COVID-19 AND THE WORKPLACE PART 3: OSHA’s COVID-19 EMERGENCY TEMPORARY STANDARD (ETS)

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Diane Juffras

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On June 21, 2021, the federal Occupational Safety and Health Administration’s (OSHA’s) COVID-19 Healthcare Emergency Temporary Standard (ETS) became effective. Many local government employers didn’t pay much attention. After all, the ETS was publicized as applying to employees in healthcare. But did you know that the ETS covers emergency medical services personnel? That means almost every North Carolina local government should be concerned with the ETS, not just those local health departments that run medical clinics. The ETS is effective now. To learn more about the ETS and what it means for your employees, read on.

BACKGROUND TO OSHA AND NC OSH AND THE GENERAL DUTY CLAUSE

OSHA is the lead agency in setting national safety standards for workers. In twenty-eight states, however, OSHA works through state-wide occupational safety and health programs. North Carolina has an OSHA-approved state plan. It is run out of the North Carolina Department of Labor, Division of Occupational Safety and Health (NC OSH). NC OSH generally adopts OSHA’s regulations and guidance in full, except when tweaks are appropriate to particular circumstances in North Carolina. NC OSH has adopted the ETS in full. For purposes of this blog post, any references to OSHA regulations or guidance refer to regulations and guidance adopted by NC OSH.

OSHA has standards (regulations) governing work with hazardous materials, noise levels, the operation of various kinds of machinery, work in confined spaces, and many other areas. For almost every different kind of occupation and different kind of situation, OSHA either requires personal protective equipment (PPE) or has determined that none is needed.

But OSHA can’t cover everything. That’s where its “General Duties Clause” comes in. OSHA’s General Duties Clause, 29 U.S.C. § 654 requires employers to furnish workplaces that are “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to their employees and to comply with the standards OSHA issues. OSHA holds employers to this standard when there is no formal regulation that applies to a particular hazard. An employer’s provision of adequate COVID-19 protections has been assessed under this standard. The ETS is the first COVID-19 specific standard that OSHA has issued.

WHICH EMPLOYEES DOES THE ETS COVER?

At the outset, the ETS says that it applies to “all settings where any employee provides healthcare services or healthcare support services.” See 29 CFR § 1910.502(a). It is important to note that the ETS covers settings rather than particular types of workers. Its protections are applicable to any employee who works in that setting, whether or not they are engaged in healthcare or healthcare support services. If a setting is covered, then janitorial and maintenance staff who work there are covered in addition to employees directly involved in providing healthcare services.

In § 1910.502(b), OSHA defines “healthcare services” as

services that are provided to individuals by professional healthcare practitioners (e.g., doctors, nurses, emergency medical personnel, oral health professionals) for the purpose of promoting, maintaining, monitoring, or restoring health. Healthcare services are delivered through various means including: Hospitalization, long-term care, ambulatory care, home health and hospice care, emergency medical response, and patient transport. For the purposes of this section, healthcare services include autopsies (emphasis added).

For local government purposes, the relevant healthcare services covered by the ETS are

  • traditional healthcare services that a local health department may provide: 1) ambulatory or walk-in care at a health department medical or dental clinic or pharmacy and, 2) in-the-home health services;
  • emergency medical response, which most obviously includes city and county emergency medical services (EMS), but which also includes emergency medical services provided by firefighters and law enforcement officers within the scope of their licensure whether at accident scenes, at fires or in other circumstances. The ETS covers the individual employees performing emergency medical services at the scene, but does not cover EMS stations, fire stations and law enforcement facilities, because those are not “settings” where emergency medical services are performed. The ETS does not cover a setting in which a co-worker administers general first aid while waiting for a first responder; and
  • health clinics embedded within other local government facilities, such as employee or occupational health clinics, health clinics in the county jail and a school nurse’s office.

The ETS also covers healthcare support services settings. OSHA defines healthcare support services as

services that facilitate the provision of healthcare services. Healthcare support services 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.

In the local government context, healthcare support services are most likely to take place within the physical location of any medical clinics that the local health department provides. The commentary to the ETS makes clear that where healthcare support services are located somewhere other than the location where the healthcare services are provided, the ETS does not apply.

WHERE DOES THE ETS APPLY?

Covered “Settings” Are Only Those Where COVID-19 is Likely to Be Present or Suspected

The commentary to the ETS makes clear that it is intended to apply only to settings where there is a reasonable expectation that persons with suspected or confirmed COVID-19 will be present. See 86 Fed.Reg. 32376, 32562. There are, therefore, some exceptions to OSHA’s definition of healthcare services that may take some local government healthcare settings and their accompanying personnel out of the scope of the ETS. These exceptions are set forth in § 1910.502(a)(2).

