United States: New OSHA COVID-19 Emergency Temporary Standard Focuses Only On Protections For Healthcare Workers

* The Occupational Safety and Health Administration (OSHA) has disseminated an Emergency Temporary Standard (ETS) designed to impact and protect healthcare workers most likely to have contact with someone infected with the coronavirus, including emergency responders and employees in ambulatory care settings where suspected or confirmed coronavirus patients are treated. The new ETS does not extend to other employers including high-risk employment areas such as manufacturing, retail, and other service areas such as food service and hospitality services.

The ETS requires healthcare facilities with 10 or more employees to conduct a hazard assessment and create a plan in writing. It sets forth rules for when to require masking, distancing and physical barrier requirements. The ETS also addresses other personal protection equipment, patient screening, ventilation, disinfection, health screening, vaccination, employee training, record-keeping, paying quarantined employees and other situations. Some of the more noteworthy key requirements in the ETS will be addressed below, but for an in-depth look at all of the key requirements in OHSA's final ETS, please see OSHA's final rule as submitted to the Office of the Federal Register (OFR).¹

One of the major requirements is that employers must conduct a workplace-specific hazard assessment to identify potential workplace hazards related to COVID-19 designed to: minimize the risk of transmission of COVID-19 for each employee, effectively communicate and coordinate with other employees/employers, and protect employees who in the course of their employment enter into private residences or other physical locations controlled by a person not covered by the OSH Act (e.g., homeowners, sole proprietors).

Employers must also designate one or more workplace COVID-19 safety coordinators to implement and monitor the COVID-19 plan. The COVID-19 safety coordinator(s) must be knowledgeable in infection control principles and practices as they apply to the workplace and employee job operations. The safety coordinator(s) must have the authority to ensure compliance with all aspects of the COVID-19 plan. Importantly, employers must seek the input and involvement of non-managerial employees and their representatives, if any, in the hazard assessment and the development and implementation of the COVID-19 plan.

Under the ETS, employers must provide facemasks to certain employees including unvaccinated employees. Additionally, employers must ensure that each employee changes their facemask at least once per day, whenever they are soiled or damaged, and more frequently as necessary (e.g., patient care reasons). Employers must also provide respirators, gloves, an isolation gown, and eye protection to each employee exposed to people with suspected or confirmed COVID-19.

The ETS requires employers to support COVID-19 vaccination for each employee by providing reasonable time and paid leave (e.g., paid sick leave, administrative leave) to each employee for vaccination and any side effects experienced following vaccination.

The ETS also includes an anti-retaliation provision mandating that employees have a right to the protections required by the ETS; and employers are prohibited from discharging or in any manner discriminating against any employee for exercising their right to the protections required by the ETS, or for engaging in actions that are required by the ETS.

The employer must ensure that each employee receives training, in a language and at a literacy level the employee understands, and so that the employee comprehends at least: COVID-19 transmission, tasks and situations in the workplace that could result in infection, and relevant policies and procedures related to COVID-19.

The ETS also states that the requirements must be Implemented at no cost to employees and requires that employers report all work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.

Employers must also comply with most provisions within 14 days and with the remaining provisions within 30 days. OSHA has indicated it will use its enforcement discretion to avoid citing employers who miss a compliance deadline but are making a good faith effort to comply with the ETS.

OSHA committed to updating the ETS, if necessary, to align with Centers for Disease Control (CDC) guidelines and changes in the pandemic.

OSHA issued updated guidance to help guide employers not covered by the ETS on best practices to identify COVID-19 exposure risks to workers who are unvaccinated or otherwise at-risk,² and to help them take appropriate steps to prevent exposure and infection.

Footnotes

1. The information at the link is subject to the following disclaimer:

This final rule has been submitted to the Office of the Federal Register (OFR) for publication, and is currently pending placement on public inspection at the OFR and publication in the Federal Register. This version of the final rule may vary slightly from the published document if minor technical or formatting changes are made during the OFR review process. Only the version published in the Federal Register is the official final rule.

See https://www.osha.gov/sites/default/files/covid-19-healthcare-ets-reg-text.pdf last visited June 16, 2021.

2. Some conditions, such as a prior transplant, as well as prolonged use of corticosteroids or other immune-weakening medications, may affect workers' ability to have a full immune response to vaccination. See the CDC's page describing Vaccines for People with Underlying Medical Conditions, and further definition of People with Certain Medical Conditions. Under the Americans with Disabilities Act (ADA), workers with disabilities may be legally entitled to reasonable accommodations that protect them from the risk of contracting COVID-19 if, for example, they cannot be protected through vaccination, cannot get vaccinated, or cannot use face coverings. Employers should consider taking steps to protect these at-risk workers as they would unvaccinated workers, regardless of their vaccination status. See https://www.osha.gov/coronavirus/safework last visited June 16, 2021.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.