The Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) for the healthcare industry on June 21, 2021.[1]
The Occupational Safety and Health Act (“the Act”) passed in 1970 and created OSHA to administer the Act. It has been thirty-eight years since OSHA issued its last ETS. That ETS was issued in 1983, covered asbestos, and was eventually struck down by a federal court.
The Act generally covers most employers, with some specific employers, such as “State(s) and political subdivision of a state,” being specifically excluded from OSHA’s jurisdiction.[2] OSHA determined that COVID-19 causes health care industry employers and their employees to be in “grave danger,” which is the legal requirement allowing OSHA to issue an ETS. Along with the ETS, OSHA issued General COVID-19 Guidance to most other workplaces, which followed the CDC’s guidance on COVID-19 in the workplace.
The ETS generally applies to any workplace where employees provide healthcare services or healthcare support services, except for some specific exclusions such as retail pharmacies; home health care settings where all non-employees are screened prior to entry; healthcare support services not performed in a healthcare setting (e.g., off-site laundry); and telehealth services performed outside of a direct patient care setting. Other exemptions include allowing employees to work from home and exemptions for those employees who cannot be vaccinated because of medical or religious reasons. One exemption could possibly apply to some physicians’ offices. This exemption reads in full, “Non-hospital ambulatory care settings where all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings.”[3] More on this later.
It is clear that the ETS generally applies to physicians’ offices, as physician’s offices are used as examples in various parts of the ETS.[4] However, employers with 10 or fewer employees have fewer requirements under the ETS. For example, employers with more than 10 employees must have a written COVID-19 plan for each workplace. Employers with 10 or fewer employees must have COVID-19 plans, but the plan is not required to be in writing. OSHA’s plan is to include updates to the ETS as needed.
The ETS covers the following subjects, as they relate to employment activities of health care workers in the health care industry:
COVID-19 Plan
Patient screening and management
Respiratory protection
Training
Ventilation of rooms and buildings
Health screening and medical management
Physical barriers
Physical distancing
Hand hygiene and cleaning
Record keeping
Reporting
Following is a brief discussion of each of the ETS requirements.
COVID-19 Plan.
Employers must have a plan to minimize the transmission of COVID-19 in the health care workspace. Employers with more than 10 employees must have a written COVID-19 Plan.
Patient Screening and Management.
In settings where direct patient care is provided, employers must limit and monitor points of entry, screen and triage all non-employees entering the setting, and implement other patient management as necessary, including developing and implementing procedures regarding standard transmission-based precautions.
Respiratory Protections.
Employers must provide the personal protective equipment (PPE) necessary to protect employees, at no cost to the employees.
Training.
Employers must ensure and document that each employee receives training on the ETS, in a language and at a literacy level the employee understands. Training should include various topics pertinent to COVID-19 safety measures, such as COVID-19 transmission and employer policies and procedures regarding COVID-19 transmission.
Ventilation of Rooms and Building.
HVAC systems should be operating at maximum efficiency, per the manufacturer’s recommendations. Air filters that remove particles and aerosols that can transport the COVID-19 virus should be used where the HVAC system can accommodate the filters.
Health Screenings and Management.
All employees must be screened every day they work in a health care setting. This can be accomplished by the employees answering questions before entering the workplace, or by the employee self-evaluating prior to entering the workplace. Where appropriate, employees must be kept from the workplace or removed from work (e.g., an employee develops a fever, cough and loss of the sense of taste while at work and is asked to leave). Employees must be informed of possible COVID-19 exposures (e.g., told of an employee (without giving their name) who has developed fever, cough and loss of the sense of taste at work, and is sent home). There are mandatory paid leave provisions for employees who develop COVID-19, or who must stay out of work because of a COVID-19 exposure, which are in addition to other employee paid leave provisions already in place for employers. Employees must be paid for the time they take while at work to be vaccinated against COVID-19, and for the day after receiving a vaccination, where there is a physical reaction to the vaccine.
Physical barriers.
These include Plexiglas barriers when patients initially check in the office and between workers who must work at specific locations (e.g. computer billing) most of their workday.
Physical Distancing.
This is also referred to as “social distancing.” Where there is room, employees should maintain at least six feet of distance between themselves and other employees (e.g., employee break rooms).
Hand Hygiene and Cleaning.
Hand hygiene and cleaning work together to reduce the spread of the COVID-19 virus. Offices and clinical spaces should be cleaned at least daily, and handwashing should occur between patient encounters.
Record Keeping and Reporting.
For employers covered by OSHA standards, there are already record-keeping requirements in place. Additional record-keeping and reporting are added by the ETS for employees who test positive for COVID-19 and employees who die because of a COVID-19 infection. Employers with more than 10 employees must keep a log of any employee diagnosed with COVID-19, whether or not the infection arose because of an occurrence at work.
This article began with an introduction to one of the exemptions that could possibly keep a physician’s office from having to comply with the ETS. That exemption reads “Non-hospital ambulatory care settings where all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings.”[5] Those physician’s offices that could operate under this provision — no suspected or confirmed COVID-19 patients or employers are allowed to enter the office — would be able to operate as they have in the past in regard to OSHA requirements. However, there are legal pitfalls with using this exemption to avoid compliance with the ETS. For example, many surgeries require office follow-up. If a surgeon refused to see a patient who developed COVID-19 after surgery, but before the office follow-up, the patient could make a claim of abandonment. There are other risks with this course of action, and many physicians could ill afford to refuse to see patients “suspected” of having COVID-19. There may be ways to stay within the exemption; however, careful thought will need to be given for each patient in a similar situation. For instance, perhaps the post-surgery patient could be seen in a hospital ER, or evaluated/examined through a telehealth appointment, rather than in the surgeon’s office.
Conclusion.
As is often the case, the ETS has been issued almost beyond the point of usefulness. Physician offices, health care facilities, and other health care providers are going on two years of their response to the COVID-19 pandemic. To mandate changes to their well-established COVID-19 precautions at this time is disruptive, to say the least; and it places additional administrative burdens on employers subject to OSHA, without adding much, if any, additional value. Nevertheless, physician’s offices and others are well-advised to take the ETS seriously because it will likely be the subject of complaints, investigations, and audits by OSHA. OSHA investigates complaints of violations of federal law based upon anonymous employee complaints and random “audits” of employer compliance and has indicated it will enforce the ETS using both of these methods.
[1] Occupational Exposure to COVID-19; Emergency Temporary Standard, 86 Fed. Reg. 32376, available at https://www.federalregister.gov/documents/2021/06/21/2021-12428/occupational-exposure-to-covid-19-emergency-temporary-standard.
[2] 29 U.S.C. § 652(5).
[3] 29 C.F.R. § 1910.502(a) (2) (iii).
[4] 29 C.F.R. § 1910.502(a), n. 2.
[5] 29 CFR Section 1910.502(a) (2) (iii).