On June 9, 2021, the Occupational Health and Safety Administration (OSHA) issued a new COVID-19 Emergency Temporary Standard (ETS) with the scope of the ETS limited to certain workplace settings that are defined as healthcare service and healthcare support service settings, unless the healthcare setting is specifically excluded. In conjunction with its release of the ETS, on June 10, 2021, OSHA also issued new guidance applicable to employers and workers that are not covered by the ETS. The stated purpose of the new guidance is to enable employers to better recognize and abate hazards likely to cause death or serious physical harm as part of their obligation under the General Duty clause and other existing mandatory OSHA standards. To accompany our recent commentary on the ETS, we also have prepared the following summary of the OSHA guidance directed at employers not covered by the ETS.
What types of employers are not covered by the ETS?
The ETS does not cover non-healthcare workplaces, and certain specifically excluded health care settings:
- First aid provided by an employee who is not a licensed healthcare provider;
- Dispensing of prescriptions by pharmacists in retail settings;
- Non-hospital ambulatory care settings where all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings;
- Well-defined hospital ambulatory care settings where all employees are fully vaccinated, and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are denied entry;
- Home healthcare settings where all employees are fully vaccinated and all non-employees are screened prior to entry into a patient’s home, and people with suspected or confirmed COVID-19 are excluded;
- Healthcare support services not performed in a healthcare setting; or
- Telehealth services performed outside of a setting where direct patient care occurs.
In addition, if a covered health care setting is embedded in a non-healthcare setting, the ETS applies only to the embedded healthcare setting and not to the remainder of the location. Similarly, if emergency care responders or other licensed healthcare providers provide healthcare services in a nonhealthcare setting, the ETS only applies to the individual providing healthcare services.
In occupational settings that are described as well-defined areas “where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present,” the following sections do not apply to employees who are fully vaccinated:
- Section (f) – personal protective equipment requirements;
- Section (h) – physical distancing requirements; and
- Section (i) – physical barrier requirements.
Focus of guidance is on protection of unvaccinated and at-risk workers
If all employees are fully vaccinated, most employers no longer need to implement procedures to protect their employees from exposure to COVID-19 in the workplace, unless the workplace is covered under the ETS, or by mask requirements applicable to public transportation, or is otherwise required to implement control and prevention measures by federal, state, local, tribal or territorial laws or rules. The guidance recommends the now familiar multi-layered approach to protecting unvaccinated workers and at-risk workers, alike.
At-risk workers are defined as individuals with conditions that entitle them to reasonable accommodations under the Americans with Disabilities Act to protect them from infection with COVID-19 and includes individuals who cannot be protected through vaccination due to underlying medical conditions, who cannot get vaccinated, or cannot use face coverings. OSHA states that employers “should consider taking steps to protect these at-risk workers as they would unvaccinated workers.” OSHA recommends employers engage with workers and their representatives to implement the following control measures that reduce the risk of transmission of COVID-19 for unvaccinated and at-risk workers:
- Provide paid time off to obtain vaccinations against COVID-19 and recover from vaccine side effects. The guidance notes that tax credits are available under the American Rescue Plan to eligible employers with fewer than 500 employees that provide the paid time off benefit provided to employees;
- Require employees who are infected with COVID-19, who are unvaccinated and exposed to an individual who tested positive for COVID-19, and all workers with COVID-19 symptoms to remain home from work;
- Implement physical distancing requirements for unvaccinated and at-risk workers in communal areas;
- Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks at no cost, unless their work task requires a respirator or other PPE; or reasonable accommodation for workers unable to wear a face covering due to a disability or who require a religious accommodation. If PPE is provided to unvaccinated or at-risk employees, OSHA mandatory standards must be followed in accordance with industry specific guidance.
- Provide training to workers on COVID-19 workplace policies and procedures in accessible formats and in a language that workers comprehend and employ a means of tracking individuals who have received the training;
- Suggest that unvaccinated guests, visitors, and customers wear face coverings;
- Maintain ventilation systems;
- Perform cleaning and disinfection procedures if an individual with a suspected or confirmed case of COVID-19 has been in the facility within 24 hours, follow CDC cleaning and disinfection recommendations and follow mandatory OSHA standards for hazard communication and mandatory standards regarding PPE appropriate for exposure to cleaning chemicals as directed here, here and
- Record and report COVID-19 infections and deaths. OSHA rules in 29 CFR 1904 require the employer to report COVID-19 fatalities and hospitalizations to OSHA. Employers also should report outbreaks to health departments as required and support contact tracing efforts. Significantly, from now through May 2022, OSHA is not enforcing 29 CFR 1904’s recording requirements with regard to side effects from the COVID-19 vaccine that workers may experience. OSHA will reevaluate its position in May 2022 regarding employer’s obligation to record vaccine side effects.
