As discussed in a previous article, the Occupational Safety and Health Administration (“OSHA”) recently issued an emergency temporary standard (“ETS”) as a part of its National Emphasis Program on COVID-19. The previous blog article provided a concise overview of the ETS and its general requirements. This article provides a more thorough summary of Subpart U, the primary section of the ETS, requiring employers to implement certain practices aimed at protecting health care workers from COVID-19.
What health care settings are covered?
The ETS is intended to protect the 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’s coverage flowchart can help employers identify whether their workplace is covered by the COVID-19 Healthcare ETS.
What does the ETS require health care employers to do?
OSHA has been widely criticized since the start of the pandemic for not being more proactive in its efforts to protect workers from COVID-19. Watchdog groups pointed to a decline in OSHA inspections despite an increase in worker complaints related to COVID-19 risks. Although late to the game, OSHA has now promulgated comprehensive rules and requirements designed to protect health care workers. Those rules and requirements include but are not limited to:
1. Development of a “COVID-19 Plan”
Covered health care employers are required to develop, implement and monitor a COVID-19 Plan for each workplace. The COVID-19 plan must be in writing if the employer has more than 10 employees. It must include:
- A “wall to wall” workplace-specific hazard assessment to identify potential COVID-19-related hazards. If a COVID-19-related exposure hazard is identified, the employer must implement controls to eliminate or mitigate the hazard. For employees working in private residences, the employer’s COVID-19 plan must address employee withdrawal from residences in the event that protections are inadequate.
- Policies and procedures to determine employees’ vaccination status;
- Policies and procedures to minimize the risk of transmission of COVID-19 to employees;
- A solicitation of input and involvement of non-managerial employees and their representatives in developing and implementing a COVID-19 plan; and
- The designation of a COVID-19 Safety Coordinator who is knowledgeable in infection control and who has authority to ensure compliance with the COVID-19 Plan.
2. Screening & Management
Regarding non-employees, covered health care employers must:
- Limit and monitor points of entry to settings where direct patient care is provided.
- Screen and triage all clients, patients, residents and other visitors, including non-employees.
- Implement patient management strategies in accordance with CDC recommendations.
Regarding employees, covered health care employers must:
- Screen employees before each workday and shift. Screening may be conducted by asking employees to self-monitor before reporting to work or may be conducted in-person by the employer.
- Require each employee to promptly notify the employer when the employee is COVID-19 positive, suspected of having COVID-19 or experiencing symptoms.
- Notify within 24 hours those employees who were not wearing respirators, or any other required PPE, that they have had close contact with employees who have tested positive for COVID-19. Close contact is defined as being within six feet of another person for a cumulative total of 15 minutes or more over a 24-hour period.
Notification must include the dates that contact occurred. Employers must protect the infected employee’s identity.
- Remove employees from the workplace who are positive for COVID-19, suspected of having COVID-19, experiencing symptoms or recently had close contact with a COVID-19 positive coworker such that notification is required. Employers need not remove any asymptomatic employee who has (1) been fully vaccinated or (2) had COVID-19 and recovered within the past 3 months.
- Controversially, employers with more than 10 employees must provide any employee thus removed from the workplace (1) the benefits to which the employee is normally entitled and (2) paid leave of up to $1,400 a week. Employers may require removed employees to work remotely, and in that case must compensate them as if they were working in their usual workspaces. For employers with fewer than 500 employees, beginning the third week of the removal of an employee who is unable to work remotely, the minimum amount of pay is reduced to two-thirds of the same regular pay the employee would have received had they not been absent from work.
- Employees who tested positive for COVID-19 must be removed until they meet the return to work criteria.
- For employees who are suspected of COVID-19, the employer must either: (i) keep the employee removed until they meet the return to work criteria; or (ii) keep the employee removed and provide a COVID-19 test at no cost to the employee. If the results are negative, the employee may return to work immediately.
- For employees who are removed because of close contact with COVID-19, the employer must either: (i) keep the employee removed for 14 days; or (ii) keep the employee removed and provide a COVID-19 test at least five days after the exposure at no cost to the employee. If the results are negative, the employee may return to work after seven days following exposure.
