Exercising its authority under Section 6(c) of the Occupational Safety and Health Act, the federal Occupational Safety and Health Administration (OSHA) issued its COVID-19 Healthcare Emergency Temporary Standard (ETS) on June 21, 2021. The ETS sets forth safety standards for employers (including federal contractors) with employees working in a healthcare setting—the workers OSHA has determined are at highest risk for workplace exposure to the virus that causes COVID-19. Healthcare employers are expected to comply with the primary ETS requirements as of July 6, 2021, while compliance with additional requirements concerning physical barriers, ventilation, and training is mandated as of July 21, 2021. OSHA is inviting comments on the ETS, including whether it should become a final rule. The deadline to submit comments regarding the ETS and whether it becomes a final rule is July 21, 2021, and the deadline to comment on the information collection determination is August 20, 2021.

Which workplaces are subject to the ETS?

The ETS applies where any employee provides healthcare services or healthcare support services unless an exemption applies. Employers not subject to the ETS should refer to OSHA’s COVID-19 guidance, which is available here. Employers with locations in states that have state occupational safety and health plans may be subject to different requirements under those plans and should look to those plans to determine their obligations.

What are the exemptions?

The ETS provides exemptions for retail pharmacists, first aid administered by an employee who is not a licensed healthcare provider, and healthcare support services that are not performed in a healthcare setting. The ETS also provides the following more limited exemptions:
  • Ambulatory care settings (non-hospital) where non-employees are screened prior to entering the facility and those with suspected or confirmed COVID-19 are denied entry
  • Well-defined hospital ambulatory care settings where all employees are fully vaccinated and all non-employees are screened prior to entry, and those with suspected or confirmed COVID-19 are denied entry
  • Home healthcare settings where all employees are fully vaccinated and non-employees are screened prior to entry, and those with suspected or confirmed COVID-19 are not present
The ETS provides that an employer may still fall within the well-defined hospital ambulatory care setting or the home healthcare setting exemptions where employees who are unable to be vaccinated are provided with a reasonable accommodation that does not expose the employee to COVID-19 hazards. In the embedded healthcare setting, such as a medical clinic in a factory or a walk-in clinic in a retail setting, the ETS only applies to the embedded healthcare portion of the location. When emergency responders and other licensed healthcare providers enter non-healthcare settings to provide healthcare services, the ETS only applies to the provision of healthcare services by those individuals. The ETS also includes a limited exemption in well-defined areas of the workplace where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present. In those circumstances, the masking, physical distancing, and physical barrier requirements do not apply to employees who are fully vaccinated. To qualify, the employer’s COVID-19 plan must include policies and procedures to determine employees’ vaccination status. OSHA’s flowchart to assist employers with determining whether the ETS applies—“Is your workplace covered by the COVID-19 Healthcare ETS?”—can be found here.

What does the ETS require?

