By Bradford E. Adatto, Partner, ByrdAdatto

On June 10, 2021, the U.S. Occupational Safety and Health Administration (OSHA) released an emergency temporary standard (ETS) that establishes new requirements for certain health care employers to safeguard their employees from COVID-19 infection.

Overall, the ETS will apply to any employee who provides health care services or health care support services, and it is limited to the health care industry. Based on the criteria, the ETS should only apply to hospitals, nursing homes, assisted living facilities, emergency responders and home health, and it does not extend to other industries (Covered Employers). The ETS does not apply to other workplaces that provide health care services or health care support services, provided that:

1. It is a non-hospital ambulatory care setting;
2. All non-employees are screened prior to entry; and
3. People with suspected or confirmed COVID-19 are not permitted to enter.

As such, at this time, these new standards will not apply to typical medical clinics that follow these rules—for example, medical spas, IV hydration bars, weight loss clinics, wellness clinics and other elective medicine businesses. OSHA has released this helpful chart to help confirm if the ETS applies to your practice.

The ETS requires Covered Employers to conduct an assessment to identify potential workplace hazards related to COVID-19 and develop policies and procedures to minimize the spread of the virus. Covered Employers also must provide some employees with medical procedure masks, respirators or other personal protective equipment depending on the facility and types of patients treated. Additionally, the ETS also allows health care workers to get paid time off for vaccinations and recovery from any side effects.

Covered Employers must comply with most provisions of the ETS within 14 days of its publication in the Federal Register and will have a 30-day window to comply with the remaining provisions. The final rule has been submitted to the Office of the Federal Register (OFR) for publication and is currently pending placement on public inspection at the OFR and publication in the Federal Register. However, OSHA did not indicate when the standard would be published.

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Bradford E. Adatto is a partner at ByrdAdatto, a national business and health care boutique law firm with offices in Dallas and Chicago. His background is in regulatory, transactional and securities law. Having worked in health care law his entire career, he has an in-depth knowledge of the "dos and don'ts" of this heavily regulated industry. Brad has worked with physicians, physician groups, and other medical service providers in developing ambulatory surgical centers, in-office and freestanding ancillary service facilities, and other medical joint ventures. He regularly counsels clients with respect to federal and state health care regulations that impact investments, transactions and contract terms, including Medicare fraud and abuse, antitrust, anti-kickback, anti-referral, and private securities laws.