not contain specific requirements on how employers should determine whether an employee is fully vaccinated. Instead, the preamble to the ETS offers some suggestions, including:

• Vaccinate workers themselves
• Review vaccination cards issued by the CDC, pharmacy, health care provider, or other vaccinator
• Review state-issued passes
• Have employees attest to whether they have been vaccinated

While the options for proving vaccination status may vary, one thing does not: If an employer cannot determine whether an employee is vaccinated, then the employer must treat that employee as being unvaccinated.

Requirements

Employers who find themselves within the scope of the ETS will find that they now have to comply with a host of requirements, some new, and some more familiar. These requirements under the ETS include the following:

• Develop a COVID-19 plan for each workplace that:
  • Must be in writing if more than 10 employees
  • Designates a safety coordinator who has knowledge of infection control and authority to implement, monitor, and ensure compliance with the COVID-19 plan
  • Takes into account a workplace-specific hazard assessment
  • Seeks the input and involvement of non-managerial employees in hazard assessments and plan development and implementation
  • Provides monitoring of the workplace to ensure ongoing effectiveness of the plan
  • Includes policies and procedures to minimize the risk of COVID-19 transmission to employees
• Screen and manage patients, clients, residents, and other non-employees entering the setting
• Develop and implement policies and procedures that adhere to CDC guidelines and standard and transmission-based precautions
• Provide adequate Personal Protective Equipment (PPE)
  • Includes properly fitted face masks
  • Provide and ensure employees use respirator or other suitable PPE when involved in aerosol-generating procedures with confirmed and suspected COVID-19 patients
  • Follow proper guidelines for PPE use (i.e., proper respiratory programs for mandatory or voluntary respirator use)
• Take special precautions when performing aerosol-generating procedures
  • Limit area to essential employees only
  • Perform procedure in an airborne infection isolation room
  • Clean and disinfect surfaces and equipment after procedure is completed
• Physical distancing of at least six feet
• Physical barriers (cleanable or disposable) at each fixed work location in non-patient care areas where employees are not each separated by at least six feet
• Follow CDC guidelines for cleaning and disinfection in required areas including patient care areas, resident rooms, and others
• Ensure adequate ventilation
• Employee screening and medical management
• Provide reasonable time and paid leave for employees getting vaccinated
• Provide adequate training in a language employees can understand about COVID-19 risks, hazards, and prevention
• Provide updated training if and when policies or procedures are changed
• Ensure no retaliation against employees who complain or report about COVID-19 hazards
• Proper recordkeeping and reporting of applicable COVID-19 illnesses and fatalities

Implementation and Enforcement

The ETS is effective immediately upon publication in the Federal Register. Once published, employers will have to comply with the provisions within 14 or 30 days, depending on the requirement. As seen during the start of the COVID-19 pandemic, OSHA will likely use discretion in enforcement during the first few months after the ETS goes into effect. This means that employers who show a good faith effort to comply with the ETS face a lower risk of receiving a citation. OSHA will continue to monitor the pandemic and information provided by other agencies (such as the CDC) and will update and/or modify the ETS as necessary.

CONCLUSION

The newly released ETS and general industry guidance show how far we have come since the beginning of the pandemic over one year ago. Health care employers need to make sure their current policies are also compliant with the new ETS.

If you have further questions about the new OSHA ETS and general industry guidance, contact:

• Stefan A. Borovina
• Michael Rubin
• Caroline J. Berdzik
• Or another member of our OSHA and Worksite Safety group