Let’s be honest; most of us are tired of masking and social distancing to reduce the spread of COVID-19. So when the Centers for Disease Control (CDC) relaxed its guidelines on these measures in May for most fully vaccinated people, states and businesses nationwide gladly followed suit.
At the same time, however, the Occupational Safety and Health Administration (OSHA) released an emergency temporary standard (ETS) designed to protect frontline healthcare workers still considered at high risk for COVID-19. This ETS took effect on June 21, 2021—the date it was published in the Federal Register. Employers were required to comply with most provisions of the ETS within 14 days of this date (and with the remaining provisions within 30 days).
If your workers provide healthcare services, be aware of what this new guidance requires and how to remain compliant until the ETS expires.
Why Did OSHA Enact the Recent ETS?
On May 28, 2021, the CDC updated its COVID-19 safety recommendations to relax suggested PPE and social distancing practices for a majority of fully vaccinated individuals. Most states have since followed the CDC guidelines by easing enforcement requirements on businesses. OSHA also matched this change by altering its COVID-19 guidelines for employers.
The Department of Labor (DOL), however, found it necessary to continue protective measures for healthcare workers treating suspected and confirmed COVID-19 patients. While vaccinations have proven effective among individuals exposed to the virus, these workers have much higher levels of exposure than others in the general workforce. As such, studies have shown higher infection rates among vaccinated healthcare workers.
What Does the COVID-19 Healthcare ETS Require?
Positively, the new ETS does not institute many changes that fundamentally alter the COVID-19 mitigation strategies most healthcare employers have been using throughout the pandemic. (OSHA cemented these protections in a wide-reaching COVID-19 guidance post on Jan. 29, 2021.)
Generally, employers to whom this ETS applies are required to do the following:
- Perform a hazard assessment (by a team that includes non-managerial staff members) to identify potential COVID-19 exposure risks
- Create and maintain a COVID-19 prevention plan that protects employees
- Communicate and coordinate with other employers if using shared spaces
- Provide employees with approved personal protection equipment (PPE)
- Protect employees who enter off-site areas now covered by the OSHA ETS
- Immediately remove (but not fire) employees who have been exposed to COVID-19 and provide that employee with a PCR test free of charge
Employers should pay particular attention to detailed definitions and protection requirements based on exposure risks, as well as the removal requirements for an employee exposed to COVID-19. They must also take added precautions regarding activities that could lead to higher infection rates. Finally, they’re required to utilize additional protection strategies to help reduce the risk of exposure and infection for all employees (in particular unvaccinated employees at highest risk).
New in the ETS: Medical Removal Protection Benefits
A pointed change in OSHA’s healthcare ETS is how employers must handle time off for employees who need time off from work due to side effects from the COVID-19 vaccination or exposure to/contraction of the virus itself. In these cases, employers must continue to pay remote or isolated workers the same wage and benefits they would earn under normal circumstances.
The directives from OSHA in this area are extensive and complex. We highly recommend a thorough reading of the relevant sections in the newly published guidance in the Federal Register and their applicability to your business.
This section also stipulates that when employees return, they cannot face any repercussions or employment-related consequences for the time they were off. Employers cannot remove any rights, pay, status, positions or other benefits the employee received prior to removal. Those employees must also be allowed to return to their previous positions upon return.
Who Is Required to Follow OSHA’s COVID-19 Healthcare ETS?
The COVID-19 healthcare ETS is broadly applied in “all settings where any employee provides healthcare services or healthcare support services.” However, there are some exemptions for the following employer classes or work situations:
- Employees who provide first aid and who are not licensed healthcare workers
- Pharmacists dispensing prescriptions in a retail space
- Non-hospital ambulatory care setting that only allows entry by individuals confirmed or believed to be free of COVID-19 infection
- A well-defined hospital ambulatory care setting where all employees are fully vaccinated and that disallows entry from individuals confirmed or believed free of COVID-19 infection
- A well-defined hospital ambulatory care setting with 100% vaccination among staff and a pre-screening policy to prevent entry from individuals suspected or confirmed COVID-19 infections
- Home healthcare setting where all employees are fully vaccinated, non-employees are pre-screened and denied entry for suspected or confirmed COVID-19 infections, and no individuals within the setting have suspected or confirmed COVID-19 infections
- Healthcare support services that do not occur within a healthcare setting (such as remote medical billing)
- Telehealth services performed in locations outside of where direct patient care might occur
Additionally, any employer who by definition must adhere to this ETS may also be exempt if an employee, for reasons of health or religious beliefs, cannot get a COVID-19 vaccination. The exemption will apply if proper strategies are taken to protect that employee from exposure.
Additional Considerations for Employers Under the COVID-19 Healthcare ETS
OSHA’s healthcare ETS is published as Subpart U under its regulations Part 1910 – Occupational Health and Safety Standards. The 44-page document is elaboration on the 900-page prepublication OSHA also released. Employers will need to spend considerable time parsing through the document to understand the full impact and ensure compliance.
By law (as instituted by the Occupational Safety and Health Act), the Secretary of Labor is required to issue an ETS in situations where workers are exposed to “grave danger” and where protective actions must be taken by businesses immediately to prevent potential or further harm. OSHA will use its enforcement discretion to avoid citing employers who miss a compliance deadline if they’re making good faith efforts to adhere to the ETS. The agency will also continue to monitor trends in coronavirus transmission.
As always, James Moore’s HR consultants can help you make sense of this ETS and other coronavirus-related workplace concerns.
All content provided in this article is for informational purposes only. Matters discussed in this article are subject to change. For up-to-date information on this subject please contact a James Moore professional. James Moore will not be held responsible for any claim, loss, damage or inconvenience caused as a result of any information within these pages or any information accessed through this site.