By: Samantha J. Wood

On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) issued guidance for all employers, along with a much-anticipated Emergency Temporary Standard (“ETS”), limiting the ETS to healthcare workers.

Emergency Temporary Standard for Healthcare Workers

After much consideration, OSHA determined that an emergency standard was necessary because existing standards and regulations, and the OSH Act’s General Duty Clause were inadequate to address the COVID-19 hazard for healthcare workers.  OSHA determined that these workers face the highest risk of COVID-19 exposure because people with suspected or confirmed COVID-19 are reasonably expected to be present in the workplace.

The ETS is limited to workers who provide healthcare services and healthcare support services, including employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in ambulatory care facilities where suspected or confirmed COVID-19 patients are treated.

This standard requires healthcare employers to comply with several provisions, including:

1. Developing and implementing a COVID-19 plan that includes a designated workplace safety coordinator, a workplace specific hazard assessment, and policies and procedures to minimize the risk of COVID-19 exposure;

2. Limiting and monitoring points of entry to settings where direct patient care is provided; screening and triaging patients, clients and other visitors and non-employees; and implementing patient management strategies;

3. Providing and ensuring employee wear a facemask when indoors and when occupying a vehicle with others for work purposes;

4. Continuing physical distancing, installing physical barriers, ensuring proper ventilation, and cleaning and disinfecting surfaces and equipment in accordance with CDC guidelines;

5. Screening employees before each workday and shift and requiring employees to promptly notify the employer if the employee is COVID-19 positive, is suspected of having COVID-19, or is experiencing COVID-related symptoms;

6. Providing reasonable time and paid leave for vaccinations and vaccine side effects;

7. Implementing training to ensure employees understand COVID-19 transmission and situations in the workplace that could result in infection;

8. Establishing a COVID-19 log of all employee instances of COVID-19 without regard to occupational exposure and following requirements for making records available to employees/representatives (if more than 10 employees); and

9. Reporting work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.

The ETS exempts fully vaccinated workers from masking, distancing, and barrier requirements when in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.

Covered employers must comply with all ETS provisions within 14 days of its publication in the Federal Register, with the exception of the requirements related to physical barriers, ventilation and training.  Employers must comply with physical barriers, ventilation and training requirements within 30 days of the ETS’s publication.

OSHA Guidance for All Employers

At the same time OSHA released its ETS, it also issued updated COVID-19 guidance for all employers on mitigating and preventing the spread of COVID-19 in the workplace.  OSHA expressly acknowledged and adopted the CDC’s statement that fully-vaccinated individuals can resume activities without wearing masks or physically distancing, and stated that “most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace or well-defined portions of a workplace where all employees are fully vaccinated.”

However, OSHA’s guidance reminds employers that it still has an obligation to protect unvaccinated and otherwise at-risk employees, pursuant to OSH Act’s General Duty Clause.  In order to protect unvaccinated and other at-risk employees, OSHA recommends that employers implement multiple layers of control, such as:

1. Encouraging vaccinations and taking steps to make it easier for workers to get vaccinated;

2. Instructing unvaccinated workers who have had close contact with someone who tested positive, and all workers who are experiencing COVID-related symptoms or who are infected with COVID-19 to stay home;

3. Implementing social distancing for unvaccinated and otherwise at-risk workers in communal work areas and limiting the number of unvaccinated or at-risk workers in one place at any given time (such as by implementing flexible work hours, telework, or other flexible meeting and travel options);

4. Implementing transparent shields or other solid barriers at fixed workstations where unvaccinated or otherwise at-risk workers are not able to remain at least six feet apart from others;

5. Requiring unvaccinated or at-risk employees to continue to wear face coverings, providing face coverings to employees, supporting all workers in continuing face covering use if they choose, and recommending or requiring unvaccinated customers or visitors to wear face coverings;

6. Educating and training managers, employees, and other contractors on COVID-19 policies and procedures;

7. Improving air supply/ventilation procedures;

8. Performing cleaning and disinfection procedures;

9. Recording and reporting COVID-19 infections and deaths (excluding employees experiencing adverse side effects of the COVID-19 vaccination); and

10. Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19 hazards.

In high-risk workplaces, such as manufacturing, meat and poultry processing, and high-volume retail and grocery settings, where there is a heightened risk of COVID-19 exposure due to close or prolonged contact, OSHA further recommends:

1. Implementing staggered break times to avoid congregations of unvaccinated or otherwise at-risk workers;

2. Staggering workers’ arrival and departure times to avoid congregations of unvaccinated or otherwise at-risk employees; and

3. Providing visual floor or sign markings as a reminder to maintain six feet of distance.

In determining whether to modify policies or procedures, employers should carefully consider the above recommendations, as well as CDC guidance, and other state and local requirements to ensure continued legal compliance.