Hospitals Struggle to Comply with Sweeping OSHA COVID-19 Emergency Temporary Standard

• December 01, 2021

• Adam R. Young , Seyfarth Shaw LLP
• Daniel R. Birnbaum , Seyfarth Shaw LLP
• Bailey G. Green , Seyfarth Shaw LLP

On June 21, 2021, OSHA issued an Emergency Temporary Standard (ETS) regarding COVID-19 hazards in the health care industry. By issuing an ETS 15 months into the global pandemic, OSHA indicated that its existing regulations were inadequate to address the grave dangers faced by health care workers during the current emergency.¹ Accordingly, OSHA created and implemented the ETS, stating that it provides a coherent, unified federal standard that will ensure sufficient protection for health care workers in all states.² The ETS became fully effective in July 2021 and will remain valid until December 21, 2021, when it may be adopted as a permanent standard. As discussed further below, reception of the ETS is mixed among employers and workers along the health care spectrum, and stakeholders have called for its roll-back.

Meanwhile, on November 4, 2021, OSHA released another ETS that requires vaccination, testing, and masking for the unvaccinated.³ This new ETS does not apply to health care employers while the health care ETS is in force. But this new ETS shows that OSHA continues to perceive an ongoing “grave danger” from COVID-19 in the workplace, and likely will try to extend the health care ETS past December 2021. Also on November 4, 2021, the Centers for Medicare & Medicaid Services (CMS) issued emergency regulations requiring all eligible staff who work at health care facilities that participate in the Medicare and Medicaid programs to obtain a COVID-19 vaccine by January 4, 2022.⁴ Accordingly, health care employers face these additional requirements in addition to those imposed by the health care ETS.

ETS Requirements

Scope and Application

The ETS applies to health care services and health care support services. Employers bear the cost of implementing all of the ETS’ requirements.⁵ The ETS only applies to health care support services performed in a health care setting.⁶ It would not apply to off-site medical billing, nor would it apply to telehealth services performed outside of a setting where direct patient care occurs.⁷ If a licensed health care provider enters a non-health care setting to provide health care services, the ETS applies to the provision of the health care services.⁸

The ETS does not apply to outpatient ambulatory care settings, where patients are first screened for COVID-19 symptoms. Within a covered health care setting, the ETS allows for relaxed precautions in “well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.” In that “well-defined area,” the ETS provides that face masks, Personal Protective Equipment (PPE), physical distancing, and physical barriers are not required for fully vaccinated employees.⁹

The ETS serves as the floor for protection for health care workers.¹⁰ State and local governments may issue mandates or guidance that goes beyond the ETS’ requirements.¹¹ Additionally, the ETS encourages all health care providers to follow the Centers for Disease Control and Prevention’s (CDC’s) public health guidance.¹²

COVID-19 Plan

Employers must develop and implement a COVID-19 plan for each workplace they control.¹³ Any employer that has more than ten employees must have a written COVID-19 plan.¹⁴ If an employer has multiple workplaces that are substantially similar, the COVID-19 plan may be developed by workplace type rather than by individual workplace; however, site-specific information must be included in each plan.¹⁵ Employers must also include all policies, procedures, and other information in their COVID-19 plan that are required by local, state, or federal public health laws, standards, or guidelines.¹⁶

Safety Coordinators

Employers must designate one or more workplace COVID-19 safety coordinators who will implement the COVID-19 plan.¹⁷ These employees must be knowledgeable about infection control principles and practices as they apply to the workplace and employee job operations.¹⁸ The safety coordinator’s identity must be documented in the written COVID-19 plan.¹⁹ Importantly, safety coordinators must have the authority to ensure compliance with the COVID-19 plan.²⁰

Workplace Specific Hazard Assessment

Employers must conduct a workplace-specific hazard assessment to identify potential COVID-19 workplace hazards.²¹ While developing and implementing the hazard assessment, the employer must seek the input and involvement of non-managerial employees and their representatives.²² The COVID-19 plan must address the assessment’s hazards and include policies and procedures to minimize the risk of employee transmission of COVID-19.²³ Although the plan must account for potential employee COVID-19 exposure, the plan does not have to address each individual employee’s exposure risk.²⁴ It may account for employee exposure risk generally.²⁵ The employer must continue to monitor the workplace after implementation of the COVID-19 plan to ensure the plan’s effectiveness and update as needed.²⁶

Multi-Employer Locations.

