OSHA Issues Emergency Temporary Standard to Protect Health Care Workers From COVID-19

Once the Occupational Safety and Health Administration (OSHA) standard issued on June 10 is published in the Federal Register, health care employers will have two weeks to meet most of the new requirements. What are the biggest provisions employers need to follow?

The latest Emergency Temporary Standard (ETS) aims to protect health care workers from COVID-19. The ETS focuses on health care workers most likely to have contact with an infected person. This standard is in line with the Executive Order on Protecting Worker Health and Safety President Biden issued on Jan. 21. OSHA advised that the ETS is needed to set a federal standard to make sure health care workers in all states are sufficiently protected. 

OSHA has the power to set Emergency Temporary Standards that take effect immediately and stay in effect until a permanent standard supersedes them. However, OSHA must first conclude that workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards and that an emergency standard is needed to protect them. There could be challenges to this standard based on whether OSHA met the criteria to issue an ETS.

The ETS is focused on protecting workers facing the highest COVID-19 hazards, which OSHA considers to be those working in health care settings where suspected or confirmed COVID-19 patients are treated. This includes:

• Employees in hospitals, nursing homes, and assisted living and ambulatory care facilities
• Emergency responders
• Home health care workers

The ETS includes exemptions for fully vaccinated health care workers. They do not have to wear masks, stay socially distant or use barriers when in well-defined areas where there is no reasonable expectation that someone with suspected or confirmed COVID-19 will be present. 

Some of the standard’s more significant provisions include:

• COVID-19 plan: Employers with more than 10 employees must develop and implement a written COVID-19 plan. It must include a designated safety coordinator to ensure compliance, the performance of a workplace-specific hazard assessment, the involvement of non-managerial employees in the hazard assessment and development of the written plan, and policies and procedures to minimize the risk of virus transmission to employees. 
• Patient screening and management: Employers must limit and monitor points of entry to settings where direct patient care is provided. Employers must also screen and triage patients, clients and other visitors and non-employees to protect against the spread of the virus. 
• Personal protective equipment (PPE): Employers must provide and ensure each employee wears a face mask when indoors and when in a vehicle with other people for work purposes, unless they meet an exemption. Employers must also provide and ensure that 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.
• Physical distancing and barriers: Employers must keep people at least six feet apart when indoors. They must install cleanable or disposable solid barriers at each fixed work location in non-patient care areas where employees are not separated from other people by at least six feet.
• Cleaning and disinfection: In patient care areas, resident rooms, and for medical devices and equipment, employers must follow standard practices to clean and disinfect surfaces and equipment in accordance with CDC guidelines. In all other areas, employers must ensure that high-touch surfaces and equipment are cleaned at least once a day. They must provide alcohol-based hand rub that is at least 60% alcohol or provide readily accessible hand-washing facilities.
• Ventilation: Employer-owned or controlled existing HVAC systems must comply with manufacturer’s instructions. Air filters must be rated Minimum Efficiency Reporting Value 13 or higher if the system allows for same. 
• Health screening and medical management: Employees must be screened for virus symptoms before each workday and shift. If an employee is COVID-19 positive, suspected of having COVID-19, or is experiencing certain symptoms, the employee must promptly inform the employer. Employers must tell certain employees within 24 hours when a person who has been in the workplace is COVID-19 positive. Employers with more than 10 employees must provide medical removal protection benefits to employees who must isolate or quarantine. 
• Vaccination: Employers must give workers paid time off to get the vaccine and recover from its side effects to encourage them to obtain the vaccine.
• Anti-Retaliation: Employers must inform employees of their rights to protections required by the ETS. They may not discharge or discriminate against employees for exercising their rights under the ETS or for engaging in actions required by the standard.
• Reporting requirements: Employers must report work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.

The ETS will take effect as soon as it is published in the Federal Register. Employers must comply with most of its provisions within 14 days. They have 30 days to meet certain provisions involving physical barriers, ventilation and training. Due to this short timeframe for compliance, OSHA will use its enforcement discretion for employers who make a good-faith effort to comply with the ETS requirements. 

Learn more by reading the ETS (preamble and regulations) and answers to frequently asked questions. Please contact Jeff Moore or any member of Phelps’ Health Care team if you have questions or need compliance advice and guidance.