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OSHA issues emergency rule and guidance on COVID-19 protections


Today, OSHA announced its highly anticipated final rule for COVID-19, along with the release of updated guidance. The final rule, which was prompted by Executive Order, will appear in the Federal Register in the coming days, but a pre-publication version is available. While the guidance applies to all of general industry, the rule itself only covers “healthcare employers.”

Final rule for healthcare

Originally, it was thought the rule would have a broader scope and applicability, but the agency decided that at this time COVID-19 presents a “grave danger” to workers in healthcare settings and that existing laws and regulations are inadequate to address the risk posed to these workers. Therefore, the final COVID-19 Emergency Temporary Standard (ETS) focuses only on “healthcare employers.”

The ETS will be located at 29 CFR 1910 Subpart U, specifically 29 CFR 1910.502, .504, .505, and .509. The ETS is effective immediately upon publication in the Federal Register. Employers must comply with most provisions within 14 days of publication, and with provisions involving physical barriers, ventilation, and training within 30 days. OSHA will use its enforcement discretion for employers who are making a good faith effort to comply with the ETS.

Key requirements of the ETS are:

  • A written COVID-19 plan,
  • Patient screening and management,
  • Standard and transmission-based precautions,
  • Personal protective equipment,
  • Aerosol-generating procedures on a person with suspected or confirmed COVID-19,
  • Physical distancing and physical barriers,
  • Cleaning and disinfection,
  • Ventilation,
  • Health screening and medical management,
  • Vaccination,
  • Employee training,
  • Anti-retaliation, and
  • Recordkeeping and reporting.

Impacts on states

The federal ETS establishes minimum requirements for private employers in every state to protect healthcare employees from the risks of exposure to COVID-19. In states without OSHA-approved state plans, the OSHA ETS preempts state occupational safety and health standards, but only in areas addressed by the federal ETS. However, these states may go beyond the ETS requirements.

In states with OSHA-approved state plans, the ETS does not significantly limit the state’s regulatory options. State-plan states must either amend their own standards to be identical or “at least as effective as” the new ETS. Therefore, state-plan states may be more stringent than the federal ETS. State-plan states have 30 days of promulgation of the ETS in the Federal Register to amend their standards or adopt the ETS identically.

Guidance for general industry

It should be noted that OSHA also announced updated guidance for all of general industry (not just healthcare), which aligns with CDC guidance. The revised OSHA guidance, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” dated June 10, 2021, now focuses protections for unvaccinated and other at-risk workers, encourages the COVID-19 vaccination, and offers links.

NEWS UPDATE: The COVID-19 ETS appeared in the Federal Register on June 21, 2021. OSHA also posted more resources on its COVID-19 Healthcare ETS webpage.

SOURCES: COVID-19 Healthcare ETS; OSHA webpage

Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace; OSHA guidance – 6/10/2021

Occupational Exposure to COVID–19; Emergency Temporary Standard; OSHA interim final rule; request for comments; Federal Register Vol. 86, No. 116; Docket No. OSHA–2020–0004 – 6/21/2021