OSHA Issues Emergency Temporary Standard to Protect Healthcare Workers from COVID-19

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In response to President Biden’s Executive Order issued on January 21, 2021, directing the Occupational Safety and Health Administration (OSHA) to take action to reduce the risk that workers may contract COVID-19 in the workplace, OSHA has issued an emergency temporary standard (ETS) to set forth guidelines to protect healthcare workers.

The ETS applies only to settings where any employee provides healthcare services or healthcare support services.  The masking, distancing, and barrier requirements under the ETS do not apply to settings with well-defined areas where all employees are fully vaccinated and there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present. OSHA has provided a flowchart to determine which workplaces are affected.

Develop and implement a COVID-19 plan:  Employers are required to develop and implement a plan to combat COVID-19.  This plan must be in writing if there are more than 10 employees.  Employers must conduct hazard assessments for each specific workplace to identify potential COVID-19 hazards and designate a safety coordinator with the authority to ensure compliance with all aspects of the plan.

Limit and monitor points of entry:  In workplaces where direct patient care is provided, employers must limit and monitor points of entry.  Patients, clients, residents, and other visitors must also be screened and triaged.  Other patient management strategies must be implemented per CDC guidance.

Develop and implement policies based on CDC guidance:  Employers will also be required to develop and implement policies and procedures to adhere to the Standard and Transmission-Based Precautions based on the CDC’s “Guidelines for Isolation Precautions.”

Provide personal protective equipment (PPE):  Employees must be provided with facemasks which must be changed at least once per day.   Masks must be worn when indoors and when riding in a vehicle with others for work purposes.  However, there are several exceptions to this rule.  For instance, if employees are alone in a room, eating and drinking (as long as they are at least six feet away from others or separated by some physical barrier), or cannot wear facemasks due to a medical necessity, they are not required to wear them.  Employers are also obligated to provide respirators and other PPE to people with suspected or confirmed COVID-19 cases and must provide this PPE to employees performing aerosol-generating procedures on individuals with suspected or confirmed cases of COVID-19.

Take extra precautions when performing aerosol-generating procedures:  When aerosol-generating procedures are performed on a person with suspected or confirmed COVID-19, the number of employees present during the procedure must be limited to only those essential to patient care and procedure support, the procedure must be performed in an airborne infection isolation room if at all possible, and employers must clean and disinfect the room where the procedure was performed.

Implement physical distancing:  Employers must ensure that employees remain at least six feet apart unless physical distancing is not feasible for a specific activity.

Install physical barriers:  If there are fixed work locations located outside of direct patient care areas (e.g. entryway/lobby, check-in desks, triage, pharmacy windows, bill payment) and employees in these areas are not separated from others by at least six feet, employers must install cleanable or disposable solid barriers to the extent such barriers are feasible.

Clean and disinfect surfaces:  Employers must comply with standard practices for cleaning and disinfecting surfaces per CDC guidance in patient care areas, resident rooms, and for medical devices and equipment.  In other areas, employers are responsible for cleaning high-touch surfaces and equipment each day and taking additional measures when informed that a person that tested positive for COVID-19 has been in the workplace within the previous 24 hours.  Additionally, readily accessible hand-washing facilities or sanitizer that is at least 60% alcohol must be provided.

Ensure proper ventilation:  Buildings and structures that are owned or controlled by employers and that contain existing heating, ventilation, and air conditioning systems must be used per manufacturer instructions.  The outside air circulated through these systems and the number of air changes per hour should be maximized.  Air filters should be rated Minimum Efficiency Reporting Value 13 or higher if compatible with such systems.

Perform health screenings and notify employees of potential exposure:  The ETS requires employers to screen employees before each workday and shift.  Such screening may be done by asking employees to self-monitor or may be conducted in person by the employer.  Employers must require employees to notify the employer if they are COVID-19 positive, have been told by a health provider that they are suspected to be positive, have experienced a recent loss of taste and/or smell, or have both a fever and a new unexplained cough with shortness of breath.  Further, within 24 hours of being notified that a person was in the workplace and is COVID-19 positive, employers must notify employees who were not wearing a respirator and were either in close contact with the person or worked in a defined portion of a workplace (e.g. a particular floor) in which that person was present during the “potential transmission period.”  The potential transmission period is two days before the individual felt sick (or two days before specimen collection if the person was asymptomatic) until the person is isolated.

Remove positive or suspected positive employees and provide associated benefits:  If an employer discovers an employee is positive for COVID-19 or is suspected to be positive, that employee must be immediately removed from the workplace until he or she meets certain criteria to return to work.  However, employers are not required to remove any employee who does not experience symptoms and has been fully vaccinated against COVID-19 or had the virus and recovered within the previous three months.   Employers with more than 10 employees must provide medical removal protection benefits to employees who isolate or quarantine.  Specifically, if an employee is removed from the workplace, his or her employer is responsible for continuing to provide the benefits to which that employee is usually entitled to and must also pay the employee the same regular pay he or she would have received had they not been absent from work, up to $1,400 per week, until the employee meets the return to work criteria.  Employers with less than 500 employees must pay a removed employee up to $1,400 per week, but beginning in the third week post-removal, this amount is reduced to only two-thirds of the same regular pay the employee would have received had the employee not been absent from work, up to $200 per day.  Notably, employers’ payment obligations are reduced by compensation that removed employees receive from any other source (i.e., from a publicly or employer-funded compensation program such as paid sick leave) for any pay they may lose while removed from the workplace.  Upon return to work, employees that were previously removed must not suffer any adverse action and must maintain all rights and benefits they would have been entitled to had they not been removed.

Provide time and leave to get vaccinated:  Employers are required to provide reasonable time off and paid leave to employees to receive vaccinations and to recover from any side effects following vaccination.

Provide employees with training:   Employees must be provided with training on how COVID-19 is transmitted and ways to reduce the risk of spreading the virus, workplace policies and procedures, and situations that could result in a COVID-19 infection.

No retaliation permitted:  Employees must be advised of their right to the protection required by the ETS and that employers are prohibited from discharging or discriminating against any employee for exercising their right to these protections, or for engaging in actions required by the ETS.

Requirements must be implemented at no cost to employees:  The ETS (except for any employee self-monitoring), must be at no cost to employees.

Recordkeeping required:  Employers with more than 10 employees must maintain a COVID-19 log to track employee cases of COVID-19 (regardless of whether the instance is connected to work exposure) and make that log available to employees and representatives as required.

Report fatalities and hospitalizations:  Employers must report each COVID-19 related fatality to OSHA within eight hours of the employer learning about the fatality and each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about it.

The ETS will go into effect as of the date of publication in the Federal Register, although it is unclear at this time when exactly that will be.  Employers will be required to comply with most of the requirements outlined in the ETS within 14 days of the publication date and the rest of the guidelines (specifically, the requirements to implement physical barriers, ensure optimal ventilation, and train employees) within 30 days of the publication date.

We will continue to monitor OSHA guidance and stay apprised of the exact date the above requirements will take effect.

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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