EMPLOYMENT LAW REPORT

On June 10, 2021, fifteen months into the global COVID-19 pandemic and on the heels of President Biden’s January 2021 Executive Order directing it to take action, OSHA enacted a mandatory emergency temporary standard (the “Standard”) focusing on the healthcare industry only.  The Standard aims to protect healthcare workers most likely to have contact with someone infected with the virus; specifically, all settings where an employee provides healthcare services or healthcare support services.  A major purpose of the Standard is to require employers to develop and implement effective COVID-19 plans.

Nuts and Bolts

The Standard requires healthcare employers to implement safeguards to reduce transmission of COVID-19 and to protect workers from contracting the virus, including:

1. 1. Employers must develop and implement a COVID-19 plan, which must be in writing if the employer has more than ten employees.  The plan must include a designated safety coordinator with authority to ensure compliance, a workplace-specific hazard assessment, and involvement of non-managerial employees in its creation.  The plan must be designed to promulgate policies and procedures to minimize the risk of transmission;
   2. Employers must limit and monitor points of entry to settings where direct patient care is provided, including screening and triaging of patients, clients, and other visitors entering the setting.  Employers are encouraged to use telehealth services where feasible;
   3. Employers must provide and ensure each employee wears a facemask when indoors and when occupying a vehicle with other people for work purposes.  Exceptions to the facemask requirement include:
      1. When the employee is alone in a room;
      2. When the employee is eating or drinking at the workplace, provided there is six feet of distance or a physical barrier separating the employee from others;
      3. When the employee is wearing respiratory protection;
      4. When it is important to see the employee’s mouth (such as when communicating with a deaf person);
      5. When the employee cannot wear a facemask due to medical necessity, a medical condition or disability, or due to a religious belief;
      6. When the employer can demonstrate that the use of a facemask presents a hazard to the employee or serious injury or death.
   4. Employers must provide and ensure employees use respirators and other PPE when exposed to people suspected or confirmed to have COVID-19;
   5. In cases where an aerosol-generating procedure is performed on a person suspected or confirmed to have COVID-19, the employer must limit the number of employees present to those essential for patient care and support and ensure the procedure is performed in an airborne infection isolation room, if available, and that all areas are cleaned and disinfected after the procedure is complete;
   6. Employers must ensure that each employee is separated from all other individuals by at least six feet when indoors, unless it is demonstrated that distancing is not feasible (e.g., during hands-on medical care).  In such a case, the employer must ensure that the employee is as far from other individuals as feasible;
   7. Employers must install cleanable or disposable solid barriers at each fixed work location in non-patient care areas where each employee is not separated from others by at least six feet;
   8. Employers must ensure that cleaning and disinfection of surfaces and equipment is performed in accordance with CDC guidelines in all patient care areas, resident rooms, equipment, and high-touch surface areas;
   9. Employers must ensure that existing HVAC systems are used in accordance with manufacturer’s instructions and design specifications;
   10. Employer’s must have a system for health screening and medical management, including:
       1. Screening employees before each shift;
       2. Requiring employees to promptly notify the employer if they are COVID-19 positive, suspected of having COVID-19, or experiencing certain symptoms;
       3. Following requirements for removing employees from the workplace; and
       4. For employers with ten or more employees, providing medical removal benefits
   11. Employers must support COVID-19 vaccination for employees by providing reasonable time and paid leave for obtaining the vaccination and any side effects experienced after vaccination;
   12. Employers must ensure that all employees are trained regarding all relevant policies and procedures so they understand COVID-19 transmission, tasks and situations in the workplace that could result in infection;
   13. Employers must inform employees of their rights under the Standard and that they cannot be discharged or discriminated against for exercising their rights;
   14. Standard requirements must be implemented at no cost to employees.

In addition to the requirements listed above, the Standard requires that employers with ten or more employees retain all versions of its COVID-19 plan while the Standard remains in effect.  With regard to recordkeeping, employers must establish and maintain a COVID-19 log to record each instance in which an employee is COVID-19 positive, regardless of whether the instance is connected to exposure at work.  The Standard reiterates that the employer must report each work-related COVID-19 fatality within eight hours of the employer learning about the fatality and work-related in-patient hospitalizations within 24 hours.

Applicability of the Standard

The Standard applies to all settings where employees provide healthcare services or healthcare support services.  In situations where a healthcare setting is embedded within a non-healthcare setting, the Standard applies only to the embedded healthcare setting and not to the remainder of the physical location.  The Standard also applies to situations where emergency responders or other licensed healthcare workers enter a non-healthcare setting during the provision of healthcare services.

The Standard exempts fully vaccinated workers from masking, distancing, and barrier requirements in “well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.”  In order for fully vaccinated workers to be exempt from these requirements, however, an employer’s COVID-19 plan must “include policies and procedures to determine employees’ vaccination status.”

The Standard does not apply to the provision of first aid by an employee not licensed as a healthcare provider, the dispensing of prescriptions by a pharmacist in retail settings, non-hospital ambulatory care settings where all non-employees are screened prior to entry and people suspected or confirmed to have COVID-19 are not permitted to enter, healthcare support services not performed in a healthcare setting, and telehealth services performed outside of a setting where direct patient care occurs.

Bottom Line

It appears that in lieu of an all encompassing COVID-19 safety standard, OSHA elected to limit its safety measure to healthcare facilities such as hospitals, nursing homes, and assisted living facilities, along with emergency responders and home healthcare workers, in an attempt to target an industry that has been hard hit by the pandemic in terms of exposure and transmission of the virus.

While the Standard is estimated to cover and protect nearly 10 million healthcare workers, many employees in other industries – such as grocery and meatpacking– have criticized the narrow scope of the Standard and advocated for a broader range of coverage.

It will be interesting to see if OSHA decides to make this Standard permanent and/or to expand the scope of the Standard to other industries.  We will monitor this issue for further developments.