The Occupational Safety and Health Administration (OSHA) issued important updates to its COVID-19 guidance for employers on June 10. To start, the long-awaited COVID-19 Emergency Temporary Standard (ETS) is effective immediately, but it only applies to employers in healthcare and healthcare support services settings. Employers covered by the ETS have 14 days (from the date that the ETS is published in the Federal Register, which could be any day now) to comply with most provisions, and 30 days (also from the date of publication in the Federal Register) to comply with the provisions related to physical barriers, ventilation, and training.
For all other employers, OSHA separately updated its guidance on mitigating and preventing the spread of COVID-19 in the workplace, which now expressly “focuses only on protecting unvaccinated or otherwise at-risk workers in their workplaces (or well-defined portions of workplaces).” Indeed, OSHA acknowledges that outside of workplaces covered by the ETS or 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.” OSHA cautions that employers should continue to protect unvaccinated or otherwise at-risk workers.
The ETS – New Requirements for Healthcare Employers
Whom Does the ETS Cover?
The ETS applies to “all settings where any employee provides healthcare services or healthcare support services.” The ETS defines these two terms as follows:
- Healthcare services – means services that are provided to individuals by professional healthcare practitioners (doctors, nurses, emergency medical personnel, oral health professionals) for the purpose of promoting, maintaining, monitoring, or restoring health. Healthcare services are delivered through various means including hospitalization, long-term care, ambulatory care, home health and hospice care, emergency medical response, and patient transport. For the purposes of the ETS, health services includes autopsies.
- Healthcare support services – means services that facilitate the provision of healthcare services. Healthcare support services include patient intake/admission, patient food services, equipment and facility maintenance, housekeeping services, healthcare laundry services, medical waste handling services, and medical equipment cleaning/reprocessing.
There are several exceptions to coverage under the ETS. The ETS does not apply in the following circumstances:
- When first aid is provided by an employee who is not a licensed healthcare provider
- The dispensing of prescriptions by pharmacists in retail settings
- Non-hospital ambulatory care settings (i.e., outpatient settings) where (1) all non-employees are screened prior to entry and (2) people with suspected or confirmed COVID-19 are not permitted to enter
- Well-defined hospital ambulatory care settings where (1) all employees are fully vaccinated, (2) all non-employees are screened prior to entry and (3) people with suspected or confirmed COVID-19 are not permitted to enter
- Home healthcare settings where (1) all employees are fully vaccinated, (2) all non-employees are screened prior to entry, and (3) people with suspected or confirmed COVID-19 are not present
- Healthcare support services not performed in a healthcare setting (e.g., off-site laundry, off-site medical billing)
- Telehealth services performed outside of a setting where direct patient care occurs
The ETS also identifies three other scenarios where the ETS’s applicability is limited:
- Where a healthcare setting is embedded within a non-healthcare provider (e.g., medical clinic in an office environment or manufacturing facility, or a walk-in clinic in a retail setting), the ETS applies only to the embedded healthcare setting and not to the remainder of the physical location.
- Where emergency responders or other licensed healthcare providers enter a non-healthcare setting to provide healthcare services, the ETS applies only to the provision of the healthcare services by those employees.
- In well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present, the ETS provisions for PPE, physical distancing, and physical barriers do not apply to fully vaccinated employees when they are in these well-defined areas. All other provisions of the ETS apply, absent some other exception. Moreover, to meet this exception, the COVID-19 plan must include policies and procedures to determine employee vaccination status.
If—like the vast majority of workplaces in the United States—your workplace does not include a healthcare setting and thus is not covered by the ETS, you can move on to the section below on OSHA’s Updated Guidance for Employers in All Other Settings.
What Does the ETS Require?
The ETS is effective immediately, and covered employers will have 14 days from the date that it is published in the Federal Register to implement most provisions. Employers are required to cover any costs associated with implementing changes mandated by the ETS (with the exception of employee self-monitoring for COVID-19).
There are a range of important provisions in the ETS, including the following key takeaways:
- Development of a COVID-19 Plan: Employers must develop and implement a COVID-19 plan for each covered workplace or workplace type if the employer has multiple substantially similar workplaces. Employers with more than 10 covered employees must have a written plan. The plan must designate a safety coordinator with authority to ensure compliance, include a workplace-specific hazard assessment, and contain policies and procedures to minimize the risk of transmission of COVID-19 to employees. Employers must “involve” non-managerial employees in the hazard assessment and plan development and implementation.
