June 30, 2021
Benjamin M. Fiechter
Counsel to the Firm, Stoll Keenon Ogden PLLC
Steven T. Clark
Member, Stoll Keenon Ogden PLLC
On June 10, 2021, the federal Occupational Safety and Health Administration (“OSHA”) issued a nationwide Emergency Temporary Standard (“ETS”) that immediately requires healthcare employers to take several steps aimed at protecting their employees from the spread of COVID-19. In promulgating the ETS, OSHA noted that it intended to “protect workers facing the highest COVID-19 hazards—those working in healthcare settings where suspected or confirmed COVID-19 patients are treated.” The ETS, which can be found at 29 C.F.R. Subpart U, became effective immediately upon its publication in the Federal Register on June 21, 2021, and healthcare employers must comply with most of its provisions within 14 days of that date.
The ETS’ mandates for healthcare employers contain both organizational requirements (i.e., the development of policies and procedures, risk assessments, etc.) and physical requirements (i.e., specific actions aimed at limiting the spread of COVID-19). Organizational requirements include the development of a COVID-19 plan that includes conducting a workplace-specific hazard assessment, limitations on points of entry to patient care areas, screening visitors and employees, providing reasonable time and paid leave for time spent receiving a vaccination and recovering from any side effects, training on the risks of COVID-19 and the employer’s COVID-19 policies and procedures, and recordkeeping requirements. Physical requirements include the provision of personal protective equipment to employees, maintenance of physical distancing and the placement of physical barriers at fixed work locations where physical distancing cannot be achieved, cleaning and disinfection of the premises, and ensuring ventilation is functioning appropriately and is maximized to circulate outside air. The ETS’ specific requirements for each of the above-listed items vary both on the size of the healthcare employer—employers with 10 or fewer employees are subject to relaxed standards in some instances—and whether the employees involved are vaccinated.
Like many regulatory rules, there are exceptions to the ETS’ applicability. The ETS does not apply to the following specific services:
- The provision of first aid by employees who are not licensed healthcare providers;
- The dispensing of prescriptions by pharmacists in retail settings;
- Hospital-based ambulatory care settings and home healthcare settings where all employees are fully vaccinated, all non-employees are screened prior to entry, and people with suspected or confirmed COVID-19 are not permitted to enter;
- Non-hospital-based ambulatory care settings where all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter;
- Healthcare support services, such as billing and coding, that are performed in a non-healthcare setting; and
- Telehealth services where no direct patient care occurs.
Additionally, where the healthcare setting is embedded in a non-healthcare setting, such as a walk-in clinic at a large retail establishment, the ETS applies only to the healthcare setting.
Some of the exceptions to the ETS listed above are only applicable where “all employees are fully vaccinated.” But, the ETS also acknowledges other federal laws that protect “workers who cannot be vaccinated because of medical conditions…or certain religious beliefs.” Under the ETS, employers who provide reasonable accommodation to “an employee who is unable to be vaccinated in a manner that does not expose the employee to COVID-19 hazards,” such as changing the employee’s work site, “may be within the scope of” the exemptions requiring all employees to be fully vaccinated. This appears to be consistent with guidance from other federal agencies, including the Equal Employment Opportunity Commission, which recently stated that safety-related workplace standards requiring COVID-19 vaccination are consistent with the Americans with Disabilities Act where “job-related and consistent with business necessity” and where employers provide reasonable accommodation to employees whose disability prevents them from receiving a vaccine.
Finally, the ETS may impact an employer’s ability to utilize COVID-19 immunity protections established by state law. In April 2021, Kentucky’s General Assembly passed Senate Bill 5, which acts to shield business and premises owners and essential-services providers from liability “for any alleged injury, loss, or damage to persons or property arising from a COVID-19 claim.” However, to take advantage of this protection, business or premises owners or essential-service providers must comply with state and federal agency actions taken to prevent the spread of COVID-19. In other words, a finding that a business owner or essential-services provider failed to abide by the ETS, a federal agency action, could result in the owner’s or essential services provider’s inability to qualify for Kentucky’s COVID-19 liability protections.
In short, it remains important for employers to follow state and federal guidance like the ETS to protect their employees and visitors and avoid unnecessary liability. Given the complexity of the ETS and its interaction with numerous other employment laws, it is important for employers to utilize legal counsel with experience in providing a holistic, global approach to compliance matters. SKO’s labor and employment and healthcare attorneys look forward to assisting employers in developing policies and procedures that bring them into compliance with the ETS.
Our firm recognizes that the healthcare industry is an ever-changing environment. In today’s world, the healthcare industry faces increased scrutiny from governmental agencies and is held to the strictest compliance standards in a business that is continuously evolving and developing.
SKO Healthcare attorneys, both litigation and transactional, stay abreast of the industry’s landscape in order to counsel our clients in constructive and creative ways that will maximize their opportunities while maintaining compliance with all legal requirements. In addition, we also offer a team of top-of-the-line intellectual property, patent and copyright attorneys.
The firm’s healthcare experience includes representation in civil, criminal and administrative manners, for both nonprofit and for-profit organizations, physicians, physician groups, nursing homes, assisted living facilities, hospitals and billing and service providers.
Likewise, Stoll Keenon Ogden’s Labor, Employment & Employee Benefits practice has a proven record of being trusted advisors and effective advocates. We help employers solve their problems through proactive counseling, employee training and, where possible, cost-efficient litigation, including alternative dispute resolution. We know the employment laws thoroughly, and we make it our goal to acquire a comprehensive knowledge of our clients and their business, so we can provide tailored solutions for each of their needs.
 Kentucky S.B. 5 § 1(2)(c).
 Id. at § 1(2).