By Pat Miller and Alyssa Levy

On June 10, 2021, OSHA released the long-awaited COVID-19 Emergency Temporary Standard (ETS) for workplace safety during the COVID-19 pandemic.  The ETS requirements are limited to workers in the healthcare industry, and the effective date has not yet been determined.

The ETS lays out measures employers must take to protect healthcare workers in certain healthcare settings from COVID-19 in the workplace.  The ETS requires workplaces to ensure use of face masks or respirators and use of gloves, maintain physical distancing, clean and disinfect per CDC guidelines, properly ventilate work areas, screen employees for COVID-19 symptoms, and train employees, among other measures.  In the ETS, OSHA requires employers to support COVID-19 vaccination for healthcare workers, including providing reasonable paid time off for employees to get vaccinated and recover from any vaccine side effects. The ETS also includes provisions on anti-retaliation, recordkeeping, and reporting requirements, in line with existing OSHA standards and enforcement.  The ETS does include some exemptions, such as for certain workplaces where all employees are fully vaccinated, all non-employees are screened prior to entry, and people with suspected or confirmed COVID-19 are prohibited.

The ETS covers employers with employees providing healthcare services or support services – services provided by professional healthcare practitioners (e.g. doctors, nurses, emergency medical personnel, oral health professionals). The ETS does not apply in such circumstances as an employee providing first aid who is not otherwise a healthcare provider.  The ETS also does not apply to some home healthcare and ambulatory care settings where certain screening measures are implemented.

Labor Secretary Marty Walsh announced the ETS along with Acting Assistant Secretary of Labor for OSHA Jim Frederick. Walsh commented, “science tells us that healthcare workers, particularly those who come into regular contact with the virus, are most at risk at this point in the pandemic. So, following an extensive review of the science and data, OSHA has determined that a healthcare-specific safety requirement will make the biggest impact.”

The healthcare limited ETS is somewhat unexpected, as the ETS was anticipated to cover a far broader spectrum for workers across several industries.  However, because of the extensive delay between the onset of the pandemic and the release of the ETS, nearly a year and a half (and since blowing past the initial March 15, 2021 adoption deadline set by President Biden), as well as an increasing number of workers receiving COVID-19 vaccinations, many wondered if an ETS would be issued at all.

OSHA also has issued new COVID-19 guidelines that apply to all employers.  While not a standard, the guidelines demonstrate OSHA’s current thinking on the pandemic.  Notably, it states that employers not covered by the ETS no longer need to provide protections where all employees in a workplace (or a well-defined area of a workplace) are fully vaccinated.  Among the highlights of the new guidelines for situations where unvaccinated or otherwise at-risk workers are present in the workplace, OSHA’s recommends, among other things, the following:

• Granting paid time off for employees to get vaccinated;
• Instructing all employees to stay home when infected and unvaccinated employees to stay home when coming into contact with infected individuals;
• Implementing physical distancing for unvaccinated and at-risk employees;
• Providing masks for unvaccinated and at-risk employees;
• Providing employee training;
• Performing routine cleaning and disinfection;
• Encouraging mask use by unvaccinated visitors;
• Maintaining ventilation systems;
• Prohibiting retaliation.

As always, employers are encouraged to follow all CDC and local guidelines as well