By:  Jennifer Vorih, Esq., and Ty Hyderally, Esq.

On June 10, 2021, the Occupational Health and Safety Administration (OSHA) issued its first Emergency Temporary Standard in many years.  In fact, OSHA has only issued 9 Emergency Temporary Standards since it came into existence in 1970.  Normally, the process that has to followed to implement new OSHA standards, is very long and involved.  See https://www.osha.gov/laws-regs/standards-development.  However, when an ETS is warranted, OSHA can put one in place immediately, to be in effect until it is superseded by a permanent standard.  OSHA is authorized to issue an ETS only when it is necessary to protect workers from a “grave danger.”  OSHA has determined that exposure to COVID-19, which has infected over 33.5 million Americans, overrun our healthcare system, and killed more than 602,000 Americans to date, poses such a grave danger to healthcare workers.  Thus, it recently issued an ETS without going through the time-consuming rulemaking process.

The new ETS applies to settings in which any employee provides healthcare or healthcare support services, with certain exceptions. The ETS is directed at employees working in settings where COVID-19 patients are treated, and does not apply to: “Well-defined hospital ambulatory care settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings,” nor to several other settings in which it is unlikely that COVID-19 would be present. See https://www.osha.gov/sites/default/files/publications/OSHA4120.pdf.

Key Highlights of the ETS

Impacted employers must:

• Have a COVID-19 plan for each workplace, and the plan must be in writing if the employer has more than ten employees.
• Conduct appropriate patient screening and management.
• Undertake Standard and Transmission-Based Strategies, in accordance with CDC guidelines.
• Provide and ensure the proper use of Personal Protective Equipment (PPE).
• Ensure that proper precautions are undertaken when an Aerosol-generating procedure is performed on a person who has or is suspected to have COVID-19.
• Ensure social distancing of at least six feet between each employee and any other person when indoors.
• Install physical barriers which can be cleaned or are disposable, at each fixed workstation if the above social distancing is not maintained.
• Conduct cleaning and disinfection in accordance with CDC guidelines.
• Ensure that ventilation systems are used appropriately.
• Conduct health screening and management of employees.  Those employers which mandate testing must provide the testing at no cost to employees. In most circumstances, employers must continue to pay employees who are removed from the workplace due to COVID-19.
• Provide employees with leave and reasonable time for vaccination and effects thereof.
• Provide training – at the appropriate literacy level and in the appropriate language – regarding transmission of COVID-19.
• Inform employees of their rights under the ETS, and not retaliate against employees for exercising their rights under the ETS nor for complying with the ETS.
• Implement requirements of the ETS at no cost to the employees.
• Keep records of all employee instances of COVID-19, if employing more than ten employees.
• Report COVID-19 hospitalizations and deaths to OSHA.  Deaths must be reported to OSHA within 8 hours, and hospitalizations within 24 hours, of the employer having knowledge of such event.
• Under certain circumstances, participate in a mini respiratory protection program.

It is important to note that the “ETS exempts fully vaccinated workers from masking, distancing, and barrier requirements when in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.”

The ETS took effect on June 10, 2021, and will remain in place until it is superseded by a permanent Standard.

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