The U.S. Occupational Safety and Health Administration issued its interim final rule on June 10, 2021, addressing occupational exposure to COVID-19 in health care settings (“the rule”).
The rule, which exceeds 900 pages including commentary, takes effect 14 days after it is formally published (except for provisions on physical barriers, ventilation and training, which take place after 30 days).
The rule will apply to employers in settings where any employee provides health care services or health care support services. Health care services include hospitals, nursing homes and assisted living facilities, emergency responders, home healthcare workers and employees in ambulatory care facilities. It will apply not just to facilities whose primary function is providing healthcare, but also to health care facilities embedded in prisons, manufacturing facilities, schools and similar operations.
Health care support services fall under the rule to the extent that they are provided in health care facilities. This includes services such as patient intake/admission, patient food services, equipment and facility maintenance, housekeeping services, health care laundry services, medical waste handling services and medical equipment cleaning services. To the extent that those support services are provided outside of a health care setting (e.g. offsite laundry services or dispensing prescriptions in a retail setting), the rule does not apply.
The rule also exempts:
- non-hospital ambulatory care settings where all non-employees are screened before entry and people with suspected or confirmed COVID-19 are not allowed to enter
- well-defined hospital ambulatory care settings where all employees are fully vaccinated, all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not allowed to enter
- home health care settings where all employees are fully vaccinated, all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not present
- telehealth services performed in a setting where no direct patient care occurs
The rule requires specified health care employers to develop a plan to identify and control COVID-19 hazards in the workplace. The plan must include:
- management leadership
- worker participation
- hazard identification and assessment
- hazard prevention and controls
- evaluation and improvement
- coordination and communication at multi-employer sites
- education and training
For employers with more than 10 employees, the plan must be in writing. OSHA says it will be releasing a model healthcare-specific plan that satisfies these requirements, along with other materials to assist with compliance.
Covered employers must also implement other requirements relating to:
- patient screening and management (e.g. triage)
- standard and transmission-based precautions (infection prevention practices where the presence of an infectious agent is assumed)
- personal protective equipment, including facemasks, face shields, and respirators,
- controls for aerosol-generating procedures (e.g. intubation)
- physical distancing (when feasible)
- physical barriers
- cleaning and disinfecting (including handwashing and cleaning surfaces)
- health screening and medical management (including employee screening, notice to employees of potential exposure, removing infected employees from the workplace, and providing paid leave to provide paid leave in some situations)
- reporting (of deaths and hospitalizations of employees)
The paid leave requirement applies to employers with more than 10 employees on the date the section becomes effective. When an employee has been removed from the workplace due to actual or suspected exposure to COVID-19, the employer must continue to pay the employee the same regular pay (excluding overtime) and benefits the employee would have received had the employee not been absent. There is no limit on how many times an employee can receive this pay. There is, however, a weekly cap of $1,400 per week. For employers with fewer than 500 employees, beginning in the third week of the employee’s removal, the required payment is reduced to two-thirds of the same regular pay, up to $200 per day. Employers may also deduct from the payments the amount of compensation the employee receives from other sources, such as paid sick leave or unemployment insurance.
These OSHA rules are not the first word on the subject (The CDC previously released guidance on Health Care Facilities: Managing Operations During the COVID-19 Pandemic.) Nor will they be the last.
They are just the latest in a string of federal, state, and local requirements that employers are expected to digest, adopt, and follow. Expect more regulations to come.