Section 1910.502(a)(2)(iii) provides one such an exception. The ETS does not apply to “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.” In other words, a local health department medical or dental clinic or pharmacy would not be covered by the ETS when the health department screens patients and all other visitors (for example, people accompanying patients, outside contractors or workmen) before allowing them to enter. It must also refuse entry to anyone who has COVID-19 or is suspected of having COVID-19. The commentary to the ETS explains that a person who has COVID-19 is one who has either tested positive or who has been diagnosed with COVID-19 by a licensed healthcare provider. A person suspected of having COVID-19 includes not only those showing the recognized physical symptoms of COVID-19, but also includes anyone who has come for COVID-19 testing, including testing because of a suspected exposure. For the setting to be exempt from the ETS, people coming for COVID-19 testing must not be permitted to enter. Only those who are being tested as part of a random COVID-19 testing program may be allowed entry under this exception.

The required screening should include direct questions about diagnosis or symptoms and may also include temperature checks, as well as additional questions about whether the person has had potential recent exposure to COVID-19.

For local health departments that provide home health services, the employees in these settings will be exempt from the ETS only if 1) the employees themselves are fully vaccinated, and 2) any non-employees in the home are screened and no one with suspected or confirmed COVID-19 is present. Unvaccinated employees will not trigger a loss of the exemption if they are entitled to a reasonable accommodation for a vaccination requirement for medical reasons (under the Americans with Disabilities Act) or for religious reasons (under Title VII of the Civil Rights Act of 1964) and they are adequately protected from exposure to COVID-19 by personal protective equipment (PPE) or some other means. See § 1910.502(a)(2)(v).

Does the ETS Apply to the Entire Health Department or Only to Its Medical Service Areas?

Most of the examples that OSHA provides come from hospital or private healthcare settings. Clinics runs by local public health departments are not discussed directly in any part of the ETS. It is difficult, therefore, to determine with certainty whether the ETS applies only to the clinical areas of a local health department or to the entire health department if the clinics are embedded within the same building. In the commentary to the ETS, OSHA provides examples of settings that are covered or exempt from the ETS:

On the one hand, if a service is performed in a facility whose primary function is the provision of healthcare services (such as a hospital, urgent care facility, or outpatient clinic), all areas in the facility would be considered part of the same setting. For example, a pharmacy or optical department in a hospital would be considered part of the hospital setting. On the other hand, an embedded healthcare clinic in a prison, manufacturing facility, or school would be treated as a healthcare setting that is separate from the remainder of the prison, manufacturing facility, or school (i.e., the non-healthcare setting).

See 86 Fed.Reg. at 32563. Providing clinical medical services is one of the purposes of a public health department but it is not the primary function. On the other hand, a healthcare clinic in a local health department seems different than an employee clinic in a manufacturing facility or a student health clinic in a school. Local health departments should take a hard look at the way in which their clinical services are integrated in their larger work, both with respect to physical location and the sharing of personnel, before determining whether the entire health department facility is a setting covered by the ETS.

For help in determining which settings and workers are covered by the ETS, see here and here.

WHAT DOES THE ETS REQUIRE CITIES AND COUNTIES TO DO?

Cities and Counties Must Have a COVID-19 Plan Specific to Emergency Responders and Health Department Employees Covered by the ETS

Section 1910.502(c) requires employers to develop and implement a written COVID-19 plan that takes into account the potential workplace COVID-19 exposures that are specific to each type of employee covered by the ETS. The plan must include policies and procedures to minimize the risk of transmission for each type of employee, including written procedures for:

  • patient screening and management that comply with the CDC’s Guidelines for Isolation Precautions,
  • the use of PPE appropriate for each type of position,
  • aerosol-generating procedures on persons with suspected or confirmed COVD-19,
  • maintaining a physical distance of 6 feet between employees and other people present in the workplace,
  • cleaning and disinfecting surfaces and equipment in accordance with the CDC’s COVID-19 Infection Prevention and Control Recommendations, Guidelines for Environmental Control and Cleaning and Disinfection Guidance,
  • ventilation,
  • health screening and management of employees,
  • notification to employees of COVID-19 exposure in the workplace,
  • medical removal of employees with confirmed cases of COVID-19 or exposure to it and the payment of medical removal protection benefits,
  • providing time off for vaccination,
  • training of employees and
  • recordkeeping

Employers must also designate one or more COVID-19 Safety Coordinators to implement and monitor compliance with the COVID-19 plan. The COVID-19 Safety Coordinator must be knowledgeable in infection control and their name must be included in the plan. The commentary to the ETS suggests that employers give safety coordinators responsibility for inspecting the workplace to ensure that the COVID-19 Plan is being implemented and that it is effective. That could include observing employees to ensure that they are wearing the correct masks and wearing them properly and observing whether they are maintaining appropriate physical distancing. See 86 Fed.Reg. 32376, 32568.

