Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On June 10, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) released its long-awaited COVID-19 Emergency Temporary Standard (ETS), establishing new mandatory requirements generally applicable to the healthcare industry. The ETS will be published in the Federal Register in the coming days, and will take effect immediately upon publication, although some of the requirements have a 14-day or 30-day window for compliance.
The rule applies to all settings where healthcare services or healthcare support services are provided, with certain enumerated exceptions. Generally, the ETS does not apply to the following healthcare settings:
- Provision of first aid by an employee who is not a licensed healthcare provider;
- Pharmacists in retail settings;
- Non-hospital ambulatory care settings where non-employees are screened for suspected or confirmed COVID-19;
- Hospital ambulatory care settings where employees are fully vaccinated and non-employees are screened prior to entry;
- Home healthcare settings where employees are fully vaccinated and non-employees are screened prior to entry;
- Healthcare support services not performed in a healthcare setting;
- Telehealth services where direct patient care does not occur.
The ETS requires healthcare employers to take certain precautions to protect employees from the transmission of COVID-19 in the workplace. As an overview, the ETS requires healthcare employers to:
- Develop and implement a COVID-19 plan meeting certain parameters;
- Screen patients and limit access to settings where direct patient care is provided;
- Follow CDC guidelines related to transmission-based precautions;
- Provide personal protective equipment (PPE) and ensure appropriate use by employees;
- Limit exposure to aerosol-generating procedures on a person with suspected or confirmed COVID-19;
- Enforce indoor physical distancing requirements and install physical barriers at fixed work locations in non-patient care areas;
- Comply with CDC guidelines regarding cleaning and disinfecting of surfaces;
- Monitor ventilation systems;
- Conduct regular health screening of employees and provide notice of positive cases of COVID-19;
- Provide reasonable paid leave for vaccination and vaccine side effects;
- Provide training related to COVID-19 transmission, policies, and procedures;
- Provide notice to employees regarding the prohibition on retaliation for exercising rights available under the ETS;
- Establish a COVID-19 log of all employee instances (occupational or otherwise) of COVID-19 (only required for employers with more than 10 employees); and
- Report work-related COVID-19 fatalities and hospitalizations to OSHA.
OSHA additionally updated its applicable guidance for non-healthcare employers, entitled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” The update clarifies that OSHA wants employers “to engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated or otherwise at-risk workers and mitigate the spread of COVID-19.” These steps include:
- Granting paid time off for employees to get vaccinated;
- Instructing any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-Co-V-2, and all workers with COVID-19 symptoms to stay home from work;
- Implementing physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas;
- Providing unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE;
- Educating and training workers on the employer’s COVID-19 policies and procedures using accessible formats and language(s) they understand;
- Suggesting that unvaccinated customers, visitors, or guests wear face coverings;
- Maintaining ventilation systems;
- Performing routine cleaning and disinfection;
- Recording and reporting COVID-19 infections and deaths;
- Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards; and
- Following other applicable mandatory OSHA standards.
While many of the items on this updated list were previously present in the initial guidance, the fact that OSHA reviewed and noted updates further confirms OSHA’s expectations for employers in all industries. Employers outside of the healthcare industry are advised to closely review the updated guidance and make further adjustments to their own internal policies and procedures, as appropriate.
We will provide additional updates on the health care rule and general industry guidance in the days ahead.