OSHA Issues COVID-19 Rule for Health Care Industry and Guidance for Other Industries

Pillsbury Winthrop Shaw Pittman LLP

In response to President Biden’s January 2021 Executive Order, OSHA finally issues a proposed emergency temporary standard, albeit for the health care industry only.

TAKEAWAYS

  • Health care industry is to comply with most provisions within 14 days of the proposed rule’s publication in the Federal Register.
  • Guidance for non-health care industries is focused on protection of unvaccinated workers and encourages vaccination.
  • Unless required by other laws, most employers no longer need to take steps to protect fully vaccinated workers.

On January 21, 2021, President Biden issued an Executive Order directing the Occupational Safety and Health Administration (OSHA) to consider whether emergency temporary standards are necessary, and if so, to issue them by March 15, 2021. OSHA missed the deadline and did not submit a rule to the White House Office of Management and Budget (OMB) for review until April 26, 2021. The necessity for such standards was and is under debate in light of decreased transmission rates and increased vaccination rates, Centers for Disease Control and Prevention guidance, and gradual state reopenings. However, after the OMB completed its review on June 9, 2021, OSHA issued an Emergency Temporary Standard (ETS, or Healthcare ETS) to address COVID-19, in the health care industry only, at 29 CFR 1910.502 on June 10, 2021.

The Healthcare ETS applies to settings where any employee provides health care services or health care support services, such as hospitals, nursing homes, and assisted living facilities. Notably, fully vaccinated workers are exempt 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.

Key Requirements of Healthcare ETS

  • COVID-19 plan (required to be in writing if more than 10 employees)
  • Patient screening and management
  • Standard and transmission-based precautions
  • Personal protective equipment
  • Physical distancing
  • Physical barriers
  • Aerosol-generating procedures on persons with suspected or confirmed COVID-19
  • Cleaning and disinfection
  • Ventilation
  • Health screening and medical management
  • Vaccination
  • Training
  • Anti-retaliation
  • Requirements must be implemented at no cost to employees
  • Recordkeeping
  • Reporting COVID-19 fatalities and hospitalizations to OSHA
  • Mini respiratory protection program at 29 CFR 1910.504

The ETS is effective immediately upon publication in the Federal Register. Employers must comply with most provisions within 14 days, and with provisions involving physical barriers (29 CFR 1910.502(i)), ventilation (29 CFR 1910.502(k)), and training (29 CFR 1910.502(n)) within 30 days.

The 28 states with their own OSHA-approved plans must either amend their standards to be identical, or “at least as effective as” the new standard, or show that an existing state standard is “at least as effective” as the new standard. Within 30 days of the promulgation date of the final rule, states must adopt the ETS.

A link to OSHA’s webpage for the ETS is here.

Key Takeaways for Industries Not Covered by Healthcare ETS

  • The guidance creates no new legal obligations. Employers must still comply with applicable existing OSHA standards and regulations, including the General Duty Clause, Section 5(a)(1), which requires employers to provide workers with a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.
  • Unvaccinated workers are to follow their employer’s existing COVID-19 prevention programs. If a program does not exist, unvaccinated workers are to (1) identify opportunities to get vaccinated; (2) properly wear face coverings; (3) physically distance; (4) participate in relevant training opportunities; and (5) practice good personal hygiene, monitor health daily, and be alert for COVID-19 symptoms.
  • Employers should grant paid time off for employees to get vaccinated.
  • Employers should suggest that unvaccinated customers, visitors, or guests wear face coverings, especially in public-facing workplaces such as retail establishments.

The full text of the guidance is here.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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