It may seem a little late in the game, but acting in response to an Executive Order, OSHA issued an Emergency Temporary Standard (ETS) on June 10, 2021.
Click here to view the OSHA’s fact sheet for a more complete summary.
As you can see, this ETS only applies to “Healthcare Employers,” but that definition is broad – encompassing all settings where any employee provides “healthcare services”
[1] or “healthcare support services.”
[2] The ETS targets healthcare settings where suspected or confirmed COVID-19 patients are treated, specifically including hospitals, nursing homes, assisted living facilities, emergency responders, home healthcare workers, and ambulatory care facilities where care is performed on an outpatient basis.
There are exemptions. For example, home health care is exempt if all three conditions are met: (1) All employees are vaccinated; (2) All non-employees are screened prior to entry; and (3) People with suspected or confirmed COVID-19 are not present. There are other obvious exceptions where there is no possibility of COVID-19 exposure, like telehealth services. For more information on whether your workplace is covered by the ETS, see the Fact Sheet above or
click here to view the simplified flow sheet.
The bad news: The requirements for covered employers are onerous.
The worse news: Covered employers only have until July 5, 2021 to comply with the requirement to develop a COVID-19 plan. You have until July 21, 2021 to make more significant adjustments, such as barriers, ventilation and training. Likely, many healthcare employers will already comply with at least some of the required changes to the physical plant.
A little good news: On June 23, 2021, OSHA released essentially a compliance toolkit.
Click here to view. This toolkit contains a link to the ETS text (29 CFR 1910, subpart U). It includes many factsheets, including Spanish language versions. Non-healthcare employers may also find some of these resources useful. While the ETS does not apply to you, OSHA is still citing employers under the General Duty Clause if it finds the employer did not take reasonable steps to protect employees from COVID.
Maybe the best news: The toolkit contains a link to a COVID-19 Plan Template in the form of a Word document that covered employers can customize for their workplace(s) before July 6. Just like an employer would be well advised to use DOL forms for FMLA administration, for example, an employer should strongly consider using this template plan. The Administration’s template will be the gold standard if (and when) OSHA engages in enforcement action.
Two other documents will be key to get you on the road to complying with this significant regulation.
Click here to view the COVID-19 Healthcare Worksite Checklist & Employee Job Hazard Analysis will help you complete the rule’s mandatory risk assessment. Additionally, the toolkit contains template employee training presentations, which comply with the rule.
This is a brief summary of a comprehensive set of new regulatory obligations and the tools provided by OSHA to help you comply with those obligations. You should involve qualified legal counsel, infection control, and employee safety and health professionals to ensure compliance.
Daniel L. Herrington is a partner in the Labor and Employment Relations Practice Group focused on representing employers in all areas of labor and employment law, including ADA, FMLA, Wage and Hour, Title VII, OSHA and NLRA.
Amie K. Wilcox is an associate in the Health Law Practice area and primarily works on various corporate and compliance matters. She drafts and reviews policies to ensure compliance with federal healthcare regulations such as HIPAA, Stark I and Stark II, Anti-Kickback and Medicare/Medicaid reimbursement.
Disclaimer: The information included here is provided for general informational purposes only and should not be a substitute for legal advice nor is it intended to be a substitute for legal counsel. For more information or if you have further questions, please contact one of our Attorneys.
[1] “Healthcare Services” mean services that are provided to individuals by professional healthcare practitioners for the purpose of promoting, maintaining, monitoring, or restoring health.
[2] “Healthcare Support Services” mean services that facilitate the provision of healthcare services.