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Summer 2021 –– OSHA updates guidance on protecting workers in health care and other industries

From Navigating COVID-19

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The federal Occupational Health and Safety Administration (OSHA) issued additional guidance to employers on how to protect workers from the ever-mutating COVID-19 virus. California's corollary agency, Cal/OSHA, also renewed its guidelines. When laws, regulations, or guidelines issued by both federal and state governments address the same issues, California employers are required to follow the directives that provide the greatest protection for employees. California laws usually favor employees. But employers in this state should be familiar with the following OSHA guidance if they have operations in other states.


President Biden Issues Plan to Mandate Vaccines or Require Negative Tests for Large Employers and Federal Contractors

On Sept. 9, 2021, President Biden issued Path Out of the Pandemic: President Biden's COVID-19 Action Plan, a six-point COVID-19 initiative to "decrease the spread of COVID-19, which will decrease worker absence, reduce labor costs, and improve the efficiency of contractors and subcontractors at sites where they are performing work for the Federal Government." At the same time, the president signed an executive order, "Ensuring Adequate COVID Safety Protocols for Federal Contractors."

The vaccination and testing portion of the plan requires "all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work." The requirement will not be enforced until the Occupational Health and Safety Administration (OSHA) issues Emergency Temporary Standards (ETS) providing guidance on implementation. The ETS are expected to be issued within six weeks, and probably will be effective immediately.

The 15-page Biden pandemic action plan is short on details. We must wait until OSHA and other agencies draft and adopt regulations or standards to determine how to reach the plan's objectives.

The new OSHA ETS will introduce large California employers to vaccine and testing mandates that have not been mandated by either OSHA or Cal/OSHA. We will update this section when they are issued.

Questions remain as to to how the ETS will calculate 100 employees. Will contractors, temporary, and part-time workers be included in the count? Is it 100 employees per enterprise or per work site? We expect the 100-employee threshold to count temporary and part-time employees, calculated by enterprise, not work site.

Other questions include:

  • How much time off must employers provide workers who experience side effects of the vaccine?
  • What documentation will be required?

Because California has been at the forefront of adopting similar requirements for employers to implement vaccine and testing mandates, compliance in our state might not be too arduous. On Aug. 13, 2021, OSHA issued guidance for protecting workers outside of the health-care industry –– see the section below, OSHA Issues Guidance for Protecting Workers Outside of the Health-Care Industry. Adherence to that guidance was not mandatory and, in many ways, mirrored Cal/OSHA's ETS, which are mandatory for covered California employers. OSHA's ETS could make mandatory previously suggested measures. Some of them include:

  • drafting a written safety plan
  • providing vaccinations, testing, masking, physical distancing
  • complying with CDC guidelines
  • reviewing and improving filtration and ventilation systems
  • providing paid time off for vaccinations or testing, and for ill employees
  • drafting policies for communicating information to employees
  • establishing cleaning procedures.

Most California employers have endeavored to meet these demands since Cal/OSHA first issued its own ETS in November 2020, and amended them in June 2021. See this guide's section CAL/OSHA Imposes COVID-19 Safety Regulations on Businesses for a full discussion of Cal/OSHA's ETS mandates.


The Plan

Not all of these six points of the plan are applicable to the employer/employee relationship. But they relate to everyone whose lives are affected by the pandemic.

1. Vaccinating the Unvaccinated

  • Require all employers with 100+ employees to ensure that their workers are vaccinated.
  • Require all federal workers and contractors who do business with the federal government to be vaccinated.
  • Require health-care workers at Medicare- and Medicaid-participating hospitals to be vaccinated as well as other health-care workers not covered by the OSHA ETS issued in June 2021.
  • Require large entertainment venues to demand patrons show proof of vaccine or a negative COVID-19 test for entry.
  • Require covered employers to provide paid time off for employees to get vaccinated and recover, if necessary, from the side effects of the vaccine, or face fines of as much as $14,000.

2. Further Protecting the Vaccinated

  • The federal government will provide easy access to booster shots for all eligible Americans.
  • Information about about where vaccines and booster shots are available is posted on Vaccines.gov and via phone at 800-232-0233 in more than 150 languages.
  • People who have utilized the text code 438829 or WhatsApp to get vaccine information automatically will receive a text with information on boosters, if and when recommended.

3. Keeping Schools Safely Open

  • Require staff at Head Start programs, Department of Defense youth programs, and schools operated by the Bureau of Indian Education to be vaccinated.
  • Request states to adopt a vaccine requirement for all school employees.
  • The federal government will provide additional funding to school districts for safe school reopening, including backfilling salaries and other funding withheld by states, and for implementing COVID safety measures.
  • The federal government will protect students' access to in-person instruction.
  • Request all schools to test students and school staff regularly.
  • The federal government will provide resources to the FDA to support timely review of vaccines for individuals younger than 12.

