New OSHA Covid-19 Standard Covers Healthcare Employees Only

June 14, 2021 by

The Department of Labor has promulgated an emergency temporary standard (ETS) designed to protect healthcare workers but did not extend the rule to other high-risk employment such as manufacturing, grocery or high-volume retail as some labor groups had urged

The ETS from the Occupational Safety and Health Administration (OSHA) focuses on healthcare workers most likely to have contact with someone infected with the virus. It requires healthcare facilities with 10 or more employees to conduct a hazard assessment and create a plan in writing. It sets forth rules for when to require masking, distancing and physical barrier requirements.

In addition to addressing masks, distancing and barriers, the standard addresses other personal protection equipment, patient screening, ventilation, disinfection, health screening, vaccination, employee training, record-keeping, paying quarantined employees and other situations. (See sidebar.)

It identifies some exemptions for fully vaccinated workers from masking, distancing and barrier requirements when in well-defined areas “where there is no reasonable expectation that any person will be present with suspected or confirmed coronavirus.”

OSHA Standard on for How to Protect Healthcare Workers from COVID-19

The main section of the ETS (1910.502 – Healthcare) requires employers to develop and implement effective COVID-19 plans. Controlling COVID-19 requires employers to use multiple overlapping controls in a layered approach to better protect workers. The key requirements of the ETS are:

  • COVID-19 plan: Develop and implement a COVID-19 plan (in writing if more than 10 employees) that includes a designated safety coordinator with authority to ensure compliance, a workplace-specific hazard assessment, involvement of non-managerial employees in hazard assessment and plan development/implementation, and policies and procedures to minimize the risk of transmission of COVID-19 to employees.
  • Patient screening and management: Limit and monitor points of entry to settings where direct patient care is provided; screen and triage patients, clients, and other visitors and non-employees; implement patient management strategies.
  • Standard and Transmission-Based Precautions: Develop and implement policies and procedures to adhere to Standard and Transmission-Based precautions based on CDC guidelines.
  • Personal protective equipment (PPE): Provide and ensure each employee wears a facemask when indoors and when occupying a vehicle with other people for work purposes; provide and ensure employees use respirators and other PPE for exposure to people with suspected or confirmed COVID-19, and for aerosol-generating procedures on a person with suspected or confirmed COVID-19.
  • Aerosol-generating procedures on a person with suspected or confirmed COVID-19: Limit employees present to only those essential; perform procedures in an airborne infection isolation room, if available; and clean and disinfect surfaces and equipment after the procedure is completed.
  • Physical distancing: Keep people at least 6 feet apart when indoors.
  • Physical barriers: Install cleanable or disposable solid barriers at each fixed work location in non-patient care areas where employees are not separated from other people by at least 6 feet.
  • Cleaning and disinfection: Follow standard practices for cleaning and disinfection of surfaces and equipment in accordance with CDC guidelines in patient care areas, resident rooms, and for medical devices and equipment; in all other areas, clean high-touch surfaces and equipment at least once a day and provide alcohol-based hand rub that is at least 60% alcohol or provide readily accessible handwashing facilities.
  • Ventilation: Ensure that employer-owned or controlled existing HVAC systems are used in accordance with manufacturer’s instructions and design specifications for the systems and that air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher if the system allows it.
  • Health screening and medical management: (1) Screen employees before each workday and shift; (2) Require each employee to promptly notify the employer when the employee is COVID-19 positive, suspected of having COVID-19, or experiencing certain symptoms; (3) Notify certain employees within 24 hours when a person who has been in the workplace is COVID-19 positive; (4) Follow requirements for removing employees from the workplace; (5) Employers with more than 10 employees, provide medical removal protection benefits in accordance with the standard to workers who must isolate or quarantine.
  • Vaccination: Provide reasonable time and paid leave for vaccinations and vaccine side effects.
  • Training: Ensure all employees receive training so they comprehend COVID-19 transmission, tasks and situations in the workplace that could result in infection, and relevant policies and procedures.
  • Anti-Retaliation: Inform employees of their rights to the protections required by the standard and do not discharge or in any manner discriminate against employees for exercising their rights under the ETS or for engaging in actions required by the standard.
  • Requirements must be implemented at no cost to employees.
  • Recordkeeping: Establish a COVID-19 log (if more than 10 employees) of all employee instances of COVID-19 without regard to occupational exposure and follow requirements for making records available to employees/representatives.
  • Report work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.

The healthcare standard also applies to emergency responders and employees in ambulatory care settings where suspected or confirmed coronavirus patients are treated.

OSHA also set forth guidance for working with unvaccinated employees in high-risk settings, including physical barriers and moving those employees to off-hours.

Employers must comply with most provisions within 14 days and with the remaining provisions within 30 days. OSHA said it will use its enforcement discretion to avoid citing employers who miss a compliance deadline but are making a good faith effort to comply with the ETS.

“This standard is necessary to give our healthcare workers deeply needed protections,” said Acting Assistant Secretary of Labor for Occupational Safety and Health Jim Frederick. “This tailored standard allows OSHA to help the workers most in danger of contracting the virus, while the updated guidance will give other businesses across the country the information they need to help protect unvaccinated workers and continue mitigating spread in the workplace.”

OSHA said it will update the standard, if necessary, to align with Centers for Disease Control (CDC) guidelines and changes in the pandemic.

Other Industries’ Guidance

In addition to the healthcare-focused standard, OSHA issued updated guidance to help employers and workers in other industries protect workers who are still not vaccinated,. This guidance is directed at industries noted for prolonged close-contacts like meat processing, manufacturing, seafood, and grocery and high-volume retail.

The standard will require non-exempt facilities to conduct a hazard assessment and have a written plan to mitigate virus spread, and requires healthcare employers to provide some employees with N95 respirators or other personal protective equipment. In addition, covered employers must ensure 6 feet of distance between workers. In situations where this is not possible, employers should erect barriers between employees where feasible.

The standard also requires covered employees to provide workers with paid time off to get vaccinated and to recover from any side effects. Covered employees who have coronavirus or who may be contagious must work remotely or otherwise be separated from other workers if possible, or be given paid time off up to $1400 per week. For most businesses with fewer than 500 employees, tax credits in the American Rescue Plan may be reimbursed through these provisions.

OSHA has estimated that its new ETS will cover about 10 million people.

Labor organization have long urged OSHA to issue a broader standard covering meatpacking, grocery and other workers. The AFL-CIO sued in 2020 to force OSHA to issue an emergency standard but a federal court of appeals dismissed its case.

Unions have also criticized the voluntary guidance for other industries as stopping short of the force of a standard. OSHA does, however, use its guidance in evaluating an employer’s safety efforts and its guidance has also been used as the minimal standard of care in negligence cases.