The New OSHA COVID-19 Emergency Temporary Standard: It’s Not Only for Hospitals

On June 21, 2021, the Occupational Safety and Health Administration (OSHA) published the COVID-19 Emergency Temporary Standard (ETS) announced earlier this month.[1] Where it applies, the ETS imposes extensive safety requirements to protect healthcare workers from COVID-19 infection. The following is a brief summary of these ETS requirements, organized according to their OSHA compliance deadlines:

• July 6, 2021 Deadline: A COVID-19 plan (with a workplace hazard assessment and a workplace safety coordinator), patient screening and management to prevent the spread of COVID-19, standard and transmission-based precautions in accordance with CDC guidelines, personal protective equipment (PPE), protections for aerosol-generating procedures on people with suspected or confirmed COVID-19, physical distancing, cleaning and disinfection, health screenings of employees, medical management of employees with COVID-19 (including paid leave), vaccination support (including paid leave), anti-retaliation measures, recordkeeping and OSHA reporting, and a mini-respiratory protection program

• July 21, 2021 Deadline: Physical barriers for certain work stations where employees cannot be separated by six feet from others, effective building ventilation, and employee training on COVID-19 risks and policies

Despite these extensive requirements, the ETS is narrow in its scope of employer coverage. Thus, an important threshold question is whether the ETS applies to particular healthcare workplaces.

What healthcare workplaces are covered by the ETS?

The ETS targets workplaces where employees provide “healthcare services” or “healthcare support services.” “Healthcare services” are services provided by healthcare practitioners (for example, doctors, emergency medical personnel, and oral health professionals) for purposes of promoting, maintaining, monitoring, or restoring health. These workplaces are not limited to hospitals; rather, they can include:

• Hospitals

• Skilled nursing and long term care facilities

• Physician, dentist, chiropractor, optometrist, podiatrist, mental health specialist, audiologist, and physical, occupational or speech therapist clinics or offices

• Centers for family planning, mental health or substance abuse treatment, or dialysis

• Home health care

• Pharmacies in hospitals or other non-retail settings

• First Aid and emergency care (e.g., urgent care centers, EMTs, and ambulances)

• Clinics located in schools, manufacturing facilities, or correctional facilities[2]

“Healthcare support services” facilitate the provision of healthcare services. They include patient intake and admission, patient food services, equipment and facility maintenance, housekeeping and laundry services, medical waste handling services, and medical equipment cleaning or reprocessing services.

What healthcare workplaces are not covered by the ETS?

The ETS does not apply to the following healthcare settings:

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

• Dispensing of prescriptions by pharmacists in retail settings, but only if the pharmacy does not also provide COVID-19 testing, vaccinations or other healthcare

• Non-hospital ambulatory (outpatient) care settings (e.g., dentist offices) if:

  • all non-employees are screened for COVID-19 symptoms prior to entry; and

  • persons with suspected or confirmed COVID-19 are not permitted to enter 

• Ambulatory care settings in hospitals (e.g., dialysis centers) that are well-defined and distinct (e.g., with separate entrances) if:

  • all employees are fully-vaccinated;

  • all non-employees are screened for COVID-19 symptoms prior to entry; and

  • persons with suspected or confirmed COVID-19 are not permitted to enter

• Home healthcare settings if:

  • all employees are fully-vaccinated;

  • all non-employees are screened prior to entry;

  • people with suspected or confirmed COVID-19 cases are not present; and

  • the employer specifies a clear contingency plan for situations where an employee arrives at a home and finds an unexpected non-employee present

• Healthcare support services not performed in a healthcare setting (e.g., off-site laundries)

• Telehealth services when performed outside of direct patient care settings

If an employer concludes their workplace is exempt from the ETS, is any further action recommended?

Yes. Even when a healthcare workplace fits comfortably within an ETS exemption, it can be shortsighted to ignore the ETS in its entirety, for several reasons:

              First, the ETS offers a variety of sound safety measures for preventing the spread of COVID-19. For example, workplace hazard assessments and COVID-19 plans are advisable even when they are not expressly required by federal law. In fact, healthcare employers may find they have already adopted policies and procedures during the pandemic that comply with several ETS safety measures.

              Second, the risk of COVID-19 transmission by asymptomatic individuals should not be overlooked. Compliance with standard and transmission-based precautions in accordance with CDC guidelines, PPE, physical distancing, regular cleaning and other ETS safety practices can reduce this risk.

              Third, an employer should be prepared to defend an ETS exemption. OSHA has advised that it will exercise its enforcement discretion to avoid citing employers who make a good faith effort to comply with the ETS.  For example, an employee might claim they caught COVID-19 at an ambulatory clinic because pre-entry screening practices were inadequate and persons with COVID-19 symptoms were allowed to enter the clinic. In this event, proof of employer audits showing compliance with pre-screening requirements and facility entrance controls will matter. Additionally, proof of voluntary implementation of appropriate ETS safety measures—e.g., a COVID-19 plan, PPE, and compliance with CDC guidance—can demonstrate good faith efforts to protect the workforce in accordance with the ETS.

Finally, where the ETS does not apply, OSHA’s recently updated guidance for non-healthcare workplaces entitled Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, published on June 10, 2021, should be considered. For more information, see Updated OSHA COVID-19 Guidance for Non-Healthcare Workplaces at macmasterlaw.com/publications.

Determining whether the ETS applies to your workplace requires careful consideration. Also, ETS safety requirements are only briefly summarized in this article and warrant further review. For legal questions about the ETS, please consult with your legal counsel. If you would like to find out about legal services offered by MacMaster Law, PLLC, please contact Emily MacMaster at macmasterlaw.com/contact.

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[1] The ETS is published in the Federal Register at 86 Fed. Reg. 32,376 (2021) (to be codified at 29 C.F.R. pt. 1910).

[2] While OSHA does not regulate the State of Idaho or its political subdivisions, healthcare services and healthcare support services provided by private employers in public facilities should be evaluated for ETS coverage.