It may not be the law of the land, but there’s still great guidance and best practices to be applied from OSHA’s proposed Emergency Temporary Standard (ETS) on COVID-19 for employers that was struck down by the United States Supreme Court in mid-January.
The ETS was introduced last October by OSHA as a set of requirements for certain employers with more than 100 employees to, among other things, mandate COVID vaccinations or weekly testing. While the ETS won’t become a legal requirement for employers to follow, the guidance and proposed mandated practices that were proposed are nonetheless useful for those looking to create a workplace COVID policy to mitigate risks and keep employees safer.
Let’s start with the basics. The ETS had proposed that employees should promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19. And that employers should immediately send home any employee, regardless of vaccination status, who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider. It’s obviously sound advice in efforts to limit the spread of a highly contagious and potentially virulent pandemic.
The ETS also advanced the idea that employers might look to establish criteria for returning to work that is compliant with the Centers for Disease Control (CDC) and Prevention isolation and quarantine guidelines to employees who are sent home due to a positive COVID-19 test. And, in keeping with the proposed ETS, perhaps also mandate that these employees should only be allowed to return to work when the criteria are met.
Still another ETS measure was a requirement that employees who are not fully vaccinated should be mandated to wear a face covering when indoors or occupying a vehicle with another person for work purposes. Best practice suggests that every employee should be provided with information about workplace policies for COVID, in a language and at a literacy level they understand. Some experts are recommending that employers share information about:
- Vaccine efficacy
- Vaccine safety and the benefits of being vaccinated (by providing the CDC document: Key Things to Know About COVID-19 Vaccines)
- Protections against retaliation and discrimination
- Laws that provide criminal penalties for knowingly supplying false statements or documentation
While work-related COVID-19 fatalities and hospitalizations must still be reported to OSHA when applicable, it’s here where things can get tricky and potentially confusing. Jane Heidingsfelder, a partner with Jones Walker LLP, made that point during a presentation she gave on How to Respond to Pandemic-Related Complaints during the Safety Leadership Conference in November.
Under OSHA recordkeeping rules, COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. But, according to Heidingsfelder, it’s a situation that would be a rare occurrence because of two key factors:
- Work-related means that exposure happened at work, and within 24 hours after that exposure, an employee was hospitalized (it usually takes longer for COVID symptoms to appear).
- There are many ways to eliminate the workplace as the source of a COVID infection since activities outside of workplace may just as likely have been the source – but you must have proof.
Employers need to show that an investigation was conducted to make a determination that an employee may have contracted COVID outside the workplace and, in doing so, “there’s really no way that OSHA can come back and say, ‘no, it definitely happened at work,’” she says. “They can’t prove that. So as long as you have your documentation, I think you’re in a very good position, even if OSHA disagrees with your conclusion.”
Other suggestions made in the OSHA ETS that should be considered best practices include:
- Providing paid time off for employees to get vaccinated – potentially through sick leave
- Encouraging workers who are infected or have been exposed to stay home from work
- Implementing physical distancing
- Providing face coverings or face masks
- Suggesting that unvaccinated guests should wear face coverings
- Maintaining ventilation systems
- Performing routine cleaning and disinfection
- Implementing protections from retaliations for voicing concerns
Regarding the last point, it’s always a good idea to consider instituting an anonymous process for voicing concerns, particularly when it comes to COVID. Employees should be invited to comment and employers should perhaps consider providing a safety suggestion box for them to voice those concerns anonymously. Of course, ensure you respond to all submissions.
Whatever you choose to do, and for the sake of any OSHA inspection that might happen, it’s best to have an employee policy you can point to, Heidingsfelder says. It doesn’t need to include everything previously suggested, “but should be something that lists some or all of these steps and shows you have informed your employees that, for example, if they are infected, they should stay home.”