Seyfarth Synopsis: On June 9, 2021, at the tail end of prepared remarks before the House Education and Labor Committee, Secretary of Labor Marty Walsh announced - not with a bang, but with a whimper - that OSHA would publish its long-anticipated COVID-19 emergency temporary standard ("ETS") on June 10, and that the ETS would focus only on the health care industry.
When OSHA sent the ETS to the White House's Office of Information and Regulatory Affairs on April 26, 2021 (more than a month after President Biden's initial deadline for doing so), observers anticipated a broad rule, covering the full breadth of OSHA's jurisdiction. Focusing solely on health care, OSHA's June 10 ETS likely disappoints unions and worker advocates who continued to champion the ETS well after science - and CDC guidance - pointed to a lack of necessity. In addition to the actual ETS, OSHA has developed supplemental ETS-related resources, including a helpful flowchart to determine coverage.
ETS Requirements
For those employers who fall into covered categories, including hospitals, nursing homes, and assisted living facilities; emergency responders; home health care workers; and employees in ambulatory care settings where suspected or confirmed coronavirus patients are treated, the ETS requires:
- Developing and implementing a COVID-19 plan, including worksite-specific hazard assessments, to mitigate virus spread;
- Limiting and monitoring entry points, and screening and triaging all clients, patients, residents, delivery people and other visitors, and other non-employees entering the setting;
- Developing and implementing policies and procedures to adhere to Standard and Transmission-Based Precautions in accordance with CDC's "Guidelines for Isolation Precautions";
- Providing and ensuring employees wear facemasks, with certain exceptions. Under certain circumstances, N95 respirators or other personal protective equipment must be provided by the employer to employees. Where N95s are used, but not required, employers must follow the new mini respiratory protection program included as 29 CFR 1910.504 (yes, it's actually called a "mini respiratory protection program");
- Following specific protocols when an aerosol-generating procedure is performed on a person with suspected or confirmed COVID-19;
- Physical distancing, i.e., ensuring six feet of distance between workers where feasible. Where physical distance is not feasible, the employer must ensure that the employee is as far apart from all other people as feasible, and must install barriers in fixed work locations outside of direct-care areas;
- Cleaning and disinfection;
- Ventilation;
- Employee screening and notification of COVID-19 exposure;
- Training;
- Recordkeeping; and
- Reporting COVID-19 fatalities and hospitalizations.
The standard also requires covered employees to provide workers with paid time off to get vaccinated and to recover from side effects. Employees who have coronavirus or who may be contagious must work remotely or be separated from others, or they must be provided paid time off, up to $1,400 per week.
Employers must advise employees that employees cannot be retaliated against for exercising rights under the ETS, and employers must implement the ETS with no cost to employees.
In well-defined areas where there is no reasonable expectation that any person will be present with suspected or confirmed coronavirus, the ETS exempts fully vaccinated workers from its masking, distancing, and barrier provisions.
Updated Guidance for Non-Health Care Sectors
OSHA's revised guidance covering non-health care workplaces focuses its risk mitigation protocols on unvaccinated workers. Referring to CDC guidance, OSHA notes that fully vaccinated individuals do not need not take all of the same precautions that unvaccinated people should. Further, OSHA advises that most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure, unless stricter state or local laws apply.
OSHA appears to have finally reached the conclusion that it cannot demonstrate the need and gravity necessary to warrant an all-industry ETS. But employers should expect the updated guidance to serve as fodder for additional citations under OSHA's COVID-19 National Emphasis Program, including pursuant to the General Duty Clause of the OSH Act. Maintaining required protocols and following all applicable guidance - as well as any stricter state and local rules - remains paramount in the enforcement arena.
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