UPDATE: July 20, 2021: The Occupational Safety and Health Administration has extended by an additional 30 days the public comment period for its COVID-19 temporary emergency standard on protecting healthcare and healthcare support service workers, according to an update published Tuesday on The Federal Register. The new deadline for public comment is Aug. 20, 2021.
- Most employers "no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated," the Occupational Safety and Health Administration said in guidance updated Thursday.
- The agency also published an emergency temporary standard for U.S. healthcare employers. Employers included in the emergency temporary standard's definition must develop and implement a plan to protect employees from COVID-19 in the workplace, and they must designate one or more workplace COVID-19 safety coordinators to implement and monitor their plans. The document also lays out requirements for patient screening and management, personal protective equipment and physical distancing, among other subjects.
- OSHA's updated guidance for all industries, meanwhile, encourages employers to grant paid time off for employees to get vaccinated. Employers also should implement physical distancing for unvaccinated and other at-risk workers in communal work areas, including limiting the number of such workers in one place at any given time.
The updated guidance may help to resolve some of the questions employers had following a May update from the Centers for Disease Control and Prevention that, with some restrictions, fully masked individuals could resume activities without wearing a mask. Last month, OSHA directed employers to follow CDC's guidance on mask use and social distancing for fully vaccinated workers.
OSHA's June 10 announcement has drawn a range of reactions from observers. While praising the healthcare industry temporary emergency standard as a "step in the right direction," House Committee on Education and Labor Chairman Robert C. "Bobby" Scott, D-Va., criticized the Biden administration for not providing other specific guidance for employers in other industries.
"This ETS is long past due, and it provides no meaningful protection to many workers who remain at high risk of serious illness from COVID-19," Scott said in an email press release. "Workers in meat processing plants, prisons, homeless shelters, grocery stores, and many other workplaces will be forced to continue relying on voluntary safety guidance, which has failed to protect hundreds of thousands of workers and families from preventable infections throughout the pandemic."
But OSHA has explained that one of the requirements for issuing such a standard is that the agency must determine that workers are exposed to a "grave danger" from new hazards or toxic substances or agents determined to be physically harmful, and that an emergency temporary standard is needed to protect them. In a summary of the emergency standard released Thursday, OSHA said employee exposure to SARS-CoV-2 "presents a grave danger to workers in healthcare settings" and that standard "is aimed at protecting workers facing the highest COVID-19 hazards—those working in healthcare settings where suspected or confirmed COVID-19 patients are treated."
"It may be that OSHA can issue another ETS for industries where there is evidence of low vaccination rates or some other COVID-19 risk factor for fully vaccinated individuals, but the finding in the healthcare ETS suggests that OSHA does not believe the grave danger threshold can be met for other industries," Charlie Morgan, partner at Alston & Bird, told HR Dive in an email. "Time will certainly tell, however."
The agency had long faced pressure from advocates to publish emergency standards addressing how to protect workers' health and safety from COVID-19 in the workplace. Following the release of the agency's initial guidance on Jan. 29, an official at the National Council of Occupational Safety and Health said that "OSHA and our federal government has failed us," citing insufficient workplace inspections and data recording practices, Construction Dive reported.
Attempts to get the agency to publish emergency standards even involved a lawsuit filed last year by the AFL-CIO, but a federal appeals court declined to compel OSHA to do so.
In addition to the guidance published by CDC and OSHA, the U.S. Equal Employment Opportunity Commission said in a technical assistance document updated May 28 that employers may implement policies requiring that all employees who physically enter a workplace receive a COVID-19 vaccination under federal equal employment opportunity laws, with some exceptions.