By MEGAN R. HEIDEN

On June 21, 2021, the Occupational Safety and Health Administration (OSHA) published a set of emergency temporary standards addressing the manner in which healthcare employers must configure their workplaces to protect healthcare workers from occupational exposure to COVID-19.

Normally, new OSHA standards undergo a public comment period before implementation. However, when an emergency warrants immediate action, OSHA publishes and begins enforcing the new standards during the public comment period. While OSHA began enforcing all requirements in July, it will formally publish the final rule after the comment period ends several months down the road.

What made OSHA act now, over a year into the pandemic? Shortly after taking office in January, President Biden signed an executive order directing OSHA and several other federal agencies to take steps to protect healthcare workers on the front lines of the pandemic from the risks associated with COVID-19.

Why do healthcare employers need to pay attention?

The new emergency temporary standard (ETS) provides set requirements, many of which incorporate CDC guidance. This set of national standards makes it more difficult for covered employers to change workplace practices and make location-specific adjustments as the pandemic evolves. The ETS also creates regulatory consequences for an employer's failure to ensure all employees follow PPE and isolation requirements.

In addition, employers covered by the ETS must provide employees with paid leave for time required to undergo vaccination, recover from vaccine side effects, and isolate because of COVID-19 infection or exposure. These provisions will likely be challenged in federal district courts, but, in the meantime, employers must comply.

Finally, the ETS contains robust anti-retaliation provisions that could create new avenues of liability for employers.

Who is affected?

Subject to a number of exceptions, the new standard applies to all settings where any employee provides healthcare services or healthcare support services. This is true regardless of the type of services (COVID-related or not), such as dental work, hospice care, home health and patient transport, among others. Healthcare support services include anything adjacent to patient care like food services, housekeeping, reprocessing, medical waste handling and others.

The biggest exemption applies to non-hospital ambulatory health care settings in which (1) every individual is screened for possible COVID-19 infection before entering the facility; and (2) no one with positive screening responses is permitted to enter. This exemption allows many health care providers with office-based practices to apply comprehensive screening protocols in lieu of having to comply with the ETS.

The ETS contains a few exclusions specific to different kinds of workplaces. The mere fact that a non-healthcare-provider employee provides first aid assistance in the workplace does not bring that workplace within the jurisdiction of the ETS. Retail pharmacy operations are also exempt.

The ETS also provides limited exemptions associated with screening and vaccination requirements:

1. "Well-defined" hospital ambulatory care settings are exempt only if (1) all employees are fully vaccinated and (2) people with suspected or confirmed COVID-19 are not permitted to enter. An example of this would be an imaging center that's part of the hospital but not its inpatient unit.

2. Home healthcare settings are exempt if (1) all employees are fully vaccinated, (2) all non-employees are screened prior to entry and (3) people with suspected or confirmed COVID-19 are not present.

3. Healthcare support services located separately from the patient care location are also exempt, such as an off-site billing or IT department.

4. Telehealth services performed outside of a setting where direct patient care occurs are also exempt. Note: A physician conducting a telehealth visit from an empty exam room or their on-site office likely would not be enough to exempt, compared to conducting the visit off site, such as from their home.

The ETS refers often to “known” or “suspected” cases of COVID-19. A "known" case occurs when someone has tested positive or been diagnosed by a healthcare provider. The ETS does not define a “suspected” case, but it provides a list of potential symptoms:

• Fever
• Chills
• Cough
• Shortness of breath or difficulty breathing
• Fatigue
• Muscle or body aches
• New loss of taste or smell
• Sore throat
• Congestion or runny nose
• Nausea or vomiting
• Diarrhea

The best practice is to use the above symptoms in the screening and to treat any individual displaying any of those symptoms as a "suspected" COVID-19 case.

Examining some "fine print"

There are a few noteworthy caveats and clarifications relating to the ETS.

Some may raise their eyebrows at provisions requiring "all employees to be fully vaccinated" (i.e., occupational mandatory vaccination policies). For a long time, many believed an employer could not require worker vaccination when the three available vaccines were only approved for emergency use authorization by the FDA. However, the federal Equal Employment Opportunity Commission (EEOC) released guidance clarifying that an employer can require employees to receive one of the vaccines, but relevant exemptions under the Americans with Disabilities Act (ADA) or religious anti-discrimination laws still apply. The Pfizer vaccine is now fully approved by the FDA, and the federal government is strongly pushing for employer-backed universal vaccination.

A landmark court case in Texas set precedent when dozens of hospital employees in Houston sued after resigning or being terminated for refusing to comply with the hospital's mandatory vaccination policy. A federal district court judge ultimately dismissed the case, noting that while employees absolutely have a right to refuse vaccination, they can exercise that right by seeking employment elsewhere.

