Department of Labor Issues Updated COVID-19 Workplace Guidelines and Required Safety Standards for Healthcare Employers
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:
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:
 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).
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