"OSHA Considerations for Employers in Year Two of the COVID-19 Pandemic"

All employers should be mindful of the health and safety of their workforce and worksites, including reviewing and evaluating updated COVID-19 guidance issued by OSHA for all industries, and its Emergency Temporary Standard (“ETS”) applicable only to healthcare employers. Both of these pronouncements were issued by OSHA on June 10, 2021. In this article, we discuss both items, together with other OSHA matters for employers to consider in year two of the COVID-19 pandemic.

The genesis for the ETS and the guidance for all industries came one day after President Biden’s inauguration when he asked OSHA to consider whether any emergency temporary standards on COVID-19 were necessary. As of mid-June 2021, nearly 56 percent of the adult U.S. population was fully vaccinated, and more than 65 percent had received at least one dose. The seven day average of new COVID cases has been steadily decreasing since April. These facts likely caused OSHA to take this dual approach, wherein it issued binding compliance obligations in its ETS only to healthcare employers, and issued non-binding “guidance” to all other employers.

Businesses soon will be largely shielded from COVID-19 liability lawsuits in 30 states, covering more than half the U.S. population. While details vary by state, the liability measures generally set a higher bar for plaintiffs to clear in a COVID-19 exposure lawsuit, such as showing the business’ actions or lack of safeguards amounted to gross negligence or willful misconduct. While these liability shield laws do not directly impact OSHA enforcement, many employers will consider the issues hand-in-hand.

Separate from the ETS and the all-industries guidance, in March 2021, OSHA announced a COVID-19 National Emphasis Program (“NEP”) “to ensure that employees in high-hazard industries or work tasks are protected from the hazard of contractive SARS-CoV-2.” This NEP targets specific industries including healthcare, meat processing, grocery stores, warehousing and storage, restaurants, temporary help services and correctional institutions. Under the NEP, employers in these industries are at increased risk of an OSHA inspection and should take measures to implement OSHA’s all-industries guidance, or in the case of healthcare employers, the ETS.

In both the all-industries guidance and ETS, OSHA has placed significant emphasis on whether employees are vaccinated. In the all-industries guidance, OSHA states that "most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure," unless otherwise required by the ETS, public transportation requirements, or federal, state, local, tribal, or territorial laws, rules, and regulations. OSHA also stated it will not enforce 300 log recording requirements for adverse effects from an employer-mandated vaccine because the agency said it was concerned that requiring employers to list adverse reactions was hurting vaccination efforts.

OSHA’s Updated COVID-19 Guidance for All Industries

This guidance is applicable to all employers. It focuses on several recommended interventions to protect unvaccinated and otherwise at-risk workers, and to mitigate the spread of COVID-19, including:

• Grant time off for employees to receive the vaccine. For many employers, this is not a new or groundbreaking recommendation, as many have already implemented programs in which employees can devote job-protected leave to obtaining the vaccination or receive extra paid time off for vaccination purposes.
• Instruct workers to stay home if they are infected with or show symptoms of the COVID-19 virus or are unvaccinated and have close contact with someone testing positive for COVID-19.
• Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal areas. OSHA emphasizes that although requiring employees to keep six feet of distance can reduce the risk of contracting COVID-19, it is not a guarantee of safety, especially in enclosed or poorly ventilated areas. The implication is that employers should go beyond merely advising employees to socially distance and instead proactively limit the number of unvaccinated or otherwise at-risk workers in one place at any given time.
• Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE. OSHA reiterates that unvaccinated workers need not wear face coverings if outdoors, unless they are at-risk or otherwise required by applicable federal, state or local requirements. If an employer determines that PPE is also necessary to protect unvaccinated and otherwise at-risk workers, that PPE must be in accordance with relevant mandatory OSHA standards. Employers may need to provide reasonable accommodations for those individuals who are unable to wear or have difficulty wearing certain types of face coverings due to a disability or who need religious accommodation.
• Educate and train workers on your COVID-19 policies and procedures using accessible formats in language they understand.
• Suggest that unvaccinated customers, visitors or guests wear face coverings. OSHA cannot regulate non-employees; however, employers contemplating whether to encourage unvaccinated customers, visitors or guests to wear face coverings should consider that making no statement on this topic could be viewed by OSHA as not adequately protecting unvaccinated or at-risk employees.
• Maintain ventilation systems. As employers invite workforces back into physical spaces, they should consult with contractors about the status of ventilation systems, given the risk of virus transmission indoors.
• Perform routine cleaning and disinfection. OSHA recommends following the CDC's cleaning and disinfection protocols if someone in the work area within the past 24 hours is suspected of or confirmed of having COVID-19.
• Record and report COVID-19 infections and deaths. OSHA’s mandatory rules require employers to record work-related COVID-19 illness on OSHA’s Form 300 logs if: (1) the case is a confirmed case of COVID-19 illness; (2) the case is work-related; and (3) the case involves one or more relevant recording criteria. Also, employers must report to OSHA each work-related COVID-19 fatality within eight hours of learning of the fatality and each work-related COVID-19 in-patient hospitalization within 24 hours.
• Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards.

