The Compliance Divas Podcast
Our podcast covers current topics such as infection prevention and control, OSHA and HIPAA compliance for dentistry. We discuss the latest regulatory information, answer frequently asked questions and give suggestions for dental practices to make compliance easy and sustainable. The Compliance Divas are a trusted source for consistent, accurate information based upon current guidelines, standards, science, and recommendations.
The Compliance Divas Podcast
Episode #5 OSHA's Emergency Temporary Standard
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OSHA recently issued an Emergency Temporary Standard (ETS) pertaining to worker safety and COVID-19. Is your practice exempt? This week's podcast dives into the ETS, the parameters for exemption and other key components of this standard.
Welcome. I'm Leslie Cannon. I'm Mary Gavoni. I'm Linda Harvey.
SPEAKER_01I'm Olivia Juan. And together we are the Compliance Divas.
SPEAKER_03Welcome to the Compliance Divas Podcast. We bring clarity and simplicity to compliance by navigating regulatory compliance for you to keep you on course. Subscribe to the Compliance Divas Podcast through your favorite podcast channel or on our website, thecompliancedivas.com. Any resources that we mentioned during our podcast can be found on the compliancedivas.com website. They will be in a folder by the date of the podcast. If you have any questions about the information discussed in the podcast, please submit them to support at the compliancedivas.com. So on to our topic of the day, which is the OSHA Emergency Temporary Standard. And we've been anticipating something from OSHA as part of the regulatory process and the concerns about worker safety from exposure to COVID-19. And last week, OSHA introduced or published an interim final standard, and we'll kind of explain what that means to you. The bottom line that most dental practices need to know is that you may be exempt from this standard. However, as Linda and Olivia and Leslie will also share with you, there are some caveats to that, whether you are exempt or not. So this interim contemporary standard will be published any day now in the federal register. That is the way that the US government introduces any kind of new laws or standards. So once it's published in the federal register, it becomes effective on the day of publication. And if you were to be required to comply with that standard, it takes effect on that day, and then you have 14 days to comply with some of the provisions of the standard and 30 days to comply with the rest of the provisions of the standard. To assist workers and employers in understanding this standard and whether it applies to you or not, OSHA has introduced a flow chart or a decision tree to help you go through the qualifications for exemption from the standard. Now you probably have seen the announcements in the ADA News and other dental organizations that dentistry is largely exempt from the standard. But as Linda is going to share with us right now, it depends. Linda, take it away.
SPEAKER_02Thank you, Mary. Yes, we've been waiting for quite some time for OSHA to publish an update. And here we are with the emergency temporary standard. And I think many offices are feeling like this does not apply to them. So we can have a big sigh of relief that we can go back to the way we were perhaps pre-COVID and had already been moving back towards the direction of pre-COVID processes and protocols in their offices because of the number of patients and team members that are becoming vaccinated. However, we have to pay attention to this flow chart that OSHA published, along with some other resource documents that OSHA published with this emergency temporary standard. And the interesting thing about the flow chart is that it takes you through each one of the steps and following whether you have a yes or no to the answer, whether you proceed or whether you get to go straight from jail, so to speak, to go, pass go, collect your $200. And we wish we could collect the $200 part, right? But with all this being said, we have to be sure that first that we whether a dental office meets these three criteria. And if you do, then you don't have to comply. And so let's talk about those three criteria and whether or not we are exempt or largely exempt or may not be exempt at all. And bear in mind there are some dental settings that will be treating patients with COVID because of different emergencies or the type of dental facility that the practice is. So the three criteria that I want to draw everybody's attention to, and by the way, this resource will be in our resource section, as Mary said, just a few minutes ago. So if you're not someplace where you can take notes, don't worry about it. You can download it and follow later. But there are three criteria that we want to look at primarily in the first section of this flowchart. And you have to meet all of these following conditions to go go directly to pass go. And are you a non-hospital ambitory care setting? Meaning that your patients are not in the patient, they're not hospitalized, they're not residential. And for all private practices, that would be a yes. And then the second criteria and all caps are the word all. All non-employees are screened prior to entry. So that is that comprises our patients, our visitors, our guests, our vendors, all those individuals have to be screened. And Mary, here's the part where I think dental practices have been kind of moving away from because they reference other large healthcare facilities across the country or large, you know, dental universities that have no longer been screening patients or employees and feel like, well, they're not doing it. I don't need to do that. You've seen the same thing, right, Mary?
