One of President Biden’s first actions upon assuming office was to issue an Executive Order on COVID-19 safety which, among other things, directed OSHA to “consider whether any emergency temporary standards on COVID-19, including with respect to masks in the workplace, are necessary, and if such standards are determined to be necessary, issue them by March 15, 2021.”
OSHA indicated that it planned to release an emergency temporary standard but missed the March 15 deadline. Then on April 27, the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) confirmed that OSHA had submitted an emergency temporary standard for review – teeing off more than a month of anxious anticipation from businesses and advocacy groups across the spectrum.
Of course, for businesses, the big concern was that the emergency temporary standard (which was submitted to OIRA before the CDC announced its latest updated recommendations on face masks) would impose requirements that would create additional burdens and hurdles for them just as the economy has begun to fully reopen.
For most businesses, these concerns were allayed by the fact that the ETS (which spans just over 900 pages) makes it clear that it only applies to “settings where any employee provides healthcare services or healthcare support services.” OSHA estimates that around 10.3 million workers will be covered by the new ETS. Of course, businesses with covered employees will have their work cut out for them to make sure that they are conforming with each and every requirement of the ETS, which includes provisions related to PPE, the physical workplace and paid leave for employees so they can get vaccinated and recover from vaccines. That said, these businesses may be relieved to find that many of the provisions are consistent with prior OSHA guidance and that they are already in compliance in many respects.
For businesses that are not covered by the new ETS, OSHA simply updated its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. Though many employers have relied on this Guidance to assist them over the last year, compliance with the OSHA Guidance (as opposed to the ETS) is voluntary. That said, since many jurisdictions have drawn from the guidance to create their own state and local rules – some of which are mandatory – it will be important for businesses of all stripes to make sure they are staying in compliance with the rules that apply to them.
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