Tag: Occupational Safety and Health Administration (OSHA)

DOL COVID-19 Exposure Rule-Making

The United States Department of Labor (US DOL) has published a notice of intent to partially reopen the rule-making process to permit additional comment and a public hearing on certain aspects of the OSHA Emergency Temporary Standard for Healthcare employers which was originally published in June 2021. OSHA is seeking further input from stakeholders as they develop a final standard. The public hearing will begin on April 27, 2022.

The agency is reopening the rulemaking record to allow for new data and comments on topics, including the following:

  • Alignment with the Centers for Disease Control and Prevention’s recommendations for healthcare infection control procedures.
  • Additional flexibility for employers to permit less prescriptive requirements
  • Removal of scope exemptions.
  • Tailoring controls to address interactions with people with suspected or confirmed COVID-19.
  • Employer support for employees who wish to be vaccinated.
  • Limited coverage of construction activities in healthcare settings.
  • COVID-19 recordkeeping and reporting provisions.
  • Triggering requirements based on community transmission levels.
  • The potential evolution of SARS-CoV-2 into a second novel strain.
  • The health effects and risk of COVID-19 since the ETS was issued.

OSHA made it clear that it is not proposing mandatory COVID-19 vaccination for healthcare workers. However, they are seeking comments regarding how it could help employers further support healthcare worker employees in their vaccination and boosting efforts. This could include paid leave, including travel time, for those seeking vaccinations or boosters.

The notice in the Federal Register had a slightly more relaxed tone as many areas in the country have seen a significant drop-off in cases.  If you are interested in submitting comments, you can do so electronically at www.regulations.gov.  If you wish to attend the video-based public hearing, you must file a notice of intention to appear with the US DOL within 14 days of the notice being officially published in the Federal Register.

If you have any questions about your current obligations under the OSHA rules, please email the AAA at hello@ambulance.org.

Federal Government Releases COVID-19 Vaccination Requirement Rules: CMS and OSHA Outline Requirements for Certain Health Care Providers and Certain Employers

by Scott Moore, J.D. & Kathy Lester, J.D. M.P.H.

Today, the Occupational Health and Safety Administration (OSHA) and Centers for Medicare & Medicaid Services (CMS), released the highly anticipated mandatory COVID-19 vaccination regulations for employers with 100 or more employees and new COVID-19 vaccination requirements in the Conditions of Participation (COPs)/Conditions for Coverage (CfCs).

OSHA COVID-19 Vaccination Regulations

A summary of the new rules can be found on the OSHA website.  Under this latest rule, OSHA stated that any employer who is subject to the Healthcare ETS released in June, 2021 is not subject to the Vaccination and Testing ETS.  This would include many EMS employers.  However, healthcare employers should refer to the Healthcare ETS to ensure that they are in compliance with those requirements.

It is important for EMS employers to note, where they have “healthcare support services”, as defined under §1910.502(vi) of the Healthcare ETS, that are not subject to the Healthcare ETS because these employees are segregated in non-healthcare settings (stand-alone administrative facilities), those employees will be subject to the requirements Vaccination and Testing ETS.

There was nothing in the latest ETS that prevents employers from instituting a mandatory vaccination requirement for its employees.  Many EMS employers are already required to mandate vaccination under a state or local law.  These employers may continue to require vaccinations for its employees.

CMS COVID-19 Health Staff Vaccination Rule

CMS also released an Interim Final Rule with Comment (IFC) governing health care staff vaccination requirements, as well as a Press Release, Fact Sheet, and Frequently Asked Questions.  While the IFC regulations do not directly apply to ground ambulance suppliers, the definition of staff that includes individuals contracted with or that have other arrangements with facilities directly regulated will be indirectly subject to the rules through their arrangements with the facilities.  For example, an EMS service that has no contract or arrangement with any of the directly covered health care facilities listed below should not be subject to the CMS requirements.  However, a ground ambulance service that has a contract with a nursing home to provide interfacility transports, for example, would be indirectly affected because of the requirement on the nursing home to ensure that contractors meet the vaccine requirements.  Additionally, there the regulations do not prevented a health care facility from creating their own requirements on vendors that do not have an existing contract with the facility.

The ICF amends the existing Conditions or Participation / Conditions for Coverage for the following facilities:

  • Ambulatory Surgery Centers;
  • Community Mental Health Centers;
  • Comprehensive Outpatient Rehabilitation Facilities;
  • Critical Access Hospitals;
  • End-Stage Renal Disease Facilities;
  • Home Health Agencies;
  • Home Infusion Therapy Suppliers;
  • Hospices;
  • Hospitals;
  • Intermediate Care Facilities for Individuals with Intellectual Disabilities, Clinics, Rehabilitation Agencies, and Public Health Agencies as Providers of Outpatient Physical Therapy and Speech-Language Pathology Services;
  • Psychiatric Residential Treatment Facilities (PRTFs);
  • Programs for All-Inclusive Care for the Elderly Organizations (PACE);
  • Rural Health Clinics/Federally Qualified Health Centers; and
  • Long Term Care facilities.

