OSHA Issues Mandatory COVID-19 “Emergency Temporary Standard” for Healthcare Employers and Updates Advisory Guidance Applicable to Other Employers
Immediate Action Required by Employers Providing Healthcare Services
On June 10, 2021, the Occupational Health and Safety Administration (OSHA) released:
- An advance copy of its new, mandatory COVID-19 “Emergency Temporary Standard” to protect healthcare employees from contracting coronavirus;
- Updated advisory guidance to help protect unvaccinated and high-risk employees in other sectors from contracting COVID-19.
Mandatory COVID-19 Emergency Temporary Standard (ETS) for Healthcare Settings
According to OSHA, the healthcare ETS applies to “all settings where any employee provides healthcare services or healthcare support services.”
“Healthcare services” are defined as: services that are provided to individuals by professional healthcare practitioners (e.g., doctors, nurses, emergency medical personnel, oral health professionals) for the purpose of promoting, maintaining, monitoring, or restoring health. Healthcare services are delivered through various means including: hospitalization, long-term care, ambulatory care, home health and hospice care, emergency medical response, and patient transport. [H]ealthcare services [also] include autopsies.
“Healthcare support services” mean: services that facilitate the provision of healthcare services. Healthcare support services include patient intake/admission, patient food services, equipment and facility maintenance, housekeeping services, healthcare laundry services, medical waste handling services, and medical equipment cleaning/reprocessing services.
Among other things and subject to some significant exceptions, the ETS requires that a covered healthcare employer:
- Conduct a COVID-19 hazard assessment, with input from nonmanagerial employees, and implement a COVID-19 response plan, which must be in writing if there are more than 10 employees;
- Screen employees, patients, clients, and visitors for COVID-19;
- Provide employees personal protective equipment (PPE) and ensure they properly use it;
- Enforce at least six-foot social distancing or install physical barriers;
- Clean, disinfect, and ventilate premises in accordance with CDC guidelines;
- Provide training to each employee, in a language and at a literacy level the employee understands, about the employer’s COVID-19 policies and how the virus could spread at work; and
- Give paid time off for employees to get vaccinated and/or recover from any side effects of the vaccine
- Give paid time off, subject to certain caps, in order for employees who (1) have, or are suspected of having, COVID-19 to isolate or (2) were not wearing required PPE and have been in close contact in a nontreatment setting with a person with COVID-19 to quarantine for the period required by the CDC or OSHA or by a licensed healthcare provider, but only if the employer has more than 10 employees.
A number of healthcare settings are exempt from all or part of the ETS. OSHA posted a decision tree that explains the exemptions. Nonprofits that perform their healthcare services in a setting other than in a hospital can takes steps to ensure that the ETS will not apply to them. However, as is the case with all nonprofits, they will need to continue to comply with applicable state and local health and safety requirements. Moreover, OSHA might find their failure to follow the voluntary guidelines discussed below constitutes a violation of their general duty to provide a safe working environment for employees.
The ETS went into effect on June 21, 2021. Employers must comply with all but three of the provisions of the ETS within 14 days and the remaining three provisions within 30 days.
We expect some organizations will file lawsuits to block implementation of the ETS, arguing that OSHA exceeded its authority in issuing the ETS in whole and in part. Because we don’t know if such lawsuits will be successful, covered healthcare employers should begin to prepare to comply with the ETS.
Advisory Guidance to Help Protect Unvaccinated and High-Risk Employees from COVID-19 in Non-Healthcare Settings
OSHA issued revised guidance that is now focused only on assisting employers and employees “to identify COVID-19 exposure risks to workers who are unvaccinated or otherwise at-risk, and to help them take appropriate steps to prevent exposure and infection.”
It is most likely that nonprofits in the tristate region have already taken proactive steps to reduce these risks in view of the mandatory safety requirements imposed by Connecticut, New Jersey, and New York during the early stages of the pandemic. While these states have relaxed or removed many of their requirements, in view of OSHA’s revised guidance employers should seriously consider continuing the requirements to the extent necessary to protect unvaccinated, vaccinated, and at-risk employees from the risks posed by employees, clients, and other persons (such as worksite visitors and family members in a client’s home) who might have the virus.
Although this guidance is not mandatory for employers not covered by the ETS, compliance with OSHA’s recommendations will go a long way in reducing the risk that (1) OSHA might find that employers violated their “general duty” to provide all employees a safe workplace, (2) an employee could successfully assert a claim that the employee contracted COVID-19 in the workplace, and (3) a union could use poor safety practices as a selling point for employees to join the union and then seek to force an employer to negotiate with the union.
Several of our partner law firms have written articles that delve into the issues nonprofits need to consider:
- Executive Summary:
- Overviews of Key Points:
If you have questions, please contact your local Pro Bono Partnership office.
This document is provided as a general informational service to volunteers, clients, and friends of Pro Bono Partnership. It should not be construed as, and does not constitute, legal advice on any specific matter, nor does distribution of this document create an attorney-client relationship.