OSHA’s New Health Care Safety Rule from a Work Perspective – Employment and HR


United States: OSHA’s new health care safety rule from a work perspective

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On June 10, 2021, OSHA issued a Preliminary Health Care Standard (ETS) to address the circumstances surrounding occupational risks in the health care sector during the COVID-19 pandemic. The regulation was published in the Federal Register and came into force on June 21. Employers must meet most of the requirements of the ETS by July 6th this year. According to OSHA, the “ETS is necessary to protect health workers at the highest risk of contracting COVID-19 in the workplace. Healthcare workers are particularly at increased risk of contracting COVID-19 when treating patients with suspected or confirmed COVID-19, particularly those healthcare workers who care for patients directly. “

Underlying the rule is the employer’s obligation to develop a plan for dealing with these occupational hazards. This plan should be developed after the main hazards have been identified from an assessment required by the same standard. Areas that must be covered by the plan include communicating with employees, applying to joint employers, screening employees for COVID-19, developing and implementing CDC guidelines in line with the limitation, among others the transmission of COVID-19 and the use of PPE.

The rule states that employers must seek the “participation and involvement” of non-executive employees and their representatives in both the risk assessment and the development and implementation of the COVID-19 plan. For union workers, the representative is likely to be the union that represents the workers. The regulation does not provide any further definition of this “intervention and participation” obligation. That is the scope of the guidelines laid down in the ETS itself. The preceding comments on the rule provide some additional information. Significantly, the ETS does not use the critical word “bargain” or the expression “obligation to negotiate” as part of the guidelines; rather, the wording is more general and uses the terms “must seek input and involvement from non-executive employees and their representatives” and “ask for feedback” etc. A security committee established by a collective agreement may be an appropriate source of this input depending on the definition and scope of the committee’s work.

At this point in the COVID-19 crisis, many employers have worked with their workers and, where there is a union, by and through their collective bargaining representatives on most, if not all, of the issues covered in the new regulation. Whether there is an obligation to negotiate with regard to one of these topics is very location-specific for the collective bargaining agreement established at an individual location. And of course, OSHA is not the National Labor Relations Board (NLRB). It remains to be seen if and when the NLRB will get involved in these matters. In fact, the duty to negotiate in these circumstances was addressed in our previous blog post Industrial Relations and COVID-19: Avoiding NLRA Violations Through Proactive Measures, and it remains an effective resource in reviewing the issues that arise regarding such Matters can arise. In particular, employers should also review their current collective agreement with regard to the waiver of an obligation to negotiate, as this is the most likely source of an objection to the failure of negotiations.

The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.

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