COVID-19, Regulatory Developments

Healthcare Industry’s Compliance With OSHA ETS Now Required

An Occupational Safety and Health Administration (OSHA) COVID-19 emergency temporary standard (ETS) went into effect in early June 2021, and compliance with most of the provisions was required by July 6. The final set of provisions (pertaining to training, ventilation, and barriers) wasn’t mandated until July 21. With some exceptions, the ETS applies to all settings where any employee provides healthcare or healthcare support services. 

Who’s covered 

Healthcare services. Services provided to individuals by professional healthcare practitioners (e.g., doctors, nurses, emergency medical personnel, oral health professionals) for the purpose of promoting, maintaining, monitoring, or restoring health are covered. The services can be delivered through various means, including hospitalization, long-term care, ambulatory care (e.g., treatment in physicians’ offices, dentists’ offices, medical clinics), home health and hospice care, emergency medical response, and patient transport. They also include autopsies. 

Healthcare support services. Also covered are services facilitating the provision of healthcare services, including patient intake/admittance, patient food services, equipment and facility maintenance, housekeeping services, healthcare laundry work, medical waste handling functions, and medical equipment cleaning/reprocessing services. 

What isn’t covered 

The ETS doesn’t apply to the following tasks and locations: 

  •  Provision of first aid by an employee who isn’t a licensed healthcare provider
  •  Dispensing of prescriptions by pharmacists in retail settings
  •  Nonhospital ambulatory care settings where 1) all nonemployees are screened before entry and 2) people with suspected or confirmed COVID-19 infections aren’t permitted to enter
  •  Well-defined hospital ambulatory care settings where 1) all employees are fully vaccinated, 2) all nonemployees are screened before entry, and 3) people with suspected or confirmed COVID-19 cases aren’t permitted to enter
  •  Home healthcare settings where 1) all employees are fully vaccinated, 2) all nonemployees are screened before entry, and 3) people with suspected or confirmed COVID-19 infections aren’t present
  •  Healthcare support services not performed in a healthcare setting where direct patient care occurs (e.g., off-site laundry, off-site medical billing)
  •  Telehealth services performed outside of a setting where direct permit care occurs

What’s required 

The ETS spells out numerous requirements for healthcare services settings. Here is a nonexhaustive list: 

COVID-19 plan. Healthcare services must develop and implement a COVID–19 plan for each workplace. If the employer has multiple workplaces that are substantially similar, its infection plan may be developed by workplace type rather than individual workplace so long as all required site-specific information is included. 

If the employer has more than 10 employees, the COVID–19 plan must be written. 

Designated safety coordinators. Employers must designate one or more workplace COVID–19 safety coordinators to implement and monitor the infection plan. The coordinator(s) must be knowledgeable about how the infection control principles and practices apply to the workplace and employee job operations. 

The identity of the safety coordinator(s) must be documented in any written COVID–19 plan. They must have the authority to ensure compliance with all aspects of the plan. 

Hazard assessment. Employers must conduct a workplace-specific hazard assessment to identify potential hazards related to COVID–19. They must seek the input and involvement of nonmanagerial employees and their representatives, if any, in the hazard assessment and the development and implementation of the plan. 

Personal protective equipment (PPE). Employers must ensure each employee wears a face mask over the nose and mouth when indoors or occupying a vehicle with other people for work purposes. They must provide a sufficient number of masks to each employee to comply with the requirement and ensure each changes them (1) at least once per day, (2) whenever they are soiled or damaged, and (3) more frequently as necessary (e.g., patient care reasons). There are exceptions to when a face mask is required. 

Training. Employers must ensure each employee receives training in a language and at a literacy level the individual understands, so at least the following information is comprehended: 

  •  COVID-19 facts, including how the virus is transmitted (including presymptomatic and asymptomatic transmission), the importance of hand hygiene, other ways to reduce the risk of spreading the infection, the disease’s signs and symptoms, risk factors for severe illness, and when to seek medical attention
  •  Employer-specific policies and procedures on patient screening and management and PPE
  •  Tasks and situations in the workplace that could result in an infection
  •  Workplace-specific policies and procedures to prevent the spread of COVID-19 that apply to the employee’s duties
  •  Workplace-specific policies and procedures for cleaning and disinfection
  •  Available sick leave policies, any COVID-19-related benefits, and the identity of the safety coordinator(s)

Additional training is also required under certain circumstances. 

Ventilation. Covered employers owning or control buildings or structures with an existing heating, ventilation, and air-conditioning (HVAC) system must be sure to follow the manufacturer’s instructions and design specifications. Maintain and replace all air filters as necessary to ensure the system’s proper function. Clean and maintain all other aspects of the system to make sure it’s functioning properly. 

Physical barriers. At each fixed work location outside of direct patient care areas (e.g., entryway/lobby, check-in desks, triage, hospital pharmacy windows, bill payment) where each employee isn’t separated from all other people by at least six feet of distance, the employer must install cleanable or disposable solid barriers, except where the employer can demonstrate it isn’t feasible. The barrier must be sized (e.g., height and width) and located to block face-to-face pathways between individuals based on where each person would normally stand or sit. The barrier may have a pass-through space at the bottom for objects and merchandise. Physical barriers aren’t required in direct patient care areas or resident rooms. 

OSHA ready to enforce ETS 

OSHA has already issued inspection procedures for the ETS, meaning area offices and compliance officers already have written directions on how to enforce it. Therefore, covered employers should ensure they’re in full compliance immediately. As a reminder, the ETS specifically prohibits retaliatory conduct. 

Paige Hoster Good is an attorney in McAfee & Taft’s Oklahoma City office. You can reach her at paige.good@mcafeetaft.com.