OSHA Emergency Temporary Standard Promises Implementation and Compliance Challenges for Long-Term Care Facilities

The Occupational Safety and Health Administration (OSHA), on June 10, 2021, released a long-anticipated Emergency Temporary Standard (“ETS”) to protect workers that provide healthcare and healthcare support services from occupational exposure to COVID-19. Not surprisingly, the ETS applies to nursing homes and assisted living facilities where the effects of COVID-19 have been so devastating for both residents and staff. While many of the requirements contained in the ETS are likely already being implemented in these facilities, the mitigation strategies in place, especially with respect to physical barriers, may not satisfy the requirements of the ETS. As a result, providers must pay close attention to the ETS requirements and be prepared to act quickly as certain requirements must be implemented immediately upon publication of the ETS in the Federal Register on June 21, 2021, while other requirements must be implemented within either 14 or 30 days of publication.

The ETS is extensive and specifies requirements for the following:

• COVID-19 Plan – Employers must conduct a workplace-specific hazard assessment, then develop and implement a COVID-19 plan that includes the designation of one or more workplace safety coordinators knowledgeable in infection control principles. The coordinator(s) must have authority to implement, monitor, and ensure compliance with the plan. The employer must also seek the input and involvement of non-managerial employees (and their representatives) in the hazard assessment and COVID-19 plan.

• Patient/Resident Screening and Management – The ETS requires employers to limit and monitor points of entry to settings where direct patient care is provided. They must also screen all non-employees for COVID-19.

• Develop and Implement Policies and Procedures for Standard and Transmission-Based Precautions

• Personal Protective Equipment (PPE)
  • Facemasks must be worn indoors and when occupying a vehicle with other people for work purposes.
  • Provide and ensure employees use respirators and other PPE for exposure to people with suspected or confirmed COVID-19.
  • Allow voluntary use of respirators instead of face masks under the mini respiratory protection program (see below).

• Aerosol-Generating Procedures – When performing such procedures on residents with suspected or confirmed COVID-19, only those employees essential to the procedure should be present. In addition, the procedure should be performed in an airborne infection isolation room (where available), and all surfaces and equipment must be cleaned and disinfected following use.

• Physical Distancing – Each employee must be separated from all other people by at least six feet when indoors.

• Physical Barriers – Barriers that are appropriately sized to provide adequate coverage must be installed at each fixed work location in non-patient care areas. The barriers must be cleanable or disposable, and must be anchored so as not to move or sway.

• Cleaning and Disinfecting – In addition to following standard practices for cleaning and disinfection of patient care areas, equipment in those areas, and resident rooms as specified by the Centers for Disease Control and Prevention (CDC), high touch surfaces and other equipment must be cleaned at least daily.

• Ventilation
  • Employer-owned or controlled HVAC systems must be used in accordance with the manufacturer’s instructions and its design specifications. This can be done by consulting a professional engineer or HVAC specialist.
  • The amount of outside air circulated through the system and the number of air changes per hour must be maximized to the extent appropriate.
  • Air filters must be rated to a Minimum Efficiency Reporting Value (“MERV”) of 13 or higher (if compatible with the system) and are maintained and replaced as necessary.
  • Outside air intake ports must be clean, maintained, and clear of any debris.
  • Employers should consider other measures to improve ventilation.

• Health Screening and Medical Management – In addition to measures that facilities presently should be implementing, such as screening employees before each workday and shift, the ETS requires employers to:
  • Provide employer-required COVID-19 testing at no cost to the employee.
  • Remove from the workplace of those who are COVID-19 positive, those who have been told by a healthcare professional that they are suspected of having COVID-19, those who experience certain symptoms associated with COVID-19, and with some exceptions (i.e., fully vaccinated/recently recovered from COVID-19 or wearing a respirator and other required PPE), those who have had close contact with someone in the workplace who is COVID-19 positive. Timing and criteria for return to work are different for each group.
  • Continue to pay employees removed from the workplace normal wages (up to $1,400 a week) for the first ten working days; thereafter, for employers with fewer than 500 employees, two-thirds of normal pay (up to $200 per day), which may be offset by any employer or public benefits.

• Vaccination and Vaccination Status – Employers must provide reasonable time and paid leave for employees to be vaccinated and for recovery from any vaccine side effects. The ETS requires employers to determine whether an employee is fully vaccinated and states that employers may rely on vaccination cards or employee attestations. Fully vaccinated employees are exempt from certain masking, physical distancing, and barrier requirements when they are in well-defined areas where there is no reasonable expectation that a person with suspected or confirmed COVID-19 will be present.

• Training – Employers must provide training to employees, in a language and at a literacy level they understand, regarding COVID-19, associated hazards in the workplace, and measures in place to protect them from those hazards, among other topics. Employees must be paid for the time spent in training.

• Anti-Retaliation – Inform employees of their rights to the protections of the ETS. Employers are prohibited from discharging, or in any manner retaliating or discriminating against, employees who exercise their rights under the ETS.

• Recordkeeping and Reporting – Create and maintain a COVID-19 log of each COVID-19 positive employee regardless of whether the employee was exposed to COVID-19 in the workplace, unless the employee works exclusively from home. The log must contain specific information to assist employers in tracking whether there is an outbreak at the worksite. Entries must be made within 24 hours of learning that an employee is COVID-19 positive. The COVID-19 log must be kept confidential as a medical record and may only be disclosed under certain circumstances. If an employer determines that the illness is work-related, the employer must also enter the illness in the OSHA 300 log. All work-related COVID-19 fatalities and inpatient hospitalizations must be reported to OSHA.

• Mini Respiratory Protection Program – The ETS includes a mini-respiratory protection program (MRPP) for those situations in which a respirator is not required but may be used to provide greater protection than a face mask. In these circumstances only, fit-testing and medical evaluations are not required. Rather, the employer must ensure that employees opting to use respirators receive training prior to first use, the respirators create a tight seal to the face, and respirator use is discontinued for any employee that exhibits signs or symptoms that are related to the ability to use a respirator, among other requirements.

As noted above, the ETS became effective on June 21, 2021. Most requirements must be implemented within 14 days thereafter, with 30 days provided for implementation of the requirements pertaining to physical barriers, ventilation, and training.

Despite the perception that the COVID-19 pandemic is in its waning phases, the ETS ensures that the physical workplace in long-term care facilities and, indeed, workplace practices, are likely to see permanent alterations even if the ETS is allowed to expire. Accordingly, employers should look to implementing the requirements of the ETS with a view toward their permanency.