The IFC requires facilities to develop and implement policies and procedures to ensure that all staff are fully vaccinated for COVID-19.  Exclusions from the requirement are permitted for staff (or contactors) who have pending requests for, or who have been granted, exceptions to the vaccine requirements or those staff for whom COVID-19 vaccinations must be temporarily delayed, as recommended by the CDC, due to clinical precautions and considerations.

Staff is defined to include employees, as well as licensed practitioners, students, trainees, volunteers, and “[i]ndividuals who provide care, treatment, or other services for the facility and/or its patients, under contract or by other arrangement.”

The IFC excludes (1) staff that exclusively provide telehealth/telemedicine services outside of the facility setting and that do not have direct contact with patients and (2) staff that provide support services exclusively outside of the facility setting and that do not have direct contact with patients.

The IFC defines an individual as fully vaccinated when 2 weeks or more has passed since the staff completed a primary vaccination series for COVID-19.  That can be either the administration of a single-dose vaccine or the administration of all required doses of a multi-dose vaccine.  It does not include booster shots.

Facilities directly regulated by the COPs/CfCs will have to have policies and procedures to implement the requirement.  Among these requirements is a process for ensuring the implementation of additional precautions, intended to mitigate transmission and spread of COVD-19, for all staff (and contractors) who are not fully vaccinated.  There are also contingency planning requirements and documentation and tracking requirements.

The IFC provides facilities 30 days to make sure that staff have received at least the first dose of a primary series or a single dose of COVID-19 vaccine prior the staff providing any care, treatment, or other services for the facility and/or its patients.  Within 60 days, the facility must ensure that staff have completed the primary vaccination services (except for those who have been granted an exemption or exclusion).

CMS will enforce the regulations through the existing onsite compliance review process with state survey agencies. Accreditation organizations will also be required to update their survey processes.  If a facility is not in compliance, the existing enforcement remedies related to the COPs/CfCs, which can include termination from the Medicare program, will apply.

The rule preempts state law under Article VI § 2 of the U.S. Constitution.

The rule takes effect November 5, but stakeholders have 60 days to provide comments with comments due by January 4, 2022.

 

             

 

New Guidance on COVID-19 Workplace Safety for Federal Contractors

This week, the Safer Federal Workforce Task Force released new guidance on COVID-19 workplace safety protocols for Federal contractors and subcontractors.  On September 9, President Biden signed Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, which directed executive departments and agencies to ensure that all federal contractors and subcontractors comply with all guidance published by the Task Force. These workplace safety protocols will apply to all covered contractor and subcontractor employees in covered contractor workplaces even if they are not working on Federal Government contracts.

Overview of Workplace Safety Protocols for Federal Contractors and Subcontractors

Pursuant to the guidance issued this week, and in addition to any requirements or workplace safety protocols that are applicable because a contractor or subcontractor employee is present at a Federal workplace, Federal contractors and subcontractors with a covered contract will be required to conform to the following workplace safety protocols:

  1. COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to a medical or religious accommodation;
  2. Compliance by individuals, including covered contractor employees and visitors, with the Guidance related to masking and physical distancing while in covered contractor workplaces; and
  3. Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

The guidance provides details regarding who is included under these new rules.  Under the latest guidance, a “Covered Contractor Employee” means any full-time or part-time employee of a covered contractor” working on” or “in connection with” a covered contract or working at a covered contractor workplace. This includes employees of covered contractors who are not themselves working on or in connection with a covered contract, except for those employees who only perform work outside the United States or its outlying areas.  This means that all ambulance service employees, who perform work related to or in connection with the contract, such as dispatchers, human resource and billing personnel, training staff, etc. are subject to the new requirements.  This includes employees working from remotely or from home, who are performing work in connection with the contract.

Under the guidance, a “Covered Contractor Workplaces” are locations controlled by a covered contractor at which any employee of a covered contractor working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract.  This includes those workplaces such as ambulance stations, administrative offices, etc.

Vaccination of Covered Contractor Employees

Covered contractors must ensure that all their covered employees are fully vaccinated for COVID-19 unless the employee is legally entitled to an accommodation. Covered contractor employees must be fully vaccinated no later than December 8, 2021.  The guidance detailed that vaccination is required of all employees, even if they have previously been infected with COVID-19.

