OSHA Issues Emergency Standard for COVID

UPDATE 6/10/21: 

OSHA has issued an emergency temporary standard for Covid-19, but it will only apply to healthcare workers.  For all other industries, there is new updated guidance related to unvaccinated and otherwise at-risk workers.

Emergency Temporary Standard

The new standard, 1910.502, applies to settings where any employee provides healthcare services or healthcare support services.  This includes “This includes employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in ambulatory care facilities where suspected or confirmed COVID-19 patients are treated.”  It does not apply to those providing first aid only. 

More details about the requirements can be found at https://www.osha.gov/coronavirus/ets.

Employer Guidance for Protecting At-Risk Workers

According to OSHA, “Unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure.”  Their new guidance is to ensure employers focus their efforts on unvaccinated or otherwise at-risk workers in their workplaces (or well-defined portions of workplaces). 

Some elements include:

• Granting Paid Time Off for Vaccinations
• Instruct Workers Who Have Become a Close Contact of an Infected Person, or Have Symptoms Themselves to Stay Home
• Physical Distancing for Unvaccinated Workers
• Provide Masks for Unvaccinated Workers and Suggest Unvaccinated Customers, Visitors, or Guests Wear Face Coverings
• Provide Covid-19 Policies and Procedures in Languages Employees Will Understand
• Maintain Ventilation Systems
• Record and Report Work-Related Covid Infections and Deaths per 29 CFR 1904
• Implement Retaliation Protections

Employers must continue to follow mandatory OSHA standards that apply to ensure workers are protected from infection, including: 

• Requirements for PPE (29 CFR 1910, Subpart I (e.g., 1910.132 and 133))
• Respiratory Protection (29 CFR 1910.134)
• Sanitation (29 CFR 1910.141)
• Protection from Bloodborne Pathogens: (29 CFR 1910.1030)
• Employee Access to Medical and Exposure Records (29 CFR 1910.1020).
• Where the Emergency Temporary Standard does not apply, employers are required under the General Duty Clause, Section 5(a)(1) of the OSH Act, to provide a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm .

More information on this guidance can be found at: https://www.osha.gov/coronavirus/safework.

UPDATE 1/21/21: 

President Biden signed an Executive Order on Thursday, Jan. 21, 2021 that requires the following:

1. Within 2 weeks (by Feb. 4, 2021), OSHA is required to:
   • OSHA and MSHA are required to determine if an emergency temporary standard is necessary.  If so, it will be due by Mar. 15, 2021.  Although the date has passed, it’s been reported that OSHA has alerted the U.S. Chamber of Commerce that one has been drafted and they just need additional time to finish it and get it reviewed.
   • Issue guidance to employers on workplace safety during the COVID pandemic.  This guidance was issued Feb. 1.  It includes stronger language including outlining the components of a prevention program.  Check out the new guidance here.
2.  OSHA is required to review its enforcement efforts and identify any short-term and long-term changes to be made.
3.  A National Emphasis Program on COVID-19 in the workplace is required to be developed.  This was released March 15.  Check out the details HERE.
4.  OSHA is to work with state plan states to make sure they have similar COVID plans in place, and for those who don’t have a state plan, work with state and local officials to make sure they have plans in place to protect public employees.
5. The Secretaries of Labor, Health and Human Services, Transportation, Energy and Agriculture need to work to identify that workers not covered under OSHA in their respective categories are protected.

What’s an OSHA Emergency Temporary Standard?

Under certain limited conditions, OSHA is authorized to set emergency temporary standards that take effect immediately and are in effect until superseded by a permanent standard. OSHA must determine that workers are in grave danger due to exposure to toxic substances, new hazards, or agents determined to be toxic or physically harmful where an emergency standard is needed to protect them.  OSHA publishes the emergency temporary standard in the Federal Register, where it also serves as a proposed permanent standard. It’s subject to the usual procedure for adopting a permanent standard except that a final ruling should be made within six months. The validity of an emergency temporary standard may be challenged in an appropriate U.S. Court of Appeals.

What May Employers Be Required to Develop in a Federal Emergency Standard for COVID?

In total, 14 states have adopted comprehensive COVID-19 worker protections through executive order and/or their state OSHA programs.

Currently, there are 4 states – California, Virginia, Michigan and Oregon – that have issued a state-specific OSHA emergency standards through their state plans.  There are common themes between the policies of these 4 states and they have pulled items from each other.  These items would likely become a part of a federal emergency standard:

Conducting a Workplace Assessment

This would include identifying employee tasks, work environment, presence of the virus, number of employees, facility size, working distances, duration and frequency of exposure, and hazards encountered.

Develop an Exposure Control Plan

This would include designating an on-site COVID coordinator, providing free face coverings and requiring their use, signage, social distancing, barriers, remote working, prohibiting sick employees access to facility, enhanced cleanings for positive cases, employee screenings, and notification of positive cases.

Implement Controls 

This includes maximizing current ventilation systems, installing barriers, partitions, and airborne infection isolation rooms.

Training Employees 

Training would need to be specific to the place of employment.  Included would be reviewing control measures, proper use of PPE, how to report symptoms or positive cases, how to report unsafe working conditions, and an overview of the COVID-19 virus, symptoms, and means of transmission.

Maintain Records of Training, Screenings, and Notifications

This would include employee training, employee and visitor screenings, notifications as required to individuals and Health Departments.

How Often Have Emergency Standards Been Used Before?

OSHA has used emergency temporary standards 9 times.  The last time they were used was in 1983 for asbestos.  OSHA’s first emergency standard was also created for asbestos, and others have been created mostly for chemicals, including 12 different carcinogens, benzene and vinyl chloride.  Most standards have been challenged in court, and although there have been a few that have been vacated, most have remained in place.

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iSi will be monitoring developments with federal OSHA emergency standard for COVID and will update this article, or provide additional information in our blog as information continues to develop regarding this issue.