New OSHA ETS: Are Public Hospitals Covered? | Holland & Hart – Health Law Blog
OSHA’s new Temporary Emergency Health Care (ETS) standard does not specifically exclude state and local health systems, such as county hospitals. However, according to section 3 (5) of the OSH Act, “any state or political subdivision of a state” is not an “employer” for the purposes of the law and is therefore excluded from its scope. application, including the standards promulgated thereunder. 29 USC § 652 (5); StarTran, Inc. v. OSHRC, 608 F.3d 312, 313-314 (5th Cir. 2010).
Therefore, if a healthcare system is a state or political subdivision, it should be exempt from the new OSHA ETS. This is corroborated by ETS preamble footnote 129, which states that “the ETS does not apply to state and local employers in states without state plans. »86 Fed. Reg. 32376 to 32652 (June 21, 2021). In other words, for “federal OSHA” states, such as Colorado and Idaho, the ETS should not apply to state and local employers.
Definition of “State or political subdivision of a State”
To determine whether an entity is a “state or a political subdivision of a state”, a two-part test is used. According to this criterion, any entity “(1) created directly by the State, so as to constitute a department or an administrative branch of government, or (2) administered by individuals controlled by public officials and accountable to such officials or to the general electorate ”is not subject to the OHS Act and its standards. 29 CFR § 1975.5 (b). The following factors are taken into account in determining whether an entity passes this two-part test:
- Are the people who administer the entity appointed by a public official or elected by the general electorate?
- What are the terms and conditions of the meeting?
- Who can dismiss these people and according to what procedures?
- What is the financial source of the salary of these people?
- Does the entity make a profit? Are these profits treated as income?
- How are the functions of the entity funded? What are the powers of the entity and are they generally characteristic of a government rather than a private instrument like eminent domain power?
- How is the entity considered under state and local laws as well as other federal laws?
- Is the entity exempt from state and local tax laws?
- Are the entity’s obligations, if any, exempt from tax? As for the employees of the entity, are they considered as employees of other state and political subdivisions?
- What is the financial source of the payroll?
- How do the benefits, rights, obligations and restrictions of employees in the entity compare to those of employees of other state and local departments and agencies?
29 CFR § 1975.5 (c).
Employers with healthcare facilities should carefully analyze the two-part test and related factors before determining if the HTA does not apply. If an employer chooses not to follow the ETS based on an incorrect interpretation, they could be subject to significant OSHA penalties. Additionally, even if the ETS does not apply, we recommend that employers review and implement relevant CDC guidelines, where possible.
The above analysis only applies to states without OSHA approved state plans. In states with state plans, such as Nevada, Utah, and Wyoming, state and local employees are covered by the state plan. Thus, the exemption of “political states and subsidiaries” does not apply.
Although the OSHA ETS does not specifically apply to state plans, state plans are required to modify their standards to be the same or “at least as effective” as the ETS. 86 Fed. Reg. 32376 to 32560. Adoption by states with state plans is required within 30 days of the ETS. Identifier. Employers with health care facilities in state plan states should monitor their state OSHA office for updates and new requirements.
 Note that some “federal OSHA” states, such as Montana, may have a separate state-level department that covers state and local employers. Public employers should consider state requirements and jurisdiction when assessing the application of the ETS.