Yesterday, the U.S. Department of Labor’s Occupational Safety and Health Administration (U.S. OSHA) issued revised rules
containing long-anticipated Emergency Temporary Standards for the healthcare industry. 29 CFR 1910 Subpart U. The rules incorporate much of what healthcare settings already were doing and in accordance with CDC guidelines, but compliance is now required. The rules apply to all workplaces where any employee provides healthcare services or healthcare support services, with few exceptions. The new Emergency Temporary Standards will become effective upon publication in the Federal Registry, which is expected to occur within the coming one to two weeks. Healthcare workplaces have 14 days to comply with most of the new standards once the rule becomes finalized.
U.S. OSHA also issued revised guidance
for other workplaces during the COVID-19 pandemic, importantly stating “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” and there are no “at-risk” employees. “Fully vaccinated” means two weeks after the final dose of a COVID-19 vaccine. The guidance is not mandatory but is likely to be followed by state regulators. Employers must still comply with applicable state, county, and local workplace requirements. Read more details below.
Healthcare Settings Emergency Temporary Standards
Unlike guidance issued by U.S. OSHA from time to time relating to COVID, which is optional, these new Emergency Temporary Standards are required for healthcare workplaces. The Standards use a multi-layered approach with overlapping requirements to protect healthcare workers. All healthcare workplaces where the Standards apply to must:
- Screen employees daily and before each shift for COVID-19 symptoms, and require employees to notify the employer if s/he has symptoms of or is suspected or confirmed as having COVID-19 and isolate/quarantine the employee from the workplace (with medical removal protection benefits if over 10 employees);
- Notify affected employees if another employee tests positive for COVID-19;
- Provide time and paid leave for vaccinations and for vaccine side effects;
- Provide and ensure all employees wear face masks at all times indoors and in shared vehicles with other employees;
- Maintain physical distancing of at least six feet indoors for all workers (if not possible, see #);
- Install cleanable or disposable solid barriers at each work area in non-patient care areas where employees are not separated from other people by at least six feet;
- Clean and disinfect all surfaces and equipment in accordance with CDC guidelines in patient care areas, resident rooms, and for medical devices and equipment, and in all other areas clean high-touch surfaces and equipment at least once a day;
- Provide alcohol-based hand sanitizer that is at least 60% alcohol or provide readily accessible handwashing facilities for all workers;
- Have patient screening and monitoring, including limiting and monitoring entrances where direct patient care is provided, screening and triaging all patients/clients and visitors and non-employees, and implementing patient management strategies to minimize the spread of COVID-19 and isolate when necessary;
- Develop and implement standard and transmission-based precautions based on the CDC guidelines;
- Have a COVID-19 prevention plan created and implemented with policies and procedures to minimize the spread of COVID-19, including a workplace-specific hazard assessment, all using at least some non-managerial employees, with a designated safety coordinator empowered to enforce implementation, and if more than 10 employees it must be in writing;
- Educate and train workers on applicable COVID-19 policies and practices at the worksite, using signs and language accessible to the workers;
- Provide and ensure all employees use respirators and other personal protective equipment (PPE) for exposure to people suspected or confirmed as having COVID-19;
- For aerosol-generating procedures on people suspected or confirmed as having COVID-19, the employees must use respirators and other PPE, staffing must be limited to only those essential persons for the procedure, and the procedure must take place in an airborne infection isolation room if available, and all surfaces and equipment must be cleaned and disinfected after the procedure;
- Ensure existing HVAC systems are used properly and in good working order, and air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher if possible;
- Record and report COVID-19 infections to OSHA and public health authorities and, for employers with more than 10 employees, maintain a COVID-19 log of all employee instances of COVID-19 and make records available to employees/representatives; and
- Establish an anonymous system for workers to report COVID-19 concerns and ensure no retaliation is taken against any workers for reporting concerns.
The Standards become effective upon publication in the Federal Registry, which is expected to occur within the next one to two weeks. Healthcare workplaces have 14 days to comply with most of the new standards once they become effective and will have 30 days to comply with the provisions relating to physical barriers/plastic sheeting, ventilation systems maintenance and filters, and employee training.
The new Emergency Temporary Standards apply to all workplaces where any employee provides healthcare services or healthcare support services, including hospitals, nursing homes, assisted living facilities, emergency responders, home healthcare workers, and ambulatory care facilities, unless:
- The workplace is a non-hospital ambulatory care setting, all non-employees are screened for COVID symptoms before entry, and people with suspected or confirmed COVID are not permitted to enter; or
- The workplace has a well-defined workspace that is for non-hospital ambulatory care, all employees are vaccinated, all non-employees are screened for COVID symptoms before entry, and people with suspected or confirmed COVID are not permitted to enter; or
- The workplace is a home healthcare setting, all employees are vaccinated, and people with suspected or confirmed COVID are not present; or
- A narrow exception exists for well-defined workplace areas where there is no reasonable expectation that any person with suspected or confirmed COVID will be present, but only for fully vaccinated employees and only in those well-defined workplace areas (this exception will be difficult for most workplaces to meet).
