Contributed By Matthew Horn, June 10, 2021

On June 10th, OSHA issued its long-promised COVID-19 Emergency Temporary Standard (ETS).  Surprisingly, the ETS relates only to the healthcare industry, but updated guidance has been issued for all industries, as outlined below:

Non-Healthcare Industries: For non-healthcare industries, including manufacturing and construction, OSHA only intends to issue guidance relating to COVID-19, including updated guidance on complying with the CDC’s latest recommendations to allow fully vaccinated workers to not wear masks or social distance in most situations. Notably, the ETS exempts fully vaccinated workers from masking, distancing and barrier requirements when in well-defined areas where there is no reasonable expectation that any person will be present with suspected or confirmed cases of COVID-19.

Healthcare Industry: The ETS will apply strictly to the healthcare industry, and focuses on healthcare workers most likely to have contact with someone infected with the virus, including employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in ambulatory care settings where suspected or confirmed COVID-19 patients are treated.

The ETS requires non-exempt facilities to conduct a hazard assessment and have a written plan to mitigate virus spread, and requires healthcare employers to provide some employees with N95 respirators or other personal protective equipment. In addition, covered employers must ensure six feet of distance between workers, and in situations where that is not possible, employers need to erect barriers between employees where feasible. The ETS also requires covered employees to provide workers with paid time off to get vaccinated and recover from any side effects. Covered employees who have COVID-19 or who may be contagious must work remotely or quarantine, being given paid time off up to $1400 per week. For most businesses with fewer than 500 employees, these costs may be reimbursed through the provisions of the American Rescue Plan.

Notably, we expect OSHA to use the ETS—and the pandemic itself—as part of its on-going effort to unionize more employers in the healthcare industry.