Update: On Jan. 26, 2022, the Occupational Safety and Health Administration (OSHA) formally withdrew its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS).
On June 10, 2021, the Occupational Safety and Health Administration (OSHA) issued a long-anticipated Emergency Temporary Standard (ETS) relating to the 2019 novel coronavirus (COVID-19). Despite early expectations that the ETS would apply universally to all workplaces, the new ETS is narrowly tailored to certain employers in the health care industry.
However, OSHA paired its release of the new ETS with an updated version of its informal COVID-19 employer guidance, which more broadly applies to all workplaces.
Since the beginning of the COVID-19 pandemic, OSHA has exclusively relied on existing safety standards to regulate employer conduct during the COVID-19 pandemic. Consequently, all of OSHA’s previous employer directives, to date, have taken the form of non-binding informal guidance and recommendations. On Jan. 21, 2021, however, President Joseph Biden issued an Executive Order which directed OSHA to consider the implementation of “any emergency temporary standards on COVID-19” and to implement such standards by March 15, 2021. While no standards were released by March 15, 2021, OSHA continued its efforts to develop an emergency temporary standard (ETS), resulting in the June 10, 2021, COVID-19 ETS.
COVID-19 ETS FOR HEALTH CARE WORKERS
The COVID-19 ETS is narrowly tailored to apply to employers in the health care industry where health care services or health care support services are provided. In conjunction with the ETS, OSHA also released a flow chart to assist employers with determining whether they are subject to the new standard.
While most health care employers subject to today’s ETS are already complying with many of the ETS’ mandates, there are also many new employer obligations, including, but not limited to, new notice, recordkeeping and training requirements. Accordingly, every health care employer subject to today’s ETS must immediately review the specific requirements and implement a plan to ensure compliance. While the ETS is effective immediately upon publication in the Federal Register, most of the employer compliance obligations are effective 14 days after publication.
For additional information regarding the new ETS, employers should visit: osha.gov/coronavirus/ets.
OSHA UPDATES EXISTING COVID-19 GUIDANCE FOR ALL WORKPLACES
On Aug. 13, 2021, OSHA released an update to its existing COVID-19 guidance for all workplaces. OSHA’s COVID-19 guidance was originally released on Jan. 29, 2021, and previously updated on June 10, 2021.
OSHA’s Aug. 13, 2021 updates are intended to help employers identify COVID-19 exposure risks to unvaccinated workers and vaccinated workers who are otherwise still at risk (e.g. because they are immunocompromised).
Notably, the updated guidance “emphasizes that vaccination is the most effective way to protect against severe illness or death from COVID-19.” The guidance also aligns with the U.S. Centers for Disease Control and Prevention’s (CDC’s) updated recommendations relating to fully vaccinated people and includes recommendations that fully vaccinated people reduce their risk of becoming infected with the Delta variant or potentially spreading an infection by:
- Wearing a mask in public indoor settings in areas of substantial or high transmission
- Choosing to wear a mask regardless of level of transmission, particularly if individuals are at increased risk or have someone in their household who is at increased risk of severe disease or not fully vaccinated
- Getting tested three to five days following a known exposure to someone with suspected or confirmed COVID-19 and wearing a mask in public indoor settings for 14 days after exposure or until a negative test result.
For more information on this topic, or to learn how Godfrey & Kahn can help, contact a member of our Labor, Employment & Immigration Law Practice Group.