What You Need to Know
On June 10, 2021, the U.S. Department of Labor's (DOL) Occupational Safety and Health Administration (OSHA) released the Emergency Temporary Standard (ETS) for Healthcare Employers as well as Guidance for Mitigating and Preventing the Spread of COVID-19 in the Workplace. The ETS mandates specific legal obligations for employers in protecting healthcare workers from COVID-19 exposure, as well as providing non-mandatory “guidance” for other employers. This ETS has been anticipated since January 2021 when President Biden signed an executive order asking the DOL to release an ETS addressing COVID health concerns in the workplace. Healthcare employers must comply with the ETS within two weeks of the final rule being published in the Federal Register, or at minimum, show good faith efforts to come into compliance as soon as possible thereafter. Other private employers are encouraged to comply with the ETS as well, based on OSHA’s recommendations and the likelihood that employees will mount legal challenges to lesser standards.
Healthcare Industry Implications
The ETS requires employers with 10 or more employees in the health care industry, including hospitals, nursing homes and other healthcare facilities, to comply with the following:
- Implement a written COVID-19 prevention plan that names a workplace safety coordinator responsible for implementing and monitoring the plan and developing a "workplace hazard assessment;"
- Maintain social distancing guidelines;
- Screen patients for COVID-19 symptoms;
- Provide paid time off to employees who want to get vaccinated;
- Provide paid time off to employees needing to recover from any resulting side effects of a COVID-19 vaccine;
- Manage and maintain a screening protocol for workers before shifts and all persons entering the facility;
- Continue to make masks and other personal protective equipment (PPE) available to employees for use;
- Enforce the wearing of masks indoors in certain high risk situations, or when around unvaccinated individuals;
- Implement certain ventilation protocols when employees are working with patients who may have the virus;
- Allow fully vaccinated healthcare workers the option to refrain from wearing masks or social distance if they are in areas where all employees are fully vaccinated and where those who could potentially have the virus are not present; and
- Remove from the workplace immediately any person who tests positive for COVID-19, or who the employer believes may be infected or displays symptoms over time.
During the time an employee is home sick with COVID or a suspected case of COVID, a covered employer must pay healthcare workers their regular compensation up to $1,400 per week during the first two weeks that they are absent from work. This is assuming that they cannot work remotely during this period of time. The amount of pay for which the employer is responsible varies under the ETS, depending upon the length of time that the employee is out sick with the virus. Employers should check with an accountant and/or tax counsel to ascertain whether the business qualifies for a tax credit to cover some of these costs.
The only exception to the ETS is for workplaces in which all workers are fully vaccinated and those who may have COVID are not allowed to enter.
Voluntary OSHA Guidelines for Workplaces Considered High Risk
OSHA also released voluntary guidelines for employers outside the health care industry in an effort to protect unvaccinated workers. These guidelines primarily focus on workers in other high-risk settings such as meatpacking, grocery, retail, and other industries where close contact between workers is often necessary. This new guidance generally follows that issued by the Center for Disease Control and Prevention (CDC), which allows fully-vaccinated employees to go without masks and forgo social distancing, as long as other state or local regulations do not mandate otherwise. The OSHA guidance encourages employers to allow paid time off for employees to get vaccinations and continue to provide PPE and masks to those workers. The guidance also suggests spacing out unvaccinated employees in communal work areas to minimize health risks. Employers in low-risk industries presumably have more flexibility to cease taking extra precautions to protect those members of their workforce who are fully vaccinated; however, we expect employees to mount future legal challenges in this regard.
OSHA will continue to provide compliance assistance to employers regarding the ETS and guidance, and will refrain from taking punitive measures provided employers are attempting in good faith to comply. OSHA will still investigate any complaints it receives in this regard, so it is important for employers to make demonstrable, good faith efforts to comply and respond to any internal employee complaints received. As the world continues to grapple with new variants of the virus, employers are encouraged to consider, develop, and implement COVID-19 protocols as part of its overall safety efforts, and a contingency plan to implement various aspects of the ETS and guidance as requested by employees. As businesses open back up and seek dependable staff, it will be more important than ever to demonstrate care and compassion for your workforce and their well-being. The attorneys at WSHB are poised to assist employers with not only legal compliance, but also creating a safe, rewarding working environment that attracts and retains good employees.