Building on President Biden’s Executive Order on Protective Worker Health and Safety issued on January 21, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) aimed at workers in healthcare settings. Specifically, the ETS, issued on June 10, 2021, requires certain healthcare employers to take measures to protect their workers in settings where suspected or confirmed COVID-19 patients are treated. This includes employees in hospitals, nursing homes, assisted living facilities, as well as emergency responders, home healthcare workers, and employees in ambulatory care settings where suspected or confirmed coronavirus patients are treated. The ETS went into effect on June 21, 2021. To comply, healthcare employers need to review their current policies and procedures and make appropriate adjustments to avoid enforcement action. The full text of the ETS can be found here.
The ETS requires non-exempt healthcare facilities to develop and implement a plan to identify and control COVID-19 in the workplace. This will include, among other things, the following list of requirements:
- implementing patient screening and
- providing personal protective equipment (PPE), including facemasks or respirators;
- requiring physical distancing of at least six feet, when feasible;
- ensuring physical barriers are present, where necessary;
- frequent cleaning and disinfection;
- proper ventilation systems;
- employee training; and
- reporting work-related COVID-19 fatalities and hospitalizations to OSHA.
While most requirements are practices hospitals and healthcare facilities may already have in place, it is imperative that covered employers review their protocols and policies to ensure compliance with the ETS.
Moreover, the ETS encourages vaccination by requiring employers to provide reasonable time and paid leave for employees to travel to and attend vaccination appointments, and to recover from any side effects of vaccines. Covered employees who have coronavirus or who may be contagious must work remotely or otherwise be separated from other workers, if possible, or be given paid time off up to $1,400 per week. For businesses with fewer than 500 employees, tax credits under the American Rescue Plan may be available.
Notably, the ETS exempts from coverage certain workplaces where all employees are fully vaccinated and individuals with possible COVID-19 are prohibited from entry. It also exempts from some of the requirements fully vaccinated employees in well-defined areas where there is no reasonable expectation that individuals with COVID-19 will be present.
In addition to the healthcare-focused ETS, OSHA is expected to issue updated guidance in other industries to protect workers who are still not vaccinated, with a special emphasis on industries with workers known for prolonged close contact, like meat processing, manufacturing, seafood, grocery, and high-volume retail.
Employers should note that they needed to comply with most ETS provisions within 14 days and with the remaining provisions within 30 days. OSHA plans to use its enforcement discretion to avoid citing employers who miss a compliance deadline but are making a good faith effort to comply with the ETS.
PilieroMazza recommends, among other actions, that healthcare employers review the ETS, examine their internal policies, and take measures to ensure compliance. If you need assistance navigating the requirements of the ETS and/or reviewing current policies and protocols, please contact the authors of this Client Alert, Christine Fries or Sara Nasseri, or a member of PilieroMazza’s Labor & Employment Group. Christine and Sara are also members of the Firm’s Healthcare Industry Team.
