The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) has published its long-awaited COVID-19 Emergency Temporary Standard (ETS) in the U.S. Federal Register with an effective date of June 21, 2021.1 Healthcare employers have until July 6, 2021, to implement most of the new requirements and until July 21, 2021, to implement requirements related to ventilation, physical barriers, and training.
Contrary to initial expectations, OSHA limited the application of the ETS only to healthcare employers. For non-healthcare employers, OSHA published updated COVID-19 Guidance, which is not an enforceable regulation but will influence how OSHA will apply and issue violations under the Occupational Safety and Health Act's general duty clause and which in a more general manner recommends many of the same requirements set forth in the ETS.
Many employers have already implemented COVID-19 safety programs similar to the provisions of OSHA's ETS and general industry COVID-19 Guidance. But because OSHA may issue citations based on non-compliance with either the ETS (healthcare employers) or general guidance (general industry), employers are advised to act promptly to confirm whether their policies and practices satisfy the ETS's requirements and, if not, to take the necessary steps as early as possible to bring their workplaces into compliance.
Federal OSHA's Emergency Temporary Standard (ETS)
Who Is a Covered Healthcare Employer for Purposes of the ETS?The federal ETS is applicable in any setting where any employee is providing healthcare services or healthcare support services, except for specified exemptions. OSHA has developed a flowchart for employers to help them determine whether the ETS is applicable.
What Circumstances or Activities Fall Outside the ETS's Scope?
The ETS does not apply to:
- Application of first aid by an employee who is not a licensed healthcare provider;
- Home healthcare settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted;
- Retail pharmacy settings;
- Non-hospital ambulatory care settings where all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter;
- Well-defined hospital ambulatory care settings (such as radiology departments, dialysis centers, or laboratories with separate entrances) where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter; or
- Healthcare support services not performed in a healthcare setting (e.g., off-site laundry, off-site medical billing) or where telehealth services are performed.
Employers remain within the scope of exemptions listed above that require "all employees" being fully vaccinated even if some employees are unvaccinated because of a medical or religious reason as long as the employer has reasonably accommodated the employees in a manner that does not expose the employee to COVID-19 hazards (e.g., telework, working in isolation).
What About State Plans?
California, Washington, Oregon, Alaska, and over a dozen other states and territories are certified by OSHA to adopt and enforce their own state-specific workplace safety and health plan (so-called "state-plan states"). These state-plan states' regulations must be as or more protective than federal regulations.
State plans have until July 21, 2021, to promulgate their own ETS that is as or more protective of workers than the OSHA ETS either by adopting the OSHA ETS, promulgating their own ETS that is as or more protective than the OSHA ETS, or demonstrating to OSHA that the state plan already provides as much or more protection than the OSHA ETS.
ETS Requirements for Healthcare Employers
OSHA has created a fact sheet, summary, and checklist for healthcare employers to utilize to ensure they meet all the requirements. Covered employers should look to the ETS for full details, obligations, and exceptions. Key requirements include:
- Vaccination: Employers must provide paid time off for employees to get vaccinated and recover from any adverse side effects of the vaccine.
- Medical removal protection benefits: When an employee is medically removed from the workplace, in most circumstances, employers with more than 10 employees must continue to provide normal benefits and pay to the employee, up to $1,400 per week, until the employee returns to work. For employers with fewer than 500 employees, employee pay requirements are subject to an early phase-out. The employer's payment may be reduced by the amount of compensation the employee receives from other sources, such as publicly or employer funded sick leave or administrative leave.
- COVID-19 plan: Every ETS covered employer must develop, implement, and communicate a COVID-19 plan for each workplace (including a written plan for employers with more than 10 employees) that includes workplace-specific hazard assessments, a designated workplace safety coordinator, and policies and procedures designed to minimize transmission. OSHA has published a template plan available here.
- Notification of exposure to person with COVID-19: When the employer is notified that a person who has been in the workplace is COVID-19 positive, the employer must notify close contacts, as the CDC defines the term, as well as other employees and employers who were in the well-defined workplace as the COVID-19-positive person within 24 hours, unless certain exceptions apply. A sample notification was published by OSHA.
- Patient screening and management: Employers must limit and monitor points of entry and screen all visitors (including patients and vendors) for COVID-19.
- Standard and transmission-based precautions: Employers must develop and implement policies and procedures to adhere to Standard and Transmission-Based Precautions in accordance with CDC's "Guidelines for Isolation Precautions."
- Personal Protective Equipment (PPE): Employers must provide and ensure employees wear facemasks and all other necessary PPE.
- Aerosol-generating procedures on a person with suspected or confirmed COVID-19: When an aerosol-generating procedure is performed on a person with suspected or confirmed COVID-19, the employer must limit the number of employees present during the procedure to essential personnel only and clean and disinfect the surfaces and equipment in the room where the procedure was performed.
- Physical distancing: Employers must ensure employees are separated from others by at least six feet unless all employees are vaccinated and there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present. If physical distancing is not feasible, the employer must ensure employees remain as separated as possible.
