On June 10, the Department of Labor (“DOL”) issued updated COVID-19 safety guidelines for all employers1 and a long-awaited Emergency Temporary Standard (“ETS”)2 containing safety requirements to protect workers who face the highest COVID-19 hazards – workers in healthcare settings treating suspected or confirmed COVID-19 patients. The updated guidelines were anticipated in light of the CDC’s updated guidance regarding safety protocols for fully vaccinated individuals. Employers in healthcare in particular should take note of the new standards.
Updated Guidance Offers Suggestions for Protecting Unvaccinated and At-Risk Workers in Non-Healthcare Workplaces
The updated guidance provides recommendations designed to protect unvaccinated or otherwise “at-risk workers” from potential COVID-19 infection. “At-risk workers” are defined as workers with conditions that may affect the workers’ ability to have a complete immune response to vaccination. While the guidance is neither an enforceable regulation nor a new legal obligation, employers should consider this guidance when allowing unvaccinated workers to return to in-person work. Moreover, the guidance does not alter the DOL’s prior analysis finding employers can mandate vaccines for employees before returning to in-person work (so long as they also comply with anti-discrimination and other laws).
Specifically, the new guidance states that, except for certain types of workplaces such as in the healthcare and transportation industries, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace (or “well-defined portions of a workplace,” which the DOL does not define further) where all employees are fully vaccinated. With regard to unvaccinated or at-risk workers, the new DOL guidance suggests that employers should engage with workers and their representatives to determine how to implement multi-layered interventions to mitigate the spread of COVID-19. To this end, the DOL offered the following suggestions:
- Grant paid time off for employees to get vaccinated.
- Instruct any infected workers; unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2; and all workers with COVID-19 symptoms to stay home from work.
- Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas. Employers could also limit the number of unvaccinated or otherwise at-risk workers in one place at any given time, for example by implementing flexible worksites (e.g., telework); implementing flexible work hours (e.g., rotate or stagger shifts to limit the number of such workers in the workplace at the same time); delivering services remotely (e.g., phone, video, or web); or implementing flexible meeting and travel options, all for such workers. Employers should also implement physical barriers where distancing is not possible.
- Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks at no cost, unless their work task requires a respirator or other Personal Protective Equipment (“PPE”).
- Educate and train workers on the organization’s COVID-19 policies and procedures using accessible formats, and in language workers understand.
- Suggest that unvaccinated customers, visitors, or guests wear face coverings, especially in public-facing workplaces such as retail establishments, if there are unvaccinated or otherwise at-risk workers in the workplace who are likely to interact with these customers, visitors, or guests.
- Maintain ventilation systems.
- Perform routine cleaning and disinfection. If someone who has been in the facility within 24 hours is suspected of having or confirmed to have COVID-19, follow the CDC cleaning and disinfection recommendations.
ETS for Healthcare Settings Mandates Plans, PPP, Distancing, and Other Safety Measures
The ETS, which will remain in effect for at least six months, contains several new requirements, many of which are stricter than what the guidance described above suggests that non-healthcare employers follow regarding unvaccinated employees. The ETS applies, with some exceptions,3 to settings where any employee provides healthcare services or healthcare support services. This includes settings with 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.
The ETS contains the following new requirements:
- Develop and implement a COVID-19 plan (for each workplace) that includes policies and procedures to minimize the risk of transmission of COVID-19 to employees. Employers must seek input from non-managerial employees (and their representatives); designate a safety coordinator to oversee compliance with the plan; and conduct a workplace-specific hazard assessment. They must also update the plan as needed.
- Conduct patient screening and management. Employers must limit and monitor points of entry to settings where direct patient care is provided; screen and triage patients and other visitors entering the setting for symptoms of COVID-19; and implement patient management strategies.
