DOL Issues Long-Awaited COVID-19 Safety Rule

June 17, 2021

On June 10, the U.S. Labor Department’s Occupational Safety and Health Administration (OSHA) issued a highly anticipated emergency rule that sets workplace safety parameters for employers in the health care sector for the duration of the COVID-19 pandemic.

Labor Secretary Marty Walsh and acting assistant secretary of labor for OSHA Jim Frederick announced the emergency temporary standard (ETS) that lays out what employers must do to protect health care workers from COVID-19. The rule takes effect on the date it is published in the Federal Register, although the exact date hasn’t been determined yet.

The ETS will require employers in the health care sector to maintain social distancing protocols, make sure that patients are properly screened for virus symptoms and give workers paid time off to get vaccinated and recover from vaccine side effects as encouragement to get the shot. The ETS includes carve outs for certain workplaces where all workers are fully vaccinated and people who may have COVID-19 are barred.

The new mandatory coronavirus safety rules will only apply to health care settings, which DOL estimates will cover 10.3 million workers, while all other businesses will have to follow optional safety guidelines from the OSHA for their workforces.

The new mandatory rules will apply to “hospitals, nursing homes, and assisted living facilities” according to DOL, and include emergency responders and home health care workers, according to a summary of the rule. The rules will not apply to retail pharmacies and non-hospital ambulatory settings that bar people with suspected or confirmed Covid-19 from entering.

OSHA also issued a series of voluntary guidelines for employers that operate outside the health care context to protect unvaccinated workers, particularly industries such as meatpacking and high-volume retail where close contact between people is common. The guidance urges employers to provide masks to unvaccinated or at-risk workers and to allow for social distancing, but also noted that “most employers no longer need to take steps to protect their workers from COVID-19 exposure” at work if all of their employees are fully vaccinated.

President Joe Biden, in one of his first executive orders upon taking office in January, ordered the Labor Department to consider issuing an ETS for businesses to follow during the pandemic and, if the department deemed it necessary, to issue an ETS by March 15. But numerous delays ensued, with the DOL ultimately submitting the proposed ETS to the White House’s Office of Management and Budget for final approval in late April.

Whether OSHA should issue an ETS was a question that emerged at the very start of the pandemic, with the AFL-CIO going as far as to sue the Labor Department, seeking to obtain an order requiring that such standards be issued. But the labor federation’s suit fizzled and the D.C. Circuit subsequently rejected the labor federation’s efforts to revive it.

As the pandemic continued, OSHA during the Trump administration faced sustained criticism for what some workers’ advocates and Democratic lawmakers perceived to be a lack of enforcement activity to make sure workplaces were being kept safe from the virus.  

But while the rule was going through the final stages of review, the CDC issued new guidance in May clearing fully vaccinated people to remove masks in most settings, raising concerns that the rule would not be as stringent as originally thought.

“It’s been very tricky with guidance and the virus changing over the over the last couple of months,” Walsh said. “We know the administration’s vaccination efforts combined with OSHA’s workplace safety efforts, they’re definitely making a difference for workers and businesses across the country.”

DOL officials said that the agency was working quickly to send the rule to the Federal Register for publishing, after which it will go into effect immediately.