The Department of Labor has promulgated an emergency temporary standard (ETS) designed to protect healthcare workers but did not extend the rule to other high-risk employment such as manufacturing, grocery or high-volume retail as some labor groups had urged
The ETS from the Occupational Safety and Health Administration (OSHA) focuses on healthcare workers most likely to have contact with someone infected with the virus. It requires healthcare facilities with 10 or more employees to conduct a hazard assessment and create a plan in writing. It sets forth rules for when to require masking, distancing and physical barrier requirements.
In addition to addressing masks, distancing and barriers, the standard addresses other personal protection equipment, patient screening, ventilation, disinfection, health screening, vaccination, employee training, record-keeping, paying quarantined employees and other situations. (See sidebar.)
It identifies some exemptions for fully vaccinated workers from masking, distancing and barrier requirements when in well-defined areas “where there is no reasonable expectation that any person will be present with suspected or confirmed coronavirus.”
The healthcare standard also applies to emergency responders and employees in ambulatory care settings where suspected or confirmed coronavirus patients are treated.
OSHA also set forth guidance for working with unvaccinated employees in high-risk settings, including physical barriers and moving those employees to off-hours.
Employers must comply with most provisions within 14 days and with the remaining provisions within 30 days. OSHA said it will use its enforcement discretion to avoid citing employers who miss a compliance deadline but are making a good faith effort to comply with the ETS.
“This standard is necessary to give our healthcare workers deeply needed protections,” said Acting Assistant Secretary of Labor for Occupational Safety and Health Jim Frederick. “This tailored standard allows OSHA to help the workers most in danger of contracting the virus, while the updated guidance will give other businesses across the country the information they need to help protect unvaccinated workers and continue mitigating spread in the workplace.”
OSHA said it will update the standard, if necessary, to align with Centers for Disease Control (CDC) guidelines and changes in the pandemic.
Other Industries’ Guidance
In addition to the healthcare-focused standard, OSHA issued updated guidance to help employers and workers in other industries protect workers who are still not vaccinated,. This guidance is directed at industries noted for prolonged close-contacts like meat processing, manufacturing, seafood, and grocery and high-volume retail.
The standard will require non-exempt facilities to conduct a hazard assessment and have a written plan to mitigate virus spread, and requires healthcare employers to provide some employees with N95 respirators or other personal protective equipment. In addition, covered employers must ensure 6 feet of distance between workers. In situations where this is not possible, employers should erect barriers between employees where feasible.
The standard also requires covered employees to provide workers with paid time off to get vaccinated and to recover from any side effects. Covered employees who have coronavirus or who may be contagious must work remotely or otherwise be separated from other workers if possible, or be given paid time off up to $1400 per week. For most businesses with fewer than 500 employees, tax credits in the American Rescue Plan may be reimbursed through these provisions.
OSHA has estimated that its new ETS will cover about 10 million people.
Labor organization have long urged OSHA to issue a broader standard covering meatpacking, grocery and other workers. The AFL-CIO sued in 2020 to force OSHA to issue an emergency standard but a federal court of appeals dismissed its case.
Unions have also criticized the voluntary guidance for other industries as stopping short of the force of a standard. OSHA does, however, use its guidance in evaluating an employer’s safety efforts and its guidance has also been used as the minimal standard of care in negligence cases.
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