OSHA Announces COVID-19 Emergency Temporary Standard for Healthcare Employers

Labor & Employment @lert

Date: June 11, 2021

Key Notes:

  • Applies to Employers that provide healthcare services and healthcare support services.
  • Healthcare support services includes patient food services, facility maintenance, housekeeping, among other employee categories.


On June 10, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced an emergency temporary standard (ETS) focused on protecting employees who work in the healthcare setting from contracting coronavirus. Although many employers have been waiting for updated guidance on infectious disease prevention, this ETS, subject to certain specified exceptions, applies to all settings where any employee provides healthcare services or healthcare support services. OSHA announced the new standard alongside new general industry guidance applicable to employers outside of the healthcare setting, both of which are generally aligned with the Centers for Disease Control and Prevention (CDC) guidance and/or other OSHA standards with some deviations.

The ETS establishes new requirements for settings where employees provide healthcare or healthcare support services, including skilled nursing homes and home healthcare, with some exemptions for healthcare providers who screen out patients who may have COVID-19. Healthcare support services includes patient food services, equipment and facility maintenance and housekeeping services, which are among other categories of employees that facilitate the provision of healthcare services. It further applies to a healthcare setting embedded within a non-healthcare setting, such as a medical clinic in a manufacturing setting or walk-in clinic at a retail setting. OSHA may update the standard, if necessary, to align with CDC guidelines and changes in the pandemic.

In addition to the healthcare-focused ETS, OSHA issued updated guidance for employers and workers in other industries to protect workers who are still not vaccinated, with a special emphasis on protections for employees who may have prolonged close-contact with others, such as in meat processing, manufacturing, seafood, grocery and high-volume retail. When addressing other industries, Department of Labor Secretary Walsh indicated that the risks to most workers outside healthcare had eased as cases had fallen and vaccination rates had risen. He also indicated that guidance issued by the CDC last month advising that those who have been vaccinated generally need not wear a mask indoors played a role in OSHA’s decision to forgo a broader COVID-19 standard.

With respect to other industries, OSHA Deputy Assistant Secretary Jim Frederick said that the agency had power even without issuing broader COVID-19 rules, through its so-called general duty clause, to enforce protections for workers outside the healthcare industry and that it would continue to do so. He said many meatpacking facilities, along with other workplaces, had been inspected under an OSHA program applying added scrutiny to high-risk industries.

The healthcare ETS rule requires healthcare and healthcare support services’ employers to provide personal protective equipment, such as face masks, to screen and triage patients for the risk of COVID-19 and to ensure adequate ventilation and distancing, among other measures. The standard requires non-exempt facilities to conduct a hazard assessment and have a written plan to mitigate virus spread and requires healthcare employers to provide some employees with N95 respirators or other personal protective equipment. In addition, covered employers must ensure six feet of distance between workers. In situations where this is not possible, employers should erect barriers between employees where feasible. The standard also requires covered employees to provide workers with paid time off to get vaccinated and to recover from any side effects. Covered employees who have coronavirus or who may be contagious must work remotely or otherwise be separated from other workers if possible or be given paid time off up to $1400 per week. For most businesses with fewer than 500 employees, tax credits in the American Rescue Plan may be reimbursed through these provisions.

The ETS exempts fully vaccinated workers from masking, distancing and barrier requirements when in well-defined areas where there is no reasonable expectation that any person will be present with suspected or confirmed coronavirus.

The ETS is effective immediately upon publication in the Federal Register. Employers must comply with most provisions within 14 days and with the remaining provisions within 30 days. OSHA has indicated that it will use its enforcement discretion to avoid citing employers who miss a compliance deadline but are making a good faith effort to comply with the ETS.

FOR MORE INFORMATION

For more information, please contact:

M. Scott Young
513.352.6617
202.263.4134
Scott.Young@ThompsonHine.com

Nancy M. Barnes
216.566.5578
Nancy.Barnes@ThompsonHine.com

or any other member of our Labor & Employment group.

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

© 2021 THOMPSON HINE LLP. ALL RIGHTS RESERVED.