OSHA Issues New Emergency Temporary Standards for Health Care Workers

WASHINGTON, D.C. (June 18, 2021)—The Occupational Safety and Health Administration (OSHA) is issuing an emergency temporary standard (ETS) to protect health care and health care support service workers from occupational exposure to COVID-19 in settings where people with COVID-19 are reasonably expected to be present. During the period of the emergency standard, covered health care employers must develop and implement a COVID-19 plan to identify and control COVID-19 hazards in the workplace.

Covered employers must also implement other requirements to reduce transmission of COVID-19 in their workplaces, related to the following:
•    Patient screening and management;
•    Standard and Transmission-Based Precautions;
•    Personal protective equipment (PPE), including facemasks or respirators;
•    Controls for aerosol-generating procedures;
•    Physical distancing of at least six feet, when feasible; physical barriers;
•    Cleaning and disinfection;
•    Ventilation;
•    Health screening and medical management;
•    Training;
•    Anti-retaliation;
•    Record keeping; and
•    Reporting.

The standard encourages vaccination by requiring employers to provide reasonable time and paid leave for employee vaccinations and any side effects. It also encourages use of respirators, where respirators are used in lieu of required facemasks, by including a mini respiratory protection program that applies to such use.

In a close reading of the new rule, the health care team at Polsinelli law firm concluded that the ETS would not cover an agency if: (1) it only provides non-medical homecare (2) in client homes (3) in a state that does not require caregivers to be licensed, certified or registered, and (4) the agency doesn’t actually provide caregivers with such credentials. The authors believe all four criteria must be present to escape coverage under the ETS because otherwise there is an argument that some of the agency’s employees work in a setting where health care services are provided.

Finally, the standard exempts from coverage certain workplaces where all employees are fully vaccinated and individuals with possible COVID-19 are prohibited from entry; and it exempts from some of the requirements of the standard fully vaccinated employees in well-defined areas where there is no reasonable expectation that individuals with COVID-19 will be present.

According to OSHA, certain workplaces and well-defined areas where all employees are fully vaccinated are exempted from all of the standard’s requirements, and certain fully vaccinated workers are exempted from several of the standard’s requirements.
There is no definition of “home health care” in the ETS, but it appears this phrase is not meant to be limited to just Medicare certified home health agencies. Rather, it appears this phrase is intended to capture all home-based care providers who may be otherwise covered by the ETS’s definition of providing “health care services” as discussed above, reads the Polsinelli review of the rule.

According to the new rule, “OSHA will continue to monitor trends in COVID-19 infections and deaths as more of the workforce and the general population become vaccinated and the pandemic continues to evolve. Where OSHA finds a grave danger from the virus no longer exists for the covered workforce (or some portion thereof), or new information indicates a change in measures necessary to address the grave danger, OSHA will update the ETS, as appropriate.”

The Polsinelli authors concluded that OSHA is pushing for providers to bring their all staff to full vaccination status.