Today marks the compliance deadline for healthcare employers covered by Occupational Safety and Health Administration (OSHA)’s Occupational Exposure to COVID-19: Emergency Temporary Standard (ETS). Released publicly less than six weeks ago, the ETS requires covered healthcare employers to implement a multi-layered approach to controlling exposure to COVID-19 in the workplace, including patient and employee screening and management, providing personal protective equipment (PPE), implementing physical distancing and barriers, and supporting vaccination by providing reasonable time and paid leave. While several of these requirements will be familiar to health centers, there is still a substantial amount of work to be done to comply with the ETS.

Background

Pursuant to the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. With this in mind, in January 2021, President Biden issued an Executive Order on “Protecting Worker Health and Safety,” which directed the Department of Labor to require covered healthcare employers to protect their employees from COVID-19 related hazards. On June 10, 2021, the U.S. Department of Labor’s OSHA issued an emergency temporary standard (ETS) to protect healthcare workers from COVID-19 related hazard. The ETS was published in the Federal Register on June 21, 2021, starting the compliance clock for covered healthcare employers.

Applicability

The ETS establishes requirements to protect healthcare workers – especially those whose job functions require them to be in contact with individuals with suspected or confirmed cases of coronavirus – from becoming infected with the virus. Covered healthcare employers include hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and, importantly, ambulatory care settings where suspected and confirmed coronavirus patients are treated, including settings like health centers. Health centers, as ambulatory care settings, are covered by the ETS. [1] In certain well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present, the requirements for PPE, physical distancing and physical barriers do not apply to employees who are fully vaccinated.

Requirements

The ETS requires covered healthcare employers to create a COVID-19 plan to protect workers against COVID-19 hazards in the workplace and comply with other specifically enumerated requirements to reduce the likelihood of COVID-19 spreading in the workplace. In addition, the ETS makes paid leave available for workers who need time off to get vaccinated and sick leave for workers who have side effects from vaccination. The key components for compliance include the development and implementation of safeguards related to the following:

• COVID-19 plan
• Patient screening and management
• Standard and Transmission-Based Precautions
• Personal protective equipment (PPE)
• Aerosol-generating procedures on a person with suspected or confirmed COVID-19
• Physical distancing
• Physical barriers
• Cleaning and disinfection
• Ventilation
• Health screening and medical management
• Vaccination
• Training
• Anti-Retaliation
• Requirements must be implemented at no cost to employees
• Recordkeeping
• Reporting work-related COVID-19 fatalities and in-patient hospitalizations to OSHA

As of July 6, 2021, covered healthcare employers were required to comply with the ETS, except for the requirements for physical barriers, ventilation and training. Covered healthcare employers were given an additional 15 days to meet those requirements. If a health center has not met the compliance requirements by these dates, the health center is advised to make a good faith effort to comply with the ETS as OSHA has enforcement discretion in the determination of whether to issue a citation.

The ETS is likely to change based on changing trends in coronavirus transmission and developing coronavirus research. Comments on the ETS, including whether it should become a final rule, are due on August 20, 2021.

Next Steps

OSHA issued several Fact Sheets and FAQs on the ETS, along with sample documents to help covered healthcare employers to implement the ETS (available here). On August 5th, Feldesman Tucker will participate on a panel for the National Association for Community Health Centers (NACHC)’s OSHA’s COVID-19 Emergency Temporary Standard Webinar (registration information available here). On August 11th and 18th, Feldesman Tucker will host a webinar series on the ETS – OSHA’s COVID-19 Emergency Temporary Standard: New Compliance Requirements and Challenges for Health Centers. (registration information available here)

[1] See the OSHA flowchart, “Is your workplace covered by the COVID-19 Healthcare ETS?” to review the applicability of the ETS to your health center.