Proskauer - Health Care Law Brief

On June 10, 2021, the U.S. Department of Labor Occupational Safety and Health Administration (“OSHA”) announced “an emergency temporary standard to protect healthcare workers from contracting coronavirus.” The standard focuses on healthcare workers that are on the front lines of the fight against COVID-19, aiming to increase protections for those who “continue to be at high risk of contracting the [disease] . . . while they provide us with critical healthcare services.”

The new standard, linked here, will become effective immediately upon publication to the Federal Register. The standard lays out new requirements for settings where any employee provides health care services or health care support services, including hospitals, nursing homes, assisted living facilities, and other similar locations. A few defined exceptions are included in the text of the standard, including circumstances relating to the workplace’s vaccination status, entry-screening practices, and whether there is a reasonable expectation any person with suspected or confirmed coronavirus will be present. Along with the new standard, OSHA also released a helpful flow chart to help employers determine whether they are subject the new rules. Depending on the requirement, covered employers will be required to comply with the standards within 14-30 days of the effective date.

The standard outlines various COVID-19 protections that covered healthcare employers must abide by. First, it requires covered employers to develop and implement a COVID-19 plan for each workplace and designate safety coordinator(s) to implement and monitor the plan. The plan must address identified “workplace-specific hazards,” and develop policies and procedures to minimize the risk of transmission of COVID-19 to employees. Employers must also keep a log to record instances of COVID-19 infection among employees, regardless of whether the instance is connected to exposure to COVID-19 at work, and promptly report certain events (such as work-related COVID-19 fatalities and inpatient hospitalizations) to OSHA.

The standard also requires the employers to screen all entrants to settings where direct patient care is provided, implement policies and procedures to ensure adherence to certain CDC guidelines, and provide personal protective equipment (PPE) to employees in certain defined scenarios. Additionally, the standard describes certain safety precautions that should be taken when aerosol-generating procedures are performed on individuals with suspected or confirmed COVID-19 infections.

Covered employers are also required to implement physical distancing measures, physical barriers, cleaning and disinfection practices, and meet certain ventilation protocols. Furthermore, the standard requires employers to abide by certain “health screening and medical management guidelines” to reduce workplace transmission of COVID-19. Employees should also be given reasonable time and paid leave for vaccinations and any associated side effects. Lastly, the standard requires employers to train employees on COVID-19 transmission and prevention, and to inform them of their rights, which they must be able to exercise without retaliation or discrimination.

The standard released last week has been anticipated for months; President Biden directed OSHA to consider releasing emergency temporary standards for workplace safety in an Executive Order dated January 21, 2021.

For more information on OSHA’s emergency temporary standard, see OSHA’s fact sheet.

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