On Thursday, June 10, 2021, the Occupational Safety & Health Administration (OSHA) released its much-anticipated COVID-19 Emergency Temporary Standard (ETS), nearly five months after President Biden issued an executive order directing the agency to pursue an emergency standard to reduce the risk that workers may contract COVID-19 in the workplace. Notably, while the executive order contemplated the issuance of a blanket standard applicable to workers across sectors, OSHA recently changed tack, and the resulting ETS requirements will only apply to the healthcare industry, to be supplemented by forthcoming voluntary guidance for other industries.
According to OSHA, the ETS is aimed at protecting workers in healthcare settings where suspected or confirmed COVID-19 patients are treated, including but not limited to employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in certain ambulatory care facilities. Examples of healthcare settings not covered include hospital or 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; home health care settings where all employees are fully vaccinated and non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not present; and places where only healthcare support services are performed such as off-site laundry or medical billing. If a healthcare setting is embedded within a non-healthcare setting, such as a walk-in clinic in a retail setting, the ETS only applies to the healthcare setting. OSHA also issued a flow-chart to provide guidance for those unsure if their workplace is covered by the ETS.
In substance, the ETS requires covered employers to develop and implement effective COVID-19 plans through multiple overlapping controls. Among other requirements, all of which must be implemented at no cost to employees, the ETS will mandate that employers:
- Develop and implement a COVID-19 plan (in writing if more than 10 employees) with various criteria, including workplace-specific hazard assessments. In developing the plan, 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.
- Screen and triage patients and visitors; limit and monitor points of entry to direct patient care settings; and implement patient management strategies.
- Provide adequate personal protective equipment (PPE) for employees, including respirators for exposure to people with suspected or confirmed COVID-19, with various sub-standards applicable when a respirator program is required, as well as aerosol-generating procedures to be used on persons who may have COVID-19.
- Follow CDC guidelines for cleaning and disinfecting surfaces and equipment in patient care areas, resident rooms, and for medical devices and equipment.
- Ensure that HVAC systems meet certain efficiency standards.
- Implement indoor physical distancing requirements and provide physical barriers for certain non-patient care areas.
- Conduct daily health screenings and properly manage notice and removal procedures applicable when an employee may be COVID-19 positive, including, for employers with over 10 employees, providing medical removal protection benefits akin to the standard for workers who must quarantine.
- Provide reasonable time and paid leave for vaccinations and vaccine side effects.
The ETS contains anti-retaliation provisions, which requires employers to inform employees that they have a right to the protections required by the ETS and employers are prohibited from discharging or discriminating against employees for exercising their rights to those protections.
The ETS exempts fully vaccinated workers from masking, distancing, and barrier requirements when in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.
As to its effective date, the ETS will become effective upon publication in the Federal Register and then remain in place for up to six months; however, the expected timeline for official publication is unclear.