On June 10, 2021, the Occupational Safety and Health Administration (OSHA) issued a long-anticipated Emergency Temporary Standard (ETS) relating to the 2019 novel coronavirus (COVID-19). Despite early expectations that the ETS would apply universally to all workplaces, the new ETS is narrowly tailored to certain employers in the health care industry.
However, OSHA paired its release of the new ETS with an updated version of its informal COVID-19 employer guidance, which more broadly applies to all workplaces.
Since the beginning of the COVID-19 pandemic, OSHA has exclusively relied on existing safety standards to regulate employer conduct during the COVID-19 pandemic. Consequently, all of OSHA's previous employer directives, to date, have taken the form of non-binding informal guidance and recommendations. On Jan. 21, 2021, however, President Joseph Biden issued an Executive Order which directed OSHA to consider the implementation of "any emergency temporary standards on COVID-19" and to implement such standards by March 15, 2021. While no standards were released by March 15, 2021, OSHA continued its efforts to develop an emergency temporary standard, resulting in the June 10, 2021, COVID-19 ETS.
COVID-19 ETS for health care workers
The COVID-19 ETS is narrowly tailored to apply to employers in the health care industry where health care services or health care support services are provided. In conjunction with the ETS, OSHA also released a flow chart to assist employers with determining whether they are subject to the new standard.
While most health care employers subject to today's ETS are already complying with many of the ETS' mandates, there are also many new employer obligations, including, but not limited to, new notice, recordkeeping and training requirements. Accordingly, every health care employer subject to today's ETS must immediately review the specific requirements and implement a plan to ensure compliance. While the ETS is effective immediately upon publication in the Federal Register, most of the employer compliance obligations are effective fourteen days after publication.
For additional information regarding the new ETS, employers should visit: osha.gov/coronavirus/ets.
OSHA updates existing COVID-19 guidance for all workplaces
In conjunction with OSHA's June 10, 2021, COVID-19 ETS, the agency simultaneously released an update to its existing COVID-19 Guidance for all workplaces, which was originally posted on Jan. 29, 2021.
The June 10, 2021, updates to the COVID-19 guidance are specifically focused on encouraging COVID-19 vaccination, protecting unvaccinated and otherwise at-risk workers, and aligning OSHA's existing guidance with the CDC's updated recommendations relating to fully vaccinated people.
Among the vaccine-related updates, the new guidance:
- Encourages employers to grant paid time off for employees to get vaccinated
- Suggests that employers provide unvaccinated and at-risk workers with face coverings or surgical mask at no cost
- States that such workers should continue to wear face coverings while working indoors
- Recommends that employers, especially public-facing workplaces such as retail environments, "suggest" that unvaccinated customers, visitors or guests wear face coverings when entering the workplace
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