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Carve-Outs in OSHA Covid-19 Health-Care Rule Create ‘Gray Areas’

June 24, 2021, 2:03 PM

The federal government’s new Covid-19 health-care worker protection standard leaves “gray areas” for some employers when trying to determine if they need to adhere to all of the regulation’s mandates.

Attorneys and health-care organizations are advising employers to comply with the Occupational Safety and Health Administration standard’s basic requirements, including conducting a hazard assessment, even if they believe they’re exempted.

“You can show you’re doing what OSHA wants you to do,” said A. Kevin Troutman, a partner with Fisher Phillips in Houston and a member of the firm’s Covid-19 response group. But, if inspected by OSHA, an employer will need to demonstrate why their precautions, such as patient screening, may qualify them to skip some of the measure’s other strictures.

The standard, which took effect June 21, says its full requirements apply to “all settings where any employee provides healthcare services or healthcare support services.” In general, that covers all hospitals and skilled nursing home facilities, according to OSHA guidance.

Still, the text of the measure states that exemptions apply to non-hospital ambulatory care settings where everyone is “screened prior to entry and people with suspected or confirmed Covid–19 are not permitted to enter.”

The first compliance deadline is July 6.

Who is Exempt?

Retail pharmacies have a blanket exemption. Walk-in medical clinics, doctor’s offices, dental practices, and other “non-hospital ambulatory care settings” may also qualify for exemptions depending on their patient screening policies and the type of care performed.

“It leaves a lot of gray areas,” Troutman said.

An OSHA flow chart designed to guide employers in the process of deciding if a workplace is covered requires going through up to five steps before reaching a determination.

The agency’s acting administrator, Jim Frederick, explained to an OSHA advisory committee this week that the standard is intended, in particular, to protect health-care workers who come into regular contact with people suspected of having Covid-19 or who are receiving treatment after a confirmed diagnosis.

“The standard exempts certain medical facilities that are able to pre-screen patients and reschedule any that are symptomatic,” he said.

Qualifying for a Carve-Out

To qualify for that exemption, the employer should limit the number of entrances and have a screening process where people are checked at the entrance or outside, Troutman said.

The standard defines screening as “asking questions to determine whether a person is Covid-19 positive or has symptoms of Covid-19.” Testing is optional.

Most dentist offices are covered by the standard’s exemption for non-ambulatory health-care providers because they perform screening, according to an American Dental Association statement provided to Bloomberg Law.

However, the association advised dental offices to conduct a hazard assessment and have a written Covid-19 plan in place even if the office concluded that it’s exempted from the standard.

The regulation also recognized that outpatient treatment clinics may be part of a larger facility; for example, a medical clinic set up inside a store or factory or attached to a hospital. The standard states that when a clinic is housed in a store or factory, the provisions don’t cover activities or people outside the clinic.

If a clinic is attached to a hospital, Troutman said, the employer should consider limiting access between the hospital and the clinic to satisfy the agency’s screening requirements.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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