After much anticipation and debate, the Occupational Safety and Health Administration (OSHA) has issued an emergency temporary standard (ETS), contained in 29 C.F.R. Part 1910, Subpart U, but solely for healthcare employers. OSHA released a prepublication version of the ETS on June 10.  The ETS was published in the Federal Register on June 21 as an interim final rule, effective immediately. Related materials are available on OSHA’s website. OSHA also issued updated guidance to general industry on COVID-19 prevention for unvaccinated and at-risk employees. 

Background on the ETS

The Occupational Safety and Health Act of 1970, section 6(c), gives OSHA authority to adopt an ETS without notice-and-comment rulemaking. The ETS will remain in effect until superseded by a permanent standard. OSHA must adopt a permanent standard to replace the ETS within six months of publication of the ETS.

The key requirements for an ETS are that OSHA “determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.”

OSHA has promulgated nine ETSs prior to this one, but not for decades. The last ETS came in 1983. ETSs have not fared well in court challenges; five were stayed or vacated, at least in part. For example, for the last promulgated ETS, the Fifth Circuit stayed the ETS lowering the asbestos permissible exposure limit from 2.0 f/cc to 0.5 f/cc after holding that it did not protect employees from “grave danger” and was not shown to be “necessary.” Asbestos Information Ass’n/North America. v. OSHA, 727 F.2d 415 (5^th Cir. 1984). 

OSHA under the Trump Administration denied a petition asking it to adopt an ETS for COVID-19 prevention. The D.C. Circuit denied a petition asking for a mandamus order to direct OSHA to adopt an ETS. In re: AFL-CIO, No. 20-1158 (D.C. Cir. June 11, 2020). Instead, OSHA relied on its existing standards and guidance.

The day after his inauguration, President Biden issued an executive order, “Protecting Worker Health and Safety,” directing OSHA to issue updated guidance to employers on workplace safety during the COVID-19 pandemic and to consider whether to issue a COVID-19 ETS and, if so, to issue it by March 15, 2021. E.O. 13999 of Jan. 21, 2021, 86 Fed. Reg. 7211 (Jan. 26, 2021). 

OSHA missed that deadline, in part because it was considering whether the “grave danger” and “necessary” elements could be met with increasing vaccinations and declining infection rates. With new variants and vaccine skepticism, OSHA appears to have compromised on an ETS limited to the healthcare sector, but with updated guidance for other employers.

The Healthcare Emergency Temporary Standard

The ETS is in a new Subpart U of 29 C.F.R. Part 1910, beginning at section 1910.502. It took effect upon publication in the Federal Register, with compliance due by July 6 for some requirements, and by July 21 for most others. Compliance with the “mini respiratory protection program” became due on June 21.

With some exception, the ETS applies to settings where any employee provides healthcare services or healthcare support services. These can include but are not limited to hospitals; nursing homes and assisted living facilities; dental offices; emergency responders; home healthcare workers; and employees in ambulatory care facilities. Notably, the ETS also applies to healthcare settings embedded within a non-healthcare setting (such as a medical clinic in a manufacturing facility) and to circumstances where emergency responders or other licensed health care providers enter a non-healthcare setting to provide healthcare services. 

The ETS does not apply to:

• First aid performed by an employee who is not a licensed healthcare provider;
• Dispensing of prescriptions by pharmacists in retail settings;
• Non-hospital ambulatory care settings where all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings;
• Well-defined hospital ambulatory care settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings;
• Home healthcare settings where all employees are fully vaccinated and all nonemployees are screened prior to entry and people with suspected or confirmed COVID-19 are not present;
• Healthcare support services not performed in a healthcare setting (e.g., off-site laundry, off-site medical billing); or
• Telehealth services performed outside of a setting where direct patient care occurs.

Employers who reasonably accommodate an employee who is unable to be vaccinated in a manner that does not expose the employee to COVID-19 hazards (e.g., telework, working in isolation) may be within this scope exemption.

Under the ETS, a covered employer must:

• Develop and implement a COVID-19 plan for each workplace;
• Designate one or more workplace COVID-19 safety coordinators to implement and monitor the COVID-19 plan;
• Conduct a workplace-specific hazard assessment to identify potential workplace hazards related to COVID-19;
• Involve non-managerial employees in the plan’s development and implementation; and
• Monitor each workplace to ensure the ongoing effectiveness of the COVID-19 plan and update it as needed.

The COVID-19 plan must address the hazards identified by the assessment and include policies and procedures to minimize the risk of transmission of COVID-19 for each employee. Those policies and procedures must:

• Minimize the risk of infection for each employee;
• Effectively communicate and coordinate with other employers; and
• Protect employees who in the course of their employment enter into private residences or other physical locations controlled by a person not covered by the OSH Act (e.g., homeowners, sole proprietors).

