OSHA Emergency Temporary Standard (ETS) Summary

June 15, 2021

COVID-19, Property & Casualty, Risk, Senior Living & Social Services

The Occupational Safety and Health Administration (OSHA) published their COVID-19 Healthcare Emergency Temporary Standard (ETS) to the Federal Register on June 21^st, 2021 after months of speculation about if the ETS would even be released and what it would address. The final product is directed at certain providers in the health care industry where employees provide healthcare services or healthcare support services, including nursing homes, assisted living, as well as home healthcare and hospice settings where all employees are not fully vaccinated. This flowchart can be utilized to assist employers in determining whether and how their workplace is covered by the ETS.

The Emergency Temporary Standard (ETS) defines “healthcare services” as “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.”

“Healthcare support services” is defined as “services that facilitate the provision of healthcare services. Healthcare support services include 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.”

Effective Dates of the Emergency Temporary Standard:

The ETS effective date is June 21^st, 2021. Employers must comply with all requirements of the ETS by July 6th, 2021, except the requirements pertaining to physical barriers, ventilation, and training for which employers must be in compliance with by July 21st, 2021.

COVID-19 Plan:

Employers must develop and implement a COVID-19 plan, which must be written if the employer has more than 10 employees.
- Employers with multiple workplaces may have a plan that encompasses each “type” of workplace rather than each location having an individual plan, if all required site-specific information is included in the plan.
Employers must identify in their plan at least one individual who is knowledgeable in infection control to implement and monitor the plan.
- Monitor each workplace to ensure the ongoing effectiveness of the COVID-19 plan and update it as needed.
Employers must conduct a workplace-specific hazard assessment to identify potential workplace hazards related to COVID-19.
- Must seek the input and involvement of non-managerial employees in the hazard assessment and the development and implementation of the COVID-19 plan.
When employees of different employers share the same physical location, each employer must communicate its COVID-19 plan to all other employers (e.g. outsourced therapy, laundry/housekeeping, staffing agencies)
Procedures to protect employees entering private residents must be implemented, including removing the employee from that location protections are inadequate.

Patient Screening and Management:

Limit and monitor points of entry into the facility
Screen and triage all clients, patients, residents, delivery people, visitors, and other non-employees entering the facility
Utilize telehealth services when available and appropriate

Standard and Transmission-Based Precautions:

Employers must develop and implement policies and procedures to adhere to Standard and Transmission-Based Precautions in accordance with CDC’s “Guidelines for Isolation Precautions”

Personal protective equipment (PPE):

Employers must provide and ensure that employees wear facemasks appropriately when indoors and when occupying a vehicle with other people for work purposes.
- Ensure that each employee changes them at least once per day, whenever they are soiled or damaged, and more frequently as necessary (e.g., patient care reasons)
- Exceptions to the requirements for facemasks:
  - Employee alone in a room
  - Employee is eating and drinking, provided each employee is at least 6 feet away from any other person, or separated from other people by a physical barrier
  - Employees are wearing respiratory protection (respirator, PAPR, etc.)
  - When it is important to see a person’s mouth (e.g., communicating with an individual who is deaf or hard of hearing), but must ensure an alternative such as a clear face shield is provided
  - Facemask cannot be worn due to employee’s medical condition, disability, religious belief, or risk of serious injury or death
    - Face shield must be worn if condition or disability allows
  - Employer may determine that the use of face shields, without facemasks, in certain settings is not appropriate due to other infection control concerns
Respirators, gloves, isolation gown, and eye protection provided to employees exposed to others with suspected or confirmed COVID-19, including during aerosol-generating procedures.
- Employees are educated and monitored for proper use of PPE.
- Employees are allowed to wear a respirator of their own in situations where a facemask would otherwise be appropriate
In well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present, this section does not apply to employees who are fully vaccinated.

