November 29, 2021

Volume XI, Number 333


November 29, 2021

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OSHA Releases Long-Awaited COVID-19 Emergency Temporary Standard, Limits It to Healthcare Sector

We’ve been saying for some time now that the Occupational Safety and Health Administration (OSHA) was expected to release an emergency temporary standard on COVID-19 – now that day has finally come! On June 10, 2021, OSHA published the emergency temporary standard (“ETS”) to its website, along with a fact sheet, a summary, numerous FAQs, and other guidance.  The ETS takes effect immediately upon publication to the Federal Registrar (which has not yet occurred), with compliance obligations effective within 14 days for most portions of the new regulation, and within 30 days for other portions (see below).

Is your business covered by OSHA’s COVID-19 ETS?

The ETS applies only to settings where employees provide healthcare services or healthcare support services (with some defined exceptions).  These may include hospitals, nursing homes, assisted living facilities, emergency response, some home healthcare environments, and the like.  OSHA has provided a flow-chart for employers to determine if the ETS applies.  Because coverage depends on the location and circumstances in which employees work, an employer might have to comply with the ETS as it relates to some areas of their business or to some employees but not others (e.g., a manufacturer with a Health Department / Nurses Center that employs a healthcare professional in the operation). 

If you are covered, what do you need to do to comply?

The ETS mandates numerous prevention strategies, recordkeeping, and other logistical requirements.  Some of the key obligations include:

  • Develop a COVID-19 plan (with input from employees), which includes COVID-19 transmission mitigation policies, among other requirements.If you have 10 or more employees, this plan MUST be in writing. (Compliance is required within 14 days.)

  • Screen patients, employees (OSHA provides a sample questionnaire for employee screening), and all others entering the workplace for COVID-19 symptoms. (Compliance is required within 14 days.)

  • Train employees in the appropriate language and literacy level on COVID-19 transmission at work, relevant safety policies and protocols, the COVID-19 Plan, and other required topics.(Compliance is required within 30 days.)

  • Provide employees time off and paid leave for vaccination and recovery from vaccine side effects. Employers must also provide specified amounts of paid leave for certain employees removed from work due to COVID-19 exposure or contraction. (Compliance is required within 14 days.)

  • Follow notification procedures for certain employees exposed to COVID-19 at work (OSHA provides a notification tool to assist in this process).(Compliance is required within 14 days.)

  • Record all confirmed COVID-19 cases among employees, regardless of whether they were exposed at work (OSHA provides a template log to assist in this process). (Compliance is required within 14 days.)

  • Add physical barriers to all fixed work locations where social distancing of 6 feet apart between employees may not be maintained (this requirement is not applicable to direct patient care areas (emergency rooms) or resident rooms). (Compliance is required within 30 days.)

  • For employers who own or control buildings or structures with an existing heating, ventilation or air conditioning (HVAC) system, they must ensure compliance with manufacturers’ guidance on design, maintenance, repair and operation. In addition, all air filters are to be rated with a Minimum Efficiency Reporting Value (MERV) 13 or higher. (Compliance is required within 30 days.)

In addition to other personal protective equipment requirements, the ETS requires compliance with a so-called “Mini Respiratory Protection Program” in some cases where workers are not exposed to COVID-19 sources but where respirators offer enhanced protection.  For those operations or circumstances where OSHA’s Respiratory Protection Standard would otherwise apply, the Mini Respiratory Protection Program may not be substituted.

© 2021 Foley & Lardner LLPNational Law Review, Volume XI, Number 161

About this Author

Katelynn Williams,  Labor Attorney, Foley Lardner Law Firm

Katelynn Williams is an associate with Foley & Lardner LLP, where she is a member of the firm’s Labor & Employment Practice. She represents employers before state, federal, and administrative bodies in a wide variety of labor and employment-related claims, including retaliation, discrimination, non-compete, and wage & hour matters.

Prior to joining Foley, Ms. Williams was an associate at a Wisconsin-based employment litigation firm, where she focused on employee benefit and wage & hour disputes.

Daniel A. Kaplan, Employment, Litigation, attorney, Foley Lardner Law firm

Daniel A. Kaplan is a partner and litigation attorney with Foley & Lardner LLP. Mr. Kaplan counsels employers in all aspects of the employer-employee relationship, including wage and hour, employment contracts, confidentiality and non-compete agreements, worker’s and unemployment compensation, family and medical leave, disability accommodations and compliance with the Americans with Disability Act, and all state, federal and local discrimination laws. Mr. Kaplan has experience litigating before various state and federal agencies, various state courts, and federal...