- Physical barriers: At each fixed work location in non-patient care areas, employers must install cleanable or disposable solid barriers where an employee cannot be physically separated from others by at least six feet (e.g., check-in desks, triage, hospital pharmacy windows, bill payment).
- Cleaning and disinfection: Employers must clean high-touch surfaces and equipment and patient care areas, resident rooms, and medical devices and equipment pursuant to CDC guidance.
- Ventilation: Employers must ensure the HVAC systems within their control are used per the manufacturer's instructions, are regularly serviced, and use air filters with a Minimum Efficiency Reporting Value (MERV) 13 or higher or, if not compatible, the highest compatible filtering efficiency for the HVAC system.
- Health screening and medical management (employee screening): The employer must screen (either by self-monitoring reporting or screening by the employer) each employee before each shift. The employer must require each employee to notify the employer when the employee: (1) is COVID-19 positive; (2) has been told by a healthcare provider that they are suspected to have COVID-19; or (3) experiences specific COVID-19 symptoms with no other explanation.
- Medical removal from the workplace: If an employer is notified that an employee tests positive for COVID-19, is suspected of having COVID-19, or is experiencing certain symptoms, the employer must immediately remove the employee from the workplace. Flowcharts for employers to utilize for notification, removal, and return to work have been published by OSHA here.
- Training: Employers must train employees about COVID-19 (such as how it is spread, signs and symptoms, and risk factors for severe illness) and the employer's COVID-19 plan, policies and procedures. OSHA published a sample training PowerPoint available here.
- Recordkeeping: Employers with more than 10 employees must retain all versions of their COVID-19 plan and establish and maintain a COVID-19 log to record each instance identified by the employer in which an employee is COVID-19 positive, regardless of whether the exposure occurred at work. The log must be available upon request to employees (with personally identifying information removed regarding other employees).
- Anti-retaliation: Employers must notify all employees of their rights and protections under the ETS and that they are protected from any adverse action for exercising their rights.
- Reporting COVID-19 fatalities and hospitalizations to OSHA: The employer must report to OSHA each work-related COVID-19 fatality within eight hours of the employer learning about the fatality, and each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about it. Information on how to report to OSHA is available here.
Federal OSHA's New COVID-19 Guidance
What Do Non-Healthcare Employers Need To Do?
OSHA's new COVID-19 Guidance applies to all employers not covered by the new federal ETS. This new guidance indicates what OSHA will expect from all non-healthcare employers and that an employer's failure to comply may result in OSHA issuing a general duty clause violation alleging that the employer failed to keep the workplace free from recognized, serious health and safety hazards.
A key change from OSHA's prior COVID-19 Guidance is the focus solely on protecting unvaccinated and "at-risk" employees.2 Per OSHA's COVID-19 Guidance:
Except for workplace settings covered by OSHA's ETS and mask requirements for public transportation, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated. Employers should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces.
OSHA's COVID-19 Guidance includes recommended steps employers should implement to protect unvaccinated and at-risk workers, and to prevent the spread of COVID-19. These are similar to many of the requirements in the OSHA ETS and include:
- Granting paid time off for employees to get vaccinated;
- Instructing all employees to stay home if they test positive or present symptoms of COVID-19, and also instructing unvaccinated employees to stay home if they had close contact with someone who tested positive;
- Implementing physical distancing for unvaccinated and at-risk employees in communal work areas;
- Providing unvaccinated or at-risk employees with face coverings;
- Providing employee training on the employer's COVID-19 policies and procedures;
- Promoting unvaccinated visitors to wear face coverings;
- Maintaining ventilation systems, including installing MERV-13 or better air filters, and using HEPA filters in high-occupancy or limited ventilation spaces;
- Following CDC cleaning and disinfection recommendations within 24-hours of any suspected or confirmed COVID-19 case;
- Recording and reporting work-related COVID-19 infections and deaths;
- Prohibit retaliation against employees voicing concerns about and COVID-19-related hazards; and
- Continuing to follow all other applicable OSHA standards.
Does the New Guidance Apply to State Plans?
Unlike with the federal ETS, state-plan states are under no obligation to promulgate guidance that is as or more protective to employees as OSHA's COVID-19 Guidance. Nevertheless, state-plan enforcement agencies may rely on OSHA's COVID-19 Guidance as support for an alleged violation of the state-plan equivalent of OSHA's general duty clause or specific health and safety standards.
Employers in state-plan states should continue to follow state and locally applicable COVID-19 rules and regulations and evaluate on an individualized basis whether implementing further safeguards based on OSHA's COVID-19 Guidance is appropriate.
1 Federal OSHA's ETS and guidance is not to be confused with emergency orders, standards, and guidance promulgated by separate state-plan agencies, such as Cal/OSHA's ETS.
2 "At-risk workers" includes employees who have underlying medical conditions that may reduce the effectiveness of a COVID-19 vaccine.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.