COVID-19 OSHA replace | Texas commerce disputes

As the COVID-19 pandemic continues and new variants of the virus emerge, the OSHA has released a new Temporary Emergency Standard (ETS) for the healthcare industry, as well as recommendations for other industries on how to keep their employees and customers safe. These emergency rules illustrate the dire situation now gripping the nation, as OSHA has proposed only nine previous emergency rules in the past 40 years. For the healthcare industry, this standard takes effect upon publication in the Federal Register. Guidelines for other employers not covered by the ETS should be followed immediately.

OSHA’s new temporary emergency standard

The new ETS was officially submitted to the Office of the Federal Register on June 17, 2021 and came into force upon its publication. In August, OSHA reviewed the latest guidelines, science, and data on COVID-19 and consulted the Center for Disease Control and Prevention (CDC). OSHA noted that the CDC’s guidelines on health care facilities have not changed and the requirements of the 10th edition have changed. The ETS applies to all workplaces “where an employee provides health care or health support services”. There are certain job exemptions that the ETS does not apply to, including:

  1. First aid from an employee who is not a licensed healthcare provider.
  2. Pharmacists who dispense drugs in retail stores.
  3. Outpatient care facilities outside a hospital, in which all non-employees are examined before entry and people with suspected cases of COVID-19 are not allowed to enter.
  4. Outpatient care facilities in hospitals where all employees are fully vaccinated and non-employees are screened before entry. Even suspected or confirmed COVID-19 cases may not be allowed to enter the country.
  5. Home health facilities where all employees are fully vaccinated and all non-employees are screened prior to entry. There must be no suspected or confirmed COVID-19 cases.
  6. Healthcare industry support services provided off-site including laundry, medical billing, etc.
  7. Telehealth services provided without direct personal patient care.

Employers covered by the OSHA ETS must meet the following elements after the ETS comes into force:

  1. If an employer has more than 10 employees, they must develop and implement a written COVID-19 plan.
  2. At least one COVID-19 workplace safety coordinator must be appointed.
  3. A risk assessment in the workplace specific to COVID-19 must be carried out.
  4. If you haven’t already, conduct patient screenings and managements that provide personalized patient care.
  5. Develop and implement policies and procedures for adhering to standards and broadcast-based precautionary measures that conform to the CDC’s “Guidelines for Isolation Precautions”.
  6. Suitable personal protective equipment must be provided depending on the care situation.
  7. If aerosol generating processes are required for a confirmed or suspected COVID-19 patient, special requirements must be placed on the handling of these processes.
  8. If possible, keep a physical distance.
  9. Physical barriers should be installed in areas where physical distancing is not possible.
  10. Thorough cleaning and disinfection procedures should be prioritized and included on a regular, frequent schedule.
  11. Assess and maintain adequate ventilation in buildings owned or controlled by the employer.
  12. Before the shift, implement health screenings and medical management for every employee who enters the building.
  13. Paid vacation must be granted for vaccinations and possible side effects.
  14. All employees must be trained in the general characteristics of COVID-19, the ETS, and employer / workplace-specific guidelines and procedures.
  15. Keep records of all employees diagnosed with COVID-19, regardless of whether they have been exposed in the workplace.

In developing a written COVID-19 plan, healthcare employers are required to seek input and involvement from non-executive employees who provide their view of the hazards that exist in the workplace and how best to mitigate them in their respective roles. All of this must be done free of charge for the employees. If an employee is exposed to a patient or colleague with suspected or confirmed COVID-19, the employee should wear a respirator and comply with OSHA respiratory protection standards. The ETS introduced by OSHA focuses on anti-retaliation and requires employers to inform employees that they have a right to protection from dismissal or discrimination if they report an unsafe work environment to OSHA. The ETS should be implemented in healthcare facilities when the standard is published in the federal register. Some parts of the ETS may take longer to implement and OSHA has determined that some parts of the ETS can be implemented up to 14 to 30 days after its release.

Updated guidelines for employers not covered by the ETS

Together with the new ETS, on August 13, 2021, OSHA published an update of its guidelines from January 29, 2021 “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”. These guidelines are intended to help employers who are not covered by the ETS to recognize COVID-19 risks in the workplace and to reduce the exposure risks for their employees and customers. While these recommendations may change as new variants of COVID-19 spread across the country, OSHA currently recommends the following:

  1. Employers should give employees paid time off to get vaccinated and recover from subsequent side effects.
  2. Employees with symptoms or infected persons should not come to work and unvaccinated employees who have had close contact with a person who tested positive should also not come to work.
  3. Physical distancing should be implemented wherever possible.
  4. Face covers should be provided for unvaccinated employees or employees who are otherwise at risk of contracting the virus. In addition, fully vaccinated individuals should now wear masks in indoor public spaces in areas of significant or high transmission, and fully vaccinated individuals can choose to wear masks in indoor public spaces regardless of the level of community transmission, especially if household members have not fully vaccinated or endangered. The CDC has an up-to-date map showing areas with significant or high transmission.
  5. Educate employees about the company’s COVID-19 policies and protocols.
  6. Encourage customers, visitors, and guests to wear face covering if they are not vaccinated, and if they are in an area with high or high transmission, all customers, visitors, or guests in public indoor spaces should wear face covering.
  7. Ensure that the work area is adequately ventilated.
  8. Perform frequent and thorough cleaning and disinfection.
  9. Record and report COVID-19 infections and deaths to OSHA.
  10. Implement retaliation protections for employees who report COVID-19 threats.

COVID-19 related workplace inspections

On July 13, 2021, OSHA updated its Preliminary Enforcement Response Plan dated March 12, 2021, which provides OSHA area offices with new instructions on how to deal with COVID-19-related complaints for the healthcare industry, as well as for employers not covered by the ETS fall. The now revised plan adapts the target industries to those most at risk of COVID-19 exposure, but continues to include healthcare and non-healthcare such as meat and poultry processing. The updated Interim Enforcement Response Plan includes:

  • OSHA will continue to adhere to the U.S. Department of Labor’s COVID-19 Occupational Safety Plan to reduce the risk of virus transmission during inspections.
  • OSHA will continue to prioritize COVID-19-related inspections involving fatalities or multiple hospitalizations due to occupational exposure to the virus, including performing follow-up inspections and targeting high-risk industries.
  • Protection for workers in non-healthcare sectors will focus on workers who are not or not fully vaccinated.
  • One of the changes is that OSHA no longer has any discretion to enforce the same requirements in other health standards, which may have been difficult for some non-health employers to fully comply with due to the pandemic.
  • In addition, OSHA will enforce protection for workers in non-health industries who are not vaccinated.

When OSHA inspectors conduct an inspection:

  • In most cases, the COVID-19 inspection takes place on site.
  • OSHA may use telephone and video conferencing instead of face-to-face meetings with employees to reduce potential exposure to the virus. In cases where this is necessary and safe, personal interviews will be held.
  • To avoid further personal contact, OSHA will encourage employers to provide documents by post or electronically.
  • All OSHA inspectors will be provided with the appropriate personal protective equipment and trained to take all necessary precautions to avoid exposure to COVID-19.
  • In cases where on-site inspections cannot be carried out safely, the inspection can be approved as remote-only and is documented and coded in the OSHA information system as N10-COVID-19 REMOTE.

All employers exposed to a COVID-19 inspection should contact their legal counsel to discuss, review, and ensure that any new requirements are met. It is advisable that employers familiarize themselves with any newly published OSHA regulations and do their best to protect their employees and customers from exposure.

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