OSHA Issues COVID-19 Emergency Temporary Standards and Guidance on Mitigating and Preventing COVID-19

Last week, the Occupational Safety and Health Administration (OSHA) issued a COVID-19 Emergency Temporary Standard (ETS) applicable to healthcare employers. (You can find the ETS here https://www.osha.gov/coronavirus/ets) OSHA also issued an updated Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace applicable to most other workplaces. (The new Guidance can be found here https://www.osha.gov/coronavirus/safework) Keep in mind that the Guidance is not legally binding, but the ETS is.

Takeaways from the ETS

Are you covered?

The ETS applies to most situations where any employee provides healthcare services or healthcare support services. This will apply to most hospitals, nursing homes, emergency responders, home health, and assisted living situations.

However, the following settings are specifically excluded from the ETS:

  • the dispensing of prescriptions by pharmacists in retail settings;
  • non-hospital ambulatory (i.e., outpatient) care settings where all non-employees are screened prior to entry and persons with suspected or confirmed COVID-19 are not permitted to enter;
  • employees providing first aid who are not licensed healthcare providers;
  • home healthcare settings where all employees are fully vaccinated, and all non-employees are screened prior to entry, and persons with suspected or confirmed COVID-19 are not present;
  • well-defined hospital ambulatory care settings where all employees are fully vaccinated, and all non-employees are screened prior to entry, and persons with suspected or confirmed COVID-19 are not permitted to enter;
  • healthcare support services not performed in a healthcare setting (i.e. off-site laundry, off-site medical billing); and
  • telehealth services performed outside of a setting where direct patient care occurs.

Develop a COVID-19 plan

The ETS requires employers to develop and implement a detailed COVID-19 plan for each workplace. The ETS provides specific details showing how the Plan must be developed. For instance, employers must seek input and involvement of non-managerial employees.

Implement Safety Measures

Employers must limit and monitor points of entry if direct patient care is provided. This includes screening all clients, patients, residents, delivery people, and other non-employees entering the setting. The ETS includes detailed requirements for PPE, training, and enforcement of PPE use policies. It also requires the continued use of social distancing and physical barriers.

Conduct Employee Health Screenings

In a major change, employers must screen each employee before each workday and before each shift. Employers must also require employees to inform them if the employee begins to experience COVID-19 symptoms. Employers have a short window (24 hours) to inform employees if a person who has been in the workplace is COVID-19 positive.

Paid Leave

Employers with more than 10 employees must provide paid medical removal protection benefits to workers who isolate or quarantine due to COVID-19. This generally means that employees will be entitled to continue to receive the same benefits to which they would have been entitled had they not taken off, including pay up to $1,400/week for two weeks. After two weeks most employers can reduce the employee’s pay to 2/3 of their regular pay, up to $200/day. An employer’s obligation to pay an employee will be reduced by the amount of compensation the employee receives from other sources (e.g., paid sick leave, administrative leave)

Support Vaccinations

The ETS requires employers to pay for COVID-19 testing, vaccinations, and to recover from the side effects of vaccinations.

Employee Training

Employers must provide each employee with training regarding: (1) COVID-19 transmission; (2) employer-specific policies and procedures on safety precautions; (3) tasks and situations that could result in infection; (4) sick leave policies, any COVID-19-related benefits to which the employee may be entitled; (5) the identity of the safety coordinator(s); and (6) how employees can obtain copies of the ETS and any employer-specific policies and procedures developed under the ETS.

Do Not Retaliate

As one would expect, the ETS requires employers to inform employees that employers are prohibited from retaliating against any employee for exercising their rights to the benefits of the ETS.

Recordkeeping and Reporting

Employers with more than 10 employees must establish a COVID-19 log to record all positive COVID-19 tests, regardless of whether the infection was work-related. The ETS provides a short (24 hour) window for the creation of the record after learning of the infection.

Employers must maintain all records and plans required by the ETS for the duration of the ETS and produce such records for examination upon request by OSHA.

Employers must report work-related COVID-19 fatalities within eight hours of learning about the fatality and hospitalizations must be reported within 24 hours of learning about the hospitalization. The duty to report a death hospitalization applies even if the death occurs more than 30 days after the work-related exposure or the hospitalization occurs more than 24 hours after the work-related exposure. This is a deviation from the standard OSHA reporting obligations.

The good news is that your obligations under the ETS will not become binding until 14 days after it is published in the Federal Register. Considering all that the ETS requires, that is not much time and employers should begin to prepare immediately.  And, like I always say, if you don’t document it, you didn’t do it.  Make records proving your compliance with every aspect of the ETS.

Takeaways from the Guidance

This Guidance generally applies to workers not covered by the new ETS and it makes it clear that employers not covered by the healthcare ETS no longer need to implement measures to protect fully vaccinated workers unless those workers are “otherwise at risk” or they are required to do so by applicable law, rule, or regulation.

For purpose of the Guidance “fully vaccinated” means that an employee is two weeks past the final shot in a COVID-19 vaccine series.

