Department of Labor Releases Emergency Temporary Standard Regarding Covid-19 for Healthcare Workers

On June 10, 2021, the Department of Labor issued an Emergency Temporary Standard (ETS) for controlling COVID-19 and protecting workers in healthcare settings. The ETS does not apply to any other industries.

Healthcare employers will be required to provide masks, physical barriers, social distancing, and proper ventilation to protect employees from Covid-19. The DOL estimates the standard will cover approximately 10.3 million workers. All other businesses will have the option to follow suggested safety guidelines from the Occupational Safety and Health Administration for their workforces which were updated and can be found here: https://www.osha.gov/coronavirus/safework.

Labor unions and employee safety advocates have pushed for the ETS since the beginning of the pandemic and advocated for the rule to apply to meatpacking, transport and other sectors that suffered clusters of severe COVID-19 outbreaks. However, the new standards only apply to health care settings where suspected or confirmed coronavirus patients are treated. This includes employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home health care workers; and employees in ambulatory care settings where suspected or confirmed coronavirus patients are treated.

Employers covered by the ETS are required, among other things, to: develop and implement coronavirus safety policies; limit and monitor entrance to areas where there is direct patient care; ensure employees are wearing masks inside and when in a vehicle for work purposes; maintain physical distancing; screen employees before coming into work; keep a log of employee COVID-19 cases; inform employees of their rights under the temporary standard; not to retaliate against them for exercising such rights and provide time off and paid leave for employees to get vaccinated.

The ETS exempts fully vaccinated workers from having to wear a mask, distancing, and barrier requirements when in specific areas where there is no reasonable expectation that any person will be present with suspected or confirmed coronavirus.

The standard requires covered employees to provide covered workers with paid time off to get vaccinated and to recover from any side effects. Covered employees who have coronavirus or who may be contagious must work remotely or otherwise be separated from other workers if possible or be given paid time off up to $1400 per week until the employee meets the return-to-work criteria specified in the ETS. Most businesses with fewer than 500 employees will be able to claim a tax credit or offset some of the cost through provisions within the American Rescue Plan.

The ETS is effective immediately upon publication in the Federal Register. Employers must comply with most provisions within 14 days and with the remaining provisions within 30 days. OSHA will use its enforcement discretion to avoid citing employers who miss a compliance deadline but are making a good faith effort to comply with the ETS. OSHA will continue to monitor trends in coronavirus transmission. The ETS has a duration of six months.

The full text of the ETS can be found here: https://www.osha.gov/sites/default/files/covid-19-healthcare-ets-reg-text.pdf. A useful summary of the ETS published by OSHA can be found here: https://www.osha.gov/sites/default/files/publications/OSHA4120.pdf