On his first, full day in office, President Biden issued an Executive Order directing OSHA to implement Emergency Temporary Standards (“ETS”) by no later than March 15, 2021. At the time, the seven-day average for new reported cases of COVID-19 had recently peaked at over 250,000 and the seven-day average for deaths was over 3,000. Many Americans expressed frustration with the apparent lack of action by OSHA to issue ETS during the first months of the pandemic. As new cases and deaths began to drop after the Biden Executive Order in the early months of 2021, many began to wonder if the ETS were still necessary and others became concerned about whether and to what extent any ETS would conflict with state laws aimed at easing restrictions and returning economies to a “fully-open” status. By the initial deadline for the ETS on March 15, the seven-day average for new cases and deaths had fallen to approximately 50,000 and 1,400, respectively. Not surprisingly, OSHA did not meet the March 15 deadline and on April 6, the Department of Labor put a hold on implementation of the ETS while “reflecting on the latest scientific analysis of the disease.” On June 10, OSHA finally released the new ETS. To the relief of many employers, the ETS – which were widely expected to apply to a broad category of employers – ultimately only applied to certain health care workers. For employers not in the health care sector, OSHA issued updated guidelines, which, as the name suggests, are voluntary and appear intended to further encourage employee vaccination. Some key take-aways from both the ETS and the guidelines are included below.
The Emergency Temporary Standards
1. The ETS are focused almost exclusively on the health care industry. To determine whether your business is subject to the ETS, OSHA provides a flow chart on its website that can be found here: https://www.osha.gov/sites/default/files/publications/OSHA4125.pdf
2. The ETS apply even if they conflict with State law. The ETS are enforced by the federal government in most states. States and Territories that have adopted their own OSHA-approved plans (including my home state of Utah) are required by law to amend their standards to be identical to or “at least as effective as” federal standards. Accordingly, States and Territories with State plans will be required to enforce the ETS or something as effective as the ETS.
3. Most employers in the health care industry are likely already complying with the ETS. Much of what is included in the ETS will be second nature to health care employers (PPE, patient screening, ventilation, cleaning, and testing). However, the ETS also mandate new training and record keeping requirements that should be carefully reviewed by employers subject to the ETS.
The Voluntary Guidelines
The Guidelines are clearly intended to incentivize employee vaccination. In addition to limiting many of the recommendations to those who are unvaccinated, OSHA includes as a preamble to the new guidelines, “Most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are full vaccinated.” For workplaces that do not meet the “fully vaccinated” goal, OSHA encourages that employers adopt or continue the following;
- Grant employees paid time off for vaccinations.
- Encourage employees who may have been exposed to COVID-19 to stay home.
- Implement physical distancing for at-risk or unvaccinated employees in communal work areas.
- Provide face coverings and other PPE to unvaccinated and at-risk employees.
- Educate employees about COVID-19 safety protocols in a language they can understand.
- Suggest face coverings for unvaccinated customers, visitors or guests to the workplace.
- Maintain ventilation systems.
- Perform routine cleaning and disinfecting.
- Record and report COVID-19 infections and deaths (already legally required when the infection occurs at work).
You should contact legal counsel to determine if your business is a workplace covered by the COVID-19 Healthcare ETS and, if so, whether you are compliant with the new standards. For those businesses not covered by the Healthcare ETS, review the guidelines and, at a minimum, continue to monitor employee infections to ensure that none are work-related.
D. Zachary Wiseman is an experienced labor and employment attorney who represents employers in both the private and public sectors. He consults with employers on a daily basis on a wide range of workplace issues including employee leave, disability accommodations, discipline, termination, union organizing campaigns, labor relations, non-compete and non-solicitation agreements, confidential information and trade secret disputes, harassment and discrimination. He is also an experienced investigator of employee misconduct claims.