- Follow standard and transmission-based precautions. Employers must develop and implement policies and procedures to adhere to Standard and Transmission-Based Precautions per CDC guidelines.4
- Provide PPE. Employers must provide and ensure that employees wear facemasks (over the nose and mouth) when indoors and when occupying a vehicle with other people for work purposes. They must also provide and ensure that employees use respirators and other PPE for exposure to people with suspected or confirmed COVID-19 and for aerosol-generating procedures on a person with suspected or confirmed COVID-19. Finally, employers must allow the voluntary use of respirators instead of facemasks (under the mini respiratory protection program).
- Follow aerosol-generating procedures on persons with suspected or confirmed COVID-19. Employers must limit employees present to only those essential; perform procedures in an airborne infection isolation room, if one is available; and clean and disinfect surfaces and equipment after the procedure is completed.
- Implement physical distancing. Employers must ensure that each employee is separated from all other people by at least six feet when indoors.
- Maintain physical barriers. Employers must install cleanable or disposable solid barriers at each fixed work location in non-patient care areas where each employee is not separated from other people by at least six feet.
- Follow cleaning and disinfection procedures. Employers must follow standard practices for cleaning and disinfecting surfaces and equipment according to CDC guidelines in patient care areas, resident rooms, and medical devices and equipment. In all other areas, employers must clean high-touch surfaces and equipment at least once a day and provide an alcohol-based hand rub or provide readily accessible hand washing facilities.
- Maintain ventilation. Employers must ensure that employer-owned or controlled HVAC system(s) are correctly used; that air filters meet specific requirements; that airborne infection isolation rooms are correctly maintained; and that intake ports are cleaned, maintained, and cleared of debris.
- Conduct health screening and medical management. Employers must screen each employee before each workday and shift; provide testing at no cost to the employee; require each employee to promptly notify the employer when the employee is COVID-19 positive, suspected of having COVID-19, or experiencing certain symptoms; notify certain employees when a person who has been in the workplace is COVID-19 positive; follow requirements for removing workers from the workplace; make decisions on returning employees to work per guidance from a licensed healthcare provider or specified CDC guidance; and continue to pay removed employees in most circumstances.
- Provide reasonable time and paid leave for vaccinations and vaccine side effects.
- Provide training. Employers must ensure that each employee receives training so that the employee comprehends disease transmission; tasks and situations in the workplace that could result in COVID-19 infection; and relevant policies and procedures and provide additional training as needed.
- Implement anti-retaliation measures. Employers must inform employees of their rights to the protections required by the ETS and not discharge or discriminate against employees for exercising these rights or for complying with them.
- Maintain record keeping measures. Employers with more than ten employees must establish a COVID-19 log of all employee instances of COVID-19 and follow requirements for making records available to employees.
- Adhere to reporting requirements. COVID-19 fatalities and hospitalizations must be reported to OSHA.
Federal, state, and local guidelines and requirements regarding employers’ COVID-19 safety precautions continue to evolve rapidly. If you have any questions regarding your organization’s obligations or rights to go beyond recommended guidance, please reach out to the Lawrence & Bundy attorneys with whom you work.
 Dept. of Labor, Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, https://www.osha.gov/coronavirus/safework (last visited June 11, 2021).
 Dept. of Labor, COVID-19 Healthcare Emergency Temporary Standard https://www.osha.gov/sites/default/files/covid-19-healthcare-ets-reg-text.pdf (last visited June 11, 2021). The ETS does not take effect until the DOL’s rule is published in the Federal Register. DOL has not yet announced when that will take place. Once the rule is published in the Federal Register, employers must comply with most provisions within fourteen days, and with the remaining provisions within thirty days.
 The ETS exempts fully vaccinated workers from masking, distancing, and barrier requirements when in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present and includes an exception for certain workplaces where all workers are fully vaccinated and people who may have COVID-19 are barred. Also, the ETS does not apply to the following situations: first aid performed by an employee who is not a licensed healthcare provider; dispensation of medication by a pharmacist in a retail setting; healthcare support services not performed in a healthcare setting; and telehealth services performed outside of a setting where direct patient care occurs.
 Centers for Disease Control and Prevention, Transmission-Based Precautions, https://www.cdc.gov/infectioncontrol/basics/transmission-based-precautions.html (last visited June 11, 2021).