OSHA Issues COVID Emergency Temporary Standard–For Healthcare. Is There More to Come?

Photo by Cedric Fauntleroy on Pexels.com

By Kathleen J. Jennings (kjj@wimlaw.com)

Today, the Department of Labor released the long-awaiting OSHA Emergency Temporary Standard (ETS) for dealing with COVID-19. This ETS applies to all settings where any employee provides healthcare services or healthcare support services.

In the world of OSHA, OSHA is authorized to set emergency temporary standards when it determines that workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards and that an emergency standard is needed to protect them. Then, OSHA publishes the emergency temporary standard in the Federal Register, where it also serves as a proposed permanent standard. It is then subject to the usual procedure for adopting a permanent standard except that a final ruling should be made within six months. The validity of an emergency temporary standard may be challenged in an appropriate U.S. Court of Appeals. Indeed, some employer groups are considering a challenge to the COVID ETS on the ground, among other things, that COVID-19 no longer poses the type of emergency hazard that warrants an ETS.

The key requirements of the ETS are:

  • COVID-19 plan: Develop and implement a COVID-19 plan (in writing if more than 10 employees) that includes a designated safety coordinator with authority to ensure compliance, a workplace-specific hazard assessment, involvement of non-managerial employees in hazard assessment and plan development/implementation, and policies and procedures to minimize the risk of transmission of COVID-19 to employees.
  • Patient screening and management: Limit and monitor points of entry to settings where direct patient care is provided; screen and triage patients, clients, and other visitors and non-employees; implement patient management strategies.
  • Standard and Transmission-Based Precautions: Develop and implement policies and procedures to adhere to Standard and Transmission-Based precautions based on CDC guidelines.
  • Personal protective equipment (PPE): Provide and ensure each employee wears a facemask when indoors and when occupying a vehicle with other people for work purposes; provide and ensure 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.
  • Aerosol-generating procedures on a person with suspected or confirmed COVID-19: Limit employees present to only those essential; perform procedures in an airborne infection isolation room, if available; and clean and disinfect surfaces and equipment after the procedure is completed.
  • Physical distancing: Keep people at least 6 feet apart when indoors.
  • Physical barriers: Install cleanable or disposable solid barriers at each fixed work location in non-patient care areas where employees are not separated from other people by at least 6 feet.
  • Cleaning and disinfection: Follow standard practices for cleaning and disinfection of surfaces and equipment in accordance with CDC guidelines in patient care areas, resident rooms, and for medical devices and equipment; in all other areas, clean high-touch surfaces and equipment at least once a day and provide alcohol-based hand rub that is at least 60% alcohol or provide readily accessible handwashing facilities.
  • Ventilation: Ensure that employer-owned or controlled existing HVAC systems are used in accordance with manufacturer’s instructions and design specifications for the systems and that air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher if the system allows it.
  • Health screening and medical management: (1) Screen employees before each workday and shift; (2) Require each employee to promptly notify the employer when the employee is COVID-19 positive, suspected of having COVID-19, or experiencing certain symptoms; (3) Notify certain employees within 24 hours when a person who has been in the workplace is COVID-19 positive; (4) Follow requirements for removing employees from the workplace; (5) Employers with more than 10 employees, provide medical removal protection benefits in accordance with the standard to workers who must isolate or quarantine.
  • Vaccination: Provide reasonable time and paid leave for vaccinations and vaccine side effects.
  • Training: Ensure all employees receive training so they comprehend COVID-19 transmission, tasks and situations in the workplace that could result in infection, and relevant policies and procedures.
  • Anti-Retaliation: Inform employees of their rights to the protections required by the standard and do not discharge or in any manner discriminate against employees for exercising their rights under the ETS or for engaging in actions required by the standard. Requirements must be implemented at no cost to employees.
  • Recordkeeping: Establish a COVID-19 log (if more than 10 employees) of all employee instances of COVID-19 without regard to occupational exposure and follow requirements for making records available to employees/representatives. Report work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.

