The healthcare industry has finally received long-awaited guidance from the Occupational Safety and Health Administration (“OSHA”) regarding COVID-19 protection standards. On June 10, 2021, OSHA issued an Emergency Temporary Standard (“ETS”), establishing mandatory requirements to protect healthcare workers. This ETS – the first in decades from OSHA – comes nearly six months after President Joe Biden issued an Executive Order directing its promulgation by no later than March 15, 2021, and largely will be viewed as being “too late” given how the industry has been dealing with worker protection issues for the past fifteen-plus months. Regardless, the ETS will be published in the Federal Register in the near future, at which point it will take effect immediately subject to any potential legal challenge, although many requirements within the ETS have 14 or 30-day compliance windows from the date of publication. After publication, the ETS will remain in place for 180 days.
The application of the ETS is broad, applying to all settings (other than certain exempted settings as discussed below) where healthcare services or healthcare support services are provided. “Health care services” is defined as services provided by professional health care practitioners, such as doctors and nurses, for the purpose of promoting, monitoring, or restoring health. Accordingly, health care services settings include hospitals, ambulatory care and medical clinics, long-term care facilities, home health and hospice care, emergency medical response, and patient transport companies.
Notably, the ETS exempts certain healthcare workplaces from its mandatory provisions. Key exemptions include 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; and
- Telehealth services where direct patient care does not occur.
For healthcare settings where the ETS does apply, employers must adopt certain protective measures to prevent the spread of COVID-19. These include, but are not limited to:
- Development and implementation of a COVID-19 plan that contains particular content required by the ETS, which must be written if the employer has more than ten employees;
- Managing points of entry and screening patients and facility visitors;
- Developing and implementing CDC compliant guidelines related to transmission-based precautions;
- Providing PPE and ensuring appropriate use by employees (including adoption of a “mini-respiratory protection program”);
- Limiting exposure to aerosol-generating procedures;
- Enforcing social distancing and installing physical barriers where feasible;
- Cleaning and disinfecting surfaces in compliance with CDC guidelines;
- Monitoring ventilation systems to maximize air circulation;
- Conducting screening of employees and providing notice of positive cases of COVID-19 in the workplace;
- Providing reasonable paid leave for vaccination and vaccine side effects;
- Providing training related to COVID-19 transmission, policies, and procedures;
- Providing notice to employees regarding the prohibition on retaliation for exercising rights available under the ETS;
- Establishing a COVID-19 log; and
- Reporting COVID-19 fatalities and hospitalizations to OSHA.
The ETS also provides covered employees with “medical removal protection benefits” if they must be “removed” from the workplace due to certain COVID-19 related reasons (e.g., exposure or a positive test). In such cases, covered employees are entitled to the following:
- All employees who are allowed to work remotely or in isolation must continue to receive their regular pay and benefits;
- Employees who cannot work remotely and who are employed by a company with at least ten employees must continue to be paid their regular pay, up to $1,400 per week until the employee meets the criteria in the ETS for a return to work; and
- Employees of companies with 10-499 employees must be paid their regular pay, but, beginning in the third week of removal, they will receive only two-thirds of their regular pay, up to a cap of $200 per day.
The ETS explicitly states that an employer’s payment obligation is reduced by the amount of compensation that the employee receives from any other source, including a publicly or employer-funded compensation program.
As with previous ETSs, the current ETS may be the subject of legal challenges seeking a stay or outright invalidation. Unless and until a stay is ordered, however, healthcare employers should immediately set about determining whether they are covered by the ETS, and, if so, begin implementing preparations to comply with its requirements for the six months following publication. Fortunately, OSHA has stated that it will “use its enforcement discretion to avoid citing employers who are making a good faith effort to comply with the ETS.”
For more information regarding the ETS’ requirements, including resources for determining whether your company is covered by the ETS, please visit https://www.osha.gov/coronavirus/ets. And, as always, if you have any questions about any aspect of OSHA’s ETS or any other of the many rapid developments related to the coronavirus pandemic, please contact a member of AGG’s Employment Law team.