The Occupational Safety and Health Administration (OSHA) released a new emergency temporary standard to set workplace safety rules for healthcare workers during the COVID-19 pandemic. Concurrently, OSHA released new general workplace guidance for unvaccinated or otherwise at-risk populations, such as disabled or immunocompromised employees who may require accommodations to continue to participate in the workforce. As the pandemic continues to evolve, OSHA guidance is narrowing in on populations that remain at higher risk.
In the absence of differing state or local law, current OSHA guidance no longer requires employers to take affirmative steps to protect fully vaccinated workforces that are not otherwise at risk of COVID-19 infection from potential virus exposure. As previously reported by KJK, employers may inquire as to employees’ vaccine status in part of their efforts to conform with OSHA standards and guidance without running afoul of the Americans with Disabilities Act requirements surrounding employee “medical examinations,” but employers should remain cautious not to ask employees why they have not received the vaccine.
New OSHA Standard for Healthcare Workers
The new emergency temporary standard governing healthcare is over 900 pages and reflects specific requirements for workplaces involved in different aspects of the healthcare system. Notably, the new standard offers specific enforcement provisions including fines for violations of its mandatory requirements of healthcare industry employers. It focuses on healthcare workers most likely to have contact with someone infected with the virus and is expected to be updated, as necessary, to maintain alignment with changes to guidance from the Centers for Disease Control (CDC) that are made as the pandemic continues to evolve.
The healthcare industry standard requires daily employee health screenings, social distancing, physical barriers and employer provision of masks and certain personal protective equipment (PPE) for workers who encounter COVID-19 patients. These new rules also allow fully vaccinated healthcare workers to forego masks in areas where infected persons are not likely to be present. Employers of more than 10 staff in healthcare settings must create written virus safety plans which designate a safety coordinator and that outline specific COVID-19 procedures unique to their workplaces, must conduct employee health screens and must remove from the premises any employee that may be infected with COVID-19 either after a positive test or displaying symptoms.
Employers covered by the standard must pay sick workers at their normal rates up to $1,400 per week for the first two weeks that they are absent in connection with suspected COVID-19 infection. The amount of paid time off may vary for employees who remain ill for longer periods. Employers with fewer than 500 employees may be eligible for a tax credit or setoff for the paid leave provided through the American Rescue Plan or paid sick leave programs.
The new standard for healthcare workers, once finalized, will include a timeline for implementation of each portion of the requirements, typically two weeks for most provisions, but up to a month for others. Until then, OSHA may use its general authority to cite employers who fail to take precautions against known risks. The Department of Labor has indicated that OSHA will use discretion in its enforcement of the standard, provided that employers exercise a “good-faith effort” to comply with deadlines set by the emergency temporary order.
OSHA’s newest Guidance for Fully Vaccinated Workforces versus Medically At-Risk Populations
In its new guidance, OSHA notes that, unless otherwise required by federal, state or local law, most employers are no longer required to take steps to protect fully vaccinated workers who are not otherwise at risk from potential COVID-19 exposure. The guidance recommends that employers encourage COVID-19 vaccination for all employees who are able to get the vaccine.
The guidance then directs its attention to unvaccinated, immunocompromised or otherwise at-risk workers or those for whom vaccination may be of reduced effectiveness. It recognizes that certain workers may be unwilling or unable to receive the vaccine for religious or medical reasons. Vaccine-incurred immunity may also be of reduced effectiveness in certain individuals due to medications such as corticosteroids or immunosuppressive drugs taken in connection with organ transplants. For those workers, the OSHA guidance refers to and works in concert with protections afforded to employees under the Americans with Disabilities Act (ADA).
OSHA encourages employers to accommodate disabled or immunocompromised employees who are unable to receive a vaccine or who are unable to wear facial coverings due to respiratory or other disabilities, such as allowing continued telework, provision of additional personal protective equipment or such other accommodations as may be appropriate under specific circumstances. The ADA requires employers to provide reasonable accommodations that do not create an “undue burden” for the employer.
What OSHA’s New COVID-19 Standard and Guidance Mean for Employers
OSHA policies surrounding COVID-19 protections for employees continue to narrow as the pandemic evolves. With the percentage of vaccinated employees becoming more significant, OSHA guidance is focusing on those populations that remain at-risk, including healthcare workers who may more readily come into contact with COVID-19 positive patients and unvaccinated individuals, who may be unwilling or unable to receive a vaccine for a variety of reasons.
Employers must be vigilant in keeping up with evolving guidance from agencies such as OSHA and should be proactive in their implementation of the requirements set forth in that guidance.
We will continue to monitor developments and will keep you advised.
For further guidance on these issues, please contact Robert Gilmore (rsg@kjk.com), Alan Rauss (amr@kjk.com), or another member of our Employment Law team by calling 216-696-8700.