United States: OSHA'S Emergency Safety Rule For Healthcare Workers & Updated Guidance For Other Industries
by Gwendolyn W. Lewis (Charlotte)
Lincoln Derr PLLC
On June 10, 2021, the Occupational Safety and Health Administration ("OSHA") announced the long-awaited issuance of a COVID-19 Emergency Temporary Standard (ETS), applicable only to the health care industry. While a specific date has not been set, this standard becomes effective and applicable to the health care industry when it is published in the Federal Register, updated guidance was provided by OSHA for employers not covered by the ETS. Additionally, select provisions apply to vaccinated v. non-vaccinated employees. The ETS does not state how employers should determine their workers' vaccination status - instead leaving that determination to employers through their own policies and procedures.
ETS Application
In OSHA's June 2021 Fact Sheet, it specifically provides that the ETS applies to all settings where any employee provides healthcare services or healthcare support services. Employers subject to the ETS must comply with the following new protections:
COVID 19- Plan:
Develop and implement a written COVID-19 Plan if the employer has more than ten employees (this requirement imposes an obligation on the employer to seek input and involvement of non-managerial employees);
Designate at least one workplace COVID-19 safety coordinator, knowledgeable in infection control principles and practices, with authority to implement, monitor, and ensure compliance with the plan;
Conduct a workplace-specific COVID-19 hazard assessment (this requirement imposes an obligation on the employer to seek input and involvement of non-managerial employees);Where patient care is provided, limit and monitor points of entry.
Patient Screening and Management
Where patient care is provided, limit and monitor points of entry;
Screen and triage patients, clients, residents, delivery personnel, visitors and non-employees entering for symptoms of COVID-19.
Implement Patient Management Strategies
Develop and implement policies and procedures to adhere to Standard and Transmission-Based Precautions in accordance with CDC's "Guidelines for Isolation Precautions".
Personal Protective Equipment ("PPE")
Provide appropriate PPE depending on the circumstances of care and ensure employees use respirators and other PPE for exposure to people with suspected or confirmed COVID-19 and for aerosol-generating procedures on a person with suspected or confirmed COVID-19.
Aerosol-generating Procedures
Implement specific requirements for any aerosol-generating procedures on a person with suspected or confirmed COVID-19;
Limit employees to only those that are essential.
The ETS specifically requires employers to inform employees that they have a right to the protections provided by the ETS and that employers are prohibited from discharging or discriminating against any employee for exercising those rights or engaging in actions required by the standard.
Other ETS Guidance
Limit employees to only those that are essential;
Ensure 6 feet of indoor physical distancing where possible;
Install cleanable or disposable physical barriers when physical distancing is not possible;
Ensure necessary cleaning and disinfection in accordance with CDC guidelines;
Evaluate and ensure proper ventilation in buildings owned or controlled by the employer;
Implement health screening and medical management of each employee prior to each day and shift, including no-cost testing and requirements to report positive tests;
Provide paid leave and reasonable time for vaccination and any side effects;
Train employees on disease transmission in general and situations that result in COVID-19 specifically, the ETS and employer/workplace-specific policies and procedures.
Record Keeping and Reporting:
Establish a COVID-19 log that lists all employees who are diagnosed with COVID-19 without regard for whether they were exposed in the workplace; and
Report to OSHA each work-related COVID-19 fatality within 8 hours of learning about the fatality, and each work-related COVID-19 in-patient hospitalization within 24 hours of learning about the in-patient hospitalization.
ETS Exclusions
In all efforts undertaken to comply with the ETS, employers may not shift any costs associated with compliance to employees. There are important exclusions from the ETS. The ETS does not apply to the following:
Provision of first aid by an employee who is not a licensed health care provider;
Dispensing of prescriptions by pharmacists in retail settings;
Non-hospital ambulatory care settings where all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter;
Well-defined hospital ambulatory care 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 permitted to enter;
Home health care 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;
Health care support services not performed in a health care setting (e.g., off-site laundry, off-site medical billing); or
Telehealth services performed outside of a setting where direct patient care occurs.
Implementation Dates
The ETS is effective when the standard is published in the Federal Register. OSHA has recognized that certain requirements of the ETS may take longer to implement than others, such as:
All provisions except paragraphs (i), (k), (n): 14 days after date of Federal Register publication
Physical barriers (i), Ventilations (k), and Training (n): 30 days after date of Federal Register publication
OSHA has further acknowledged in the standard that it will use its enforcement discretion to avoid citing employers who are making a good faith effort to comply with the ETS.
EMPLOYER GUIDANCE FOR
NON-HEALTHCARE PROVIDERS
On June 10, 2021, OSHA issued a summary of changes to its earlier (January 29, 2021) guidance entitled, "Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace." OSHA's guidance is designed to assist employers and workers not covered by the ETS to identify COVID-19 exposure risks to workers who are unvaccinated (or otherwise at-risk) and to help them take appropriate steps to prevent exposure and infection. At-risk workers may include those who have conditions, such as a prior transplant, as well as prolonged use of corticosteroids or other immune-weakening medications which may affect their ability to have a full immune response to vaccination.
OSHA specifically states "[u]nless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure." OSHA's updated guidance is similar to the requirements of the ETS and recommends employers:
Grant paid time off for employees to get vaccinated;
Have workers who have symptoms or who are infected stay home;
Implement physical distancing;
Provide face coverings for unvaccinated workers or those who are otherwise at-risk;
Educate workers on COVID-19 policies and procedures;
Suggest that unvaccinated customers, visitors or guests wear face coverings;
Maintain ventilation systems;
Perform routine cleanings and disinfection;
Record and report COVID-19 infections and deaths; and
Implement anti-retaliation protections.
Gwendolyn W. Lewis
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