- Personal Protective Equipment (PPE): Employers must provide and ensure employees properly wear facemasks that meet OSHA standards, except when an employee is alone in a room, an employee is eating or drinking and at least six feet away from other persons or behind a physical barrier, an employee is wearing respiratory protection, when it is important to see a person’s mouth and conditions do not permit use of a clear plastic mask, and when employees cannot wear facemasks due to medical necessity or risk of serious injury or death. The employer must also provide respirators or other PPE to employees in accordance with CDC Guidelines for Isolation Precaution. Required PPE must be provided at no cost to employees, although employees may provide their own additional PPE and the employer is not required to reimburse the employee for those costs.
- Physical Distancing, Barriers, and Cleaning Requirements: Employers must ensure that employees are practicing social distancing and staying at least six feet apart while indoors. In non-patient care areas where employees are not socially distanced, employers must install cleanable or disposable solid barriers at each fixed work station. Employers must also follow standard practices for cleaning and disinfecting patient care areas and medical devices and equipment. Further, employers must clean high-touch surfaces daily, and clean and disinfect workplaces where the employer is aware that a COVID-19 positive person was present within the last 24 hours.
- Health Screening and Medical Management: Employers must screen employees for COVID-19 prior to each workday and shift; require employees to promptly notify the employer if the employee tests positive for COVID-19, suspects they have COVID-19, or has certain COVID-19 symptoms; notify certain employees within 24 hours if a person with COVID-19 was in their workplace; and follow requirements for removing employees who are COVID-19 positive.
- Medical Removal Benefits: Critically, employers with more than 10 employees must provide protected paid leave and benefits to employees, at their regular wages up to a permissible cap of $1,400 a week, if the employee is unable to work due to COVID-19 or COVID-19 exposure, regardless of whether the employee was exposed at work or outside the workplace. For employers with more than 10 but fewer than 500 employees, the $1,400 cap applies for two weeks and then is reduced to two-thirds of regular pay, up to $200 a day, for week three onward, if needed. Nothing in the ETS suggests that there is any cap on how many times an employee may be entitled to benefits. In addition, the employer is not required to provide overtime pay, even if the employee had regularly worked overtime hours in recent weeks. The employer may reduce the amount paid to the removed employee by compensation the employee receives for lost earnings from any other source, such as employer-paid sick leave, administrative leave, or a publicly funded compensation program. For employers with fewer than 500 employees, tax credits are available under the American Rescue Plan for voluntarily provided COVID-19 sick leave, which could be used to offset some of these costs.
- Paid Time Off for Vaccination: Employers must provide reasonable time and paid leave for employees to receive COVID-19 vaccinations and recover from any side effects of vaccination. Generally, OSHA presumes that, if an employer makes available to its employees four hours of paid leave for each dose of the vaccine, as well as up to 16 additional hours of leave for any side effects of the dose(s) (or eight hours per dose), the employer would be in compliance with this requirement.
- Recordkeeping and Reporting: Employers with more than 10 employees must retain all versions of any COVID-19 plan they implement while the ETS is in effect. Those employers also must log and record each instance in which an employee is COVID-19 positive regardless of whether the infection is connected to an exposure at work. All employers must report each work-related COVID-19 fatality to OSHA within eight hours of learning about the fatality and each work-related COVID-19 in-patient hospitalization within 24 hours of learning about the event. For employers/healthcare settings covered by the ETS, this reporting requirement is not limited to in-patient hospitalizations that occur within 24 hours of the work-related exposure and is not limited to a fatality that occurs within 30 days of the work-related exposure.
- Other: The ETS also requires that employers implement COVID-19 screening procedures at points of entry to direct care settings for employees, patients, clients, non-employees, and visitors. Employers must also develop and implement standard and transmission-based precaution policies that adhere to CDC’s Guidelines for Isolation Precautions.
Importantly, employers must not retaliate against employees for exercising rights under the ETS or for taking any action required by the ETS. Employers also must ensure that employees receive appropriate and accessible training on COVID-19 policies, transmission prevention procedures, anti-retaliation rights, and other topics.
OSHA Guidance Applies to All Employers Not Covered by the ETS
Despite prior expectations of a broadly applicable COVID-19 ETS, OSHA ultimately decided to limit the ETS to healthcare employers. For all other employers/workplace settings (i.e., the substantial majority of businesses in the United States), OSHA instead opted to make a handful of updates to its previously issued Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.
Importantly, OSHA’s nonbinding guidance now expressly “focuses only on protecting unvaccinated or otherwise at-risk workers in their workplaces (or well-defined portions of workplaces).” OSHA states that unless otherwise required by law, “most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure.” Through this guidance, OSHA has acknowledged that non-healthcare employers can follow the CDC’s guidance for fully vaccinated people unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations. Throughout its guidance, OSHA strongly encourages vaccination by eliminating workplace safety requirements for fully vaccinated workers.
