In response to President Biden’s Executive Order from January 21, 2021 directing the Occupational Safety and Health Administration (“OSHA”) to take action to reduce the risk that employees may contract COVID-19 in the workplace, on June 10, 2021, OSHA issued an Emergency Temporary Standard (“ETS”) related to COVID-19.
This ETS becomes effective as soon as it is published in Federal Register and employers generally have 14 days to comply (30 days for some provisions), and will last for 6 months. OSHA must issue a permanent rule during this time.
Notably, this ETS is limited to healthcare settings only. Further, the ETS excludes from the definition of “healthcare”:
- the provision of first aid by an employee who is not a licensed healthcare provider;
- the dispensing of prescriptions by pharmacists in retail 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 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;
- 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 present;
- healthcare support services not performed in a healthcare setting (e.g. off-site laundry, off-site medical billing); or
- telehealth services performed outside of a setting where direct patient care occurs.
OSHA makes clear that if an employee is not vaccinated because of a disability or religious based exemption, and the employer has made a reasonable accommodation for the unvaccinated employee that does not expose the employee to COVID-19 hazards, the employer is still exempted from this Rule if it meets one of the above definitions.
The ETS requires employers to develop and implement a COVID-19 plan for each workplace, which must be written if the employer has more than 10 employees. As part of this plan, a COVID-19 “safety coordinator” must be designated for each workplace to implement and monitor the COVID-19 plan. The coordinator has to be identified in the plan and have the authority to ensure compliance with all aspects of the plan. The employer must conduct a workplace-specific hazard assessment to identify potential workplace hazards related to COVID-19, unless employees are fully vaccinated, in which case the employer must put in the COVID-19 plan policies and procedures to determine employees’ vaccination status. The plan must then address any identified hazards and include policies and procedures to: (1) minimize the risk of transmission of COVID-19, effectively communicate and coordinate with other employers if employees of different employers share the same physical location or an employer has at least one employee working in a physical location controlled by another employer; and (2) protect employees who enter into private residences or other physical locations controlled by a person not covered by the OSHA Act. When creating this plan, employers must seek input from non-managerial employees and their representatives. Lastly, the employer must monitor each workplace to ensure ongoing effectiveness and update the plan if needed.
There are other specific requirements related to patient screenings and management, standard and transmission-based precautions, personal protective equipment (PPE), physical distancing, physical barriers, cleaning and disinfection, ventilation, health screening and medical management, vaccination, training, anti-retaliation, recordkeeping, and the reporting of COVID-19 fatalities and hospitalization to OSHA. Lastly, the ETS contains a specific section on the use of respirators in the workplace.
Under certain circumstances, an employer may be required to remove an employee from the workplace due to COVID-19. If the employer has more than 10 employees and the employee complies with specific actions (such as taking a COVID-19 test), then the employer may have to continue providing benefits and wages to the employee during the “removal” period, up to $1,400 per week. However, the employer’s obligation to pay wages is reduced by any benefit the employee is also receiving, such as paid time off or a public benefit. Employers may not take any adverse employment actions against an employee upon their return to the workplace. Additionally, employers must provide employees with paid time off to receive the COVID-19 vaccination and recover if the employee suffers from any side effects of the vaccine.
Because of the rapidly changing severity of COVID-19 across the country, there may be legal challenges to this ETS on the basis that OSHA can only issue emergency standards when a “grave danger” exists, which no longer exists for COVID-19.