Fifteen months into the pandemic, the Occupational Health and Safety Administration (OSHA) has released a long-awaited COVID-19 Emergency Temporary Standard (ETS) for healthcare employers. While the timing may puzzle both employers and employee advocates, the delayed new standard fulfills President Biden’s Executive Order issued in January promising an ETS to address the risks of COVID-19 in the workplace. Although originally envisioned as a far-reaching rule that would apply to most employers, the mandates of the final ETS apply only to certain healthcare settings. The new rule is effective June 21, 2021 and sets a short timetable of July 6, 2021 for compliance with many provisions, with other provisions enforceable beginning July 21, 2021. The text of the ETS is available from the Federal Register and the OSHA website, a summary, various fact sheets, and implementation resources.
The ETS applies only to employees in certain healthcare settings and is aimed at protecting workers who face the highest risk by working in settings where suspected or confirmed COVID-19 patients are treated. In general, this includes employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in ambulatory care facilities where suspected or confirmed COVID-19 patients are treated. The ETS does not apply to some healthcare settings such as: retail pharmacies; certain non-hospital settings where all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter; off-site healthcare support services; and telehealth services performed outside of direct patient care settings. The ETS also does not apply to certain hospital ambulatory care settings and home healthcare settings where all employees are fully vaccinated and all non-employees are screened. To help employers navigate the complexities of ETS applicability to various settings, OSHA has published a flowchart.
Employers of employees within covered healthcare settings are required to implement a number of key safety measures to mitigate the risks to workers from COVID-19.
The ETS also imposes several new recordkeeping requirements. Employers with more than 10 employees must retain their written COVID-19 plan, establish a COVID-19 log to record each instance of a COVID-19 positive employee (regardless of whether the instance is connected to exposure at work), and make a version of the log with de-identified information available to employees and their authorized representatives. Covered employers must also report to OSHA any COVID-19 fatalities and inpatient hospitalizations within 24 hours of the employer learning about the hospitalization.
Many healthcare employers likely already follow most of the standards incorporated into the ETS by using policies and procedures that meet or exceed the standards of the ETS and previous guidance from the CDC and other authorities. Nevertheless, each healthcare employer needs to understand the new requirements and update their policies, practices, training, and recordkeeping as needed to conform to all of the new requirements. Primary areas of focus should be the documented COVID-19 plan, employee training, new recordkeeping obligations, changes in OSHA reporting obligations, and the new paid leave requirement.
Virginia healthcare employers are likely already accustomed to the Virginia Final Permanent COVID-19 Standards (the “Virginia Final Standard”) enforced by the Virginia Department of Labor and Industry. As the first state to adopt Emergency COVID-19 standards and, later, the current Permanent COVID-19 standard, Virginia healthcare employers will likely experience some déjà vu in reading the new OSHA ETS. Although OSHA noted that it obtained inspiration from Virginia and a handful of other states that have imposed COVID-19 workplace standards, the standards are not identical. For example, while the Virginia Final Standard requires employers to classify risk based on specific job tasks, the OSHA ETS requires employers to perform a hazard assessment specific to distinct workplaces, rather than job tasks. Now workplace risk assessments need to meet both standards. Although the Virginia Final Standard appears to largely meet or exceed many of the OSHA ETS standards, Virginia healthcare employers should not assume that past efforts to implement the Virginia Final Standards are sufficient to satisfy OSHA. Unless the Virginia Final Standard is amended or rescinded, compliance with the new OSHA ETS will require additional effort, documentation, and recordkeeping.
Although the Virginia Final Standard remains in place at this time, its future is somewhat uncertain. The Governor’s amended Executive Order 72 (easing COVID-19 restrictions) appears to waive some of the masking and other requirements of the Virginia Final Standard, but it is unclear if such waivers continue following the expiration of the state of emergency. The Virginia Final Standard provides that the Safety and Health Codes Board shall meet within 14 days of the expiration of the Governor’s COVID-19 State of Emergency to determine whether there is a continued need for the Standard. The State of Emergency is currently set to expire June 30, 2021.