Aerosol-generating procedures on a person with suspected or confirmed COVID-19:

Limit the number of employees present during the procedure to only those essential for patient care and procedure support
Procedure is performed in an airborne infection isolation room (AIIR), if available
Clean and disinfect surfaces and equipment in the room or area where the procedure was performed

Physical Distancing:

Ensure that each employee is separated from all other people by at least 6 feet when indoors unless the employer can demonstrate that such physical distancing is not feasible for a specific activity (e.g., hands-on medical care), in which case maintain as much distance as possible
Items to consider to encourage physical distancing:
- Telehealth
- Remote work
- Limit # of people in a given room
- Signs or floor markings to identify distancing and traffic patterns
- Staggered arrival, departure, work, and break times
In well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present, this section does not apply to employees who are fully vaccinated.

Physical Barriers:

In work locations outside of direct patient care areas where each employee is not separated from all other people by at least 6 feet of distance (e.g. billing offices, check-in areas), the employer must install cleanable or disposable solid barriers, except where the employer can demonstrate it is not feasible.
- Barrier must be sized (e.g., height and width) and located to block face-to-face pathways between individuals based on where each person would normally stand or sit.
- May have a pass-through space at the bottom for objects and merchandise. Note to paragraph
- Physical barriers are not required in direct patient care areas or resident rooms.
In well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present, this section does not apply to employees who are fully vaccinated.

Cleaning and disinfection:

In patient care areas, resident rooms, and for medical devices and equipment, the employer must follow standard practices for cleaning and disinfection of surfaces and equipment in accordance with CDC’s “COVID-19 Infection Prevention and Control Recommendations” and CDC’s “Guidelines for Environmental Infection Control,” pp. 86–103, 147-149
In all other areas, the employer must:
- Clean high-touch surfaces and equipment at least once a day
  - Follow manufacturers’ instructions for application of cleaners
- Clean and disinfect any areas, materials, and equipment that may have likely been contaminated by an individual who is COVID-19 positive in the workplace within the last 24 hours
- Provide alcohol-based hand rub that is at least 60% alcohol or provide readily accessible hand washing facilities

Ventilation:

HVAC system is used in accordance with the HVAC manufacturer’s instructions and the design specifications
Amount of outside air circulated through HVAC system and number of air changes per hour are maximized to the extent appropriate
All air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher, if compatible with HVAC system
If MERV-13 or higher filters are not compatible with HVAC system, use filters with the highest compatible filtering efficiency for the HVAC system
All air filters are maintained and replaced as necessary to ensure proper function and performance of HVAC system
All intake ports that provide outside air to HVAC system are cleaned, maintained, and cleared of any debris that may affect the function and performance
Maintain and operate existing AIIR in accordance with design and construction criteria

Health screening and medical management:

Screen each employee before each work day and each shift
- May be conducted by asking employees to self-monitor before reporting to work or may be conducted in-person by the employer
- Employers may reference OSHA’s Sample Health Screening Questionnaire
- The M3 Health Tracker App may be utilized to monitor and record employee symptom screening
If COVID-19 test is required for screening purposes, must provide the test at no cost to the employee
Require employees to promptly notify the employer when the employee is suspected or confirmed positive with COVID-19, or experiencing onset of COVID-19 symptoms (new onset of loss of taste and/or smell, fever above 100.4 degrees F, and new unexplained cough associated with shortness of breath
- Immediately remove any employee with suspected or confirmed COVID-19 and keep them removed until they meet the return to work criteria per the CDC
Within 24 hours, notify employees (and employers of contracted employees) in close contact or those who worked in the same unit/care area during transmission period of an individual confirmed positive with COVID-19
- Does not apply to employees wearing a respirator and other required PPE at time of contact
- Notification must state that the employee was in close contact or worked in the same unit/care area as with someone with COVID-19, along with the date(s) that exposure occurred
  - Do not include any employee personal information in the notification
- Immediately remove any employee with unprotected exposure to positive COVID-19 (unless vaccinated or recovered from COVID-19 in past 3 months) and keep them removed until they meet the return to work criteria per the CDC
Employers can utilize OSHA’s Employer Notification Tool as a sample resource when notification to employees and other employers is required
If a quarantined or isolated employee is allowed to work remotely, employer must continue to pay the employee the same regular pay and benefits the employee would have received had the employee not been absent from work, until the employee meets the return to work criteria
If employer removes an employee under the “Medical Removal from Workplace” provision of the the standard (for both work-related and non-work-related cases), the employer must continue to provide the benefits to which the employee is normally entitled and must also pay the employee the same regular pay the employee would have received had the employee not been absent from work, up to $1,400 per week, until the employee meets the return to work criteria
- For employers with fewer than 500 employees, the employer must pay the employee up to the $1,400 per week cap. However, beginning in the third week of an employee’s removal, the amount is reduced to two-thirds of the same regular pay the employee would have received had the employee not been absent from work, up to $200 per day ($1,000 per week in most cases)
- Employer’s payment obligation is reduced by the amount of compensation that the employee receives from any other public or private source, (e.g., paid sick leave, administrative leave), for earnings lost during the period of removal or any additional source of income the employee receives that is made possible by virtue of the employee’s removal.
- Employee must not suffer any form of retaliation from the employer

