OSHA Posts Emergency Temporary Standards Rule

Situation Report | June 28, 2021

On June 21, the Occupational Safety and Health Administration posted an Emergency Temporary Standards rule whose provisions are effective mostly on July 6 and others on July 21.  

HCA will be holding a June 19 webinar to provide further information to members about the new rule and how existing New York requirements affect home care providers in relation to the new rule. Look for registration information soon. 

As described in the June 14 Situation Report, the rule establishes new requirements, including development and implementation of an effective COVID-19 plan, for settings where employees provide health care or health care support services. The rule applies to skilled nursing homes and home health care, with some exemptions for health care providers who screen out patients who may have COVID-19.   

The standard will require non-exempt facilities to conduct a hazard assessment and have a written plan to mitigate virus spread. It requires health care employers to ensure all employees receive training so they comprehend COVID-19 transmission, tasks and situations in the workplace that could result in infection, and develop relevant policies and procedures.

Employers must also: conduct regular health screening of employees; provide some employees with N95 respirators or other personal protective equipment; and provide reasonable time and paid leave for vaccinations and vaccine side effects.  

In addition, covered employers must ensure six feet of distance between workers. In situations where this is not possible, employers should erect barriers between employees where feasible.  

Applicability to Home Environment 

Frequently Asked Questions document offers the following statement applicable to the home environment: 

Employers with employees who, in the course of their employment, enter into private residences or other physical locations controlled by persons not covered by the OSHA Act (e.g., homeowners, sole proprietors) must include policies and procedures in their COVID-19 plans to protect their employees entering those locations. These policies and procedures must address employee withdrawal from the residence in the event those protections are inadequate.  

Please note that the ETS also does not apply to home healthcare settings where all employees are fully vaccinated and all non-employees are screened prior to entry, and people with suspected or confirmed COVID-19 are not present [paragraph (a)(2)(v)].  

The FAQs also note that:  

State or local government mandates or guidance (e.g., legislative action, executive order, health department order) that go beyond and are not inconsistent with the ETS are not intended to be limited by this ETS. OSHA recognizes that many states have taken action with mandatory requirements applicable to general industry, and that states have additional powers that OSHA does not (e.g., criminal sanctions). OSHA does not intend to preempt these powers or requirements. For example, OSHA does not intend to preempt state or local COVID-19 testing requirements or state or local requirements for customers to wear face coverings whenever they enter a hospital or other health care facility, or in public places generally. 

As such, the FAQs make clear that New York State laws, including the recently passed HERO Act (see the June 21 Situation Report), regulations and guidance, may preempt some of the ETS provisions in cases where New York’s requirements are more extensive.  

More information, including a COVID-19 plan template, is here.