December 2, 2021

Volume XI, Number 336

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OSHA’S COVID-19 Requirements for Healthcare Employers Take Effect

On June 21, 2021, the US Occupational Safety and Health Administration’s (OSHA) long-anticipated Emergency Temporary Standard (ETS) for COVID-19 requirements in the healthcare industry went into effect. Most of the requirements must be followed by July 6, 2021; the remainder (on implementing physical barriers, improved ventilation systems and employee trainings) must be implemented no later than July 21, 2021.

IN DEPTH

WHO IS COVERED

OSHA’s COVID-19 safety requirements are workplace-specific; this means that employers who have some employees working in a patient setting and other employees working in a corporate setting may need to follow the requirements only for the patient-based setting.

Covered settings include those where any employee provides “healthcare services” or “healthcare support services.”

“Healthcare services” mean “services that are 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. Healthcare services are delivered through various means including: hospitalization, long-term care, ambulatory care, home health and hospice care, emergency medical response, and patient transport. For purposes of this section, healthcare services include autopsies.”

“Healthcare support services” mean “services that facilitate the provision of healthcare services, such as patient intake/admission, patient food services, equipment and facility maintenance, housekeeping services, healthcare laundry services, medical waste handling services and medical equipment cleaning/reprocessing services.”

EXCEPTIONS TO COVERED EMPLOYERS

There are a number of situations in which the full ETS, or sections of the ETS, do not apply. These include:

  • 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; and

  • Well-defined areas (in any setting) where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present. In this case, the ETS requirements for personal protective equipment (PPE), physical distancing and physical barriers do not apply to employees who are fully vaccinated. Employers seeking to avail themselves of this exception must establish procedures for determining employee vaccination status, and they must document those procedures in the COVID-19 plan.

This chart provides additional details for determining whether an employer’s workplace is covered by the ETS.

COVID-19 PLAN

Employers must develop a COVID-19 plan for each workspace. If multiple workspaces are similar, the same plan can be used.

Employers must designate at least one COVID-19 safety coordinator to implement the COVID-19 plan. This person must be knowledgeable in infection control principles, and their identity must be documented in the COVID-19 plan.

Employers must conduct a workplace-specific hazard assessment to identify potential hazards related to COVID-19. The COVID-19 plan must address each of these hazards, including policies to minimize the risk of transmitting COVID-19.

Where multiple employers have employees in a shared workplace—such as a hospital that employs healthcare providers but contracts with a third party to provide food service workers—the employers must communicate and coordinate with each other regarding the COVID-19 plans.

Employers must solicit the involvement of non-managerial employees (or their representative, such as a union) in conducting the hazard assessment and in developing the COVID-19 plan.

OTHER REQUIREMENTS

Employers must provide PPE, impose social-distancing requirements, install physical barriers, ensure that existing HVAC systems are working properly (or install new ones) and screen employees before each work day and each shift.

If an employer learns that an individual with suspected or confirmed COVID-19 has been in the workplace, the employer must notify employees that share the same well-defined workspace with that individual. Employees who have been in close contact with the individual, without appropriate PPE, must be removed from the workplace under US Centers for Disease Control and Prevention (CDC) guidance.

VACCINATION

Employers must provide reasonable time and paid leave to employees for COVID-19 vaccination and for side effects experienced following vaccination. The ETS is silent as to whether employers must retroactively provide paid leave for vaccination and related side effects, but the remainder of the ETS is intended to apply only prospectively. Employers need not reimburse employees for time away from work due to vaccination and side effects if the leave took place before July 5, 2021.

TRAINING

Employers must ensure that all employees receive training on COVID-19, including methods of transmission; the employer’s policies on patient screening and management; workplace situations that could result in COVID-19 transmission; and related topics. Employers may rely on trainings that took place before June 21, 2021, if the trainings meet the ETS’s basic requirements.

ANTI-RETALIATION

Employers must inform employees that retaliation is prohibited against employees for seeking to follow the requirements of the ETS, or for seeking to avail themselves of any other rights available to them under the Occupational Safety and Health Act.

RECORDKEEPING

Employers must retain copies of all final versions of the COVID-19 plan, and they must establish a COVID-19 log to record all instances in which an employee tests positive (even if the instance is not deemed work-related) for contact-tracing purposes. Employers with 10 or fewer employees as of June 21, 2021, are not required to maintain these records.

EFFECTIVE DATE

The ETS is effective as of June 21, 2021. Covered employers must comply with its requirements by July 6, 2021; however, the compliance regarding the establishment of physical barriers, ventilation systems and employee trainings is not required until July 21, 2021. OSHA has stated that it will use its enforcement discretion in situations where an employer can demonstrate that it has made good-faith efforts to comply with the ETS by the specified dates, even if the employer has been unable to do so.

© 2021 McDermott Will & EmeryNational Law Review, Volume XI, Number 174
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About this Author

Abigail M. Kagan Employment Attorney McDermott Will & Emery New York, NY
Associate

Abigail M. Kagan focuses her practice on employment law, with particular experience in conducting transactional due diligence, defending single-plaintiff, class and collective actions, second-chairing labor negotiations, and drafting personnel policies and other employment documents. She has advised clients on EEO concerns, the gig economy, data privacy, leaves of absence, reductions in force, wage and hour audits, unemployment insurance, short-term disability, restrictive covenants, and NLRA application to non-union members.

Abigail has conducted internal investigations and...

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Michelle S. Strowhiro
Partner

Michelle S. Strowhiro is an employment advisor and litigator. She provides trusted counsel to US and international companies on all aspects of employment law compliance. Michelle partners with clients to establish and maintain their strong and lawful employment policies and practices; manage their employee relationships from hire to termination; conduct workplace investigations; administer leaves and other workplace accommodations; and resolve disputes. She provides manager and employee trainings on management and sexual harassment. She regularly prepares and negotiates...

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