- Prohibit reprisals or discrimination against employees who notify employers of unsafe working conditions or who report a COVID-19 infection or exposure as required by Section 11 (c) of the OSH Act and mandatory standard 29 CFR 1904.35(b). As a reminder, section 11(c) of the OSH Act protects employees who raise concerns about COVID-19 to an employer, employees, a government agency or to the public through any medium, or who voluntarily provide and wear their own PPE. OSHA suggests that employers consider using a hotline or other method for workers to raise health and safety concerns anonymously.
- Follow other applicable mandatory OSHA standards for: PPE here and here, respiratory protection, sanitation, bloodborne pathogens, employee access to medical and exposure records and the General Duty clause.
Specific guidance for higher risk workplaces with a mixed vaccination status workforce
OSHA provides specific guidance for workplaces that present a heightened risk of exposure to unvaccinated and at-risk individuals and offers guidance on the types of measures employers should implement to reduce the risk of transmission of COVID-19 to such individuals. “Higher risk workplaces” are workplaces that require close contact among workers for a prolonged period of time, and workplaces that feature shared workstations, breakrooms, lockers, ride sharing, or shared tools. OSHA specifically identifies manufacturing, meat and poultry processing, high volume retail and grocery, and seafood processing facilities as higher-risk workplaces.
For all employers with higher risk workplaces, OSHA recommends the adoption of additional measures that prevent unvaccinated and at-risk individuals from congregating, such as:
- Staggering break times and arrival and departure times; providing signage to maintain physical distancing; and improving ventilation through strategies recommended by OSHA guidance.
For workplaces with assembly lines or processing facilities, OSHA recommends that employers require physical distancing and consider adding barriers in addition to the above recommendations.
In retail workplaces or well-defined areas within retail workplaces in which the vaccination status of visitors or customers is unknown, in addition to the above measures, OSHA recommends that employers suggest the use of masks by customers and visitors; use physical distancing or barriers to separate unvaccinated and at-risk workers from others; relocate electronic payment terminals away from unvaccinated and at-risk employees; and shift stocking activities to off-peak or after hours to reduce exposure to customers.
What this means to you
Employers with a fully vaccinated workforce and not subject to the ETS, mask mandates for public transportation, or other federal, state, local or tribal requirements are no longer required to implement prevention and control measures to protect their workforce from exposure to COVID-19. The decisions to dispense with all prevention and control measures for fully vaccinated workplaces, to dispense with recording requirements for side effects caused by the vaccine, and the reference to the availability of tax credits to eligible employers that provide paid time off to employees to obtain a vaccination and recover from side effects are indicative of this administration’s emphasis on boosting vaccination rates and achieving greater vaccine equity through incentivization.
The OSHA guidance doesn’t address the question of how employers are to determine whether their workforce is fully vaccinated. The ETS, however, does offer commentary on acceptable ways to determine employees’ vaccination status and suggests the following methods: 1) asking employees to attest to or provide documentation of their vaccination status; 2) vaccinating their own workforce so that the employer has knowledge of whether the workforce is fully vaccinated; 3) reviewing state issued vaccination passes, if available, and 4) for small employers, knowledge of vaccination status based on “conversations.” Employers remain subject to the ETS control and prevention measures if the employer is unable to determine the vaccination status of all employees. In a previous commentary, Husch Blackwell has discussed COVID-19 vaccine mandates and incentives for employers considering such options.
With respect to employers whose workforce includes individuals who are unable to take the vaccine due to a medical condition or a religious objection and who are entitled to a reasonable accommodation under disability and civil rights laws, such employers, with an otherwise fully vaccinated workforce, are entitled to an exemption from the ETS only if the employers provide reasonable accommodation, absent undue hardship, that prevents such employees from being exposed to COVID-19.
Employers with specific questions about the OSHA guidance and exemptions from the ETS are encouraged to contact their legal counsel. For additional information, contact, Erik Eisenmann, Brian Hendrix, or your Husch Blackwell attorney.
Tracey Oakes O’Brien, Legal Content and Knowledge Manager, is a co-author of this content.