OSHA surprises: COVID-19 ETS applies only to healthcare sector, including support services; updates guidance for all employers not covered by ETS
Part One: Is your workplace covered by the ETS?
On June 21, the long-awaited COVID-19 Emergency Temporary Standard (ETS) went into effect. While it was expected that the ETS would apply to all industries, it is only applicable to the healthcare sector as the vaccine rollout, declining case numbers and deaths, and new CDC guidance lessened the need for a broad ETS.
What is covered?
The ETS applies to all settings where any employee provides healthcare services or healthcare support services, although there are several exceptions. "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 purposes of this section, healthcare services include autopsies."
"Healthcare support services" mean "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."
Affected workplaces can include hospitals, nursing homes, long-term care facilities, emergency responders, home health care workers, other patient care (e.g., Chiropractors, Dentists, Optometrists, Podiatrists, Family Planning Centers), placement agencies for healthcare services, ambulance service, urgent care facilities, sports medicine clinics, and clinics in prisons and workplaces.
Exceptions
However, several exceptions are indicated in paragraph (a) of the standard. Among others, these include:
- Non-hospital ambulatory care settings where services are performed on an outpatient basis and all non-employees are screened before entry, and people with suspected or confirmed COVID-19 are not permitted to enter. An example would be a dentist or podiatrist office in its own building or suite.
- Well-defined (separate entrance) hospital ambulatory care settings where care is performed on an outpatient basis, all employees are fully vaccinated, all non-employees are screened before entry, and people with suspected or confirmed COVID-19 are not permitted to enter those settings.
- Home healthcare settings where all employees are fully vaccinated, all non-employees are screened before entry, and people with suspected or confirmed COVID-19 are not present. Employers will need to screen patients and any other non-employees who will be present before the employee enters that setting to meet this exemption.
- Well-defined areas (in any setting) where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present. In this case, the ETS requirements for personal protective equipment (PPE), physical distancing, and physical barriers do not apply to employees who are fully vaccinated. However, for an employer to be exempt from providing such controls, the COVID-19 plan must include policies and procedures to determine employees' vaccination status. OSHA seems flexible on how to do this and presents several possibilities on p. 32565 of the Federal Register/ Vol. 86, No. 116 / Monday, June 21, 2021.
- Where a healthcare setting is embedded within a non-healthcare setting (e.g., medical clinic in a manufacturing facility, walk-in clinic in a retail setting), the ETS applies only to the embedded healthcare setting and not to the remainder of the physical location.
- The dispensing of prescriptions by pharmacists in retail settings. However, if a pharmacist performs COVID-19 testing or administers vaccinations in the same setting where they dispense prescriptions, OSHA will consider that setting to be a healthcare setting subject to the ETS.
- The provision of first aid by an employee who is not a licensed healthcare provider.
- When emergency responders or other licensed providers enter a non-healthcare setting to provide emergency care, the ETS applies only to the provision of the healthcare services.
- Telehealth services where no direct patient care occurs.
This chart provides additional details for determining whether an employer's workplace is covered by the ETS.
Key elements
Under the ETS, employers must:
- Conduct a workplace-specific hazard assessment to identify potential hazards related to COVID-19.
- Develop and implement a COVID-19 plan (if more than 10 employees, must be written) for each workspace; same plan can be used if multiple worksites are similar.
- Solicit the involvement of non-managerial employees (or their representative, such as a union) in conducting the hazard assessment and in developing the COVID-19 plan.
- Designate at least one COVID-19 safety coordinator.
- Have a policy for verifying worker vaccination status.
- Provide PPE, impose social-distancing requirements, install physical barriers, clean and disinfect, ensure that existing HVAC systems are working properly (or install new ones).
- Screen each employee before each shift. Requirements are less stringent than previous. All that is required is asking questions (can be in advance electronically) to determine whether a person is COVID-19 positive or has any of the COVID-19 symptoms. It appears self-monitoring is also possible.
- Implement patient screening and management.
- Standard and transmission-based precautions per CDC's Guidelines for Isolation Precautions.
- Follow respiratory protection program requirements.
- Follow requirements for the new Mini-Respiratory Protection Program (MRPP) for when a respirator is not required but is provided by an employer instead of a face mask for enhanced worker protection.
- Follow special requirements for aerosol-generating procedures on suspected or confirmed COVID-19 cases.
- Provide reasonable time and paid leave to employees for COVID-19 vaccination and side effects experienced following vaccination. Reimbursement is not required for time off related to side effects if the leave took place before July 5, 2021.
- Employees who contract COVID-19 or may be contagious "must work remotely or otherwise be separated from other workers if possible or be given paid time off up to $1,400 per week."
- Proper training. Employers may rely on trainings that took place before June 21, 2021, if the trainings meet the ETS's basic requirements.
- Follow the "CDC's Isolation Guidance," for a COVID-19 positive person to return to work (see FAQs).
- Recordkeeping -new COVID-19 Tracking Log to include all instances when an employee tested positive, regardless of work-relatedness. Work-related cases must also be included on the 300 Log. Also, all versions of the written COVID-19 Prevention Plan must be maintained. Employers with 10 or fewer employees as of June 21, 2021, are exempt from this requirement.
- After learning of a work-related COVID-19 fatality or hospitalization, report fatalities within 8 hours and hospitalizations within 24 hours to OSHA. Unlike regular reporting requirements, all fatalities, and hospitalizations, regardless how long after the exposure they occur, must be reported.
- Provide retaliation protection.
- Implement all requirements at no cost to employees.
Effective date
Effective June 21, 2021, the standard imposes several new requirements on health care employers that they should carefully follow. Covered employers must comply with most of the requirements by July 6, 2021; however, compliance relating to physical barriers, ventilation systems, and employee trainings is not required until July 21, 2021. The agency will use its enforcement discretion in situations where an employer can demonstrate that it has made good-faith efforts to comply with the ETS by the specified dates, even if the employer has been unable to do so.
For more information
State plans
Four states, California, Michigan, Oregon, and Virginia have enacted COVID-19 standards. State Plan states must enact standards and run programs that are "at least as effective as" OSHA's. As of June 24, only Michigan had taken action to align its emergency rules with the Federal OSHA's ETS, with the updated rules effective June 22 and expiring on Dec. 22, 2021. It also dialed back workplace rules for non-healthcare settings allowing employers to use their best judgments related to health screening, face covering, and social distancing.
On June 17, California revised its ETS to include rules that fully vaccinated employees do not need to be offered testing or excluded from work after close contact unless they have COVID-19 symptoms. They also do not need to wear face coverings except for certain situations during outbreaks and in settings where the state Department of Public Health requires all persons to wear them.
A June 7 press release noted that once Oregon reaches the 70 percent vaccination threshold the state will not require masks and face coverings in almost all settings, with some exceptions following federal guidance, including airports, public transit, and health care settings.
New York State Hero's Act
The New York Health and Essential Rights Act (HERO Act), went into effect on June 4, 2021. This is not solely focused on COVID-19, but addresses all airborne infectious diseases and requires all private employers, of any size, to create a written prevention plan of health and safety standards to protect employees from workplace exposure to airborne infectious diseases.
For the standard, a general model prevention plan, and industry-specific model prevention plans.
As a reminder, healthcare employers must also conform to state and local requirements relating to COVID-19.