On January 21, 2021, President Biden issued an Executive Order on Protecting Worker Health and Safety. The order directed the Occupational Safety and Health Administration (OSHA) to take action to reduce the risk that workers may contract COVID-19 in the workplace. On June 10, 2021, OSHA announced a highly-anticipated Emergency Temporary Standard (ETS) setting forth steps that employers in the healthcare industry must take to protect workers from COVID-19 risks while the pandemic is ongoing. The ETS will become effective 14 days after it is formally published in the Federal Register.

Healthcare Services and Healthcare Support Services

The ETS requires employers in settings that provide healthcare services or healthcare support services—such as hospitals, long-term care, home health and hospice care, emergency medical response, ambulatory care, patient transport, patient food services, equipment and facility management, healthcare laundry services, and medical waste handling services—to, among other things, ensure use of face masks, gloves and other Personal Protective Equipment (PPE) (i.e., respirators), maintain social distancing protocols, clean and disinfect pursuant to CDC guidelines, properly ventilate work areas, properly screen employees and patients for COVID-19 symptoms, limit and monitor points of entry to locations where direct patient care is provided, and install solid barriers in non-patient care areas.

Exceptions to many of the requirements of the ETS exist for fully vaccinated workers in “well-defined areas” where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present, i.e., where employees are fully vaccinated, all non-employees are screened prior to entry, and people with suspected or confirmed COVID-19 are prohibited. Under such circumstances, if fully-vaccinated employees are in such well-defined areas, the fully-vaccinated employees do not have to wear masks or adhere to distancing requirements. The ETS requires employers to determine whether an employee is fully vaccinated, but provides little guidance on how to accomplish this task, beyond stating that employers may rely on vaccination cards and possibly employee attestations of full vaccination.

Mini Respiratory Protection Program

The ETS has implemented a “mini respiratory protection program” (MRPP) which applies to specified circumstances, i.e., when a respirator is not required, but is provided by an employer instead of a face mask for enhanced worker protection. Under the MRPP, an employer must ensure that each employee that opts to wear a respirator receives proper training prior to first use; ensure that respirators are properly sealed to each employee’s face; ensure that respirators used by a particular employee are only reused by that same employee and that the respirator is still in adequate condition upon reuse; and require employees to discontinue use of a respirator when the employee exhibits signs or symptoms that are related to the ability to use a respirator (e.g. shortness of breath, coughing, wheezing, chest pain or any other symptoms related to lung problems or cardiovascular symptoms).

The MRPP does not replace OSHA’s Respiratory Protection Standard (RPS), which still applies in all instances where the employee is required to wear a respirator, i.e., when performing aerosol generating procedures, when exposed to persons with suspected or confirmed cases of COVID-19, and for Standard and Transmission-Based Precautions in accordance with the CDC’s “Guidelines for Isolation Precautions.” The MRPP dispenses with some of the more formal requirements of the RPS, such as fit-testing and medical evaluations. Employers may permit employees to use their own respirator so long as the employer provides the employee with a notice regarding proper use, maintenance, cleaning and care, and warnings about the respirator’s limitations and when a respirator should not be utilized.

COVID-19 Plans and Safety Coordinators

The ETS requires healthcare employers to develop and implement a COVID-19 safety plan and specific policies and procedures. The COVID-19 safety plan must include a designated safety coordinator, a workplace-specific hazard assessment, involvement of non-managerial employees in hazard assessment and plan development, and policies and procedures to minimize the risk of transmission of COVID-19 to employees. The plan must be in writing if more than 10 employees are employed. Additionally, healthcare employers must develop and implement policies and procedures to adhere to Standard and Transmission-Based precautions based on CDC guidelines.

Paid Time Off for Vaccination and Side Effects

Healthcare employers must also support vaccination for employees by providing reasonable paid time off for employees to get vaccinated and recover from any vaccine side effects.

Recordkeeping and Reporting

Existing OSHA recordkeeping and reporting obligations related to the virus remain in effect as well. However, if the employer employs more than 10 employees, all instances of COVID-19 infection must be recorded on a COVID-19 log without regard to whether the exposure was work-related. The ETS’s requirement is distinct from OSHA’s current requirement that only work-related COVID-19 infections be recorded on OSHA Forms 300, 300A, and 301. Under the ETS, work-related COVID-19 infections still need to be recorded on OSHA Forms 300, 300A, and 301, and, as a result, employers are still required to determine the source of an employee’s infection for those purposes. All employers, regardless of how many employees are employed, are required to report to OSHA each work-related COVID-19 fatality and inpatient hospitalization.

Impacted employers are encouraged to review and update existing policies and procedures, and implement any required policies and procedures, to ensure compliance with their obligations under the ETS. We will keep you informed of further developments, including the ETS’s effective date. In the meantime, Murtha Cullina’s attorneys are prepared to provide guidance on these and related issues.