Please Note: On June 28, 2021, this article was updated to clarify that employers must comply with most of OSHA’s ETS rule, as outlined below, by July 6, 2021. There are exceptions to the sections on physical barriers, ventilation, and training, which employers must comply with by July 21, 2021. AHCA/NCAL has also provided the following best practices and resources as employers work toward compliance:
On June 10, 2021, the federal Occupational Safety and Health Administration (OSHA) released new requirements for frontline health care workers through an Emergency Temporary Standard (ETS). The full ETS rule can be found here, and a helpful summary of the ETS can be found here. The rule applies to all health care workers, including long-term care facilities (except for off-site corporate and medical billing locations). We encourage you to review the requirements of the ETS with counsel.
Notably, many of the provisions are covered by the state’s current infection control requirements, such as daily screening of staff, residents, visitors, and vendors; providing testing at no-cost to staff; adhering to return to work and transmission-based precautions criteria; use of PPE; limiting aerosol-generating procedures; ensuring physical distancing; and cleaning high-touch surfaces at least once a day. However, several components of the ETS are not covered in the state’s current infection control requirements, as follows:
- COVID-19 Plan: The ETS requires the development and implementation of a COVID-19 plan for each workplace to minimize the risk of transmission of COVID-19 to employees and the designation of a workplace safety coordinator. Current infection control and emergency preparedness plans can likely be utilized as a starting point for the COVID-19 plan required under the ETS.
- Paid Leave: The ETS requires employers to provide reasonable time and paid leave for vaccinations and vaccine side effects and requires employers to continue to pay employees in most circumstances if they are symptomatic and/or test positive for COVID-19 and are not permitted to work. Employers must also inform employees of their rights under the ETS and may not discharge or discriminate against employees for exercising these rights.
- Physical Barriers: The ETS requires the installation of cleanable or disposable solid barriers at each fixed work location in non-patient care areas where each employee is not separated from other people by at least six (6) feet. Please note, the ETS exempts fully vaccinated workers from the physical barrier requirement when there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.
- Ventilation: The ETS requires that employer-owned or controlled HVAC system(s) are used in accordance with the manufacturer’s instructions and the design specifications of the system(s); air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher if the system allows it; airborne infection isolation rooms are maintained and operated in accordance with their design and construction criteria; and intake ports are cleaned, maintained, and cleared of debris.
- Recordkeeping and Reporting: The ETS requires employers to establish a COVID-19 log of all employee instances of COVID-19. Employers must also report to OSHA each work-related COVID-19 fatality within eight (8) hours of learning about the fatality, and each work-related COVID-19 in-patient hospitalization within 24 hours of learning about the in-patient hospitalization.
- Mini Respiratory Protection Program: For employees who are not exposed to suspected/confirmed sources of COVID-19 or other hazards that may require respirator use, the ETS requires employers to provide training on inspecting, putting on, removing, and using respirators like N-95s; the limitations and capabilities of the respirator; procedures and schedules for storing, maintaining, and inspecting respirators; how to perform a user seal check; and how to recognize medical signs and symptoms that may limit or prevent the effective use of respirators.