On Thursday, June 10, 2021, OSHA released its long awaited COVID-19 Emergency Temporary Standard (ETS). Despite beliefs that the ETS would address all workplace settings, it only addresses workplace safety in the health care industry. Answers to the key questions regarding the ETS are outlined below:

Who does the ETS apply to?
The ETS generally applies in all settings where any employee provides healthcare services or healthcare support services. This includes employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in ambulatory care facilities where suspected or confirmed COVID-19 patients are treated.

What does my workplace need to do to comply with the ETS?
The ETS requires covered employers to implement varying, overlapping controls to protect workers from the virus. Pursuant to the ETS, covered employers need to implement and practice the following:

  • COVID-19 Plan – Develop and implement a specific COVID-19 plan (in writing if more than 10 employees) that includes a designated safety coordinator, a workplace-specific hazard assessment, input and involvement of non-managerial employees and their representatives, and policies and procedures to minimize the risk of transmission of COVID-10 to employees, including policies and procedures to determine employees’ vaccination status.
  • Patient screening and management – Limit and monitor points of entry to areas where direct patient care is provided, and screen every person who enters the facility.
  • Standard and Transmission-Based Precautions – Develop and implement policies and procedures to adhere to Standard and Transmission-Based precautions based on CDC guidelines.
  • Personal protective equipment (PPE) – Provide and ensure each employee wears a facemask when indoors and when occupying a vehicle with other people for work purposes; provide and ensure employees use respirators and other PPE for exposure to people with suspected or confirmed COVID-19, and for aerosol-generating procedures on a person with suspected or confirmed COVID-19.
  • Aerosol-generating procedures on a person with suspected or confirmed COVID-19 – Limit employees present to only those essential; perform procedures in an airborne infection isolation room, if available; and clean and disinfect surfaces and equipment after the procedure is completed.
  • Physical distancing – Keep people at least 6 feet apart when indoors.
  • Physical barriers – Install cleanable or disposable solid barriers at each fixed work location in non-patient care areas where employees are not separated from other people by at least 6 feet.
  • Cleaning and disinfection – Follow standard practices for cleaning and disinfection of surfaces and equipment in accordance with CDC guidelines in patient care areas, resident rooms, and for medical devices and equipment; in all other areas, clean high-touch surfaces and equipment at least once a day and provide alcohol-based hand rub that is at least 60% alcohol or provide readily accessible handwashing facilities.
  • Ventilation – Ensure that employer-owned or controlled existing HVAC systems are used in accordance with manufacturer’s instructions and design specifications for the systems and that air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher if the system allows it.
  • Health screening and medical management 
    • (1) Screen employees before each workday and shift;
    • (2) Require each employee to promptly notify the employer when they are COVID-19 positive, suspected of having COVID-19, or experiencing certain symptoms;
    • (3) Notify certain employees within 24 hours when a person who has been in the workplace is COVID-19 positive;
    • (4) Follow requirements for removing employees from the workplace;
    • (5) Employers with more than 10 employees, provide medical removal protection benefits in accordance with the standard to workers who must isolate or quarantine.
  • Vaccination – Provide reasonable time and paid leave for vaccinations and vaccine side effects.
  • Training – Ensure all employees receive training so they comprehend COVID-19 transmission, tasks and situations in the workplace that could result in infection, and relevant policies and procedures.
  • Anti-Retaliation – Inform employees of their rights to the protections required by the standard and do not discharge or in any manner discriminate against employees for exercising their rights under the ETS or for engaging in actions required by the standard.
  • Compliance Costs – Requirements for complying with the ETS must be implemented at no cost to employees.
  • Recordkeeping – Establish a COVID-19 log (if more than 10 employees) of all employee instances of COVID-19 without regard to occupational exposure and follow requirements for making records available to employees/representatives.
  • Reporting – Report work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.

When does my workplace need to comply with the ETS?
Covered employers must comply with most provisions of the ETS within 14 days, and with provisions involving physical barriers, ventilation, and training within 30 days.

My Healthcare Employees are vaccinated, do they need to comply with the ETS?
The ETS exempts fully vaccinated workers from masking, distancing, and barrier requirements when in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present. However, some protective measures of the ETS are still required for those whose jobs require them to work in settings where patients with suspected or confirmed COVID-19 may be present.

What if my Company is not covered by the ETS?
The ETS is aimed at protecting workers facing the highest COVID-19 hazards—those working in healthcare settings where suspected or confirmed COVID-19 patients are treated. If your Company is not in the healthcare industry, and the ETS does not apply to your workplace, you should adhere to OSHA’s Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. From a general perspective, OSHA non-health care guidance specifies that fully vaccinated people need not take all the precautions that unvaccinated people should take. As such, unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure.

Covered employers should review their current COVID-19 policies and procedures to ensure compliance with the ETS.

If you have any questions regarding the ETS, OSHA or other COVID-19 workplace issues please contact Frantz Ward attorney Jonathan Scandling of Frantz Ward’s Labor & Employment Group.