Vaccination:

Provide reasonable time and paid leave (e.g., paid sick leave, administrative leave) to each employee for vaccination and any side effects experienced following vaccination

Training:

Ensure employees receive training regarding:
- COVID-19 transmission, signs/symptoms, risk factors, and when to seek medical attention
- Hand hygiene and cough etiquette
- Employer-specific policies and procedures on patient screening and management
- Tasks and situations in the workplace that could result in COVID-19 infection
- Workplace-specific policies and procedures to prevent the spread of COVID19 that are applicable to the employee’s duties (e.g., policies on Transmission-Based Precautions, physical distancing, physical barriers, ventilation, aerosol-generating procedures)
- Multi-employer workplace agreements related to infection control policies and procedures, the use of common areas, and the use of shared equipment that affect employees at the workplace
- Policies and procedures for PPE
  - When PPE is required for protection against COVID-19
  - Limitations of PPE for protection against COVID-19
  - How to properly put on, wear, and take off PPE
  - How to properly care for, store, clean, maintain, and dispose of PPE
  - Any modifications to donning, doffing, cleaning, storage, maintenance, and disposal procedures needed to address COVID-19 when PPE is worn to address workplace hazards other than COVID-19
- Policies and procedures for cleaning and disinfection
- Policies and procedures on health screening and medical management
- Available sick leave policies and any COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws, and other supportive policies and practices (e.g., telework, flexible hours)
- Identity of the individual responsible for the COVID-19 plan and how the employee can obtain copies any employer-specific policies and procedures related to or including the COVID-19 plan
Employees are to receive additional training when
- Changes occur that affect the employee’s risk of contracting COVID-19 at work (e.g., new job tasks)
- Policies or procedures are changed
- There is an indication that the employee has not retained the necessary understanding or skill
Training is overseen or conducted by a person knowledgeable in the covered subject matter as it relates to the employee’s job duties, and provides an opportunity for interactive questions and answers
Employers may rely on training completed prior to the ETS publication date as long as it meets the relevant training requirements as stated and documentation of the training is maintained.

Anti-Retaliation:

Employer must inform each employee about their right to file a safety and health complaint without being retaliated against by the employer
The employer must not discharge or in any manner discriminate against any employee for reporting a safety and health complaint
Implementing requirements of the ETS will be at no financial cost to employees

Recordkeeping:

