According to the Occupational Safety and Health Act of 1970, an ETS may be issued to take immediate effect when the Secretary of Labor determines that employees need to be protected from exposure to grave danger.
An ETS remains effective until superseded by a permanent standard, developed in accordance with usual OSHA procedures.
The permanent standard must be published no later than six months after publication of the ETS.
OSHA has requested comments on whether this ETS should be made permanent.
The COVID-19 ETS is effective immediately upon publication in the Federal Register (June 21).
Employers must comply with most provisions within 14 days.
Provisions involving physical barriers, ventilation, and training have a 30-day compliance period.
Elements of the COVID-19 ETS
COVID-19 Plan: Employers must develop and implement a written COVID-19 plan including
a designated safety coordinator with authority to ensure compliance
workplace-specific hazard assessment
involvement of non-managerial employees in hazard assessment and plan development/implementation
policies and procedures to minimize risk of COVID-19 transmission to employees.
Patient Screening and Management: Employers must limit contact with potentially infectious persons, including screening and triage of all patients, clients and visitors entering the facility.
Standard and Transmission-Based Precautions: Employers must develop and implement policies and procedures to adhere to Standard and Transmission-based Precautions based on CDC guidelines.
Personal Protective Equipment (PPE): Employers must provide workers with surgical or medical procedure masks, and provide respirators and other PPE for exposure to employees who have direct contact with people with COVID-19 and aerosol-generating procedures. OSHA does not consider cloth facemasks as appropriate protection against COVID-19.
Aerosol-Generating Procedures (AGP) on a Person with Suspected or Confirmed COVID-19: Employers must limit employees present to only those essential, and AGPs should be performed in an airborne infection isolation room (AIIR) if available.
Physical distancing: Employers must keep people at least six feet apart when indoors.
Physical Barriers: Employers must install cleanable or disposable solid barriers at each fixed work location in non-patient care areas where 6-feet distancing is not possible.
Cleaning and Disinfection: Employers must follow standard practices for cleaning and disinfection of surfaces and equipment in accordance with CDC guidelines.
Ventilation: Existing heating, ventilation, and air conditioning (HVAC) systems must be used in accordance with manufacturer’s instructions and air filters rating Minimum Efficiency Reporting Value (MERV) 13 or higher if the system allows.
Health Screening and Medical Management: Requires daily screening of employees for COVID-19, removal of employees that are positive or suspected of having COVID-19.
Vaccination: Employers must provide reasonable time and paid leave for vaccinations and vaccine side effects.
Training: Employers must ensure all employees receive training so they comprehend COVID-19 transmission, tasks, and situations in the workplace that could result in infection, and relevant policies and procedures.
APIC is concerned that the OSHA ETS does not require or even recommend COVID-19 vaccination for employees, which we know to be the most effective way to protect employees and prevent transmission. APIC recommends that OSHA’s most important employee protection act should be to mandate COVID-19 vaccination for all employees.
If OSHA is going to create a permanent standard, it should not be specific to COVID-19. The COVID-19 emergency will wane, but there have been and will continue to be other emerging pathogens. Each one will have its own modes of transmission, prevention and treatment options, and vaccination opportunities.
If OSHA is going to develop a permanent standard, it should be flexible enough to be applicable to employee protection efforts for any deadly outbreaks. This would mean that all outbreak mitigation efforts should be evidence-based according to the specific pathogen causing danger to employees.
Since the Department of Health and Human Services declared the COVID-19 public health emergency (PHE) in March 2020, most facilities have already conducted a facility-based risk assessment and developed plans to mitigate COVID-19 risk for patients and employees. These existing COVID-19 plans may not be consistent with the requirements in the OSHA ETS, but in most facilities, COVID-19 plans have been constantly reassessed and revised to comply with the evolving science, literature and regulatory guidance. Issuing this ETS at a time when public health guidance is lifting restrictions due to increasing vaccinations and lower case counts causes confusion for staff and patients.
APIC is concerned that many parts of the ETS are not up-to-date with current scientific evidence or CDC guidelines, especially post-vaccination guidance. Sections relating to patient and employee screening and management, physical distancing, and physical barriers need to be updated to be consistent with current knowledge surrounding transmission, as indicated in CDC guidance. CDC guidance is updated frequently to capture best-practices as our knowledge of virus transmission evolves.
All recommendations should be evidence-based, especially when costly and possibly unnecessary items are being recommended, such as plastic barriers in front of all workspaces occupied by an employee.
OSHA should be in coordination with CDC and NIOSH. CMS and Joint Commission can then follow these guidelines.
APIC supports the use of Standard and Transmission-based Precautions as a basic infection prevention and control procedure. Transmission-based Precautions should always be updated according to emerging data on transmission.
APIC supports use of appropriate PPE as a basic infection prevention and control procedure. However, the ETS does not account for the severe shortages of all types of medical-quality PPE, especially early in the COVID-19 pandemic. In such circumstances, compliance with this ETS would have been impossible. During the PHE, CDC, FDA, and NIOSH provided continuing guidance on how to prioritize, conserve, and safely reuse and reprocess PPE when supplies were low. Any OSHA standard must allow facilities the flexibility to adapt to extreme circumstances to protect employees during PHEs.
APIC supports using AIIR for AGP, when available. However, many facilities do not have AIIRs, or sufficient numbers of AIIRs for all COVID-19 patients during the PHE.
APIC supports the ETS allowances for performance of AGPs in isolated areas in the absence of AIIRs, and the ETS requirements for post-procedure cleaning and disinfection of surfaces and equipment.
APIC believes that OSHA’s definition and list of AGPs must be consistent with CDC. In the absence of such a list from CDC, many facilities developed their own procedure lists based on their risk assessments during the PHE. OSHA should consider flexibility to allowfacilities to continue complying with their procedure lists based on their risk assessments until CDC develops a list of AGPs.
APIC agrees that cleaning and disinfection is a basic infection prevention and control procedure that should comply with CDC evidence-based guidance as well as the Environmental Protection Agency (EPA).
Ventilation requirements should align with guidance from CDC and the American Society of Heating, Refrigerating, and Air-Conditions Engineers (ASHRAE), as well as State-mandated regulations.
If facilities are not already in compliance, 30 days may not be a sufficient time period for reconstruction required to comply.