McNees attorney Errin McCaulley is a co-author of this post

On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) released its long-awaited COVID-19 Emergency Temporary Standard (“ETS”) (the final prepublication version that is set to become effective upon publication in the Federal Register).  Covered employers will be required to comply with most provisions within 14 days of publication in the Federal Register.

The ETS issued by OSHA is not a blanket standard applicable to all industries and employers, but rather applies only to employers and workplaces engaged in “healthcare services” or “healthcare support services” as defined in the ETS.  Even within the healthcare sector the ETS includes several exemptions that are summarized in a flow-chart issued by OSHA in conjunction with the ETS.  Healthcare sector employers should carefully review this flow-chart and the ETS to determine whether their workplaces are covered by the ETS.

Employers that are not subject to the ETS should consult OSHA’s updated guidance for all other industries, which was issued simultaneously with the ETS.  OSHA’s updated guidance will be discussed in a separate blog post coming next week.

OSHA’s ETS requires covered employers to conduct a hazard assessment and prepare a COVID-19 Plan for each workplace.  The COVID-19 Plan must designate a COVID-19 safety coordinator that is knowledgeable in infection control principles and practices and must address any identified hazards and include policies and procedures for minimizing the risk of transmission of COVID-19. The ETS prescribes various specific requirements, including:

  • Patient and employee COVID-19 symptom screening,
  • Physical distancing and barriers,
  • Medical removal (isolation and quarantine),
  • Employee notification of COVID-19 exposure in the workplace,
  • Ventilation,
  • Cleaning and disinfection, and
  • Personal protective equipment, including face masks and respiratory protection for employees who are exposed to individuals that are either suspected or confirmed COVID-19 positive.

Fully vaccinated employees may be exempt from the requirements relating to facemasks and physical distancing and under the ETS, provided that they are in a well-defined area where there is no reasonable expectation that a person with COVID-19 will be present.

Significantly, the ETS also requires paid time off for vaccination, and for workers who must isolate or quarantine.  Employers covered by the ETS must also establish and maintain a COVID-19 Log detailing each instance where an employee is determined to be “COVID-19 positive,” regardless whether a given instance is determined to be “work-related” under OSHA’s Recording Standard.

Healthcare sector employers should carefully review the detailed requirements of OSHA’s ETS to ensure workplace practices and policies remain compliant.  McNees is here to assist in addressing any compliance concerns with OSHA’s new ETS.