The Occupational Safety and Health Administration (OSHA) issued a COVID-19 emergency temporary standard that is effective today. In the face of pressure from the White House and some interest groups to develop an emergency OSHA standard targeted specifically at COVID-19 workplace safety, OSHA has issued a standard targeted only at health care employers. The standard sets out extensive workplace safety requirements that employers in the healthcare sector must follow through the duration of the COVID-19 pandemic.

Although this standard only applies to healthcare employers, OSHA has also issued revised general COVID-19 guidance that applies to all employers. For more information on the general COVID-19 guidance, see this blog post.

COVID-19 temporary emergency standard for health care employers

The standard applies to any setting where any employee provides health care services or health care support services, such as medical billing and laundry. However, the mask-wearing and physical distancing requirements of the standard do not apply to fully vaccinated workers in ambulatory care facilities where non-employees are screened before entry and where those with suspected COVID-19 are not allowed to enter. All of the requirements described in this article are specific to health care employers only.

Interaction with state/local laws

The standard is not intended to limit state or local government mandates or guidance that provide greater protection than, and are not inconsistent with, the OSHA standard.

COVID-19 safety plan

Employers must conduct a workplace-specific hazard assessment and develop and implement a COVID-19 safety plan for each workplace. OSHA will publish a model COVID-19 plan on its website. Employers must also designate an employee to serve as COVID-19 safety coordinator.

Patient screening

In settings where direct patient care is provided, the employer must:

  • Limit and monitor points of entry into the setting;
  • Screen and triage all clients, patients, residents, delivery people, visitors and all other non-employees entering the setting; and
  • Implement other applicable patient management strategies in accordance with the CDC’s COVID-19 Infection Prevention and Control Recommendations.

Personal Protective Equipment (PPE)

Employers must provide and ensure that employees properly wear face masks while at work. Exceptions to the mask-wearing requirement include employees who are alone in a room, those who are eating or drinking and physically distanced or separated from others, and employees who cannot wear a face mask due to a disability or religious belief in accordance with the Americans with Disabilities Act or Title VII. In cases where an employee is unable to wear a mask, the employer must ensure that employees wear alternative protection, such as a face shield, if conditions permit.

Employers must provide additional PPE, including respirators, gloves and eye protection, to employees who have exposure to people with suspected or confirmed COVID-19 in the workplace or perform aerosol-generating procedures.

Physical distancing

Employers must ensure that employees are separated from others by at least six feet when indoors except when the employer can show that this is not feasible, such as when the employee is providing hands-on medical care. In addition, employers must install barriers at each fixed work location outside of a direct patient care area where employees are not separated from others by at least six feet, such as check-in desks.

Cleaning and disinfection

In all patient care areas, resident rooms and for all medical devices and equipment, employers must clean and disinfect such areas and equipment in accordance with the CDC’s COVID-19 Infection Prevention and Control Recommendations and the CDC’s Guidelines for Environmental Infection Control. In all other areas, employers must clean high-touch surfaces and equipment at least once per day and follow the CDC’s Cleaning and Disinfecting Guidance when the employer is aware that a person who is COVID-19 positive has been in the workplace within the last 24 hours.

Health screening and medical management

Employers must screen each employee for COVID-19 before each work shift, either by asking employees to self-monitor for symptoms before reporting for work or by conducting an in-person screening.

Employers must require employees to promptly notify the employer if they test positive for or are suspected of having COVID-19 or experience COVID-19 symptoms. Employers must take steps to notify employees within 24 hours of receiving notice that someone who has been in the workplace has tested positive for COVID-19. Employers must also remove employees from the workplace if they test positive for COVID-19, exhibit COVID-19 symptoms, or were in close contact with someone who tested positive for COVID-19 and are unvaccinated.

Employers with more than 10 employees must provide those who are removed from work and unable to work remotely with paid time off, up to $1,400 per week, until it is safe for them to return to work. Employers with fewer than 500 employees may reduce the amount of pay to two-thirds (2/3) of the employee’s regular pay, up to $200 per day, beginning in the third week of the employee’s removal from work. Employers with fewer than 500 employees may claim a tax credit under the American Rescue Plan Act for the cost of providing paid time off due to COVID-19.

Vaccination

Employers must provide a reasonable amount of paid leave to each employee to enable the employee to receive the COVID-19 vaccine and recover from any side effects.

Training

Employers must ensure that each employee receives training regarding COVID-19, which must include the following topics:

  • COVID-19, including transmission, how to reduce the spread of COVID-19, signs and symptoms of COVID-19, and risk factors for severe infection;
  • Employer-specific policies and procedures for patient screening and COVID-19 prevention;
  • Tasks and situations in the workplace that could result in COVID-19 exposure;
  • Policies and procedures for the proper use of PPE;
  • Policies and procedures for cleaning and disinfection;
  • Sick leave policies and COVID-19-related benefits and policies; and
  • Employees’ right to be free from retaliation.

Employers may rely on training conducted before the effective date of the OSHA standard if it meets or exceeds the training requirements under the standard.

Recordkeeping

Employers with more than 10 employees must comply with the standard’s recordkeeping provisions. Employers must retain all versions of their COVID-19 plans required under the standard and establish and maintain a COVID-19 infection log. Each employee who tests positive for COVID-19 must be included on the log within 24 hours of the employer learning that the employee tested positive, regardless of whether the infection is work-related. Employers must also be ready to produce these records to employees, their authorized representatives and government officials within 24 hours of receiving a request.

Reporting COVID-19 fatalities and hospitalization

Employers must report each work-related COVID-19 fatality to OSHA within eight hours of learning of the fatality and report each work-related COVID-19 hospitalization to OSHA within 24 hours of learning of the hospitalization. Also, if any employee’s confirmed positive COVID-19 diagnosis is determined by the employer to be work-related, it must be included on the employer’s OSHA workplace illness and injury logs.

Effective date

The standard was published in the Federal Register on June 21, 2021 and is effective immediately upon publication. After the standard is published in the Federal Register, employers must comply with most provisions within 14 days. Employers must comply with the standard’s physical barrier, training and ventilation requirements within 30 days of publication.

Takeaways

The standard contains extensive safety requirements for health care employers. Employers should review their COVID-19 policies to ensure that they are following all safety procedures required by the OSHA standard. Employers must also draft COVID-19 safety plans, conduct training and ensure that they maintain all records required by the standard. Finally, employers should be sure to comply with all state and local public health mandates in addition to the OSHA standard.

Photo of Abbie Thederahn Abbie Thederahn

As an associate, Abbie assists Porter Wright’s labor and employment lawyers with all aspects of labor and employment law, including regulatory matters as well as litigation.

As a law student, Abbie gained experience as a legal extern with the Ohio Attorney General’s office…

As an associate, Abbie assists Porter Wright’s labor and employment lawyers with all aspects of labor and employment law, including regulatory matters as well as litigation.

As a law student, Abbie gained experience as a legal extern with the Ohio Attorney General’s office, as a judicial extern to the Hon. Christopher A. Boyko of the U.S. District Court for the Northern District of Ohio, and as a summer associate with Porter Wright. She also served as a senior editor of the Case Western Reserve University Law Review.