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Kelley Kronenberg Client Alert: Long-Awaited Covid-19 Update from Osha Directed To Healthcare Employers

June 10, 2021

Today, June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) announced the issuance of a 916-page Final Rule involving an Emergency Temporary Standard (“ETS”) which is principally directed to healthcare employers and those employers who employ employees in healthcare support roles.

The Department of Labor (“DOL”) is required to issue an ETS in situations where employees are exposed to “grave danger” and immediate action is necessary to protect those employees from such danger. After President Biden was sworn into office, he ordered that the DOL prepare an ETS relating COVID-19 for the protection of workers.

DOL carefully took into account the current state of the pandemic (between COVID-19 case counts, vaccine implementation, and affected employment settings) when issuing this ETS. OSHA notes that an ETS is necessary here to protect healthcare and healthcare support employees in covered healthcare settings from exposure to COVID-19 because they still face significant risk of harm. Indeed, OSHA not only recognizes that COVID-19 had a disproportionate impact on healthcare workers, but also that COVID-19 continues to present a grave danger to healthcare employees thus necessitating the need for an ETS.

As reported in the ETS, as of May 24, 2021, nearly 500,000 healthcare workers contracted COVID-19 and more than 1600 healthcare workers died. Thus, employees in healthcare settings which include healthcare employees, who provide direct patient care, and healthcare support employees, who provide services that support the healthcare industry and may have contact with patients are at risk for contracting COVID-19 and thus need the protections set forth in the ETS. The ETS notes, among other things, that healthcare employers will be required (if they haven’t done so already) to: develop and implement a COVID-19 plan which identifies and controls COVID-19 hazards in the workplace and to implement other requirements to reduce COVID-19 in the workplace, including but not limited to, through patient screening and management, standard and transmission-based precautions, mandatory issuance and enforcement of usage of face masks and other PPE, physical distancing of at least 6 feet, physical barriers, cleaning and disinfection, ventilation, health screening and medical management, training, anti-retaliation protocols, record-keeping and reporting. The ETS also encourages vaccination by requiring employers to provide reasonable time and paid leave for employee vaccinations and any side effects. The ETS also exempts certain workplaces where all employees are fully vaccinated and individuals with COVID-19 are prohibited entry.

There are particulars within each standard, but the major takeaway is that healthcare employers need to continue to take this pandemic very seriously in order to protect their employees from harm and to take immediate action to review the standards set forth in the ETS and adhere to them. OSHA states that it will continue to monitor trends in COVID-19 infections and deaths as more of the workforce and general population become vaccinated and the pandemic continues to involve. Accordingly, if and when OSHA finds that a grave danger from the virus no longer exists for the covered workforce, or new information indicates a change in measures necessary to address the grave danger, OSHA will update the ETS. Indeed, this ETS does not necessarily mean non-healthcare employers are off the hook in terms of abiding by COVID-19-related safety requirements found in other OSHA guidance or through other federal, state or local requirements, but rather that healthcare employers are the focus for this ETS and the additional requirements set forth therein.

Finally, as noted in the ETS, the Final Rule has been submitted to the Office of Federal Register (OFR) for publication and is currently pending placement on public inspection at the OFR and publication in the Federal Register. Thus, the version which exists today may vary slightly from the final published document. The rules set forth in the ETS will be effective after publication within the Federal Register.

For any questions or assistance with the implementation of the ETS guidelines in your workplace, don’t hesitate to contact Adam Kemper.

Here is a Fact Sheet Regarding this ETS.