By Brian M. Foley, Esq. and Christina E. Principe*

On June 10, 2021, the Occupational Safety and Health Administration (OSHA) promulgated an emergency temporary standard (ETS) for healthcare employers. The ETS is issued in response to President Biden’s January Executive Order on “Protecting Worker Health and Safety,” which instructed covered healthcare employers to develop and implement a COVID-19 plan to identify and control COVID-19 hazards in the workplace and reduce transmission rates.

The emergency rule, contained in 29 C.F.R. Part 1910, Subpart U, establishes workplace safety parameters for employers who provide healthcare services or healthcare support services. The ETS is aimed at protecting workers who face the highest COVID-19 hazards, including employees in hospitals, nursing homes and assisted living facilities; emergency responders; home health care workers; and employees in ambulatory care facilities where suspected or confirmed COVID-19 patients are treated. To determine whether and how your workplace is covered by the ETS, refer to 29 CFR 1910.502 or use the OSHA flow chart. 

Key Requirements of the ETS. The provisions address the development of a COVID-19 plan; patient screening and management; precautions based on CDC guidance; personal protective equipment (PPE); precautions for use of aerosol-generating procedures; physical distancing; physical barriers; cleaning and disinfection; ventilation; health screening and medical management; training; and recordkeeping. Notably, covered employers must: 

• Develop a COVID-19 preparedness and response plan for the workplace and designate COVID-19 safety coordinators to monitor the plan;
• Conduct a workplace-specific hazard assessment to identify potential workplace hazards;
• Perform patient management by limiting and monitoring points of entry in direct patient care settings and screening all individuals entering such settings for symptoms of COVID-19;
• Develop and implement standard and transmission-based precautions in accordance with CDC guidelines;
• Provide and ensure employees wear facemasks and other PPE while working and be subject to a mini respiratory protection program outlined in 29 CFR 1910.504;
• Comply with aerosol-generating procedures;
• Implement requirements for physical distancing, physical barriers, cleaning and disinfection of surfaces and equipment, and ventilation;
• Provide health screening and medical management to employees;
• Support COVID-19 vaccination by providing reasonable time and paid leave for employee vaccinations and vaccine side effects;
• Train employees on COVID-19 transmission, tasks, and situations in the workplace that could result in infection;
• Inform employees of their rights to the protections required by the ETS and refrain from any retaliation against employees for exercising their rights under the ETS;
• Report work-related COVID-19 fatalities and in-patient hospitalization to OSHA, along with additional recordkeeping of a COVID-19 log of all employee instances of COVID-19, and make these records available to employees; and
• Implement the ETS at no cost to the employees.

The updated guidance from OSHA instructs employers to focus protections on unvaccinated and otherwise at-risk workers and continue to encourage COVID-19 vaccination. The standard exempts from coverage certain workplaces where all employees are fully vaccinated and individuals with possible COVID-19 are prohibited from entry. It also exempts fully vaccinated workers from masking, distancing, and barrier requirements in well-defined areas where there is no reasonable expectation that individuals with COVID-19 will be present.

Compliance Deadlines. The ETS will be effective upon publication in the Federal Register, which is yet to be determined,and will remain in effect until superseded by a permanent standard, which must be adopted within six months of publication of the ETS. Employers must comply with most ETS provisions within 14 days of publication. Compliance with other provisions, including physical barriers, ventilation, and training requirements, is required within 30 days of publication.

We will continue to monitor the updates and will provide further guidance as it is made available by OSHA. For additional information you may contact Brian M. Foley, Esq. at bmf@spsk.com or (973) 540-7326. 

*Christina E. Principe is a Summer Associate at Schenck, Price, Smith & King, LLP.  Christina is a rising third year law student at Seton Hall University School of Law.

DISCLAIMER: This Alert is designed to keep you aware of recent developments in the law. It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.