Occupational Safety and Health Administration (OSHA)’s New Mandatory COVID-19 Guidance for Healthcare Employers and Employees

Back in mid-March, the Department of Labor (DOL) notified key stakeholders of the likelihood it would be issuing new regulations concerning COVID-19.

Yesterday, the Occupational Safety and Health Administration (OSHA) of the DOL issued the long-awaited Emergency Temporary Standard (ETS) regarding safety requirements that healthcare employers must implement and adhere to in light of COVID-19. Despite the fact that the healthcare sector has remained ahead of the curve on various safety protocols and CDC guidelines, OSHA has made clear that its existing standards and regulations were inadequate and needed to have teeth. For that reason, the over-900-page rule expands upon OSHA’s previously issued guidance on COVID-19 protocols, and unlike OSHA’s earlier guidance, the ETS is mandatory for healthcare employers. The prior, nonbinding guidance has been updated and remains in effect for non-healthcare employers.

The ETS will apply to places of business with 10+ employees “where any employee provides healthcare services or healthcare support services,” including hospitals, nursing homes, emergency services providers, home healthcare services providers, and ambulatory care facilities. There are a few exceptions for certain pharmacies, healthcare support services, telehealth services, and ambulatory care settings.

In short, the ETS requires covered employers to do what most are already doing - provide and implement a wide range of COVID safety measures, including maintaining social distancing protocols, screening employees prior to their shifts and patients upon entry for COVID-19 symptoms, regularly cleaning areas, installing physical barriers where appropriate, recording employee cases of COVID-19, and providing employees with masks, respirators, and other PPE. Employers are also required to develop and implement a written virus safety plan that incorporates these and other “key requirements,” with designated workplace safety coordinators and regular monitoring of the ongoing effectiveness of the plan.

One key component that may appear novel to many employers is that any employee who tests positive from COVID-19 must be removed from the workplace and must continue to receive his/her normal salary up to $1,400 a week for the first two weeks of absence and various other amounts if he/she is sick beyond that, irrespective of an inability to work remotely. Similarly, healthcare employers are required to give employees paid time off for purposes of getting the first and second doses of the COVID-19 vaccine and recovering from any side effects.

Another key component of the ETS, and one that may spark conflict, is its mandate that all workers in healthcare settings continue wearing masks or facial coverings, save for employees who are fully vaccinated. Those who are fully vaccinated are also exempt from engaging in social distancing and barrier requirements in areas “where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.” Thus, the ETS permits vaccinated employees, but not unvaccinated employees, a level of flexibility that the country has not seen in the healthcare setting since early 2020. This new flexibility is, however, only permitted if no federal, state or local laws or regulations require vaccinated employees or individuals to wear a mask or physically distance.

In other words, the ETS sets a new “floor” for vaccinated workers in the healthcare services industry, but other applicable law is still the “ceiling.”

OSHA can keep the rule active for up to six months, or it can even try to make it a permanent regulation. Given the lower infection rate of COVID-19 that the country is experiencing at present, however, it seems unlikely the rule becomes permanent given the high threshold needed for implementation (i.e., a “grave danger” to workers), but stranger things have happened—like a global pandemic.

While the ETS has not officially taken effect (it will become effective immediately upon publication in the Federal Register), employers in the healthcare sector should confirm that their current practices comply with the ETS. Once the rule is in effect, there will be a 14-day window to implement most of the mandatory policies in the rule and a 30-day window for the rest. However, OSHA has indicated it will be lenient and exercise “enforcement discretion” if employers are making a “good-faith effort” to comply by the deadline. As for non-healthcare industries, this rule has no present effect, but OSHA’s nonbinding COVID-19 guidance has been updated (with a focus on those workplaces that require employees to be in close proximity to one another) and remains in effect.