By J. Kathleen Marcus, J.D.
On June 10th, the U.S. Department of Labor's Occupational Safety and Health Administration announced an emergency temporary standard (ETS) aimed to further shield workers from contracting the COVID-19 virus. This temporary emergency standard is for all industries but in part focuses specifically on healthcare workers most at risk of having contact with the virus. These healthcare standards were announced along with general industry guidance and following CDC guidance.
Protection for Workers at Highest Risk of Contracting COVID-19
The stated goal of the ETS is to “clarify what exactly employers are required to do to protect employees from COVID-19-related hazards, making it easier for OSHA to determine whether an employer has intentionally disregarded its obligations or exhibited a plain indifference to employee safety or health.” U.S. Secretary of Labor Marty Walsh stated the reasoning behind this new guidance was, "Too many of our frontline healthcare workers continue to be at high risk of contracting the coronavirus,” and “We must follow the science.” He went on to state that while adhering to the latest scientific data, these new protections, along with vaccinations and CDC guidance, “will help us protect frontline healthcare workers and end this pandemic once and for all.”
This ETS focuses on workers at the highest risk of contracting COVID-19, including those working in healthcare facilities where confirmed or potential coronavirus patients are cared for, including nursing homes, hospitals, and extended care/assisted living facilities; emergency responders; home health care workers; and ambulatory care.
OSHA will update these standards when necessary to align with evolving CDC guidance as the strains of the virus and state of the pandemic change. However, the implementation of this ETS establishes immediate protection for employees who provide care and support services in nursing homes and home healthcare, with some exemptions for healthcare providers responsible for COVID-19 screenings.
Requirements of the OSHA Standard
Under the 530-page ETS, non-exempt employers are now required to perform hazard assessments, including developing and maintaining an updated written COVID-19 plan for each workplace that states employees will be provided with N95 respirators and personal protective equipment (PPE), as well as detailed efforts taken to “mitigate virus spread,” such as ensuring 6 feet of distance between workers when possible. Employers must also provide workers with paid time off to get vaccinated and fully recover from any possible side effects.
Fully vaccinated workers are exempt from the OSHA ETS regarding social distancing, wearing masks, and the need for any barriers when in areas that are well-defined and pose minimal risk of exposure to those suspected of having coronavirus.
Employers were required to comply with most of these provisions within 14 days of the ETS being ordered and given 30 days to comply with the full OSHA guidance. OSHA makes it clear in their statement that ‘good faith’ by employers will be recognized as these standards can shift with the changing climate of the COVID-19 pandemic.
Are Dentists Largely Exempt?
On June 14th, the American Dental Association issued a press release asserting that dentistry is "largely exempted from new COVID-19 workplace regulations.” It is important to examine this claim to be sure your dental office is compliant with the ETS.
Under §1910.502(a)(2)(iii) of the ETS, “[n]on-hospital ambulatory care settings where all non-employees are screened prior to entry and people with suspected or confirmed COVID–19 are not permitted to enter those settings” are exempt from the COVID-19 Plan and other new requirements under the ETS. Dental offices can neatly fit into this exemption, but only if they actively screen for COVID-19 before allowing a non-employee to enter the premises.
OSHA offers “[e]xamples of when the exclusion provided under paragraph (a)(2)(iii) would apply could be in … an oral healthcare setting (e.g., dentistry, orthodontics), if the employer develops and implements policies and procedures to screen all non-employees prior to entry and does not permit those with suspected or confirmed COVID-19 entry into the facility.” For the screening to meet the requirements of paragraph (a)(2)(iii) exemption, it must involve, at minimum, “asking questions to determine whether a person is COVID-19 positive or has symptoms of COVID-19.” Optimally, "[e]mployers may choose to employ other methods in addition to the required questions, such as temperature checks, in the conduct of screening. Screening may also include confirming that individuals are abiding by the employer's policies and procedures for wearing face coverings in the facility, in accordance with paragraph (d)(3), as well as assessing individuals' recent exposures to COVID-19.”
Following CDC Guidelines, screenings should ask questions about the following symptoms: “fever or chills; cough; shortness of breath or difficulty breathing; fatigue; muscle or body aches; headache; new loss of taste or smell; sore throat; congestion or runny nose; nausea or vomiting; or diarrhea.”
If a non-employee screening leads to the conclusion that he/she is positive for COVID-19 or exhibits symptoms of it, that person must be barred entry to the office. A policy barring entry to people with COVID-19 or its symptoms may be accomplished by posting a sign, but the employer must also ensure that all non-employees who have COVID-19 or its symptoms are not allowed into the facility.
Therefore, while it is true that most dental offices are indeed exempt from the requirements of the new OSHA Emergency Temporary Standard, to be exempt requires that your practice actively screen non-employees for COVID-19 and exclude those whose screening determines they are or may be COVID-19 positive.
Visit the OSHA website for more information, or to read the full and most recent guidance.
Author: Kathleen Marcus, J.D., is DOCS Education's General Counsel. Uniquely qualified to advise and advocate for sedation dentistry, she draws on a healthcare law background that started from her first big court case right out of law school, over three decades ago. A 1988 graduate of Temple University School of Law, she was Research Editor of the Temple Law Review; she previously attended Bennington College, and has a B.A. in Philosophy. Kate is Pennsylvania licensed, with extensive experience in civil and criminal litigation at the state and federal levels. Her specialties include compliance, healthcare law, contract negotiation, contract drafting, commercial litigation, small business, health insurance and regulation, and URAC; she has demonstrated excellence in persuasive writing and editing, public speaking, and compliance (EEOC, HIPAA, HITECH, Title IX).