If an employer claims an exemption on grounds that it has a fully vaccinated workforce, it must have written policies on how to determine employees' vaccination status. By law, an employer can require its employees to show proof of vaccination. While the ADA regulates an employer’s ability to ask employees medical questions, recent guidance indicates that simply asking employees whether or not they are vaccinated is not considered an inquiry into their medical conditions. Employers should be careful, however — any follow-up questions beyond the initial vaccination status (such as why the employee is not vaccinated) could implicate the ADA.

An employer can also qualify for a fully vaccinated workforce exemption if the employer can accommodate an unvaccinated employee in a manner that totally protects him or her from exposure to COVID-19. For example, the employer could allow the employee to work from home or in a separate, isolated environment.

Other unique scenarios include when a healthcare setting is embedded in a non-healthcare setting, such as a medical clinic in a factory or a walk-in clinic located in a retail store like CVS or Walgreens. In those cases, the OSHA standard applies only to the healthcare setting, not the whole factory or the rest of the store.

Similarly, where emergency responders or other licensed healthcare providers enter a non-healthcare setting to provide services, the OSHA standard only applies to the healthcare services being provided. For example, EMTs treating an unresponsive person in an office building would need to wear the correct PPE and otherwise comply with the portions of the ETS specific to their persons and their equipment but their presence would not extend the OSHA ETS obligations to that entire workplace.

Finally, in "well-defined" areas where there is no reasonable expectation that a person with COVID-19 will be present, certain of the standards do not apply to fully vaccinated employees.

How to comply with the new emergency temporary standard

Employers covered under the new OSHA standard must develop and implement a COVID-19 plan for their workplace(s). According to the regulations, employers with fewer than 10 employees are technically not required to write down the COVID-19 plan. However, we recommend keeping a written plan regardless of workplace size. If an occupational transmission occurs and an employee reports it, OSHA will survey the workplace and ask the employer for extensive details on the COVID plan. If the plan is not written down anywhere, it will be difficult to provide that in a persuasive way.

Employers must also designate COVID safety coordinators to implement and monitor the plan. One suggestion is to select two employees, one from the administrative side and one from the clinical side, for a balanced approach.

Workplace-specific hazard assessment

The first step toward creating the plan is conducting a workplace-specific hazard assessment. It should address questions such as:

• Who is coming in and out of our workplace?
• How can employees properly distance themselves from each other and patients?
• Where are the highest risk exposure points?

This assessment cannot be performed solely at the executive level. Input from the "boots on the ground" is critical, and employers should be able to show that a reasonable sample of employees participated in the risk assessment. The specifics will look different depending on the size of each organization.

After completing the hazard assessment, a covered employer must create the COVID-19 plan to (1) address hazards identified and (2) include policies and procedures to:

• Minimize the risk of transmission of COVID-19
• Effectively communicate and coordinate with other employers who share the same physical location (e.g., an operating room with a nurse employed by a hospital, an anesthesiologist employed by a private practice and a surgeon employed by a separate private practice).
• Protect employees whose work involves entering locations not subject to the OSHA regulations (e.g., private homes), including allowing employees to leave those premises if inadequately protected.

Patient screening and management

The ETS requires employers with direct patient care settings to:

• Limit and monitor points of entry;
• Screen and triage all non-employees who enter (including patients, visitors, delivery people, etc.);
• Implement applicable patient management strategies in keeping with the CDC's COVID-19 Infection Prevention and Control Recommendations.

Employers are also "encouraged to use telehealth when available and appropriate."

Personal Protective Equipment (PPE)

Employers must provide and ensure that employees wear face masks while working and that they change face masks daily; whenever soiled or damaged; or more frequently, if needed.

Moreover, employers must provide and ensure the use of respirators and other PPE (including gloves, eye protection, and isolation gowns or protective clothing) for employees exposed to people with suspected or confirmed COVID-19.

Respirators and PPE must also be provided during all aerosol-generating procedures. When these procedures are performed on suspected or confirmed COVID-19 patients:

• Limit the number of employees present to only those essential
• Ensure procedure is performed in an airborne infection isolation room (AIIR), if available
• After the procedure, clean and disinfect surfaces and equipment in the room or area

Finally, employers may provide respirators in lieu of face masks, and they must permit employees, who so request, to wear their own respirators in lieu of a face mask.

Other miscellaneous workplace requirements

In addition to the above, the new OSHA standards require that employers ensure physical distancing of at least six feet where feasible. Where six feet is not feasible, employees should maintain as far of a distance as possible.

Outside of direct patient care areas, if an employee cannot be separated from all others by at least six feet, solid barriers must be installed to block potential face-to-face transmission pathways. Finally, employers must provide at least 60% alcohol-based hand rub and/or readily accessible handwashing stations.

