Tuesday was the deadline for health care employers to comply with most requirements in the Occupational Safety and Health Administration’s COVID-19 emergency temporary standard, which was issued in June after months of delays. Attorneys say the narrowly tailored ETS is likely to be OSHA’s last enforceable measure for dealing with the pandemic, but employers in all industries should continue to watch for guidance on how to navigate reopening.
The ETS focuses on health care workers who are most at risk of contracting COVID, including employees in hospitals, nursing homes, assisted living facilities, emergency responders, certain home health workers and workers in ambulatory care settings. The ETS doesn’t apply to retail pharmacists, certain telehealth workers and some health care workers in settings where employees are fully vaccinated and non-employees are screened for COVID.
The ETS requires covered health care facilities to conduct a hazard assessment and have a written plan to mitigate virus spread. The ETS also requires employers to provide N95 respirators and other personal protective equipment to employees and ensure physical distancing or barriers between employees.
The ETS requires covered employers to provide workers paid time off to get vaccinated and recover from any side effects. Employees with COVID-19 must work remotely, be separated from other workers or be given paid time off.
Fisher Phillips partner Kristin White said the written COVID-19 plan requirement could catch some health care employers off guard. Most already have processes in place to mitigate virus transmission, White said, “but they don’t always have everything written down.”
According to White, health care employers covered by the ETS should also pay attention to changes in reporting and recording requirements. The ETS requires employers to report all work-related COVID-19 employee deaths or in-patient hospitalizations, regardless of the time since workplace exposure. Previously, employers had to report only if they determined the hospitalization occurred within 24 hours of workplace exposure or the fatality occurred within 30 days of workplace exposure.
The ETS requires covered employers to maintain a COVID-19 log to record all cases in which an employee has COVID-19. “I doubt healthcare employers would have been maintaining a COVID-19 log simply because that wasn’t a requirement before,” White said. Previously, employers only had to record COVID cases on OSHA logs if the cases were determined to be work-related. “Now you’re going to have a separate COVID-19 log for any positive case regardless of whether it’s a workplace exposure or not,” White said.
For Everyone Else
Days after the ETS was issued, OSHA updated its non-binding guidance for employers outside the health care industry. The guidance focuses on protecting unvaccinated workers and those considered “at-risk,” such as transplant recipients and people who have used immune-weakening medications. The guidance recommends implementing distancing measures and providing facial coverings for unvaccinated or at-risk workers.
The guidance also recommends employers improve and maintain ventilation systems, educate employees about COVID policies in accessible formats and in a language they understand, and implement an anonymous process with retaliation protections for employees who voice pandemic-related concerns.
The OSHA guidance states that unless required by local law, “most employers no longer need to take steps to protect their fully vaccinated workers” who are not otherwise at risk. However, most workplaces will have either unvaccinated or at-risk workers, said Sherman & Howard member Pat Miller, “so the guidance is still useful for employers in terms of how to deal with workplaces where there is a mixture of vaccinated and unvaccinated workers.”
Employers are allowed to ask employees for proof of vaccination, but many are taking workers at their word when it comes to vaccination status. “I think you have to do something more than just the honor system,” White said. “We’ve talked with employers about how, if you don’t want to check vaccination records, you could have employees sign a declaration, so at least you have something … where the employee makes an affirmative statement that they are vaccinated.”
Employers were waiting for months to see whether OSHA would release an ETS to address the pandemic situation. The agency rarely exercises its ETS authority; the last time it did so was in 1983 for asbestos.
On his second day in office, President Joe Biden issued an executive order directing OSHA to consider whether a COVID-19 ETS was necessary and, if so, to issue the new standard by March 15. OSHA missed that deadline, but it did launch a national emphasis program March 12 to focus enforcement efforts on industries where workers were at greater risk, including health care settings, meat processing facilities, supermarkets and restaurants.
In late April, OSHA submitted a draft ETS to the White House for review. According to Bloomberg Law, the draft standard was originally intended to apply to employers in all industries. But in May, the U.S. Centers for Disease Control and Prevention recommended that fully vaccinated people no longer need to wear masks indoors, which “threw a wrench into OSHA’s plans,” Miller said, and the agency ended up limiting its ETS to health care settings.
Labor unions were displeased by the narrowness of the new OSHA rule and have asked federal appeals courts to review the ETS, which they say “fails to protect employees outside the healthcare industry.”
Employers outside the health care industry have had a different reaction. “For the most part, employers were relieved that they’re not going to be regulated now,” Miller said, “because they’ve been left to figure it out largely on their own for well over a year.”
The attorneys said they don’t expect the labor union challenges to the ETS to be successful, and they said it is unlikely OSHA will release any additional binding rules to address COVID-19. “Barring some new variant that shuts everything down again, I don’t see any standards coming out any time soon,” Miller said.
While everyone hopes the pandemic is waning, the highly contagious Delta variant could shake up plans for reopening and a return to the workplace. A recent survey of HR professionals by the Society for Human Resource Management found that half of U.S. employers are concerned about the variant. The same survey found that about 85% of employees who are working in person feel comfortable about their safety. But even as vaccination rates rise, there are still many workers who are nervous about going back to the office.
“One of the hurdles we’re seeing right now is mental health concerns,” White said. “We’re having employees that are scared about coming back and truly having some mental health concerns [about] coming back to work.” To address those concerns, White recommended employers educate their employees about the steps they are taking to make the workplace safe.
The attorneys noted that OSHA’s work hasn’t been limited to addressing the pandemic. “We’ve paid so much attention to COVID that a lot of non-COVID areas have somewhat flown under the radar,” Miller said, adding that “there’s an emphasis locally, at least enforcement wise, on silica.” Additionally, the agency announced last month that inspectors will conduct random weekend inspections of construction sites in Colorado, and OSHA’s Denver and Englewood offices will continue the inspections into the fall. “We’re seeing a lot of new inspectors starting in the field,” White said.