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06/14/2021

OSHA Issues Emergency Temporary Standard for Healthcare Industry

ETS Includes Exemptions for Healthcare Workplaces That Screen Patients Who May Have COVID-19

Key Takeaway and Recommendation from the MAC: If you are already practicing current safety standards, in which ALL non-employees are screened prior to entry, and people with suspected or confirmed COVID-19 are not permitted to enter, you are exempt from the OSHA Emergency Temporary Standards discussed in this email.

Disclaimer: This article is information-only and does not constitute legal advice regarding any specific matter or situation. Legal advice may be given only on the basis of specific facts relayed by a client to an attorney. It is not intended to be all-inclusive. To ensure that the information provided conforms to your specific situation, consult an attorney.

On Thursday, June 10, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) to protect healthcare workers from contracting coronavirus, as well as updated general industry guidance, both of which are aligned with the latest updates from the Centers for Disease Control and Prevention (CDC). The emergency temporary standard establishes new requirements for settings where employees provide healthcare or health care support services, with some exemptions for healthcare providers who screen out patients who may have COVID-19 and for fully vaccinated workplaces.

Is My Practice Covered by the COVID-19 Healthcare ETS?

OSHA has released a flow chart to determine whether and how healthcare workplaces are covered by the ETS. Basically, to be exempt, if the workplace is a setting where any employee provides healthcare services (services provided by professional healthcare practitioners for the purpose of promoting, maintaining, monitoring, or restoring health) or healthcare support services (services that facilitate the provision of healthcare services), ALL the following conditions must apply:

  • It is a non-hospital ambulatory care (healthcare services performed on an outpatient basis, without admission to a hospital or other facility, provided in settings such as the offices of physicians and other health care professionals) setting,
  • ALL non-employees are screened prior to entry, and
  • People with suspected or confirmed COVID-19 are not permitted to enter.

Additionally, the ETS exempts 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.”

What If I’m Not Exempt?

The ETS requires “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 six feet of distance between workers. In situations where this is not possible, employers should erect barriers between employees where feasible.”

The ETS also requires non-exempt employers to provide employees with paid time off to get vaccinated and recover if any side effects occur. Additionally, covered employees with COVID (or who may be contagious) must work remotely or otherwise be separated from other employees, when possible, or be given paid time off up to $1,400 per week.

OSHA will update the standard, if necessary, to align with CDC guidelines and changes in the pandemic. The ETS is effective immediately upon publication in the Federal Register, which could happen as soon as today, June 14, 2021. Employers must comply with most provisions within 14 days and with the remaining provisions within 30 days, but OSHA will use enforcement discretion and not cite employers who miss a compliance deadline “but are making a good faith effort to comply with the ETS.”

The ETS can remain in place for up to six months, during which time OSHA can consider implementing a permanent rule.

Additional Information

For more information, we recommend the article “OSHA Finally Issues Its COVID-19 Emergency Temporary Standard, Confines It to Healthcare,” June 11, 2021, from attorneys at Ogletree Deakins, a leading labor and employment law firm. Other resources made available by OSHA include:

About the Rule

Implementing the ETS

Sources:

U.S. Department of Labor Press Release 21-355-NAT, “US Department of Labor's OSHA Issues Emergency Temporary Standard to Protect Health Care Workers from the Coronavirus,” June 10, 2021

OSHA Guidance for All Industries Not Covered by Healthcare ETS

Guidance Intended to Help Employers and Workers Not Covered by the ETS to Identify COVID-19 Exposure Risks to Unvaccinated and Other At-Risk Workers

Simultaneous with the release of the ETS, OSHA also released new COVID-19 guidelines for all employers and workers not covered by the ETS. However, OSHA notes the following: “This guidance is not a standard or regulation, and it creates no new legal obligations. It contains recommendations… [that are] advisory in nature and informational in content, and are intended to assist employers in recognizing and abating hazards likely to cause death or serious physical harm as part of their obligation to provide a safe and healthful workplace.”

So, if these are recommendations that do not create new legal obligations, are there penalties for violating them?

While not abiding by these recommendations will most likely not be the basis for an OSHA citation, OSHA could use the guidance in support of a General Duty Clause violation, under Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, which requires employers to provide “a place of employment which [is] free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees…” If OSHA finds that failure to act in accordance with the guidelines interferes with providing a safe work environment, penalties could be assessed.

Generally, according to OSHA, employers can be cited for violation of the General Duty Clause “if a recognized serious hazard exists in their workplace and the employer does not take reasonable steps to prevent or abate the hazard.” The following elements are necessary to prove a violation of the General Duty Clause:

  • The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed
  • The hazard was recognized
  • The hazard was causing or was likely to cause death or serious physical harm, and
  • There was a feasible and useful method to correct the hazard

In 2020, only three coronavirus-related General Duty Clause violations, all in the meat-packing industry, were issued. However, with new leadership in the agency due to the transition to the Biden administration, it is unclear if additional coronavirus-related General Duty Clause violations could be a priority.

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