Published on: June 11, 2021
Authors: Gregory Shoemaker
Topics: COVID-19 Employer Issues
After a three-month delay, the Occupational Safety and Health Administration released its Emergency Temporary Standard (ETS) with workplace safety requirements applicable only to certain health care settings. For all other industries, OSHA merely updated existing, nonbinding guidance to account for newly vaccinated employees, as had been strongly urged by HR Policy and other business groups as an alternative to regulatory mandates.
Health care only: Despite enormous pressure from organized labor to create an expansive, prescriptive standard encompassing all workplaces, OSHA instead elected to limit the new standard to health care settings only. Further, the standard provides exemptions for a wide variety of health care settings. As a result, in general, only hospitals and other similar acute-care facilities will be covered by the standard—or at least, by all requirements under the standard. Additionally, for medical clinics embedded within manufacturing operations or other non-health care settings, the standard only applies to the clinic itself, and not the entire operation.
Requirements: For covered health care settings, the standard imposes several requirements, including:
- Written COVID-19 safety plans for each workplace, including a workplace-specific hazard assessment, and designated safety coordinators to implement and monitor such plans.
- Where direct patient care is provided, screening of all non-employees entering the work setting.
- Provision of proper facemasks and PPE for all employees.
- Physical distancing measures and physical barriers for fixed work locations.
- Cleaning and disinfection protocols in accordance with CDC standards.
- Adequate ventilation systems.
- Health screening of employees before each shift—such screenings may be done by employees individually before reporting to work. If a COVID-19 test is required by the employer for screening purposes, such tests must be provided to each employee at no cost to the employee.
- Notification requirements related to potential COVID-19 exposure.
- Removal from the workplace of employees exposed to COVID-19, with full pay and benefits for the time required to be away from the office.
Non-health care settings: Non-health care employers, as mentioned, are not subject to the above requirements. Instead, OSHA issued new guidance that builds on existing guidance to account for increased employee vaccination. Per the new guidance, employers should focus protections, such as face coverings, physical distancing, and ventilation systems, on unvaccinated and otherwise at-risk workers, and in most cases no longer need to take such steps for fully vaccinated workers. The guidance also suggests granting PTO for employees to get vaccinated and asking customers and other third-party visitors to wear face coverings.
Outlook: The more limited application of the ETS is a welcome surprise for most employers who will not be subjected to new onerous obligations. HR Policy urged a flexible, non-prescriptive-based approach when it met with DOL and OMB officials in May, and the resulting ETS largely reflects these recommendations, as opposed to more stringent standards that we have seen implemented in states such as California. HR Policy will be hosting a call to discuss the ETS with covered health care settings early next week, with further details and registration information to be sent out shortly.