OSHA enforces its regulations through the Multi-Employer Worksite Doctrine, analyzing worksites in their totality and citing employers for safety violations relating to any onsite workers for whom they have a role. In situations where employees of different employers occupy the same multi-employer worksite covered by the ETS, each employer must effectively communicate its individual COVID-19 plan to all other employers in the space.²⁷ The employers must coordinate with each other to ensure that each employee is protected under their respective COVID-19 plans.²⁸ The plans must be adjusted to address any additional hazards presented by the employees of another employer at a location.²⁹ When an employer’s employees work in a physical location controlled by another employer, the employer must notify the host employer when its employees are exposed to conditions at the location that violate the ETS.³⁰ Importantly, this ETS section does not apply to delivery people, messengers, and other employees who are only briefly on the premises.³¹

Employees Inside Private Residences.

If the course of employment requires employees to enter into private residences controlled by a person not covered by the OSH Act (i.e. homeowners or sole proprietors), the employer must still develop and implement procedures that will protect employees.³² These procedures must include a plan for employee withdrawal if the location’s protections are inadequate.³³

Employee Screening and Exposure Notification

Employers must screen every employee before each workday and each shift.³⁴ The screening may be conducted by asking employees to self-monitor before reporting to work, or it may be conducted in person by the employer.³⁵ If an employer requires a COVID-19 test, the employer must provide the test to the employees at no cost.³⁶

Exposure Notification

Employers must require employees to promptly notify the employer if they receive a COVID-19 positive test.³⁷ Employers must also be notified if an employee has been told by a licensed health care provider that they are suspected of having COVID-19, are experiencing a recent loss of taste and/or smell with no explanation, or are experiencing both a fever and an unexplained cough associated with shortness of breath.³⁸

After receiving notification of COVID-19 exposure in the workplace, the employer has 24 hours to notify each employee who was not wearing a respirator or any other required PPE and has been in close contact with the COVID-19 positive person in the workplace. The employer must also contact a fellow employer whose employees may have also had contact with the COVID-19 positive person. Close contact includes employees who were not wearing respirators or any other PPE and worked in a well-defined area in which that person was present during the transmission period. A well-defined area could include an entire floor where the COVID positive employee was present. The potential transmission period runs from two days before the employee felt sick until the time the person is isolated. If the person is asymptomatic, the period begins two days before the test specimen collection. The notification must state that the employee was in close contact with someone with COVID-19 and include the dates that the person was in the workplace during the potential transmission period. The notification cannot include any employee’s name, contact information, or occupation.³⁹

Medical Removal

If an employer is aware that an employee is COVID-19 positive or is suspected of being COVID-19 positive, the employer must remove the employee immediately.⁴⁰ The employee must be removed until they meet return to work requirements or receive a negative COVID-19 polymerase chain reaction (PCR) test.⁴¹ The test must be provided to the employee at no cost.⁴² If the test results are positive, the employee must remain removed.⁴³ If the results are negative, the employee may return immediately.⁴⁴ If the employee refuses to take the test, the employer must keep the employee removed, but the employer is not required, barring state law to the contrary, to provide medical removal protection benefits.⁴⁵ Absent undue hardship, employers must make reasonable accommodations for employees incapable of taking a PCR test for religious or disability-related medical reasons.⁴⁶

An employee exposed to a person who is COVID-19 positive must be removed for 14 days.⁴⁷ However, the employer can provide a COVID-19 test at least five days after the exposure at no cost to the employee.⁴⁸ If the test is negative, the employee may return to work after seven days following the exposure.⁴⁹

Employees do not have to be removed if they are exposed but do not feel any symptoms and are fully vaccinated against COVID-19 or have had COVID-19 and recovered within the past three months.⁵⁰

Medical Removal Protection Benefits⁵¹

If an employer requires or allows an employee to work remotely or in isolation, the employer must continue to pay and provide benefits to the employee as if the employee was in the office.⁵² An employee may be entitled to up to $1,400 per week until he or she meets the criteria to return to work.⁵³ Ultimately, the determination regarding compensation for medical removal may depend on various factors including the company’s size, the employee’s other sources of compensation, and payroll records.⁵⁴ For example, employers with fewer than 500 employees must pay the employee up to $1,400 per week, but beginning the third week of an employee’s removal the amount is reduced to two-thirds of the same regular pay the employee would have received had the employee not been absent from work.⁵⁵ In most cases, the employer is required to pay up to $200 per day.⁵⁶ An employee cannot suffer any adverse actions as a result of removal and must maintain all employee rights, benefits, and his or her prior job status.⁵⁷

Vaccination

Employers must provide reasonable time and paid leave for employees to receive vaccinations, and if necessary, recover from vaccination side effects.⁵⁸ Importantly, the ETS does not mandate that employees receive the vaccine.

