On Thursday June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) issued an emergency temporary standard (“ETS”) contained in 29 C.F.R. Part 1910 Subpart U; however, it only applies to healthcare employers. At the same time that OSHA issued the ETS, OSHA also issued updated guidance to general industry on COVID-19 prevention for unvaccinated and at-risk employees.
Background on the ETS
Under the Occupational Safety and Health Act of 1970, OSHA has the authority to adopt an ETS without notice-and-comment rulemaking. Once published in the Federal register, an ETS may take effect immediately and remain in effect until superseded by a permanent standard. OSHA has six months to adopt a permanent standard to replace the ETS.
To issue an ETS, OSHA must meet two requirements. OSHA must determine:
- That employees are exposed to grave danger from exposure to substances or agents determined to be toxic or harmful or from new hazards, and;
- That such emergency standard is necessary to protect employees from such danger.
OSHA has not issued an ETS since 1983 and of the nine prior ETS’s issued by OSHA, five were stayed or at least partially vacated by the courts. The 1983 ETS, promulgated to reduce employee exposure to asbestos, was rejected by the Court of Appeals for the Fifth Circuit on the grounds that it did not protect employees from “grave danger” and was not shown to be “necessary.” Asbestos Information Ass’n/North America. v. OSHA, 727 F.2d 415 (5th Cir. 1984).
Under the Trump Administration, OSHA successfully resisted a petition asking it to adopt an ETS for COVID-19 prevention. The D.C. Circuit denied a petition asking for a mandamus order to direct OSHA to adopt an ETS. Instead, OSHA relied on its existing standards and guidance. The Mine Safety and Health Administration (“MSHA”) similarly overcame a petition seeking an order for an ETS.
As one of his first actions in office, President, Joseph R. Biden, Jr., issued an executive order directing OSHA to issue updated guidance to employers on workplace safety during the COVID-19 pandemic and to consider whether to issue a COVID-19 ETS.
OSHA delayed the issuance of the ETS, in part, because increasing vaccination rates and declining numbers of new infections raised questions regarding the “grave danger” and “necessary” elements. The focus on healthcare workplaces and updated guidance seems to acknowledge these improvements while remaining cautious regarding new variants and pervasive skepticism of the vaccine among parts of the population.
The Healthcare Emergency Temporary Standard
With some exceptions, the ETS applies to any setting where employees provide healthcare services or healthcare support services. This type of workplace includes, but is not limited to, hospitals; nursing homes and assisted living facilities; dental offices; emergency responders; home healthcare workers; and employees in ambulatory care facilities. It is important to note that it is the provision of care that triggers the standard, not the location. As such, a medical clinic at a non-medical facility, or a place where responders enter a non-healthcare facility to provide care, such as responding to a 911 call, are included under the standard.
The ETS does not apply to:
- First aid performed by an employee who is not a licensed healthcare provider;
- Dispensing of prescriptions by pharmacists in retail settings;
- Non-hospital ambulatory care settings where all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings;
- Well-defined hospital ambulatory care settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings;
- Home healthcare settings where all employees are fully vaccinated and all nonemployees are screened prior to entry and people with suspected or confirmed COVID-19 are not present;
- Healthcare support services not performed in a healthcare setting (e.g., off-site laundry, off-site medical billing); or
- Telehealth services performed outside of a setting where direct patient care occurs.
Employers who reasonably accommodate an employee who is unable to be vaccinated in a manner that does not expose the employee to COVID-19 hazards (e.g., telework, working in isolation) may be within the scope of this exemption.
Under the ETS, a covered employer must:
- Develop and implement a COVID-19 plan for each workplace;
- Designate one or more workplace COVID-19 safety coordinators to implement and monitor the COVID-19 plan;
- Conduct a workplace-specific hazard assessment to identify potential workplace hazards related to COVID-19;
- Involve non-managerial employees in the plan’s development and implementation; and
- Monitor each workplace to ensure the ongoing effectiveness of the COVID-19 plan and update it as needed.
The COVID-19 plan must address the hazards identified by the assessment and include policies and procedures to minimize the risk of transmission of COVID-19 for each employee. Those policies and procedures must:
- Minimize the risk of infection for each employee;
- Effectively communicate and coordinate with other employers; and
- Protect employees who in the course of their employment enter into private residences or other physical locations controlled by a person not covered by the OSH Act (e.g., homeowners, sole proprietors).
Additional provisions address patient screening and management; precautions based on CDC guidance; personal protective equipment (“PPE”) (including facemasks and, where appropriate, respirators); precautions for use of aerosol-generating procedures; physical distancing; physical barriers; cleaning and disinfection; ventilation; health screening and medical management; training; and recordkeeping. The employer must support COVID-19 vaccination for each employee by providing reasonable time and paid leave (e.g., paid sick leave, administrative leave) to each employee for vaccination and any side effects experienced following vaccination. Retaliation against employees for exercising their rights under the ETS is prohibited.
The ETS includes a requirement to report to OSHA about a work-related fatality from COVID-19 within 8 hours of learning of the fatality. It also includes a requirement to report each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about the in-patient hospitalization. These provisions apply even if the employee is no longer on the worksite once the employer becomes aware of the hospitalization or death.