OSHA Issues Long-Awaited COVID Guidance and Emergency Temporary Standard

On June 10, 2021, the United States Department of Labor’s Occupational Safety and Health Administration (OSHA) finally issued its long-awaited update to its COVID-19 workplace safety guidance, setting forth best practices for all employers as employees return to the physical workplace after a lengthy absence. The same day, OSHA issued an Emergency Temporary Standard (ETS) – pursuant to the DOL’s rule-making authority – establishing mandatory procedures for “covered healthcare employers.” We summarize the obligations and recommendations imposed on healthcare and non-healthcare employers below.

OSHA Guidance Applicable to All Employers

OSHA’s June 10, 2021 general guidance applies to all industries and replaces its January 29, 2021 guidance. Importantly, OSHA makes clear that the June 10 guidance is not a standard or regulation and that it creates no new legal obligations. Instead, it offers recommendations for employers to protect unvaccinated or otherwise at-risk workers. The June 10 guidance reinforces the current CDC guidance applicable to individuals who are fully vaccinated.

In accordance with the CDC’s guidance that “fully vaccinated people can resume activities without wearing masks or physically distancing” unless required by law, rule, regulation, and/or business and workplace guidance, OSHA has indicated that “most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated.” However, OSHA explains that “employers should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces.” “At-risk workers” are defined as those employees who may not have a full immune response to the vaccination due to certain conditions, such as a prior transplant, or due to a prolonged use of an immune-weakening medication, or those with disabilities who, under the Americans with Disabilities Act, are legally entitled to reasonable accommodations that protect them from the risk of contracting COVID-19 if, for example, they cannot be protected through vaccination, cannot get vaccinated, or cannot use face coverings.

OSHA outlined the following steps that should be taken to protect unvaccinated and/or at-risk workers, and to mitigate the spread of COVID-19 in the workplace:

1. Grant paid time off for employees to get vaccinated;
2. Instruct infected workers, 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 to prevent or reduce the risk of transmission of the virus;
3. Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas;
4. Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE;
5. Educate and train workers on the employer’s COVID-19 policies and procedures using accessible formats and in a language they understand;
6. Suggest that unvaccinated customers, visitors, or guests wear face coverings, especially in public-facing workplaces such as retail establishments, if there are unvaccinated or otherwise at-risk workers in the workplace who are likely to interact with these customers, visitors, or guests;
7. Maintain ventilation systems;
8. Perform routine cleaning and disinfection;
9. Record and report COVID-19 infections and deaths. Under mandatory OSHA rules in 29 CFR 1904, employers are responsible for recording work-related cases of COVID-19 illness on OSHA’s Form 300 logs if the following requirements are met: (1) the case is a confirmed case of COVID-19; (2) the case is work-related (as defined by 29 CFR 1904.5); and (3) the case involves one or more relevant recording criteria (set forth in 29 CFR 1904.7) (e.g., medical treatment, days away from work);
10. Implement protections against retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards; and
11. Follow other applicable mandatory OSHA standards. All of OSHA’s standards applicable to protecting workers from infection remain in place, including requirements for PPE (29 CFR 1910, Subpart I (e.g., 1910.132 and 133)), respiratory protection (29 CFR 1910.134), sanitation (29 CFR 1910.141), and protection from bloodborne pathogens (29 CFR 1910.1030), and employee access to medical and exposure records (29 CFR 1910.1020).

An Appendix to the guidance addresses appropriate measures for higher-risk workplaces, defined as those where vaccinated and unvaccinated persons, including those who are at-risk: (1) work in close contact; (2) are in close contact for a prolonged period of time; (3) are exposed to the virus through respiratory droplets in the air; (4) live in communal housing; (5) share employer-provided transportation; and (6) are in contact with other unvaccinated or otherwise at-risk individuals in community settings in areas where there is elevated community transmission. In order to protect unvaccinated or otherwise at-risk workers in higher-risk workplaces, OSHA recommends that in addition to the recommendations listed above, employers should:

1. Stagger break times or provide temporary break areas and restrooms to prevent groups of unvaccinated or otherwise at-risk workers from congregating during breaks;
2. Ensure that unvaccinated or otherwise at-risk workers maintain at least 6 feet of distance from others at all times, including on breaks;
3. Stagger workers’ arrival and departure times to avoid congregations of unvaccinated or otherwise at-risk workers in parking areas, locker rooms, and near time clocks;
4. Provide visual cues (e.g., floor markings, signs) as a reminder to maintain physical distancing; and
5. Implement strategies (tailored to an employer’s workplace) to improve ventilation that protects workers in accordance with the CDC’s and OSHA’s guidance on ventilation in the workplace.

