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Fifteen months into the COVID-19 pandemic, the Occupational Safety and Health Administration (OSHA) has issued the long-awaited Emergency Temporary Standard (ETS). This standard will be included in the Code of Federal Regulations (CFR) and will become law, unlike the guidance previously issued. The ETS is issued in response to President Biden’s January 21, 2021 Executive Order directing OSHA to consider whether an ETS on COVID-19 was warranted and to issue such standards by March 15, 2021. OSHA experienced numerous delays believed to be due in part to the vaccination rollouts and the changing guidance from the Centers for Disease Control and Prevention (CDC).

The ETS, which applies only to healthcare workers, will be effective upon publication in the Federal Register and for the following 6 months.  Employers have 14 days to comply with most ETS requirements and 30 days to comply with the physical barriers, training, and ventilation requirements. Certain healthcare employers are excluded from the ETS, such as employers who do not treat suspected or positive COVID patients and are able to screen out individuals with COVID-like symptoms. Most provisions apply regardless of an employee’s vaccination status.

Below are highlights from the ETS and certain provisions healthcare employers should consider to comply with the new standard:

Develop and Implement a Written COVID-19 Plan:

• Designate a COVID-19 safety coordinator who is knowledgeable about infection control. The COVID-19 safety coordinator will be responsible for ensuring compliance with the written COVID-19 plan.
• Complete a hazard assessment to determine workplace hazards related to COVID-19. The hazard assessment must include involvement and advice of non-managerial employees.
• Implement policies and procedures to minimize the risk of COVID-19 transmission and to ensure guidance with CDC policies.
• Provide documented education and training to employees so they understand the written COVID-19 plan and what it entails.

PPE Requirements:

• Employers must provide employees with FDA-approved facemasks and ensure employees change the facemask at least once per day unless soiled/damaged or more frequently as needed for patient care.
• Provide employees with N95 respirators and full PPE when there is exposure to a person with suspected or confirmed COVID-19 diagnosis. OSHA’s respiratory protection standard (29 C.F.R 1910.134) must be followed.
• When employees are not required to wear N95 respirators but voluntarily choose to do so, the ETS includes additional training and monitoring requirements in the “Mini Respiratory Protection Program.”

Screening Requirements:

• Screen employees before each shift.
• Continue to screen visitors and non-employees who enter the workplace and limit entrance to one point of entry.
• Employees must be provided COVID-19 testing at no cost to the employee if a COVID-19 test is required for screening purposes.
• Continue to require employees to notify the employer if they experience COVID-19 illness or symptoms.
• Notify certain employees within 24 hours when a person who has been in the workplace tests positive for COVID-19.
• If employees are excluded from work because of a positive test, symptoms, or exposure, they must be paid “medical removal protection benefits” as defined by section (l)(5) of the ETS.

Social Distancing & Physical Barriers:

• Ensure employees are practicing social distancing (6 ft apart) within the workplace while inside.
• Install/create physical barriers throughout the facility where employees are not separated from other people by at least 6 ft. This does not include patient rooms or areas where direct patient care is provided.

Cleaning & Disinfection Requirements:

• Continue to follow CDC guidelines for all cleaning throughout the facility including equipment and high touch surface areas. High touch surface areas must be cleaned once a day.
• If a patient, resident, employee, or visitor tests positive for COVID-19 and was in the facility within 24 hours before testing positive, the employer must clean and disinfect all areas and equipment that have been contaminated by the COVID-positive individual.

Ventilation Systems:

• Ensure existing HVAC systems that are owned or controlled by the employer are used in accordance with the manufacturer’s instructions.
• Use air filters that are rated Minimum Efficiency Reporting Value (MERV) 13 if compatible or use the highest compatible filtering efficiency allowed by the HVAC system.

Vaccination Efforts:

• The employer must provide reasonable time and paid leave for employees to obtain the COVID-19 vaccine and recover for any adverse symptoms associated with the vaccine.

Training & Education:

• Continue to ensure employees complete in-service training on COVID-19 P&Ps, PPE, symptoms of COVID-19, and potential transmission of COVID-19.
• All COVID-19 in-service training should be well documented with supporting handouts or teaching demonstrations. Documentation of any COVID-19 in-service training and attendance must be kept in a secure place within the facility and readily available in anticipation of an OSHA inspection.

Anti-Retaliation Efforts:

• Inform employees of their rights and protections afforded by OSHA and the ETS.
• Do not discharge or discriminate against employees who make efforts to enforce their rights under the ETS.

Record Keeping and Reporting:

• Record on a separate “COVID-19 Log” all positive COVID-19 cases, regardless of whether the case is “work-related.” A case must be documented within 24 hours after receiving the test results. For employees who test positive, the employer must include the employees name/contact number, date of positive test, last day of work, location employee worked within the facility, and whether employee suffered any symptoms of COVID-19.
• Continue recording all “work-related” employees who test positive for COVID-19 on the OSHA 300 log.
• Report to OSHA all employees who die or are hospitalized due to a work-related case of COVID-19. Deaths must be reported within 8 hours and hospitalizations within 24 hours after the employer is notified. The reporting requirements are not contingent on the time elapsed between transmission of the virus and the hospitalization or death.

Many healthcare employers have already implemented basic infection control methods, but the ETS includes several formalities and wrinkles that could create exposure for a business. Our lawyers will be glad to discuss any questions on whether the ETS applies to your business or about how your current policies compare to the ETS.