On June 10, 2021, the Occupational Safety and Health Administration (OSHA) issued a long-anticipated Emergency Temporary Standard (ETS) to address the impacts and mitigate the spread of COVID-19 in the workplace. While the Biden Administration initially asked OSHA to consider rolling out an ETS applicable to all or most employers, OSHA limited the ETS to healthcare employers whose employees face the highest COVID-19 hazards as a consequence of treating suspected or confirmed COVID-19 patients.
With some exceptions, the ETS applies to hospitals, nursing homes, assisted living facilities, emergency responders, home healthcare workers, and ambulatory care facilities. The ETS does not apply to healthcare settings where there is a low risk of COVID-19 transmission, such as pharmacies in retail settings, telehealth services provided outside of a direct patient care setting, and well-defined hospital ambulatory care settings or home healthcare settings where all employees are fully vaccinated and all non-employees are screened prior to entry for COVID-19 symptoms. OSHA created a flowchart to assist healthcare employers to determine if they are covered by the ETS.
Healthcare Employers Covered by the ETS
Under the ETS, covered employers must implement various safety measures, including:
- Adopt a COVID-19 plan, which must be a written plan for workplaces with more than 10 employees. The plan must, among other things, create a designated safety coordinator, provide for workplace-specific hazard assessments, and create policies and procedures aimed at minimizing the risk of transmission of COVID-19 to employees.
- Provide and require the use of appropriate PPE, including facemasks and respirators.
- Implement appropriate physical distancing and the use of physical barriers.
- Follow cleaning and disinfecting practices per CDC guidance.
- Ensure HVAC systems provide appropriate ventilation.
- Provide reasonable time off and paid leave for employees to obtain vaccinations and recover from any vaccine side effects.
- Conduct health screenings before each workday and shift and notify employees about potential exposures to COVID-19 in the workplace.
- Remove employees who have COVID-19 or who might be contagious from the workplace, and provide them wages and benefits (subject to wage caps based on employer size) if they are unable to work remotely.
- Provide employee training on workplace policies and procedures for mitigating the risk of COVID-19 transmission.
- Report work-related fatalities from COVID-19 within eight hours of learning about the fatality and within 24 hours of each work-related COVID-19 in-patient hospitalization.
Covered employers must comply with most of these requirements within 14 days after publication of the ETS in the Federal Register. They will have 30 days to comply with the provisions addressing physical barriers, ventilation and training.
Voluntary Guidance for All Other Employers
For all other employers not covered by the ETS, OSHA issued updated (non-mandatory) guidance. In its updated guidance, OSHA states that unless otherwise required by law, most employers no longer need to follow measures to protect fully vaccinated workers. Instead, OSHA recommends that employers focus protections on unvaccinated and otherwise at-risk workers (workers with immunocompromising conditions, cannot get vaccinated, or cannot use face coverings).
For unvaccinated and at-risk workers, OSHA recommends that employers implement/maintain multiple layers of controls that include:
- Separating from the workplace people who have COVID-19 or who have COVID-19 symptoms, as well as unvaccinated employees who have close contact with someone who tested positive.
- Maintaining physical distancing for unvaccinated and otherwise at-risk workers in communal work areas.
- Maintaining ventilation systems.
- Performing routine cleanings.
- Providing unvaccinated and at-risk employees face coverings and other needed PPE.
- Suggesting that unvaccinated customers, visitors and/or guests wear face coverings.
Finally, in its updated guidance, OSHA encourages employers to take steps to make it easier for workers to achieve full vaccination, for example, by granting paid time off for employees to get vaccinated.
Read more about the voluntary guidance for all other employers in Part Two: Mitigating and Preventing the Spread of COVID-19 in the Workplace Among Unvaccinated and At-Risk Employees.