The Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) June 10, 2021 to address the hazard posed to health care workers whose positions expose them to SARS-COVID-2, the virus that causes COVID-19. The ETS provides guidelines for how these workplaces can reduce the risk of viral transmission to their employees.
This standard applies to health care workers who are reasonably expected to be present at their place of employment and where the employee provides direct health care services or health care support services. The scope of workers included in this standard is limited to apply to those who are most likely to come in contact with COVID-19 at the workplace.
The Emergency Temporary Standard requires applicable employers to take the following steps to help minimize the risk of exposure of COVID-19 to their employees: plan, implement, enforce, record and report.
Applicable workplaces must first develop a plan for handling COVID-19 that details the workplace policies and procedures established to minimize the risk of transmission of the COVID-19 virus. This plan must be in writing if the workplace has more than 10 employees. The plan should designate a safety coordinator, who will be responsible for monitoring and ensuring compliance with the plan. Additionally, the workplace must conduct a workplace-specific hazard assessment. In creating and implementing this plan and the hazard assessment, the employer must seek the input and involvement of non-managerial employees and their representatives. This plan should be reviewed and updated as necessary to ensure effectiveness of policies and procedures.
In addition to implementing the workplace-specific plan, the employer must follow certain protocols established by the ETS. These protocols include limiting the number of entry points for patients and other non-employees, and properly screening individuals at these entry points. The employer must provide personal protective equipment (PPE) to employees when they are expected to interact with other employees or non-employees at close proximity. Employers should instruct employees to keep at least six feet between others when feasible. If a workplace is unable to keep at least six feet between employees, the employer must install cleanable solid barriers to separate employees. The employer is also expected to adequately clean and disinfect surfaces and equipment in accordance with the Centers for Disease Control and Prevention’s guidelines.
Each workplace’s COVID-19 plan and protocols must also include screening employees before the start of each work day and shift. The employer is expected to provide reasonable time and paid leave for employees to schedule vaccination appointments and accommodate for any adverse vaccine side effects. If any employees have suspected or confirmed COVID-19, including presenting symptoms or having had close contact with someone who was positive with COVID-19, then the employer must temporarily remove that employee from the workplace. In some cases, the employer must provide such employees with paid leave and benefits for the duration of the removal. Workplaces to which the ETS applies must ensure that employees are adequately trained on COVID-19 protocols and understand what tasks and situations result in higher risks of transmission or increased exposure to the virus.
OSHA requires that employers to which the ETS applies properly record any cases of employees contracting COVID-19 without regard to whether those employees were infected at work. This COVID-19 log should include pertinent information such as the employee’s name, contact information, location of employment, the employee’s last date of work at the workplace, the date of the positive COVID-19 test or diagnosis, and the date when employee first experienced viral symptoms. If an employee tests positive for COVID-19, the employer is required to provide notification to certain other employees about the potential COVID-19 exposure in the workplace if the employees were in close proximity, if the employees were present at the workplace during the potential transmission period for the exposure, and if the employees were not wearing respirators or other PPE.
The employer must record and report all work-related COVID-19 fatalities to OSHA within eight hours of the employer’s learning of the fatality. The employer must also record and report all work-related COVID-19 inpatient hospitalizations to OSHA within 24 hours of the employer’s learning of the hospitalization. Employers can report fatalities and inpatient hospitalizations to their closest OSHA office, by phone, or online at the OSHA website.
The federal OSHA rules mandates that states must ensure or amend their policies to be “at least as effective as” the new standard or make their standard identical to the federal standard. Virginia Occupational Safety and Health (VOSH) Program created an Emergency Temporary Standard in July 2020, which was incorporated into the final rules issued by VOSH Jan. 13, 2021. Gov. Ralph Northam has not yet announced whether the Virginia final rules will be changed to correspond or encompass the new standard issued by OSHA. The federal OSHA ETS must be adopted by VOSH within 30 days of the promulgation of the federal rules and must notify OSHA of the actions the state will take within 15 days.
The VOSH final rules include additional requirements for employers. Employers must notify the Virginia Department of Health within 24 hours of discovering that two or more employees tested positive for COVID-19 and were present at the workplace within 14 days from the positive COVID-19 test. Employers must notify the Department of Labor and Industry within 24 hours of discovering that three or more employees tested positive for COVID-19 and were present at the workplace within the 14 days prior to the receipt of the positive test. VOSH also requires the employer to establish policies for employees returning to work after a positive COVID-19 test. Finally, VOSH’s regulations require that contractors discuss the VOSH final rules with subcontractors and ensure their compliance with the rule provisions.
Attorneys and practice areas related to this topic include:
This has been provided as an informational service and does not constitute legal counsel or advice, which can only be rendered in the context of specific factual situations. If a legal issue should arise, please contact an attorney listed or retain the assistance of other competent legal counsel. Case results depend on a variety of factors unique to each case and results do not guarantee or predict a similar result in any future case undertaken.