The Guidance states that employers should engage with workers and their representatives to determine how to comply with its requirements, including but not limited to:

  • Allow paid time off for employees to get vaccinated.
  • Instruct unvaccinated infected, exposed, and symptomatic workers to stay home.
  • Utilize physical distancing and barriers for unvaccinated and otherwise at-risk workers in common work areas.
  • Provide unvaccinated and otherwise at-risk workers with PPE at no cost.
  • Suggest that unvaccinated customers and visitors wear face coverings.
  • Train workers on your COVID-19 policies and procedures. The training must be in plain language that the employees understand and, in a manner accessible to individuals with disabilities, including ASL.
  • Training should include:
    • Basics about COVID-19: how it is spread, physical distancing, ventilation, vaccination, etc. …
    • Workplace policies to protect workers from COVID-19.
  • Maintain ventilation systems according to the CDC’s Ventilation in Buildings standard.
  • Follow the CDC cleaning and disinfection recommendations and OSHA’s mandatory standards; 29 CFR 1910.1200 and 1910.132, 133, and 138 for hazard communication and PPE appropriate for exposure to cleaning chemicals.
  • Properly record and report COVID-19 infections and deaths. (29 CFR 1904).
  • Protect workers from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards.
  • Continue to comply with other applicable OSHA standards such as PPE (29 CFR 1910. 123 et seq.,) respiratory (29 CFR 1910.134), sanitation (29 CFR 1910.141), bloodborne pathogens: (29 CFR 1910.1030), and employee access to medical and exposure records (29 CFR 1910.1020).

Higher-Risk Workplaces with Mixed-Vaccination Status Workers

The Guidance specifically identifies additional measures employers should consider to protect unvaccinated and at-risk workers in higher-risk workplaces. Higher-risk workplaces include manufacturing, meat and poultry processing, high-volume retail and grocery, and seafood processing, given the potential for workers to work indoors, in close contact for extended durations (e.g., for eight to twelve hours per shift).

OSHA recommends that employers in higher-risk workplaces where there are unvaccinated or otherwise at-risk workers:

  • Stagger break times or provide temporary break areas and restrooms to avoid groups of unvaccinated/at-risk workers congregating and enforce social distancing.
  • Stagger workers’ arrival and departure times.
  • Provide visual cues such as floor markings to reminder workers to maintain physical distancing.
  • Implement workplace-specific strategies to improve ventilation.

Remember that while the ETS is legally binding, the Guidance is not.

OSHA Issues First COVID-19 Related Citation to Nursing Home in Georgia

The Occupational Safety and Health Administration (OSHA) has issued its first COVID-19 related citations to a nursing home. OSHA claims that six nursing home employees in Georgia were hospitalized as a result of COVID-19 that they allegedly contracted while at work, and that the nursing home failed to report the hospitalizations to OSHA within the statutorily mandated time period. (Employees were hospitalized around April 19, but report was not made to OSHA until May 5.) OSHA has proposed a $6,500 fine for the “other than serious” citation.

Generally, employers must report incidents to OSHA within twenty four hours when an employee suffers a work-related in-patient hospitalization. This includes instances in which an employee is hospitalized because of COVID-19 if the employee contracted COVID-19 while at work and the hospitalization occurs within 24 hours of the employee contracting the virus. (Refer to 29 CFR 1904.39(b)(6)).

  • When several cases develop among workers who work closely together;
  • If it is contracted after lengthy, close exposure to a customer or coworker who has a confirmed case of COVID-19; or
  • If an employee’s job duties include having frequent, close exposure to the general public in a locality with widespread transmission.

You can find OSHA’s May 19, 2020 guidance on COVID-19 infection record keeping here: https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid- 19#:~:text=Under%20OSHA’s%20recordkeeping%20requirements%2C%20COVID,Prevention%20(CDC)%3B%5B2%5D

In the case of the Georgia nursing home, OSHA stressed that the widespread transmission of COVID-19 in nursing homes in general, and the fact that six employees in this particular nursing home tested positive for COVID-19 should have been an indication to the employer that the virus was work-related.

Bottom line: Employers must make themselves aware of OSHA’s reporting and recording obligations, and consider them each time an employee tests positive for COVID-19.

U.S. House of Representatives Urges OSHA to Create a Standard Regarding Workplace Violence in the Healthcare Industry

You may recall from our prior updates that the Occupational Safety and Health Administration (OSHA) has been concerned with the prevalence of injuries suffered by healthcare and social service employees due to work-related violence for some time. Lacking a specific standard applicable to this risk, OSHA has usually relied on the General Duty Clause to address this issue. However, in 2015 OSHA issued an updated voluntary guideline for violence prevention in healthcare and social services (https://www.shrm.org/ResourcesAndTools/hr-topics/risk-management/Documents/osha3148.pdf) and in 2016 OSHA proposed a specific Standard covering violence in the healthcare and social service sectors. Unfortunately, the proposed Standard has languished and there has been little progress in moving it towards completion in the past three years. Continue reading “U.S. House of Representatives Urges OSHA to Create a Standard Regarding Workplace Violence in the Healthcare Industry”

OSHA Withdraws Fairfax Memo, Employers Are No Longer Required to Allow Non-Employees to Accompany OSHA Investigators

Good news! OSHA has rescinded an interpretation letter commonly referred to as the “Fairfax Memo.” It has also removed a related guidance from OSHA’s Field Operations Manual.

