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OSHA’S NEW LAW – COVID-19 ETS and How to Comply
By FCA General Counsel Kim Driggers   
Wednesday, 28 July 2021
ABSTRACT:  To address the spreading of the COVID-19 Virus, OSHA issued a six-month Emergency Temporary Standard (ETS) effective June 21, 2021 expiring December 21, 2021. The ETS, generally, applies to all physician facilities and there are complicated procedures that must be followed. However, those procedures can be avoided by screening all non-employees who want to enter the practice. The screening may be done by asking five questions linked to this article. Any non-employee answering yes to any of the questions or who refuses to answer the questions must be denied entry.

The practice must continue to implement the common-sense steps of providing barriers when needed, using personal protective equipment, cleaning and disinfecting, providing hand sanitizers, etc. But, employers no longer have to take steps to protect vaccinated employees. This article provides more detail and should be studied carefully.

Spreading Virus and Proliferating Laws

The Department of Labor’s Occupational Safety and Health Administration’s (OSHA’s) COVID-19 Emergency Temporary Standard (ETS), applicable only to the health care industry, became effective on June 21, 2021 and is effective for six months pending review of a permanent Rule. OSHA has proposed only nine emergency rules in the past 40 years. In its summary of the ETS, OSHA states, “The ETS is aimed at protecting workers facing the highest COVID-19 hazards – those working in healthcare settings where suspected or confirmed COVID-19 patients are treated.”  

While the ETS provides some rigorous standards for hospitals, nursing homes, assisted living facilities, and ambulatory care centers where COVID-19 patients are treated, the impact to most chiropractic offices is nominal but must still be followed until the ETS expires in six months (pending review of making it a final Rule).

While OSHA gave some clarity on the ETS and the exemption for physician offices provided non-employees are screened prior to entry, there still remains a myriad of other federal standards applicable to the workplace that may impact the standard of care as it is applies to professional disciplinary matters. 

OSHA’S COVID-19 Emergency Temporary Standard – Does It Apply to Your Office?

OSHA specifically provides that the ETS applies to "all settings where any employee provides healthcare services or healthcare support services."  OSHA issued a flowchart to assist in determining whether the ETS applies to you.  

The Rule lists seven exceptions to the ETS.  The ETS does not apply to non-hospital 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.

In most circumstances, you can avoid the mandates of the ETS by screening all non-employees prior to entry and by refusing to allow any suspected or confirmed COVID-19 non-employees from entering.  Without screening, however, OSHA requires compliance with the rigorous requirements of ETS.1   
Why Patient/Non-Employee Screening?

The FAQs of the ETS better define “screening.”  FAQ 9 explains that OSHA is requiring screening of everyone entering the facility in order to limit contact with potentially infectious persons to manage COVID-19. “The patient screening and management requirement for settings where direct patient care is provided aims to identify and manage those individuals who may have COVID-19 before they enter a facility so that appropriate precautions can be taken to prevent transmission to others within the facility.”  29 C.F.R. § 1910.502(d)

How Do I Screen and Comply With the ETS?

Screening may take different forms depending on the design and size of the facility. However, OSHA notes that it views asking questions about COVID-19 symptoms and illness as the minimum requirement for screening. 

The Federal Rule points to the CDC as its reference for how to screen patients which includes the following:2  

Establishing a process to ensure everyone (patients, healthcare personnel, and visitors) entering the facility is assessed for symptoms of COVID-19 or exposure to others with suspected or confirmed SARS-CoV-2 infection and that they are practicing source control.  See screening questions, below.
Taking steps to ensure that everyone adheres to source control measures and hand hygiene practices while in a healthcare facility
o Post visual alerts (e.g., signsposters at the entrance and in strategic places such as waiting areas, elevators, cafeterias) to provide instructions about coughing and how and when to perform hand hygiene and, 
o Provide supplies for respiratory hygiene and cough etiquette, including alcohol-based hand sanitizer (ABHS) with 60-95% alcohol, tissues, and no-touch receptacles for disposal, at healthcare facility entrances, waiting rooms, and patient check-ins.
Properly manage anyone with suspected or confirmed SARS-CoV-2 infection or who has had contact with someone with suspected or confirmed SARS-CoV-2 infection:
o Healthcare personnel (HCP) should be excluded from work and should notify occupational health services to arrange for further evaluation.
o Visitors should be restricted from entering the facility and be referred for proper evaluation.

