As we previously announced, on June 10, 2021 the U.S. Department of Labor issued long anticipated emergency workplace guidelines. The Emergency Temporary Standard is applicable to health care entities such as hospitals, nursing homes, and assisted living facilities. The full regulation text may be found here. The new rules do not apply to dispensing of prescriptions by pharmacists in retail settings, home healthcare settings where all employees are fully vaccinated and all non-employees are screened, healthcare support services not performed in a healthcare setting, and non-hospital ambulatory settings. The Occupational Safety and Health Administration (“OSHA”) also released a flow chart to determine whether a workplace is covered by the COVID-19 Healthcare ETS. The ETS provides that certain health care employers must have a COVID-19 plan to reduce the likelihood of transmission in the workplace. This includes guidance such as providing patient screening and management, having policies and procedures to adhere to precautions aligned with CDC guidelines, maintaining physical distancing, having appropriate health screening and medical management, providing time off for vaccinations, and having standard practices for cleaning and disinfection. Additional information may be found here.
The Department of Labor also updated their Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. The guidance now provides 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 their fully vaccinated workers who are 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).”
To protect unvaccinated or otherwise at-risk workers, the guidance recommends:
- Granting paid time off for employees to get vaccinated;
- Instructing any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work;
- Implementing 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 your COVID-19 policies and procedures using accessible formats and in language they understand;
- 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;
- Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19 related hazards;
- Follow other mandatory OSHA standards.
Norton Rose Fulbright lawyers will continue to provide relevant updates on the COVID-19 PHE on the Health Law Pulse.