ETS Applicable to Covered Healthcare Employers

The ETS issued on June 10 established a series of mandatory, and more stringent guidelines for “covered healthcare employers,” which the ETS defines as “all settings where any employee provides healthcare services or performs healthcare support services” but does not include:

1. First aid performed by an employee who is not a healthcare provider;
2. Dispensing of prescriptions by pharmacists in a retail setting;
3. Non-hospital ambulatory care settings where all non-employees are screened prior to entry and persons with, or expected to have, COVID-19, are not permitted entry;
4. Well-defined hospital ambulatory care settings where all employees are fully vaccinated, all non-employees are screened prior to entry, and people with suspected or confirmed COVID-19 are not permitted to enter;
5. Home healthcare settings where all employees are fully vaccinated, all non-employees are screened prior to entry, and people with suspected or confirmed COVID-19 are not present;
6. Healthcare support services not performed in a healthcare setting (e.g., off-site laundry, off-site medical billing); and
7. Telehealth services performed outside of a setting where direct patient care occurs.

Under the ETS, all covered healthcare employers must:

1. Develop and implement a “COVID-19 Plan,” which must be in writing for employers with more than 10 employees. This COVID-19 Plan must:

• • Designate workplace safety coordinators who are knowledgeable in infection control principles and practices and who have authority to implement, monitor, and ensure compliance with the COVID-19 plan;
  • Include a work-place specific hazard assessment;
  • Seek input and involvement from non-managerial employees and their representatives with regard to the hazard assessment and the development and implementation of the COVID-19 plan;
  • Monitor the effectiveness of the COVID-19 Plan following implementation; and
  • Include policies and procedures to minimize the risk of transmission of COVID-19 to employees.

2. Implement patient and visitor screening measures, including limiting and monitoring points of entry for settings where direct patient care is provided, screening all entering patients for symptoms of COVID-19, and developing policies and procedures that adhere to CDC guidelines regarding COVID-19;
3. Provide employees with properly fitting face masks – not simply cloth face coverings – and other necessary PPE when at work. Covered healthcare employers must also provide and ensure that employees use respirators when exposed to people with suspected or confirmed COVID-19 and for aerosol-generating procedures on a person with suspected or confirmed COVID-19;
4. When performing aerosol-generating procedures on persons with COVID-19, limit the number of employees present to only those essential; perform procedures in an airborne infection isolation room, if available; and clean and disinfect surfaces and equipment after the procedure is completed;
5. Ensure physical distancing among employees of at least six feet when indoors;
6. In non-patient care areas where employees cannot maintain at least a 6 foot distance between each other, install cleanable or disposable barriers between work stations, if feasible;
7. Follow standard practices for cleaning and disinfection of surfaces and equipment in accordance with CDC guidelines in patient care areas, resident rooms, and for medical devices and equipment; and in all other areas, clean high-touch surfaces and equipment at least once a day and provide alcohol-based hand rub that is at least 60% alcohol or provide readily accessible handwashing facilities;
8. Ensure that employer-owned or controlled HVAC system(s) are used in accordance with manufacturer’s instructions and design specifications; air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher if the system allows it; airborne infection isolation rooms are maintained and operated in accordance with their design and construction criteria; and intake ports are cleaned, maintained, and cleared of debris;
9. Implement employee health screening protocols, which at a minimum must:

• • Require that employees complete a personal health screening before each workday;
  • Provide employees with COVID-19 testing at no cost;
  • Require that employees promptly notify the employer when the employee tests positive for COVID-19 or is experiencing symptoms of COVID-19;
  • Promptly remove employees from the workplace who have tested positive for COVID-19 or are experiencing symptoms of COVID-19;
  • Notify certain employees within 24 hours when a person who has been in the workplace is COVID-19 positive;
  • Make decisions on returning employees to work in accordance with guidance from a licensed healthcare provider or specified CDC guidance; and
  • Continue to pay employees removed from the work environment under this protocol, in most circumstances.

10. Provide training in a language and at a literacy level that employees understand regarding disease transmission, tasks and situations in the workplace that could result in COVID-19 infection, and relevant policies and procedures; and ensure employees receive additional training when changes occur that affect the employee’s risk of infection, if policies or procedures are changed, or when there is an indication that an employee has not retained necessary understanding or skill;
11. In circumstances where respirators are provided to employees, provide training on inspecting, putting on, removing, and using respirators like N-95s; the limitations and capabilities of the respirator; procedures and schedules for storing, maintaining, and inspecting respirators; how to perform a user seal check; and how to recognize medical signs and symptoms that may limit or prevent the effective use of respirators.
12. Inform employees of their right to be free from retaliation for exercising their rights under the ETS.
13. If the covered healthcare employer has more than 10 employees, establish a COVID-19 log memorializing all employee instances of COVID-19 without regard to occupational exposure, and follow requirements for making records available to employees; and
14. Report to OSHA each work-related COVID-19 fatality within 8 hours of learning about the fatality, and each work-related COVID-19 in-patient hospitalization within 24 hours of learning about the in-patient hospitalization;

Other than the ventilation and physical barrier provisions, covered healthcare employers must comply with all mandates set forth in the ETS within 14 days of its publication in the Federal Register, which is pending.

If they have not already done so, covered healthcare employers should immediately start taking steps to prepare and implement policies and protocols consistent with the ETS.

We also recommend that all employers update their current policies and practices to conform to the latest OSHA guidance on COVID-19, along with relevant guidance from the Equal Employment Opportunity Commission, and be sure to comply with any additional local, state or federal requirements, as applicable.

If you have any questions about this blog post, please reach out to an attorney in the firm’s Employment & Labor Law Group.