Employee screening, notification and removal from workplace

Before each work day and each shift employees must be screened for symptoms of COVID-19 before beginning work. The screening can take the form of self-monitoring or in-person screening. If the employer requires a test, it must not be at the employee's expense. If there is no free community option available, the employer must cover the cost.

The employer’s policy must require an employee to notify the employer if he or she:

• Tests positive for COVID-19
• Is told that his or her healthcare provider suspects a COVID-19 infection
• Has new loss of taste or smell without other explanation
• Has both fever and new unexplained cough associated with shortness of breath

Anyone who tests positive or meets other screening criteria must be isolated immediately. If an employee tests positive, he or she must remain out of work until he or she meets the criteria to return safely. Suspected COVID-positive employees must remain out until (1) meeting return-to-work criteria or (2) receiving a negative PCR test at the employer's expense. An employer may require remote work, if suitable, for these employees.

Exposure notification

If an employer is notified that a COVID-positive individual entered the workplace, within 24 hours, the employer must notify:

• Any employee who was not wearing a respirator and was in close contact with the COVID-positive employee
• All other employees who were not wearing respirators and were in the same area (floor, hospital unit, etc.) as the positive employee
• Other employers whose employees were not wearing respirators and had close contact with or were within same area of the positive employee during the transmission period

That said, these requirements do not apply in an environment where potential COVID-19 patients are receiving services as a matter of course (e.g., a COVID-19 ICU or triaging in the emergency room).

The notice must not include the positive employee's name, contact information or occupation, but must include the nature of the exposure (close contact vs. present in the workplace) and the date(s) of exposure. Employers should consider preparing a form of notice to maintain consistency. The fact that the employee told others that he or she has COVID-19 does not create any exception that would allow the employer to include additional details in the notification.

Medical removal from the workplace

If an employer must notify an employee of their close contact with a known COVID-19 case, the employer must immediately remove that employee from the workplace until either (1) 14 days elapse; or (2) 7 days elapse, if the employee tests negative at least 5 days after exposure.

However, an employer is not required to remove an employee based on close contact if the employee remains asymptomatic and has been fully vaccinated, or if that employee had COVID-19 and recovered within the past 3 months. The employer may require that employee to work remotely or in isolation, if suitable.

The OSHA standards also mandate medical removal protection benefits, which is essentially paid sick leave for employees who can't come to work due to COVID-19 infection. If a covered employer can find remote work for the employee in question to perform, the employer must continue paying the employee just the same as if the employee was normally reporting to work in-person.

If the employee cannot come to work due to an exposure, but the employee refuses to shorten the isolation period by taking a COVID test, the employer is not required to extend those benefits (unless there exists some reason protected under other laws). Once that employee returns to work, the employer must reinstate him or her completely, as if he or she had never been out in the first place.

Employers with more than 10 employees must provide regular benefits and pay up to $1400 per week until the employee meets return-to-work criteria. Employers with more than 500 employees must pay up to $1400 per week, but may reduce that to two-thirds of the employee's regular pay beginning in week 3 with a $200 per day cap. If the excluded employee receives monies from other public or private sources as a result of the employee’s removal from the workplace (like short-term disability insurance benefits, for example), the employer’s wage obligation is reduced by that amount.

Vaccinations and other miscellaneous requirements

Under the ETS, employers must support vaccination for employees by providing reasonable time and paid leave for vaccination and work missed due to vaccine side effects.

The new standard includes specific, detailed requirements for employee training, employer record-keeping and OSHA reporting requirements.

Anti-retaliation provisions

The ETS prohibits employers from retaliating against an employee for (1) taking paid leave under the ETS; or (2) engaging in activity to insist upon the employer’s compliance with the ETS. The ETS requires employers to notify employees of their right to protections under the ETS, and also that the ETS prohibits the employer to discharge, discriminate against, or retaliate against any employee for exercising rights and protections under the ETS.

OSHA further reminds employers that they may not discriminate or retaliate against employees because of actions required under the ETS or for filing health and safety complaints with OSHA.

Conclusion

The OSHA Emergency Temporary Standard for health care employers creates specific workplace safety obligations, including extensive screening and isolation requirements, at a time when many health care employers are struggling to maintain adequate staffing during a major surge of COVID-19 cases. President Biden recently signed additional executive orders instructing OSHA to issue additional regulations designed to protect workers in other industries. Employers in health care and other industries should continue to watch closely for changes in guidance and enforcement related to occupational safety, mandatory vaccination, disability accommodation, and other related state and federal laws.

Meg Heiden is a shareholder at Smith Hulsey & Busey, a full-service business law firm in Jacksonville, Florida, and one of the leading healthcare firms in the state. She focuses her practice on complex healthcare and employment-related matters, and helps clients avoid or respond to litigation arising from their transactional and healthcare regulatory obligations. Contact her at mheiden@smithhulsey.com and learn more at www.smithhulsey.com