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COVID-19 Alert: OSHA Issues Emergency Temporary Standard for Healthcare Settings
By: Matthew Mitchell & Amanda Thibodeau
On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) issued an Emergency Temporary Standard (“ETS”) directed at protecting frontline healthcare workers for the duration of the COVID-19 pandemic. As part of the Biden Administration’s directives, OSHA determined that its current standards and regulations, and OSHA’s General Duty Clause, were inadequate to protect workers in the healthcare sector, and issued this ETS. OSHA additionally updated its non-binding guidance for all other industries, which still remain subject only to OSHA’s regular regulations, standards, and General Duty Clause.
THE “NEW” REQUIREMENTS
The main section of the ETS requires employers to develop and implement effective COVID-19 plans, the control strategies of which should be very familiar to most employers at this point in the pandemic. However, now OSHA will require employers to use a number of familiar controls in a layered approach in order to protect employees. The key requirements of the ETS are:
- COVID-19 Plan. OSHA will now require every qualifying employer to develop and implement a COVID-19 plan for each workplace site. If the employer has more than 10 employees, the plan must be in writing. The Plan must be developed in conjunction with management and non-management and must be clearly communicated to employees.
- Patient screening and management. Employers must limit points of entry in direct care patient settings, screen and triage all visitors, clients, patients, and others entering the setting, and encourage telehealth services when appropriate.
- Standard and transmission-based precautions. Employers must develop and implement policies and procedures to adhere to Standard and Transmission-Based precautions based on CDC guidelines.
- PPE. Employers must provide facemasks to be worn by each employee when indoors or when sharing a vehicle for work purposes, with some exceptions.
- Aerosol-generating procedures on a person with suspected or confirmed COVID-19. Employers must limit employees present for the procedure to only those essential, and perform procedures in an airborne infection isolation room, if available; and clean and disinfect surfaces and equipment after the procedure is completed.
- Physical distancing. Employers must keep people at least 6 feet apart when indoors, unless not feasible (such as for hands-on medical care).
- Physical barriers. Employers must install cleanable or disposable barriers installed at fixed work locations in non-patient areas where social distancing is not possible.
- Cleaning and disinfection. Employers must engage in standard practices for cleaning and disinfection for patient care areas, resident rooms, and medical devices and equipment, and in all other high-touch areas, in accordance with CDC guidelines.
- Ventilation. Employers must ensure that all HVAC systems are used in accordance with the manufacturer’s instructions, and that all air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher, or the highest compatible with the system.
- Health screening and medical management. Employers must screen each employee daily, which may be done through self-monitoring by the employee. Each employee must report COVID-19 confirmed and suspected illness, or symptoms to the employer. The Employer must also notify all employees who were not wearing respirators and/or required PPE of any COVID-19 exposure at the workplace.
- Vaccination. Employers must provide support and paid leave for employees to receive a COVID-19 vaccination, and to recover from any side effects.
- Training. Employers must train and educate employees on COVID-19 transmittal, hygiene, and other prevention policies and procedures.
- Anti-retaliation. Employers must inform employees of their rights to the protections required by the ETS, and employers must not discharge or discriminate against employees for exercising their rights under the ETS or for engaging in actions required by the ETS.
- Recordkeeping. Employers with more than 10 employees must establish a COVID-19 log of all employee COVID-19 infections and follow requirements for making records available to employees and union representatives.
- Reporting requirements. Employers must comply with OSHA’s reporting requirements for work-related COVID-19 fatalities and in-patient hospitalizations.
Will these changes under OSHA’s new ETS affect your business? Learn more in our COVID-19 Alert.
OSHA Publishes Guidance on Returning to Work
On June 18, 2020, the Occupational Safety and Health Administration (OSHA) published Guidance on Returning to Work (the “Guide”). The Guide, just as with other recent COVID-19-related OSHA publications, was published as recommendations meant to assist employers, and does not impose new regulations or standards.
