On June 10, 2021, OSHA issued an Emergency Temporary Standard (“ETS”) to ensure uniform protection for employees within the healthcare industry from exposure to COVID-19. The ETS is effective immediately upon publication in the Federal Register. Employers must comply with most provisions within 14 days, and with provisions involving physical barriers, ventilation, and training within 30 days.

This Federal standard covers healthcare and healthcare support employees working in settings where patients with suspected or confirmed COVID-19 received treatment (e.g., hospitals, nursing homes, assisted living facilities, emergency responders, home healthcare workers, ambulatory care facilities), or where patients with undiagnosed illnesses receive treatment (e.g., emergency rooms or urgent care centers).

The key requirements of the ETS include, among other things:

• Ensuring employers develop and implement a COVID-19 plan;
• Conducting patient screening and management, as well as health screening and medical management for employees;
• Developing and implementing standard and transmission-based precautions, as well as cleaning and disinfection practices based on CDC guidance;
• Providing and ensuring each employee wears personal protective equipment, including face masks and respirator use when necessary. However, fully vaccinated workers are exempt 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;”
• Implementing physical distancing protocols to ensure people stay at least six feet apart when indoors;
• Installing physical barriers in fixed work locations where individuals cannot remain six feet apart;
• Providing reasonable time and paid leave for vaccinations and vaccine side effects;
• Adhering to recordkeeping and reporting requirements; and
• Maintaining anti-retaliation policies.

The ETS is the first Federal OSHA standard that specifically addresses COVID-19.  It emanates from President Biden’s January 21, 2021 Executive Order, which declared that protecting the health and safety of workers is a “national priority and a moral imperative.”  In promulgating the new ETS, OSHA has determined that the existing standards and regulations, including the General Duty clause, are insufficient to fully address the COVID-19 hazards of healthcare employees.

OSHA also issued new Guidelines for mitigating and preventing the spread of COVID-19 in the workplace. Although not a standard, these updated guidelines are intended to assist employers and employees not covered by the ETS to reduce the exposure of COVID-19 for employees who are unvaccinated or otherwise at risk. The guidelines encourage employers to implement the following procedures to protect unvaccinated or otherwise at-risk employees and mitigate the spread of COVID-19:

• Granting paid time off for employees to get vaccinated;
• Instructing all employees who are infected with or showing systems of COVID-19, as well as unvaccinated employees who have had close contact with someone who tested positive for COVID-19, to stay home from work;
• Implementing physical distancing in communal areas, and providing employees with face coverings or surgical masks, or use of a respirator, if necessary;
• Adopting protocols for customers, visitors, or guests to wear face masks;
• Performing routine cleaning and disinfections, as well as maintaining ventilation systems;
• Complying with recording and reporting COVID-19 infections and deaths; and
• Protecting against retaliation toward employees who report COVID-19 safety concerns.

For more information about our OSHA practice at Nilan Johnson Lewis, click here. Or contact Sheila Kerwin or Allyson Petersen Francis.