Health Care and Employment Alert: OSHA's Emergency Temporary Standard for Health Care Employers and COVID-19 Guidance for Non-Health Care Employers

As expected, the Occupational Safety and Health Administration (OSHA) is becoming increasingly more active on the COVID-19 front. On June 10, 2021, OSHA announced the issuance of an emergency temporary standard (ETS) to protect health care workers from COVID-19. The ETS will go into effect immediately upon publication in the Federal Register, which should occur imminently. In addition to the ETS, OSHA has issued guidance to all other employers on mitigating and preventing the spread of COVID-19 in the workplace, particularly as it relates to non-vaccinated and at-risk employees.

Emergency Temporary Standard For Health Care Workers

According to the OSHA news release, the ETS “is aimed at protecting workers facing the highest coronavirus hazards—those working in health care settings where suspected or confirmed coronavirus patients are treated. This includes employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home health care workers; and employees in ambulatory care settings where suspected or confirmed coronavirus patients are treated.” Like virtually all OSHA standards, the ETS employs a multi-layered approach to protecting workers covered by the standard, which includes requiring employers to:

• Develop and implement a COVID-19 written plan that includes a designated safety coordinator charged with ensuring compliance;
• Implement patient screening and management that includes limiting and monitoring points of entry to settings where direct care is provided and screening patients, visitors, and non-employees;
• Provide and ensure the use of personal protective equipment as needed;
• Limit the number of employees exposed to aerosol-generating procedures on persons with suspected/confirmed COVID-19;
• Create physical distancing and barriers;
• Clean and disinfect areas;
• Provide employee training on COVID-19 transmission, tasks, and situations in the workplace that could result in infection, and on relevant policies and procedures; and
• Ensure employer-owned HVAC systems are used in accordance with manufacturer’s instructions and design specifications and that air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher if the system allows for it.

Notably, the ETS exempts fully vaccinated workers from the masking, distancing, and barrier requirements in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present. 

Employers must be in compliance with all provisions of the ETS within 14 days after publication of the ETS in the Federal Register, except for the requirements regarding physical barriers, ventilation, and employee training. Employers must comply with those provisions within 30 days after publication of the ETS in the Federal Register.

The ETS is very detailed, and there are many requirements not addressed in this article. However, OSHA has published a fact sheet summarizing the ETS and FAQs, which are linked below. These are very informative and will assist employers in complying with the ETS.

• https://www.osha.gov/sites/default/files/publications/OSHA4123.pdf
• https://www.osha.gov/coronavirus/ets/faqs

OSHA Guidance In Protecting Unvaccinated or At-Risk Workers

At the same time OSHA issued the ETS for health care workers, it also issued guidance for employers as recommendations to use in protecting unvaccinated or otherwise at-risk workers, such as workers who have had prior transplants, as well as employees that have had prolonged use of steroids or other immune-weaking medications. The employer recommendations include:

• Giving paid time off for employees to get vaccinated;
• Instructing workers who are infected, unvaccinated, who had close contact with someone who has been infected, and all other workers who are symptomatic to stay home;
• Implementing physical distancing strategies for unvaccinated or at-risk employees in all communal areas;
• Providing face coverings/masks for all unvaccinated or at-risk employees;
• Training employees on your COVID-19 policies and procedures;
• Maintaining ventilation systems; and
• Performing routine cleaning and disinfection.

The OSHA guidance relating to unvaccinated and at-risk workers is entirely consistent with CDC guidance on the same subject.

In conclusion, it is critical for health care providers to get up to speed with the ETS and take steps now to comply with its requirements. One would expect that OSHA will focus its resources to enforcement in this area. As workers continue to return to work, employers outside of health care should continue to implement strategies that protect unvaccinated or at-risk employees.