Many employers have been voluntarily taking these types of precautions for a while now. Now, for healthcare employers, these precautions become required by OSHA.

Non-healthcare employers, particularly those businesses where employees work in close proximity to one another for entire work shifts, are now wondering if they will be the next target of an OSHA ETS. If vaccination rates stall and fail to reach the 70% threshold, it is possible. I’ll keep you posted.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Have You Reviewed Your Emergency Action Plan Lately?

Photo by Dave Morgan on Pexels.com

By Kathleen J. Jennings (kjj@wimlaw.com)

Now is a great time to review your company’s emergency action plan.  Why?  We have the Atlantic hurricane season starting on June 1, and we have more workers returning to the physical workplace from their remote locations, thanks to mass vaccination.  So let’s make sure everyone knows what to do in the event of an emergency.  Note also that this is something that OSHA is likely to look for when it visits your establishment.

Where required by some Occupational Safety and Health Administration standards, firms with more than 10 employees must have a written emergency action plan; smaller companies may communicate their plans orally. Top management support and the commitment and involvement of all employees are essential to an effective emergency action plan.

Employers should review plans with employees when initially put in place and re-evaluate and amend the plan periodically whenever the plan itself, or employee responsibilities, change. Emergency procedures, including the handling of any toxic chemicals, should include:

  • Escape procedures and escape route assignments.
  • Special procedures for employees who perform or shut down critical plant operations.
  • Systems to account for all employees after evacuation and for information about the plan.
  • Rescue and medical duties for employees who perform them.
  • Means for reporting fires and other emergencies.

It is not just enough to have a written plan in place.  Every employee needs to know details of the emergency action plan, including evacuation plans, alarm systems, reporting procedures for personnel, shutdown procedures, and types of potential emergencies. Any special hazards, such as flammable materials, toxic chemicals, radioactive sources or water-reactive substances, should be discussed with employees.

Drills should be held at random intervals, at least annually, and should include outside police and fire authorities.

Training must be conducted at least annually and when employees are hired or when their job changes. Additional training is needed when new equipment, materials or processes are introduced, when the layout or design of the facility changes, when procedures have been updated or revised, or when exercises show that employee performance is inadequate.

Social distancing requirements may have changed the layout or design of your facility, triggering a review of your emergency action plan. And while you are at it, conduct a fire drill to remind everyone how to exit safely. Also, regularly check your exit signs to make sure that are unobstructed and in good working order.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Can An Employer Terminate An Employee Who Refuses to Wear a Mask at Work?

Photo by cottonbro on Pexels.com

As several states see dramatic increases in the number of people who test positive for COVID-19, employers must be very proactive in taking steps to protect workers and customers from the spread of the virus.  According to OSHA, employers should assess worker exposure to hazards and risks and implement infection prevention measures to reasonably address them consistent with OSHA Standards. Such measures could include promoting frequent and thorough handwashing or sanitizing with at least 60% alcohol hand sanitizer; encouraging workers to stay at home if sick; encouraging use of cloth face coverings; and training them on proper respiratory etiquette, social distancing, and other steps they can take to protect themselves. Employers should clean and disinfect frequently touched surfaces (e.g., door handles, sink handles, workstations, restroom stalls) at least daily, or as much as possible. 

OSHA generally recommends that employers encourage workers to wear face coverings at work if appropriate. Face coverings are intended to prevent wearers who have COVID-19 without knowing it (i.e., those who are asymptomatic or pre-symptomatic) from spreading potentially infectious respiratory droplets to others. This is known as source control.

Employers have the discretion to determine whether to allow employees to wear cloth face coverings in the workplace based on the specific circumstances present at the work site. For some workers, employers may determine that wearing cloth face coverings presents or exacerbates a hazard. For example, cloth face coverings could become contaminated with chemicals used in the work environment, causing workers to inhale the chemicals that collect on the face covering. Workers may also need to use PPE that is incompatible with the use of a cloth face covering (e.g., an N95 filtering facepiece respirator).

Note that cloth face coverings are not considered PPE.

