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As the COVID-19 pandemic continues and new variants of the virus emerge, the Occupational Safety and Health Administration (OSHA) has released a new emergency temporary standard (ETS) for the healthcare industry as well as recommendations for other industries on how to keep their employees and customers safe. These emergency rules show the dire situation currently gripping the nation as OSHA has only proposed nine previous emergency rules in the past 40 years. For the healthcare industry, this standard will go into effect once it is published in the Federal Register. Guidance for other employers not covered by the ETS should be followed immediately.

OSHA’s New Emergency Temporary Standard

The new ETS was officially filed in the Office of the Federal Register on June 17, 2021, and it became effective when it was published. In August, OSHA reviewed the latest guidance, science, and data on COVID-19 and consulted with the Center for Disease Control and Prevention (CDC). OSHA determined that CDC’s guidance on healthcare settings has not changed and the requirement of the healthcare ETS released on June 10, 2021, will remain necessary to address the grave danger of COVID -19 in healthcare. The ETS will apply to all places of work “where any employee provides healthcare services or healthcare support services.” There are certain workplace exceptions where the ETS does not apply including:

1. First aid given by an employee who is not a licensed health care provider.
2. Pharmacists dispensing medication in retail settings.
3. Ambulatory care settings outside of a hospital in which all non-employees are screened prior to entry and individuals with suspected cases of COVID-19 are not permitted to enter.
4. Hospital ambulatory care settings in which all employees are fully vaccinated and non-employees are screened prior to entry. Suspected or confirmed COVID-19 cases must also not be permitted entry.
5. Home health care settings in which all employees are fully vaccinated and all non-employees are screened prior to entry. Suspected or confirmed COVID-19 cases must not be present.
6. Health care industry support services performed off-site, including laundry, medical billing, etc.
7. Telehealth services performed without direct in-person patient care.

Employers who are covered by OSHA’s ETS must comply with the following elements once the ETS goes into effect:

1. If an employer has more than 10 employees, they must develop and implement a written COVID-19 plan.
2. At least one workplace COVID-19 safety coordinator must be appointed.
3. A workplace hazard assessment specifically related to COVID-19 must be conducted.
4. If not already in place, implement patient screening and management where in-person patient care is provided.
5. Develop and implement policies and procedures to adhere to Standard and Transmission-Based Precautions that comply with the CDC’s “Guidelines for Isolation Precautions.”
6. Appropriate Personal Protective Equipment must be provided depending on the circumstances of care.
7. If aerosol-generating procedures are required for a confirmed or suspected COVID-19 patient, there must be specific requirements for how those procedures are handled.
8. Maintain physical distancing whenever possible.
9. Physical barriers should be installed in areas where physical distancing is not possible.
10. Thorough cleaning and disinfection procedures should be prioritized and put onto a regular, frequent schedule.
11. Assess and maintain proper ventilation in buildings owned or controlled by the employer.
12. Implement pre-shift health screening and medical management of each employee entering the building.
13. Paid leave must be provided for vaccination and any subsequent side effects.
14. All employees must be trained on the general properties of COVID-19, the ETS, and employer/workplace-specific policies and procedures.
15. Keep records of all employees who are diagnosed with COVID-19 without regard to whether they were exposed in the workplace.

When developing a written COVID-19 plan, healthcare employers are required to seek input and involvement from non-managerial employees who can give their perspective of the hazards present in the workplace and how best to mitigate them in their particular positions. This must all take place at no cost to the employees. If an employee is exposed to a patient or coworker with suspected or confirmed COVID-19, the employee should wear a respirator and comply with OSHA respiratory protection standards. The ETS put forth by OSHA focuses on anti-retaliation efforts and requires employers to inform employees that they have a right to be protected from being fired or discriminated against for reporting an unsafe work environment to OSHA. The ETS should be implemented in healthcare settings when the standard is published in the Federal Register. Some portions of the ETS may take longer to implement and OSHA has determined that some portions of the ETS can be implemented up to 14 to 30 days after its publication.

Updated Guidance for Employers Not Covered by the ETS

Along with the new ETS, OSHA issued an update to its January 29, 2021 guidance, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” On August 13, 2021. This guidance is designed to help employers that do not fall under the ETS to identify COVID-19 hazards in the workplace and reduce the risks of exposure to their employees and customers. While these recommendations may change as new variants of COVID-19 spread across the country, OSHA currently recommends the following:

1. Employers should grant paid time off for employees to get vaccinated and to recover from any subsequent side effects.
2. Employees with symptoms or who are infected should not come into work and unvaccinated workers who have had close contact with someone who tested positive should also, not come to work.
3. Physical distancing should be implemented wherever possible.
4. Face coverings should be provided for unvaccinated employees or employees who are otherwise at risk of getting the virus.   Additionally, now fully vaccinated people should wear masks in public indoor settings in areas of substantial or high transmission, and fully vaccinated people may decide to wear masks in public indoor settings regardless of community-level of transmission, particularly if they have household members not fully vaccinated or at risk. The CDC has an up-to-date map showing areas of substantial or high transmission.
5. Educate workers on the company’s COVID-19 policies and protocols.
6. Suggest customers, visitors, and guests wear face coverings if unvaccinated, and if in an area of substantial or high transmission, all customers, visitors, or guests should wear face coverings in public, indoor settings.
7. Ensure proper ventilation of the workspace.
8. Perform frequent and thorough cleaning and disinfecting.
9. Record and report COVID-19 infections and deaths to OSHA.
10. Implement anti-retaliation protections for employees who report COVID-19 hazards.

COVID-19 Related Workplace Inspections

OSHA on July 13, 2021, updated its March 12, 2021 Interim Enforcement Response Plan that gives new instructions to OSHA Area Offices for handling COVID-19 related complaints for the healthcare industry as well as employers not covered by the ETS. The now revised plan adjusts the targeted industries to those most at risk for COVID-19 exposure, but still includes healthcare and non-healthcare, such as meat and poultry processing. The updated Interim Enforcement Response Plan includes:

• OSHA will continue to abide by the U.S. Department of Labor’s COVID-19 Workplace Safety Plan to reduce the risk of virus transmission during inspections.
• OSHA will continue to prioritize COVID-19 related inspections involving deaths or multiple hospitalizations resulting from occupational exposure to the virus, including conducting follow-up inspections and targeting high hazard industries.
• Protections for workers in non-healthcare industries will be focused on employees who have not been vaccinated or are not fully vaccinated.
• One of the changes is that OSHA will no longer exercise enforcement discretion for the same requirements in other health standards, where full compliance may have been difficult for some non-healthcare employers due to the pandemic.
• Additionally, OSHA will enforce protections for workers in non-healthcare industries who are unvaccinated.

When OSHA inspectors conduct an inspection:

• The COVID-19 inspection will be on-site in most cases.
• OSHA will, if appropriate, use phone and video conferencing, instead of in-person employee interviews, to reduce potential exposures to the virus. In instances where it is necessary and safe to do so, in-person interviews will be conducted.
• To avoid further in-person contact, OSHA will encourage employers to provide documents via mail or electronic means.
• All OSHA inspectors will be equipped with the appropriate personal protective equipment and will be trained to take all necessary precautions to avoid exposure to COVID-19.
• In cases where on-site inspections cannot safely be performed, the inspection may be approved as remote-only and will be documented and coded as N10-COVID-19 REMOTE in the OSHA information system.

All employers facing a COVID-19 inspection should contact their legal counsel to discuss, review, and ensure compliance with any and all new requirements. It is prudent that employers familiarize themselves with all of OSHA’s newly released regulations and give their best efforts to protect their employees and customers from exposure.