Update: The Emergency Temporary Standard was published in the Federal Register on June 21, 2021 as an interim final rule.
On June 10, 2021, the U.S. Occupational Safety and Health Administration (OSHA) released the first nationwide emergency workplace safety rule per President Joe Biden’s January executive order directing the agency to pursue an emergency temporary standard for COVID-19. The newly published emergency temporary standard (ETS) applies only to employers in the healthcare industry, and requires such employers to protect their workers against on-the-job COVID-19 infections. Other employers should consult OSHA’s separately published guidance applicable to workers not covered by the ETS, also published on June 10 and covered in our separate blog post.
Which workplaces are covered?
The ETS applies to any workplace where any employee provides healthcare services or healthcare support services. Under the ETS, “healthcare services” are services provided to individuals by professional healthcare practitioners for the purpose of promoting, maintaining, monitoring, or restoring health; and “healthcare support services” are services that facilitate the provision of healthcare services.
The ETS notably does not apply to certain delineated services or certain care settings where (1) all employees are vaccinated, (2) all non-employees are screened before entry, and (3) all people with suspected or confirmed COVID-19 are barred from entry. OSHA has published a flow chart to assist employers who are unsure whether the ETS applies to them.
What are the requirements for covered workplaces?
Employers must comply with the requirements of the ETS in healthcare settings, which include the following:
- Establish a COVID-19 plan to protect employees, designate a workplace COVID-19 safety coordinator to monitor and implement the plan, and conduct a workplace hazard assessment;
- Screen all employees before each work day and shift, screen all non-employees entering the workplace setting, and limit and monitor points of entry to the workplace;
- Provide and ensure that employees wear facemasks, as well as additional personal protective equipment (PPE) when employees are exposed to a suspected or confirmed case of COVID-19;
- Where possible, ensure that each employee is separated from all other people by at least six feet when indoors;
- Install physical barriers at fixed work locations outside of direct patient care areas where each employee is not separated from all other people by at least six feet;
- Follow standard practices for cleaning and disinfection of surfaces and equipment in accordance with CDC recommendations and guidelines;
- Support COVID-19 vaccination for each employee by providing reasonable time and paid leave to each employee for both vaccinations and any subsequent side effects;
- Train employees on COVID-19 and on the employer’s policies and procedures related to COVID-19; and
- Retain all versions of the COVID-19 plan required under the ETS, establish and maintain a COVID-19 log to record each instance identified by the employer in which an employee is COVID-19 positive, and report each work-related COVID-19 fatality to OSHA within eight hours of learning of the fatality.
Does the ETS allow all fully-vaccinated individuals in healthcare settings to remove masks and cease social distancing?
Not in all circumstances. Masking, social distancing, and other requirements of the ETS apply unless an exception applies. OSHA discusses these exceptions on its FAQ page (and describes them in the flow chart referenced above):
The [ETS] generally applies in settings where any employee provides healthcare services or healthcare support services, even in cases where all or some employees are fully vaccinated. . . . [However,] one or more exceptions to the ETS might apply. Some exceptions to the standard are not conditioned on employee vaccination. For example, the ETS does not apply to non-hospital ambulatory care settings where all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings.
There are other exceptions that specifically address employee vaccination. For example, the ETS does not apply to well-defined hospital ambulatory care settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings (paragraph (a)(2)(iv)). As another example, the ETS also does not apply to home healthcare settings where all employees are fully vaccinated and all non-employees are screened prior to entry, and people with suspected or confirmed COVID-19 are not present (paragraph (a)(2)(v)). As a final example, in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present, the requirements in the ETS for personal protective equipment (PPE), physical distancing, and physical barriers (paragraphs (f), (h), and (i), respectively) do not apply to employees who are fully vaccinated (paragraph (a)(4)).
OSHA notes that, in order for the employer to be exempt from providing controls in a well-defined area under paragraph (a)(4) of the ETS based on employees’ fully vaccinated status, the COVID-19 plan must include policies and procedures to determine employees’ vaccination status. OSHA also notes that fully vaccinated means [two] weeks or more following the final dose of a COVID-19 vaccine.
When does the ETS take effect?
The ETS will take effect on the date it is published in the Federal Register. Employers must implement all of the ETS provisions as soon as possible, but no later than 14 days after the date of publication in the Federal Register with the limited exceptions that the employer requirements concerning physical barriers, ventilation, and training (paragraphs (i), (k), and (n) of the ETS) must be implemented within 30 days of the date of publication.
How should covered employers respond to the ETS?
Covered employers should take immediate steps to comply with the ETS. Whereas OSHA’s previous standards related to COVID-19 safety were advisory and generally enforceable only through OSHA’s General Duty Clause requiring employers to maintain safe workplaces (as is OSHA’s new guidance for non-healthcare settings), the ETS is itself legally binding and will facilitate OSHA’s enforcement efforts. Employers should also ensure that their COVID-19 safety programs comply with all applicable state and local standards.
For more information about OSHA requirements or other issues related to the COVID-19 vaccine, please contact one of the authors of this article or the Hogan Lovells lawyer with whom you work.