On June 21, 2021, the COVID-19 Emergency Temporary Standards (“ETS”) issued by the Occupational Safety and Health Administration (“OSHA”) went into effect. These mandatory standards apply to healthcare settings and protect employees in hospitals, nursing homes, assisted living facilities, emergency responders, home healthcare, ambulatory care facilities, and settings where employees provide healthcare/support services. The ETS contain comprehensive protections for healthcare workers, acknowledging that they face the highest health and safety risks associated with COVID-19.
The ETS imposes various planning, cleaning, screening, and safety requirements on healthcare employers. Some of the requirements include:
Developing a COVID-19 plan that includes designation of a safety coordinator, employee involvement, hazard assessment, and policies to mitigate transmission risks;
Screening and managing patients and non-employee visitors through designated points of entry;
Implementing standard and transmission-based precautions based on CDC guidance;
Distributing and ensuring employees wear required personal protective equipment (“PPE”) ;
Revising aerosol-generating procedures on a person with suspected or confirmed COVID-19 to ensure minimal risk of transmission;
Continuing implementation of physical distancing and barriers;
Ensuring proper ventilation systems are in place and routinely inspected and maintained;
Daily employee health screening;
Employee notification of COVID-19 positivity in the workplace;
Removing COVID-19 positive employees from the workplace;
Providing paid leave to employees for vaccination and recovery from any adverse vaccine reactions;
Training employees on COVID-19 facts, policies/procedures, rights and protections under OSHA, process for raising health/safety concerns, and anti-retaliation protections;
Implementing the ETS requirements at no cost to employees; and
Recordkeeping and reporting requirements for workplace-related COVID-19 positivity, hospitalizations, and fatalities.
The ETS does carve out some exceptions to these new standards. Some requirements, such as masking, distancing, and barriers are not required for vaccinated employees in certain defined areas. Additionally, some hospital ambulatory care settings are exempt from ETS requirements if certain pre-requisites/conditions are met.
Healthcare employers must ensure compliance with most of the above requirements by July 6, 2021, and for physical barriers, ventilation, and training no later than July 21, 2021.
For non-healthcare employers, OSHA updated its workplace guidance on June 10, 2021. The updated guidance focuses protections on unvaccinated and at-risk employees in non-healthcare workplace settings, with relaxation of special protections for vaccinated employees/well-defined workplace areas. The updated guidance largely mirrors the requirements of the ETS, however, the updated guidance is only recommended (as opposed to mandatory).
The updated guidance recommends that employers take the following actions to protect unvaccinated and at-risk employees from COVID-19:
Grant paid leave for vaccination;
Instruct employees to stay home if they have close contact with a COVID-positive individual or exhibit symptoms themselves;
Implement physical distancing through barriers, telework, flexible work hours, staggered shifts, use of technology for meetings, etc.;
Provide PPE, face coverings, and/or respirators;
Ensure proper ventilation systems are in place and routinely inspected and maintained;
Perform routine cleaning and disinfection in compliance with mandatory OSHA standards and CDC guidance when a suspected or confirmed COVID-19 case enters the workplace;
Recordkeeping and reporting requirements for workplace-related COVID-19 positivity, hospitalizations, and fatalities in accordance with mandatory OSHA requirements; and
Train employees on COVID-19 facts, policies/procedures, rights and protections under OSHA, process for raising health/safety concerns, and anti-retaliation protections.
In addition to these general recommendations, OSHA has added additional recommendations for “higher-risk” workplaces where unvaccinated and at-risk employees have close contact, for a long duration, in shared areas (such as manufacturing, meat/poultry/seafood processing, and high volume retail and grocery). Some additional steps that employers should take to reduce the risk of infection in high-risk workplaces include:
Staggered break times or creating additional designated break areas;
Staggered shift arrival and departure times;
Cues to remind of social distancing and hygiene requirements (i.e., floor markers, signs); and
Improving ventilation in accordance with CDC and OSHA guidance.
As states begin to reopen, employers should be cognizant of their duties to provide employees with safe and healthy workplaces, and to comply with all applicable federal, state, and local requirements.
Our team has extensive experience in counseling businesses on labor and employment matters and regulatory compliance. If you have any questions about this Legal Briefing and whether your business meets OSHA requirements, please contact any member of the Firm at (585) 730-4773. Please note that any embedded links to other documents may expire in the future.
This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2021 Law Offices of Pullano & Farrow PLLC