On Thursday, June 10, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) intended to protect healthcare workers from COVID-19. The ETS comes after President Biden’s January executive order directing OSHA to implement workplace safety standards for COVID-19, although OSHA limited the ETS to healthcare workers only at this time.

Once published in the Federal Register, covered employers will have 14 days to comply with the new requirements. Each of the required measures must be implemented at no cost to the employee.

Covered Employers

The ETS applies to settings where employees provide healthcare and healthcare support services. 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. However, there are some exceptions to coverage. For example, the new standards do not apply to non-hospital ambulatory care settings where all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter. Healthcare support services that are not performed in a healthcare setting (i.e. off-site laundry, off-site billing) are also excepted from the rules.

OSHA has created a flowchart for employers to determine whether they are covered by these standards.

Requirements Under the Emergency Temporary Standards

COVID-19 Plan: Healthcare employers must develop a COVID-19 health plan to keep employees safe, which must be in writing (unless the employer has fewer than ten employees). The health plan must:

• Designate a safety coordinator with authority to ensure compliance.
• Implement a workplace-specific hazard assessment.
• Involve non-managerial employees in the creation and implementation of the plan and hazard assessment.
• Provide for monitoring the workplace to ensure the ongoing effectiveness of the plan, updating it as needed.
• Include policies and procedures to minimize the risk of transmission of COVID-19.

Required Safety Measures: The ETS outlines several safety measures employers must comply with:

• Screen patients and implement patient management strategies.
• Implement policies to adhere to standard and transmission-based precautions based on CDC guidelines.
• Provide personal protective equipment (PPE).
• Limit the number of employees in the room when performing aerosol-generating procedures.
• Keep people at least 6 feet apart when indoors.
• Follow CDC guidelines for cleaning and disinfection of surfaces, equipment, etc.
• Ensure proper ventilation and use of air filters rated MERV 13 or higher.
• Screen employees before each shift, require employees to report COVID-19 symptoms and positive tests, notify employees of positive tests, and remove sick employees from the workplace.
• Provide time off and paid leave for vaccinations.
• Train employees on COVID-19 transmission and relevant policies and procedures.

Reporting COVID-19 Fatalities: Employers must continue to report each work-related COVID-19 fatality and hospitalization to OSHA.

Mini Respiratory Protection Program: In situations where employees are not exposed to COVID-19 or other hazards that require the use of a respirator under OSHA’s normal respiratory protection standard (29 C.F.R. § 1910.134) but respirator use (including use of N-95 masks) could offer enhanced worker protection, then employers may provide respirators to employees instead of a facemask pursuant to the less stringent requirements of the ETS’s mini respiratory protection program. Employers must also permit employees to use their own respirators instead of a facemask if they wish. For respirator use under the mini program, the employer must provide employees the notice specified in the ETS. If employees will be using respirators under the mini respiratory protection program, similar to OSHA’s normal respiratory protection standard, employers must provide training on inspecting, putting on, removing, and using respirators.  However, unlike the normal respiratory protection standard, under the mini respiratory protection program, employers need not establish a written program, and employers do not need to conduct medical evaluations or fit tests, but employees must be trained and required to perform a “user seal check” to ensure the respirator is properly seated to the user’s face prior to each use.

Anti-Retaliation: Employers must inform their employees of their rights to the protections required by the emergency rules. Additionally, employers are prohibited from discriminating against employees for exercising these rights or complying with these emergency standards.

Ten or More Employees: Large employers (those with ten or more employees) must comply with additional requirements:

• The health plan must be in writing.
• Must provide medical removal protection benefits to workers who must isolate or quarantine.
• Establish and maintain a COVID-19 log of all employees who test positive for COVID-19 regardless of whether the positive test is connected to exposure at work.

For further guidance on OSHA’s COVID-19 emergency standards, please contact any member of Taft’s Employment & Labor Relations group.