Public health and worker safety agencies have issued and re-issued directions to employers for coping with the evolving COVID-19 pandemic. Most of these directives have been non-binding recommendations, although the Occupational Safety and Health Administration (OSHA) and state OSH agencies have reminded employers that their “General Duty Clause(s)” requires protective responses to recognized hazards. (most recently, in June OSHA revised its generally-applicable guidelines “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”; I wrote about these HERE). Several states have taken the additional step and issued COVID regulations, beginning with Virginia in July 2020 (I wrote about it HERE).
Now, OSHA has issued a “COVID-19 Emergency Temporary Standard” (ETS) providing requirements for employers in covered “healthcare services or healthcare support services” (29 CFR 1910.502 – 1910.509). The ETS became effective on June 21, 2021, with compliance deadlines on July 6 and July 21. Although described as “temporary”, OSHA has not set an expiration date. The remainder of this note summarizes ETS requirements.
Which types of workplaces are covered?
The ETS applies to settings wherever employees provide “healthcare services or healthcare support services,” except for specified exclusions. The key terms are defined as follows:
Healthcare services mean 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 services are delivered through various means including: Hospitalization, long-term care, ambulatory care, home health and hospice care, emergency medical response, and patient transport. For the purposes of this section, healthcare services include autopsies.
Healthcare support services mean services that facilitate the provision of healthcare services. Healthcare support services include 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
However, the following activities are excluded from these definitions and the ETS’ requirements:
– First aid by an employee who is not a licensed healthcare provider
– Pharmacists dispensing prescriptions in retail settings
– Non-hospital ambulatory care settings (i.e., outpatient care) 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 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
– Healthcare support services not performed in a healthcare setting (e.g., off-site laundry or medical billing)
– Telehealth services performed outside of a setting where direct patient care occurs
What does the ETS require?
The ETS establishes extensive compliance requirements for employers with covered workplaces:
- COVID-19 plan: Employers must develop and implement a COVID-19 plan (in writing if more than 10 employees) with
a designated safety coordinator with authority to ensure compliance
a workplace-specific COVID-19 hazard assessment
involvement of non-managerial employees in hazard assessment and plan development/implementation, and
policies and procedures to minimize the risk of transmission of COVID-19 to employees.
Patient screening and management that limits and monitors access, screens and triages all non-employees who enter the workplace, and implements applicable patient management strategies following the Centers for Disease control and Prevention (CDC) recommendations for healthcare (“Interim Infection Prevention and Control Recommendations for Healthcare Personnel During the Coronavirus Disease 2019 (COVID-19) Pandemic”)
Patient isolation procedures (standard and transmission-based precautions) following CDC guidelines
Personal protection equipment (PPE) including facemasks, plus respirators and other relevant PPE when working with patients known or suspected to have COVID-19 or when conducting aerosol-generating procedures (these may require a “Mini Respiratory Protection Program” meeting ETS requirements0
Physical distancing (at least 6 feet unless infeasible)
Physical barriers to maintain appropriate separations
Cleaning and disinfection, enhanced as appropriate
Screening and medical management, including health screening, employee-employer and employer-employee notification of illness and symptoms, and medical removals of infected employees, and procedures for post-infection return to work
Vaccination – “The employer must support COVID–19 vaccination for each employee by providing reasonable time and paid leave (e.g., paid sick leave, administrative leave) to each employee for vaccination and any side effects experienced following vaccination”
Training, covering COVID-19 and the employer’s plan, policies and procedures
Anti-retaliation protections for employees
No cost to employees for all these measures
Reporting work-related COVID-19 fatalities and hospitalizations (following generally-applicable employer responsibilities)
The ETS also lists governmental and professional guidance incorporated by reference. It also provides “severability” under which a determination that one or more provisions is unenforceable does not affect the enforceability of other provisions.
Employers with healthcare activities must determine whether the ETS applies, and comply with applicable provisions. Because the ETS was issued on an emergency basis, OSHA’s regulatory proceeding will take written comments until August 20, 2021. OSHA has issued extensive inspection Procedures covering the ETS. Readers should note that there is no set expiration for this “temporary” standard, and that OSHA may revise it as appropriate.
Do the organization’s activities include “healthcare services” or “healthcare support services”, as defined by OSHA in the ETS?
Has the organization implemented plans, policies and/or procedures consistent with ETS requirements?
Where do I go for more information?
Information available via the Internet includes:
About the Author
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California’s Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: firstname.lastname@example.org