On June 10, 2021, OSHA published its draft COVID-19 Emergency Temporary Standard. Originally, OSHA intended the standard to apply to all employers but scaled back the scope to include only healthcare-related employers. The standard was published and became effective on June 21, 2021. OSHA will enforce all aspects of this new standard on July 6, with the exception of requirements for physical barriers, ventilation, and training, which will be enforceable on July 21.
From a regulatory perspective, the new standard will give the agency the power to enforce each element of this complex standard. Previously, the agency could only enforce aspects of COVID compliance through a limited number of existing standards and use of the general duty clause. A new standard will allow the agency to cite multiple provisions in the standard while accumulating many tens of thousands of dollars in penalties attached to multiple citations.
There are interesting exceptions to this standard. The standard does not apply to the following healthcare employers:
- Well-defined hospital ambulatory care settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings
This exception is meant to exempt ambulatory surgical centers, physical therapy operations, physicians’ offices, radiology departments, dialysis centers, laboratory operations, and other ambulatory care operations associated with hospital entities. OSHA suggests hospital based ambulatory care settings should be “well-defined”, which may include having entrances separate from the main entrance to the hospital. Emergency rooms are not included in this exception. If the hospital based services described above are not “well-defined”, they are subject to the entirety of the complex standard.
Also, this exception requires employers in the settings above to screen non-employees prior to entry into these “well-defined” hospital-based settings/operations. Screening must occur before patients and non-employees enter the space, and employers must maintain documentation proving screening is occurring. If these ambulatory care settings chose not to screen non-employees prior to entry, they must comply with all applicable sections of the complex standard.
- Home healthcare settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not present
This exception exempts home healthcare employers from the full standard if employers mandate all employees be vaccinated, and patients and others in the home are screened prior to each visit. It is meant to include all services provided in a patient’s home, including care for home patients who are non-ambulatory. Home healthcare includes hospice, palliative, physical therapy, home-based aids, and any service provided in a patient’s home.
To qualify for the exception, home healthcare employers must screen the patient and others in the home for suspected or confirmed case of COVID-19. Employers must document this screening.
- Non-hospital ambulatory care settings where all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings
This exception is written for physicians’ offices, physical therapy operations, dentists offices, and other medical or dental operations serving the needs of ambulatory patients. As long as these employers screen patients and non-employees prior to entering the facility, they are exempt from aspects of the new standard. These employers need not mandate vaccines to qualify for the exemption. As stated earlier, these employers must maintain documentation of the screening of patients and non-employee visitors.
Other exceptions, which require little further explanation, include:
- The provision of first aid by an employee who is not a licensed healthcare provider
- The dispensing of prescriptions by pharmacists in retail settings
- Healthcare support services not performed in a healthcare setting (e.g., off-site laundry, off-site medical billing)
- Telehealth services performed outside of a setting where direct patient care occurs
OSHA is incentivizing two of the healthcare employers identified in the exceptions above to mandate the COVID-19 vaccine by exempting them from aspects of this standard. Should these employers choose not to mandate the vaccine, they are subject to the complexities of the 40 page-long standard. The vaccine exemption applies to only hospital ambulatory care employers and home healthcare employers.
Interestingly, non-hospital ambulatory care operations are not subject to a vaccine mandate to qualify for an exemption, as long as they screen patients and non-employees prior to entrance into their facilities.
The benefits and pitfalls of demanding employees take the COVID-19 vaccine will not be discussed in this article, but should be explored before mandating all employees be vaccinated. Vaccine manufacturers are largely immune from liability, so employees who suffer adverse reactions from the vaccine may attempt to file workers’ compensation claims for their deaths, injuries, or loss of income caused by the vaccine.
Non-ambulatory hospital operations, long-term care facilities, nursing homes as well as other healthcare providers that chose not to adhere to the requirements for exemption from the standard must comply with all applicable aspects of the standard. Major elements of the standard include:
- COVID-19 plan
- Patient screening and management
- Standard and transmission based precautions
- Personal protective equipment (including respiratory protection)
- Aerosol generating procedures on suspected or positive COVID-19 patients
- Physical distancing
- Physical barriers
- Cleaning and disinfection
- Ventilation
- Health screening and medical management
- Vaccination
- Training
- Anti-retaliation
- Requirements implemented at no cost to employees
- Recordkeeping
- Reporting COVID-19 fatalities and hospitalizations
- Dates
- Mini-respiratory protection program
The standard is 40 pages in length and contains much more detail for each of the bullet points above. The preamble to the standard, which contains the context by which the standard will be enforced, is nearly 1,000 pages in length.
Future articles will address these program elements and how healthcare-related employers can achieve compliance. As with complex government standards, there are many questions that remain unanswered. Below is a link to the section of the OSHA website where this standard and related documents are located:
https://www.osha.gov/coronavirus/ets
It is clear OSHA is incentivizing hospital-based ambulatory operations and home healthcare employers to mandate COVID-19 vaccines to avoid the significant cost and effort involved to comply with an extremely complex standard.
Physician groups, or non-hospital ambulatory care employers as OSHA refers to them, will only need to screen non-employees prior to entering their facilities to avoid the cost and burden of complying with this standard.
Summary
This is an extremely complex standard with many exceptions and details. Below is a summary by type of healthcare employer and what is required:
- Hospitals except well-defined ambulatory operations:
Full compliance with the standard. Vaccines optional
- Hospital-based ambulatory operations:
Exempt from standard if all employees vaccinated and patients/visitors screened
- Nursing homes and long-term care facilities:
Full compliance with the standard. Vaccines optional
- Home healthcare operations:
Exempt from standard if all employees vaccinated and patients/other home residents screened
- Physician groups, dentists’ offices, physical therapy operations, laboratories, surgical centers, dialysis locations, and other ambulatory medical/dental operations:
Exempt from standard if patients/visitors are screened. Vaccines optional
Because the standard is in effect now and enforceable very soon, all healthcare employers should evaluate next steps in terms of vaccination mandates, and/or making preparations to comply with this standard. Please look for future information from Horton on these recent developments. Horton Safety Consultants can assist affected employers in developing and implementing aspects of this new standard.