Healthcare providers must comply with OSHA Temporary Emergency Standards by July 5th | Chambliss, Bahner & Stophel, PC

On June 10, 2021, the OSHA issued its long-awaited COVID-19 Emergency Temporary Standard (ETS). A notable feature of the ETS, aside from the time it was published over a year after the pandemic started, is that it only applies to employers who provide health care or health support services, and not to employers in general. The EHS was published in the federal register and came into force on June 21, 2021. Healthcare employers reporting to the EHS must comply with most of its regulations by July 5, 2021, and establish the required physical barriers, ventilation, and training obligations by July 21, 2021.

Who is covered by the ETS?

While OSHA provides a flow chart that advises who is and who is not covered by the ETS, the bottom line is that the ETS only applies to employers who provide health or support services. The ETS defines “health services” as “services provided to individuals by health professionals (e.g., doctors, nurses, emergency medical personnel, oral health professionals) for the purpose of promoting, maintaining, monitoring or restoring good health. In addition, the ETS adds that health services “can be provided by a variety of means, including hospitalization, long-term care, outpatient care, home health and hospice care, emergency medical assistance and patient transportation”. It is also advised that autopsies are included as a health service.

The ETS defines support services as “services that facilitate the delivery of health services,” including “patient admission, patient care services, equipment and facility maintenance, housekeeping services, healthcare laundry services, medical waste disposal services, and medical device cleaning / processing services.”

What does the ETS require?

Employers covered by the ETS must do the following, at no cost to employees:

• Develop and implement a COVID-19 plan for their workplace, who appoints a “safety coordinator” to ensure compliance, includes a workplace-specific risk assessment and sets up guidelines to minimize the risk of COVID-19 transmission. The ETS also requires that non-managerial staff be involved in the development and implementation of the plan. And if the employer has more than 10 employees, the plan must be in writing.
• To implement Patient management Strategies that limit and monitor access points to environments where direct patient care is provided. Places that review and sort patients, clients, and other visitors are included.
• To implement Leadership Strategies that employees review before each work day and shift; provide the employee with the tests prescribed by the employer free of charge; require employees to notify management if they are COVID-19 positive, suspected of having COVID-19, or are symptomatic; Notify employees within 24 hours if someone has been at work and is COVID-19 positive; and follow the Centers for Disease Control and Prevention (CDC) requirements and specific guidelines on removal and return of workers from work. You also need to make sure that all employees receive training so that they understand the transmission of COVID-19, situations in the workplace that could lead to infection, and relevant policies and procedures.
• Develop and implement policies and procedures that must be followed Standard and broadcast-based precautions in accordance with CDC guidelines for isolation precautions.
• Make sure employees wear clothing Face masks via nose and mouth indoors or when occupying a vehicle with other people for work purposes with simultaneous voluntary use of Respirators instead of face masks.
• When a aerosol generating process be performed, limit the staff present to those strictly necessary for the procedure and, if available, use an isolation room for airborne infections. After completing the procedure, clean and disinfect surfaces and equipment.
• Ensure physical distance (six feet) between employees, customers and visitors while they are indoors and install cleanable or disposable physical barriers at every permanent workstation in care areas in which every employee is not separated by at least two meters from other people.
• Follow standard practices for clean and disinfect Surfaces and devices in accordance with CDC guidelines in patient care areas, residents’ rooms and medical devices and devices. In all other areas, clean touch-sensitive surfaces and devices at least once a day and use alcohol-based hand disinfectants with at least 60% alcohol or provide easily accessible hand washing facilities.
• Make sure you have employer-owned or controlled existing ventilation Systems are used in accordance with the manufacturer’s instructions and design specifications for the systems, and that air filters have a Minimum Efficiency Report Value (MERV) of 13 or greater when the system allows it.
• Allow reasonable time and paid vacation for Vaccinations and side effects of the vaccine.
• If you have more than 10 employees, set up one COVID-19 protocol all cases of COVID-19 in employees regardless of occupational exposure and follow the requirements for providing records to employees. Likewise, report to OSHA of any work-related COVID-19 death within eight hours of learning of the death; and any work-related inpatient COVID-19 hospital stay within 24 hours of becoming aware of the inpatient hospital stay.
• Anti-retribution: Inform employees of their rights to the protection required by this standard. Do not fire or discriminate against employees in any way for exercising these rights or for taking any action required by the standard.

OSHA ensures that the ETS does not apply for the following workplace settings:

1. First aid provided by an employee who is not a licensed healthcare provider;
2. Pharmacists who dispense prescriptions in retail stores;
3. Outpatient care facilities outside the hospital, in which all non-employees are examined before entry and people with suspected or confirmed COVID-19 are not allowed to enter these facilities;
4. Well-defined outpatient hospital facilities 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 allowed to enter these facilities;
5. Home care facilities where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are absent;
6. Health care support services that are not provided in a health facility (e.g. off-site laundry, off-site medical billing, etc.); or
7. Telehealth services provided outside of an environment in which direct patient care takes place.

Here, too, all of the listed requirements must be implemented free of charge for employees. For more information on the new ETS, OSHA has published a summary of the rules and covered dozens of FAQs.

OSHA has recognized that it intends to use its enforcement discretion to avoid citing employers who make good faith efforts to comply with the ETS. And while it stands to reason that after spending a lot of time and effort devising and implementing these rules, OSHA will try to enforce these rules with some discretion. We hope that for most healthcare employers, compliance with the ETS will involve a refinement of the existing COVID-19 safety protocols rather than a complete overhaul.