Since President Biden issued an Executive Order in January directing the Department of Labor to consider whether an OSHA emergency temporary standard (ETS) was necessary to protect workers from COVID-19 infection and to issue such a standard by March 15th, employers and industry partners have been watching closely for whether OSHA would issue any emergency temporary standard and, if so, what it would include.
On Thursday, June 10, 2021, OSHA did issue an emergency temporary standard — but limited it to those employers and workers in the healthcare industry (see OSHA COVID-19 Healthcare ETS Fact Sheet). The “healthcare industry” is defined as any setting where an employee provides healthcare services or healthcare support services such as hospitals, nursing homes, assisted living facilities, emergency responders, home healthcare workers, and employees in ambulatory care facilities.
The COVID-19 Healthcare ETS, now set forth in 29 CFR 1910 Subpart U, requires those particular employers to develop and implement effective COVID-19 plans that include overlapping controls in a layered approach to better protect workers. The key components of the ETS, many of which will be familiar to employers operating throughout the pandemic, include patient screening and management, standard and transmission-based precautions,
physical distancing and barriers, cleaning and disinfection, ventilation and support and time for vaccination. The ETS is effective immediately upon publication in the Federal Register; employers must comply with most provisions within 14 days, and with those involving training, ventilation and physical barriers, within 30 days. OSHA indicates it will continue to use its enforcement discretion for employers making a good faith effort to comply with the ETS.
For all other employers, OSHA also issued on Thursday voluntary “non-binding guidance” on steps employers can take to continue to protect “at-risk” workers from possible COVID-19 infection and illness in the workplace. Unless otherwise required by federal, state or local laws, OSHA makes clear that most employers no longer need to
take steps, such as wearing masks and physical distancing, to protect their fully-vaccinated workers who are not otherwise at-risk from COVID-19 exposure. Therefore, the guidance issued on Thursday focuses only on the protection of unvaccinated workers or those otherwise at-risk (i.e., vaccinated workers with immunocompromising conditions), borrowing heavily from the recent interim public health recommendations issued by the Centers for Disease Control and Prevention (CDC) on May 28th.
In the guidance, OSHA reminds employers that they are responsible for providing a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm. The guidance, described more fully here, recommends that employers engage with employees and their representatives to determine how to implement multi-layered interventions to protect their unvaccinated or otherwise at-risk workers and to mitigate the spread of COVID-19, including:
- 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 COVID-19, 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;
- Providing unvaccinated and otherwise at-risk workers with face coverings or surgical masks;
- Educating and training workers on your COVID-19 policies and procedures;
- Suggesting that unvaccinated customers, visitors or guests wear face coverings;
- Maintaining ventilation systems;
- Performing routine cleaning and disinfection;
- Recording and reporting COVID-19 hospitalizations and deaths to OSHA; and
- Implementing protections from retaliation and setting up anonymous processes for workers to voice concerns about COVID-19-related hazards.
In this non-healthcare industry guidance, OSHA further discusses additional steps to be taken in situations of heightened risk such as those with employer-provided transportation, communal housing or living quarters onboard vessels, manufacturing, food processing and high-volume retail and grocery.
Emergency temporary standards are rarely issued by OSHA, as such standards require the Administrator to demonstrate that a “grave danger” to workers is presented. In this case, the "grave danger" is the risk presented by the COVID-19 pandemic and the airborne spread of pathogens. Worker advocates and Democratic lawmakers have been calling for the quick issuance of this standard for months. OSHA and the
Labor Department have instead taken a more deliberate approach and said little during the now months-long process. In testimony before the House Committee on Education and Labor on Wednesday, Secretary of Labor Marty Walsh acknowledged that the country’s concerted vaccination program and the latest guidance from the CDC “changed the nature of the pandemic” and prompted this decision to stop short of issuing a wide-ranging rule that would place mandates on employers throughout the economy.
“OSHA has tailored a rule that reflects the reality on the ground,” Walsh testified, further stating that “[s]cience tells us that healthcare workers — particularly those who have come into regular contact with people either suspected of having or being treated for COVID-19 — are at most
Unless conditions change in such a way that the CDC revises its guidelines for unvaccinated persons back to a more stringent approach because of variants or increased infections, employers outside of the healthcare industry should move forward knowing no emergency mandate will be issued for their industries. Employers should revisit their COVID-19 plans and processes and update them based on these June 10th non-binding advisories discussed above. If your company would like assistance in this matter, Calfee’s safety professionals in its Labor and Employment and Environmental practice groups are available for consultation.