Summer 2021 –– OSHA updates guidance on protecting workers in health care and other industries
From Navigating COVID-19
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- 1 President Biden Issues Plan to Mandate Vaccines or Require Negative Tests for Large Employers and Federal Contractors
- 2 Mandatory Emergency Temporary Standard for Health Care Workers
- 3 Requirements of the ETS for Healthcare Workers
- 4 OSHA Issues Guidance for Protecting Workers Outside of the Healthcare Industry
- 5 See Also
- 6 References
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 September 9, 2021, President Biden issued Path Out of the Pandemic: President Biden's COVID-19 Action Plan (Pandemic Plan) unveiling a six point COVID-19 action plan intended 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." https://www.whitehouse.gov/covidplan/ At the same time, President Biden signed an Executive Order titled Ensuring Adequate COVID Safety Protocols for Federal Contractors. The Executive Order can be found here. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-covid-safety-protocols-for-federal-contractors/
The Vaccination and Testing portion of the Pandemic Plan applicable to employers is not being enforced yet because, as required by the Pandemic Plan, the Occupational Health & Safety Administration (OSHA) is to issue Emergency Temporary Standards (ETS) to provide guidance on implementation. It's uncertain when the ETS will be issued but it is expected to be in the next 2 to 6 weeks. It's likely the ETS will be effective almost immediately following its issuance.
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 worksite? We expect the 100 employee threshold will count temporary and part time employees and will count employees by enterprise and not worksite. How much time off must employers provide workers who experience side effects of the vaccine? What documentation will be required? Since California has been at the forefront of adopting similar requirements for employers implementation of the vaccine and testing mandates will, hopefully, not be too arduous
On August 13, 2021, OSHA issued guidance for protecting workers outside of the healthcare industry and we reported on it below. Adherence to the guidance was not mandatory and, in many ways, mirrored Cal/OSHA's emergency temporary standards, which are mandatory for covered California employers. It's uncertain what the ETS will require large employers do to adhere to the Pandemic Plan but it could make mandatory those suggestions that were merely guidance when issued in August 2021 including drafting a written safety plan, providing vaccinations, testing, masking, physical distancing, complying with CDC guidelines, reviewing and improving filtration and ventilation systems, paid time off for vaccinations or testing, paid time off for ill employees, policies for communicating information to employees, cleaning procedures and more. Most California employers have most of these requirements in place since Cal/OSHA issued its own ETS in November 2020 and amended it in June 2021. A discussion of Cal/OSHA's ETS mandates can be found in the section titled Cal/OSHA Imposes COVID-19 Safety Regulations on Businesses. The new OSHA ETS introduces large California employers to vaccine and testing mandates which have not previously been mandated by either OSHA or Cal/OSHA. When OSHA issues the ETS we will update this section.
The 15 page Pandemic Plan is short on details and we will have to wait until OSHA and other agencies draft and adopt regulations or standards setting forth how the Pandemic Plan objectives will be accomplished.
The six point plan includes the following provisions, not all of which are applicable to the employer/employee relationship, but we include them for completeness:
- Vaccinating the Unvaccinated
- Require all employer with 100+ employees to ensure their workers are vaccinated.
- Require vaccinations for all federal workers and contractors that do business with the federal government
- Require vaccinations for healthcare workers at Medicare and Medicaid participating hospitals and other health care workers not covered by the ETS for Healthcare Workers issued in June 2021.
- Calls on large entertainment venues to require proof of vaccine or show a negative test for entry
- Require covered employers to provide paid time off to get vaccinated and recover from the side effects of the vaccine or face fines of up to $14,000.
- Further Protecting the Unvaccinated
- The Biden Administration will provide easy access to booster shots for all eligible Americans
- The Biden Administration will use Vaccines.gov and a toll free number 1-800-232-02333to provide Americans information about where vaccines and booster shots are available.
- Keeping Schools Safely Open
- Require staff at Headstart programs, Department of Defense Schools, and Bureau of Indian Education operated schools to be vaccinated
- Call on all states to adopt vaccine requirement for all school employees
- Provide additional funding to school districts for safe school reopening, including backfilling salaries and other funding withheld by states for implementing COVID safety measures
- Protect students access to in-person instruction
- Get students and school staff tested regularly
- Provide resources to the FDA to support timely review of vaccines for individual under the age of 12.
- Increase Testing and Require Masking
- Mobilize industry to expand easy to use testing production
- Make at home tests more affordable
- Send free, rapid at home tests to fid banks and community health centers
- Expand free, pharmacy testing
- Continue to require masking for interstate travel and double fines
- Continue to require masking on federal property
- Protecting Our Economic Recovery
- New support for small businesses impacted by COVID-19 The Pandemic Plan will strengthen the Economic Injury Disaster Loan (EIDL) program which provides long term, low cost loans. The Small Business Administration will increase the maximum amount of funding a small business can borrow.
- Streamline the Paycheck Protection Program (PPP) loan forgiveness process
- Launch the Community Navigator Program to connect small businesses to the help they need
- Improve Care for those with COVID-19
- Increase support for COVID-burdened hospitals including increasing the number of Department of Defense teams of clinicians deployed to support hospitals
- Get lifesaving monoclonal antibody treatment to those who need it
- Expand the pool of health care professionals providing treatment by deploying federal monoclonal antibody strike teams
Employers with 100+ employees need to be aware of the upcoming mandate to ensure workers are vaccinated or provide a negative test once a week. Please check back to this page for updates on the implementation of the requirements.
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 Healthcare 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.
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. 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 Healthcare 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:
- 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.
- OSHA Requirements — Recording and Reporting COVID-19
- CAL/OSHA Imposes New Notice and Reporting Obligations for COVID-19 Workplace Exposure
- 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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