On June 21, 2021, the Occupational Safety and Health Administration’s (“OSHA”) emergency temporary standard (“ETS”) aimed at limiting the spread of COVID-19 in the workplace went into effect. OSHA found, in part, that the COVID-19 pandemic “presents a grave danger to workers in all healthcare settings” and issued the ETS in response.
Who is subject to the ETS?
The ETS applies only to the healthcare sector and includes specific mandatory procedures employers must follow. Specifically, the ETS applies to healthcare “settings where any employee provides healthcare services or healthcare support services.”
OSHA defines “healthcare support services” to 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.” The ETS does not apply, however, to healthcare support services that are not performed in a healthcare setting. This would include, for example, off-site laundry and off-site medical billing.
Are any healthcare employers exempted from the ETS?
The ETS specifically excludes:
- Distribution of prescriptions by pharmacists in retail settings;
- First aid provided by employees who are not licensed healthcare providers;
- Non-hospital ambulatory care settings where individuals are screened for COVID-19 before entering, and anyone with suspected or confirmed COVID-19 are not permitted to enter the facility;
- Well-defined hospital ambulatory care settings where all employees are fully vaccinated and individuals are screened for COVID-19 before entering, and people with suspected or confirmed COVID-19 are not permitted to enter the facility;
- Home healthcare settings where all employees are fully vaccinated, and non-employees are screened for COVID-19 before entering;
- Healthcare support services not performed in a healthcare setting; and
- Telehealth services where no direct patient care occurs.
For an easy-to-follow graphic, OSHA released a diagram to assist employers in determining whether they are subject to the ETS.
When is the ETS effective?
The ETS was effective on June 21, 2021 when published in the Federal Register. Employers covered by the ETS are required to comply with all requirements within 14 days except for standards relating to physical barriers, training, and ventilation. Covered employers must comply with these requirements within 30 days of the effective date or by July 21, 2021.
What does the ETS require?
The ETS requires healthcare employers to observe various specific requirements, including:
- COVID-19 Plan. Implement a COVID-19 plan, which must be in writing for covered healthcare employers with more than 10 employees.
- Patient screening and management. Monitor points of entry and exit and screen patient and facility visitors.
- Transmission-based precautions. Implement necessary policies and procedures to adhere to standard and transmission-based precautions based on guidelines promulgated by the Centers for Disease Control and Prevention (“CDC”).
- PPE. Provide personal protective equipment, including face masks while workers are indoors or in vehicles together and respirators when employees are exposed to or engaging in aerosol-generating procedures with individuals with known or suspected cases of COVID-19.
- Distancing. Require physical distancing by at least 6 feet while indoors (unless such social distancing is not feasible for a specific activity).
- Cleaning and disinfection. Follow the CDC’s cleaning and disinfection guidelines. Take additional precautions to limit exposure and to disinfect areas when engaging in aerosol-generating procedures with individuals with known or suspected cases of COVID-19.
- Vaccination. Institute paid leave for COVID-19 vaccinations and recovery.
- Anti-retaliation. Institute anti-retaliation protections for employees engaging in actions required by the ETS.
- Record keeping and reporting. Maintain a COVID-19 log (only for those covered employers with more than 10 employees). A sample COVID-19 log and accompanying explanation on requirements may be found here. Report COVID-19 fatalities and hospitalizations to OSHA.
- Screenings and medical management. Follow medical management requirements, including:
- Daily health screenings (self-monitoring is acceptable);
- Employee notification of employers if an employee tests positive for COVID-19, suspects they have COVID-19, or has symptoms;
- Employer notification of employees within 24 hours of known cases;
- Removal of employees from the workplace in accordance with CDC guidance; and
- For covered employers with more than 10 employees, medical removal protection benefits for isolated or quarantined employees.
All ETS procedures and protocols must be implemented at no cost to employees.
What are the “medical removal protection benefits” employers must provide for isolated or quarantined employees?
Employers with 10 to 499 employees are required to provide “medical removal protection benefits” to those employees who must be removed from work and required to isolate or quarantine due to suspected or confirmed COVID-19 infection or exposure to COVID-19, and employers are required to provide the following:
- Permitting employees to work remotely while in self-isolation or quarantine so that they may continue to receive their regular pay and benefits.
- Paying employees who are unable to work remotely their regular pay, up to $1,400 per week, until the employee meets the return-to-work criteria of the ETS with the following caveats:
- Employees will receive their regular pay for the first 2 weeks of removal. Thereafter, they will receive only two-thirds of their regular pay, up to $200 per day.
- An employer’s payment obligation is reduced by the amount of compensation that the employee receives from any other source, including a publicly or employer-funded compensation program (e.g., employer paid sick leave, PTO, state or federal economic security benefits).
- Continuing to provide the benefits the employee is normally entitled (e.g., employer-sponsored health insurance) during the removal period.
- Ensuring that, whenever an employee returns to the workplace after a COVID-19-related workplace removal, the employee does not suffer any adverse action as a result of that removal from the workplace and ensuring that all the employee’s rights and benefits are maintained, including the employee’s right to their former job status, as if the employee had not been removed.
Where can I find additional information on implementation?
OSHA has created fact sheets and detailed responses to the most frequently asked questions regarding the ETS. This information can be found here.
How long does the ETS last?
The ETS is set to expire on December 21, 2021. Covered healthcare employers must comply with the ETS until it expires.
Will there be additional changes to the ETS?
Given the President’s recent Executive Orders on COVID-19 vaccination for Federal employees and safety protocols for Federal contractors, OSHA may publish a revised ETS, and/or Congress or the White House could implement future COVID-related workplace legislative or regulatory requirements on healthcare employers. Stay tuned.
If you have questions about the ETS, compliance, or any COVID-19 employment-related issues, please contact John Conley.
 Id. at 32377.
 Id. at 32462.
 Id. at 32621.
 Id. at 32485.
 See 29 U.S.C. §§ 651-78, Occupational Safety and Health Act of 1970 (the “OSH Act”). The OSH Act provides that an ETS is effective until superseded by a permanent standard promulgated by the normal rulemaking provisions of the OSH Act. 29 U.S.C. § 655(c)(2). The OSH Act, however, requires OSHA to promulgate a permanent standard within six months of promulgating the ETS. Id. at (c)(3).
 See Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, available here, signed September 9, 2021; Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, available here, signed September 9, 2021.