In mid-May 2021, the Centers for Disease Control (CDC) announced that individuals who are fully vaccinated against COVID-19 no longer have to wear a face covering or physical distance in most settings. Following the CDC announcement, Washington and Oregon followed suit, updating state guidance and relaxing physical distancing and face-covering requirements for fully vaccinated employees. Feeling employee pressure, many employers started easing COVID-19 workplace safety precautions knowing that state workplace restrictions would likely lift by the end of June. However, on June 10, 2021, the Occupational Safety and Health Administration (OSHA) published its updated COVID-19 Guidance for all industries, including a mandated Emergency Temporary Standard (ETS) for healthcare workers. These announcements sparked a slew of questions from employers and workers wanting to know what this means for the workplace. How should employers respond to OSHA’s new guidelines? Are they mandatory, and if an employer is following state guidance already, are there additional OSHA requirements?
General Guidance for All Industries
OSHA’s updated Guidance for all industries is intended to assist employers and protect unvaccinated employees and employees who are at-risk regardless of vaccination status from workplace exposure to COVID-19. This Guidance covers workers who are not included in the ETS. At-Risk employees include those fully vaccinated but cannot have a full immune response to vaccinations due to underlying conditions. Highlights from the Guidance include:
- Unless required by state, local, or other laws, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from a COVID-19 exposure. However, OSHA recommends that employers maintain a COVID-19 Prevention Plan to show that the employer has done its due diligence keeping workers safe.
- Employers are encouraged to grant paid time off to employees to get vaccinated. Businesses with fewer than 500 employees that provide paid time off may be eligible for tax credits under the American Rescue Plan.
- Employers should continue to educate workers on their COVID-19 policies and prevention techniques, including physical distancing and wearing face coverings for those not fully vaccinated or at-risk, and situations where workers need to stay home.
- Employers should suggest that unvaccinated customers, visitors, or guests wear face coverings, especially in public-facing workplaces. This could include posting a notice suggesting the use of face coverings for unvaccinated individuals, even if no longer required by local laws.
- Employers should maintain workplace ventilation systems. Improving ventilation is a crucial engineering control in a multi-layered strategy to reduce virus transmission. Install air filters with a Minimum Efficiency Reporting Value (MERV) 13 or higher where feasible and maximize natural ventilation when possible.
- Employers should continue with routine cleaning and disinfection and have plans in place to clean and disinfect an area following any suspected COVID-19 exposure.
Although the General Guidance is not a mandated standard, OSHA has stated that employers who fail to follow the Guidance could be cited under OSHA’s General Duty Clause. The General Duty Clause requires employers to provide their workers with a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.
Emergency Temporary Standard for Healthcare
The mandated ETS aims to protect workers facing the most severe COVID-19 hazards. It applies to those who work in healthcare services such as nurses, onsite healthcare support services such as billing, and ambulatory care such as in-patient therapy. Highlights from the ETS include:
- Employers with more than 10 employees must have a written COVID-19 plan that includes appointing a safety coordinator, conducting hazard assessments, input from management and employees, and policies to minimize the risk of COVID-19 exposure.
- Employers must screen those entering the workplace for signs/symptoms of COVID-19.
- Employers must develop and implement policies and procedures to reduce the transmission of COVID-19 in the workplace by means such as personal protective equipment (PPE), physical distancing, barriers, cleaning and disinfection, training, and increased workplace ventilation.
- Employers must provide personal protective equipment (PPE). This includes ensuring employees wear facemasks when indoors and occupying a vehicle with other people for work purposes. If respirators are required, then employers need to meet all applicable respirator requirements. Voluntary use of respirators is allowed by following the mini respiratory protection program 1910.504.
- Employers must provide reasonable time and paid leave for vaccinations and vaccine side effects.
- Employers must implement requirements at no cost to employees.
Because the ETS is mandated for covered workers, employers who fail to follow the ETS could be found in violation of the standard and subsequently cited.
Additional Criteria for the General Guidance and ETS
In both the General Guidance and ETS, employers must report work-related COVID-19 fatalities and hospitalizations to OSHA or their state-run agency. In the General Guidance, this recording requirement applies if someone is hospitalized within 24 hours of being exposed to COVID-19 at work and within 30 days if someone dies as a result of a work-related case of COVID-19. The ETS requires employers to report to OSHA or their state-run agency within 24 hours of learning of an in-patient hospitalization due to a work-related COVID-19 exposure and within 8 hours of learning of a work-related COVID-19 fatality.
Additionally, employers with more than 10 employees must record work-related COVID-19 illnesses on their OSHA 300 log if they meet the recordkeeping criteria, such as days missed from work, modified work, or treatment beyond first aid. However, OSHA clarified that employers do not need to record adverse reactions to FDA-approved vaccines.
There is also an emphasis in both the General Guidance and ETS that employers must implement protections for workers from retaliation and harassment situations that may arise from face-covering usage or the reporting of COVID-19 hazards. Employers should set up an anonymous process, including but not limited to using an anonymous hotline, for workers to voice their concerns about COVID-19 related hazards. To read more about both the Guidance and ETS, employers can visit https://www.osha.gov/coronavirus.
Do Employers Need to Follow General Guidance or ETS If Following State Mandates?
Employers following current Washington and Oregon State COVID-19 guidance will be in compliance with OSHA’s General Guidance since the state guidelines currently meet or exceed OSHA’s General Guidance. Employers subject to the ETS guidance must comply with any OSHA measures that exceed the state guidelines for ETS employees. However, if the state guidelines are modified or relaxed after the projected re-opening at the end of June, employers should follow the OSHA Guidance to avoid a citation under OSHA’s General Duty Clause or the ETS. For example, if a state eliminates face-covering requirements for unvaccinated individuals due to “herd immunity” for workplaces, employers could be cited by OSHA for failing to follow the General Guidance for unvaccinated or at-risk workers. Those covered by the ETS will also still need to comply with the ETS mandated face covering and PPE requirements.
Archbright will continue to follow and share changes to federal and state requirements. Eligible members can find a variety of COVID-19 resources and templates in the Resource Library on mozzo. Eligible members are also encouraged to reach out to the HR and Safety Hotlines with any questions.