On June 10, 2021, OSHA published on its website a 40+ page Emergency Temporary Standard (ETS) limited to employers in the healthcare sector. President Biden issued an executive order in January ordering the Department of Labor (DOL) to consider issuing an ETS for businesses to follow during the pandemic, and, if DOL deemed one necessary, to issue an ETS by March 15. The delay of almost three months has seen dramatic changes including millions of people vaccinated, states lifting restrictions, and the CDC loosening restrictions for fully vaccinated people.
OSHA only has the authority to issue an ETS without utilizing the regular rulemaking process if it determines two requirements are met: (1) workers are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful, or from new hazards; and (2) an ETS is necessary to protect workers from that danger. Critics of issuing an ETS have argued that with each passing day it is more unlikely that DOL can demonstrate that COVID-19 is presently a grave danger to workers or that an ETS is necessary to protect them.
An ETS serves as a proposed permanent standard. It is then subject to the usual procedure for adopting a permanent standard except that a final ruling should be made within six months. The validity of an ETS may be challenged in a U.S. Court of Appeals. It is widely expected that this ETS will be challenged in court.
The ETS is effective immediately upon publication in the Federal Register. Covered employers must comply with most provisions within 14 days, and with provisions involving physical barriers, ventilation, and training within 30 days. OSHA will use its enforcement discretion for employers who are making a good faith effort to comply with the ETS.
OSHA created a flowchart to assist healthcare employers to determine if their workplace is covered by the ETS. The flowchart is available here. OSHA also issued a Fact Sheet summarizing the ETS, available here. A full copy of the ETS, which has not been published in the Federal Register, can be accessed by clicking here.
Among the requirements of the ETS are: that covered employers develop and implement a COVID-19 plan (in writing if more than 10 employees) which includes a designated safety coordinator; that employers provide some employees with N95 respirators or other personal protective equipment; that employers provide workers with paid time off to get vaccinated and to recover from side effects; and that employees who have COVID-19 or who might be contagious must work remotely or otherwise be separated from other workers if possible, or be given paid time off up to $1,400 per week.
OSHA also issued an updated guidance for employers not covered by the ETS focused on protecting unvaccinated and otherwise at-risk workers. These guidelines are voluntary. However, under the Occupational Safety and Health Act employers are responsible for providing a safe and healthful workplace for their employees. Under the general duty clause, employers must furnish workplaces which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to their employees.
The guidance suggests that employers consider implementing multi-layered protections including:
- Grant paid time off for employees to get vaccinated.
- Instruct any workers who are infected, unvaccinated workers who have close contact with someone who tested positive for COVID-19, and all workers with COVID-19 symptoms to stay home from work.
- Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas.
- Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks unless their work task requires a respirator or other PPE.
- Educate and train workers on COVID-19 policies and procedures.
- Suggest that unvaccinated customers, visitors, or guests wear face coverings.
- Maintain ventilation systems.
- Perform routine cleaning and disinfection.
- Record and report COVID-19 infections and deaths as required by OSHA rules.
- Implement protections from retaliation.
- Follow other applicable mandatory OSHA standards.
A copy of the updated guidance can be accessed here.
The healthcare ETS is complex and onerous. Ford & Harrison will be conducting a webinar to provide additional guidance to our healthcare clients regarding their new obligations under the ETS. If you have not signed up to receive our webinar invitations and would like to do so, please click here.
If you have any questions regarding this Alert, please contact the author, Rick Warren, rwarren@fordharrison.com, a partner in our Atlanta office, who is a member of the firm’s Coronavirus Taskforce and regularly handles workplace safety and OSHA matters. Of course, you can also contact the FordHarrison attorney with whom you usually work.