Massachusetts Employment Law Blog

By: Matthew Mitchell & Amanda Thibodeau

On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) issued an Emergency Temporary Standard (“ETS”) directed at protecting frontline healthcare workers for the duration of the COVID-19 pandemic. As part of the Biden Administration’s directives, OSHA determined that its current standards and regulations, and OSHA’s General Duty Clause, were inadequate to protect workers in the healthcare sector, and issued this ETS. OSHA additionally updated its non-binding guidance for all other industries, which still remain subject only to OSHA’s regular regulations, standards, and General Duty Clause.

THE “NEW” REQUIREMENTS

The main section of the ETS requires employers to develop and implement effective COVID-19 plans, the control strategies of which should be very familiar to most employers at this point in the pandemic. However, now OSHA will require employers to use a number of familiar controls in a layered approach in order to protect employees.  The key requirements of the ETS are:

• COVID-19 Plan. OSHA will now require every qualifying employer to develop and implement a COVID-19 plan for each workplace site. If the employer has more than 10 employees, the plan must be in writing. The Plan must be developed in conjunction with management and non-management and must be clearly communicated to employees.
• Patient screening and management. Employers must limit points of entry in direct care patient settings, screen and triage all visitors, clients, patients, and others entering the setting, and encourage telehealth services when appropriate.
• Standard and transmission-based precautions. Employers must develop and implement policies and procedures to adhere to Standard and Transmission-Based precautions based on CDC guidelines.
• PPE. Employers must provide facemasks to be worn by each employee when indoors or when sharing a vehicle for work purposes, with some exceptions.
• Aerosol-generating procedures on a person with suspected or confirmed COVID-19. Employers must limit employees present for the procedure to only those essential, and perform procedures in an airborne infection isolation room, if available; and clean and disinfect surfaces and equipment after the procedure is completed.
• Physical distancing. Employers must keep people at least 6 feet apart when indoors, unless not feasible (such as for hands-on medical care).
• Physical barriers. Employers must install cleanable or disposable barriers installed at fixed work locations in non-patient areas where social distancing is not possible.
• Cleaning and disinfection. Employers must engage in standard practices for cleaning and disinfection for patient care areas, resident rooms, and medical devices and equipment, and in all other high-touch areas, in accordance with CDC guidelines.
• Ventilation. Employers must ensure that all HVAC systems are used in accordance with the manufacturer’s instructions, and that all air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher, or the highest compatible with the system.
• Health screening and medical management. Employers must screen each employee daily, which may be done through self-monitoring by the employee. Each employee must report COVID-19 confirmed and suspected illness, or symptoms to the employer. The Employer must also notify all employees who were not wearing respirators and/or required PPE of any COVID-19 exposure at the workplace.
• Vaccination. Employers must provide support and paid leave for employees to receive a COVID-19 vaccination, and to recover from any side effects.
• Training. Employers must train and educate employees on COVID-19 transmittal, hygiene, and other prevention policies and procedures.
• Anti-retaliation. Employers must inform employees of their rights to the protections required by the ETS, and employers must not discharge or discriminate against employees for exercising their rights under the ETS or for engaging in actions required by the ETS.
• Recordkeeping. Employers with more than 10 employees must establish a COVID-19 log of all employee COVID-19 infections and follow requirements for making records available to employees and union representatives.
• Reporting requirements. Employers must comply with OSHA’s reporting requirements for work-related COVID-19 fatalities and in-patient hospitalizations.

Will these changes under OSHA’s new ETS affect your business? Learn more in our COVID-19 Alert.