On June 10, 2021, OSHA released its long-awaited Emergency Temporary COVID-19 Standard. Unexpectedly, the standard applies only to workplaces that provide “healthcare” or “healthcare support services,” and in which suspected or confirmed COVID-19 patients are treated, including hospitals, nursing homes, and assisted living facilities, plus emergency responders, home healthcare workers, and employees in ambulatory care facilities.
As to all other employers, OSHA has issued updated guidance that incorporates the CDC’s Interim Public Health Recommendations for Fully Vaccinated People. The guidance describes itself as advisory, “informational,” and intended to assist employers in complying with OSHA’s General Duty Clause, which requires that employers provide a safe workplace free from recognized hazards that are likely to cause death or serious harm.
In this post, we summarize the key provisions of the ETS and the Guidance for all other employers.
Emergency Temporary COVID-19 Standard Applicable to Certain Healthcare Settings
The ETS was published in the Federal Register on June 21, 2021, with most of the requirements becoming enforceable on July 5, 2021. Along with the ETS, OSHA has also published multiple fact sheets and an extensive set of FAQs.
The standard applies generally in defined healthcare settings, even in cases where all or some employees are fully vaccinated. OSHA has published a chart to assist employers in determining whether they are covered by the standard. Generally, it requires covered employers to develop COVID-19 plans, conduct patient screening and management, take transmission-based precautions, provide PPE, implement distancing protocols, erect physical barriers, ventilate and disinfect, screen and monitor employees, and take other measures.
The ETS applies to all covered healthcare employers, irrespective of whether some or all employees are fully vaccinated. That said, there are some variations in the ETS requirements based on vaccination status of individual employees. Most notably, in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present, the requirements in the ETS for personal protective equipment (PPE), physical distancing, and physical barriers do not apply to employees who are fully vaccinated. However, to be exempt from providing those controls based on vaccination status, the required COVID-19 plan must include policies and procedures to determine an employee’s vaccine status. Beyond that, however, OSHA provides no specific guidance on how to accomplish this task.
From a purely employment perspective, the health screening and medical management requirements are probably the most substantial in the ETS and may require healthcare employers to put in place new policies or reassess current policies related to COVID-19 screening, return to work protocols, paid leave, and COVID-19 testing protocols. The most significant of these requirements are summarized below:
- Screen each employee before each work day and shift for COVID-19 symptoms (for example, by asking employees to self-monitor).
- Notify certain employees within 24 hours when a person who has been in the workplace is COVID-19 positive.
- Require employees to notify employers of a positive COVID-19 test, suspected COVID-19, or symptoms of COVID-19.
- Follow criteria for removing workers from the workplace after a positive COVID-19 test, if a healthcare provider suspects COVID-19, if an employee is experiencing COVID-19 symptoms, or if an employee has had close contact with a person who is COVID-19 positive, unless the employee has been fully vaccinated or recovered from COVID-19 in the last 3 months and has no symptoms.
- Make decisions on returning employees to work in accordance with guidance from a licensed healthcare provider or specified CDC guidance.
- For healthcare employers with more than 10 employees, continue to pay removed employees (up to certain amounts and excluding overtime) and provide other required medical removal protection benefits while medically removed from work. (Note: This requirement is anticipated to be challenged in court as beyond OSHA’s authority.
Healthcare employers must also establish a COVID-19 log (if more than 10 employees) of all employee instances of COVID-19 without regard to occupational exposure. The records must be available to employees in certain specified instances. Healthcare employers must also report work-related COVID-19 fatalities and hospitalizations to OSHA within 8 hours of learning about the fatality, and within 24 hours of learning about the in-patient hospitalization.
Other safety-based requirements related to hazard assessment and the maintenance of a safe work environment are as follows:
- Develop a COVID-19 plan for each workplace (written format if more than 10 employees).
- Designate workplace safety coordinators to ensure plan compliance.
- Conduct a workplace-specific hazard assessment.
- Enact policies and procedures necessary to implement the plan.
- Implement patient screening and management.
- Limit and monitor points of entry to settings where direct patient care is provided.
- Screen and triage persons entering the setting for symptoms of COVID-19.
- Implement standard transmission-based precautions.
- Provide face coverings or surgical masks to employees for indoor use and when occupying a vehicle for work purposes.
- Provide and ensure employees use respirators and other PPE for exposure to people with suspected or confirmed COVID-19, and for aerosol generating procedures.
- Allow voluntary use of respirators instead of facemasks.
- Limit employees present when aerosol-generating procedures are being performed on persons with suspected or confirmed COVID-19.
- Implement physical distancing (excluding momentary exposures) while indoors, unless not feasible. (Physical distancing does not apply to employees who are fully vaccinated when those employees are in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present).
- Where feasible, install cleanable or disposable solid barriers at each fixed work location in non-patient care areas (e.g., lobby, check in desks, triage, and hospital pharmacy windows) where employees are not or cannot be physically separated from others by 6 feet. (July 21, 2021)
- Maintain and monitor appropriate ventilation systems. (July 21, 2021)
- Follow standard practices for cleaning and disinfection of surfaces and equipment, including at least daily cleanings.