SPEAKER_03Absolutely, Linda. And that's such a good point that there's confusion about mask requirements as well, because the mask requirements for many public settings have been removed. And many people believe that they apply to healthcare settings as well, which they do not. So if anyone has stopped screening their patients and other people coming into the facility, then unless they go back and start doing it again, they must comply with this emergency standard.
SPEAKER_02Exactly. And that's I think that's a piece I believe most offices are missing. So in addition to being sure that you are screening all non-employees, which is your patients and your visitors and your vendors, prior to entry, we must still be continuing to do that. And I know that patients may not be happy with that. And so we can always talk about how to finesse that and use our customer service skills to just share with the patients that this is where we are. And so we still need to comply with this aspect. And the third criteria in this particular section is that people with suspected or confirmed COVID-19 cases are not permitted to enter. And there's no way that we can begin to identify those individuals without doing the screening protocols. And so it's very important that we continue with the questions as well as temperature checks and ensure that we're doing that with each and every patient and as well with all non-employees. This actually says people. So let me back up and say that people, right? It's people with suspected. So that is your employees, your vendors, your patients, your visitors, everybody still need to be screened upon entering the practice. So unfortunately, we still have to keep that step in process there. So if you meet all three of these criteria, then you are exempt from this new emergency temporary standard.
SPEAKER_03So Linda, here's a question. If a practice has a patient who has a dental emergency, a true dental emergency pain or swelling or a fractured tooth, and they say they've been potentially exposed to someone with COVID and they're unvaccinated or they've tested positive for COVID, how does that play into this exemption? Because the criteria says we don't allow anyone into the facility that has known or suspected COVID.
SPEAKER_02It creates a quagmark because as soon as you see that first patient, then you must comply with this standard and have all these protocols in place. And so if not, then you will need to figure out how to triage that patient differently or refer them to a practice that is following these protocols, or perhaps a hospital setting for emergency care. So it will depend on that patient's particular need.
SPEAKER_03Great. Thanks, Linda. Olivia, can you help us understand the relationship between employees being vaccinated or even patients being vaccinated and an exemption from this emergency temporary standard?
SPEAKER_01Sure, Mary. So if everyone in the practice has been vaccinated, then they would be exempt from this emergency temporary standard. And if I may, I would like to quote directly from this new guidance sheet from OSHA. Unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at risk from COVID-19 exposure. This guidance focuses only on protecting unvaccinated or otherwise at-risk workers in their workplace. So I think that's something that commands our attention in working with our clients. We see that rarely do we come up on a practice that is fully vaccinated, meaning the entire staff has agreed to the COVID-19 vaccine, whether they are claiming a religious exemption or they have a medical compromise that doesn't allow them to take the vaccine, or simply because they don't trust the vaccine. So basically, Mary, it's a juggling act of trying to figure out which pieces of guidance and regulations apply to our dental offices so that we can promote the health and safety of our entire team. And notice that the guidance pointed out in the emergency standard under the heading What Workers Need to Know About COVID-19 protections in the workplace, COVID-19 spreads mainly among unvaccinated people who are in close contact with one another, especially in poor ventilated areas. And so we're trying to uh put these different pieces of guidance together so that we can come up with the best safety protocols and be in compliance.
SPEAKER_03Exactly. And Olivia, with your um background as an attorney, can you help us understand whether employers can require, other than with the religious and other um legal exemptions, can they require their employees to be vaccinated?
SPEAKER_01Well, they certainly can. There's been a lot of discussion with EEOC on mandatory vaccine programs. And once again, we want to be sensitive to certain exemptions, but even with those exemptions, if it proves to be burdensome for the employer to accommodate those exemptions, then they could seek having a mandatory vaccine program. Now, most of the dental offices that we have consulted with have just a voluntary program at this time, but it begs discussion because if an employee were to become sick with COVID, and if the emergency temporary standard is applicable, then there's wages that could be paid during their time of sickness. And now with the vaccine itself, the employer could pay for the employee time off needed for symptoms resulting from the COVID-19 vaccine using tax credits. And so it becomes a very challenging and a juggling act in trying to promote the safety of the employees, but yet trying to honor their personal decisions on whether they choose to be vaccinated or not. But with that said, Mary, we certainly don't want to alienate any of the employees or make them feel that uh we we are discriminating against them because of their personal decision not to be vaccinated.