The CDC provides an example of a screening tool to use via phone, text, or email prior to your non-employee’s arrival.
“All responses to the following questions should be “yes” or “no”:
1. Have you experienced any of the following symptoms in the past 48 hours: fever or chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or runny nose, nausea or vomiting, diarrhea?
2. Have you been in close physical contact in the last 14 days with anyone who is known to have laboratory-confirmed COVID-19 OR anyone who has any symptoms consistent with COVID-19?
3. Are you isolating or quarantining because you may have been exposed to a person with COVID-19 or are worried that you may be sick with COVID-19?
4. Are you currently waiting on the results of a COVID-19 test?
5. Have you traveled outside of the United States in the past 10 days?
If you answer “yes” to any of the above questions, you will be denied entry to our facilities. 
If you decline to self-screen using CDC’s COVID-19 screening tool, you will be provided the option of completing a paper version. If you decline to self-screen using either option, you will be denied entry to our facilities.”
What If I Choose Not To Screen Non-Employees?

Should you choose not to screen your patients, then the ETS applies.  See fn. 2, infra. 

The FCA recommends you determine whether your workplace is covered using OSHA’s flow chart.  If you fit into the exemption, you are then required to screen non-employees before entering your facility.  

CDC and Other OSHA Standards

OSHA Guidance
OSHA, in promulgating its ETS, declined to extend it to physician offices.  However, OSHA did develop and publish a standard of practice applicable to physician offices. See “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” Amended and published June 10, 2021 (“OSHA Guidance”).  Failure to follow this OSHA Guidance will not subject anyone to OSHA’s civil or criminal enforcement, but to the extent this OSHA Guidance is seen as a reasonable and appropriate it is likely to establish the standard of care in COVID related tort claims and professional disciplinary matters.  

The OSHA Guidance incorporates many CDC pronouncements and guidance documents.  First, the OSHA Guidance indicates that “employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure.”  The OSHA Guidance itself focuses mainly on protecting unvaccinated or otherwise at-risk workers, but also identifies many existing OSHA mandatory regulations which must be followed, regardless of the status of employees.  Since many physician offices often have one or more employees which decline to be COVID vaccinated or are immunocompromised, compliance with this OSHA Guidance appears needed.  Even if all employees are confirmed to be vaccinated and none are “otherwise at-risk” because the OSHA Guidance identifies many other mandatory requirements, physician offices should have a COVID control plan or its elements should be incorporated into the office’s more general infection control plan.

A physician Office COVID control plan should be guided by both the relevant provisions of this OSHA Guidance and CDC guidelines.  The OSHA Guidance indicates a COVID control plan for settings not covered by OSHA ETS requirements should:

Grant paid time off for employees to get vaccinated;
Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work to prevent or reduce the risk of transmission;
Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas;
Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE;
Educate and train workers on your COVID-19 policies and procedures using accessible formats and in language they understand;
Suggest that unvaccinated customers, visitors, or guests wear face coverings;
Maintain Ventilation Systems;
Perform routine cleaning and disinfection (mandatory OSHA standards 29 CFR 1910.1200 and 1910.132133, and 138);
Record and report COVID-19 infections and deaths (mandatory OSHA rules in 29 CFR 1904, OSHA Form 300 even if under ten employees when incident results in in-patient hospitalization or death);
Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards (Section 11(c) of the OSH Act);
Follow all other applicable mandatory OSHA standards - All of OSHA's standards that apply to protecting workers from infection remain in place. These mandatory OSHA standards include: requirements for PPE (29 CFR 1910, Subpart I (e.g., 1910.132 and 133), respiratory protection (29 CFR 1910.134), sanitation (29 CFR 1910.141), protection from bloodborne pathogens: (29 CFR 1910.1030), and OSHA's requirements for employee access to medical and exposure records (29 CFR 1910.1020 );
Comply with the “General Duty Clause," Section 5(a)(1) of the OSHA Act.