4. Increasing Testing and Requiring Masking

  • The federal government will will ensure a broad, sustained industrial capacity for COVID-19 test manufacturing to support a range of needs, including long-term care facilities, community testing sites, critical infrastructure, shelters serving individuals experiencing homelessness, prisons and jails, and other vulnerable populations and congregate settings.
  • Retailers will offer at-home rapid COVID-19 tests at-cost for the next three months.
  • The federal government will send free, rapid at-home tests to food banks and community health centers.
  • The federal government will expand free testing at retail pharmacies.
  • Masking for interstate travel will continue, and fines for violations will be doubled.
  • Masking on federal property will continue.

5. Protecting Our Economic Recovery

  • The federal government will strenghten the COVID Economic Injury Disaster Loan (EIDL) program to support small businesses impacted by COVID-19 with long-term, low-cost loans. The Small Business Administration will increase the maximum amount of funding a small business can borrow.
  • The federal government will streamline the Paycheck Protection Program (PPP) loan forgiveness process.
  • The SBA launches the Community Navigator Program to connect small businesses with federal, state, and local resources.

6. Improving Care for Those with COVID-19

  • The federal government will increase support for COVID-burdened hospitals that includes increasing the number of clinicians the Department of Defense deploys to support hospitals.
  • The federal government will increase the weekly pace of shipments of free monoclonal antibody treatment by 50%.
  • The federal government will expand the pool of health-care professionals providing treatment by deploying federal monoclonal antibody strike teams.

Employers with more than 100 workers should be alert for the Emergency Temporary Standards forthcoming from OSHA. Such businesses will need to amend their COVID-19 safety plans to include vaccine mandates and testing requirements. This section will be updated as information becomes available.

Mandatory Emergency Temporary Standard for Health-Care Workers

On June 21, 2021, OSHA's Emergency Temporary Standard (ETS) for health-care employees became effective. The health-care ETS apply, with some exceptions, where any employee provides health care or health-care support services. The ETS are aimed at protecting workers facing the highest COVID-19 hazards –– those working where suspected or confirmed cases of COVID-19 are treated. Such workers include:

  • employees in hospitals, nursing homes, and assisted living facilities
  • emergency responders
  • home health-care workers
  • employees in ambulatory care facilities where suspected or confirmed cases of COVID-19 are treated.

The ETS does not apply to:

  • first aid performed by an employee who is not a licensed health-care provider;
  • pharmacists who dispense prescriptions in retail settings;
  • employees of ambulatory care operations not based in a hospital if all nonemployees are screened before entering, and people with suspected or confirmed COVID-19 are not permitted;
  • employees of discrete hospital ambulatory care operations if all employees are fully vaccinated and all nonemployees are screened before entering, and people with suspected or confirmed COVID-19 are not permitted;
  • employees in home health-care settings if all employees are fully vaccinated and all nonemployees are screened before entering, and people with suspected or confirmed COVID-19 are not present;
  • employees of health-care support services not performed in a health-care setting (for example, off-site laundry, off-site medical billing); and
  • employees of telehealth services performed in facilities with no direct patient care. (The ETS apples only to employees working in a health-care setting, not in a remote physical location.)


Requirements of the ETS for Health-Care Workers

The material below is specific to the federal guidelines (OSHA) issued over the summer of 2021. Readers interested in the corollary state guidelines that usually control (Cal/OSHA) can review the section of this guide called Cal/OSHA Imposes COVID-19 Safety Regulations on Businesses.

COVID-19 plan

Employers must develop and implement a plan for each workplace. Any work site with more than 10 employees must have a written plan on the premises. Such plans must:

  • Designate a workplace safety coordinator knowledgeable in infection control principles and practices. This person (or persons) has authority to implement, monitor, and ensure compliance with the plan.
  • Conduct a workplace-specific hazard assessment.
  • Seek the input and involvement of nonmanagerial employees and their representatives in plan development/implementation and hazard assessment.
  • Monitor each workplace to ensure the ongoing effectiveness of the plan, updating it as needed.
  • Include policies and procedures to minimize the risk of transmission of COVID-19 to employees.

Many elements of an employer's plan will seem familiar from guidelines issued previously by various local and state entities.

Health-care work sites

Businesses engaged in health-care and affiliated services must limit and monitor points of entry anywhere direct patient care is provided. They must screen people for for symptoms of COVID-19, and triage patients, clients, residents, delivery people, and other visitors/nonemployees. In general, such concerns must continue to implement patient management strategies with which most have become familiar, and many elements of a health-care plan also pertain to other industries.