Employers must immediately adopt a COVID-19 Plan as the ETS is effective now. A COVID-19 Plan has many specific requirements, all of which may be found in the ETS itself. OSHA has developed a COVID-19 Plan Template and a COVID-19 Healthcare Worksite Checklist & Employee Job Hazard Analysis to assist employers in developing and implementing their COVID-19 plan. The rest of this blog post will highlight some of the more general requirements.

THE REQUIREMENTS OF THE ETS COVID-19 PLAN

Emergency Responders and Providers of Healthcare Services Must Wear Facemasks

Section 1910.502(f) requires that all employees in a covered healthcare setting and all emergency responders responding to a call wear a facemask that covers the nose and mouth whenever they are indoors or in a vehicle with another person. This means that paramedics, EMTs, firefighters and law enforcement officers must wear masks when they respond to a patient in an indoor setting and while paramedics and EMTs are riding in the ambulance with them. The facemasks cannot be cloth masks, bandannas, or gaiters. They must be surgical, medical procedure, dental or isolation masks that are FDA-approved (see the definition of face mask in § 1910.502(b)). Furthermore, it is the employer’s responsibility to supply each employee with enough facemasks so that they are changed at least once a day or whenever they are damaged or may be contaminated.

Employees must be supplied with respirators certified by the National Institute of Occupational Safety and Health (NIOSH, as well as gloves, an isolation gown and eye protection whenever they are with a person with confirmed or suspected case of COVID-19 and whenever they are performing aerosol-generating procedures like cardiopulmonary resuscitation (CPR), open suctioning of airways or certain dental procedures. While law enforcement personnel and firefighters may be unlikely to engage in some of these procedures, they must be supplied with respirators and other PPE for performing CPR.

Health Screening of Employees

Employers must screen each employee covered by the ETS before each workday or shift. Many employers have been doing this for all their employees since the beginning of the pandemic. Where an employer requires COVID-19 testing as part of its screening process, however, it must provide the test to the employee at no cost (in other words, it cannot tell employees to get tested out in the world and bring in a report of the results). This is true whether the screening test is daily, random or only for those employees who are not vaccinated. See 29 CFR § 1910.502(l(1)(ii).

Removal from Work Due to Infection or Exposure and Medical Removal Benefits

The ETS generally incorporates the CDC’s recommendations on quarantine, isolation and return to work. It also requires that employers provide paid leave to ETS-covered employees who take time off because they are infected or exposed to COVID-19.

Employees Infected with the COVID-19 Virus

The ETS has adopted the CDC’s recommendations for employees who are infected with COVID-19. These recommendations are the same for infected employees who are unvaccinated and infected employees who are fully vaccinated (the so-called  “breakthrough infections”).

  • Infected employees who show symptoms must stay at home for 10 days after symptoms first appeared and until they have gone 24 hours without a fever without the use of fever-reducing medications, such as aspirin, ibuprofen (Advil, Motrin) or acetaminophen (Tylenol) and other symptoms are improving.
  • Infected employees who have no symptoms should stay home for 10 days after the date of their positive COVID-19 test. If symptoms develop, then the guidelines for employees who test positive and have symptoms should be followed.
  • Healthcare workers with severe COVID-19 disease or who are immunocompromised should consult with their physicians about whether a longer isolation period should be observed.

Employees Exposed to COVID-19

The ETS has also adopted the CDC’s recommendations for the self-quarantine of people who have been exposed to a confirmed case of COVID-19.  The rules are different for fully vaccinated and unvaccinated employees.

Fully vaccinated employees who have been exposed to COVID-19 do not have to quarantine unless they show symptoms of COVID. They should, however, get tested for COVID three to five days after exposure. They should also wear a mask indoors until they receive a negative test result. If a vaccinated employee tests positive after exposure, then they must follow the recommendations for confirmed cases of COVID-19.

Unvaccinated employees who have been exposed to someone with COVID-19 should quarantine at home for 14 days after their last contact with a person who has tested positive for COVID-19. Employers should test unvaccinated exposed employees five days after exposure. Employees who test negative may end their quarantine on the seventh day after the last exposure and return to work.

