DOL Issues Emergency Temporary COVID-19 Standard for Healthcare Industry and Updated COVID-19 Guidance for All Employers

On June 10, the Department of Labor’s Occupational Safety and Health Administration (OSHA) issued the Emergency Temporary Standard (ETS) for health care employers and Protecting Workers: Guidance for Mitigating and Preventing the Spread of COVID-19 in the Workplace (Guidance) for other employers regarding COVID-19. As a matter of course, employers are subject to the requirements of the Occupational Safety and Health Act (OSH Act), including regulations issued by OSHA and state-approved plans. The OSH Act requires employers to provide safe and healthful workplaces. Under the ETS, health care employers have additional obligations relating to COVID-19.

In OSHA’s ETS, OSHA provides mandated standards for the health care industry pertaining to COVID-19. In addition, OSHA issued new guidance, providing general direction for employers to protect their unvaccinated or otherwise at-risk workers.

Emergency Temporary Standard (ETS)

OSHA has limited the scope of the ETS to healthcare employers. The ETS is the first nationwide employer standard implemented regarding COVID-19.

Among other items, one key component of the regulation mandates the creation of a COVID-19 prevention plan. Some states, such as Michigan, have state-approved plans that have required some form of a COVID-19 prevention plan already. Under the regulations, a plan is required for each individual workplace in which the employer works or operates. For employers with more than 10 employees, the plan must be in writing.

A few of the items employers should be aware of are standards relating to: designation of workplace safety coordinators for the implementation and monitoring of the plan; creation of policies and procedures for minimizing the risk of transmission for each employee; communication and coordination with other employers when employees of different employers share the same physical location; protection of employees who enter private residences or physical locations not controlled by the OSH Act; and implementation of patient screening.

Employers must conduct a workplace-specific hazard assessment for potential COVID-19 related hazards. Notably, OSHA has provided that specific requirements from the new regulations may be eliminated if the plan includes policies and procedures for determining employees’ vaccination status.

The regulation is an interim final regulation, which means it was promulgated without first going through the ordinary notice-and-comment process. To receive and accommodate the perspectives of the public, OSHA has requested stakeholder comments on all aspects of the rule, including whether it should be made a final rule, within 30 days of the date the regulation is formally published in the Federal Register. The rule has not yet been promulgated in the Register, so there is a little extra time before this 30-day period begins.

Guidance on Mitigation and Prevention

All employers not covered by the ETS may turn to the Guidance issued by OSHA on prevention and mitigation. However, while these employers are still covered by OSHA regulations and standards, the Guidance makes clear that it is not a standard or regulation. The recommendations in the Guidance do not create a new legal obligation, but they are “intended to assist employers in providing a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.”

The Guidance focuses on the protection of unvaccinated workers, as unless required by another law, most employers are not required to take steps to protect fully vaccinated workers not otherwise at-risk for COVID-19. OSHA references the CDC’s Interim Public Health Recommendations for Fully Vaccinated People as guidance for individuals who are fully vaccinated.

Among the recommendations provided by OSHA are the following mitigation measures: provide paid time off for employees to receive vaccinations; instruct workers who are not vaccinated and are infected or experiencing COVID-19 symptoms or have been in close contact with an infected person to stay home; use physical distancing measures in communal work areas; and provide unvaccinated and at-risk workers with face coverings or surgical masks unless they otherwise require PPE for their work.

If you have any questions about the contents of this article or if you would like assistance implementing compliance systems or providing feedback to the Department, please contact Carolyn Horton at chorton@clarkhill.com, Anthony Campau at acampau@clarkhill.com, or your Clark Hill attorney.