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Applicability of OSHA ETS and New York HERO Act to Home Care Agencies

On June 10, 2021, the U.S. Department of Labor (DOL) Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) creating specific obligations for employers to provide protections to workers from occupational exposure to COVID-19 in certain healthcare settings. The interim final rule was published in the Federal Register on June 21, 2021 and is effective as of that date. Employers are required to comply with provisions of the ETS by July 6, 2021 (14 days after the effective date) or July 21, 2021 (30 days after the effective date).

A comprehensive memorandum on the ETS from LeadingAge NY’s legal counsel, Hinman Straub, is available here. LeadingAge National also has a webinar to educate members on the ETS and its compliance requirements, which is available and free to all members this week.

Home health agencies are subject to the ETS, as they are settings in which employees provide healthcare services or healthcare support services (unless otherwise exempted). The ETS defines “healthcare services” as:

services that are provided to individuals by professional healthcare practitioners (e.g., doctors, nurses, emergency medical personnel, oral health professionals) for the purpose of promoting, maintaining, monitoring, or restoring health. Healthcare services are delivered through various means including: Hospitalization, long-term care, ambulatory care, home health and hospice care, emergency medical response, and patient transport. For the purposes of [the ETS], healthcare services include autopsies.”

The ETS defines “healthcare support services” as:

“services that facilitate the provision of healthcare services. Healthcare support services include patient intake/ admission, patient food services, equipment and facility maintenance, housekeeping services, healthcare laundry services, medical waste handling services, and medical equipment cleaning/reprocessing services.”

The following circumstances and settings are exempt from the requirements under the ETS: first aid by an employee who is not a licensed healthcare provider, dispensing prescriptions by pharmacists in a retail setting, non-hospital ambulatory care where all non-employees are screened and denied entry if suspected or confirmed to have COVID-19, well-defined hospital ambulatory care settings and home health care settings where all employees are fully vaccinated and non-employees are screened and denied entry or not present if suspected or confirmed to have COVID-19, healthcare support staff (i.e., off-site laundry or medical billing) not performed in a healthcare setting, or telehealth services performed outside of a setting where direct patient care occurs. Thus, home health will be exempt in many circumstances. For reference, OSHA has provided this chart to assist in determining whether a workplace is covered under the ETS. A Frequently Asked Questions (FAQ) document on the ETS is hereand LeadingAge NY's previous Intelligence article on the issue is here.

On the state front, please be aware that model plans for the New York HERO Act are now available and can be found here. Of note is a statement from the Department of Labor (DOL) that the HERO Act does not apply to “any employee within the coverage of a temporary or permanent standard adopted by the Occupational Safety and Health Administration setting forth applicable standards regarding COVID-19 and/or airborne infectious agents and diseases.” To be clear, home care providers who fall under the guidance of the OSHA ETS should follow the OSHA guidance and do not need to adopt a HERO Act model plan or follow other HERO Act requirements. (Our review and Hinman Straub’s memo on the OSHA ETS can be accessed here, and a tool to determine whether the OSHA ETS applies to your setting is here.) Exempt home care situations subject to the HERO Act include entities with fully vaccinated staff and screened non-employees as indicated previously and administrative, telehealth offices, or training sites of home care agencies where no direct care is provided.

Employers that are not covered by the OSHA ETS must establish a HERO Act airborne infectious disease exposure prevention plan. Employers may either adopt the model plan as is or develop another plan that meets or exceeds the minimum standards of the model plan. Our review of the HERO Act, including a comprehensive memo from Hinman Straub, may be found here. For home care providers subject to the HERO Act, the setting must comply with the HERO Act, and the agency/employer must establish a policy/plan to the extent the employer has the ability to exercise control over the setting. The HERO Act defines the worksite as "any physical space, including a vehicle, that has been designated as the location where work is performed over which an employer has the ability to exercise control" (Labor Law §218-b (b)). The worksite also includes "employer-provided housing and employer-provided transportation at, to or from the work site but shall not include the residence of the employer or employee unless such residence has been provided by the employer and is used as the primary place of work ...” (Id.).

Thus, if the employer/agency has the ability to exercise control over a home setting, they are responsible for creating a policy/plan to comply with their obligations under the HERO Act. However, if they do not have the ability to exercise control over the worksite, the site would not fall within the definition of “worksite” under the HERO Act, and a policy/plan would not be required for that worksite. Members should note that at this time, the policy/plan need only be adopted. However, implementation must take place by Aug. 6th. More information regarding the HERO Act may also be found here.

Please review the regulations and plans provided and feel free to reach out to our office with questions. 

Contact: Meg Everett, meverett@leadingageny.org, 518-929-9342