OSHA COVID-19 Emergency Temporary Standard (ETS): Are You Exempt?

In January of 2021, President Biden issued an Executive Order which directed the Occupational Safety and Health Administration (OSHA) to take action to reduce the risk that workers may contract COVID-19.

As a result of that order, Federal OSHA issued the OSHA COVID-19 ETS on June 21, 2021. The OSHA COVID-19 ETS applies to employers in healthcare settings where any employee provides healthcare services or healthcare support services were suspected or confirmed COVID-19 patients are treated.

When published in July, the standard applied only to states falling under Federal OSHA programs. At this point, state-run OSHA programs have either adopted the Federal standard or are creating their own standard.

To determine whether your practice can claim exemption to the OSHA ETS start by answering these questions:

1. Does your practice fall under a federal or state-run OSHA program?

• Federal OSHA. (Examples: Florida, Georgia, Texas, Alabama, Delaware, Illinois, DC)
• State-run OSHA program that adopted the Federal OSHA ETS. (Examples: North Carolina, Nevada)
• State-run OSHA program that has created their own state-specific standard. Ensure your state-specific program has the option for exemptions. (Examples: Virginia, South Carolina). If your state did NOT adopt the Federal OSHA ETS, you must follow the standard published by your state which may not allow for any exemptions.

2. Which of the following settings describes the location of your practice?

• Non-hospital ambulatory care settings. Examples include dental and medical practices that are not located in a hospital.
• Hospital ambulatory care settings. The area must be well defined and may include a separate entrance.

Your practice is exempt if you can demonstrate the following:

Non-hospital ambulatory care settings

• All non-employees must be screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter the practice.
• The screening must occur before the non-worker enters the practice. Momentary entry for screening can occur, but screening should not occur at the front desk/reception area. At a minimum, COVID-19 symptoms should be reviewed, and the individual asked if they are experiencing any symptoms. Temperatures are no longer required to be obtained.
• Vaccination status for employees is NOT required for this exemption.
• If you are performing diagnostic testing for COVID-19, even if the testing occurs outside of the practice, you will NOT be able to claim exemption to the standard. 

Hospital ambulatory care settings

• Screening all non-workers prior to entry as mentioned above
• All employees working in these settings must be fully vaccinated. Proof of vaccination may be obtained verbally, through official vaccine documentation or a note from a healthcare provider. Vaccination exceptions are allowed for medical or religious reasons.

Even if your practice does not have to comply with the ETS, you should still follow the  CDC Infection Control Guidance for Healthcare Professionals about COVID-19. The CDC does specifically address workers who are fully vaccinated and the ability for these workers to be in well-defined areas of the workplace without masking and physical distancing measures. Examples of these well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present include:

• Break room
• Locker room
• Conference room
• Employee restroom
• Administrative areas

In these well-defined areas, employees who are not vaccinated will maintain at least a 6 feet distance from other non-vaccinated employees. Physical distancing from fully vaccinated employees is not required.

While it seems, this is a repeat of previous messages, it is very important to be diligent in the mundane as we are facing increasing numbers of COVID-19 infections and hospitalization. As we learned in recent days, the delta variant is as contagious as chickenpox and appears it may cause more critical illness in some individuals. As healthcare providers, we must protect ourselves and our patients.