OSHA Issues COVID Emergency Temporary Standard For Healthcare and Revised Guidance for All Industries

OSHA has issued an Emergency Temporary Standard (ETS) to protect healthcare and healthcare support service workers from exposure to variants of the SARS CoV-2 virus that causes COVID-19. The Federal Register published the ETS on June 21, 2021 and it became effective on the same date. This ETS comes shortly after OSHA also updated its COVID-19 guidance for all industries earlier this month.

In what follows, we’ll review that background leading to this ETS, an overview of the provisions included, and discuss the main takeaways for the healthcare industry and all other industries.

Background

By early 2021, several states with federally approved state OSHA plans including Michigan, Oregon and California, had issued temporary standards to protect the workforce from exposure to the SARS CoV-2 virus that causes COVID-19. Many stakeholders requested that federal OSHA take additional actions to protect workers from COVID-19, and as a presidential candidate, Biden had promised to prompt OSHA to assess the need for new COVID-19 safety measures. When the new administration entered office on January 20, 2021, anticipation increased that early executive orders would direct OSHA to reconsider the issue.

Those expectations proved to be true, as President Biden issued An Executive Order on Protecting Worker Health and Safety on January 21, one day after his inauguration. The EO mandated that the Department of Labor issue “revised guidance to employers on workplace safety during the COVID-19 pandemic” and consider whether emergency temporary workplace standards are necessary, including wearing masks in the workplace.

OSHA’s Healthcare ETS

OSHA filed its COVID-19 Healthcare ETS with the office of the Federal Register on June 17, 2021 and the Federal Register published it on June 21, 2021. It went into effect immediately upon publication.

The text of the ETS, which can be found in 29 CFR 1910 Subpart U, sets out requirements to protect healthcare and healthcare support service workers from occupational exposure to COVID-19 in settings where people who have COVID-19 can “reasonably be expected to be present.”

One of the most important provisions, discussed at length within the ETS, is a requirement for healthcare employers to develop and maintain an effective COVID-19 plan, which must be in writing for those employers who have more than 10 employees. The plan must establish a designated safety coordinator with authority to ensure compliance, and requires employers to conduct a workplace-specific hazard assessment. The ETS specifically requires that “non-managerial employees” be involved in the hazard assessment and plan development, and requires inclusion of specific plans and procedures to minimize risk of COVID-19 transmission to employees.

A sampling of other requirements within the ETS includes:

Patient Screening and Management: : The ETS requires healthcare employers to limit and monitor points of entry to settings where direct patient care is provided. Employers must also screen and triage patients, clients, and other visitors and non-employees, and implement patient management strategies.

Personal Protective Equipment (PPE): Employers must provide employees with facemasks and ensure they wear them when indoors and when occupying a vehicle with other people for work purposes. They must also provide employees with respirators and ensure they use them and other PPE when exposed to people with suspected or confirmed COVID-19, and when conducting aerosol-generating procedures on a person with suspected or confirmed COVID-19.

Cleaning and Disinfection: The ETS requires employers in healthcare facilities to follow standard practices in accordance with CDC guidelines for cleaning and disinfection of surfaces and equipment in patient care areas, resident rooms, and for medical devices and equipment. In all other areas, employers must clean high-touch surfaces and equipment at least once a day, and provide alcohol-based hand rub (at least 60% alcohol) or provide readily accessible handwashing facilities.

Vaccinations: Employers must provide reasonable time and paid leave for employees to receive vaccinations, and recover from vaccine side effects.

Physical Barriers: Employers must install cleanable or disposable solid barriers at each fixed work location in non-patient care areas, if employees in those areas are not separated from other people by at least 6 feet.

Ventilation: Employers must ensure that existing HVAC systems they own or operate are used in accordance with manufacturer’s instructions and design specifications for the systems, and that air filters are rated a Minimum Efficiency Reporting Value (MERV) 13 or higher if the system allows it.

Training: Employers must train all employees so they comprehend COVID-19 transmission, tasks and situations in the workplace that could result in infection, and relevant policies and procedures.

Employers must comply with most provisions of the ETS within 14 days of the Federal Register publication date, but they have 30 days to comply with provisions for physical barriers, ventilation and training. According to the ETS, OSHA will use its enforcement discretion for employers they determine to be making a “good faith effort” to comply with the provisions of the ETS.

Updated COVID-19 Guidance for All Industries

Earlier this month, OSHA also updated their COVID-19 workplace guidance for all industries.

OSHA had last updated its COVID guidance on January 29, 2021, in response to the same Biden administration EO mandating evaluation of the need for an ETS. The guidance issued at that time had stated, among other things, OSHA’s expectations that employers should provide their workers with COVID-19 vaccinations at no cost, provide their workers with face coverings unless their work requires the use of a respirator, and implement a COVID-19 Prevention Program containing provisions for conducting hazard assessments and identifying measures, limit the spread of COVID-19, and protect workers who raise COVID-19 related concerns from retaliation.

The newly updated guidance issued on June 10, 2021 retains the overall focus of the earlier guidance, while adding:

• A focus on protections of unvaccinated and otherwise at-risk workers
• Recommendations to encourage COVID-19 vaccinations, including time-off
• Links to guidance with the most up-to-date content

The introduction to the guidance document states that OSHA will continue to “update this guidance over time to reflect developments in science, best practices, and standards.”

What are the Key Take-Aways?

It’s been a busy year so far for OSHA actions on COVID-19. As we’ve previously blogged about, OSHA issued a National Emphasis Program (NEP) that became active immediately upon its publication on March 12, and industry targeting per the NEP began on March 26, 2021. Because some of the industries included in the NEP include healthcare sectors such as 622110 (General Medical and Surgical Hospital) and 621610 (Home Health Care Services), the combination of the NEP and new ETS place these sectors under new and more focused scrutiny.

Additionally, each revision of OSHA’s COVID-19 guidance for all industries seems to add more expectations for employers to protect workers from exposure to COVID-19. While the introduction of the guidance clearly indicates that the included recommendations are “advisory in nature and informational in content,” it also states that they are “intended to assist employers in providing a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.” The language in that sentence closely mirrors the language in OSHA’s general duty clause, which is suggestive that OSHA would view employers as meeting their obligations under that clause if they follow the recommendations within the guidance.

Given the activity level we’ve seen so far from OSHA, and the issuance of a specific ETS for the healthcare industry, it seems likely that additional guidance or regulatory actions from OSHA on COVID-19 may be forthcoming. Whatever industry we’re in, we’ll need to make sure we’re addressing COVID-19 safety in the workplace, while also not losing site of our other important safety management tasks.

Now more than ever, employers need to take an active stance toward EHS management that breaks the cycle of chasing regulatory compliance and takes a broader safety management approach based on recognition and control of risks. Employers using that kind of approach will have the agility they need to adapt as new challenges and new regulatory requirements develop.

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