OSHA has finally released its long-delayed Emergency Temporary Standard (ETS), its first and only exercise of rule-making authority in connection with the pandemic. Second, it has released an Updated Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. Below is a summary of each.
The COVID-19 Emergency Temporary Standard
The ETS is limited to employers in certain healthcare settings, and applies to “all settings where any employee provides healthcare services or healthcare support services.” Since it is critical to understand which workplaces are covered by the ETS, let’s examine these more closely here:
“Healthcare services” means services provided to individuals by professional healthcare practitioners to maintain, monitor, and restore health. Healthcare services include hospitalization, long-term care, ambulatory care, home health and hospice care, emergency medical response and patient transport, and autopsies. This is not an exclusive list.
“Healthcare support services” are services that facilitate the provision of healthcare services. Examples include patient intake/admission, patient food services, equipment and facility maintenance, housekeeping and laundry, medical waste handling, and medical equipment cleaning/reprocessing.
ETS Workplace Exceptions
The following exceptions, found in Section (a)(2), help to somewhat narrow the workplaces that must meet the ETS. The ETS does not apply to:
(i) Provision of first aid by an employee who is not a licensed healthcare provider
(ii) Dispensing prescription drugs by a pharmacist in a retail setting
(iii) Non-hospital ambulatory care settings where all non-employees are screened prior to entry, and people with confirmed or suspected COVID-19 are not permitted to enter
(iv) Well-defined hospital ambulatory care settings where all employees are fully vaccinated, all non-employees are screened prior to entry, and people with confirmed or suspected COVID-19 are not permitted to enter
(v) Home healthcare settings where all employees are fully vaccinated, all non-employees are screened prior to entry, and people with confirmed or suspected COVID-19 are not permitted to enter
(vi) Healthcare support services not performed in a healthcare setting (such as off-site laundry or off-site billing)
(vii) Telehealth services performed outside of a setting where direct patient care occurs
The ETS clarifies that with respect to (iv) and (v) – the only exceptions that require fully vaccinated employees – when an employer accommodates an employee who cannot be vaccinated in a manner that does not expose the employee to COVID-19 hazards, the workplace would still enjoy the exception to the ETS, despite the presence of the unvaccinated employee.
When healthcare services are embedded within a non-healthcare setting, such as a medical clinic in a manufacturing facility or a walk-in clinic in a retail area, the ETS applies only to the embedded healthcare setting. Finally, as described below, there are limited exceptions to the PPE, physical distancing, and physical barrier requirements of the ETS.
OSHA has prepared a one-page guidance on which workplaces fall within the ETS.
For workplaces providing healthcare services – including through an on-site employee health clinic – the ETS catalogues in great detail the measures employers are required to take. The highlights:
- Every covered employer with more than 10 employees must have a written COVID-19 plan for each workplace. Substantially similar workplaces may have the same plan, but all local variations must be spelled out. The plan must include a COVID-19 hazard assessment.
- Face mask, physical distancing, and physical barrier requirements must remain in place. However, employers may eliminate them for fully vaccinated employees working in areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present. However, to take advantage of this relaxation, the employer’s COVID-19 plan must include policies and procedures to determine employees’ vaccination status.
- Employers must continue with cleaning, disinfecting, and health screening (which may be done through self-monitoring).
- Employers must continue to follow CDC guidelines for diagnosed and symptomatic employees, regarding removal from and return to the workplace.
- A specific set of requirements apply when employees, patients, residents, vendors, contractors, customers, delivery people, and other visitors have been exposed to someone who is COVID-19 positive.
- Record-keeping specific to COVID-19 including retention of all plans and a COVID-19 log.
- Reporting work-related COVID-19 fatalities and hospitalizations (not a new requirement).
Although the ETS is obviously both emergency and temporary, it is considered a final rule and has the force of law. Noncompliance subjects employers to complaints, inspections, citations, fines, and potential debarment as with any other OSHA enforcement action.
OSHA’s Updated Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace
Unlike the ETS, OSHA’s updated guidance is just that – guidance, not law. It tells employers to follow CDC’s Interim Public Health Recommendations for Fully Vaccinated People, with which most employers are already familiar: fully vaccinated people (other than those who are still at risk due to immunocompromising conditions) do not need to wear masks or observe physical distancing other than as may be required by specific federal, state, or local laws or workplace rules, or in certain transportation settings.
The primary focus of the Guidance is to advise employers on how to protect unvaccinated or otherwise at-risk workers. “Otherwise at-risk workers” are defined as individuals with compromising conditions as described on the CDC‘s page describing Vaccines for People with Underlying Medical Conditions. This group includes people who cannot get vaccinated, who cannot be fully protected by vaccination, and who cannot wear face coverings. Most people meeting these criteria are likely entitled to a reasonable accommodation under the ADA, and the Guidance recommends that employers protect them as they would unvaccinated workers, regardless of their vaccination status.
Not surprisingly, recommended protections for these workers are by and large the same protocols we have all been observing for last 15 months. As we noted during our June 3 webinar “The Post-Pandemic Workplace” (recording available), we strongly recommend that employers update their Infectious Disease Preparedness and Response Plans to reflect the wide availability of vaccinations, while maintaining the plan elements that relate to mitigating the COVID-19 hazard as an active pandemic. This will be essential for employees who meet the definition of “at-risk workers” in the new Guidance.
While the Guidance may not have the force of law, failure to follow its recommendations will be evidence of failure to comply with OSHA’s General Duty Clause, which requires all employers to furnish "employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm” to their employees.
The rapid pace of vaccinations, and the decline in COVID-19 infections across the U.S., have made it tempting to put safety protocols in the rear view mirror, along with the pandemic. However, employers do not have that luxury. The duties created by the Emergency Temporary Standard for workplaces that provide “healthcare services,” as well as the duty of all employers to protect the employees in general, and at-risk workers in particular, will require continued employer vigilance.
For questions on the latest standards and guidance, please contact Pierce Atwood employment law partner Jim Erwin, or any member of the employment practice group.