As companies of all types and sizes continue to deal with the potential legal implications of the COVID-19 pandemic for their businesses, Jackson Walker provides insights and resources on the COVID-19 Legal Resources & Insights site.
By Sara Harris
The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) COVID-19 workplace safety rules have been long in the making. On June 10, 2021, OSHA finally issued those rules in the form of an Emergency Temporary Standard (ETS). Coming as a surprise to many who were expecting broad rules that would apply to all workplaces, the ETS instead covers only workers in the healthcare industry.
The rules, which stem from President Joe Biden’s January executive order instructing OSHA to develop an emergency temporary standard addressing COVID-19, will apply, with limited exceptions, to cover “all settings where any employee provides healthcare services or healthcare support services.”
OSHA stated that the ETS is based on its assessment that existing standards and regulations, and the OSH Act’s General Duty Clause (which is a broad rule requiring employers to provide a safe workplace), are inadequate to address the COVID-19 hazard for healthcare workers subject to the rule.
What Healthcare Settings Must Adhere to the ETS?
The ETS defines the types of healthcare settings that must comply with the safety protocols aimed at protecting workers from the hazards related to COVID-19. The rule focuses on those settings and workers where suspected or confirmed COVID-19 patients are treated, and includes hospitals; nursing homes and assisted living facilities; emergency responders; home healthcare; and ambulatory care facilities that treat COVID-19.
The ETS does not apply to a number of healthcare-related workplaces, including retail prescription dispensing sites; non-hospital ambulatory care settings that implement COVID-19 pre-entry screening procedures to exclude individuals with suspected or confirmed COVID-19; hospital ambulatory care settings where all employees are fully vaccinated and all non-employees are subject to COVID-19 screening procedures; home healthcare workplaces where all employees are fully vaccinated and non-employees are subject to screening procedures; off-site support services; and telehealth service workplaces that do not provide in-person treatment.
What Safety Measures Must Covered Businesses Take?
The rule implements PPE, physical distancing, and physical barrier requirements, except where fully vaccinated healthcare industry workers are in well-defined areas of the workplace where there is no reasonable expectation that anyone suspected or confirmed COVID-19 positive will be present. Specifically, employers must provide, and ensure that employees wear, facemasks (as that term is specifically defined in the ETS). They must also provide respirators, and other PPE where there is a risk of exposure to COVID-19, such as when the employee is present during “aerosol-generating procedures” on a patient with suspected or confirmed COVID-19.
Healthcare industry employers subject to the rule must also continue to use physical barriers and implement physical distancing requirements where feasible. The rule offers physical distancing examples, such as continued telework, reducing the number of employees in one area of the workplace at a time, and visual markers reminding individuals of appropriate distances and travel paths.
Unsurprisingly, OSHA’s ETS also contains cleaning and disinfecting requirements, ventilation specifications, and daily employee COVID-19 screening protocols as well as requirements for providing notice of an employee’s COVID-19 symptoms or illness. Employers must also implement COVID-19 training programs for all covered workers and maintain certain records.
What Does the Required “COVID-19 plan” Entail?
For each workplace, an employer must develop and implement a workplace COVID-19 plan that contains a workplace-specific hazard assessment and policies and procedures designed to minimize the risk of COVID-19 transmission in the workplace. The employer must also designate a COVID-19 “safety coordinator” and seek input from non-managerial employees in developing the plan. Employers with fewer than 10 employees are not required to set forth their plan in writing, although we encourage all employers to do so.
Are There Any Other Protections for Healthcare Workers Under the Standard?
The ETS requires employers to remove from the workplace any employee it learns has confirmed or suspected COVID-19, or has had close contact with an individual confirmed to have COVID-19 (if the worker is not fully vaccinated or has not recovered from COVID-19 in the prior 3 months).
In connection with these mandatory removal rules, OSHA obligates the employer to continue paying the employee, up to $1,400 per week. An employer’s actual payment obligations depend on the size of the employer and the employee’s regular pay. The employer must also continue providing the employee all benefits to which they are normally entitled. Employers with fewer than 10 employees are exempt from this requirement.
Additionally, the employer must not discriminate or retaliate against an employee subject to mandatory removal when the employee returns to work.
The ETS also obligates covered employers to provide employees a reasonable amount of paid time off to get vaccinated and to recover from vaccination side effects.
Finally, the ETS contains a general anti-retaliation provision, prohibiting retaliation against any employee for exercising their right to the protections required by the rule, or for engaging in actions the rule requires. Healthcare industry employers are also required to provide notice to employees that the employer is prohibited from discharging or in any manner discriminating against an employee for engaging in such protected activity.
When Does the ETS Take Effect?
Healthcare employers must implement most of these steps to protect workers within 14 days after the ETS is published in the Federal Register. The requirements related to physical barriers, others that may require modifications to the physical space, and the worker training requirements will take effect 30-days after the ETS’s effective date.
The ETS provides comprehensive safety and health standards for some of the country’s most essential workers. And although the ETS does not apply to other high-risk industries, nothing in the rule prevents employers from implementing additional health and safety measures beyond what OSHA requires for their particular industry. Moreover, on June 10 OSHA also updated its general guidance on mitigating and preventing the spread of COVID-19 in the workplace, including to emphasize measures that can be taken to protect unvaccinated and otherwise at-risk workers, such as encouraging masking and vaccination, educating workers on virus-associated risks and safety protocols, as well as continuing to maintain rigorous cleaning procedures, and giving sick workers paid time off.
 Healthcare services mean services that are provided to individuals by professional healthcare practitioners for the purpose of promoting, maintaining, monitoring, or restoring health. Healthcare support services mean services that facilitate the provision of healthcare services.
 Fully vaccinated means two weeks or more following the final dose of a COVID-19 vaccine.
 Consistent with the requirements of anti-discrimination laws, the exceptions for certain workplaces where all employees are vaccinated does not require vaccination of individuals who cannot be vaccinated due to medical or religious reasons, provided that the employer provides a reasonable accommodation that does not expose the employee to hazardous working conditions.
 There are limited exceptions to this requirement as well, such as when a worker is alone or eating or drinking in the workplace in a physically distanced setting, wearing respiratory protection, or when a worker requires an accommodation under applicable anti-discrimination laws. In some instances, the ETS mandates the worker wear a plastic face shield if a mask cannot be worn.
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Please note: This article and any resources presented on the JW Coronavirus Insights & Resources site are for informational purposes only, do not constitute legal or medical advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed.