On June 10, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) released its long-awaited COVID-19 Emergency Temporary Standard (ETS), establishing new COVID-19-related mandatory requirements specifically applicable to the health care industry. With limited exceptions, the ETS generally applies to settings where any employee provides health care services or health care support services. One exception is home health care settings where all employees are fully vaccinated, all non-employees are screened prior to entry, and individuals with suspected or confirmed COVID-19 cases are not present.
Among the ETS’s many mandates is the requirement that health care employers conduct “a workplace-specific hazard assessment” to identify potential workplace hazards related to COVID-19. In turn, employers must create a written COVID-19 Transmission Prevention Plan addressing such hazards and other mandatory requirements covered by the ETS. Covered employers must also designate one or more workplace “COVID-19 Safety Coordinators” to implement and monitor the COVID-19 plan. During the hazard assessment and the development and implementation of the COVID-19 Plan, employers must also seek the input and involvement of non-managerial employees and their representatives, if any.
The ETS further requires health care employers to take certain precautions to protect employees from the transmission of COVID-19 in the workplace. These requirements include, without limitation:
- Implementing health screening and management measures, including (1) screening employees before each workday and shift; (2) requiring each employee to promptly notify the employer when the employee is COVID-19 positive, suspected of having COVID-19 or experiencing certain symptoms; (3) notifying certain employees within 24 hours when a person who has been in the workplace is COVID-19 positive; and (4) abiding by the ETS’ requirements for removing employees from the workplace.
- For employees who are forced to isolate or quarantine and who cannot perform their duties remotely, employers must continue to pay such employees the same regular rate of pay, subject to applicable caps, for defined periods of time.
- Providing reasonable time and paid leave for vaccinations and vaccine side effects.
- Providing personal protective equipment (PPE) and ensuring appropriate use of same by employees.
- Establishing a COVID-19 log of all employee instances of COVID-19 without regard to occupational exposure and following requirements for making records available to employees/representatives.
- Ensuring that all employees receive training regarding COVID-19 transmission, tasks and situations in the workplace that could result in infection, and relevant policies and procedures. The ETS prescribes specific topics that must be covered during these mandatory trainings.
- Ensuring appropriate social distancing—at least six feet apart—when indoors.
- Installing cleanable or disposable solid barriers at each fixed work location in non-patient care areas where employees are not separated from other people by at least six feet.
- Reporting work-related COVID-19 fatalities and inpatient hospitalizations to OSHA.
- Informing employees of their rights to the protections required by the ETS.
The ETS expressly prohibits employers from discharging or, in any manner, discriminating against employees for exercising their rights under the ETS or for engaging in actions required by the ETS. Notably, the ETS exempts fully vaccinated workers from certain masking, distancing and barrier requirements when in well-defined areas where there is no reasonable expectation that a person with suspected or confirmed COVID-19 will be present.
The ETS will become effective immediately upon its publication in the Federal Register. The publication date has not yet been determined, but once published and effective, companies must comply with most of the ETS’ mandates within 14 days, and with provisions involving physical barriers, ventilation and training within 30 days.