Healthcare industry’s full compliance now required for OSHA’s emergency temporary standards

McAfee & Taft

McAfee & Taft

The Occupational Safety and Health Administration’s COVID-19 Emergency Temporary Standards (ETS) became effective on June 21, 2021. Compliance with most of the provisions was required by July 6, 2021. The last of those provisions – those pertaining to training, ventilation, and barriers – weren’t required until just recently on July 21, 2021. The ETS establishes new requirements to protect healthcare and healthcare support workers across the nation from COVID-19. With some exceptions, the Healthcare ETS applies to all settings where any employee provides healthcare services or healthcare support services.

Who is covered?

The ETS covers healthcare services and healthcare support services:

  • Healthcare services are 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 (e.g., treatment in physicians’ offices, dentists’ offices, medical clinics), home health and hospice care, emergency medical response, and patient transport. Healthcare services also include autopsies.
  • Healthcare support services are services that facilitate the provision of healthcare services and include patient intake/admittance, patient food services, equipment and facility maintenance, housekeeping services, healthcare laundry services, medical waste handling services, and medical equipment cleaning/reprocessing services.

Who is not covered?

The ETS does not apply to the following tasks and locations:

  1. the provision of first aid by an employee who is not a licensed healthcare provider;
  2. the dispensing of prescriptions by pharmacists in retail settings;
  3. non-hospital ambulatory care settings where all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings;
  4. well-defined hospital ambulatory care settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings;
  5. home healthcare settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not present;
  6. healthcare support services not performed in a healthcare setting where direct patient care occurs (e.g., off-site laundry, off-site medical billing); or
  7. telehealth services performed outside of a setting where direct patient care occurs.

What is required?

The ETS includes numerous requirements for healthcare services settings. The following is a non-exhaustive list:

  • COVID-19 plan
    Healthcare services must develop and implement a COVID–19 plan for each workplace. If the employer has multiple workplaces that are substantially similar, its COVID–19 plan may be developed by workplace type rather than by individual workplace so long as all required site-specific information is included in the plan. If the employer has more than 10 employees, the COVID–19 plan must be written. In order for an employer to be exempt from providing certain controls in a well-defined based on employees’ fully vaccinated status, the COVID–19 plan must include policies and procedures to determine employees’ vaccination status.
  • Designated safety coordinators
    The employer must designate one or more workplace COVID–19 safety coordinators to implement and monitor the COVID–19 plan. The COVID–19 safety coordinator(s) must be knowledgeable in infection control principles and practices as they apply to the workplace and employee job operations. The identity of the safety coordinator(s) must be documented in any written COVID–19 plan. The safety coordinator(s) must have the authority to ensure compliance with all aspects of the COVID–19 plan.
  • Hazard assessment
    The employer must conduct a workplace-specific hazard assessment to identify potential workplace hazards related to COVID–19. The employer must seek the input and involvement of non-managerial employees and their representatives, if any, in the hazard assessment and the development and implementation of the COVID–19 plan.
  • Personal protective equipment – face masks
    The employer must ensure a face mask is worn by each employee over the nose and mouth when indoors and when occupying a vehicle with other people for work purposes. The employer must provide a sufficient number of face masks to each employee to comply with this requirement and must ensure that each employee changes them at least once per day, whenever they are soiled or damaged, and more frequently as necessary (e.g., patient care reasons). There are exceptions to when a face mask is required.

What is required by July 21, 2021?

Full compliance with the ETS, including implementation of the ETS’s training, ventilation, and barriers provisions, was required as of July 21, 2021.

  • Training
    The employer must ensure that each employee receives training, in a language and at a literacy level the employee understands, so that the employee comprehends at least the following:
    • COVID–19, including how the disease is transmitted (including pre-symptomatic and asymptomatic transmission), the importance of hand hygiene to reduce the risk of spreading COVID–19 infections, ways to reduce the risk of spreading COVID–19 through the proper covering of the nose and mouth, the signs and symptoms of the disease, risk factors for severe illness, and when to seek medical attention;
    • employer-specific policies and procedures on patient screening and management;
    • tasks and situations in the workplace that could result in COVID–19 infection;
    • workplace-specific policies and procedures to prevent the spread of COVID–19 that are applicable to the employee’s duties;
    • employer-specific policies and procedures for PPE;
    • workplace-specific policies and procedures for cleaning and disinfection;
    • employer-specific policies and procedures on health screening and medical management; and
    • available sick leave policies, any COVID–19-related benefits; the identity of the safety coordinator(s).

Additional training is also required under certain circumstances.

  • Ventilation
    Covered employers who own or control buildings or structures with an existing HVAC system must ensure the system is used in accordance with the manufacturer’s instructions and design specifications, all air filters are maintained and replaced as necessary to ensure the proper function and performance of the HVAC system(s), and that other aspects of the system are cleaned, maintained, and functioning appropriately.
  • Physical Barriers
    At each fixed work location outside of direct patient care areas (e.g., entryway/lobby, check-in desks, triage, hospital pharmacy windows, bill payment) where each employee is not separated from all other people by at least six feet of distance, the employer must install cleanable or disposable solid barriers, except where the employer can demonstrate it is not feasible. The barrier must be sized (e.g., height and width) and located to block face-to-face pathways between individuals based on where each person would normally stand or sit. The barrier may have a pass-through space at the bottom for objects and merchandise. Physical barriers are not required in direct patient care areas or resident rooms.

OSHA is ready to enforce the ETS

OSHA has already issued its Inspection Procedures for the COVID-19 Emergency Temporary Standard, meaning written direction is available for area offices and compliance safety and health officers for enforcing the COVID-19 ETS. Therefore, covered employers should ensure they are in full compliance with the ETS immediately. As a reminder, the ETS specifically prohibits retaliatory conduct.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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