Employers with more than 10 employees must:
- Retain all versions of the COVID-19 plan implemented
- Maintain a COVID-19 log to record each instance in which an employee is COVID-19 positive, regardless of whether the instance is connected to exposure at work
  - Log must contain for each instance:
    - Employee’s name
    - One form of contact information
    - Occupation
    - Location where the employee worked
    - Date of employee’s last day at the workplace
    - Date of the positive test or diagnosis of COVID-19
    - Date the employee first had one or more COVID-19 symptoms, if any were experienced.
Must be recorded in log within 24 hours of the employer learning that the employee is COVID-19 positive
Maintained as a confidential medical record as long as this ETS remains in effect
Not be disclosed except as required by this ETS or other federal law
By the end of the next business day after a request, the employer must provide, for examination and copying:
- All versions of the written COVID-19 plan to all of the following: any employees, their personal representatives, and their authorized representatives
- The individual COVID-19 log entry for a particular employee to that employee and to anyone having written authorized consent of that employee
- A version of the COVID-19 log that removes the names of employees, contact information, and occupation, and only includes, for each employee in the COVID-19 log, the location where the employee worked, the last day that the employee was at the workplace before removal, the date of that employee’s positive test for or diagnosis of COVID-19, and the date the employee first had one or more COVID-19 symptoms, if any were experienced, to all of the following: any employees, their personal representatives, and their authorized representatives
Employers must continue to record all work-related confirmed cases of COVID-19 on their OSHA Forms 300 and 300A

Reporting COVID-19 fatalities and hospitalizations to OSHA:

The employer must report to OSHA:
- Each work-related COVID-19 fatality within 8 hours of the employer learning about the fatality
- Each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about the in-patient hospitalization
This requirement eliminates the reporting exceptions present in OSHA’s regular reporting regulation at 29 C.F.R. § 1904.39(b)(6) that exclude reporting fatalities that occurred over 30 days from the work-related incident and in-patient hospitalizations that occurred over 24 hours from the work-related incident.
Employers may utilize OSHA’s Reporting COVID-19 Fatalities and In-Patient Hospitalizations as an informational resource

Mini Respiratory Protection Program:

The Mini RPP is meant to allow employers the opportunity to:
- Provide respirators instead of facemasks to their employees for additional protection for circumstances when a respirator is not required without needing a full Respiratory Protection Program
- Allow employees to wear their own respirators instead of facemasks
It does not replace or substitute OSHA’s normal Respiratory Protection standard (29 CFR 1910.134), which applies to:
- Circumstances under the ETS when workers are exposed to suspected or confirmed sources of COVID-19.
- Any other workplace hazards that might require respiratory protection (e.g., silica, asbestos, airborne infectious agents such as Mycobacterium tuberculosis).
Requires employers to provide employees included with the Mini RPP a notice with instructions on respirator use (see ETS section 1910.504(c) for required verbiage), perform a user seal check, and provide brief training.

Inspection Procedures:

OSHA’s June 28^th directive conveys a great framework for healthcare organizations when considering how OSHA may assess compliance with their ETS. The directive outlines that “the highest inspection priority will be given to fatality inspections, followed by unprogrammed inspections precipitated by complaints and referrals that allege employee exposure to COVID-19 and related hazards,” according to Healthcare Law Insights. OSHA compliance offers will also verify instances where employers allow employees to claim an exemption from being provided controls, including the vaccination status of employees.

The directive instructs OSHA inspectors to issue citations for inadequate compliance. Review the directive with your internal team and your M3 account executive to identify areas that may still need to be addressed before an inspection may occur.

Main Takeaways

Health care employers have already implemented a majority of these requirements, however so it would serve employers to focus efforts to ensure the details in this ETS are in place and documented appropriately within the written COVID-19 plan and accompanying policies and procedures. Areas that warrant additional attention include the paid leave requirements (Medical Removal Protection Benefits), written COVID-19 plan and hazard assessment, required training and documentation of training, physical barriers and ventilation requirements, and the changes to healthcare employer’s reporting obligations to OSHA.

In additional to the ETS, OSHA simultaneously released an updated version of its COVID-19 employer guidance (not a mandatory standard), which applies to non-health care employers. The updates focus on protections for unvaccinated and at-risk workers, as well as encouraging COVID-19 vaccination.

Additional Resources:

Please reach out to your M3 Risk Manager for additional information regarding the Emergency Temporary Standard.

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