SPEAKER_03Great explanation. Thanks, Olivia. And the the fear that I have, and I think the rest of my diva compadres have as well, is that when certain groups like the EDA announce that dentistry is largely exempt from this emergency temporary standard, that that's a signal that life returns to normal, meaning the pre-COVID pandemic days. And Leslie, um please share with us why that's not true and how does the CDC guidance affect what we do in dentistry?
SPEAKER_00Well, of course, Mary, the CDC guidelines are the recommendations that we follow to protect everyone. Now, the emergency temporary standard is OSHA's position for employees, but we also have patients who enter our practice. And our most recent guidance for dental settings uh was actually, and again, based on today's date of this uh podcast was December 4th, 2020. We can't let those guidelines go. We still need to comply with uh how we protect our patients and how we protect ourselves. So screening is most definitely part of that process. Uh, wearing the proper personal protective equipment, uh, we're not just gonna not wear our surgical face mask because the OSHA temporary standard says we're exempt from the emergency standard, we're still gonna continue to practice in clinical dentistry the same way we did before. Uh, the difference might be that some uh people may feel compelled to uh not follow the respiratory protection plans, that if there is a chance that someone slips past our screening that does have COVID, we either have an asymptomatic or a pre-symptomatic patient, then we of course want to be protected ourselves. Vaccination is a layer of protection. But my understanding is that vaccination provides 90% efficacy. So what about the 10% of us who may not have that protection or immunity? Continue to follow the CDC guidelines. And there's a number of things in the CDC guidelines that are addressed, including layers of protection. In addition to PPE, we're talking about uh managing air quality. The emergency temporary standards talks about filtration systems for your uh ventilation. And so uh CDC recommends consulting an HVAC technician to improve air exchanges for your treatment room. Still a great idea. Uh, in order to uh make sure that we are protecting ourselves, we want to look at these other avenues, um, aerosol, making sure that aerosol uh uh extraction, uh we can improve the quality of our suction units. We can make sure, and we should do a whole podcast on making sure that evacuation techniques are really good and that our systems are maintained well. So uh the CDC guidelines takes us from everything from PPE to the environment uh to also how we manage environmental surfaces with disinfectants. So I don't think that that whether we find ourselves subject to the ETS, the emergency temporary standard, or we say, yippee we're exempt, we still need to go back to the basics to protect ourselves and our patients with the CDC guidelines.
SPEAKER_03Absolutely. Thank you, um, Leslie. So this this is not going back to, again, the old way. I'm not sure that we ever will go back to the old way because what this whole pandemic has sort of um uncovered is that the old way wasn't necessarily as safe as we thought that it was. So Leslie talked a lot about the CDC guidance and the fact that the most recent guidance we have that's specific to dentistry dates back to December of last year. Now, there is an update from April 27th for all healthcare settings. But are Linda, are the dental guidelines, are the dental guidance going to be updated anytime soon?
SPEAKER_02Well, Mary, yes, indeed. As much as we've been waiting with bated breath for over six months now for these guidelines to be updated, we do have on good word from the oral health department at the CDC that the guidelines are written and will be published very soon. We just aren't privileged to know when. So hopefully the dust will settle soon. You know, we think we'll get organized with this new OSHA temporary standard, and CDC will come out on the heels of that and give us some additional guidance that will be applicable to dentistry because these are the actual dental guidelines that will be updated. And as you mentioned, there's been so much confusion with other updates that have been published. I've had dental professionals say to me, Oh, we can be three feet apart now because it there was a change about the social distancing, and they don't realize that wasn't even applicable to a healthcare setting, much less a dental setting. And so just simple little things like that that we tend to glean a headline and don't look further. And that's why what Olivia said about knowing which section of these different guidelines and rules apply to your practice is so important. It's not all or none. So the guidelines are going to be updated. We just don't know when. So we're kind of sitting back and watching every week and waiting for that update to come from the CDC. And we think about how important it is because OSHA actually uses the CDC guidelines when they investigate a dental complaint and they're on site or investigating remotely, they are citing and expecting compliance with the CDC guidelines. And that's how you best protect workers. And we know that OSHA is about worker safety, not about patient safety. And nevertheless, all this works together hand in hand to make uh ensure a safe workplace for everyone, patients and staff alike. So we best be following the CDC guidance because that's how you