07/01/2021
Issuance of the ETS is notable for a couple for reasons. For one, this is the first time since the start of the pandemic that OSHA has imposed any mandatory requirements about COVID-19 workplace safety on any industry employers. Until now, OSHA had only issued recommendations for measures employers could voluntarily take to keep workers safe, which largely reiterated CDC guidance on the same topic. Without a specific standard, OSHA could only pursue enforcement of COVID-19 related violations under its General Duty Clause. Second, the ETS issued by OSHA is much narrower than originally anticipated, since it applies to certain healthcare employers only, rather than a broader group of industries.
Employers covered by the new ETS include certain hospitals, nursing homes, assisted living facilities, emergency responders, home healthcare workers, and ambulatory care facilities where suspected or confirmed COVID-19 patients are treated. There are some nuanced exceptions to the ETS coverage such as home health care settings where all employees are fully vaccinated, all non-employees are screened prior to entry, and people with suspected or confirmed COVID-19 are not present. The OSHA guidance includes a flow chart to assist employers with coverage determinations. https://www.osha.gov/sites/default/files/publications/OSHA4125.pdf
The key employer mandates of the ETS are:
Under the ETS, with respect to unvaccinated workers, covered employers are required to provide paid time off to get vaccinated and recover from any vaccination side effects.
Some of the language in the ETS is vague and appears open to interpretation. For example, the rule exempts fully vaccinated workers from masking, distancing, and barrier requirements when in well-defined areas “where there is no reasonable expectation” that they will be exposed to the virus, but no examples to aid in interpretation are provided. Nevertheless, the new rule clarifies that OSHA will use its enforcement discretion for employers who are making a good faith effort to comply with the ETS.
Although not covered by the ETS, OSHA also updated its guidance for non-health care workplaces which remains focused on mitigating risk for unvaccinated workers. As in the past, OSHA relies upon CDC guidance, and states that fully vaccinated individuals do not need to take the same precautions as unvaccinated workers. Further, OSHA confirms that most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk of COVID-19 exposure, unless otherwise required by state or local law.
While additional updated guidance is expected from OSHA, employers covered by the new COVID-19 ETS should take steps to ensure compliance. Employers who fall outside of the health-care arena should continue to monitor McGrath North guidance for further direction on OSHA and related COVID-19 compliance issues.
OSHA's Long Awaited COVID-19 Standard- Does It Apply To Your Business?
On June 10, 2021, fifteen months into the pandemic, the Occupational Safety and Health Administration (OSHA) issued its long awaited COVID-19 emergency temporary standard (“ETS”) aimed at protecting workers from COVID-19. But, it only applies to certain health care settings. As an ETS, the OSHA rule takes effect immediately and can remain in place for up to six months, during which a permanent rule could be considered.Issuance of the ETS is notable for a couple for reasons. For one, this is the first time since the start of the pandemic that OSHA has imposed any mandatory requirements about COVID-19 workplace safety on any industry employers. Until now, OSHA had only issued recommendations for measures employers could voluntarily take to keep workers safe, which largely reiterated CDC guidance on the same topic. Without a specific standard, OSHA could only pursue enforcement of COVID-19 related violations under its General Duty Clause. Second, the ETS issued by OSHA is much narrower than originally anticipated, since it applies to certain healthcare employers only, rather than a broader group of industries.
Employers covered by the new ETS include certain hospitals, nursing homes, assisted living facilities, emergency responders, home healthcare workers, and ambulatory care facilities where suspected or confirmed COVID-19 patients are treated. There are some nuanced exceptions to the ETS coverage such as home health care settings where all employees are fully vaccinated, all non-employees are screened prior to entry, and people with suspected or confirmed COVID-19 are not present. The OSHA guidance includes a flow chart to assist employers with coverage determinations. https://www.osha.gov/sites/default/files/publications/OSHA4125.pdf
The key employer mandates of the ETS are:
- Develop and Implement a COVID-19 Plan: Covered employers must develop and implement a multi-faceted COVID-19 plan (in writing if more than 10 employees) and take steps to reduce the chance of transmission, including keeping people at least 6 feet apart indoors, installing barriers between workstations where distancing is not possible, ensuring ventilation systems are working properly, and providing and ensuring each employee wears a face mask when indoors, or a respirator and other personal protective equipment when exposed to people with suspected or confirmed cases of COVID-19.
- Perform Health Screening and Management: Screen employees before each workday and shift. Limit and monitor points of entry to settings where direct patient care is provided; screen patients, clients, and other visitors and non-employees; implement management strategies for employee notification and reporting related to COVID-19.
- Take Standard and Transmission-Based Precautions: Develop and implement policies and procedures to adhere to Standard and Transmission-Based precautions in accordance with CDC’s “Guidelines for Isolation Precautions”.
- Require Personal Protective Equipment (PPE): Provide and ensure each employee wears a facemask when indoors and when occupying a vehicle with other people for work purposes; provide and ensure employees use respirators and other PPE for exposure to people with suspected or confirmed COVID-19.
- Follow Aerosol Related Procedures: When aerosol-related procedures are performed on a patient with suspected or confirmed COVID-19 very specific procedures must be followed, including respiratory requirements, number of workers present, etc.
Under the ETS, with respect to unvaccinated workers, covered employers are required to provide paid time off to get vaccinated and recover from any vaccination side effects.
Some of the language in the ETS is vague and appears open to interpretation. For example, the rule exempts fully vaccinated workers from masking, distancing, and barrier requirements when in well-defined areas “where there is no reasonable expectation” that they will be exposed to the virus, but no examples to aid in interpretation are provided. Nevertheless, the new rule clarifies that OSHA will use its enforcement discretion for employers who are making a good faith effort to comply with the ETS.
Although not covered by the ETS, OSHA also updated its guidance for non-health care workplaces which remains focused on mitigating risk for unvaccinated workers. As in the past, OSHA relies upon CDC guidance, and states that fully vaccinated individuals do not need to take the same precautions as unvaccinated workers. Further, OSHA confirms that most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk of COVID-19 exposure, unless otherwise required by state or local law.
While additional updated guidance is expected from OSHA, employers covered by the new COVID-19 ETS should take steps to ensure compliance. Employers who fall outside of the health-care arena should continue to monitor McGrath North guidance for further direction on OSHA and related COVID-19 compliance issues.
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