Background. On June 10, 2021, OSHA issued its long-awaited emergency temporary standard in response to the COVID-19 pandemic (COVID ETS). The long-awaited COVID ETS surprised many by only providing an actual rule for the healthcare sector, and recommendations or “guidance” for everyone else. While many workplaces have been anticipating sweeping workplace regulations for months, OSHA’s rule leaves most wondering why the wait was necessary.
The rule applies ONLY to the healthcare sector. With few exceptions, the only workplaces bound by OSHA’s COVID ETS are employers where medical professionals provide healthcare. The COVID ETS defines its scope as applying to “settings where any employee provides healthcare services or healthcare support services.” But the term “healthcare services” is specifically limited to “services provided to individuals by professional healthcare practitioners (e.g., doctors, nurses, emergency medical personnel oral health professionals).” Unless you have professional doctors, nurses or EMTs working on staff, the rule does not apply to your workplace. And where a healthcare setting is embedded in a nonhealthcare setting (like a clinic at a manufacturing plant), the rule applies only to the embedded healthcare clinic — not to the entire plant. The rule’s application is therefore exceptionally narrow.
We discussed more particularly the COVID ETS’s requirements for the healthcare sector. For more information, see our previous Client Alert.
All other workplaces receive “updated” guidance. While the COVID ETS squarely addressed the healthcare sector, OSHA issued only guidance — and not a formal rule — to the rest of the regulated community. The guidance lacks the direct, punitive component of a requirement, but should be followed where possible to lower the risk of liability. Three key features of the guidance are set out below.
Recommendations relaxed for vaccinated workers. Consistent with the CDC’s recent recommendations, “unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure.” As with certain aspects of the healthcare rule, OSHA provides an inducement to workers to get the vaccine but stops short of requiring it.
Recommendations remain for the unvaccinated. OSHA’s guidance does state that employers should continue to take steps to protect unvaccinated or otherwise at-risk workers. For many employers, the guidance does not impose additional requirements for these workers but merely urges their employers to keep in place measures previously recommended by the CDC. Examples of the measures OSHA continues to urge for unvaccinated or otherwise at-risk employees include now-common mitigation techniques like excluding unvaccinated employees from the workplace who have been in close contact with a COVID-19-positive case, limiting the number of unvaccinated and at-risk workers in one place at any given time, maintaining physical barriers where unvaccinated or at-risk workers cannot maintain at least six feet of distance, ensuring nonpunitive absence policies, and neither encouraging nor requiring working while sick.
“Higher-risk workplaces” have additional recommendations. Higher-risk workplaces — primarily manufacturing; meat, poultry and seafood processing; and high-volume retail — should pay increased attention to the general recommendations. OSHA also adds a suite of other recommendations, such as (1) stagger break times and arrival/departure times to avoid groups of unvaccinated/at-risk workers congregating during breaks, (2) continue to maintain social distancing for unvaccinated/at-risk workers and provide reminders about distancing through visual cues (e.g., floor markings, signs), (3) suggest masks for unvaccinated (or unknown-status) consumer and visitors, and (4) implement strategies to improve ventilation that protects workers as outlined in prior CDC and OSHA guidance.
Many employers may astutely point out that while OSHA’s guidance does not itself impose fines for employers who fail to comply, OSHA’s catch-all provision — the General Duty Clause — is still waiting for employers who flout the guidance. This is true. It would no doubt be hard for an employer to defend against a General Duty Citation if it implemented none or very few of the measures outlined in this guidance. But each measure is contained within the overall framework of guidance and is not a stand-alone rule. In simple terms, this means that employers outside the healthcare sector are not required by OSHA’s new COVID-19 guidance to do any one thing — but it is advisable to implement as many of OSHA’s recommendations as possible.
Conclusion: The bottom line is that, besides the new rule for the healthcare sector, the OSHA emergency temporary standard constitutes little additional regulation for most workplaces. For employers that have long been following guidance from the CDC and other state and local agencies, the best plan of action is to simply stay the course.
Authorship Credit: Darren Crook and Nathaniel O. Hanna