An employer subject to the ETS must: Establish a COVID-19 plan. An employer must develop and implement a COVID-19 plan for each workplace that includes all the elements specified in the ETS. The COVID-19 plan must be in writing if the employer has more than 10 employees. Among the many plan requirements, an employer must conduct a workplace-specific hazard assessment to identify COVID-19 hazards. The standard includes additional obligations for employers with employees working at multi-employer worksites.
  • Conduct patient screening for COVID-19. The ETS requires an employer to limit and monitor points of entry, except where emergency responders and other licensed providers enter non-healthcare settings to provide healthcare services. An employer must implement other applicable patient management strategies in accordance with the CDC’s “COVID-19 Infection Prevention and Control Recommendation.”
  • Develop standard and transmission-based precautions. Employers must develop and implement policies and procedures to adhere to standard and transmission-based precautions in accordance with the CDC’s “Guidelines for Isolation Precautions.”
  • Provide and generally require facemasks and respirators. The ETS specifies an employers’ obligations concerning facemasks and respirators. The ETS defines a facemask as “a surgical, medical procedure, dental, or isolation mask” that is FDA-cleared, authorized under an Emergency Use Authorization, or offered and distributed in accordance with an FDA enforcement policy. Under the ETS, the employer must provide facemasks and ensure employees wear them over the nose and mouth. There are a number of exceptions listed in the ETS, a few of which are highlighted here: when the employee is wearing respiratory protection; when the employee cannot wear a facemask due to medical necessity, disability, or a religious belief; or when wearing a facemask would present a hazard of serious injury or death. The ETS requires the employer to provide respirators and other personal protective equipment (PPE) when an employee has exposure to a person with suspected or confirmed COVID-19 or is performing aerosol-generating procedures performed on a person with suspected or confirmed COVID-19. The employer must provide respirators and ensure they are used in accordance with OSHA’s respiratory standard. The employer may provide employees with respirators when facemasks are required, in which case the employer must comply with the Mini Respiratory Protection Program (summarized below).
  • Adopt safety measures for aerosol-generating procedures. When aerosol-generating procedures are performed on a person with suspected or confirmed COVID-19, the employer must limit the number of employees to those essential for patient care and procedure support, and use an existing airborne infection isolation room (AIIR), if available. After the procedure, the employer must clean and disinfect surfaces and the equipment where the procedure is performed.
  • Ensure physical distancing and erect physical barriers. Employers must ensure that each employee is separated from others by at least six feet indoors. When six feet of physical distance is not feasible, the employer must ensure that the employee is as far apart from all other people as is feasible. The standard requires that an employer install physical barriers at each fixed location where employees are not separated by six feet, except where it is not feasible. Barriers are not required in direct patient care areas or resident rooms.
  • Clean and disinfect. Employers must clean and disinfect patient care areas, resident rooms, and medical devices and equipment following standard practices for cleaning and disinfecting surfaces and equipment in accordance with CDC’s “COVID-19 Infection Prevention and Control Recommendations” and CDC’s “Guidelines for Environmental Infection Control.” In all other areas, the employer must clean high-touch surfaces and equipment at least once daily in accordance with the manufacturers’ instructions. The employer must clean and disinfect in accordance with CDC’s “Cleaning and Disinfecting Guidance” when there was a person who was COVID-19 positive in the workplace. The employer must provide hand sanitizer that is at least 60% alcohol or readily accessible hand washing facilities.
  • Ventilate. If the employer owns or controls buildings or structures with an existing HVAC system, the ETS requires an employer to comply with certain HVAC maintenance and filtration requirements, including maximizing the amount of outside air circulating in the system and the number of air changes per hour, and using an air filter with a minimum efficiency reporting value of MERV-13 or higher if compatible with the system.
  • Conduct health screening and medical management. The ETS details the employer’s obligations for daily employee screening for COVID-19 (which can be done by asking employees to self-monitor), sets forth the circumstances when an employer must require an employee to notify the employer that the employee has known or suspected COVID-19, describes the employer’s obligation to remove employees with known or suspected COVID-19 from the workplace, and specifies the return-to-work criteria the employer must follow. To maximize employees’ self-reporting of confirmed or suspected COVID-19, OSHA instructs that employees must not suffer an adverse action due to the removal and the employer must maintain all employee rights and benefits, including the employee’s right to the employee’s former job status. The ETS also details the process of when and how an employer must notify employees and other employers whose employees were exposed to COVID-19 in the workplace.
  • Provide medical removal protection benefits. Employers with more than 10 employees must provide medical removal protection benefits. When an employer allows an employee to work remotely or in isolation, the employer must continue to pay the same pay and benefits until the employee meets the return-to-work criteria. If the employer removes an employee from the workplace, the employer must continue to provide the benefits to which the employee is normally entitled and pay the employee the same regular pay, up to a $1,400 per week cap, until the employee meets the return-to-work criteria. For employers with fewer than 500 employees, starting in the third week of an employee’s removal, the amount is reduced to only two-thirds of the employee’s regular pay, up to $200 per day. The employer’s obligation to pay the medical removal benefit is reduced by the income the employee receives from any other source, such as employer paid sick leave, government-funded compensation programs, payments for lost earnings, “or any additional source of income the employee receives that is made possible by virtue of the employee’s removal.”
  • Provide leave related to vaccination. The employer must provide each employee with reasonable time off and paid leave for COVID-19 vaccination and any side effects experienced following vaccination.
  • Train. The ETS requires that an employer ensure that each employee receives training, in a language and literacy level the employee understands, on COVID-19, workplace situations that could result in infection, the employer’s workplace-specific policies and procedures for patient screening and management, preventing the spread of COVID-19, the employer’s multi-employer workplace agreements related to infection control policies and procedures, PPE, cleaning and disinfecting, health screening and medical management, available COVID-19-related benefits, the identity of the safety coordinator, and the ETS. Employers can rely on training completed prior to June 21, 2021, to the extent it meets the relevant training requirements. The employer’s training obligation is ongoing, and the employer must provide additional training whenever changes occur that effect an employee’s risk of contracting COVID-19 at work, policies and procedures are changed, or there is an indication that an employee needs retraining. The training must be conducted by a knowledgeable person and provide an opportunity for interactive questions and answers.
  • Prevent retaliation. Employers are prohibited from retaliating against an employee exercising the employee’s right to the protections required by the ETS or engaging in actions that are required by the ETS. The employer must inform each employee that the employee has a right to the protections required by the ETS.
  • Maintain records. Employers with 10 or more employees must retain all versions of the COVID-19 plan implemented to comply with the ETS while the ETS remains in effect. Employers must maintain a COVID-19 log to record all employee cases of COVID-19, regardless of whether it is a work-related exposure. The ETS specifies the details that must be recorded for each case, including certain employee demographics, occupation, location last worked, last day, date of positive test/diagnosis, and date of first symptoms. The log must be maintained as though it is a confidential medical record.
  • Report work-related COVID-19 fatalities and hospitalizations. The employer must report work-related COVID-19 fatality within eight hours of learning about it and report each work-related COVID-19 inpatient hospitalization within 24 hours.
  • Follow the Mini Respiratory Protection Program. The Mini Respiratory Protection Programonly applies when the use of a facemask (but not a respirator) is required, but the employer permits the employee to use their own respirator or provides respirators for employee use instead of facemasks. When employees provide their own respirators, the employer must distribute the notice set forth in the ETS. When the employer provides respirators instead of facemasks, the employer must provide training and ensure the employees are properly performing seal checks and correct any problems detected during the seal check. This section also specifies the conditions under which an employer may permit the reuse of filtering facepiece respirators, elastomeric respirators, and PAPRs.
If they have not already done so, healthcare employers should take steps to make sure they are in compliance with the requirements of the ETS. If you need help in analyzing how the ETS applies to your organization, please contact the author or your relationship partner at McCarter.