The Fairfax Memo mandated that non-employees, aka union business agents, must be permitted to accompany OSHA during the walk-around portion of an inspection.  Examples mentioned in the memo of who could participate in the inspection included officials of labor organizations that did not represent the employer’s employees and “community organizers.” Continue reading “OSHA Withdraws Fairfax Memo, Employers Are No Longer Required to Allow Non-Employees to Accompany OSHA Investigators”

OSHA Delays Enforcement of Anti-Retaliation Provisions – Again

The Occupational Safety and Health Administration (OSHA) announced today that it will delay enforcement of the anti-retaliation provisions of the revised recordkeeping regulation until December 1, 2016. This delay is at the request of the Texas Court considering the Complaint and request for injunction filed by several industry groups in Texas. This is the second time that OSHA has delayed implementation of the new regulation.

Employers should plan as if OSHA will begin to enforce the new regulation on December 1 and consider how to revise their post-accident and safety incentive policies.

OSHA Tries to Make Workers Safer by Making Post-Accident Drug Screens and Safety-Incentive Programs More Difficult to Apply

On May 12, 2016 the Occupational Safety and Health Administration (OSHA) published a final Rule requiring many employers to submit illness and injury data electronically. This provision has been widely publicized and will take effect January 1, 2017. However, the new Rule also contains a much less publicized provision requiring employers to implement reasonable procedures for employees to report workplace illnesses and injuries promptly and accurately. This provision also contains anti-retaliation language providing that no such procedure can deter or discourage an employee from making a report. This provision of the Rule was initially set to go into effect August 10, 2016 but, due to suits filed by various pro-business interests, OSHA has agreed to refrain from implementing this provision until November 1, 2016. In theory, the anti-retaliation provision of the new Rule sounds logical. However, OSHA’s construction of the rule may be less so. Continue reading “OSHA Tries to Make Workers Safer by Making Post-Accident Drug Screens and Safety-Incentive Programs More Difficult to Apply”

Healthcare Providers Beware, OSHA Is Targeting Your Workplace Violence Programs, And it Is Going to Cost You…

If you have been reading the tea leaves lately, you have noticed that the federal government has recently taken steps designed to reduce the number of injuries suffered by workers in healthcare industries due to assaults. While the goal is laudable, the process may well end up costing you dearly. Continue reading “Healthcare Providers Beware, OSHA Is Targeting Your Workplace Violence Programs, And it Is Going to Cost You…”

OSHA Says that Fainting at the Sight of Blood is Recordable

Last week the Occupational Safety and Health Administration issued an interpretation letter indicating that fainting may be a recordable event even if the loss of consciousness was due to a non-recordable injury.

In the circumstance leading to the interpretation letter, an employee scratched his finger while at work. While a co-worker applied a band aid to the scratch, the “injured” employee saw his own blood and fainted. The employee explained that he cannot stand the sight of his own blood. He did not require any treatment beyond the band aid no other injury occurred beyond the scratched finger. Continue reading “OSHA Says that Fainting at the Sight of Blood is Recordable”

OSHA Issues a Transgender Bathroom Usage Guidance

On June 1, 2015 OSHA issued a Best Practices Guide to Restroom Access for Transgender Workers. The Guidance can be found here.

In short, the Guidance states Transgender_Bathroom_Signthat employers should allow the employee in question to determine which restroom provides the “most appropriate and safest option for him-or herself.” The guidanc
e also provides some best practices, including that the employer allow, but not require, employees to use single-occupancy gender-neutral facilities and multiple-occupancy gender-neutral facilities with lockable single-occupant stalls. (I suppose we should be grateful that OSHA has not yet recommended multiple-occupant gender-neutral lockable stalls.) Continue reading “OSHA Issues a Transgender Bathroom Usage Guidance”

OSHA Regulations Expanded to Require Automobile Dealers to Maintain OSHA 300 Logs

car-dealershipIn the past, new and used car dealers were among the industries that were generally exempt from maintaining OSHA 300, Injury and Illness Logs and posting OSHA form 300A, Summary of Work-Related Injuries and Illnesses. However, effective January 1, 2015, OSHA will require both new and used car dealers to maintain OSHA 300 logs and post OSHA 300A logs. Generally OSHA 300 logs deal with recordable, as opposed to reportable, injuries and illnesses. The types of instances that must be included on the OSHA 300 logs can be found at 29 C.F.R. 1904, et seq. Continue reading “OSHA Regulations Expanded to Require Automobile Dealers to Maintain OSHA 300 Logs”