Patient and Visitor Screening and Isolation

Health care facilities must limit and monitor points of entry.⁵⁹ Facilities must screen all those entering the workplace for COVID-19 symptoms, including clients, patients, residents, delivery people, and other visitors entering the health care setting.⁶⁰ The ETS requires that employers implement applicable patient management strategies in accordance with the CDC’s “Covid-19 Infection Prevention and Control Recommendations.”⁶¹ If available and appropriate, employers should continue to encourage telehealth services to prevent people from entering the workplace.⁶² Employers must also develop and implement policies and procedures that adhere to Standard and Transmission-Based Precautions in accordance with the CDC’s “Guidelines for Isolation and Precautions.”⁶³

Recordkeeping⁶⁴

Employers must retain all versions of the COVID-19 plan implemented throughout the pandemic to comply with the ETS.⁶⁵ They must also establish and maintain a COVID-19 log to record each instance an employee is COVID-19 positive, regardless of whether the instance is connected to exposure to COVID-19 at work.⁶⁶ The log must contain the following:

• Employee’s name
• Occupation
• One form of contact information
• Location where the employee worked
• Date of the employee’s last day at the workplace
• Date of the positive test or diagnosis of COVID-19
• Date the employee had COVID-19 symptoms

The employer must update the log within 24 hours of learning that an employee is COVID-19 positive, and the log must be maintained and preserved as a confidential medical record.

If requested, employers have until the end of the next business day to respond to a COVID-19 records request.⁶⁷ Employers must provide all versions of the written COVID-19 plan to employees, their personal representatives, and labor unions.⁶⁸ Individual COVID-19 logs may be provided to the particular COVID-19 positive employee or anyone having the written consent of the employee.⁶⁹ Any employees, their personal representatives, or their authorized representatives may also receive a version of the COVID-19 log that removes the names, contact information, and occupation of the employees.⁷⁰

Reporting COVID-19 Fatalities and Hospitalizations

Employers must report all COVID-19 fatalities to OSHA within eight hours of learning of the fatality and each work-related COVID-19 inpatient hospitalization within 24 hours of learning of the occurrence.⁷¹

PPE/Facemasks

Employers must provide and ensure that employees wear facemasks when indoors and when occupying a vehicle with other people for work purposes.⁷² Facemasks must cover the nose and mouth when worn.⁷³ PPE is not required in the following circumstances:

• Employee is alone in a room.
• Employee is actively eating or drinking at the workplace, provided they are at least six feet away from others or separated by a physical barrier.
• It is necessary to see a person’s mouth (i.e., the employee is deaf) and conditions do not permit a clear plastic mask.
• Employees cannot wear facemask due to a medical necessity, medical condition, or disability as defined in the Americans with Disabilities Act or they maintain a religious objection.⁷⁴

The ETS provides an additional exception to general mask rules for (1) vaccinated employees, (2) in well-defined areas, (3) where there is no reasonable expectation that any person with suspected or confirmed COVID–19 will be present.⁷⁵

A respirator and other PPE, such as gloves, an isolation gown or other protective clothing, and eye protection, must be provided to employees when conducting aerosol-generating procedures.⁷⁶ Employers must limit the number of employees present during the procedure on a suspected or confirmed COVID-19 patient to only those essential for patient care and procedure support.⁷⁷ After the procedure, the employer must clean and disinfect the surfaces and equipment used in the room or area where the procedure was performed.⁷⁸

Under certain circumstances, such as direct exposure to a person who has COVID-19 or during aerosol-generating procedures, employers must provide respirators.⁷⁹ Employers must allow the voluntary use of respirators instead of facemasks at an employee’s request.⁸⁰ Regardless of who provides the respirator, the respirators must comply with the Section 1910.504 “Mini Respirator Protection Program” of the ETS, which outlines the policies and procedures for ensuring the safety and effectiveness of the respirator.

Physical Distancing

To the extent possible, employers must ensure that employees maintain six feet of distance from each other while indoors.⁸¹ Visual cues such as signs and floor markings are encouraged.⁸² An employer may also stagger arrival, departure, and break times to help ensure greater distance between employees.

