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Breaking Down the COVID-19 Healthcare Emergency Temporary Standard

In June, federal OSHA finally issued a COVID-19 emergency temporary standard (ETS). This had been expected since President Biden’s January executive order directing the agency to determine if an ETS was needed. However, what wasn’t expected was the standard’s narrow scope – it only covers healthcare settings, not general industry, construction or other industries.

The standard applies to healthcare settings where suspected or confirmed COVID-19 patients are treated, including hospitals, nursing homes and assisted living facilities. The standard also applies to emergency responders and home health care workers.

What Does the ETS Require?

The ETS includes several important requirements for healthcare employers, including:

  • Hazard assessment. Employers must implement a COVID-19 infection control safety plan (for employers with more than 10 employees, it must be in writing), with input from employees and their representatives. Employers must designate  a safety coordinator who will ensure compliance and perform a workplace-specific hazard assessment.
  • Patient screening. Access to patient care areas must be limited, and patients, clients and other non-employees must be screened for COVID-19 symptoms prior to entry.
  • Personal protective equipment (PPE). Workers must be provided respirators to wear during exposure to patients with suspected or confirmed COVID-19. The emphasis on respirators instead of cloth face coverings is one of the most important aspects of the standard for protecting workers, as it acknowledges that SARs-CoV-2 is spread through normal breathing.
  • Aerosol-generating procedures. During aerosol-generating procedures (e.g., chest compressions, intubation) on a person with suspected or confirmed COVID-19, employers must limit employees present to only those who are essential. These procedures must be done in an airborne infection isolation room (if available) and both surfaces and equipment must be cleaned and disinfected afterwards.
  • Physical distancing. When indoors, workers must stay at least six feet apart from all other people when feasible (e.g., when not caring for patients).
  • Physical barriers. At fixed work areas such as check-in desks where six feet of distance can’t be maintained, solid barriers must separate workers from patients and other people.
  • Ventilation. In buildings under their control, employers must maximize outside air circulated through HVAC systems, use at least MERV-13 air filters and replace them as needed and take other steps outlined by the manufacturer to maintain the system.
  • Health screening and notification. Employees must report if they test positive for COVID-19 or suspect they have COVID-19; employers must remove employees with suspected or confirmed cases from the workplace as well as close contacts. Employees removed from work under these circumstances must still be paid.
  • Training, recordkeeping and anti-retaliation. The ETS also includes anti-retaliation provisions, requirements that employers must train workers on the standard and requirements to keep a record of employees who test positive for COVID-19 (regardless of whether the exposure occurred at work).

Exemptions Under the ETS

While the ETS turns many of the CDC’s recommended best practices into enforceable guidance for the healthcare industry, it also includes key exemptions where the standard does not apply:

  • It exempts workplaces where all workers are fully vaccinated and where people with possible COVID-19 are prohibited from entry (e.g., a separate building that only contains HR and billing personnel).
  • In workplaces where the standard does apply, fully vaccinated workers are exempt from masking, distancing and barrier requirements when in areas where it’s reasonable that patients won’t be present (e.g., an employee break room).

A Mixed Reaction to the ETS

After months of waiting for a standard that many thought would cover more industries than healthcare alone, many labor groups and advocates were critical of its narrow scope. For example, the United Food and Commercial Workers called the ETS “a broken promise to the millions of American workers in grocery stores and meatpacking plants who have gotten sick and died on the frontlines of this pandemic.”

Labor groups within the healthcare industry were more positive, but not overwhelming in their praise. National Nurses United called the ETS “an important step forward that will contribute to safer health care settings for workers, patients and communities.” However, they also noted the limitations of the ETS and areas where a future permanent standard could be stronger.

One major weakness of the current ETS is that it sidesteps the issue of asymptomatic patients by leaning very heavily on screening for COVID-19 symptoms. While it’s still unknown exactly what percentage of COVID-19 cases don’t cause symptoms, the CDC’s current best estimate is 30 percent. A more protective option would use COVID-19 testing as a screening tool rather than relying on workers and patients to self-report symptoms. Other potential areas of improvement include provisions to fully isolate COVID-19 patients from other patients and stronger language surrounding ventilation requirements.

The standard officially went into effect on June 21st and will last for up to six months. Healthcare employers in states covered by federal OSHA have 14 days (until July 5th) to comply with the majority of the provisions in the standard; employers have until July 21st to install physical barriers, follow ventilation requirements and provide worker training. Employers governed by OSHA state plans will soon have to follow these requirements too, as state OSHA programs have 30 days to issue their own standards that are at least as protective.

[Nick Fox]

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