Health-care concerns must develop and implement policies and procedures that adhere to what the feds refer to as Standard and Transmission-Based Precautions. They include providing:

  • personal protective equipment (PPE);
  • facemasks, and ensuring they are worn over the nose and mouth when employees are indoors and when they occupy a vehicle with other people for work purposes;<.li>
  • respirators and other PPE for exposure to people with suspected or confirmed cases of COVID-19 and for aerosol-generating procedures on a person with a suspected or confirmed case of COVID-19.

Employers also must allow the voluntary use of respirators instead of facemasks[1]. When aerosol-generating procedures are used on people with suspected or confirmed cases of COVID-19, employers must limit the number of employees involved to only those who are essential. They must ensure that such procedures are performed in an airborne infection isolation room, if available. After the procedure is complete, they must clean and disinfect surfaces and equipment.

In more general terms of ventilation, employers that own or control their HVAC system must ensure that they're used in accordance with manufacturer’s instructions and design specifications. Air filters should be rated as Minimum Efficiency Reporting Value (MERV) 13, or higher if the system enables it. Airborne infection isolation rooms should be maintained and operated in accordance with their design and construction criteria. Intake ports should be cleaned, maintained, and cleared of debris.

Other practices delineated in the new OSHA guidelines are also familiar to many employers and employees, whether their jobs involve patient-based health services or not. They include:

  • screening each employee before each work day and shift (for example, by asking employees to self-monitor);
  • providing employer-required testing at no cost to the employee (note: employers are not required to conduct screening testing);
  • requiring each employee to promptly notify the employer when he or she tests positive for COVID-19, is suspected of having COVID-19, or is experiencing certain symptoms;
  • notifying certain employees within 24 hours when a person who has been in the workplace tests positive for COVID-19
  • following the requirements for removing workers from the workplace;
  • making decisions on returning employees to work in accordance with guidance from a licensed health-care provider or specified CDC guidance;
  • continuing to pay removed employees in most circumstances;
  • providing reasonable time and paid leave for vaccinations and vaccine side effects;
  • physical distancing from all other people by at least 6 feet when indoors;
  • installing physical barriers at each fixed work location in areas apart from patient care where employees are not physically distanced that can be cleaned or are disposable;
  • cleaning and disinfecting surfaces and equipment in accordance with CDC guidelines in patient care areas, resident rooms, and for medical devices and equipment;
  • cleaning areas outside of patient care with high-touch surfaces/equipment at least once daily;
  • providing hand sanitizer of at least 60% alcohol and/or readily accessible handwashing facilities.

The Emergency Temporary Standard requires that health-care providers and related services must ensure that their workers are properly trained in COVID-19 protocols in a language and at a literacy level they understand. Such employees must comprehend aspects of disease transmission, tasks, and situations in the workplace that could result in COVID-19 infection, and the relevant policies and procedures to address it. Employers must ensure that each employee receives additional training when changes occur that affect his or her risk of infection; if policies or procedures are changed; and/or when there is an indication that an employee has not retained necessary information or developed necessary skills.

If you are a health-care employer and believe that OSHA's health-care work site Emergency Temporary Standard applies to you, OSHA has a helpful flowchart to determine whether your organization must comply with its provisions. In addition, the website has useful forms, plans, and templates for health-care employers to implement mandatory ETS requirements.

Employers must not retaliate against workers who exercise their rights

Employers are obliged to inform their employees of their rights to the protections required by this standard. Per29 CFR § 1910.502(o), they must not discharge nor in any manner discriminate against employees for exercising these rights or for engaging in actions required by the standard.

Keeping records and reporting COVID-19 fatalities and hospitalizations to OSHA

The ETS directs employers with more than 10 employees to establish a COVID-19 log to record all employee cases of COVID-19 without regard to occupational exposure. Employers also are obliged to make such records available to their employees.

Employers must report to OSHA each work-related COVID-19 fatality within eight hours of learning about it. They also must report each work-related COVID-19 in-patient hospitalization within 24 hours of learning it.


OSHA Issues Guidance for Protecting Workers Outside of the Health-Care Industry

On Aug. 13, 2021, OSHA issued guidelines for employers whose businesses are not involved with health care. According to an agency statement, the guidance is designed to help employers protect workers who are unvaccinated (including people who are not fully vaccinated) or otherwise at risk. That population includes workers who are immunocompromised, and those who are fully vaccinated but are located "in areas of substantial or high community transmission."

