Connie Christian, MBA, CPHRM

Question

Our practice has less than 10 employees. Are we still required to comply with the Occupational Safety and Health Administration (OSHA) COVID-19 Emergency Temporary Standard (ETS)?

Response

According to the ETS, a workplace setting is where any employee provides health care services or health care support services.

Nonexempt facilities are required to do the following:

• Conduct a hazard assessment
• Have a written plan to mitigate virus spread
• Provide certain employees with N95 respirators or other personal protective equipment
• Ensure workers can maintain a six-foot distance from each other
• Provide workers with paid time off to get vaccinated, recover from any vaccine side effects, and recover from coronavirus symptoms.

The standard exempts fully vaccinated workers in low-risk areas.

Employers with Less than 10 Employees

There are exceptions to various parts of the standard for those healthcare employers with less than 10 employees. From the ETS:

“COVID-19 plan: Develop and implement a COVID-19 plan (in writing if more than 10 employees) that includes a designated safety coordinator with authority to ensure compliance, a workplace-specific hazard assessment, involvement of non-managerial employees in hazard assessment and plan development/implementation, and policies and procedures to minimize the risk of transmission of COVID-19 to employees.
Health screening and medical management: (1) Screen employees before each workday and shift; (2) Require each employee to promptly notify the employer when the employee is COVID-19 positive, suspected of having COVID-19, or experiencing certain symptoms; (3) Notify certain employees within 24 hours when a person who has been in the workplace is COVID-19 positive; (4) Follow requirements for removing employees from the workplace; (5) Employers with more than 10 employees, provide medical removal protection benefits in accordance with the standard to workers who must isolate or quarantine.
 
Recordkeeping: Establish a COVID-19 log (if more than 10 employees) of all employee instances of COVID-19 without regard to occupational exposure and follow requirements for making records available to employees/representatives.”[1]

To review the OSHA ETS in its entirety and multiple helpful resources, go to https://www.osha.gov/coronavirus/ets.

Of Note

OSHA announced on July 8, 2021, that it will extend the comment period for the COVID-19 ETS until August 20, 2021, to allow stakeholders additional time to review and collect information and data necessary for comment. Although the comment deadline has been extended, employers still must comply with the standard, which took effect June 21, 2021. Healthcare employers had 14 days to meet compliance with most requirements. However, OSHA is willing to use its enforcement discretion in situations where an employer can show it has made good faith efforts to comply with the requirements of the standard but has been unable to do so.  

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^{[1] Fact Sheet – Subpart U – COVID-19 Healthcare ETS www.osha.gov/sites/default/files/publications/OSHA4122.pdf}