To repeat, if an unvaccinated employee tests positive after exposure, they must follow the recommendations for confirmed cases of COVID-19.

Employees who themselves have had COVID-19 within the last three months do not need to quarantine after a new exposure unless they show symptoms of reinfection.

Special Provision for Employees with COVID-19 Symptoms But No Known Exposure

The ETS has special provisions for employees suspected by a healthcare provider of having COVID-19, employees who experience loss of taste and/or smell, and employees with both a fever above 100.4 degrees and a new unexplained cough.  These employees should be removed from work immediately and kept out of work for 10 days after symptoms first appeared and until they have gone 24 hours without a fever without the use of fever-reducing medications, such as aspirin, ibuprofen (Advil, Motrin) or acetaminophen (Tylenol) and other symptoms are improving. Alternatively, an employer may have the employee take a PCR (polymerase chain reaction) test for COVID-19 (and only a PCR test) at the employer’s cost. If the test is negative, the employee may return to work. If it is positive, the employee must continue to isolate.

OSHA has a comprehensive flow chart showing when employees must be removed from work here.

PAID LEAVE FOR EMPLOYEES COVERED BY THE ETS

The ETS requires that covered employees be compensated when they are sent home because they have tested positive for COVID-19, because their doctor suspects COVID-19 infection or because they have symptoms of COVID-19. It refers to this requirement as “medical removal protection benefits.” Compensation must be at their regular rate of pay up to a maximum of $1,400 per week. If the employer has fewer than 500 employees, then during the third week of absence, it must pay an employee only 2/3 of their regular pay, up to a maximum of $200 per day. If the employee has paid sick or vacation leave, the employer can require the employee to use that leave to satisfy the ETS requirement. Employers with 10 or fewer employees are exempt from the compensation requirement. See 29 CFR § 1910.502(l)(5).

Proof of the Need for COVID-19 Leave and Compensation

As a general rule, employers may require proof of illness when an employee uses sick leave (provided that the employer does not ask about a disability). They may therefore require an infected employee who is absent to provide proof that have been diagnosed with COVID-19, by submitting either a test result or a diagnosis from a health care provider. Employers may also require employees who have been exposed to COVID-19 to explain the circumstances of their exposure. This is true whether an employer has extended emergency paid sick leave or emergency FMLA leave, whether they have adopted their own paid COVID leave policy or whether employees are using regular accrued paid sick or vacation leave or whether the employee is covered by the ETS.

Paid Leave for Vaccination

While the ETS does not require COVID-19 vaccination for covered employees, it does require employers to provide reasonable paid time off for employees to get vaccination and to recover from any side effects they may experience. See 29 CFR § 1910.502(m). The ETS does not mandate additional paid time off for vaccination.  Employers may require employees to use any accrued sick or vacation leave. But if an employee does not have any accrued leave, then the employer must provide additional paid time off specifically for use for vaccination. The commentary to the ETS says that employers may cap the amount of time taken for vaccination. OSHA considers up to four hours for the actual administration of the vaccine to be reasonable (unless it is being offered on-site, in which case less time would be reasonable) and up to 16 hours for side effects from the vaccination.

RECORDKEEPING

Independent of the ETS, OSHA and NC OSH requires employers to record all work-related cases of COVID-19 on OSHA Forms 300, 300A and 301. The ETS adds an additional recordkeeping requirement in the form of a COVID-19 log, in which an employer must record each instance in which an employee has a confirmed case of COVID-19, regardless of whether the infection is work-related. This requirement is designed to help employers track and evaluate the potential workplace exposure of other co-workers to an infected employee. See 29 CFR § 1910.502(q)(2)(ii) and OSHA’s Sample COVID-19 Log. Employers with 10 employees or fewer are exempt form the COVID-19 log requirement.

Separately from the COVID-19 log, employer must report directly to OSHA

  • each work-related COVID-19 fatality within 8 hours of learning of an employee’s death, and
  • each work-related COVID-19 in-patient hospitalization within 24 hours of learning of an employee’s hospital admission.

For more information, see here. For what it means for an illness to be work-related for OSHA purposes, see 29 CFR § 1904.5.

CONCLUSION

Most of the requirements of the ETS became effective upon publication on June 21, 2021; th remaining requirements became effective on August 5. Employers who have not become familiar with the ETS requirements and who have not yet drafted a compliant COVID-19 plan should do so immediately. While the requirements of the ETS may seem daunting at first, many employers will already have some of the required policies and procedures in place. OSHA and NC OSH have a number of online resources that can help, as well. Visit the resources and links at their ETS webpages here, here and here.

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