OSHA Emergency Temporary Standard for Healthcare Settings

On June 10, 2021, the U.S. Department of Labor (DOL) Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) creating specific obligations for employers to provide protections to workers from occupational exposure to COVID-19 in certain healthcare settings. The interim final rule was published in the Federal Register on June 21, 2021 and is effective as of that date. Employers are required to comply with provisions of the ETS by July 6, 2021 (14 days after the effective date) or July 21, 2021 (30 days after the effective date).

A comprehensive memorandum on the ETS from LeadingAge NY’s legal counsel, Hinman Straub, is available here. LeadingAge National is recording a webinar to educate members on the ETS and its compliance requirements. This will be available for free to all members this week, and we will circulate the webinar link as soon as we receive it.

Applicability of ETS

The ETS is applicable to settings in which employees provide healthcare services or healthcare support services (unless otherwise exempted). 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 [the ETS], healthcare services include autopsies.”

The ETS defines “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 following circumstances and settings are exempt from the requirements under the ETS: first aid by an employee who is not a licensed healthcare provider, dispensing prescriptions by pharmacists in a retail setting, non-hospital ambulatory care where all non-employees are screened and denied entry if suspected or confirmed to have COVID-19, well-defined hospital ambulatory care settings and home health care settings where all employees are fully vaccinated and non-employees are screened and denied entry or not present if suspected or confirmed to have COVID-19, healthcare support staff (i.e., off-site laundry or medical billing) not performed in a healthcare setting, or telehealth services performed outside of a setting where direct patient care occurs.

Furthermore, in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present, the requirements in the ETS for personal protective equipment (PPE), physical distancing, and physical barriers do not apply to employees who are fully vaccinated. (The full list of exceptions to the ETS may be found in paragraph (a) of the ETS.)

A flow chart on the applicability of the ETS is available here.

COVID-19 Plan Requirements

The ETS requires that employers develop and implement a COVID-19 plan for each workplace by July 6, 2021. If the employer has more than 10 employees, the plan must be in writing. The plan must meet various requirements established by OSHA, including, but not limited to, establishing policies and procedures to minimize the risk of transmission of COVID-19 through the following:

1. Patient Screening and Management;
2. Standard and Transmission-Based Precautions;
3. PPE;
4. Aerosol-Generating Procedures on a Person with Suspected or Confirmed COVID-19;
5. Physical Distancing;
6. Physical Barriers;
7. Cleaning and Disinfection;
8. Ventilation;
9. Health Screening and Medical Management;
10. Vaccination; and
11. Training.

OSHA has issued a model plan that may be utilized by employers and can be accessed here.

Requirements for Minimizing the Risk of Transmission of COVID-19

The ETS has various requirements for “Minimizing the Risk of Transmission of COVID-19” that are detailed in the memo from Hinman Straub. The effective dates for the requirements vary and are as follows:

1. Patient Screening and Management – July 6, 2021
2. Standard and Transmission-Based Precautions – July 6, 2021
3. PPE – July 6, 2021
4. Aerosol-Generating Procedures on a Person with Suspected or Confirmed COVID-19 – July 6, 2021
5. Physical Distancing – July 6, 2021
6. Physical Barriers – July 21, 2021
7. Cleaning and Disinfection – July 6, 2021
8. Ventilation – July 21, 2021
9. Health Screening and Medical Management – July 6, 2021
10. Vaccination – July 6, 2021
11. Training – July 21, 2021 (OSHA has provided sample training programs here.)

The requirements under the “Health Screening and Medical Management” portion of the ETS include requirements for when an employee must be removed from the workplace if they are positive for COVID-19, symptomatic for COVID-19, or have had an exposure due to a close contact with a COVID-19-positive individual. The paid medical removal and return to work guidance for employers has been outlined by OSHA in a flow chart here. The paid medical removal and return to work guidance for employees is outlined in a separate flow chart here. These requirements are detailed in the Hinman Straub memo referenced above, but include the following:

Medical Removal from the Workplace

If the employee is COVID-19-positive, the employee must be immediately removed from the workplace until they meet the return criteria identified below.

• If the employee:

1. has been told by a licensed healthcare provider that they are suspected to have COVID-19; or
2. is experiencing a loss of smell or taste; or
3. is experiencing both a fever of 100.4 or higher and a new unexplained cough associated with shortness of breath, they must be immediately removed from the workplace and either:
   • Keep the employee removed until they meet the return to work criteria; or
   • Provide a PCR test at no charge to the employee
     • If PCR test is negative, immediately return to work; or
     • If PCR test is positive, follow the return to work criteria, detailed below.
   • If the employee refuses a PCR test, keep the employee out of work. The employer is not required to provide medical removal protection benefits, as defined below.
     • Absent undue hardship, employers are obligated to make accommodations for refusal to test due to religious and disability-related medical reasons.

If the employer notifies an employee of an exposure due to close contact, the employer must immediately remove the employee and either:

• Remove for 14 days; or
• Remove and test at least five days after exposure at no cost to the employee.
  • If test is negative, return to work after seven days from exposure.
  • If test is positive, comply with return to work protocols.
• If the employee refuses to take the test, keep the employee out of work, but the employer is not required to provide medical removal protection benefits.
  • Absent undue hardship, employers are obligated to make accommodations for testing refusal due to religious and disability-related medical reasons.
• The employer is not obligated to remove an employee, who would otherwise be required to be removed based upon close contact with a positive COVID-19 case, if the employee is asymptomatic and is either fully vaccinated or has recovered from COVID-19 within the last three months.
• If the employee is removed, the employer may require the employee to work remotely if feasible or in isolation if suitable work is available.

Employers must make decisions about return to work in accordance with a healthcare provider and Centers for Disease Control and Prevention (CDC) “Isolation Guidance.”

Medical Removal Protection Benefits

• This section does not apply to employers with fewer than 10 employees.
• Employees removed from the workplace who are permitted by the employer to work remotely or in isolation must be paid their same regular rate of pay and benefits as if not absent from the workplace.
• Employees removed from the workplace who are unable to work in isolation or remotely shall continue to be paid their same regular pay up to $1,400 per week until they meet the return to work criteria.
  • For employers with fewer than 500 employees, the employer must pay the employee up to the $1,400 cap, but beginning in the third week of the employee’s removal, the amount is reduced to 2/3 of the same regular pay the employee would have received up to $200 per day, with a max per week of $1,000.
  • The above payment obligation is reduced by any compensation that the employee receives from other sources, such as public or employer-funded compensation.
  • Employees cannot suffer any adverse action as a result of the removal and cannot lose any right or benefit as a result of the removal.

Resources for Implementing the OSHA ETS

OSHA has made a variety of resources available to assist providers with implementation of the ETS. These include documents such as a “COVID-19 Plan Template,” a “COVID-19 Healthcare Worksite Checklist & Employee Job Hazard Analysis,” and sample employee presentations. These resources, and more, are available here. A Frequently Asked Questions (FAQ) document on the ETS is available here.

Contact: Sara Neitzel, sneitzel@leadingageny.org, 518-867-8835