OSHA Sets New Healthcare Rules and Recommendations

OSHA has issued a healthcare emergency standard. This emergency COVID-19 rule is for healthcare only — everyone else gets recommendations.

Long-anticipated

President Biden issued an executive order[1] on his second day in office, directing OSHA to develop updated guidance for employers and consider the viability of an Emergency Temporary Standard (ETS) — and get back to him by March 15.

The mid-March news from OSHA was not the expected ETS, but the launch of a National Emphasis Program (NEP) for COVID-19[2]. It was noted at the time that this was unusual. OSHA didn’t usually announce a NEP before publishing an ETS, but most insiders still believed that an ETS was on the way.

And so it was. On June 10, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard for Healthcare[3] (ETS) and updated its guidance [4]for employers in all other industries. Both the ETS and new OSHA guidance reflect the most recent information and recommendations from the Centers for Disease Control and Prevention[5] (CDC) about fully vaccinated individuals.

A healthcare emergency standard

The COVID-19 ETS for healthcare applies to settings where any employee provides healthcare services or healthcare support services. These settings include, but are not limited to, hospitals, nursing homes, assisted living facilities, dental offices, home healthcare workers, emergency responders, and ambulatory care facilities where suspected or confirmed coronavirus patients are treated. OSHA has developed a flow chart — Is your workplace covered by the COVID-19 Healthcare ETS? [6]— which can help employers determine if and how the ETS applies to their workplace.

Other than requiring healthcare facilities to do a hazard assessment and develop a written plan, the ETS clarifies when and how to implement masking, distancing, and physical barrier requirements. The standard also addresses a range of issues concerning personal protective equipment (PPE), patient screening, ventilation, disinfection, health screening, vaccination, employee training, record-keeping, facilitating vaccination, and paying employees to quarantine.

The ETS exempts fully-vaccinated workers from masking, distancing, and barrier requirements in well-defined areas in workplaces where there is no expectation of exposure.

Recommendations for other employers

The new guidance for non-healthcare employers says that all employers need to engage with their employees to figure out the best way to implement a range of workplace practices “to protect unvaccinated and other at-risk workers.” Most businesses already have COVID-19 protocols in place, but many have begun to relax these workplace practices in recent weeks, as more people have become vaccinated and new infection rates decline.

In issuing updated new guidance, OSHA is making it clear that employers are still responsible for protecting their unvaccinated and at-risk workers. Particularly in higher-risk workplaces — manufacturing; meat, poultry, and seafood processing; retail and grocery facilities; and other workplaces listed in OSHA’s COVID-19 National Emphasis Program[7] — employers are encouraged to ensure compliance. Employers should also note that state or local guidance might supersede OSHA’s recommendations.

Fuzzy legalities

Many of the non-healthcare employers I work with about OSHA compliance issues have questioned the legal enforceability of any COVID 19 guidance coming from OSHA. The guidance is, after all, just several hundred pages of recommendations that are “advisory in nature and informational in content” and designed to “assist employers in provided a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.”

By evoking and paraphrasing the language of the General Dury Clause — section 5(a)(1) of the Occupational Safety and Health Act of 1970 — OSHA is indicating that they plan to use the guidance in support of a General Duty Clause citation.

While a degree of legal fuzziness remains, employers shouldn’t become complacent about their COVID 19 program and protocols.

Are you vaccinated?

Nothing in the guidance helps employers understand how to legally and appropriately determine an employee’s vaccination status. The ETS for healthcare[8], however, contains a helpful bit of advice about this issue. It’s not set off with a subhead and is just one paragraph:

In order to make the determination of which workers are fully vaccinated, employers could, for example, vaccinate their workforce themselves; review CDC vaccination cards or similar verification issued by a pharmacy, healthcare provider, or other vaccinator; if available, review state-issued passes; or simply ask workers to attest whether they have been fully vaccinated. If the employer is not able to determine that an employee is fully vaccinated, the employer must treat that employee as not fully vaccinated.

It is safe to assume that this paragraph applies to the guidance as well as the ETS, but at the moment, it remains unclear. It is probably just an oversight that OSHA will fix in a future guidance update.

What’s your screening process?

If an employer wishes to implement a policy that permits vaccinated employees to be at work without wearing a mask or physical distancing, then the employer must also decide whether or not to collect vaccination records. Employers must also prepare for some pushback from any unvaccinated employees who don’t want to be treated differently from their vaccinated co-workers. These employees will say they are willing to take the risk and don’t want special accommodations made just for them. Employers need to make these accommodations anyway.

In the new guidance, OSHA makes it very clear that they expect employers to make an effort to protect unvaccinated and at-risk workers in the workplace. This means that most employers will eventually be implementing a screening process to differentiate between vaccinated and unvaccinated workers.

Final thoughts

If employers are covered by either the ETS or the guidance, you are advised to review the latest information and make adjustments to your program to remain in compliance. If you have any questions or concerns about these issues — or have received an OSHA citation for any reason — don’t hesitate to contact us for assistance.

About the Author: James Laboe[9]

 

Endnotes:
  1. executive order: https://www.govinfo.gov/content/pkg/FR-2021-01-26/pdf/2021-01863.pdf
  2. National Emphasis Program (NEP) for COVID-19: https://orr-reno.com/osha-launches-a-national-emphasis-program-for-covid-19/
  3. Emergency Temporary Standard for Healthcare: https://www.osha.gov/coronavirus/ets
  4. guidance : https://www.osha.gov/coronavirus/safework
  5. Centers for Disease Control and Prevention: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html
  6. Is your workplace covered by the COVID-19 Healthcare ETS? : https://www.osha.gov/sites/default/files/publications/OSHA4125.pdf
  7. COVID-19 National Emphasis Program: https://orr-reno.com/osha-launches-a-national-emphasis-program-for-covid-19/
  8. ETS for healthcare: https://www.osha.gov/coronavirus/ets
  9. James Laboe: https://orr-reno.com/our-people/james-f-laboe/

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