Proof of COVID-19 Vaccination

Under this guidance, the contractor or subcontractor must review the covered employee’s documentation to prove vaccination status.  The guidance identifies the list of acceptable documents an employee can furnish to prove vaccination, including:

  1. Copy of Immunization Record from a healthcare provider or pharmacy
  2. Copy of the COVID-19 Vaccination Record Card (CDC Form MLS-319813_r, published 9/3/2020)
  3. Copy of Medical Records documenting the vaccination
  4. Copy of Immunization Records from a public health or State Immunization Information System
  5. Copy of any other official documentation verifying vaccination with information of:
    1. Vaccine name
    2. Date of administration
    3. Name of healthcare professional or clinic site administering the vaccine

*Digital copies of these records are acceptable (jpg, scanned PDF, etc.)

The guidance specified that a signed attestation by the employee is not acceptable proof of vaccination.  Additionally, the guidance stated that recent COVID-19 antibody tests do not satisfy the requirements under these rules.

Masking and Physical Distancing While in Covered Contractor Workplaces

Covered contractors must ensure that all individuals, including covered contractor employees and visitors, comply with published CDC guidance for masking and physical distancing at a covered contractor workplace. The guidance provided more details on these masking and physical distancing requirements.  These include requiring unvaccinated individuals to mask indoors and in certain outdoor settings regardless of COVID-19 transmission levels.  Contractors are required to monitor the community transmission levels on the CDC COVID-19 Data Tracker County View website on a weekly basis.

COVID-19 Coordinator Designation

Covered contractors must designate a person or persons to coordinate implementation of, and compliance with, these workplace safety protocols at covered contractor workplaces. Their responsibilities to coordinate COVID-19 workplace safety protocols may comprise some or all of their regular duties.  This individual can be the same person who is designated under other state or local COVID-19 safety requirements.

Finally

The guidance makes it clear that the rules applicable to all federal contractors and supersedes any state or local rules or regulations that are contrary to these provisions.  That means that any rules that prohibit mask or other COVID-19 related safety mandates, or otherwise contradict the rules under this guidance will not excuse a federal contractor’s obligations under these rules.

The guidance will be finalized by the Office of Management & Budget in the coming days.  In the meantime, if you have any questions or need assistance, contact the AAA at hello@ambulance.org.

US Department of Labor issues stronger workplace guidance on coronavirus

U.S. Department of Labor | January 29, 2021

US Department of Labor issues stronger workplace guidance on coronavirus
New OSHA guidance seeks to mitigate, prevent viral spread in the workplace

WASHINGTON, DC – The U.S. Department of Labor announced today that its Occupational Safety and Health Administration has issued stronger worker safety guidance to help employers and workers implement a coronavirus protection program and better identify risks which could lead to exposure and contraction. Last week, President Biden directed OSHA to release clear guidance for employers to help keep workers safe from COVID-19 exposure.

“Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” provides updated guidance and recommendations, and outlines existing safety and health standards. OSHA is providing the recommendations to assist employers in providing a safe and healthful workplace.

“More than 400,000 Americans have died from COVID-19 and millions of people are out of work as a result of this crisis. Employers and workers can help our nation fight and overcome this deadly pandemic by committing themselves to making their workplaces as safe as possible,” said Senior Counselor to the Secretary of Labor M. Patricia Smith. “The recommendations in OSHA’s updated guidance will help us defeat the virus, strengthen our economy and bring an end to the staggering human and economic toll that the coronavirus has taken on our nation.”

Implementing a coronavirus protection program is the most effective way to reduce the spread of the virus. The guidance announced today recommends several essential elements in a prevention program:

  • Conduct a hazard assessment.
  • Identify control measures to limit the spread of the virus.
  • Adopt policies for employee absences that don’t punish workers as a way to encourage potentially infected workers to remain home.
  • Ensure that coronavirus policies and procedures are communicated to both English and non-English speaking workers.
  • Implement protections from retaliation for workers who raise coronavirus-related concerns.

“OSHA is updating its guidance to reduce the risk of transmission of the coronavirus and improve worker protections so businesses can operate safely and employees can stay safe and working,” said Principal Deputy Assistant Secretary for Occupational Safety and Health Jim Frederick.

The guidance details key measures for limiting coronavirus’s spread, including ensuring infected or potentially infected people are not in the workplace, implementing and following physical distancing protocols and using surgical masks or cloth face coverings. It also provides guidance on use of personal protective equipment, improving ventilation, good hygiene and routine cleaning.

OSHA will update today’s guidance as developments in science, best practices and standards warrant.

This guidance is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of existing mandatory safety and health standards. The recommendations are advisory in nature, informational in content and are intended to assist employers in recognizing and abating hazards likely to cause death or serious physical harm as part of their obligation to provide a safe and healthful workplace.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance.