Legal Updates

Healthcare Employers Should Take Note Of OSHA's New COVID-19 Standards

As long expected, the U.S. Occupational Safety and Health Administration (“OSHA”) recently released an emergency temporary standard (the “Rule”) on COVID-19, setting various requirements for certain healthcare institutions’ management of the COVID-19 pandemic. (These requirements are distinct from the employee vaccination requirements that are slated to go into effect for healthcare employers that participate in the federal Medicare and/or Medicaid programs, as detailed in a separate article in this Update.)

As the obligations detailed in the Rule have gone into full effect, employers covered by the Rule should review it thoroughly and take any steps necessary to ensure compliance.

Which Workplaces Are Covered?

Importantly, the Rule applies only to workplaces where employees provide “healthcare services” or “healthcare support services.” The Rule defines “healthcare services” as services that are provided to individuals by professional healthcare practitioners for the purpose of restoring health, while healthcare support services are defined as services that facilitate the provision of healthcare services.

Examples of workplaces that provide healthcare services and healthcare support services are hospitals, nursing homes, assisted living facilities, some home healthcare businesses, and similar organizations. OSHA has provided a flow chart to assist employers in determining whether they fall into one of these categories and are thus covered by the Rule.

Since some requirements under the Rule depend on specific circumstances such as the business’s location and the vaccination status of some employees, an employer may have to comply with the Rule in connection with some aspects of its business but not others. For similar reasons, the Rule may apply to some of an organization’s employees but not others.

What Are The Requirements For Workplaces That Are Covered?

Compliance obligations under the Rule include creating a COVID-19 plan, implementing prevention strategies, and following many other logistical requirements.

Some of the major aspects of the new requirements are summarized below:

Formal COVID-19 Plan. An employer must work with employees to develop a COVID-19 plan, focused on preventing the spread of COVID-19. If the workplace has ten or more employees, the plan must be in writing.

Safety Coordinators. There must be one or more designated workplace COVID-19 safety coordinators to implement and monitor an employer’s COVID-19 plan. The employer must empower the safety coordinator(s) with sufficient authority to ensure compliance with all aspects of the COVID-19 plan.

Entrance Screening. In workplaces where direct patient care is provided, the employer must limit and monitor points of entry to the setting and screen all patients and other non-employees entering the setting.

Masking. Employers must provide face masks or other coverings and ensure that employees wear them. There are specific, enumerated exceptions to this requirement. However, even when one of those exceptions applies, an employee must wear an alternative to a face mask, if possible, and any employee without a face mask must remain at least six feet away from other people, unless the employer can demonstrate that this is not feasible.

Respirators/PPE. Covered employers must also provide respirators and appropriate personal protective equipment (“PPE”) to employees who have been exposed to persons with suspected or confirmed COVID-19.

Aerosol Procedures. When an aerosol-generating procedure is performed on a person with suspected or confirmed COVID-19, the employer must limit the number of employees present to only those essential for the procedure, and, afterward, must clean and disinfect the surfaces and equipment in the room or area where the procedure was performed.

Physical Barriers. OSHA’s Rule requires that physical barriers be added to all fixed work locations where maintaining a distance of six feet is not possible. Additionally, where feasible, an employer must erect cleanable or disposable, solid, barriers at each fixed work location outside of direct patient areas. The barriers may have a pass-through space at the bottom to accommodate merchandise or other objects.

Cleaning of Surfaces and Equipment. Employers must clean high-touch surfaces and equipment at least once a day and provide an alcohol-based hand rub that is at least 60% alcohol or supply readily accessible hand-washing facilities.

HVAC Systems. Workplaces with existing heating, ventilation, and air-conditioning (“HVAC”) systems must adhere to specific guidelines regarding the air filtration of their systems.

Daily COVID-19 Screening. A covered employer must screen each employee for COVID-19 symptoms before each workday and each shift, and must cover the cost of any COVID-19 test that is administered to an employee.

Notification to Employer. A covered employer must implement a procedure that requires employees to notify the employer immediately if they test positive for COVID-19 or experience symptoms of COVID-19.

Notification to Employees. Similarly, the employer must implement procedures for notifying employees when there has been a COVID-19 exposure in the workplace. (Significantly, these notification requirements are not triggered simply by the presence in the workplace of a patient with confirmed COVID-19, where the employer normally provides services to suspected or confirmed COVID-19 patients.)

Employees Testing Positive for COVID. Employers must implement procedures to facilitate the prompt medical removal from the workplace of any employee who has tested positive for COVID-19.

Paid Time Off. Employers must provide paid time off to employees who are medically removed from the workplace due to a positive COVID-19 test. Similarly, employers must provide reasonable paid leave to employees for receiving COVID-19 vaccinations and for any side effects experienced following vaccination.

Employee Training. Employees must be given training regarding COVID-19, including how the disease is transmitted, ways to reduce the risk of spreading COVID-19, the signs and symptoms of the disease, risk factors for severe illness, and when to seek medical attention.

Prohibition on Retaliation. Employers are prohibited from discharging or otherwise discriminating in any manner against employees for exercising their rights under the Rule. (This requirement is in addition to the OSHA Act’s general anti-retaliation provision.)

Costs of Compliance. With the exception of employee self-monitoring, a covered employer must bear all costs of implementing the requirements of the Rule.

Recordkeeping Requirements. Employers must keep records of all versions of their COVID-19 policies, as well as records of all positive tests and workplace COVID-19 exposures.

COVID-19 Reporting Requirements. Finally, covered employers must report every COVID-19 fatality and inpatient hospitalization to OSHA within a specific timeframe (8 hours following a fatality and 24 hours following an inpatient hospitalization).

Recommendations For Employers

As this article is not meant to be a comprehensive summary of these new obligations, covered employers are encouraged to consult OSHA’s COVID-19 Healthcare Rule webpage at: https://www.osha.gov/coronavirus/ets.

In addition to detailing the new compliance requirements, this webpage includes a variety of other resources that OSHA has made available to assist employers in preparing and implementing COVID-19 prevention plans.


*A previous version of this article was published in New England In-House (NEIH). The Firm is grateful to NEIH for its support.