Here's What Employers Need to Know About OSHA's COVID-19 Directives

The Occupational Safety and Health Administration (OSHA) issued its highly anticipated COVID-19 emergency temporary standard (ETS), which applies only to the health care industry, on June 10. The agency also provided detailed recommendations for other employers on protecting unvaccinated and at-risk workers as the coronavirus crisis continues.

What does the ETS mean for health care employers? "For the most part, it will be a formalization of what they have been doing for the last 12-15 months," said Todd Logsdon, an attorney with Fisher Phillips in Louisville, Ky. The standard requires covered employers to create a written plan to identify and control COVID-19 workplace hazards. Covered employers must also implement certain other measures to reduce workplace transmission of COVID-19.

Health care workers, particularly those who come into contact with COVID-19 patients, are most at risk of contracting the virus, said Secretary of Labor Marty Walsh during a House of Representatives committee hearing.

Walsh said the additional guidance for other employers reflects the U.S. Centers for Disease Control and Prevention's (CDC's) latest recommendations and tells employers how to protect workers who have not yet been vaccinated or are "otherwise at-risk workers."

Matthew Deffebach, an attorney with Haynes and Boone in Houston, noted that the guidance is helpful for the employer community but raises challenges on how to manage two populations in the workplace: vaccinated and unvaccinated employees.

Key Takeaways for Health Care Employers

The health care ETS focuses on settings where coronavirus patients are treated, including hospitals, nursing homes and assisted living facilities.

"The standard will require nonexempt facilities to conduct a hazard assessment and have a written plan to mitigate virus spread, and [it] requires healthcare employers to provide some employees with N95 respirators or other personal protective equipment," according to OSHA. "In addition, covered employers must ensure 6 feet of distance between workers. In situations where this is not possible, employers should erect barriers between employees where feasible."

Covered employers also must provide workers with paid time off to get vaccinated and recover from side effects. Employees who test positive for the coronavirus or could be contagious must work remotely or separately from other workers or be provided paid time off (up to $1,400 a week). Tax credits under the American Rescue Plan may cover paid time off for employers with fewer than 500 employees.

Notably, under the ETS, fully vaccinated workers do not have to wear masks, keep physically distant or use barriers "when in well-defined areas where there is no reasonable expectation that any person will be present with suspected or confirmed coronavirus."

Pierce Blue, an attorney with Morgan Lewis in Washington, D.C., said the standard imposes a number of new requirements on health care employers that they should carefully follow. "It is important to note, however, that the standard does not apply to all workspaces in the health care sector. Employers should carefully review the standard to determine where it applies and where it does not."

Logsdon observed that many health care employers already have been practicing most of the ETS requirements. However, some of the rules may require employers to adjust their policies or take additional steps.

The ETS appears to be very consistent with existing OSHA guidance on COVID-19 workplace safety, Deffebach noted, but the new mandate may give OSHA "greater enforcement teeth" than under the Occupational Safety and Health Act's general duty clause, which requires employers to provide a work environment that is "free from recognized hazards that are causing or are likely to cause death or serious physical harm."

"OSHA is increasing its resources, particularly in enforcement, and is encouraging in-person inspections," observed Courtney Malveaux, an attorney with Jackson Lewis in Richmond, Va.

General Guidance for Most Workplaces

Apart from employers who work as contractors in health care settings, the new standard means very little for other employers, Malveaux explained. "The more significant story for non-health care employers is the new guidance that OSHA published … particularly as it relates to vaccinated and unvaccinated individuals in the workplace."

Most employers that are not covered by the ETS or involved with public transportation "no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure," except when measures are "required by federal, state, local, tribal, or territorial laws, rules, and regulations," according to OSHA.

[Editor's note: This guidance was updated on Aug. 13 to reflect the CDC's masking and testing recommendations for fully vaccinated people.]

"Fully vaccinated" means two weeks have passed since the employee received the final dose of a vaccine authorized by the U.S. Food and Drug Administration.

Employers need to continue taking steps to protect unvaccinated and otherwise at-risk workers who may have a weakened response to the vaccine.

OSHA said unvaccinated workers should:

• Identify opportunities to get vaccinated.
• Properly wear a face mask that covers the nose and mouth.
• Stay at least 6 feet away from other people.
• Be aware of whether rooms are properly ventilated.
• Practice good personal hygiene and wash hands often.

Employers can help reduce the spread of COVID-19, according to OSHA, by:

• Offering paid time off for employees to get vaccinated.
• Encouraging unvaccinated workers to stay home if they have been in close contact with someone who tested positive for COVID-19.
• Encouraging all workers to stay home if they are infected or have COVID-19 symptoms.
• Maintaining physical distancing policies for unvaccinated and at-risk employees and providing them with appropriate face coverings.
  
• Educating and training workers on COVID-19 policies and procedures.
• Suggesting that unvaccinated customers and visitors wear face coverings.
• Maintaining ventilation systems.
• Performing routine cleaning.
• Reporting COVID-19 infections and deaths.
• Protecting employees from retaliation and setting up an anonymous process for them to report COVID-19-related hazards.
  
• Following mandatory OSHA standards.

"This guidance is not a standard or regulation, and it creates no new legal obligations," OSHA said. "It contains recommendations, as well as descriptions of existing mandatory OSHA standards." The agency said its guidelines "are intended to assist employers in recognizing and abating hazards likely to cause death or serious physical harm as part of their obligation to provide a safe and healthful workplace."