On January 21, 2021, one day after his inauguration, President Biden signed an executive order directing the Occupational Safety and Health Administration (OSHA) to consider issuing a broad emergency temporary standard (ETS) on COVID-19 in the workplace. But because COVID-19 cases have decreased significantly since January, on June 10, 2021, OSHA issued an ETS applicable to healthcare employers only. For other employers, like those in manufacturing, construction, and retail, the agency simply updated its existing voluntary guidance.
The ETS mandates virus protections in healthcare workplaces, defined as “all settings where any employee provides healthcare services or healthcare support services,” with several exceptions. OSHA published a flow chart to help employers determine if they are covered by the ETS. Where a healthcare setting is embedded in a non-healthcare facility, such as a medical clinic located in a manufacturing plant or retail store, the ETS applies only to the embedded healthcare setting and not to the remainder of the physical location. The ETS does not apply to the provision of first aid by an employee who is not a licensed healthcare provider.
Some of the key requirements of the new rule for covered employers are to:
The ETS exempts fully vaccinated employees from the facemask, physical distance, and barrier requirements in well-defined areas if the employer determines there is no reasonable expectation that another person with suspected or confirmed COVID-19 will be present.
The ETS could take effect within days. Once it goes into effect, covered employers must comply with most of the requirements within 14 days, but they will have 30 days to comply with requirements that could require physical changes to workspaces and buildings, like those involving barriers and ventilation. The emergency rule will be limited to a duration of six months.
Pending adoption of the ETS in state plan states like South Carolina and North Carolina that have not enacted their own COVID-19 standards, employers can expect state OSHA agencies to take the requirements of the ETS into account in determining whether employers are complying with the General Duty Clause (GDC). The GDC, in effect, requires employers to provide a safe workplace for employees. State plan states must adopt standards that are “at least as effective” as OSHA’s.
On June 10, 2021, OSHA also updated its previously issued COVID-19 guidance applicable to all employers by adding references to the CDC’s recent recommendations for fully vaccinated people and addressing how to protect workers who are unvaccinated or are otherwise deemed to be at high risk of infection or serious illness.
According to the updated guidance, employers not covered by the ETS should consider implementing “multi-layered interventions” to protect workers, including:
Whether covered by the ETS or the updated guidance, employers should review the latest information from OSHA and make any necessary adjustments in their compliance programs.