February 6, 2023

Volume XIII, Number 37

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February 03, 2023

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OSHA Issues COVID-19 Standards for Health Care Employers

The first nationwide emergency workplace safety rule, requiring health-care employers to protect workers from occupational exposure to COVID-19 in settings where people with COVID-19 are reasonably expected to be present, has been published on OSHA’s website.  The emergency temporary standard (“ETS”) released Thursday applies only in the health-care sector and will be supplemented by voluntary guidance for other industries.

The ETS applies broadly to “all settings where any employee provides healthcare services or healthcare support services,” but there are several notable exceptions. The ETS does not apply to the following:

  • First aid performed by an employee who is not a licensed healthcare provider;

  • Dispensing of prescriptions by pharmacists in retail settings;

  • Non-hospital ambulatory care settings where all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings;

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

  • Home healthcare settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not present;

  • Healthcare support services not performed in a healthcare setting (e.g., off-site laundry, off-site medical billing); or

  • Telehealth services performed outside of a setting where direct patient care occurs.

The technical standards are complex, and health care employers should carefully review the ETS to ensure compliance.  The following is a high-level summary of some of the requirements health care employers must undertake:

  • Conduct a workplace specific hazard assessment, with input from non-managerial employees and their union, if applicable;

  • Develop a COVID-19 plan for each workplace and designate a safety coordinator to implement and monitor compliance with the plan;

  • Limit and monitor points of entry in direct patient care settings and screen and triage all non-employees upon entry;

  • Provide and ensure employees wear facemasks when indoors, and respirators and other PPE when exposed to people with suspected or confirmed COVID-19;

  • Follow specific protocol for aerosol-generating procedures on persons with suspected or confirmed COVID-19;

  • Ensure employees are following physical distancing rules while indoors, and install physical barriers at work locations in non-patient care areas where employees are not separated by at least 6 feet;

  • Follow CDC guidelines on cleaning and disinfecting;

  • Use HVAC systems in accordance with manufacturer’s directions and with a filter with a MERV rating of 13 or higher if possible;

  • Screen and monitor employees, including notification to employees,

  • Support employee vaccination with reasonable time and paid leave for vaccination and any side effects;

  • Train employees on disease transmission and relevant policies and procedures;

  • Inform employees of their rights under the ETS;

  • Maintain a log to record each instance in which an employee is COVID-19 positive, regardless of whether it is connected to occupational exposure; and

  • Report hospitalizations and fatalities to OSHA.

The ETS is effective immediately upon publication in the Federal Register. Employers must comply with most provisions within 14 days, and with the remaining provisions within 30 days.  OSHA has also published nearly 100 FAQs regarding the ETS.

© 1998-2023 Wiggin and Dana LLPNational Law Review, Volume XI, Number 161

About this Author

Michael L. Miller Real Estate Lawyer Wiggin & Dana Law Firm

Mike is a Partner in Wiggin and Dana’s Real Estate, Environmental and Energy Department in the New Haven office. An experienced environmental, health and safety (EHS) attorney, Mike’s practice is largely comprised of three distinct categories of EHS legal representation: transactional support; compliance and risk counseling; and litigation.

Mike has over thirteen years of EHS compliance and risk management experience. His passion for client service, substantive and technical knowledge and geographic breadth of experience (having worked on matters in over 20 states) contribute to his...

Caroline Park Labor and employment lawyer Wiggin Dana

Caroline is Counsel in Wiggin and Dana's Labor, Employment and Benefits Department and is a member of the firm’s Diversity Committee.

Caroline’s practice encompasses federal and state court litigation and the arbitration and mediation of employment discrimination claims, wrongful discharge claims, wage and hour claims, disputes over the enforcement of covenants not to compete, and other employment-related disagreements. Caroline also represents employers in cases involving claims of discrimination, harassment, and retaliation, before the Commission on Human Rights and Opportunities...

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