Finally, OSHA’s updated guidance also contains more specific considerations and recommendations for certain high-risk workplaces in a new Appendix titled “Measures Appropriate for Higher-Risk Workplaces with Mixed-Vaccination Status Workers.” Higher-risk workplaces are primarily workplaces where unvaccinated or otherwise at-risk workers are more likely to be in prolonged, close contact with other workers or the public (e.g., manufacturing, meat and poultry processing, high-volume retail and grocery, and seafood processing). For these workplaces, OSHA recommends the following:
- In all higher-risk workplaces (where there are unvaccinated or otherwise at-risk workers), OSHA recommends staggering break times, staggering workers’ arrival and departure times to avoid congregations of unvaccinated at-risk workers, providing visual cues (e.g., floor markings, signs) as a reminder to maintain physical distancing, and implementing strategies to improve ventilation.
- In workplaces with processing or assembly lines where there are unvaccinated or otherwise at-risk workers, OSHA recommends proper spacing or use of barriers.
- In retail workplaces, OSHA recommends that employers suggest masks for unvaccinated (or unknown-status) customers and other visitors, and consider physical distancing or barriers between work stations used by unvaccinated or otherwise at-risk workers and the locations customers will stand. Other recommendations include moving the electronic payment terminal/credit card reader farther away from any unvaccinated or at-risk workers and shifting stocking activities to off-peak or after hours when possible.
In short, non-healthcare employers (not covered by the ETS) who follow OSHA and CDC guidance, including the guidance for fully vaccinated people, likely satisfy OSHA’s General Duty Clause when it comes to COVID-19. Of course, employers also must comply with stricter state and local laws, including in OSHA state plan states like California. For example, see CAL/Osha Standards Board Tenuously Approves Updated COVID-19 Prevention Standards.
Implications for Employers
The welcome news for non-healthcare employers (not subject to the ETS) is that compliance with general CDC and OSHA guidance likely satisfies their obligations under the Occupational Safety and Health (OSH) Act. Although there was concern prior to the ETS’s release that it would cover a broader range of settings, employers outside of “healthcare services” and “healthcare support services” are breathing a sigh of relief. They now have confirmation that— absent contrary federal, state, or local, laws or regulations—compliance with practices recommended by OSHA and public health agencies related to COVID-19 should be sufficient to meet employer obligations under the OSH Act’s General Duty Clause.
For employers who must comply with the ETS because they operate a healthcare setting or healthcare support setting, there are several points to highlight:
- Employee Vaccination: OSHA’s ETS (and even its non-binding guidance) tout the importance and benefits of employee vaccination. The ETS explicitly exempts certain care settings from coverage if all employees are vaccinated. Vaccinated employees also may be exempted from the ETS’s social distancing, PPE, and physical barrier requirements. It is important to note that an employer can still consider a workspace fully vaccinated if the only unvaccinated employees are those given reasonable accommodations under applicable federal civil rights laws.
- Paid Leave and Equipment Mandate: The ETS states that all changes required by the standard, including provision of equipment and testing, must be made at no cost to employees. In addition, the ETS requires healthcare employers to grant paid time off, subject to certain caps and offsets against other benefits available to the employee (e.g., existing paid leave provided by an employer), to employees who are unable to work due to COVID-19 infection or exposure. This could impose significant costs on healthcare service providers, especially as the ETS does not expressly cap the number of times an employee would be entitled to paid leave.
- Enhanced Recording and Reporting Requirements: Before the ETS was released, employers only needed to record COVID-19 infections when the infection was the result of workplace exposure. The ETS now requires that employers with more than 10 employees log each COVID-19 positive case regardless of whether the case is work-related.
Employers should closely study the ETS to determine if they are covered and identify any changes to practices or policies that they may need to make, including employee training obligations. We continue to recommend that employers monitor state and local developments, as they can impose requirements beyond those put out by federal agencies, including OSHA.
Return to Work Resources
We have developed many customizable resources to support employers’ efforts in safely returning to work. These include tracking of state and local orders on return to work requirements and essential/nonessential work; policy templates and guidelines for key topics such as social distancing procedures, temperature testing, and workplace arrangements for high-risk employees; and webinar training on safety measures for return to work. View the full list of return to work resources and consult our workplace reopening checklist.
NAVIGATING THE NEXT.
Sharing insights and resources that help our clients prepare for and address evolving issues is a hallmark of Morgan Lewis. To that end, we maintain a resource center with access to tools and perspectives on timely topics driven by current events such as the global public health crisis, economic uncertainty, and geopolitical dynamics. Find resources on how to cope with the globe’s ever-changing business, social, and political landscape at Navigating the NEXT and Coronavirus COVID-19 to stay up to date on developments as they unfold. Subscribe now if you would like to receive a digest of new updates to these resources.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Susan Feigin Harris
Jason S. Mills
E. Pierce Blue
Sharon P. Masling
Jonathan L. Snare