This time last year, many health care providers were scrambling to comply with OSHA’s (the Occupational Safety and Health Administration) Healthcare Emergency Temporary Standard (Healthcare ETS). Designed to respond to the grave danger that COVID-19 posed to healthcare workers, the Healthcare ETS required healthcare employers, including health centers, to take specific steps to protect workers. Below is a summary of the major requirements of the Healthcare ETS, a description of the requirements still in effect and an update on OSHA’s push to implement a Final Standard applicable to healthcare employers.

Compliance Requirements under the Healthcare ETS

According to OSHA, the Healthcare ETS was designed to protect those healthcare workers most likely to have contact with someone with COVID-19. The requirements on healthcare employers were far-reaching and included:

• Developing and implementing a COVID-19 plan for each workplace that:
  • Addressed hazards identified through required workplace-specific hazard assessments
  • Designated a workplace COVID-19 safety coordinator(s)
  • Included policies and procedures to minimize risk of transmission of COVID-19 and to implement the Healthcare ETS

• Requirements for settings providing direct patient care^[1], including:
  • Limiting and monitoring points of entry
  • Screening and triaging all patients and visitors
  • Cleaning and disinfection

• Requirements to protect employees, including:
  • Providing and ensuring employees wore required Personal Protective Equipment (PPE) (respirators for employees exposed to persons with suspected or confirmed COVID-19; facemasks for employees in covered workplaces; and respirators and other PPE for employees performing aerosol-generating procedures on a person with suspected or confirmed COVID-19)
  • Ensuring physical distancing or installing physical barriers^[2]
  • Improving ventilation
  • Screening employees and requiring employees to report COVID-19 diagnosis or symptoms
  • Notifying employees of COVID-19 exposure in the workplace, unless the employee was wearing a respirator and any other required PPE
  • Removing employee and providing medical removal protection benefits if an employee tested positive for COVID-19, experienced symptoms or was exposed to COVID-19 in the workplace, unless an exemption applies
  • Providing reasonable time and paid leave for vaccination and any side effects experienced following vaccination
  • Training on COVID-19 and on employer-specific policies and procedures, including patient screening and management, preventing the spread of COVID-19, PPE requirements, cleaning and disinfection, health screening and medical management, leave and benefits, and the COVID-19 plan

• Adopting additional record-keeping and reporting requirements, including:
  • Establishing and maintaining a COVID-19 log to record information about employees with COVID-19 (regardless of whether exposure was at work)
  • Reporting to OSHA work-related COVID-19 fatalities and in-patient hospitalizations

Announced on June 10, 2021, and published in the Federal Register on June 21, 2021, the Healthcare ETS required health care providers to comply with the majority of the requirements under Healthcare ETS by July 6, 2021. Compliance with the provisions related to physical barriers, building ventilation, training and mini-respiratory-protection provisions was required by July 21, 2021.

The tight compliance deadlines and numerous compliance requirements caught many healthcare employers off-guard. After doing their best to protect employees and patients throughout the COVID public health emergency, the Healthcare ETS created a new round of compliance challenges for healthcare employers. OSHA stated that it would use its enforcement discretion “where an employer can show it has made good-faith efforts to comply with the requirements of the standard.”

OSHA Withdraws Most, But Not All, Provisions of the Healthcare ETS

The Occupational Safety and Health Act (OSH Act) provides the authority for OSHA to issue an ETS upon a determination that employees are exposed to grave danger from a new hazard and an emergency standard is necessary to protect employees from such danger. Upon publishing an ETS in the Federal Register, OSHA is to begin its full rulemaking process and promulgate a permanent standard within six months.

On December 27, 2021, OSHA announced the withdrawal of the Healthcare ETS, except for the record-keeping and reporting requirements (adopted under a separate provision of the OSH Act).  The remaining provisions require healthcare employers to:

• Establish and maintain a COVID-19 log to record information about employees with COVID-19 (regardless of whether exposure was at work). The information to be recorded includes the employee’s name, contact information, occupation, location where employee worked, date of employee’s last day at the workplace, date of positive test for or diagnosis of COVID-19, and date employee first had COVID-19 symptoms, if any. Information in COVID-19 log must be recorded within 24 hours of the employer learning the employee is COVID-19 positive and maintained as though it is a confidential medical record. Employers must disclose the COVID-19 log as follows:
  • A summary of information from the COVID-19 log to any employee, their personal representative or their authorized representative;
  • Information about a particular employee from the COVID-19 log to that employee or their authorized representative; and
  • The entire COVID-19 log to OSHA.

• Report to OSHA work-related COVID-19 fatalities within 8 hours of learning about the fatality and COVID-19 in-patient hospitalizations within 24 hours of learning about the in-patient hospitalization. In determining whether an injury or illness is work-related, employers must consider whether an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a preexisting injury or illness.

In announcing the withdrawal of the Healthcare ETS, OSHA made clear its intent to “work expeditiously to issue a final standard that will protect healthcare workers from COVID-19 hazards.”  OSHA reminded healthcare employers of their obligations to comply with other OSHA-related requirements, including the General Duty Clause of the OSH Act which requires employers to provide a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees and to comply with applicable standards, including those related to PPE and the Respiratory Protection Standards. OSHA stated that employers who continue to comply with the Healthcare ETS will satisfy their obligations under the General Duty Clause.

What’s Next for Healthcare Employers

On March 22, 2022, OSHA announced it was reopening the rulemaking record on specific topics related to a final standard to protect healthcare and healthcare support service workers from workplace exposure to COVID-19. OSHA requested comments and data on many of the provisions in the ETS, including:

• Aligning the final rule with some or all of the CDC recommendations for healthcare infection control practices
• Providing flexibility for employers by eliminating specific implementation requirements and replacing them with broader requirements and a “safe harbor” for employers who comply with CDC guidelines
• Expanding the application of the final standard to cover all healthcare employers, regardless of screening procedures for non-employees and/or vaccination status of employees
• Restricting infection control requirements to specific areas or to employees likely to interact with people with suspected or confirmed COVID-19, including an “outbreak provision” requiring healthcare employers to respond to an outbreak among staff normally subject to fewer requirements
• Supporting vaccination for employees and permitting flexibilities for vaccinated employees
• Requiring employers that engage in construction work in covered healthcare facilities to comply with the final standard
• Adjusting the retention period for the COVID-19 log to one year from the date of the last entry on the log
• Applying the final standard to COVID-19 as well as subsequent related strains of the virus that are transmitted through aerosols and pose similar risks and health effects.

Comments were due by April 22, 2022. OSHA held a public hearing on April 27, 2022.

Conclusion

Until a final standard is issued, healthcare employers must continue to comply with the record-keeping provisions of the Healthcare ETS and to meet their obligations under the General Duty Clause of the OSH Act. Healthcare providers should also:

• Respond promptly and thoroughly to employee concerns about workplace safety
• Ensure compliance with other requirements for healthcare employers, such as the CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule on Vaccination and applicable state/local laws and regulations on PPE
• Document federal, state and other guidance relied upon in creating policies and procedures and responding to COVID-19

For more information on OSHA’s Healthcare ETS and on-going compliance requirements, please contact Dianne K. Pledgie. A recording of FTLF’s two-part webinar series on the Healthcare ETS is available for purchase here.

^[1] The Healthcare ETS exempted healthcare providers who screened out patients with COVID-19.

^[2] The Healthcare ETS exempted fully vaccinated employees from masking, distancing and barrier requirements when in well-defined areas where there was no reasonable expectation that any person present would have suspected or confirmed coronavirus.