For the first time since the beginning of the COVID-19 pandemic, the Occupational Safety and Health Administration ("OSHA") has implemented a comprehensive COVID-19 workplace safety standard that employers must follow. On June 10, 2021, OSHA issued an emergency temporary standard ("ETS") to protect healthcare and healthcare support service workers from occupational exposure to COVID-19. This ETS is tailored to require employers in the healthcare industry and in facilities providing healthcare services to develop COVID-19 safety plans and to take defined steps to reduce the transmission of COVID-19 in the workplace. At the same time, OSHA concurrently issued updated, non-mandatory guidance intended to assist non-healthcare employers in preventing occupational exposure to COVID-19, especially for unvaccinated workers.
Employers in all industries should assess their current COVID-19 safety procedures in light of OSHA's updated guidance.
What Employers Are Covered by the New ETS?
The new ETS applies to all settings where any employee provides healthcare services (services provided by professional healthcare practitioners such as doctors, nurses, and EMTs, but excluding first aid) or healthcare support services (services that facilitate the provision of healthcare services), including most hospitals, nursing homes, and assisted living facilities. The ETS may also apply to healthcare settings within a larger physical location, such as a medical clinic in a manufacturing facility or walk-in clinic in a retail setting. OSHA has provided a flow chart to help employers determine whether any portion of their workplace is covered by the new ETS.
What Requirements Does the New ETS Impose?
Employers covered by the new ETS must:
- Develop and implement a COVID-19 plan for each workplace. Employers must conduct a hazard assessment relating to COVID-19 and have a plan that addresses the hazards identified. Employers should designate one or more workplace safety coordinator(s) to develop this COVID-19 plan and monitor its effectiveness. If the employer has more than 10 employees, the plan must be written.
- Provide appropriate PPE, social distancing, and physical barriers. Employees must generally wear a facemask or respirator. Employers must also implement procedures for social distancing and install physical cleanable or disposable solid barriers in certain work areas.
- Provide paid leave for employee vaccination. Employers must also provide paid leave (sick or administrative leave) if employees experience side effects from vaccination.
- Screen employees. Employers must screen each employee before each shift and require each employee to promptly notify it if the employee is COVID-19 positive, is suspected to have COVID-19, or is experiencing the symptoms of COVID-19.
- Pay employees who are removed from the workplace. When an employer removes an employee for confirmed or suspected COVID-19, it must continue to provide the employee with pay until the employee meets criteria to return to work. The amount of required pay varies by employer size and the length of the employee's absence.
- Screen and manage visitors and patients. If employees provide direct patient care, the ETS requires patient screening and management, including limiting and monitoring points of entry to the workplace and screening all clients, patients, residents, delivery people, visitors, and other non-employees.
- Notify employees of COVID-19 cases. Employers must notify employees within 24 hours if a person who has been in the workplace (including employees, clients, patients, customers, visitors, and other non-employees) is COVID-19 positive.
The ETS also requires employers to provide COVID-19 training in a language that employees understand, establish a COVID-19 log of all employee instances of COVID-19 (whether occupational or otherwise), and report all COVID-19 fatalities and hospitalizations to OSHA. Some requirements of the ETS vary for employers with 10 or fewer employees.
The ETS is a temporary standard; it will remain in effect for no more than six months from its publication in the Federal Register unless a permanent standard is developed following the usual rulemaking procedures prior to the ETS's expiration. In addition, there is some controversy surrounding the ETS. The burden that must be met to enact an ETS is considerable and includes that the ETS must be necessary to protect employees from a "grave danger." Last summer, before vaccinations were available, OSHA successfully opposed a lawsuit to force it to issue a COVID-19 ETS, arguing that its existing standards were adequate to protect employees from COVID-19. Consequently, it is possible that the ETS will be challenged.
What Guidance Exists for Non-Healthcare Industry Employers?
In addition to the ETS, which applies only in the healthcare industry, OSHA has also issued updated guidance to assist employers in other industries. This guidance, while not mandatory, outlines OSHA's expectations for non-healthcare employers. The new guidance eases workplace restrictions for vaccinated employees and focuses on steps employers can take to protect unvaccinated and other at-risk workers. OSHA permits employers to follow CDC guidance as it applies to vaccinated individuals; this explicitly includes allowing vaccinated workers to resume work without masks or physical distancing, if otherwise permitted by state and local law.
The following are some key suggestions from OSHA's updated guidance:
- Grant employees paid time off to get vaccinated
- Instruct unvaccinated workers who have had close contact with someone who has tested positive for COVID-19 to stay home from work
- Provide unvaccinated workers with face coverings (masks) to wear at work and implement physical distancing measures to maintain at least 6 feet of distance between unvaccinated or otherwise at-risk individuals
- Suggest that unvaccinated visitors and guests or those of unknown status wear face coverings
- Perform routine cleaning and disinfection of all work areas and maintain improved ventilation systems
Employers with questions about OSHA's new ETS or updated guidance and how they affect the workplace should feel free to contact the authors of this article or any other member of Venable's Labor and Employment Group.