OSHA’s Emergency Temporary Standard for Healthcare Employers

Most healthcare employers have already implemented measures to minimize the spread of COVID-19 in their facilities, including following CDC guidance. The ETS, which is applicable only to healthcare employers, adopts many CDC recommendations and includes several additional requirements.

• The ETS requires healthcare employers to conduct a hazard assessment, to develop and implement a COVID-19 plan for each workplace and to engage non-managerial employees in development of the plan.
• Patient screening should include limiting and monitoring points of entry, and screening all individuals entering the facility.
• Develop and implement policies and procedures to adhere to standard and transmission-based precautions in accordance with CDC guidelines.
• When it comes to personal protective equipment (PPE), healthcare employers must provide and ensure employees wear face masks when indoors and when occupying a vehicle with other people while working; provide respirators and other PPE for employees exposed to others with suspected or confirmed COVID-19 virus; and allow for the voluntary use of respirators instead of face masks (under what OSHA calls its “mini respiratory protection program”).
• The number of employees present during aerosol-generating procedures should be limited to essential staff only, the procedure should be performed in an existing negative-pressure patient-care room if available, and the patient room should be cleaned and disinfected after the procedure.
• Ensure that employees are separated by six feet unless such physical distancing is not feasible or is required by the job.
• Implement barriers such as transparent acrylic glass to block face-to-face pathways at fixed work locations outside of direct patient care areas (e.g., entryway/lobby, check-in desks, triage, hospital pharmacy windows and bill payment).
• Clean and disinfect patient care areas, medical equipment and high-touch surfaces.
• Meet certain HVAC ventilation requirements for healthcare employers who own or control their buildings.
• Employers must screen employees each day and each shift, which can be accomplished through self-monitoring by the employee for COVID-19 symptoms. In the event of a COVID-19 exposure, healthcare employers are required to notify other employees who were in close contact with the infected individual and remove them from the workplace within 24 hours, unless the exposed employee was wearing a respirator. A significant new requirement of the ETS is that employers must compensate employees removed from work due to the employee’s own COVID-19 diagnosis, certain symptoms or close contact with a person who has tested positive for COVID-19 up to $1,400 per week (less for employers with fewer than 500 employees).
• Employers must provide reasonable time and paid leave for vaccinations and vaccine side effects.
• They must train employees on COVID-19 workplace policies and procedures.
• Anti-retaliation protections should be implemented, including informing employees of their rights and protections specific to the ETS.
• Report to OSHA each work-related COVID-19 fatality within eight hours of learning of the fatality and each work-related COVID-19 in-patient hospitalization within 24 hours.

OSHA and a Future Infection Disease Protocol

The Biden administration also announced its intent to revive a stalled occupational safety rule that would protect workers against all airborne infectious diseases, not just COVID-19. This rule initially was proposed in 2010 but never finalized. We expect a new rule to incorporate what OSHA and the CDC have learned from the ongoing pandemic. It is unlikely we would see a draft version of an infectious disease rule before October 2021, followed by a comment period. If enacted, the rule could require employers to protect workers from hazards such as tuberculosis, drug-resistant staph bacterial infections and severe acute viral respiratory infections, according to OSHA’s summary of the rulemaking.

All employers should review and implement the all-industries guidance, and healthcare employers should take steps now to implement the ETS.

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