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.
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:
There are several exceptions to coverage under the ETS. The ETS does not apply in the following circumstances:
The ETS also identifies three other scenarios where the ETS’s applicability is limited:
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:
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.
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 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.
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:
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.