OSHA’s COVID-19 Emergency Temporary Standard for Healthcare Employers Contains Some (Unpleasant) Surprises

By Fiona W. Ong - Shawe Rosenthal LLP

June 15, 2021

In conjunction with updating its COVID-19 guidance for employers generally (discussed in a prior post), on June 10, 2021, the federal Occupational Safety and Health Administration (OSHA) issued a long-awaited COVID-19 Emergency Temporary Standard (ETS) – but limited its coverage only to employers providing healthcare services or healthcare support services. The ETS imposes significant responsibilities and obligations on those employers in the context of the COVID-19 pandemic – much of which healthcare entities are already doing. But there are a few surprises as well.

Along with the ETS, which will take effect immediately upon publication in the Federal Register (presumably within the next few days), OSHA also offers a fact sheet (available in Spanish), a helpful flow-chart to determine if the entity is subject to the ETS, and detailed FAQs. In addition, OSHA provided a fact sheet on the new Mini Respiratory Protection Program that is part of the ETS.

Exemptions to the ETS. Notably, the ETS expressly does not apply in certain situations, including:

•    Telehealth services performed outside of direct patient care settings;
•    The dispensing of prescriptions in retail pharmacy settings;
•    Where healthcare support services are not performed in a healthcare setting (e.g. off-site laundry or medical billing);
•    In non-hospital ambulatory care settings where all non-employees are screened prior to entry and those with suspected or confirmed COVID-19 infection are not permitted to enter;
•    In well-defined hospital ambulatory care settings where all employees are fully vaccinated and where all non-employees are screened prior to entry and those with suspected or confirmed COVID-19 infection are not permitted to enter;
•    In home healthcare settings where all employees are fully vaccinated and where all non-employees are screened prior to entry and those with suspected or confirmed COVID-19 infection are not permitted to enter.

With regard to the last two bullet points above, if employers must make reasonable accommodations for those who cannot be vaccinated, and the accommodations (e.g. telework, working in isolation) do not expose the employee to COVID-19 hazards, they may still be within the scope of the exemption.

Additionally, for fully-vaccinated individuals, the following ETS provisions (discussed more fully below) do not apply: personal protective equipment (PPE)/masking; physical distancing; and physical barriers. In order to take advantage of this exemption, the employer must establish policies and procedures to determine vaccination status.

The Surprises. Beginning with the unexpected, the ETS provides for the following:

•    Medical Removal Protection Benefits. An employer must pay MRP benefits if they are required to remove an employee from the workplace under the ETS (because they are COVID-19 positive, have been told by a HCP that they are suspected to have COVID-19, are experiencing loss of taste or smell, have a fever with a new cough and shortness of breath, or have been in close contact with a COVID-19-positive individual in the workplace (unless they have been vaccinated or have recovered from COVID within the past 3 months)) and the employee is unable to work remotely or in isolation. The amount of the paid benefit depends on the size of the employer, but is up to $1400 per week.
•    Job Reinstatement Rights. An employer must hold the employee’s job while they are removed from work because of COVID-19 – regardless of how long the removal lasts. The FAQs contemplate the possibility of months-long removal periods. Employers who need to fill the position while the employee is out must use temporary workers.
•    Paid Vaccination Leave. Employers must provide paid vaccination leave during work hours and paid leave to recover from adverse effects (although the employee’s already-existing and accrued paid sick leave may be used to satisfy this requirement). Employers may set “reasonable” caps on how much leave, which OSHA suggests in its FAQs to be four hours for vaccination and 16 hours for adverse effects.
•    Recordkeeping Requirements for Lower-Hazard Employers. Lower-hazard employers who are normally exempt from the OSHA recordkeeping requirements are required to record COVID-19 incidents if they have more than 10 employees.
•    COVID-19 Log. Employers must keep a COVID-19 log of all COVID-19 incidents in the workplace, which is different than the usual Form 300 log of workplace illnesses and injuries, the Form 300A summary of incidents, and the Form 301 incident reports.
•    Expanded Reporting Periods. Normally, employers must report hospitalizations that occur within 24 hours and deaths that occur within 30 days after a workplace incident. However, these time limits do not apply to work-related COVID-19 hospitalizations/deaths. All have to be reported regardless of how much time has passed since the exposure.

What We Expected. In addition to these above provisions, the ETS contains many more obligations with which healthcare employers are likely already complying.
•    COVID-19 Plan. Employers, with the input of non-managerial employees and their representatives (e.g. unions), must develop, implement, monitor, and update a plan for each workplace.
    •    If the employer has more than 10 employees, the plan must be in writing.
    •    The employer must designate at least one COVID-19 safety coordinator, identified in the written plan, to implement, monitor and enforce the plan.
    •    The employer must conduct a workplace-specific COVID-19 hazard assessment.
    •    The plan must include policies and procedures to, among other things, minimize risk of transmission and coordinate with other employers at the same work location.

•    Patient Screening and Management. Where there is direct patient care, employers must limit and monitor points of entry, and screen and triage all non-employees entering the location, in addition to complying with other CDC-recommended patient management strategies in its “COVID-19 Infection Prevention and Control Recommendations.”
•    Standard and Transmission-Based Precautions. Employers must develop and implement policies and procedures that comply with the CDC’s “Guidelines for Isolation Precautions.”
•    Personal Protective Equipment. The ETS addresses various forms of PPE.
    •    Employers must provide adequate facemasks and ensure employees who are not fully vaccinated wear them properly when indoors or inside a work vehicle. There are exceptions to this requirement, including when the employee is alone, is eating or drinking at least 6 feet away from others or behind a barrier, is wearing other respiratory protection, to facilitate communication with the hearing-impaired, because of a disability that prevents the wearing of the mask, or where the mask causes a safety hazard.
    •    Respirators and other PPE (including gloves, isolation gown or protective clothing, and eye protection) are required for exposure with suspected or confirmed COVID-19, and during aerosol-generating procedures, as well as in compliance with the CDC’s “Guidelines for Isolation Precautions.” Employers must comply with OSHA standards for such PPE, including training and, if applicable, fit testing. If the employer chooses to require or permit the use of a respirator instead of a facemask, they must also comply with those standards.