- Employers must follow the recommendation of a licensed health care provider or CDC guidance when making decisions about employees returning to work after removal.
3. Vaccination
Covered health care employers are required to provide reasonable paid time off to each employee while getting vaccinated and any side effects experienced following vaccination.
4. Training
Covered health care employers must provide training to employees on COVID-19 and employer-specific policies and procedures, including additional training whenever certain changes are made, such as new job duties.
5. Anti-Retaliation
Covered health care employers must inform employees of their rights and protections, including rights required under the ETS. Specifically, employers must not discharge or discriminate against any employee for exercising their right to the protections required under the ETS. This provision encompasses employees filing safety and health complaints or exercising other rights afforded by the OSH Act.
6. Recordkeeping
Covered health care employers must undertake certain recordkeeping obligations, including (if the employer has more than 10 employees) establishing 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: (1) the employee’s name; (2) one form of contact information; (3) occupation; (4) location where the employee worked; (5) the date of the employee’s last day at the workplace; (6) the date of the positive test for, or diagnosis of, COVID-19; and (7) (if applicable) the date the employee first experienced COVID-19 symptoms.
- The information must be recorded within 24 hours, be maintained as confidential, and not be disclosed except as required by the ETS or other federal law.
7. Reporting COVID-19 Fatalities & Hospitalizations to OSHA
Covered health care employers must report to OSHA work-related COVID-19 fatalities within 8 hours and in-patient hospitalizations within 24 hours, in accordance with OSHA requirements.
8. Personal Protective Equipment
Covered health care employers must provide masks and other necessary personal protective equipment to employees, as well as ensure masks are worn indoors, in vehicles with others for work purposes and changed daily or as needed. Exceptions include: (1) when an employee is alone in a room; (2) when employees are six (6) feet apart and eating or drinking; (3) when employees are wearing respiratory protection; (4) when it is important to see a person’s mouth; or (5) when medical or religious necessity of an employee requires otherwise.
9. Physical Distancing
Covered health care employers must ensure employees socially distance, unless doing so is infeasible for a specific activity.
10. Physical Barriers
Covered health care employers must install cleanable or disposable solid barriers to block face-to-face pathways at each fixed work location where employees are not separated from others by six feet.
“Conditional” Requirements
OSHA differentiates between vaccinated and unvaccinated employees throughout the ETS. Many of the ETS requirements are inapplicable to employees who are fully vaccinated in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.
Other Requirements
There are additional requirements not mentioned above, such as ventilation requirements for certain workspaces, requirements for the use of respirators, the disinfection of surfaces, the presence of workers employed by other employers in the same workspace, etc. This article is not intended to be comprehensive, but only to summarize the most salient provisions of the ETS. A comprehensive list and explanation of all of the ETS requirements may be found in OSHA’s list of 98 FAQs available at OSHA’s COVID-19 Healthcare ETS webpage.
ETS Effective on June 21, 2021
The ETS becomes effective upon its Federal Register Publication date of June 21, 2021. Subject to potential legal challenges, covered health care employers will have 14 days to comply with most ETS provisions, and 30 days to comply with the remaining provisions.
What to do next?
Although OSHA emergency temporary standards have a history of being struck down by courts, covered health care employers should not hesitate before taking steps to ensure compliance with OSHA’s COVID-19 ETS. OSHA has received a substantial influx of cash and resources under the Biden administration, which will no doubt lead to increased inspections and related enforcement activities. Health care employers need to be ready.
Non-hospital entities should first determine whether they are covered by the ETS by consulting OSHA’s ETS coverage flowchart.
Because hospitals are certainly covered, they should promptly convene a multi-disciplinary COVID-19 workgroup made up of, at a minimum, human resources representatives, infection control experts and workplace safety personnel. The workgroup should then conduct a gap analysis designed to identify those ETS requirements that are already in place and those that will need to be implemented. All of these efforts should be carefully documented in order to be well-positioned to respond to OSHA inspections.
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.
