OSHA has finally got its long delayed. released Temporary emergency standard (ETS), his first and only rulemaking exercise related to the pandemic. Second, it released one Updated guidelines to contain and prevent the spread of COVID-19 in the workplace. You will find a summary of each of them below.
The temporary standard for COVID-19 emergencies
The ETS is restricted to employers in certain health care facilities and applies to “all facilities where an employee provides health care or health support services”. Since it is important to understand which workplaces are covered by the ETS, let’s examine them in more detail here:
“Health Services” means services provided to individuals by professional health care professionals for the purpose of maintaining, monitoring, and restoring health. Health services include hospital stays, long-term care, outpatient care, home health and hospice care, emergency medical care and patient transportation, and autopsies. This is not an exclusive list.
“Support services in health care” are services that facilitate the provision of healthcare services. Examples of this are patient admission / admission, patient catering, maintenance of devices and facilities, housekeeping and laundry, handling of medical waste and cleaning / processing of medical devices.
ETS workplace exceptions
The following exceptions, which can be found in section (a) (2), help to narrow down the jobs that the ETS must meet. The ETS does not apply to:
(i) Provision of first aid by a non-licensed healthcare provider
(ii) A pharmacist dispenses prescription drugs in a retail store in
(iii) Outpatient care facilities outside the hospital, where all non-employees are examined before entry and people with confirmed or suspected COVID-19 are not allowed to enter
(iv) Well-defined outpatient hospital facilities where all employees are fully vaccinated, all non-employees are screened prior to entry, and people with confirmed or suspected COVID-19 are not admitted
(v) Home care facilities where all employees are fully vaccinated, all non-employees are screened prior to entry, and people with confirmed or suspected COVID-19 are not allowed to enter
(vi) Health support services that are not provided in a health facility (e.g. off-site laundry or off-site billing)
(vii) telehealth services provided outside of an environment in which there is direct patient care
The ETS makes it clear with respect to (iv) and (v) – the only exceptions that require fully vaccinated workers – that if an employer accommodates a non-vaccinated worker in a way that does not COVID the worker -19 dangers, the workplace would still enjoy the exception from the ETS despite the presence of the unvaccinated worker.
When health services are embedded in a non-medical environment, such as For example, a medical clinic in a production facility or a walk-in clinic in a retail area, the ETS only applies to the embedded healthcare system. Finally, as detailed below, there are limited exemptions from the PPE, physical distancing and physical barriers requirements of the ETS.
OSHA has prepared one-sided instructions which jobs are covered by the ETS.
For workplaces that provide health services – also through an in-house health clinic for employees – the ETS catalog lists in detail the measures that employers must take. The highlights:
Every insured employer with more than 10 employees must have a written COVID-19 plan for every job. Essentially similar jobs can have the same schedule, but any local variances must be spelled. The plan must include a risk assessment of COVID-19.
The requirements for face masks, physical distancing and physical barriers must be maintained. However, employers can remove them for fully vaccinated workers who work in areas where there is no reasonable expectation that a 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 guidelines and procedures for determining employee vaccination status.
Employers must proceed with cleaning, disinfection, and health screening (which can be done through self-monitoring).
Employers must continue to follow CDC guidelines for diagnosed and symptomatic employees for removal from and return to work.
Certain requirements apply when employees, patients, residents, suppliers, contractors, customers, deliverers and other visitors have been exposed to a COVID-19 positive person.
COVID-19 specific records, including retention of all plans and a COVID-19 log.
Reporting Work-Related COVID-19 Deaths and Hospitalizations (no new requirement).
While the ETS is obviously both an emergency and a temporary one, it stands as the final rule and has the force of law. Failure to comply, like any other OSHA enforcement action, will face employers with complaints, inspections, subpoenas, fines, and a possible suspension.
Updated OSHA Guide to Containing and Preventing the Spread of COVID-19 in the Workplace
In contrast to the ETS, the OSHA updated instructions are just that – instructions, not law. It urges employers to follow suit The CDC’s Preliminary Public Health Recommendations for Fully Vaccinated PeopleMost employers are already familiar with: Fully vaccinated individuals (other than those at risk from immunosuppressive disorders) do not need to wear masks or maintain physical distancing except as may be required by certain federal, state, or local authorities Laws or workplace regulations or in certain transportation environments.
The main focus of the guidelines is to advise employers on how to protect unvaccinated or otherwise vulnerable workers. “Otherwise Vulnerable Workers” are defined as those with compromising conditions as described on the CDC site Vaccines for people with underlying medical conditions. This group includes people who cannot be vaccinated, who cannot be fully protected by vaccinations, and who cannot wear face coverings. Most people who meet these criteria are likely to be eligible for reasonable accommodation under the ADA, and the guidelines recommend employers to protect them like unvaccinated workers regardless of their vaccination status.
Unsurprisingly, the recommended safeguards for these workers are broadly the same protocols we have all followed over the past 15 months. We strongly encourage employers to update their infectious disease prevention and response plans to reflect the widespread availability of vaccinations while maintaining the plan elements related to containing the COVID-19 threat as an active pandemic. This will be essential for employees who meet the definition of “workers at risk” in the new guidelines.
While the guidelines may not have the force of law, failure to follow their recommendations is evidence of failure to comply with OSHA’s General Duty Clause, which requires all employers to “provide employment and workplaces free of recognized hazards affecting their employees Cause or can cause death or severe physical damage.
The fast pace of vaccinations and the decline in COVID-19 infections in the US have made it tempting to keep safety logs in the rearview mirror in addition to the pandemic. However, employers do not have this luxury. The obligations created by the emergency standard for workplaces that provide “health services”, as well as the duty of all employers to protect workers in general and vulnerable workers in particular, require continuous vigilance on the part of the employer.
© 2021 Pierce Atwood LLP. All rights reserved.National Law Review, Volume XI, Number 165