While OSHA and the CDC encourage the use of face masks, the wearing or face masks has become very politicized, and there are many who simply refuse to wear them.  

So what happens if an employer mandates that all employees must wear face masks at work, and an employee refuses?  Well, if an employee refuses a reasonable directive of his or her employer, it is considered insubordination, and the employee can be disciplined. If the employee continues to refuse to wear a mask despite repeated discipline and warnings of the consequences, he or she can be terminated.  

It is also important for the employer to avoid getting into political or idealogical arguments with employees who refuse to wear face masks.  In response to the employee who wants to start an argument, simply state:  “we are requiring the wearing face masks to comply with OSHA and CDC Guidance as a way to protect the health of our employees [and customers].  I am sorry that you do not agree, but this rule applies to everyone.  Anyone who does not follow the rule will be disciplined.”

As I have discussed in past posts, an employer must be consistent in its treatment of employees so that it can avoid claims of discrimination. Don’t look the other way when you see that Thomas is not wearing his mask but write up Karen when she does the same thing.

In rare instances, an employee may have a medical reason for not wearing a mask. If an employee claims that he or she cannot wear a mask due to a medical condition, the employer should go through the interactive process with the employee and his/her health care professional to determine if there is a reasonable accommodation that will still prevent the potential spread of the coronavirus.  [And if the employee presents a “reasonable accommodation” card that they have printed off the internet, you can toss it in the trash]. 

Stay safe and healthy!

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

OSHA Has Issued Guidance for Returning to Work From COVID-19 Restrictions–Who in Your Workplace Will Make Sure That It is Implemented?

Photo by Burst on Pexels.com

As COVID-19 restrictions ease, businesses are reopening and employees are returning to work. To assist employers and workers in safely returning to work and reopening businesses deemed by local authorities as “non-essential businesses” during the evolving COVID-19 pandemic, on June 17, 2020, OSHA issued some new Guidance on Returning to Work for employers. OSHA tells us that this Guidance does not have the force of law; the “recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace.” Nevertheless, in the event that an employer is faced with an employee complaint to OSHA, a surprise OSHA inspection, or a lawsuit, that employer can only benefit by showing its documented compliance with OSHA’s own “recommendations.”

The Guidance identifies three Phases of reopening and recommended practices for minimizing the spread of COVID-19 for each of them.  It also recommends that during all phases of reopening, employers should implement strategies for basic hygiene (e.g., hand hygiene; cleaning and disinfection), social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training that are appropriate for the particular phase.

How does an employer show its documented compliance with OSHA’s recommendations? The starting point would be to identify a person or department that is responsible for keeping up with day to day compliance with the recommended strategies and practices. For larger companies, this is likely to fall within the responsibility of a safety manager or department. For smaller companies that do not have a dedicated safety professional, think about having someone designated as the “COVID Czar” or something like that (maybe COVID Coordinator if you prefer something less autocratic). Some of the potential responsibilities of the COVID Czar (or Coordinator):

  • Document employee training;
  • Document all precautions that the company has implemented to prevent the spread of COVID-19, such as taking temperatures of employees and visitors and regular cleaning and disinfecting of the workplace;
  • Gently remind others to maintain social distance in the workplace, follow respiratory etiquette, and regularly wash their hands;
  • Be a resource for those employees who are not comfortable telling others, particularly superiors, to please maintain social distance or sneeze into their sleeves;
  • Keep track of which employees are symptomatic, test positive, are under quarantine, or may have an underlying condition that makes them more vulnerable to COVID-19;
  • Ensure that those workers who have recovered from illness follow proper return to work procedures in accordance with CDC guidance;
  • If PPE is required for employees, make sure that there is an adequate supply of the appropriate PPE and that employees have been trained to use it properly;
  • Ensure that workers are not retaliated against for raising concerns about safety in the workplace; and
  • Keep everyone calm. 😊

Needless to say, the COVID Czar must be someone who can keep employee health information confidential.   They should also be someone who has enough confidence and authority to recognize and correct employees who are not following established safety procedures and practices.  

So–welcome back to work, and be safe out there!

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.