June 11, 2021

OSHA Issues COVID-19 Emergency Temporary Standard for Certain Health Care Settings and Updates its Guidance for All Industries

On June 10, 2021, the federal Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) for health care workers in response to the COVID-19 pandemic and also updated its guidance for all industries. While the updated guidance took effect immediately, the ETS will take effect on the date the document is published in the Federal Register (which has yet to be determined).

In the ETS, OSHA recognizes the risk of person-to-person transmission of COVID-19 presents a grave danger to workers in health care settings, particularly those “where people with COVID-19 are reasonably expected to be present.” OSHA is careful to limit the scope of its ETS to health care settings where suspected or confirmed COVID-19 patients are treated, including hospitals, nursing homes and assisted living facilities, and to individuals such as emergency responders, home health care workers and employees in ambulatory care facilities. Of note, the ETS does not apply to settings where the risk is strongly mitigated, such as hospital, ambulatory care facilities and home health care settings where suspected or confirmed COVID-19 patients are not treated, where all nonemployees are screened prior to entry, and where all the employees are vaccinated. In such settings, 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 will be present with suspected or confirmed coronavirus.

Some of the most notable requirements for covered health care facilities — which must come at no cost to the employees — are as follows:

  • Report to OSHA each work-related COVID-19 fatality within eight hours of learning of the fatality, and each work-related COVID-19 in-patient hospitalization within 24 hours of learning about the in-patient hospitalization.
  • Establish a COVID-19 log (if more than 10 employees) of all employee instances of COVID-19 without regard to occupational exposure and follow requirements for making records available to employees.
  • Provide reasonable time and paid leave for vaccinations and vaccine side effects.
  • Have a COVID-19 plan, including the requirement to develop and implement a plan for each workplace; designate workplace safety coordinator(s), knowledgeable in infection control principles and practices with authority to implement, monitor and ensure compliance with the plan; and conduct a workplace-specific hazard assessment.
  • Implement COVID-19 preventative measures, such as providing appropriate personal protective equipment (PPE), such as face masks and respirators, when necessary; enforcing physical distancing; implementing physical barriers (such as plexiglass); and ensuring cleaning, disinfection and proper ventilation.
  • Screen each employee before each workday and shift through employee self-monitoring or employer-required testing at no cost to the employee (though employers are not required to conduct screening testing).
  • Require each employee to promptly notify the employer if the employee tests positive for COVID-19, is suspected of having COVID-19, or is experiencing symptoms.
  • Limit and monitor points of entry for patients and nonemployees for symptoms of COVID-19.
  • Develop and implement policies and procedures to adhere to Standard and Transmission-Based Precautions in accordance with guidelines issued by the Centers for Disease Control and Prevention (CDC).

Once the ETS becomes effective (upon publication in the Federal Register), employers will need to comply with most provisions within 14 days and comply with all provisions of the ETS within 30 days. OSHA only issues emergency temporary standards under limited circumstances, and this is the first such standard to be released in 38 years. It will remain in effect until replaced by a permanent standard or OSHA determines that COVID-19 no longer presents a grave danger to the covered workforce.

In addition to the ETS, OSHA updated its guidance for all industries to relax restrictions on vaccinated employees. Unless otherwise required by federal or local law, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure. The guidance focuses instead on protecting unvaccinated or otherwise at-risk workers. Throughout the guidance, OSHA strongly encourages COVID-19 vaccinations and cites the CDC’s evidence that fully vaccinated people are less likely to suffer symptomatic infection or transmit the virus to others. OSHA recommends employers engage with workers and their representatives to protect unvaccinated employees, and take the following actions:

  • Grant paid time off for employees to get vaccinated.
  • Instruct workers who are infected, symptomatic or had close contact with someone who tests positive with COVID-19 to stay home.
  • Implement physical distancing for unvaccinated or otherwise at-risk workers in all communal work areas.
  • Provide unvaccinated and at-risk workers with face coverings or surgical masks and suggest that unvaccinated customers, visitors or guests wear face coverings.
  • Maintain the ventilation system, perform routine cleaning and disinfection, and continue other proven ways to mitigate the spread of COVID-19.
  • Implement protections from retaliation, including setting up an anonymous process for workers to voice concerns about COVID-19-related hazards.

The guidance notes that employers are also required to record and report COVID-19 infections and deaths if: (1) the case is a confirmed case of COVID-19; (2) the case is work-related; and (3) the case involves one or more relevant recording criteria (e.g., medical treatment or days away from work), in accordance with 29 CFR 1904. Additionally, the guidance also includes specific measures for higher-risk workplaces (such as some manufacturing, meat and poultry processing, high-volume retail and grocery, and seafood processing), which can be found in the appendix to the guidance.

OSHA provided a relatively brief summary of the ETS as well as a flowchart to determine whether a workplace is covered by the ETS. OSHA also plans to update the ETS and guidance as necessary, so visit their coronavirus page to access the complete guidance and more information, and watch your inbox for more news alerts.

The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.

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