OSHA Issues Temporary Emergency Standard for Healthcare Settings

Posted on June 16, 2021 by Jonathan Lips

The US Department of Labor's Occupational Safety and Health Administration (OSHA) on June 10 issued an emergency temporary standard (ETS) to protect healthcare workers from contracting coronavirus.

The ETS will be effective immediately upon publication in the Federal Register, but that publication has not yet occurred. Once effective, employers must comply with most provisions within 14 days and with provisions involving physical barriers, ventilation, and training within 30 days. OSHA has pledged to use its enforcement discretion to avoid citing employers making a good-faith effort to comply.

Like many states, however, Minnesota has its own OSHA-approved occupational safety and health plans (a "State Plan"), which is enforced by the MN Department of Labor & Industry (MNOSHA). Once federal OSHA publishes the emergency standard in the Federal Register, MNOSHA must act within 30 days to adopt standards that are either identical or just as effective as the federal standard. In short, the implementation and the timing of enforcement of the rule here in Minnesota will depend on what action MNOSHA takes. Still, the substance of the standards will be equivalent, and providers need to begin familiarizing themselves with what federal OSHA has released.

Who is subject to the ETS?
The ETS applies, with a few exceptions, to settings where any employee provides healthcare services or healthcare support services, including employees in hospitals, nursing homes, assisted living facilities, among others.

What does the ETS require?
OHSA has developed a summary of the ETS, which provides a good overview. The standards fall into several different categories:

• Administrative requirements, including the development of a written COVID-19 plan that is based on a workplace hazard assessment and designation of workplace safety coordinator(s);
• Core infection control practices, including patient screening and management, standard and transmission-based precautions, use of personal protective equipment (PPE), and physical distancing;
• Respiratory protection standards;
• Physical environment standards, including cleaning and disinfection, use of physical barriers in some situations where distancing is not possible, and ventilation;
• Health screening and medical management of staff cases and exposures, including screening, notification of exposures, and removing employees with suspected or confirmed cases, or who have had a high-risk exposure; and
• Employment policies, including providing reasonable time and paid leave for vaccinations and vaccine side effects and continuing to pay employees in most circumstances when they are restricted from work due to COVID.

In some cases, the ETS requirements are essentially the same as standards providers have been implementing during the pandemic, based on CDC guidance. 

However, in a few cases, our initial analysis suggests the OSHA standards may be less restrictive than what CMS/CDC or the Minnesota Department of Health (MDH) currently requires. In those instances, providers need to continue to follow the stricter standard.

And finally, there are requirements in the ETS that may be new for many employers, including what OSHA calls “medical removal protection benefits,” meaning payment to employees who must isolate or quarantine away from work due to a suspected or confirmed COVID case or a high-risk exposure.

Next Steps
LeadingAge Minnesota will closely monitor additional guidance or announcements from federal OSHA or MNOSHA relating to these emergency standards.  And we will develop a summary of the ETS that illustrates how it compares and contrasts with current CMS/CDC and MDH guidance. If you have questions about these new emergency standards, please contact Jonathan Lips or Kari Everson.