November 30, 2021

Volume XI, Number 334

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November 30, 2021

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November 29, 2021

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OSHA COVID-19 Emergency Temporary Standard Effective, With Enforcement Delays

After releasing an Emergency Temporary Standard (ETS) for COVID-19 for healthcare employers on June 10, 2021, the Occupational Safety and Health Administration (OSHA) has announced that it is publishing the ETS in the Federal Register on June 21, 2021.

Requirements Enforceable on July 5, 2021

The publication gives the ETS immediate effect, but most elements of the ETS will not be enforceable for 14 days, on July 5, 2021.

Those requirements include:

  • A COVID-19 plan, which must be in writing for covered healthcare employers with more than 10 employees;

  • Patient screening and management;

  • Policies and procedures to adhere to standard and transmission-based precautions based on guidelines promulgated by the Centers for Disease Control and Prevention (CDC);

  • Personal protective equipment, including face masks while workers are indoors or in vehicles together and respirators when employees are exposed to or engaging in aerosol-generating procedures with individuals with known or suspected cases of COVID-19;

  • Additional requirements to limit exposure and to disinfect areas when engaging in aerosol-generating procedures with individuals with known or suspected cases of COVID-19;

  • Physical distancing while indoors;

  • Cleaning and disinfection in accordance with CDC guidelines;

  • Paid leave for vaccinations and recovery;

  • Anti-retaliation protections for engaging in actions required by the ETS;

  • For covered healthcare employers with more than 10 employees, a COVID-19 log;

  • Reporting COVID-19 fatalities and hospitalizations to OSHA; and

  • Medical management requirements, including:

    • Daily health screenings;

    • Employee notification of employers if an employee tests positive for COVID-19, suspect they have COVID-19, or have symptoms;

    • Employer notification of employees within 24 hours of known cases;

    • Removal of employees from the workplace in accordance with CDC guidance; and

    • For covered healthcare employers with more than 10 employees, medical removal protection benefits for isolated or quarantined employees.

All requirements must be implemented at no cost to employees. The ETS exempts fully vaccinated employees from wearing a mask, social distancing, and barrier requirements when the employer determines there is no reasonable expectation another person with suspected or confirmed COVID-19 would be present. It is unclear how this determination can be made, however.

Requirements Enforceable on July 21, 2021

Three remaining requirements will be enforced beginning on July 21, 2021. Those requirements are:

  • Installation of physical barriers at workstations where employees cannot remain physically distant (six feet apart) from others;

  • Effective onsite ventilation; and

  • Employee training on COVID-19 risks and mitigation.

Healthcare Employers Covered by the ETS

The ETS covers healthcare settings where COVID-19 patients are treated, including:

  • Hospitals;

  • Nursing homes;

  • Assisted living facilities;

  • Ambulatory care facilities treating individuals with known or suspected cases of COVID-19; and

  • Any other settings where employees provide healthcare services or healthcare support services.

The ETS carves out these exceptions:

  • First aid provided by employees who are not licensed healthcare providers;

  • Distribution of prescriptions by pharmacists in retail settings;

  • Non-hospital ambulatory care settings where non-employees are screened for COVID-19 before entering and people with suspected or confirmed COVID-19 are not permitted to enter;

  • Well-defined hospital ambulatory care settings where all employees are fully vaccinated and non-employees are screened for COVID-19 before entering, and people with suspected or confirmed COVID-19 are not permitted to enter;

  • Home healthcare settings where all employees are fully vaccinated and non-employees are screened for COVID-19 before entering, and people with suspected or confirmed COVID-19 are not present;

  • Healthcare support services not performed in a healthcare setting; and

  • Telehealth services where no direct patient care occurs.

State Plan States

It remains unclear what effect the ETS will have on requirements for healthcare employers in the four OSHA “State Plan” states that have enacted their own COVID-19 standards under their authority pursuant to the Occupational Safety and Health Act. These are California, Michigan, Oregon, and Virginia. State Plan states must enact standards and run programs that are “at least as effective as” OSHA’s. Healthcare employers also will need to be aware of the myriad state and local requirements relating to COVID-19 in healthcare settings.

Jackson Lewis P.C. © 2021National Law Review, Volume XI, Number 172
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About this Author

Courtney Malveaux, OSHA Lawyer, Employment, Richmond, Virginia, Jackson Lewis Law Firm
Principal

Courtney Malveaux is a Principal in the Richmond, Virginia, office of Jackson Lewis P.C.

Mr. Malveaux represents employers cited by the Occupational Safety and Health Administration and other regulatory agencies. He also advises and represents employers in employment law matters, including retaliation claims, employment discrimination, unemployment benefits and wage claims. Mr. Malveaux also represents business associations in state and federal legislative and regulatory matters.

Mr. Malveaux represents industry on the Virginia Safety and...

804-212-2862
Jenifer Bologna Employment Lawyer Jackson Lewis
Of Counsel

Jenifer Bologna is Of Counsel in the White Plains, New York, office of Jackson Lewis P.C.

Ms. Bologna has extensive experience counseling employers on a variety of employment law issues. Ms. Bologna specializes in assisting employers in meeting the legal and practical challenges posed by federal and state laws protecting injured and ill employees, the most notable being the Americans with Disabilities Act and the Family and Medical Leave Act. In addition to counseling and training employers, Ms. Bologna represents management in workplace litigation in both...

914-872-6869
Patricia Anderson Pryor, Class Action, Litigator
Principal and Office Litigation Manager

Patricia Anderson Pryor is a Shareholder in the Cincinnati, Ohio office of Jackson Lewis P.C. Ms. Pryor is an experienced litigator in both state and federal courts, representing and defending employers in nearly every form of employment litigation, including class actions.

She represents and advises employers in federal and state administrative proceedings, in all forms of dispute resolution, including mediation and arbitration, and in managing all aspects of the employment relationship. She has represented...

513-322-5035
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