On Thursday, June 10, Occupational Safety and Health Administration (“OSHA”) issued an emergency temporary standard (“ETS”) as part of its National Emphasis Program on COVID-19. In a surprise to some, the ETS is limited to certain types of health care workplaces. OSHA also issued separate voluntary guidance for non-health care industries.
Which health care settings are covered by the ETS?
The ETS is intended to protect health care workers who are most likely to become infected with COVID-19 in the course of their employment. According to OSHA, this includes employees in hospitals, nursing homes and assisted living facilities; emergency responders; home health care workers; and employees in ambulatory care facilities where suspected or confirmed COVID-19 patients are treated. Importantly, the ETS does not apply to most other non-hospital ambulatory care settings so long as non-employees are screened and those with suspected or confirmed COVID-19 infections are barred from entry. OSHA has published a single page “Is your workplace covered by the COVID-19 Healthcare ETS” flowchart to help health care employers determine whether they are covered.
When is it effective?
Unless there is a legal challenge, the ETS will be effective immediately upon publication in the Federal Register. That date has not yet been announced. Covered employers will then have 14 days to comply with most of the provisions and 30 days to comply with some others. OSHA has indicated a willingness to exercise enforcement discretion regarding those employers who can demonstrate good faith compliance efforts.
What is required?
The ETS establishes several specific requirements for covered health care employers. We will provide more information on these requirements in a future publication. Health care employers must, among other obligations:
- Develop and implement a COVID-19 plan for each workplace, which must be in writing if the employer has more than 10 employees;
- Designate one or more qualified workplace COVID-19 safety coordinator(s) who must possess the authority to ensure compliance;
- Screen employees before each workday and shift, although screening may be conducted by asking employees to self-monitor before reporting to work or may be conducted in-person by the employer;
- Ensure social distancing and provide masks and other necessary personal protective equipment to employees, as well as ensure masks are worn indoors and changed daily or as needed (Note: fully vaccinated employees do not have to wear masks or socially distance in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present);
- Remove employees from the workplace who are positive for COVID-19, are suspected of having COVID-19 or who have certain COVID-19 symptoms;
- For employers with more than 10 employees, provide those who have been removed from the workplace with paid leave of up to $1,400 a week. (Note: an additional cap on pay is available for employers with fewer than 500 employees);
- Notify those employees who were not wearing respirators and any other required PPE that they have had close contact with employees who have tested positive for COVID-19;
- Provide training to employees on COVID-19 and inform them of their rights and protections, including rights under the ETS;
- Undertake certain recordkeeping obligations, including the creation of a COVID-19 log to record each instance of a COVID-19 positive employee, regardless of whether it is connected to exposure at work. The log must contain certain details and be made available by the end of the next business day after a request for examination and copying. The ETS provides specific detail on who may request and be entitled to the log, but employees will have access to limited information within it; and
- Report work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.
What should we do now?
Although the effective date timetables remain uncertain, there are steps that should be taken immediately by health care employers.
First, determine if the ETS applies to your organization. OSHA’s coverage flowchart is a good starting point for this analysis.
Next, begin reviewing the specific ETS requirements against those measures that your organization is already taking. Make a list of those requirements that will be “new” to your organization and begin thinking about the time and resources it will take to implement them. OSHA’s Fact Sheet and extensive FAQs (which are accessible at its COVID-19 Healthcare ETS webpage) will be helpful for this exercise.
You should also begin thinking about how the ETS impacts your overall COVID-19 workplace vaccination strategies. Fully vaccinated employees are exempted from many of the ETS requirements. This may provide further incentive if your organization is considering mandatory COVID-19 vaccination for your workforce.
Finally, continue to monitor our posts as we will provide more detailed guidance on the ETS as well as updates as new information becomes available.
If you have any questions or would like additional information on this topic, please contact your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer an individual’s questions that may constitute legal advice.
