On June 10, OSHA published its COVID-19 emergency temporary standard (“ETS”). While the ETS focuses specifically on the healthcare industry, it includes separate updated guidance for other kinds of employers. The ETS publication includes a flowchart to help determine what entities ETS covers. It is a very useful tool.
The Chart
https://www.osha.gov/sites/default/files/publications/OSHA4125.pdf.
The following is a summary of the ETS, its coverage, and requirements. We encourage employers to review the document and flowchart directly to determine coverage and any necessary steps.
Healthcare Employers
The ETS applies to all settings where any employee provides healthcare services or healthcare support services, such as hospitals, nursing homes, assisted living facilities, home healthcare workers, and more. Several specific exceptions meet certain conditions in terms of vaccination of employees and screening of non-employees. All employers should review the ETS before simply making assumptions about coverage or non-coverage.
For covered employers, the ETS includes numerous requirements including many items likely in place for some time. These include developing and implementing a COVID-19 plan, including worksite-specific hazard assessments and communication to employees. Limit and monitor entry points where direct patient care is provided. Screen and triage all clients, patients, residents, delivery people, and other visitors, and other non-employees entering the setting.
Developing and implementing policies and procedures to adhere to Standard and Transmission-Based Precautions in accordance with CDC’s “Guidelines for Isolation Precautions.” Provide and ensure employees wear facemasks, with certain exceptions. Practicing physical distancing, cleaning, disinfection, and ventilation. Health screening through medical management, training, vaccination, recordkeeping, and reporting COVID-19 fatalities and hospitalizations.
It reiterates that face coverings should still be worn even after vaccination, given the uncertainties as to how vaccination affects transmissibility. The ETS also says that unvaccinated customers, visitors, and guests wear face coverings around unvaccinated/at-risk employees in the workplace. OSHA suggests posting a notice to this effect.
The ETS requires that employers advise employees that retaliation is prohibited. There are several listed anti-retaliation provisions. We recommend that serve as the guidance for the language conveyed to employees.
One important requirement in the ETS is that covered employers must provide workers with “reasonable time and paid time (e.g., paid sick leave, administrative leave) to each employee for vaccination and any side effects experienced following vaccination.”
Non-Healthcare Employers
Separate guidance was issued for employers in non-healthcare settings. Its stated intent is to “Help employers and workers not covered by OSHA’s COVID-19 Emergency Temporary Standard (ETS) to identify COVID-19 exposure risks to workers who are unvaccinated or otherwise at-risk to help them take appropriate steps to prevent exposure and infection.”
The guidance referenced the CDC’s Interim Public Health Recommendations for Fully Vaccinated People. It reiterated that “Unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect fully vaccinated workers not otherwise at-risk from COVID-19 exposure. This guidance focuses only on protecting unvaccinated or otherwise at-risk workers in their workplaces or well-defined portions of workplaces.”
The guidance contains recommendations and descriptions of mandatory safety and health standards, “The latter of which, clearly labeled throughout, as mandatory OSHA standards.”
OSHA says that the recommendations are advisory in nature and informational in content. With the intent of assisting employers in providing a safe, healthful workplace free from recognized hazards causing or likely to cause death or serious physical harm, it seems apparent that a thorough review of the standards is necessary. Pay special attention to those standards designed as mandatory.
Employers should review the ETS carefully to determine applicability to their particular workplace and implement any necessary changes. This is of paramount importance to ensure compliance with OSHA’s general duty clause.
Anne-Marie Storey, Esq.
Rudman Winchell
207-947-4501