OSHA Issues COVID Emergency Temporary Standard–For Healthcare. Is There More to Come?

Written on .

Today, the Department of Labor released the long-awaiting OSHA Emergency Temporary Standard (ETS) for dealing with COVID-19. This ETS applies to all settings where any employee provides healthcare services or healthcare support services.

In the world of OSHA, OSHA is authorized to set emergency temporary standards when it determines that workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards and that an emergency standard is needed to protect them. Then, OSHA publishes the emergency temporary standard in the Federal Register, where it also serves as a proposed permanent standard. It is then subject to the usual procedure for adopting a permanent standard except that a final ruling should be made within six months. The validity of an emergency temporary standard may be challenged in an appropriate U.S. Court of Appeals. Indeed, some employer groups are considering a challenge to the COVID ETS on the ground, among other things, that COVID-19 no longer poses the type of emergency hazard that warrants an ETS.

The key requirements of the ETS are:

  • COVID-19 plan: Develop and implement a COVID-19 plan (in writing if more than 10 employees) that includes a designated safety coordinator with authority to ensure compliance, a workplace-specific hazard assessment, involvement of non-managerial employees in hazard assessment and plan development/implementation, and policies and procedures to minimize the risk of transmission of COVID-19 to employees.
  • Patient screening and management: Limit and monitor points of entry to settings where direct patient care is provided; screen and triage patients, clients, and other visitors and non-employees; implement patient management strategies.
  • Standard and Transmission-Based Precautions: Develop and implement policies and procedures to adhere to Standard and Transmission-Based precautions based on CDC guidelines.
  • Personal protective equipment (PPE): Provide and ensure each employee wears a facemask when indoors and when occupying a vehicle with other people for work purposes; provide and ensure employees use respirators and other PPE for exposure to people with suspected or confirmed COVID-19, and for aerosol-generating procedures on a person with suspected or confirmed COVID-19.
  • Aerosol-generating procedures on a person with suspected or confirmed COVID-19: Limit employees present to only those essential; perform procedures in an airborne infection isolation room, if available; and clean and disinfect surfaces and equipment after the procedure is completed.
  • Physical distancing: Keep people at least 6 feet apart when indoors.
  • Physical barriers: Install cleanable or disposable solid barriers at each fixed work location in non-patient care areas where employees are not separated from other people by at least 6 feet.
  • Cleaning and disinfection: Follow standard practices for cleaning and disinfection of surfaces and equipment in accordance with CDC guidelines in patient care areas, resident rooms, and for medical devices and equipment; in all other areas, clean high-touch surfaces and equipment at least once a day and provide alcohol-based hand rub that is at least 60% alcohol or provide readily accessible handwashing facilities.
  • Ventilation: Ensure that employer-owned or controlled existing HVAC systems are used in accordance with manufacturer’s instructions and design specifications for the systems and that air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher if the system allows it.
  • Health screening and medical management: (1) Screen employees before each workday and shift; (2) Require each employee to promptly notify the employer when the employee is COVID-19 positive, suspected of having COVID-19, or experiencing certain symptoms; (3) Notify certain employees within 24 hours when a person who has been in the workplace is COVID-19 positive; (4) Follow requirements for removing employees from the workplace; (5) Employers with more than 10 employees, provide medical removal protection benefits in accordance with the standard to workers who must isolate or quarantine.
  • Vaccination: Provide reasonable time and paid leave for vaccinations and vaccine side effects.
  • Training: Ensure all employees receive training so they comprehend COVID-19 transmission, tasks and situations in the workplace that could result in infection, and relevant policies and procedures.
  • Anti-Retaliation: Inform employees of their rights to the protections required by the standard and do not discharge or in any manner discriminate against employees for exercising their rights under the ETS or for engaging in actions required by the standard. Requirements must be implemented at no cost to employees.
  • Recordkeeping: Establish a COVID-19 log (if more than 10 employees) of all employee instances of COVID-19 without regard to occupational exposure and follow requirements for making records available to employees/representatives. Report work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.

Many employers have been voluntarily taking these types of precautions for a while now. Now, for healthcare employers, these precautions become required by OSHA.

Non-healthcare employers, particularly those businesses where employees work in close proximity to one another for entire work shifts, are now wondering if they will be the next target of an OSHA ETS. If vaccination rates stall and fail to reach the 70% threshold, it is possible. I’ll keep you posted.

Principal | Email: kjj@wimlaw.com
Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters.

Get Email Updates

Receive newsletters and alerts directly in your email inbox. Sign up below.

Recent Content

Women signing papers at a table indoors

Trump Regulation Requiring EEOC to Conciliate Rescinded

The current administration has moved rapidly to eliminate the Trump administrators, even during the terms of their employment, and to eli...
Port-au-Prince, Haiti - Outdoors, houses on the hillside

TDPP Extended for Six Countries

More than 400,000 citizens of six foreign countries who live and work in the U.S. under Temporary Protected Status (TPS) are able to stay...
a group of people protesting outdoors, with jackets in the cold

Issues Related to Safety and Work-related Issues, Pertaining to Walk-outs, Sit-ins, Protests, Etc

The current situation is an appropriate time to remind employers of their obligations under federal laws dealing with not only safety pro...
Covid Vaccine Clinic, Parking Sign, Outdoors

Biden Issues Executive Order Attempting to Require Covid Vaccination & Testing

In what many consider President Biden's most bold move regarding COVID-19, he issued an Executive Order on September 9, 2021 in an effort...
candles burning on a rack indoors in the dark

Dealing With Religious Objections to a COVID-19 Vaccine Requirement

In our discussions of rules mandating COVID-19 vaccines, we’ve mentioned the two possible exemptions to a vaccine requirement: disability...
yellow rubber gloves on hands reach high

Protected Concerted Activity in the Era of COVID-19: What Employers Need to Know

The National Labor Relations Board (NLRB) is one of the federal agencies that many employers do not have on their radar. The NLRB is most...
  • Home
  • Articles
  • OSHA Issues COVID Emergency Temporary Standard–For Healthcare. Is There More to Come?

Wimberly, Lawson, Steckel, Schneider & Stine

3400 Peachtree Road, Ste 400 / Lenox Towers / Atlanta, GA 30326 /404.365.0900

Where Experience Counts


Thank you for visiting the firm's website. Please note that this website is intended for general information purposes only and does not constitute an offer of representation or create an attorney-client relationship with the firm. The firm welcomes receipt of electronic mail but the act of sending electronic mail alone does not create an attorney-client relationship. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include the firm's copyright notice.

© 2020 Wimberly, Lawson, Steckel, Schneider & Stine P.C. | Site By JSM