•    Aerosol-generating Procedures on a Person with Suspected or Confirmed COVID-19. Under such circumstances, only essential personnel should be present, the procedure should be conducted in an existing airborne infection isolation room (AIIR) if possible, and the area/equipment should be cleaned and disinfected after the procedure.
•    Physical Distancing. Employers should ensure a six-foot distance between individuals or, if not possible, then as much distance as is feasible. The ETS suggests techniques such as telehealth, telework, limiting the number of personnel, signs and floor markings, staggered arrival/departure/break times, among other things.
•    Physical Barriers. Employers must install cleanable or disposable barrier, with pass-throughs at the bottom if necessary, at each fixed work location outside of direct patient care areas (e.g. lobby, check-in desks, triage areas, etc.) where employees must be within six feet of others. Barriers are not required in direct patient care areas or resident rooms.
•    Cleaning and Disinfection. In patient care areas, resident rooms, and for medical devices and equipment, employers must comply with the CDC’s “COVID-19 Infection Prevention and Control Recommendations” and “Guidelines for Environmental Infection Control.” For all other areas, employers should clean high-touch surfaces and equipment at least once a day. If a person with COVID-19 has been in the workplace within the last 24 hours, employers must comply with CDC’s “Cleaning and Disinfecting Guidance.” Employers should also provide 60% alcohol-based hand sanitizer or ready access to handwashing facilities.
•    Ventilation. Employers must take certain actions, including the following: ensure HVAC systems are used as directed by the manufacturer; maximize outside air and air changes; use and maintain filters with Minimum Efficiency Reporting Value (MERV) 13 or higher (or the most efficient compatible with the system); and clean and maintain intake ports for outside air. Employers should also consider other measures in accordance with the CDC’s “Ventilation Guidance,” particularly for buildings without HVAC systems or in vehicles.
•    Health Screening and Medical Management. There are several components to this provision:
    •    Employers must screen each employee before each work day and shift, whether through self-monitoring or in-person screening by the employer. If testing is part of the screening process, there must be no cost to the employee.
    •    Employees must be required to notify the employer if they are COVID-19 positive, have been told by a HCP that they are suspected to have COVID-19, are experiencing loss of taste or smell, or have a fever with a new cough and shortness of breath.
    •    Within 24 hours of learning about a COVID-19-positive individual in the workplace (other than COVID-19 treatment areas, such as emergency rooms, testing sites, COVID-19 wards, etc.), employers must notify employees who were not wearing a respirator and other required PPE and who were either in close contact or worked in a well-defined portion of a workplace (e.g. a particular floor) where the infected individual was present during the transmission period. They must also notify other employers in the workplace whose employees fall into those categories. The notification must include the date(s) when the infected person was in the workplace and, for other employers, their location. The notification must not include any employee’s name, contact information, or occupation.
    •    Employers must remove certain employees from the workplace:
        •    Any COVID-19-positive employees until they may return to work in accordance with guidance from a healthcare provider or the CDC’s “Isolation Guidance” and “Return to Work Healthcare Guidance.”
        •    Any employees who have been told by a HCP that they are suspected to have COVID-19, are experiencing loss of taste or smell, have a fever with a new cough and shortness of breath. These individuals may return to work when they meet the criteria set forth in the guidance cited above, or following a negative PCR test.
        •    Any employees who the employer is required to notify that they have been in close contact with a COVID-19 positive individual in the workplace. Unless they are fully vaccinated or have recovered from COVID-19 within the past three months, they must remain out for 14 days or for seven days with a negative test at least five days after exposure.
        •    If the employee refuses to take the test, they must remain out of work until they meet the guidance criteria, but they are not eligible for the MRP benefits discussed above. Reasonable accommodations must be provided for those unable to take the test because of religious needs or disability.

•    Training. Employers must provide training to each employee (appropriate to their language and literacy level) on the following: COVID-19; tasks and situations that could result in COVID-19 infection; multi-employer workplace agreements on infection control, common areas, and shared equipment; the identity of the safety coordinator; the training requirement and how to get copies of the training requirement, policies and procedures, and the COVID-19 written plan; and employer-specific policies and procedures on patient screening and management, prevention applicable to the employee’s duties, PPE, cleaning and disinfection, sick leave and COVID-19 benefits provided by law.
•    Anti-Retaliation. Employers must inform employees that they have a right to the protections in the ETS and that employers may not discharge or discriminate against employees for exercising their rights.

The Mini Respiratory Protection Program. The ETS also contains a new program that, according to OSHA, applies generally when workers are not exposed to suspected or confirmed sources of COVID-19 but where respirator use could offer enhanced worker protection. It does not replace OSHA’s normal Respiratory Protection Standard. Under the mini program, employers must provide training and user seal checks (which is a quick and easy way for workers to verify that they have put on their respirators correctly), but need not perform medical evaluations, fits tests, or have a written program, as is required under the normal standard.

This is obviously a fast-moving and ever-changing situation, and we will continue to send out E-lerts on any significant developments. You may also wish to check our continually-updated FAQs frequently.