The Guide supplements OSHA’s previously published Guidance on Preparing Workplaces for COVID-19, and expands on the three-phased re-opening approach articulated in the White House’s Opening Up America Again:
- Phase 1: Businesses should encourage telework where feasible. Where not feasible, businesses should consider limiting the number of people in the workplace to maintain proper social distancing. Flexibilities and accommodations for employees who are at high-risk of contracting the virus should be considered.
- Phase 2: Businesses should continue to allow telework but can begin to ease up on social distancing protocols at the workplace.
- Phase 3: Businesses may resume without restrictions at the workplaces.
The Guide then identifies nine key areas employers should assess when creating their re-opening plans, and provides examples to guide employers in each area:
- Hazard assessment
- Hygiene
- Social distancing
- Identification and isolation of sick employees
- Return to work after illness or exposure
- Controls
- Workplace flexibilities
- Training
- Anti-retaliation
The Guide is not meant to cover every scenario or to provide the only solution to the various challenges that businesses may encounter when re-opening. Employers reviewing the Guide should keep in mind that that the Guide provides recommendations that should be read in the context of local re-opening regulations and recommendations from the CDC. It is important to keep up-to-date with the state and local orders and implement those directives within this framework provided by OSHA.
For more information, please contact Amanda Thibodeau.
OSHA Publishes FAQs on Face Coverings in the Workplace
The Occupational Safety and Health Administration (OSHA) recently published additional recommendations in the form of FAQs related to the use of face masks in the workplace. The new guidance covers the differences between PPE, cloth face masks, and surgical masks, and what the current OSHA regulations require of employers. OSHA clarifies that the new FAQs do not place new regulatory burdens on employers, but are instead provided to assist employers in providing a safe workplace under current regulations.
The Occupational Safety and Health Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their employees with “a workplace free from recognized hazards likely to cause death or serious physical harm.” This generally requires employers to adopt strategies and other control measures to protect their workers from known hazards. While cloth face coverings are encouraged by the Centers for Disease Control (CDC), current OSHA regulations do not require cloth face coverings. However, OSHA does have regulations and standards on when PPE is required or recommended. It also notes that cloth face coverings or even surgical face masks are not a substitute for PPE, such as N95 masks, under OSHA’s PPE standards.
OSHA’s FAQs detail the differences between cloth face coverings, surgical masks, and respirators, and the merits and protections of each. OSHA recommends that even though cloth face coverings are not required under its regulations, employers may choose to adopt such a policy as a control measure, and OSHA does encourage their use. OSHA notes, however, that whether an employer chooses to require or encourage masks will be highly dependent on the specific circumstances of each worker, workspace, and work requirements. In some instances, the wearing of a face covering may increase other hazards, and employers should be cognizant of evaluating such risks when forming any policies on face coverings. OSHA also emphasized that face coverings are not a substitute for social distancing measures, and employers must still adopt such strategies with or without face coverings.
OSHA additionally made clear that for industries or situations where respirators and other PPE are required by the presence of applicable workplace hazards, the regulations require that employers attempt other mitigation and control strategies before requiring respirators – but when respirators cannot be obtained due to supply issues (or other unavailability), employers cannot substitute cloth or surgical masks. For example, where asbestos is present and creates an imminent danger to the worker, the employer must attempt other control issues (engineering, administrative, and work practice controls) first. If the control measures do not eliminate the hazard and respirators are not available, the employer must delay the task, if feasible, to avoid exposing the worker to the hazardous condition.
For more information, please contact Amanda Thibodeau.
OSHA Updated Response Plan and Updated Reporting Requirements for COVID-19
The Occupational Safety and Health Administration (OSHA) issued updated guidance including an Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19), and updated reporting requirements for employers to report work-related cases of COVID-19. As employers begin re-opening and bring employees back to work (and for those essential businesses continuing to operate), employers should keep these updates from OSHA in mind in forming their COVID-19 response plans.
Learn about the OSHA updates in our COVID-19 Alert.
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