also maintain compliance with OSHA and protecting workers to the maximum ability, if I can use that phrase. And then when you also think about piggyback off to a couple of comments that Leslie made and thinking about those individuals that maybe are not immune from having their vaccination, the immunity, you know, that 10% of the population Leslie mentioned, or the individuals that are non-vaccinated, if you have a workplace injury or illness, there are still certain criteria for reporting to OSHA. And we typically think about injuries being Sharp's injuries and whether or not we need to report and how we handle that. But actually, this illness is contracting COVID-19 in the workplace. So if you have not been screening patients and staff and visitors and everyone in the practice, and you have team members that are not vaccinated or not immune, and they're sitting next to each other at lunch and they're sharing, you know, sharing stories and chatting and sharing COVID among themselves. Now you have a situation where they were known to have contracted this in the workplace. And if they end up in the hospital, this is reportable to OSHA. And there was at least one fine last year of a healthcare setting where this occurred. So this is so critical to continue to follow these guidelines and not just say read the headline and go, oh, we're exempt and throw out everything they've done last year. Because we, I don't think personally that we'll ever go back to exactly the way we were, because there were ways that we could have been safer and we didn't realize it. And COVID-19 brought that to light, Mary.
SPEAKER_03Yeah, absolutely. Linda, thank you. Um, Olivia, we have another sort of legal question for you. Um, this emergency temporary standard has come out during the time of OSHA's national emphasis program, where they've talked about enforcement of COVID-19 safety in work settings, of which dentistry is considered to be a high-risk work setting. So if a dental practice is exempt from the emergency temporary standard, does that also exempt them from the national emphasis program?
SPEAKER_01Not at all, Mary. So the national emphasis program does target dental offices as well as other industries for COVID-19 safety. And so we must embrace the different rules and requirements as well as guidance from CDC, because as Linda mentioned, OSHA will reference CDC in looking at safety specific for dental professionals. And I want to point out the American Dental Association confirmed that dental practices need to have in place a COVID-19 plan. And so that plan would discuss the different types of requirements to promote safety for COVID-19, which includes screening patients, screening employees. Now, if an employee is fully vaccinated, they do not have to be screened, but there's other parts of the program that needs to be listed. ADA also confirmed that dental practices must conduct a hazard assessment. And I know that groups that listen to our seminars, seminars, and training programs probably get tired of hearing us say, conduct a hazard assessment, conduct a hazard assessment. But OSHA will actually ask to look at this document to see that the employer assessed the hazard, such as COVID-19, aerosol, and what are the types of PPE that's in place as well as the engineering controls. Leslie mentioned an array of engineering controls that are discussed in CDC's December 4th guidance. And so if a dental office implemented uh special HVAC system or HEPA filtration or external evacuation or whatever the case may be, they should document this on the hazard assessment. And so when there's allegations of violations for COVID-19, uh OSHA's coming in. I've dealt with clients that had investigations over COVID complaints and their investigation is very thorough in making sure that those employees have a safe place to work. So we really need to take this information seriously and comply with the different pieces of guidance and regulations in place.
SPEAKER_03Thanks, Olivia. Um, is it possible that although the National Emphasis Program is really focused more on COVID-19 safety or preventing transmission of COVID-19, could an OSHA inspector also look at compliance with the bloodborne pathogen standard and the hazard communication standard as well?
SPEAKER_01That's a good point, Mary. What we have seen with investigations, they may have initially come into the office because of an allegation of COVID non-safety, but because it opened up uh an audit, so to speak, it unraveled other areas of noncompliance. And we've seen where they've been cited because their work exposure control plan was not updated or their training records were not in order. And so it does make them susceptible to being cited over other violations, including the hazard communication standard.
SPEAKER_03Great. Thank you so much. Well, thank you all for joining us for this podcast from the compliance divas. We bring clarity and simplicity to compliance by navigating regulatory compliance to keep you on course. If you have questions from this podcast, please submit them by email at support at thecompliancedivas.com. And also visit the compliancedivas.com website for the resources that we mentioned. We will have the ETS standard, we will have the flow chart and a number of other documents related to the temporary emergency standard, and they will all be available for you to download. So thank you again for joining us and join us again next week for the Compliance Divas podcast.