Last Thursday the federal Occupational Safety and Health Administration (OSHA) published two directives addressing COVID-19 workplace safety. The formal regulatory standard called the Emergency Temporary Standard (ETS) covers health care workers. These apply to hospitals, nursing homes, assisted living facilities, emergency responders, home health care workers, and employees that do ambulatory care. The ETS rules for these categories of covered jobs are workplace requirements.
The other issuance from OSHA, Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, was for general industry and applies to all other employer categories under OSHA. This was published as guidance, not rule, but employers are expected to adopt the practices. Employers should also be aware that the recommended safety procedures can change or be changed pursuant to Centers for Disease Control and Prevention (CDC) guidance or state and local requirements. Michigan has adopted the same general compliance principle by deferring to the CDC and OSHA for general industry. The OSHA directive advises that the guidance for general industry practice is not a new legal obligation nor does it rise to the level of standard or regulation. It is informational in content and intended to “assist employers in recognizing and abating hazards likely to cause death or serious physical harm…”
Employers outside of the health care section are to follow CDC guidance that provides safety protocols covering both vaccinated and unvaccinated workers. The rules allow the employer to determine whether they will have safety rules and protocols above MIOSHA, CDC, and OSHA requirements. However, at a minimum, the following safety rules must be in place:
Principally unvaccinated worker must:
- Practice social distancing
The employer must:
- Continue to have an updated emergency preparedness and response plan.
- Conduct pre-screening action as employees and visitors enter the workplace.
- Continue cleaning and sanitization of the workplace.
- Record and report COVID-19 infections and deaths. This is under existing OSHA rule 29 CFR 1904 and not specific to COVID but applies to any illness, injury, or death.
- Not retaliate or discriminate against employees for speaking out about unsafe working conditions or reporting of infection or exposure to COVID. It can also include actions against an employee that raise concerns about infection control to not only the employer but to an agent of the employer, other employees, a government agency, or to the public through most any means. So be careful when challenging an employee that puts information out on the internet about what may be happening in the workplace pursuant to COVID. This is pursuant to 29 CFR 1904. 35 (b). OSHA has stated; however, it will not enforce 29 CFR 1904 recording requirements when it involves worker side effects to COVID vaccination. This will be in effect till 5/2022.
- Follow other applicable OSHA standards. This will include, as stated above, provision of necessary PPE, respiratory protection, sanitation, protection from bloodborne pathogens, and employee access to medical and exposure records.
Employers are encouraged to:
- Grant paid time off for employees to get vaccinated.
- Instruct workers who are infected, unvaccinated workers that have had close contact with someone testing positive for COVID, and all workers that have COVID symptoms to stay home.
- Continue to provide unvaccinated and otherwise at-risk workers personal protective equipment (PPE).
- Continue to educate workers on required COVID-19 policies and procedures.
- Suggest unvaccinated customers, visitors, or guests wear face coverings.
Unless the employer decides it wishes to practice stricter safety protocols, employers no longer need to take steps to protect vaccinated workers. OSHA, like MIOSHA, is deferring to the CDC’s Interim Public Health Recommendations for Fully Vaccinated People. People are considered fully vaccinated for COVID-19 two weeks after they have received the second dose in a two-dose series or two weeks after they have received a single-dose vaccine.
The guidance also addressed higher risk workplaces requiring further protective measures. These are some manufacturing sites where workers must work in close proximity (inside 6 feet) such as meat and poultry processing facilities, high volume retail and grocery stores, and seafood processing facilities.
Additional ASE Resources
ASE Contagious Diseases and Pandemic Toolkit - ASE members have access to the ASE Contagious Diseases and Pandemic Toolkit via the ASE Member Dashboard. The toolkit contains over 50 tools (including a return-to-work plan), forms, and template policies as well as over 50 useful links for easy reference to local, state, and federal resources. Non-members can request to purchase the toolkit here.
COVID-19 Employer Resources - Visit our employer resources webpage for continuous updates on new regulations and guidance.
Sources: Seyfarth Shaw Employment Law Lookout Blog. OHSA’s Emergency Temporary Standard Narrowly Focused on the Health Care Sector, Guidance Update for Other Sectors (6/10/2021)
USDOL OSHA Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID019 in the Workplace (6/102021)