On June 21, 2021, OSHA issued its Covid-19 Emergency Temporary Standards (“ETS”). The ETS is aimed at protecting workers facing the greatest risk of COVID-19—those working in healthcare settings where COVID-19 patients may be treated. Employees working in healthcare services and healthcare support services includes a broad range of employees, outside of just a hospital setting.
The ETS requires employers to implement COVID-19 plans that include the designation of a safety coordinator, a workplace-specific hazard assessment, and policies and procedures to minimize the risk of transmission of COVID-19 to employees. Specifically, this includes patient screening and management plans, standard and transmission-based precautions, PPE, aerosol-generating procedures for those with COVID-19, physical distancing, physical barriers, cleaning and disinfection, ventilation, health screens and medical management, vaccinations, trainings, anti-retaliation policies, recordkeeping, and reporting work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.
Here are some of the additional considerations that employers should be considering:
- At the outset, it is important to note there are numerous carveouts that exempt a wide range of healthcare providers from the ETS requirements. Employers should carefully assess these carveouts to ensure they are truly covered by the ETS.
- OSHA will use its enforcement discretion for employers who are making a good faith effort to comply with the ETS. It is important to document compliance efforts with the ETS.
- Employers seem most concerned with ensuring compliance with the paid leave provisions for employees needing to quarantine. One option that we have seen clients choose to do is to temporarily modify existing sick leave policies to advance sick leave not yet earned to allow employees to take the necessary time off. Remember, the ETS paid leave provisions only apply to quarantines related to occupational contacts. It does not apply to quarantines caused by non-occupational contacts, such as a household contact, community contact, or out-of-state travel.
- With the emphasis potentially on the paid leave provisions, employers may be unfortunately neglecting the hazard assessments. This is an important part of the ETS and relatively simple to comply, but potentially time consuming.
- Even if you determine the ETS does not apply to your organization, remember that OSHA’s general duty clause still applies. This means you must otherwise ensure you are providing employees with a safe work environment. An easy general duty violation would be not confirming unvaccinated employees are continuing to wear a mask. With shifting CDC guidance, this general duty clause issue may gain more attention in the near future.
If you have any questions about complying with OSHA’s ETS, or ETS exemptions, seek legal guidance.