Most employers will recognize the similarity between the following OSHA recommendations below and Cal/OSHA's ETS, issued and effective June 17, 2021. It is discussed in this book's section Cal/OSHA imposes COVID-19 Safety Regulations on Businesses. In California, most employers should adhere to Cal/OSHA's standards, which are more stringent and mandatory. This summary of OSHA guidance is suggestive, and primarily for informational purposes.

What workers need to know

OSHA advises workers on how to protect themselves against exposure to and transmission of COVID-19. The agency encourages vaccination and employer-mandated COVID-19 prevention programs, precautions, and policies at the workplace. It recommends that all employees, whether vaccinated or not, wear a mask in public indoor settings if they are in an area of substantial or high transmission. OSHA does not define what it considers to be criteria for "areas of substantial or high transmission."

What employers need to know

OSHA recommends that employers engage with workers and their representatives to determine how to implement multi-layered interventions and how to protect unvaccinated and otherwise at-risk workers from the spread of COVID-19. Such measure should include:

  • Facilitate employee vaccinations. OSHA suggests that employers grant paid time off for employees to get vaccinated and recover from any side effects, or work with local health officials to provide vaccinations on-site. OSHA also suggests that employers mandate that workers get vaccinated, or require regular them to be tested regularly.
  • Instruct infected workers or workers with symptoms to stay home. Fully vaccinated employees with a known exposure should get tested three to five days after exposure, and should wear a mask in public indoor settings for 14 days or until they test negative. Unvaccinated workers or workers who are not fully vaccinated with a known exposure should be tested immediately (especially when symptoms develop) and, if negative, tested again in five to seven days after the last exposure.
  • Implement physical distancing in all communal work areas for unvaccinated and at-risk workers. OSHA also recommends limiting the number of employees working or communing in one place. (For example, staggering rest and meal breaks, working remotely, implementing flexible meeting options.) If physical distancing isn't possible (for example, in fixed workstations) employers should install transparent shields or barriers.
  • Provide workers with face coverings, surgical masks, or respirators. OSHA recommends directing unvaccinated workers to wear a face covering in public indoor settings and any area of substantial or high risk of transmission. Fully vaccinated workers should be allowed to wear face coverings in indoor public settings. Employers should provide face coverings or other PPE at no cost to their employees. Workers need not wear face coverings outdoors unless they chose to do so.
  • Educate and train workers on COVID-19 policies and procedures. Employers should communicate their COVID-19 prevention plans, precautions, and policies in languages workers understand. Training should be directed to employees, contractors and others on-site, and should include basic facts about COVID-19, how it spreads and the importance of physical distancing, ventilation, vaccines, hand hygiene, and the employer's workplace policies that protect workers from COVID-19.
  • Suggest or require that unvaccinated customers, visitors, and guests wear face coverings in public-facing workplaces, and wear face covering in public indoor settings in areas of substantial or high transmission.
  • Maintain ventilation systems.
  • Clean and disinfect routinely.
  • Record and report COVID-19 infections and deaths.
  • Implement protections from retaliation and set up an anonymous process for workers to report COVID-19 hazards.

Measures for higher-risk workplaces with mixed vaccination-status workers

OSHA suggests additional steps employers should take in high-risk environments, particularly in areas of substantial or high transmission. High-risk environments include where employees must work in close proximity; when the duration of contact is high; where workers cough and sneeze in confined, close spaces; where employees share transportation; and where communal housing is common. Higher-risk workplaces include:

  • manufacturing
  • meat, seafood, and poultry processing
  • high volume retail and grocery
  • agricultural processing

In high-risk workplaces, employers also should:

  • Stagger break times or provide temporary break areas to prevent groups congregating,
  • Stagger arrival and departure times.
  • Provide visual cues (such as floor markings and signs) to remind employees to physically distance.
  • Require unvaccinated or otherwise at-risk employees and vaccinated employees in areas of substantial or high transmsission areas to wear face coverings.
  • Customize ventilation to improve air flow in the workplace.
  • Require or encourage customers, guests, and visitors to wear face coverings.

Employers might want to review OSHA's FAQs related to the newly issued ETS.


See Also


References

  1. Under certain circumstances in the ETS, and only for employees who are not exposed to suspected/confirmed sources of COVID-19 or other hazards that may require respirator use covered under the normal Respiratory Protection Standard (29 Code of Federal Regulations section 1910.134), employers must training employees on inspecting, removing, and using respirators such as N-95s. They also must instruct in the limitations and capabilities of the respirator; procedures for storing, maintaining, and inspecting respirators; how to perform a user seal check; and how to recognize medical signs and symptoms that might limit or prevent the effective use of respirators. See also the mini respiratory protection program (29 Code of Federal Regulations section 1910.504).



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