OSHA Issues COVID-19 Emergency Temporary Standard for Healthcare Employers

Today, June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) issued a new Emergency Temporary Standard that affects most healthcare employers. Many of the standard’s new rules can best be described as new territory for OSHA that will certainly be subject to legal challenges in the days and weeks to come. Despite these expected challenges, diligent healthcare employers should (1) determine whether the new emergency standard applies to them and, if so, (2) identify what steps they must quickly take to ensure OSHA compliance.

Which Employers and Settings Are Covered by the New Standard?

OSHA’s new emergency standard generally applies to all settings where any employees provide healthcare services or healthcare support services. This may include hospitals, nursing homes, assisted living facilities, and more. There are, however, a host of exceptions.

For example, the new standard does not apply to certain hospital ambulatory or out-patient care and home healthcare settings where (1) all employees are fully vaccinated, (2) the employer screens all non-employees for COVID-19 prior to entry, and (3) people with suspected or confirmed COVID-19 are not present. If an employee cannot be vaccinated due to a medical condition or a religious belief, observance or practice, then an employer may still meet this exception if it reasonably accommodates the non-vaccinated employee in a manner that does not expose the employee to COVID-19 hazards (e.g., telework, working in isolation).

Likewise the standards do not apply to:

Settings where employees who are not licensed healthcare providers perform first aid;

Retail settings where pharmacists dispense prescriptions;

Non-hospital ambulatory care settings where the employer screens non-employees for COVID-19 prior to entry and people with suspected or confirmed COVID-19 are not present;

Healthcare support services not performed in a healthcare setting (eg., off-site laundry, off-site medical billing);

Telehealth services performed outside of a setting where employees provide direct patient care;

Non-healthcare settings where a healthcare setting is embedded within (eg., medical clinic in a manufacturing facility, walk-in clinic in a retail setting)—however, the standard will apply to the embedded healthcare setting; and

Non-healthcare settings where emergency responders or other licensed healthcare providers enter to provide healthcare services—the standard only applies to the provision of the healthcare services provided by the licensed employee.

What are the Key Requirements of the New Standard?

The most surprising requirement in the new emergency standard include employer mandates to provide paid leave to employees who are impacted by COVID-19.

Specifically, OSHA requires employers covered by the standard to support COVID-19 vaccination for each employee by providing reasonable time and paid leave (e.g., paid sick leave, administrative leave for (1) the vaccination itself, and (2) any side effects experienced following the vaccination.

Additionally, OSHA now requires employers to follow a strict procedure for removing employees who either have COVID-19, are told by a licensed health provider that they are suspected to have COVID-19, or were in close contact with COVID-19 positive individuals in the workplace.

During the removal period, OSHA requires all employers covered by the standard with 11 or more employees to pay removed employees their standard benefits and normal rate of pay, up to $1,400 per week, for two weeks. Beginning the third week, employers with 500 or more employees must continue providing these payments and benefits until the employee meets specified return to work requirements. For employers with 11 to 499 employees, beginning the third week they are required to pay two-thirds of an employee’s regular pay, up to $200 per day.

Other important takeaways include employer requirements to:

Develop and implement a workplace-specific hazard assessment and a COVID-19 plan for each workplace (written format if 11 or more employees);

Designate workplace safety coordinator(s) that can implement, monitor, and ensure compliance with the COVID-19 plan;

Limit and monitor points of entry to settings where direct patient care is provided;

Screen and triage patients, clients, residents, delivery people and other visitors and non-employees entering the setting for symptoms of COVID-19;

Provide and ensure employees wear facemasks when indoors or when occupying a vehicle with other people for work purposes;

Allow voluntary use of respirators instead of facemasks under the new “mini respiratory protection program” provided in 29 CFR § 1910.504;

Limit employee exposure to suspected or confirmed COVID-19 individuals to essential employees and perform procedures in an airborne infection isolation room, if available;

Ensure employees are separated from all other people by at least six feet when indoors;

Install solid barriers in non-patient care areas where each employee is not separated from other people by at least six feet;

Screen each employee before each work day and shift (which can include asking employees to self-monitor);

Provide employer-required testing at no cost to the employee;

Require employees to promptly notify the employer when the employee is COVID-19 positive, suspected of having COVID-19, or is experiencing certain symptoms;

Ensure that employer-owned HVAC systems are used in accordance with the manufacturer’s instructions and the design specifications of the system, and also ensure that air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher if the system allows it; and

Implement continuing training programs with specific requirements that allow employees to comprehend disease transmission, tasks, and situations in the workplace that could result in COVID-19 infection, as well as relevant—and changing—policies and procedures.

This list is not all-encompassing, nor does each item listed above include each specific and extensive set of requirements that most healthcare employers must now follow.

Impacted employers should contemplate whether their current plans, procedures, and workplace settings already comply with these new standards and which require quick amendment to ensure compliance within the 14 to 30 day grace periods. In any event, it is wise for employers to involve their safety and health, environmental, human resources, legal, and compliance teams in making these decisions to avoid needless consequences.