Last week, the Occupational Safety and Health Administration (OSHA) issued a COVID‑19 Emergency Temporary Standard (ETS) for employers only in the health care sector in response to President Joe Biden’s January Executive Order on Protecting Worker Health and Safety. The ETS becomes effective on the date it is published in the Federal Register, which is yet to be determined.

In addition, OSHA promulgated new non-binding guidance for employers in all other sectors.

ETS for Health Care Employers

The ETS contains several workplace safety requirements for covered employers, including infection-control measures, paid leave, and training.

Covered Employers

The ETS broadly applies to employers who provide “health care services or health care support services.” Health care services include services provided by professional health care practitioners to promote, maintain, monitor or restore health, as well as those who perform autopsies. Health care support services include services that facilitate the provision of health care services such as patient admission, health facility maintenance, housekeeping, and food services, medical waste handling, and medical equipment cleaning/reprocessing services.

The ETS excludes several businesses, such as pharmacies, home health settings when all employees are fully vaccinated and all nonemployees are screened before entry and people with suspected or confirmed COVID-19 are not present, and health care settings where all employees are fully vaccinated and non-employees who may have COVID‑19 are barred from the premises.

Infection-Control Measures

The ETS also requires covered employers to implement and maintain several COVID‑19 infection-control measures, including, without limitation:

• Limit and monitor points of entry in direct patient care settings and screen individuals entering such settings;

• Require patient screening and management;

• Provide and require employees to wear facemasks or other PPE while working, with limited exceptions;

• Require physical distancing;

• Install physical barriers where required;

• Clean and disinfect premises;

• Develop a COVID‑19 preparedness and response plan and designate COVID‑19 safety coordinators to monitor the plan. The plan must be written if the employer has more than 10 employees; and

• Train employees on COVID-19 and workplace-specific cleaning and disinfection policies and procedures adopted by the employer, and on available sick leave policies, any COVID-19-related benefits to which the employee may be entitled under applicable laws, and other supportive policies and practices.

Paid Leave for Quarantine and Vaccinations

Employers must screen employees daily for COVID-19 symptoms and require employees to promptly notify the employer when they are COVID-19 positive, have been told by a health care provider that they are suspected to be COVID-19 positive, or are experiencing certain specified symptoms of COVID-19. If an employee must isolate, the employer must continue to provide the benefits to which the employee is normally entitled and pay the employee the same regular pay the employee would have received, had the employee not been absent from work, up to $1,400 per week, until the employee meets the return-to-work criteria specified in the ETS.

Beginning the third week of an employee’s absence, the amount is reduced to only two-thirds of the same regular pay the employee would have received, had the employee not been absent from work, up to $200 per day. These payment obligations are reduced by the amount of compensation received from other sources, such as paid sick leave or paid time off. And employees with suspected or confirmed cases of COVID‑19 who refuse to be tested for COVID‑19 are generally unable to receive paid leave during their isolation period.

Finally, the ETS also requires employers to provide paid leave, such as PTO or paid sick leave, to employees so they can be vaccinated and recover from any side effects.

State Plans

Under federal law, OSHA-approved state plans like those in Michigan, Indiana, Kentucky, and California must either amend their emergency rules to be identical or “at least as effective” as the ETS. For many state plans, this is not the case. So these states will have 30 days from the effective date of the ETS to determine what actions they will take.

Updated OSHA Guidance for Mitigating and Preventing the Spread of COVID-19 for Non-Health Care Employers

OSHA also issued updated guidance intended to help employers and workers not covered by OSHA’s COVID-19 ETS 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.

OSHA’s guidance expressly notes that, “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.” It then states, “Employers should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces,” and delineates a number of its recommendations towards that end.

Among the 11 such recommendations are to encourage employers to grant paid time off for employees to get vaccinated, provide unvaccinated and at-risk workers with face coverings or surgical mask at no cost, having such workers continue to wear face coverings while working indoors, and for employers whose employees interact with the public to suggest that unvaccinated customers, visitors or guests wear face coverings when entering the workplace.

While OSHA’s guidance is helpful in some respects, it still leaves a number of employers’ questions unanswered. For example, it does not address whether employers legally can mandate vaccinations as some employers already have. However, Dinsmore attorneys have written on this topic and appeared in media discussing it extensively. Nor does it specifically address whether an employer should require proof of vaccination before permitting an employee to work without a face covering, and if so, what kind of proof is sufficient. That said, the EEOC did issue guidance on proof of vaccination and confidentiality thereof last month. While an honor system is not prohibited, relying on an honor system is not without risks of dishonesty and fraud. 

OSHA’s guidance, unlike its ETS, is not legally binding, but an employer still could face potential OSHA risk if it has not followed some or all of the guidance in the event of an OSHA inspection resulting from an employee complaint or COVID-19 outbreak in the workplace. Under that scenario, OSHA could try to take the position that the employer violated OSHA’s General Duty Clause and has to pay an OSHA monetary penalty.