OSHA Emergency Temporary Standard Takes Effect Soon

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OSHA Emergency Temporary Standard Takes Effect Soon

But does it apply to ASCs?

BY KARA NEWBURY | JUNE 2021

On Thursday, June 10, the Occupational Safety and Health Administration (OSHA) announced COVID-19 Emergency Temporary Standard (ETS) requirements for frontline healthcare workers. The ETS was published in the federal register on Monday, June 21, and affected facilities must be in compliance with the new ETS either 14 or 30 days after publication, July 5, 2021, or July 21, 2021, respectively, depending on the section of the ETS they fall in.

Applicability to ASCs

Are ASCs subject to the new ETS? According to a helpful flow chart released by OSHA, the answer is if a workplace meets all three of the following conditions, it is exempt from the ETS if

  • it is a non-hospital ambulatory care setting;
  • all nonemployees are screened for COVID-19 prior to entry; and
  • people with suspected or confirmed COVID-19 are not permitted to enter.

What is “screening”?

According to the ETS, screening simply means “asking questions to determine whether a person is COVID-19 positive or has symptoms of COVID-19.” According to an FAQ document OSHA released in conjunction with the ETS, OSHA views “asking questions about COVID-19 symptoms and illness as the minimum requirement for screening. Screening may also include confirming that individuals are abiding by any policies and procedures for wearing face coverings, as well as assessing individuals’ recent exposures to COVID-19. To comply with the screening requirement, an employer could assign an employee to each entrance to perform a health screening on each individual entering the facility. Employers could also contact patients, clients, residents, or other visitors by phone or video, prior to their arrival at the facility, to conduct the screening.”

Also, if a healthcare setting is embedded within a non-healthcare setting—OSHA gives the example of a walk-in clinic in a retail setting—this section applies only to the embedded healthcare setting and not to the remainder of the physical location. Nonemployees do not need to be screened simply for the larger facility in which the ASC is housed but would need to be screened before entering the ASC itself.

So, if the ASC is determining whether all nonemployees are COVID-19 positive or have symptoms of COVID-19, and not allowing those with suspected or confirmed COVID-19 cases to enter the ASC, it will not have to comply with the new requirements.

Requirements Enforceable on July 5, 2021

If an ASC is not exempt, it will need to be in compliance with most of the requirements in the ETS by Monday, July 5, 2021. These requirements fall under the following categories

  • having a COVID-19 plan;
  • patient screening and management;
  • standard and transmission-based precautions;
  • personal protective equipment (PPE);
  • how to handle aerosol-generating procedures on a person with suspected or confirmed COVID-19;
  • physical distancing;
  • cleaning and disinfection;
  • health screening and medical management;
  • vaccination (employer must give reasonable pay and time off work for vaccination and recovery); and
  • reporting COVID-19 fatalities and hospitalizations to OSHA.

Requirements Enforceable on July 21, 2021

Three remaining provisions are enforceable as of July 21, 2021

  • physical barriers;
  • ventilation; and
  • training.

All requirements must be implemented at no cost to employees, facilities with 10 or more employees must keep records of compliance and employees must be made aware that they cannot be retaliated against for requesting the protections afforded to them in the ETS.

State Requirements

Even if an ASC is exempt from this new ETS, state or local governments may have mandates with which it still must comply. For example, OSHA does not intend to preempt state or local COVID-19 testing requirements. It also remains unclear what impact the ETS will have on healthcare employers in the four states—California, Michigan, Oregon and Virginia—that enacted their own COVID-19 standards under their authority pursuant to the Occupational Safety and Health Act. Contact your local OSHA office for further guidance on how the new ETS could still impact your facility, especially if you are in one of the four states with their own COVID-19 OSHA standards.

Questions? Write Kara Newbury.