Additional provisions address patient screening and management; precautions based on CDC guidance; personal protective equipment (PPE) (including facemasks and, where appropriate, respirators); precautions for use of aerosol-generating procedures; physical distancing; physical barriers; cleaning and disinfection; ventilation; health screening and medical management; training; and recordkeeping. The employer must support COVID-19 vaccination for each employee by providing reasonable time and paid leave (e.g., paid sick leave, administrative leave) to each employee for vaccination and any side effects experienced following vaccination. Retaliation against employees for exercising their rights under the ETS is prohibited.

The ETS includes a requirement to report to OSHA about a work-related fatality from COVID-19 within 8 hours of learning of the fatality. It also includes a requirement to report each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about the in-patient hospitalization. These provisions differ slightly from OSHA’s general reporting requirement in 29 C.F.R. § 1904.39(a).

Updated Guidance for Employers Not Covered by OSHA’s COVID-19 ETS

The Biden Administration OSHA had posted guidance on January 29, 2021. After the May 16 CDC guidance about de-masking, on May 17, OSHA added the following statement to its January 29 guidance:

OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.

On June 10, OSHA replaced that statement with updated guidance. The main changes are:

• Employers should focus protections on unvaccinated and otherwise at-risk workers.
• Employers should encourage COVID-19 vaccination.
• Links to guidance with the most up-to-date content are provided.

Response to the CDC De-Masking Guidance

The updated OSHA guidance first summarized the May 16 CDC guidance (which was later updated on May 28):

CDC’s Interim Public Health Recommendations for Fully Vaccinated People explain that under most circumstances, fully vaccinated people need not take all the precautions that unvaccinated people should take. For example, CDC advises that most fully vaccinated people can resume activities without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance. People are considered fully vaccinated for COVID-19 two weeks or more after they have completed their final dose of a COVID-19 vaccine authorized by the U.S. Food and Drug Administration in the United States. However, CDC suggests that people who are fully vaccinated but still at-risk due to immunocompromising conditions should discuss the need for additional protections with their healthcare providers. CDC continues to recommend precautions for workers in certain transportation settings.

The OSHA guidance responds to this guidance by stating (in bold print):

Unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure ….

Except for workplace settings covered by OSHA’s ETS and mask requirements for public transportation, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated. 

Among the statements from the January 29 guidance dropped from the June 10 guidance is the following:

It is important to wear a face covering and remain physically distant from co-workers and customers even if you have been vaccinated because it is not known at this time how vaccination affects transmissibility.

The June 10 guidance adds as a caution, in a footnote:

CDC recommends that fully vaccinated people should nonetheless:

• watch out for symptoms of COVID-19, especially if they have been around someone who is sick. If they have symptoms of COVID-19, they should get tested and stay home and away from others.
• monitor for symptoms of COVID-19 for 14 days following an exposure.

Protecting Unvaccinated and At-risk Employees

The guidance recognizes that not all individuals in a workplace may be vaccinated. It provides:

Employers should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces.

The guidance recommends that employers implement multiple layers of controls to protect employees who are unvaccinated or at-risk (e.g., those with compromised immune systems). The recommended controls include:

• Making it easier for employees to become vaccinated (e.g., by providing paid time off for vaccination and recovery afterward);
• Instructing any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for the virus, and all workers with COVID-19 symptoms to stay home from work;
• Implementing physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas;
• Providing unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE;
• Educating and training employees on the employer’s COVID-19 policies and procedures using accessible formats and in language they understand;
• Suggesting that unvaccinated customers, visitors, or guests wear face coverings, especially in public-facing workplaces;
• Maintaining ventilation systems;
• Performing routine cleaning and disinfection;
• Recording and reporting COVID-19 infections and deaths as required by 29 C.F.R. Part 1904;
• Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards; and
• Following applicable mandatory OSHA standards.

An appendix describes measures appropriate for higher-risk workplaces with mixed-vaccination status employees. These include:

• Staggering break times or providing temporary break areas and restrooms to avoid groups of unvaccinated or otherwise at-risk employees congregating during breaks;
• Encouraging unvaccinated or otherwise at-risk employees to maintain at least 6 feet of distance from others at all times, including on breaks;
• Staggering employee arrival and departure times to avoid congregations of unvaccinated or otherwise at-risk employees in parking areas, locker rooms, and near time clocks;
• Providing visual cues (e.g., floor markings, signs) as a reminder to maintain physical distancing;
• Implementing strategies (tailored to the workplace) to improve ventilation that protects workers as outlined in CDC’s Ventilation in Buildings and in the OSHA’s COVID-19 Guidance on Ventilation in the Workplace.

The appendix provides additional recommendations for workplaces with processing or assembly lines, retail workplaces, and for traveling to and from work in employer-provided buses and vans.

**This news alert was updated on June 21, 2021 to reflect the publication of the ETS.**

Beveridge & Diamond’s Occupational Safety & Health practice group works alongside clients’ legal, EHS, and technical teams to help resolve critical enforcement, compliance, and regulatory issues relating to their facilities and operations. We maintain an Occupational Safety & Health Resource Center designed to help companies understand the regulatory framework for worker health and safety protection and stay educated about the federal and state developments affecting their workplaces. For more information, please contact the authors.