Physical Barriers

The employer must install cleanable and disposable solid barriers in all areas outside of direct patient care when six feet of distance is not feasible or possible.⁸³ The barrier must be large enough and located in a place where it blocks face-to-face pathways between individuals based on where they would normally stand.⁸⁴

Sanitation & Hygiene

Employers must follow standard practices for cleaning and disinfecting surfaces and equipment in accordance with the CDC’s “Covid-19 Infection Prevention and Control Recommendations” and the CDC’s “Guidelines for Environmental Infection Control.”⁸⁵ All high-touch surfaces and equipment must be cleaned at least once a day, following the manufacturer’s instructions for application of cleaners.⁸⁶

When a COVID-19 positive person has been in the workplace within 24 hours, the employer must clean and disinfect, in accordance with the CDC’s “Cleaning and Disinfecting Guidance,” any areas, materials, and equipment under the employer’s control that have likely been contaminated.⁸⁷ Additionally, the employer must provide alcohol-based hand rub that is at least 60% alcohol or provide readily accessible hand washing facilities.⁸⁸

Ventilation

If an employer owns or controls buildings or structures with an existing HVAC system, the employer must ensure that the HVAC is used in accordance with the manufacturer’s instructions and design specifications.⁸⁹ To ensure protection of employees, the employer must maximize the amount of outside air circulated through the HVAC system.⁹⁰ All air filters must be rated at Minimum Efficiency Reporting Value (MERV)-13 or higher.⁹¹ If MERV-13 or higher are not compatible with the HVAC system, the employer must use air filters with the highest compatible filtering efficiency for the HVAC system.⁹² An employer must maintain and replace all air filters as necessary.⁹³ The ETS does not require employers to install a new HVAC system or AIIRs to replace or augment functioning systems.⁹⁴

Training

Employers must ensure that each employee receives training in a language and at a literacy level the employee understands.⁹⁵ Training must ensure that employees understand the following: how COVID-19 is transmitted; ways to reduce transmission of COVID-19, such as handwashing and wearing proper face coverings; risk factors for severe illness and when to seek medical attention; and all employer-specific policies and procedures regarding COVID-19.⁹⁶ Training should be conducted by someone knowledgeable in the subject matter and should allow for interactive questions and answers.⁹⁷

Enforcement

National Emphasis Program

President Biden’s Executive Order on Protecting Worker Health and Safety, issued January 21, 2021, directed OSHA to focus its enforcement efforts related to COVID-19 on (1) violations that expose the largest number of workers to risk and (2) on employers who retaliate against employees for reporting violations and unsafe conditions.⁹⁸ OSHA issued a National Emphasis Program (NEP) in March 12, 2021, which targeted COVID-19 inspections at a list of priority industries then including health care. The NEP directed OSHA’s Certified Safety & Health Officials (CSHO) to secondarily focus on complaints involving insufficient COVID-19 controls with COVID-19 cases in the workplace.

Whistleblowers

The ETS reiterates that employees have a right to its protections and includes an anti-retaliation provision.⁹⁹ The anti-retaliation provision does not change an employer’s current obligations under Section 11(c) of the OSH Act, which prohibits an employer from discriminating against any employee for exercising their rights under the Act. Rather, the anti-retaliation provision in the ETS increases employee awareness of their protections under the ETS, and it provides CSHOs with the ability to issue retaliation citations related to any provision of the ETS, not just reporting of injuries as was previously permissible. Further, President Biden’s Executive Order on Protecting Worker Health and Safety explicitly directed OSHA to focus its enforcement efforts related to COVID-19 on employers who retaliate against employees for reporting violations and unsafe conditions.¹⁰⁰

Enforcement Directive

OSHA’s Enforcement Directive (DIR 2021-02 (CPL 02) provides field inspection, enforcement procedures, and guidance for CSHOs for each of the substantive areas listed in the ETS.¹⁰¹ The Directive is meant to ensure uniformity in inspections and enforcement and directs CSHOs to follow the general procedures for issuing citations as listed in OSHA’s Field Operations Manual. The Directive gives CSHOs discretion in issuing and writing citations, especially to cases initiated before the effective date of the ETS. The Directive encourages the CSHOs to weigh when the case was opened; the severity of the violation; whether the violation is uniquely specific to the ETS, such as a missing COVID-19 plan and log; or if it is a violation of a requirement that should have been in place prior to the ETS due to CDC guidance, such as physical barriers and physical distancing.

OSHA performs scheduled and unscheduled inspections to ensure ETS compliance. As stated above, OSHA prioritizes fatality inspections and has committed to devote a significant percentage of its resources to COVID-19 and ETS inspections. If an employer violates any of the prescribed requirements, OSHA directs compliance officers to issue citations, mostly Serious citations.

