Publications

06.28.2021

On June 10, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) released an emergency temporary standard (ETS) to protect healthcare workers who continue to risk workplace exposures in order serve those who may have COVID-19. Here is what you need to know.

Does the ETS apply to my workplace?

The ETS may apply to any setting where healthcare services or healthcare support services are provided and there is some reasonable expectation that persons with COVID-19 may be present. For purposes of this standard, “healthcare services” generally means services that are provided to individuals by professional healthcare practitioners (e.g., doctors, nurses, emergency medical personnel, oral health professionals) for the purpose of promoting, maintaining, monitoring, or restoring health. “Healthcare support services” means services that facilitate the provision of healthcare services, such as patient intake/ admission, patient food services, equipment and facility maintenance, housekeeping services, healthcare laundry services, medical waste handling services, and medical equipment cleaning/reprocessing services.

The ETS does NOT apply in the following workplace settings:

1. Non-hospital outpatient care settings where ALL non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter (such as clinics, surgical centers, and urgent cares).
2. Well-defined hospital outpatient care settings and home healthcare settings where ALL employees are fully vaccinated; ALL non-employees are screened prior to entry; and people with suspected or confirmed COVID-19 are not permitted to enter. Note: if an employee is not vaccinated due to medical reasons or other protected class status, AND reasonable accommodations are provided to protect such employee from the spread of COVID-19, such employee will be deemed vaccinated for application of this exception.
3. Home healthcare settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID–19 are not present. Note: if an employee is not vaccinated due to medical reasons or other protected class status, AND reasonable accommodations are provided to protect such employee from the spread of COVID-19, such employee will be deemed vaccinated for application of this exception.

It is important to note that if the ETS applies to any portion of your workplace, those portions are required to comply.  

The ETS also does not apply to (i) the provision of first aid by an employee who is not a licensed healthcare professional, (ii) the dispensing of prescriptions in a retail establishment, (iii) healthcare support services not performed in a healthcare setting (i.e., offsite billing services, etc.), or (iv) telehealth services where no direct patient contact occurs.

What do we need to do to comply?

Workplaces subject to the ETS should complete and maintain the following:

1. Update your written COVID-19 plan. The plan should designate a safety coordinator to ensure compliance with policies and procedures implemented to minimize the risk of transmission of COVID-19. The plan should include, at a minimum:

• the input of non-managerial employees in a workplace COVID -19 hazard assessment;
• procedures for promptly notifying the employer of suspected or confirmed COVID-19 tests and/or the presence of symptoms;
• procedures for removal from the workplace of employees who have tested positive;
• a log of all COVID-19 positive tests and COVID-19 related incidents; and
• procedures for reporting of all COVID-19 related fatalities or in-patient hospitalizations to OSHA.

Employers must train employees on the updated COVID-19 plan. Training needs to be completed by July 21, 2021.

1. Provide paid leave for employees removed from the workplace due to suspected or confirmed COVID-19. If an employee is removed from the workplace, and cannot work remotely, employers with 10+ employees must grant paid leave at the employee’s regular pay up to $1400/week. Employers with 500+ employees must pay full pay up to $1400/ week until the employee can return to work. Employers with less than 500 employees may reduce pay to two-thirds regular pay up to $200/day beginning in the third week of an employee’s removal. This obligation is reduced by compensation the employee receives through paid sick leave or administrative leave policies already in place. Note: these payments may also be recovered by the employer through payroll tax credits under the American Rescue Plan.
2. Provide paid leave for vaccinations and Vaccine side effects. This obligation may be carried out through any paid sick leave or administrative leave policies already in place.
3. Limit and monitor points of entry. The only available entries to the workplace should be where patient care is directly provided. All non-employees and patients should be screened.
4. Conduct daily health screenings of employees.
5. Ensure proper ventilation. Employer-controlled HVAC systems must be in accordance with manufacturer’s instructions and air filters must be Minimum Efficiency Reporting Value 13 or higher.
6. Provide employees with facemasks, keep people physically distanced at least six (6) feet apart when indoors (including vehicles), and place physical barriers between employees when 6-foot distance cannot be maintained. Note: the requirements of this paragraph 7 do not apply in well defined areas of the business where ALL employees are vaccinated and there is no reasonable expectation that a person with suspected or confirmed COVID-19 will be present.
7. Provide respirators and other personal protective equipment (PPE) for exposed employees. When employees will be exposed to people with suspected or confirmed COVID-19 or will be participating in aerosol-generating procedures, the employer shall provide respirators and PPE such as gloves, isolation gowns, and eye protection.
8. Limit employees present for aerosol-generating procedures to only those essential.

Employers should also comply with all CDC guidance, especially pertaining to transmission-based precautions and cleaning and disinfecting practices.

At no cost to them, employees should be informed of their rights under the ETS. In no situation is it permissible to discharge or discriminate against an employee who exercises these rights.

The hope is to provide consistency in all states for healthcare employees. The ETS reminds healthcare workers facing COVID-19 in the workplace that healthcare workers still need protection even as COVID-19 recovery continues throughout the United States. If you have any questions about the OSHA ETS, please contact any member of the Koley Jessen Health Law Practice.