As a practical matter, schools with nurse’s offices, universities with healthcare centers, or companies with on-site healthcare offices should fit within exception a or b. Still, strict adherence to the exception requirements is necessary.
The new Emergency Temporary Standards and notes are over 900 pages long. Any healthcare employers with questions are encouraged to contact Bullard Law.
Revised Guidance for Other Workplaces – No Changes Unless All Employees Are Fully Vaccinated!
In its revised guidance, U.S. OSHA cited the CDC’s Interim Public Health Recommendations for Fully Vaccinated People, which stated that wearing masks and physical distancing is generally not necessary for fully vaccinated people unless otherwise required by federal, state, or local laws or regulations. Notably, U.S. OSHA did not go as far as the CDC and only said that most precautions such as wearing masks and physical distancing are not required for workplaces where all employees are fully vaccinated
(and not “at-risk”). However, other federal, state, and local laws and regulations still apply, for example, the State of Oregon’s requirements applicable to businesses open to the public and requesting proof of vaccination. Because CDC’s statements are guidance, whereas U.S. OSHA’s Emergency Temporary Standards are mandatory for non-exempt healthcare settings, the U.S. OSHA Standards must be followed even though less generous than the CDC.
U.S. OSHA continues to recommend wearing masks and physical distancing as well as other guidelines and requirements
for any and all workplaces or well-defined workspaces where unvaccinated
workers and/or “at-risk
” workers are present. “At-risk” workers include those who have received transplants, are immunocompromised, or otherwise may not be able to obtain the full immune response benefits of vaccination for COVID-19 – regardless of whether these workers are vaccinated. U.S. OSHA’s Guidance reminds employers that these workers may be protected by the Americans with Disabilities Act, and protections to prevent “at-risk” workers from COVID-19 may be reasonable accommodations under the ADA.
For workplaces where unvaccinated or “at-risk” workers are present, U.S. OSHA continues to recommend the following:
- Give paid time off for workers to get vaccinated (ARPA tax credits are potentially available through September 2021 for this purpose for businesses with fewer than 500 employees);
- Instruct workers who are infected with COVID-19, unvaccinated workers who had close contact with someone who tested positive for COVID-19, and all workers with COVID-19 symptoms to stay home from work;
- Require physical distancing of at least six feet for unvaccinated workers and “at-risk” workers in all common areas;
- Limit the number of unvaccinated and “at-risk” workers at the workplace by using teleworking or remote working, staggering work schedules to limit their number, and other flexible options (but employers should be cautious about creating a discriminatory workplace based on vaccine or “at-risk” status);
- Use plastic sheeting or solid barriers in areas where physical distancing is not possible;
- Provide free face masks to unvaccinated and “at-risk” workers, and PPE or respirators in workplaces where that equipment is necessary, and U.S. OSHA notes that workplaces where persons who are deaf or hard of hearing are present should consider providing masks with clear plastic over the mouth area to facilitate lip-reading;
- Educate workers on applicable COVID-19 policies and practices at the worksite, using signs and language accessible to the workers;
- Request or suggest that unvaccinated customers, visitors and guests wear masks, even if the state or local jurisdiction does not require it;
- Maintain HVAC ventilation systems including using filters with MERV-13 or higher rating and cleaning/servicing at least quarterly;
- Perform routine workplace cleaning and disinfection, and clean and disinfect the workplace within 24 hours if someone is suspected or confirmed to have had COVID-19;
- Record and report COVID-19 infections to OSHA and public health authorities;
- Establish an anonymous system for workers to report COVID-19 concerns and ensure no retaliation is taken against any workers for reporting concerns; and
- Follow all other U.S. OSHA mandatory requirements as well as all applicable federal, state, and local laws and rules.
This revised guidance does not alter rules or guidance applicable to specialized settings, such as healthcare workplaces as discussed above.
The content of this Alert is provided for general information purposes only. It should not be considered legal advice or used as a substitute for consulting an attorney for legal advice
U.S. OSHA did not change the laws and rules applicable to public transportation, including masking requirements, and these requirements remain in place for workers and customers.
For more information about any of these issues, and for guidance on how COVID-19 affects your workplace and employees, contact Bullard Law.
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