Legal Alert

OSHA Releases Long Awaited COVID-19 Emergency Temporary Standard for Health Care Workers & Updates General Industry Guidance

By Brian Pedrow, Denise Keyser, and Anu Thomas
June 10, 2021

Summary

Fulfilling a promise made early in the Biden Administration, on June 10, 2021, the Occupational Health and Safety Administration (OSHA) issued an Emergency Temporary Standard (ETS) related to COVID-19. However, the ETS applies only to health care and health care support service workers in settings where people with COVID-19 are reasonably expected to be present. Although this ETS applies only to specific health care settings, OSHA also has released an updated version of its COVID-19 guidance to employers, which is applicable to other covered workplaces.

The Upshot

  • The ETS now provides regulatory requirements that covered health care employers must meet, and OSHA no longer has to rely on existing safety standards or informal guidance to find COVID-19-related health and safety violations by such employers.
  • The general industry guidance, on the other hand, is not mandatory; it is advisory only.

The Bottom Line

The long-anticipated ETS and the updated guidance require employers to review their current protocols and to make changes needed to avoid health and safety violations. While the updated guidance is not mandatory, OSHA retains the power to cite employers under its “general duty clause” for failure to take steps necessary to protect employees from workplace spread of COVID-19.

Fulfilling a promise made early in the Biden Administration, on June 10, 2021, the Occupational Health and Safety Administration (OSHA) issued an Emergency Temporary Standard (ETS) related to COVID-19. However, the ETS applies only to health care and health care support service workers in settings where people with COVID-19 are reasonably expected to be present. Although this ETS applies only to specific health care settings, OSHA also has released an updated version of its COVID-19 guidance to employers, which is applicable to other covered workplaces. 

The ETS now provides regulatory requirements that covered health care employers must meet, and OSHA no longer has to rely on existing safety standards or informal guidance to find COVID-19-related health and safety violations by such employers. The general industry guidance, on the other hand, is not mandatory; it is advisory only.

COVID-19 Healthcare ETS:

The key requirements of the ETS include:

  • Development of a COVID-19 plan (in a written format if covering more than 10 employees), which incorporates policies and protocols to minimize the risk of transmission of COVID-19 to employees. Employers must conduct a workplace-specific hazard assessment, designate a plan coordinator, and solicit input of non-managerial employees and their representatives in the development and implementation of the plan.
  • Patient screening and management, which requires employers to limit the points of entry to settings where direct care is provided, and to screen patients (as well as other non-employees) for COVID-19 symptoms.
  • Development of procedures to adhere to OSHA standards and CDC guidelines to protect against disease transmission.
  • Use of personal protective equipment (PPE), requiring employees to wear facemasks when indoors and sharing a vehicle for work purposes, as well to use of respirators for exposure to people with suspected and confirmed COVID-19.
  • Protocols for aerosol-generating procedures, which limit the employees present for such procedures, require the performance of such procedures in an isolation room, if possible, and cleaning and disinfecting surfaces post-procedure.
  • Maintenance of six-foot physical distancing when indoors, or physical barriers in areas where employees are not separated by six feet.
  • Cleaning and disinfection protocols in accordance with CDC guidelines, which focus on high-touch surfaces and equipment and readily accessible handwashing facilities.
  • Proper use and maintenance of ventilation systems and isolation rooms.
  • Health screening and medical management protocols, which include screening employees (e.g., asking employees to self-monitor), providing employer-required testing at no cost to employees, requiring employees to report COVID-19 symptoms, notifying certain employees of workplace exposures, and following quarantining and return-to-work procedures in accordance with the CDC.
  • Provision of reasonable time and paid leave for vaccinations and vaccine side effects.
  • Training employees on disease transmission and infection-spread protocols, including additional trainings for updated protocols, or if there is an indication that that an employee has not retained the necessary understanding or skill.
  • Anti-retaliation protections, that include informing employees of their rights to the protections required by this standard, and not discharging or in any manner discriminating against employees for exercising these rights or for engaging in actions required by the standard.

This overview is not exhaustive and employers should consult the standard for the full scope of the requirements.

In addition to these requirements, the ETS includes procedures for reporting COVID-19 fatalities and in-patient hospitalizations to OSHA, maintaining a COVID-19 log (if more than 10 employees), and notifying employees of workplace exposures. OSHA also provides accompanying documents about implementing the ETS as it applies to these topics. 

Given the expansive nature of the ETS, OSHA further offered a series of additional documents summarizing key points of the new standard, including an ETS Fact Sheet, FAQs, and a flow chart entitled “Is Your Workplace Covered by the ETS,” to help employers determine whether the ETS applies to them.

The ETS is effective immediately upon publication in the Federal Register, and has been submitted to the Office for publication. Employers must comply with most provisions within 14 days, and the remaining provisions within 30 days. While OSHA has stated that it will use its enforcement discretion to avoid citing employers making a good faith effort to comply with the ETS, health care employers nevertheless must begin promptly to make efforts to comply with the new standard.

Updated COVID-19 Guidance for All Covered Industries

With its issuance of the Healthcare ETS on June 10, 2021, OSHA updated its non-binding COVID-19 guidance for all covered workplaces, originally posted in January 2021. The updated guidance is specifically focused on encouraging COVID-19 vaccination, protecting unvaccinated and otherwise at-risk workers (e.g., immunocompromised employees), and conforming OSHA’s existing guidance to the most up-to-date CDC recommendations regarding fully vaccinated people.

The key recommendations include:

  • Grant paid time off for employees to receive COVID-19 vaccination(s). .
  • Instruct workers who are infected, unvaccinated workers who have been exposed, and all workers with COVID-19 symptoms to stay home from work.
  • Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas.
  • Provide unvaccinated and otherwise at-risk workers with face coverings, unless their work task requires a respirator or other PPE.
  • Train workers on COVID-19 policies and procedures using accessible formats and in language(s) they understand.
  • Suggest that unvaccinated customers, visitors, or guests wear face coverings,
  • Maintain ventilation systems.
  • Perform routine cleaning and disinfection.
  • Record and report COVID-19 infections and deaths in accordance with OSHA standards.
  • Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19 related hazards.
  • Follow other applicable mandatory OSHA standards.

The guidance also includes an appendix regarding appropriate measures for high-risk workplaces (e.g., manufacturing, meat and poultry processing, high-volume retail and grocery, and seafood processing) with mixed-vaccination status workers.

The long-anticipated ETS and the updated guidance require employers to review their current protocols and to make changes needed to avoid health and safety violations. While the updated guidance is not mandatory, OSHA retains the power to cite employers under its “general duty clause” for failure to take steps necessary to protect employees from workplace spread of COVID-19.

Attorneys in Ballard Spahr’s Labor and Employment Group regularly advise employers on federal compliance issues, including OSHA’s health and safety requirements.

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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.

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