- Provide reasonable time and paid leave for vaccinations and vaccine side effects. Employers should open existing paid leave programs for this purpose. (Note: Currently, the ETS does not mandate vaccination, but it also does not prohibit mandatory vaccination programs.)
- Provide employee training on COVID-19 risks and mitigation. (July 21, 2021)
- Establish a mini-respiratory protection program under certain circumstances specified in the ETS and provide training.
Guidance for Non-Healthcare Employers
The Guidance contains the following recommendations:
- Unless otherwise required by law (e.g., state or local law), “most employers no longer need to take steps to protect their fully vaccinated workers,” except for workers who are “otherwise at-risk from COVID-19 exposure.”
- An employee is “fully vaccinated” two weeks or more after receiving the final dose of an authorized COVID-19 vaccine. This is consistent with CDC guidance.
- Employees who are “otherwise at-risk” from COVID-19 are those with compromised immune systems. For more detail, OSHA refers employers to the CDC’s webpages on Vaccines for People with Underlying Medical Conditions and People with Certain Medical Conditions.
- “Most employers” includes employers other than those with “higher-risk” workplaces where employees are in close contact with others for extended periods.
- Employers can and should take steps to encourage vaccination and make it easier for employees to get vaccinated.
- To protect unvaccinated or at-risk workers, OSHA recommends that employers take the following steps:
- Grant paid time off for workers to get vaccinated.
- Require that employees who are infected with COVID-19, who are unvaccinated and have had close contact with someone who has tested positive, or who have COVID-19 symptoms (whether vaccinated or not) stay home from work.
- Implement physical distancing for unvaccinated or at-risk workers in all communal areas.
- Other options include implementing remote work arrangements, rotating work schedules, flexible meeting and travel options, and physical barriers between workstations.
- “Provide” unvaccinated or at-risk workers with masks at no cost.
- “Such workers should wear a face covering that covers the nose and mouth to contain the wearer’s respiratory droplets and help protect others and potentially themselves.”
- Unless otherwise required by law, unvaccinated workers who are outdoors “may opt not to wear face coverings unless they are at-risk.”
- All workers should continue to be supported in wearing masks if they choose.
- Educate and train managers and workers on the company’s COVID-19 protocols.
- “Suggest” that unvaccinated customers, visitors, or guests wear masks if there are unvaccinated or at-risk workers “who are likely to interact with these customers, visitors, or guests.”
- Maintain ventilation systems and perform routine cleaning and disinfection.
- Record and report COVID-19 related infections and deaths that occur due to exposure in the workplace. Employers are NOT required, at least through May 2022, to record or report any otherwise recordable adverse reactions to vaccination.
- Implement protections from retaliation and set up, or at least “consider,” an anonymous process for employees to raise concerns about COVID-19 related hazards, such as a “hotline.”
Additional steps should be considered in “higher-risk” workplaces where unvaccinated or at-risk workers are employed. Such workplaces include those where employees are in close contact with others, especially for extended periods of time, such as manufacturing facilities, meat and poultry plants, high-volume retail and grocery stores, and seafood processing facilities. Such additional steps include a number common measures that have been previously recommended in addition to masking and distancing.
Some Open Questions About the Guidance
- What, if anything, does OSHA recommend as to how employers should determine which employees have been vaccinated? A key open question in the aftermath of the revised CDC guidance from late May has been whether it is appropriate or acceptable for employers to rely on employees to self-select as vaccinated (i.e., the “honor system”), or whether employers should request proof or attestation from employees before exempting them from masking and distancing protocols. OSHA’s guidance does not address this question, and does not endorse—or foreclose—any particular method. Note that the EEOC permits employers to gather this information, but says that it must be kept confidential.
- Does the guidance recommend that unvaccinated workers wear masks in common areas? Although the guidance easily could have said this directly, it does not. What it says is that unvaccinated and at-risk workers should distance in common areas, that masks should be “provided” to these workers at no cost, and that the masks should fit well and be worn in unspecified circumstances. It also says that unvaccinated workers working outdoors “may opt not to wear face coverings unless they are at risk,” leaving it further unclear whether OSHA recommends that unvaccinated workers working indoors should be permitted to opt out of wearing masks. Note, though, that the CDC guidelines suggest that unvaccinated persons should continue to wear masks when distancing is not possible.
- How should an employer determine whether a vaccinated worker is “at-risk,” and what about the risk of making medical and disability-related inquiries that are not job-related or consistent with business necessity? OSHA repeatedly recommends that employers implement certain protective measures for vaccinated workers who are otherwise “at risk,” yet does not address the legal complexities surrounding obtaining such information. Some employees may self-disclose, perhaps in the course of making accommodation requests, but employers should proceed with caution and seek advice from employment counsel before considering making any proactive inquiries along these lines to employees.
The Bottom Line for Employers
Healthcare employers or employers working in the healthcare field must first determine if they are covered by the ETS. For example, the ETS does not apply to the dispensing of prescriptions by pharmacists in retail settings. If you are covered, the clock is now running to understand the requirements of the ETS and to get in compliance. Some of the ETS requirements are both complex and extensive and will require employers to grapple with challenging issues like paid leave and how to determine vaccine status.
For all other employers, while compliance with the Guidance is not mandatory, it is probably the best way to reduce legal risk in the event of COVID-19 exposure in the workplace.