Trends

At this time, OSHA has issued over 390 citations related to COVID-19 and over $4 million in total penalties.¹⁰² The vast majority of the OSHA inspections related to COVID-19 have resulted from employee complaints.¹⁰³At the time of this publication, there have been over 16,692 cases from employee complaints and only 2,687 cases from referrals.¹⁰⁴ In line with the NEP, the majority of inspections have occurred due to an employee fatality, resulting in 1,207 inspections.¹⁰⁵ OSHA has conducted only 228 inspections due to a referral.¹⁰⁶ The health care industry ranks as the top industry for complaints, coming in at 3,600 complaints while retail trade has only 1,996.¹⁰⁷

Reception and Challenges

Traditional labor advocated for an ETS for more than a year before one was issued, to cover all employees. On June 24, 2021, the AFL-CIO labor federation along with the United Food and Commercial Workers (UFCW) filed a joint petition with the D.C. Circuit, arguing that the OSHA ETS was too narrowly drawn in its limitation to health care workplaces.¹⁰⁸ Leaders of the AFL-CIO and UFCW were critical of the ETS’ limitations due to the alleged high rates of COVID-19 among workers in the meatpacking, transportation, warehousing, and service industries.¹⁰⁹ Nevertheless, the Labor Secretary defended OSHA’s decision to limit the regulation to health care workers, emphasizing that they are the most at risk among all workers.¹¹⁰ The same day, June 24, the National Nurses United union filed a court challenge to the ETS with the Ninth Circuit in San Francisco.¹¹¹ National Nurses United did not explicitly state its concerns with the ETS, but released a statement supporting “every effort to expand and improve the coverage of the ETS.”¹¹² For reasons unknown, National Nurses United and OSHA filed a stipulation of voluntary dismissal with the Ninth Circuit on July 7, 2021.¹¹³

The American Hospital Association (AHA), however, called for the withdrawal of the ETS.¹¹⁴ On August 20, 2021, AHA sent OSHA a letter urging it to withdraw the ETS or allow it to expire after six months.¹¹⁵ The letter emphasized that health care facilities are battling another wave of COVID-19 and face onerous requirements under the ETS that do not enhance occupational safety.¹¹⁶ If OSHA refused to withdraw the ETS, AHA reiterated its request from its June 29 letter that health care facilities receive an additional six months to comply with the ETS.¹¹⁷ AHA noted discrepancies between the ETS and CDC guidance that should be resolved, and it pointed out provisions that it said will place health care workers at greater risk.¹¹⁸ Specifically, AHA emphasized that barrier requirements impede air flow, increasing the risk of exposure to health care workers.¹¹⁹ AHA also noted that the ETS requires excessive cleaning after aerosol-generating procedures are performed even when the patient remains in the room and the staff are vaccinated and wearing PPE.¹²⁰ OSHA has not issued a statement in response to the most recent letter.

Overall, the response by the health care community and labor unions is mixed. On the one hand, AFL-CIO and the UFCW call for expansion of the ETS to protect workers in other industries. On the other, AHA calls for its withdrawal, emphasizing the ETS’ unduly burdensome requirements and conflicting guidance with the CDC. Despite these contrasting receptions, OSHA has not issued a statement indicating either expansion or withdrawal of the ETS.

Adam R. Young is a partner in Seyfarth’s Chicago office and a member of the firm’s Labor & Employment department. He assists clients with whistleblower litigation, workplace safety counseling, regulatory counseling, OSHA litigation, and related commercial litigation. He has experience in all aspects of labor and employment counseling and litigation.

Daniel R. Birnbaum is an associate in Seyfarth’s Chicago office and a member of the firm’s Labor & Employment department. He helps clients develop strategies to ensure they are in compliance with workplace safety laws and assists them in navigating challenges when accidents occur. While Daniel focuses on workplace safety law, he has experience navigating all aspects of traditional labor law.

Bailey G. Green is an associate in Seyfarth’s Atlanta office and a member of the firm’s Labor & Employment department. She helps clients navigate the complex and ever-shifting landscape of labor and employment laws and regulations.

AHLA thanks the leaders of the Labor and Employment Practice Group for contributing this feature article: Elissa Taub, Siskind Susser PC (Chair); Dee Anna Hays, Ogletree Deakins (Vice Chair—Education: Programming); Gary McLaughlin, Mitchell Silberberg & Knupp LLP (Vice Chair—Education: Programming); Tiffany Buckley-Norwood, Trinity Health (Vice Chair—Education: Publishing); Kristin McGurn, Seyfarth Shaw LLP (Vice Chair—Education: Publishing); and David Lindsay, K & L Gates LLP (Vice Chair - Member Engagement).

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