DOL Issues Long-Awaited COVID-19 Safety Rule

By Vin Gurrieri
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Law360 (June 10, 2021, 12:06 PM EDT) -- The U.S. Labor Department's Occupational Safety and Health Administration on Thursday issued a highly anticipated emergency rule that sets workplace safety parameters for employers in the health care sector for the duration of the COVID-19 pandemic.  

Labor Secretary Marty Walsh and acting assistant secretary of labor for OSHA Jim Frederick announced the so-called emergency temporary standard, or ETS, that lays out what employers must do to protect health care workers from COVID-19. The rule takes effect on the date it is published in the Federal Register, although the exact date hasn't yet been determined.

"From the very beginning our goal has been to protect the health and safety of our workforces," Walsh said during a news call Thursday. "Science tells us that health care workers, particularly those who come into regular contact with the virus, are most at risk at this point in the pandemic. So, following extensive review of the science and data, OSHA has determined that a health care-specific safety requirement will make the biggest impact."

The ETS, which exceeds 900 pages not including additional explanatory materials that the DOL made available, will require employers in the health care sector to maintain social distancing protocols, make sure that patients are properly screened for virus symptoms and give workers paid time off to get vaccinated and recover from vaccine side effects as encouragement to get the shot.

Health care employers also will be required to craft a virus safety plan that includes specific components and must be written if more than 10 workers are employed.

Covered employers must also screen workers prior to their shifts, provide masks and other personal protective equipment to employees for use in certain high-risk situations, ensure that masks are worn indoors and changed daily, and put in place ventilation procedures when dealing with patients who may have the virus, among other things.

However, the ETS also says that fully vaccinated health care workers don't have to wear masks or adhere to masking or distancing requirements if they are in "well-defined areas where all employees are fully vaccinated" and where people who have or could potentially have the virus aren't reasonably expected to be present.

Additionally, the ETS also requires employers to remove from workplaces any employee who tests positive for COVID-19, is suspected of being infected or is symptomatic for defined periods of time.

When that happens, health care employers with more than 10 people on staff must continue paying workers who can't operate remotely their normal salary up to $1,400 a week for the first two weeks they are absent, although the exact amount may vary if workers are sick for a longer period. Certain employers may be able to claim a tax credit or offset some of the cost through publicly funded programs like paid sick leave, according to the DOL.

The rule includes a carveout for certain workplaces where all workers are fully vaccinated and people who may have COVID-19 are barred. COVID-19 is the respiratory ailment caused by the coronavirus.

Employers will have to comply with its provisions either within two weeks of the rule taking effect or a month, depending on the mandate. However, OSHA said it would use "enforcement discretion" if employers are making "a good-faith effort" to adhere if they miss a deadline, according to the DOL, which said it would update the ETS as needed.

OSHA, the DOL's workplace safety arm, also issued a series of voluntary guidelines for employers that operate outside the health care context to protect unvaccinated workers, particularly industries such as meatpacking and high-volume retail where close contact between people is common.

The new guidance in part tracks recent guidance issued by the Centers for Disease Control and Prevention that recommends loosening virus-related restrictions among those who are fully vaccinated against COVID-19, including them not having to wear a mask or physically distance indoors or outdoors, save for certain exceptions, so long as no laws require otherwise.

"Unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure," the DOL said in Thursday's guidance.

But for workers who aren't vaccinated or are otherwise deemed to be high risk of infection or serious illness, the DOL recommended that employers grant paid time off for vaccinations, provide unvaccinated workers with mask and other protective gear, direct infected workers or those who've had contact with someone infected to stay home, and space out unvaccinated employees in communal work areas, among other suggestions.

During Thursday's press call, Frederick described the guidance as a road map for employers for how best to protect unvaccinated workers outside the health care sector, citing in particular its importance for businesses in the meatpacking, retail, grocery stores, manufacturing and seafood processing industries.

"The guidance is based on the latest scientific knowledge and shape of the pandemic," Frederick said. "We will continue to work with CDC and other federal partners to continue to update industry-specific guidance going forward."

Frederick added that employers will continue being offered compliance assistance from OSHA for keeping workers safe and for implementing the new health care ETS, and the agency will continue investigating complaints.

President Joe Biden, in one of his first executive orders upon taking office in January, ordered the Labor Department to consider issuing an emergency temporary standard for businesses to follow during the pandemic and, if the department deemed it necessary, to issue an ETS by March 15. But numerous delays ensued, with the DOL ultimately submitting the proposed ETS to the White House's Office of Management and Budget for final approval in late April.

Whether OSHA should issue an ETS was a question that emerged at the very start of the pandemic, with the AFL-CIO going as far as to sue the Labor Department, seeking to obtain an order requiring that such standards be issued.

But the labor federation's suit fizzled and the D.C. Circuit subsequently rejected the labor federation's efforts to revive it.

AFL-CIO president Richard Trumka issued a lengthy statement Thursday saying that OSHA's new ETS for health care workers is a good albeit overdue step but that more action is needed.

"From the beginning, we have called for an ETS to keep all workers safe from COVID-19. Voluntary guidelines are not enough," Trumka said. "Workers need enforceable protections to prevent the spread of the virus, like controlling airborne exposures and reporting outbreaks. We urge OSHA to use its full authority to enforce the new ETS for health care workers as well as all [CDC] and OSHA guidelines to protect workers not covered by this standard."

Key lawmakers from both parties also made their divergent thoughts known Thursday about the DOL's new standard.

Rep. Virginia Foxx, R-N.C. the top Republican on the House Committee on Education and Labor, said the Biden administration is "burdening health care facilities" but credited the DOL for having "refuted the ridiculous claims from Democrats and their union allies that all American workers are presently in grave danger from the virus."

"Placing new and burdensome regulation on this heroic industry at this stage of the pandemic is completely unnecessary," Foxx said. "Further, we cannot endorse an inflexible, restrictive regulation that is unable to keep up with the ever-evolving science regarding COVID-19."

Meanwhile, Rep. Bobby Scott, D-Va., who leads the House Education and Labor committee, called the ETS "a step in the right direction" to protect health care workers, but expressed disappointment both with the amount of time it took OSHA to act and the narrow scope of the rule it issued.

"This ETS is long past due, and it provides no meaningful protection to many workers who remain at high risk of serious illness from COVID-19," Scott said," adding that OSHA going forward "must closely track workplace infection rates and be prepared to respond quickly to infection outbreaks or other signs of grave danger to workers."

As the pandemic raged, OSHA during the Trump administration faced sustained criticism for what some workers' advocates and Democratic lawmakers perceived to be a lack of enforcement activity to make sure workplaces were being kept safe from the virus.   

--Editing by Neil Cohen.

Update: This story has been updated with additional details from the DOL's rule and guidance and comments from Foxx, Scott and Trumka.

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