On June 10, 2021 OSHA issued a Healthcare Emergency Temporary Standard (ETS) to help address the circumstances surrounding occupational hazards existing in health care during the COVID-19 pandemic. The rule was published in the in the Federal Register and became effective on June 21. Employers must comply with most of the requirements set forth in the ETS by July 6 of this year. According to OSHA the “ETS is necessary to protect the healthcare workers with the highest risk of contracting COVID-19 at work. Healthcare workers face a particularly elevated risk of contracting COVID-19 in settings where patients with suspected or confirmed COVID-19 receive treatment, especially those healthcare workers providing direct care to patients. “
Fundamental to the rule is the employer’s obligation to establish a plan to deal with these occupational hazards. This plan should be developed after identifying key hazards using an assessment required under the same standard. Areas that must be covered by the plan include communications with employees, application to common situs employers, screening of employees regarding COVID-19, development and implementation of CDC guidelines consistent with limiting transmission of COVID-19, and PPE use, among many other factors.
The rule states that employers must seek the “input and involvement” of non-managerial employees and their representatives, if any, in both the hazard assessment and the development and implementation of the COVID-19 plan. For union employees, the representative is likely the union who represents the workers. The rule does not provide further definition to this “input and involvement” obligation. That is the extent of the guidance set forth in the ETS itself. The prefacing comments to the rule offers some additional guidance. Significantly, the ETS does not use the critical word “bargain” or phrase “duty to bargain” as part of the guidelines; rather the language is more general using the phrase “must seek the input and involvement of non-managerial employees and their representatives” and “seek feedback”, etc. In fact, these prefacing remarks indicate that “in the case of the unionized workplace, a safety committee established through a collective bargaining agreement may be an appropriate source for this input based on the definition and scope of the committee’s work.”
At this point in the COVID-19 crisis, many employers have been working with their employees and, where there is a union, by and through their bargaining representatives as to most if not all the issues that are addressed in the new rule. Whether there is the duty to bargain regarding any of these topics will be very site specific to the collective bargaining relationship established at any single site. And, of course, OSHA is not the National Labor Relations Board (NLRB). It remains to be seen if and when the NLRB will weigh in on these matters. Indeed, the duty to bargain in these circumstances was addressed in our previous blog post Labor Relations Issues and COVID-19: Avoiding NLRA Violations Through Proactive Measures, and it remains an effective resource in reviewing the issues that may come up regarding such matters. In particular, employers should also conduct a review of their current collective bargaining agreement as to issues of waiver of any bargaining obligation, as that will be the most likely source of any defense to a failure to bargain.