On June 10, 2021, OSHA issued an Emergency Temporary Standard (ETS) applicable to employers of employees who perform healthcare services and support, and revised guidance for all other employers. OSHA expressly acknowledges that the CDC no longer requires most employers to continue taking steps to protect their vaccinated workers but states employers must continue to take steps to protect unvaccinated or otherwise at-risk workers.
The ETS is applicable to any employees who provide healthcare services or healthcare support services finding “COVID-19 presents a grave danger to workers in healthcare settings where people with COVID-19 are reasonably expected to be present.” OSHA states the ETS is aimed at protecting workers facing the highest COVID-19 hazards, namely those working in healthcare settings where suspected or confirmed COVID-19 patients are treated.
The ETS is lengthy and multi-faceted but generally requires an applicable employer to:
- Develop a COVID-19 plan meeting a number of criteria;
- Details specific requirements for patient screening and patient management strategies;
- Develop and implement policies and procedures to adhere to Standard and Transmission-Based Precautions, record and report COVID-19 infections and deaths, other record-keeping requirements, and affirmatively report any outbreaks at their workplaces.
- Require employees to properly wear face masks over their nose and mouth when indoors or occupying a vehicle with others for work purposes;
- Provide respirators and other PPE during specific aerosol-generating procedures performed on a person suspected or confirmed to have COVID-19;
- Ensure each employee is physically distanced from all other people by 6 feet when indoors;
- Install physical, cleanable barriers at each fixed work location where employees are not separated from others by at least 6 feet;
- Follow CDC guidelines for cleaning and disinfection;
- Ensure proper ventilation measures are in place that comply with manufacturer’s requirements, utilize air filters with a Minimum Efficiency Reporting Value of 13 or higher, and use airborne infection isolation rooms;
- Implement daily health screening measures and free testing for employees;
- Provide reasonable time and paid leave for vaccinations;
- Train employees on COVID-19 disease transmission in appropriate languages and literacy levels;
- Inform employees of their rights to protections and about anti-retaliation protections;
- All requirements must be implemented at no cost to employees; and
- Establish a COVID-19 log and meet other record-keeping responsibilities.
The ETS applies to employees working in hospitals, nursing homes and assisted living facilities, and to emergency responders, home healthcare workers and employees in ambulatory care facilities where suspected COVID-19 patients are treated. The ETS does not apply to first aid performed by an employee who is not a licensed care provider, pharmacists in retail settings dispensing prescriptions, non-ambulatory care centers, well-defined hospital ambulatory care settings and home healthcare settings where employees are fully vaccinated and non-employees are screened prior to entry and those with confirmed COVID-19 are not permitted to enter.
The ETS is effective immediately upon publication in the Federal Register and employers must comply with most provisions within 14 days, and the remaining provisions within 30 days. The final rule has been submitted for publication but has not yet been published. Written comments may be submitted 30 days after publication.
For all other companies (not in healthcare), the revised guidance focuses protections on unvaccinated employees and otherwise at-risk workers, outlining recommendations and identifying mandatory safety and health standards applicable to those employees. OSHA recommends employers should:
- Grant paid time off for employees to get vaccinated;
- Require unvaccinated workers in close contact with someone who tested positive for COVID-19, and all workers with COVID-19 symptoms to stay at home;
- Implement physical distancing for unvaccinated and otherwise at-risk workers;
- Provide face coverings or surgical masks for the unvaccinated or otherwise at-risk workers whose work doesn’t require them to wear a respirator, and require they be worn snugly over the nose, mouth and chin;
- Educate and train workers on how COVID-19 can be contracted and provide COVID-19 policies in accessible formats and a language they understand, and train managers on how to implement the policies; and
- Suggest other unvaccinated customers, visitors or guests wear face coverings, maintain ventilation systems and perform routine cleaning and disinfection.
Employers of higher-risk workplaces with mixed-vaccination status workers should implement additional measures applicable to close contact among workers or others, duration of contact and type of contact, and other factors that may increase risk among the unvaccinated or otherwise at-risk workers.
If you have questions about this topic, please contact Chris or the HSB Employment Law practice team.