The Occupational Health and Safety Administration on June 10 published a Covid-19 Emergency Temporary Standard for specific healthcare settings. OSHA also provided updated guidance for employers in all other industries to reflect the change in Centers for Disease Control and Prevention’s guidance regarding fully vaccinated people.

“This standard is necessary to give our healthcare workers deeply needed protections,” said Acting Assistant Secretary of Labor for Occupational Safety and Health Jim Frederick. “This tailored standard allows OSHA to help the workers most in danger of contracting the virus, while the updated guidance will give other businesses across the country the information they need to help protect unvaccinated workers and continue mitigating spread in the workplace.”

Key requirements of the healthcare ETS include:

  • Development of a Covid-19 plan (in a written format if covering more than 10 employees), which incorporates policies and protocols to minimize the risk of transmission of Covid-19 to employees.
  • Patient screening and management, which requires employers to limit the points of entry to settings where direct care is provided, and to screen patients (as well as other non-employees) for Covid-19 symptoms.
  • Development of procedures to adhere to OSHA standards and CDC guidelines to protect against disease transmission.
  • Use of personal protective equipment, requiring employees to wear face masks when indoors and sharing a vehicle for work purposes, as well as use of respirators for exposure to people with suspected and confirmed Covid-19.
  • Protocols for aerosol-generating procedures, which limit the employees present for such procedures, require the performance of such procedures in an isolation room, if possible, and cleaning and disinfecting surfaces post-procedure.
  • Maintenance of six-foot physical distancing when indoors, or physical barriers in areas where employees are not separated by six feet.
  • Cleaning and disinfection protocols in accordance with CDC guidelines, which focus on high-touch surfaces and equipment and readily accessible handwashing facilities.
  • Proper use and maintenance of ventilation systems and isolation rooms.
  • Health screening and medical management protocols, which include screening employees (e.g., asking employees to self-monitor), providing employer-required testing at no cost to employees, requiring employees to report Covid-19 symptoms, notifying certain employees of workplace exposures, and following quarantining and return-to-work procedures in accordance with the CDC.
  • Provision of reasonable time and paid leave for vaccinations and vaccine side effects.
  • Training employees on disease transmission and infection-spread protocols, including additional trainings for updated protocols, or if there is an indication that an employee has not retained the necessary understanding or skill.
  • Anti-retaliation protections, that include informing employees of their rights to the protections required by this standard, and not discharging in any manner discriminating against employees for exercising these rights or for engaging in actions required by the standard.

Employers should consult the standard for the full scope of the requirements for healthcare settings.

“Overall, many healthcare employers already have in place policies and procedures that meet or exceed CDC guidelines and thus meet or exceed most of OSHA’s new ETS,” write Dean Kelley and John Martin of law firm Ogletree, Deakins, Nash, Smoak & Stewart, P.C. in a JD Supra blog post. “Healthcare employers should focus compliance efforts on new or revised requirements, including training requirements, the new mini respiratory protection program, new recordkeeping obligations, the changes to healthcare employer’s reporting obligations to OSHA and, last but not least, OSHA’s paid leave requirement.”

<LINK TO JD Supra blog post>

Masks Still Mandatory?

Under most circumstances, fully vaccinated people need not take all the precautions that unvaccinated people should take, explains CDC’s Interim Public Health Recommendations for Fully Vaccinated People. The general industry guidance is advisory only and not mandatory.

The ETS exempts fully vaccinated workers from face coverings, physical distancing and barrier requirements when in well-defined areas where there is no reasonable expectation that any person will be present with suspected or confirmed Covid-19, according to The National Law Review.

“Except for workplace settings covered by OSHA’s ETS and mask requirements for public transportation, 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,” according to OSHA. “Employers should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces.”

Multi-Layered Interventions

According to OSHA, employers should engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated or otherwise at-risk workers and mitigate the spread of Covid-19, including:

  • Grant paid time off for employees to get vaccinated.
  • Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with Covid-19 symptoms to stay home from work to prevent or reduce the risk of transmission of the virus that causes Covid-19.
  • Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas.
  • Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE.
  • Educate and train workers on your Covid-19 policies and procedures using accessible formats and in language they understand.
  • 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.
  • Maintain ventilation systems.
  • Perform routine cleaning and disinfection.
  • Record and report Covid-19 infections and deaths.
  • Implement protections from retaliation and set up an anonymous process for workers to voice concerns about Covid-19-related hazards.
  • Follow other applicable mandatory OSHA standards: All of OSHA’s standards that apply to protecting workers from infection remain in place.

The OSHA guidance also provides additional measures for high-risk workplaces with workers of  mixed vaccination status. High-risk workplaces — which can include manufacturing, meat and poultry processing, high-volume retail and grocery and seafood processing — might exist where there is frequent or prolonged close contact between unvaccinated or at-risk workers, especially in shared spaces such as break rooms, locker rooms and entrance/exit areas.

In higher-risk workplaces. In all higher-risk workplaces where there are unvaccinated or otherwise at-risk workers, employers should:

  • Stagger break times, or provide temporary break areas and restrooms to avoid groups of unvaccinated or otherwise at-risk workers congregating during breaks. Unvaccinated or otherwise at-risk workers should maintain at least six feet of distance from others at all times, including on breaks.
  • Stagger workers’ arrival and departure times to avoid congregations of unvaccinated or otherwise at-risk in parking areas, locker rooms and near time clocks.
  • Provide visual cues (e.g., floor markings, signs) as a reminder to maintain physical distancing.
  • Implement strategies (tailored to your workplace) to improve ventilation that protects workers.

In workplaces with processing or assembly lines:

  • Consider proper spacing of unvaccinated or otherwise at-risk workers; if that is not possible, install physical barriers.

In retail workplaces where there are unvaccinated or otherwise at-risk workers:

  • Suggest masks for unvaccinated (or unknown status) customers and other visitors.
  • Consider means for physical distancing from other people who are not known to be fully vaccinated. If distancing is not possible, consider the use of barriers between workstations used by unvaccinated or otherwise at-risk workers and the locations customers will stand, with pass-through openings at the bottom, if possible.
  • Move the electronic payment terminal/credit card reader farther away from any unvaccinated or otherwise at-risk workers in order to increase the distance between customers and such workers, if possible.
  • Shift primary stocking activities of unvaccinated or otherwise at-risk workers to off-peak or after hours when possible to reduce contact between unvaccinated or otherwise at-risk workers and customers.

The guidance also notes that unvaccinated and otherwise at-risk workers are also at risk when traveling to and from work in employer-provided buses and vans. Employers should notify unvaccinated and otherwise at-risk workers of this risk and, to the extent feasible, help them limit the number of such workers in one vehicle. They should also make sure all unvaccinated and otherwise at-risk workers sharing a vehicle are wearing appropriate face coverings.