What is a covered Healthcare employer?

On June 10, 2021 OSHA issued its long awaited COVID-19 Emergency Temporary Standard (ETS). The ETS became effective on June 21, 2021 and requires compliance with portions of the standards by July 6, 2021 (Plan Development completed) and the remainder of the standards by July 21, 2021 (Implementation of barriers, ventilation and training). Surprisingly, the ETS applicability was limited to healthcare employers only, rather than a broad range of employers. For settings that are not governed by the ETS, OSHA issued new guidance discussed in the Michael Best alert found here. 

Whether your workplace is subject to the ETS standard or the guidance depends upon several factors. First, it must meet the definition of a healthcare employer. A healthcare employer is defined under the ETS as a setting where any employee provides “healthcare services” or “healthcare support services.”  These terms are further defined below. Second, even if the workplace meets the definitions for coverage, it may be excluded based upon certain conditions and actions taken by the facility. 

Definition of Healthcare Employer

In order to be subject to the ETS, the employer must fit one of the following definitions: 

Healthcare Services – mean services that are provided to individuals by professional healthcare practitioners (e.g., doctors, nurses, emergency medical personnel, oral health professionals) for the purpose of promoting, maintaining, monitoring, or restoring health. Healthcare services are delivered through various means: including hospitalization, long term care, ambulatory care, home health and hospice care, emergency medical response and patient transport. For the purposes of the ETS, healthcare services include autopsies. 

Healthcare Support Services – mean services that facilitate the provision of healthcare services. Healthcare support services include patient intake/admission, patient food services, equipment and facility maintenance, housekeeping services, healthcare laundry services, medical waste handling services, and medical equipment cleaning/reprocessing services.

If the employer does not meet either of those definitions, the employer is not covered by the ETS, and should instead consult the guidance issued for all other employers. Even if the employer meets these definitions, the employer may be subject to an exception from coverage as discussed below.

Exceptions

There are several exceptions defined under the ETS. Specifically, section 29 CFR 1910.502(a)(2) states that this section does not apply to the following:

(i) the provision of first aid by an employee who is not a licensed healthcare provider;

(ii) the dispensing of prescriptions by pharmacists in retail settings;

(iii) non-hospital ambulatory care settings where:

1. all non-employees are screened prior to entry; and
2. people with suspected or confirmed COVID-19 are not permitted to enter those settings;

(iv) well defined hospital ambulatory care settings where:

1. all employees are fully vaccinated; and
2. all non-employees are screened prior to entry; and
3. people with suspected or confirmed COVID-19 are not permitted to enter those settings;

(v) home healthcare settings where:

1. all employees are fully vaccinated; and
2. all non-employees are screened prior to entry; and
3. people with suspected or confirmed COVID-19 are not present;

(vi) healthcare support services not performed in a healthcare setting (e.g., offsite laundry, offsite medical billing); or

(vii) telehealth services performed outside of the setting where direct patient care occurs. 

It is important to note that several of the exemptions require actions on the part of the employer to maintain the exemption, as described above: vaccination, screening, and exclusion of people with symptoms. In non-hospital ambulatory (outpatient) settings, the vaccination mandate is not required in order to be exempt. So, for example, ambulatory (outpatient) clinical settings that are not located in a hospital (e.g. dental offices, chiropractic offices, physical therapists, surgical centers, oncology clinics, medical clinics, etc.) and that screen for COVID-19 and refuse treatment and/or send anyone with symptoms to the hospital, rather than treating on-site, are exempt from the ETS requirements – even if the employees of that location are not vaccinated. Both home healthcare settings and hospital-based ambulatory healthcare clinics must not only screen people and exclude those with COVID-like symptoms, but also require all employees to be vaccinated in order to maintain the exemption. 

Since nursing homes are not ambulatory healthcare settings, they are not exempt from the ETS. Nor are other settings exempt where patient care is administered by healthcare professionals on an inpatient basis. For facilities that house people, but do not provide healthcare services administered by healthcare professionals, those facilities may not be covered.  However, if licensed healthcare practitioners visit the location for purposes of promoting, maintaining, monitoring, or restoring health of persons living in the facility, the facility is likely to be covered by the ETS.

If a location is covered by the ETS as a health care provider, a partial exemption from the masking, social distancing, and physical barrier requirements of the ETS exists for fully vaccinated employees working in “well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.” This allows the healthcare employer to break out certain designated areas as exempt from masking, social distancing and barriers.  However, even if all employees are fully vaccinated and all other persons on premises have been screened for COVID-19, a healthcare employer is still subject to many of the provisions of the ETS, unless exempted as an ambulatory care or home healthcare setting (as described above). 

Healthcare providers who are not subject to one of the exemptions above should consult qualified legal, infection control, and risk management professionals regarding the detailed requirements of the standard. The requirements are complex and require significant planning among employees, contractors, and others who provide service(s) to the healthcare provider(s).