CDC Guidance
OSHA laws and guidance with respect to COVID and other threats to the health of employees is often based on CDC standards and guidance intended to protect both workers and the general public.  CDC basic guidance is found in “Core Infection Prevention and Control Practices for Safe Healthcare Delivery in All Settings.” The Core Practices Table, Category 5 Standard Precautions indicates that based on the patient conditions presented, a HCP should: “Use Standard Precautions to care for all patients in all settings. Standard Precautions include:
5a. Hand hygiene
5b. Environmental cleaning and disinfection
5c. Injection and medication safety
5d. Risk assessment with use of appropriate personal protective equipment (e.g., gloves, gowns, face masks) based on activities being performed
5e. Minimizing Potential Exposures (e.g., respiratory hygiene and cough etiquette)
5f. Reprocessing of reusable medical equipment between each patient and when soiled

A number of core practices are recommended by CDC and considered standards of care and/or accepted practices (e.g., aseptic technique, hand hygiene before patient contact) to prevent infection in healthcare settings. These widely agreed upon practices are elements of care that are not expected to change based on additional research, either because of an overwhelming preponderance of evidence (e.g., hand hygiene requirements), or in some cases due to ethical concerns (e.g., randomizing patients to procedures performed by trained versus untrained personnel). Therefore, these accepted practices are categorized as strong recommendations, even when high-quality randomized controlled trials are not available to support them. 

The HICPAC created a document that concisely describes a core set of infection prevention and control practices that are required in all healthcare settings, regardless of the type of healthcare provided.   

Complying with the HICPAC standards on infection control is simply good practice and a risk management tool to assist in maintaining the highest standard of care to prevent infection in your office.  

Florida COVID-19 Laws / Executive Orders

Effective July 1, 2021, the Governor’s Executive Order EO 21-101 invalidates all remaining local emergency orders based on the COVID-19 Emergency, including mask mandates. Likewise, on May 3, 2021, Florida Governor Ron DeSantis signed into law Senate Bill 2006 which bans any Florida business from mandating that an individual provide proof of COVID-19 vaccination in order to receive services. The bill creates section 381.00316 (COVID-19 Vaccine Documentation) which applies to all private, non-profit organizations, schools, and state and local government entities in Florida but exempts businesses in the healthcare industry such as pharmacies, nursing homes, home healthcare services and licensed medical practitioners who are all excluded from the law.  Thus, while businesses can be fined $5,000 per violation from requiring proof of a COVID-19 vaccination “to gain access to, entry upon, or services from” the business, that same fine does not apply in a healthcare setting.  The law also does nothing to prevent businesses from instituting other COVID-19 screening protocols consistent with the new OSHA ETS requirement.  This new law went into effect July 1, 2021.

The FCA will continue to monitor vaccination developments to assist employers in navigating the complexities of this important, constantly evolving issue.

OSHA’s Emergency Temporary Standard, effective June 21, 2021, is mandatory in all healthcare settings.  Complying with its screening mandates is not optional under this new OSHA Rule.  When looking at your office compliance, it also requires looking at whether you are complying with the standard of care for infection control.  The HICPAC created a document that concisely describes a core set of infection prevention and control practices that are required in all healthcare settings, regardless of the type of healthcare provided.  Therefore, conducting pre-screening for COVID-19, along with following the standard of care for infection control, will assist your office in meeting the GOLD standard in COVID-19 and infection control compliance.
1See OSHA ETS Summary at p.2 which includes:
1. Creating and implementing a COVID-19 plan to identify and control COVID-19 hazards in the workplace.  For employers with more than 10 employees, the plan must be in writing.
2. Patient screening and management. 
3. Standard and Transmission-Based precautions.
4. Personal protective equipment (PPE), including facemasks or respirators. 
5. Controls for aerosol-generating procedures. 
6. Physical distancing of at least six feet, when feasible.
7. Physical barriers.
8. Cleaning and disinfection. 
9. Ventilation
10. Health screening and medical management training.
11. Anti-retaliation.
12. Recordkeeping and reporting.
13. Encourages vaccination by requiring employers to provide reasonable time and paid leave for employee vaccinations and any side effects. 

2Centers for Disease Control and Prevention (CDC). (2021, February 23). Interim infection prevention and control recommendations for healthcare personnel during the Coronavirus Disease 2019 (COVID-19) pandemic. (CDC, February 23, 2021).