On June 10, the Occupational Safety and Health Administration (OSHA) announced an Emergency Temporary Standard (ETS) for COVID-19 in healthcare settings. If you’re an employer in the healthcare context, that announcement certainly got your attention. But if you’re not in the healthcare setting, keep reading—don’t let OSHA’s other announcement slip under the radar. On the same day, OSHA also issued revised guidance for non-healthcare settings. While this guidance is advisory, it is nevertheless important for employers to consider when updating health and safety plans. Below we highlight notable points from the ETS and the revised guidance.
What’s new and notable?
- A more limited ETS than might have been issued—OSHA issued an ETS for healthcare settings only. The ETS applies to workplaces where any employee provides healthcare services or healthcare support services—but there are certain significant exceptions. Consult the flow chart that OSHA issued to determine whether and how a workplace might be covered by the ETS. For information about requirements under the ETS, including hazard assessments, planning, and PPE, consult the Fact Sheet and OSHA’s guide to Frequently Asked Questions about the ETS.
- Impact on the fully vaccinated workforce—Under OSHA’s new guidance for employers not covered by the ETS, most employers do not need to continue to enforce COVID-19 control measures, such as mask-wearing and physical distancing, for most fully vaccinated workers.
- Continued measures required for the unvaccinated and otherwise at-risk—According to OSHA, employers should identify exposure risks and take appropriate steps to prevent exposure for workers who are unvaccinated or “otherwise at-risk,” including people who have been fully vaccinated but did not have a full immune response to the vaccine because of certain medical conditions. OSHA highlighted four “key controls:” separation of sources (removal of certain people from the workplace, including those with COVID-19 or symptoms of COVID-19); implementing physical distancing; maintaining and improving ventilation; and requiring face coverings or PPE where appropriate. There should be a “multi-layered” intervention strategy that includes the four key controls as well as other measures, such as education and training.
- References to compliance under the ADA—When explaining employers’ obligations to otherwise at-risk workers, OSHA emphasizes that workers with these underlying medical conditions may be entitled to reasonable accommodations under the Americans with Disabilities Act (ADA).
- Approach to vaccination—OSHA encourages vaccination, including a recommendation that employers should grant time off to workers to get vaccinated.
- Key takeaway #1 – The importance of vaccination. OSHA’s guidance was silent on whether employers should consider mandatory vaccination programs, but the significance of vaccination was nevertheless obvious.
- Key takeaway #2 – Identifying applicable rules or guidance. Employers will need to determine if the ETS will apply to anyone in the workforce. Recognize that these announcements, including the revised guidance, are not the only source of rules and recommendations for COVID-19 control measures. If you are in a state with an OSHA-approved State Plan, you could be subject to rules that are more stringent than OSHA standards. Other applicable rules, such as mask mandates, might still be in place in your state or local jurisdiction.
- Key takeaway #3 – Control measures for unvaccinated and otherwise at-risk workers. There is excitement about relaxing COVID-19 controls for fully vaccinated workers, but OSHA cautions that employers should continue to take measures to protect unvaccinated and otherwise at-risk workers.
- Key takeaway #4 – Measures for higher-risk workplaces. While the ETS focused on one type of higher-risk workplace—the healthcare setting—OSHA’s revised guidance also called out other contexts that present higher risks when the workplace contains mixed-vaccination status workers. Examples include workplaces where workers are in close contact, such as on assembly lines, or are in prolonged contact with one another, such as when they work closely together for 8-12 hour shifts. Employers in these settings need to take additional mitigation steps. The Appendix to the guidance includes measures suggested for higher-risk non-healthcare workplaces.
- Key takeaway #5 – Enforcement potential. The ETS is a mandatory standard. OSHA may issue citations based on standards under Section 5(a)(2) of the Occupational Safety and Health Act (the OSH Act). The guidance is advisory, but failing to take recommended steps under the guidance increases the likelihood that an employer could be subject to a General Duty Clause citation under Section 5(a)(1) of the OSH Act. Further, both the ETS and the guidance emphasize anti-retaliation concerns. Employers should consider mitigation steps to prevent retaliation, including issuing or updating policy documents, providing training, and clearly communicating reporting protocols.
It is important to recognize that OSHA’s guidance is not a roadmap for a particular workforce. It provides recommendations, but you should determine what is necessary based on the jurisdictions in which you operate and the contexts in which your employees work. For example, the guidance does not tell you exactly what to do if you’re in California versus Iowa, or if you have factory workers versus office workers. Ultimately, you should take reasonable steps to protect the health and safety of your workers given the relevant context.