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 However, when an ETS is warranted, OSHA can put one in place immediately, to be in effect until it is superseded by a permanent standard.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:
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The ETS took effect on June 10, 2021, and will remain in place until it is superseded by a permanent Standard.
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