OSHA Announces Healthcare Settings Emergency Temporary Standard Changes

Update: On Dec. 27, 2021, the Occupational Safety and Health Administration (OSHA) decided to withdraw the non-recordkeeping portions of the emergency temporary standard (ETS) for healthcare settings due to a final rule not being completed within six months of its adoption (which is a requirement of the OSH Act).

While a permanent regulatory solution is still being formulated, OSHA plans to “vigorously enforce the general duty clause and its general standards," including the Personal Protective Equipment (PPE) and Respiratory Protection Standards. The COVID-19 log and reporting requirements continue to remain in effect at this time because they were adopted under a separate provision of the OSH Act.

It is also important to note, this Emergency Temporary Standard is different from the more general OSHA ETS rule targeting covered employers with 100 or more employees.

OSHA originally published an industry-specific ETS for healthcare settings on June 21, 2021, stating that additional guidance was necessary to protect the healthcare workers with the highest risk of contracting COVID-19 while at work. This long-awaited standard was also in response to President Biden’s Executive Order declaring that “ensuring the health and safety of workers is a national priority and moral imperative” and directed OSHA to take action to reduce the risk that workers might contract COVID-19 in the workplace.

Who is Covered by This Emergency Temporary Standard?

Except as otherwise provided in the standard, this ETS applies to all employees who provide healthcare services and healthcare support services, including employees within hospitals, nursing homes, assisted living facilities, emergency responders, home health workers and employees in ambulatory care settings where suspected or confirmed COVID-19 patients are treated.

This ETS exempts the following workers:

• Pharmacists in retail settings
• Healthcare support services, such as billing and coding services, laundry, or medical waste handling, that take place in off-site, non-healthcare settings
• Employees working in outpatient, non-hospital settings, if non-employees are screened for COVID-19 and not permitted to enter if they are suspected or confirmed to have COVID-19
• Employees working in home healthcare settings or hospital-based outpatient clinics, if all employees are fully vaccinated (other than those exempt from vaccination due to disabilities or religious exemptions), and if non-employees are screened for COVID-19 and not permitted to enter if they are suspected or confirmed to have COVID-19

What is Required Under This Emergency Temporary Standard?

This ETS originally required healthcare employers to do the following:

• Develop and implement a COVID-19 safety plan for each workplace. Employers with multiple worksites may develop a single plan if the plan contains site-specific information. For employers with more than 10 employees, the plan must be in writing.
• Limit and monitor points of entry to settings where direct care is provided.
• Screen employees for COVID-19 at the beginning of each shift. This can be accomplished through employees self-monitoring for COVID-19 symptoms and exposures. Require employees to promptly notify their employer when they are COVID-19 positive, suspected of contracting COVID-19 or experiencing COVID-19 symptoms.
• Screen patients, clients and visitors for COVID-19 symptoms.
• Remove any employee(s) from the workplace that are suspected or confirmed to have contracted COVID-19. Ensure all employees who are removed from the workplace are provided “medical removal protection benefits” (which include continued wages, benefits and job security).
• Maintain a COVID-19 log. Record all employee COVID-19 infections, regardless of connection to workplace, and report to OSHA each work-related COVID-19 fatality within eight hours of learning of the fatality and each in-patient hospitalization for work-related COVID-19 within 24 hours of learning of the in-patient hospitalization.
• Designate one or more COVID-19 “safety coordinators” who must be knowledgeable in infection control principles and practices within the workplace. The names of the safety coordinators must be listed within the COVID-19 safety plan and they must have the authority to ensure compliance with all aspects of the COVID–19 plan.
• Conduct a workplace-specific hazard assessment to identify potential workplace hazards related to COVID–19.
• Provide reasonable time and paid leave (e.g., paid sick leave, administrative leave) to each employee for vaccination and any side effects experienced following vaccination.
• Provide and ensure that employees wear facemasks while indoors or in a work vehicle with others.
• Ensure people keep at least 6 feet apart or install cleanable or disposable solid barriers at each fixed work location in non-patient care areas (e.g., entryway/lobby, check-in desks, bill payment).
• Sanitize high-touch surfaces and equipment at least once per day, especially when the employer is aware of COVID-19 within the workplace 
• Utilize HVAC systems in accordance with manufacturer’s specifications and air filters rated with a Minimum Efficiency Reporting Value (MERV) 13 or higher.
• Provide training to all employees so they understand COVID-19 transmission and situations in the workplace that could result in infection.

Medical Removal from the Workplace and Compensation

Employers are required to remove employees from the workplace if workers are presumed or confirmed to have contracted COVID-19 or are symptomatic for defined periods of time. If this happens, healthcare employers with between 11 and 499 employees must pay employees their regular pay and benefits, up to $1,400 per week, for the first two weeks any worker is removed. Beginning the third week, employers must pay up to two-thirds their regular pay, up to $200 per day.

For employers with 500 or more employees, healthcare employers are required to pay up to $1,400 per week during the entire period of removal, until the employee meets the return-to-work criteria set forth in this ETS.

Employee compensation and benefits (or “medical removal protection benefits”) may not be required to be paid if the employee refuses to be tested, is employed remotely or given tasks in isolation, or may be offset if the employee is receiving compensation through other sources (such as employer-paid sick leave, administrative leave or a publicly funded compensation program).

Continued compensation and benefits are also not required for businesses with 10 or fewer employees.

For some clear context on when employees should be removed from the workplace, visit the OSHA guidance “Notification Removal and Return to Work Flow Chart for Employers.”

When Does This Emergency Temporary Standard Take Effect?

Although this ETS was effective June 21, 2021, OSHA has provided specific compliance dates for employers. Employers were required to comply with all the provisions by July 6, 2021 with narrow specified exceptions, which include requirements relating to physical barriers, ventilation and training by the compliance effective date of July 21, 2021.

Paychex Can Help

Staying on top of new regulations and guidance can be difficult, especially as businesses return their employees to work amid a changing landscape. Paychex understands and through its comprehensive HR solution that includes a strategic alliance with HireRight offers employee COVID-19 testing. Plus, your business has access to its dedicated payroll representative who can help you manage paying employees removed from the workplace due to COVID-19-related issues. With this new OSHA Healthcare Settings ETS, it might be a good time to consider establishing a comprehensive safety program or enhancing your current one.

This article was previously updated Jan. 5, 2022.