Home Health & Hospice Week

Emergency temporary standard for COVID-19 in final stages of approval.

As expected by many observers, the feds are putting some teeth in Occupational Safety and Health Administration guidance to protect workers from COVID-19.

Background: On Jan. 29, OSHA issued “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” (see HCW by AAPC, Vol. XXX, No. 6). The guidance aims to “inform employers and workers in most workplace settings outside of healthcare to help them identify risks of being exposed to and/or contracting COVID-19 at work and to help them determine appropriate control measures to implement,” OSHA says on its website.

OSHA issued the guidance in response to the “Executive Order on Protecting Worker Health and Safety” signed by newly inaugurated President Biden on Jan. 21.

Biden’s order tasked OSHA with deciding “whether any emergency temporary standards [ETSs]on COVID-19, including with respect to masks in the workplace, are necessary, and if such standards are determined to be necessary, issu[ing] them by March 15, 2021.”

March 15 came and went without an ETS issuance. But now it looks as though an ETS document is coming after all.

The Department of Labor has sent a draft ETS to the Office of Management and Budget for approval, which is expected within two weeks or so, according to multiple press outlets. DOL wanted to account for evolving COVID-19 safety guidance from the Centers for Disease Control and Prevention and others, among other reasons for the delay, the agency has indicated.

While the January OSHA guidance may give clues as to what will be in the final ETS regulation, the requirements may also contain elements from state regulations on the topic, suggests attorney Courtney Malveaux with law firm Jackson Lewis in Richmond, Virginia.

The forthcoming ETS will layer on top of the National Emphasis Program OSHA announced last month, which aims “to ensure that employees in high-hazard industries or work tasks are protected from the hazard of contracting … COVID-19,” the Administration says in Directive 2021-01 (CPL-03).

“Unprogrammed inspections” under that NEP should “prioritize COVID-19 fatality events,” OSHA says. “Particular attention for on-site inspections will be given to workplaces with a higher potential for COVID-19 exposures, such as hospitals, assisted living, nursing homes and other healthcare and emergency response providers treating patients with COVID-19, as well as workplaces with high numbers of COVID-19-related complaints or known COVID-19 cases.”

The NEP shows that “the primary targets for COVID-19 inspections remain in the healthcare and personal care industries, including physicians’ and dental offices, home healthcare, ambulance services, hospitals, including psychiatric and substance abuse hospitals, nursing care facilities, residential intellectual and developmental disability facilities, and retirement and assisted living communities,” points out attorney Melanie Paul with Jackson Lewis in Atlanta.

Note: The January OSHA guidance is at www.osha.gov/ coronavirus/safework. The 35-page NEP directive is at https://www.osha.gov/sites/default/files/enforcement/directives/DIR_2021-01_CPL-03.pdf.