The Occupational Safety and Health Act (the Act) requires employers to provide a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm to employees. Late last week, the agency responsible for administering the Act, the U. S. Department of Labor’s Occupational Safety and Health Administration (OSHA), issued a long-awaited emergency temporary standard (the Emergency Rule) effective for the duration of the COVID-19 pandemic. In what is being regarded as a victory for the business community, the Emergency Rule is limited in its scope and applies only to employers of workers who provide direct healthcare services or healthcare support services. In addition, retail pharmacies and non-hospital ambulatory care providers are excluded from coverage.

Employers in the healthcare sector covered by the Emergency Rule are required to develop and implement a COVID-19 policy that sets forth written protocols for: (1) patient screening and management; (2) Standard and Transmission-Based Precautions[1]; (3) use of personal protective equipment; (4) aerosol-generating procedures on persons with suspected or confirmed COVID-19; (5) physical distancing; (6) regular cleaning and disinfecting of the workplace; (7) ventilation; (8) health screening; (9) training on steps employees can take to protect themselves from potential COVID-19 exposures at work; (10) anti-retaliation education; and (11) recordkeeping and reporting. The Emergency Rule also requires covered employers to provide employees with paid time off to be vaccinated and, if necessary, to recover from vaccine side effects.

Covered employers must comply with the requirements provided in the Emergency Rule no later than one month after the rule’s publication in the Federal Register. OSHA, however, has stated that it will exercise its “enforcement discretion” to refrain from penalizing employers who make “a good-faith effort” to adhere to the requirements in the Emergency Rule by the prescribed dates. Workplaces where all employees are fully vaccinated, and that prohibit entry of individuals exposed to COVID-19, may be exempt from many of the Emergency Rule’s requirements.

For the vast majority of employers who are not covered by the Emergency Rule, OSHA also released voluntary guidelines describing recommendations for maintaining workplace safety as the pandemic continues. In so doing, OSHA aligned itself with the Centers for Disease Control and Prevention (CDC) by recommending that employers may ease restrictions on fully vaccinated employees, including by not requiring vaccinated employees to wear face masks or maintain physical distance in the workplace, provided local laws do not require otherwise.

In addition, OSHA recommends that employers: (1) grant paid time off for unvaccinated workers to be vaccinated; (2) prohibit workers who have contracted COVID-19, those who have had contact with someone who has contracted COVID-19, and those exhibiting COVID-19 symptoms from working onsite; (3) enforce physical distancing among unvaccinated and otherwise at-risk employees in shared work spaces; (4) provide unvaccinated and otherwise at-risk workers with face coverings; (5) educate and train workers on their COVID-19 policies and procedures; (6) suggest that unvaccinated customers, visitors, or guests wear face coverings while on their premises; (7) maintain adequate ventilation systems; and (8) routinely clean and disinfect their premises. OSHA has expressly stated that these recommendations do not create new legal obligations on employers.

Employers continue to face an expanding patchwork of guidance — some mandatory, some recommended — concerning COVID-19 and its myriad impacts on the workplace.  To discuss the latest such guidance from CDC, EEOC, DOL, and OSHA, and applications to your specific business, please contact a member of Schiff Hardin’s Labor and Employment Practice Group.

[1] Standard Precautions refers to infection prevention practices, implemented in healthcare settings, where the presence of an infectious agent is assumed (i.e., without the suspicion or confirmation of exposure). Transmission-Based Precautions refers to those good infection prevention practices, used in tandem with Standard Precautions that are based on the ways infectious agents may be transmitted.