KH OSHA Law Update: OSHA Limits COVID Emergency Temporary Standard to Medical Sector and Updates Guidance for Other Industries

On June 10, 2021, OSHA simultaneously released an Emergency Temporary Standard (ETS) applicable to the medical sector only[1] and updated its general industry guidance for preventing COVID-19 infections.[2] The medical ETS is effective pending publication in the Federal Register and the updated guidance is effective immediately.

Therefore, despite President Biden’s Executive Order[3] calling for a General Industry ETS to be issued by March 15th, OSHA will continue to rely on guidance documents and existing agency enforcement mechanisms (e.g., General Duty Clause, National Emphasis Program) to prevent the spread of COVID-19 in the non-medical workplace.

In the updated OSHA guidance for general industry, the agency incorporated new CDC guidance which permits fully vaccinated individuals to forgo masks and social distancing, and stated that “[t]his guidance focuses only on protecting unvaccinated or otherwise at-risk workers in their workplaces (or well-defined portions of workplaces).” The guidance contains a variety of OSHA recommendations for preventing the spread of COVID, including providing unvaccinated and otherwise at-risk workers with face coverings or surgical masks at no cost, suggesting that unvaccinated customers, visitors, or guests wear face coverings, and implementing anonymous processes for workers to voice concerns about COVID-related hazards. Additionally, unless otherwise provided by federal, state, or local requirements, unvaccinated workers who are outdoors may opt not to wear face coverings unless they are at-risk, for example, if they are immunocompromised.

It is important that employers craft return-to-work policies based on updated CDC and OSHA guidance, as well as state and local mandates. Without careful consideration, policies such as mandatory vaccination as a condition of employment can result in liability and litigation.

For additional information and assistance in developing legal return-to-work policies that protect employees and employers, contact Keller and Heckman’s OSHA team. Manesh Rath (rath@khlaw.com), Lawrence Halprin (halprin@khlaw.com), and Taylor Johnson (johnsont@khlaw.com).

[1] Occupational Safety and Health Administration. COVID-19 Emergency Temporary Standard. June 10, 2021. Available at: https://www.osha.gov/sites/default/files/covid-19-healthcare-ets-reg-text.pdf.
[2] Occupational Safety and Health Administration. Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. June 10, 2021. Available at: https://www.osha.gov/coronavirus/safework.
[3] The White House. Executive Order on Protecting Worker Health and Safety. January 21, 2021. Available at: https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/21/executive-order-protecting-worker-health-and-safety/.