[co-author: Olubusola Olanrewaju]

On June 21, 2021, the Occupational Safety and Health Administration (“OSHA”) published its first mandatory COVID-19 workplace safety rule, which as discussed below, also includes a surprising paid leave component for vaccination, vaccination side effects, and employees that contract COVID-19. The long-awaited Emergency Temporary Standard (“ETS”) applies only to employers in certain healthcare-related work settings and is the first time since the start of the pandemic that OSHA has imposed regulatory requirements relating to COVID-19 workplace safety. Before the issuance of the ETS, OSHA had relied on the “general duty clause” requiring employers to provide a safe workplace and had only issued non-mandatory recommendations on ways employers could keep workers safe. Like OSHA’s National Emphasis Program, analyzed in our prior March 25, 2021 blogpost, the ETS is viewed as OSHA’s continued response to President Biden’s Executive Order in January requiring OSHA to increase its efforts in protecting workers.

The ETS applies (with some exceptions) to all settings where any employee provides healthcare services, including hospitals, nursing homes, and assisted living facilities. OSHA specified that these regulations apply even to employees who are not directly providing healthcare services, and include on-site support services such as billing and laundry. Healthcare settings are exempted from the ETS if all employees are fully vaccinated and if all non-employees are screened for COVID-19 before entering the setting. Additionally, in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present, employees who are fully vaccinated are exempted from the regulations of the ETS that discuss the use of personal protective equipment (PPE), physical distancing, and physical barriers.

The standard also does not apply to pharmacies, non-hospital ambulatory care settings like dental or medical offices, and medical support services performed in buildings separate from patient treatment facilities. Coverage under the standard depends on where and under what circumstances employees work. So an employer might have to apply the regulations outlined in the standard to certain employees and not others. OSHA has published a flowchart to help employers determine which employees and settings are covered.

The ETS requires that employers develop and implement a COVID-19 plan for each workplace, and for employers with more than 10 employees, the COVID-19 plan(s) must be in writing. Some specific requirements listed in the ETS are similar to OSHA’s prior COVID-19 safety recommendations and include:

• screening patients and employees before entering the workplace, mandating notification protocols in the event of COVID-19 exposure, and, in the event an employee has to be removed from a workplace, providing medical removal protection benefits (including paid leave) during quarantine and illness periods;
• providing PPE to patients and employees;
• maintaining HVAC systems that comply with manufacturers’ specifications and enhanced to maximize airflow and proper air filtration;
• maintaining physical barriers;
• ensuring physical distancing when indoors;
• ensuring regular cleaning and disinfecting practices per CDC guidelines;
• providing employees with reasonable time and paid leave to become vaccinated and to recover from any vaccination-related side effects;
• providing mandatory interactive employee training regarding the COVID-19 disease and employer safety protocols to prevent transmission;
• for covered healthcare employers with more than 10 employees, maintaining a COVID 19 log, regardless of whether exposure is connected to the workplace; and
• reporting work-related COVID-19 fatalities and hospitalizations to OSHA.

Employers must also designate safety coordinators knowledgeable in infection control principles and practices that apply to the workplace and employee job operations to ensure compliance with the plan.

While some of the requirements listed in the ETS have become standard practice in most settings, some requirements will likely be new and surprising to employers. For example, as mentioned above, the standard requires that employers give unvaccinated employees reasonable time and paid leave to be vaccinated and to recover from vaccine side effects, although it does not define what “reasonable” time is. Employers must also provide medical removal protection benefits, which include specified amounts of paid leave for certain employees removed from work due to COVID-19 exposure or contraction. Employees who contract COVID-19 or may be contagious “must work remotely or otherwise be separated from other workers if possible, or be given paid time off up to $1,400 per week.” Employers with 500 or fewer employees have an opportunity to get reimbursed for providing medical removal protection benefits through a tax credit in the American Rescue Plan Act of 2021. These medical removal protection benefits can also be reduced by the amount of compensation an employee received from another source, such as paid sick leave or a publicly-funded or employer-funded compensation program.

Industries not covered by the ETS can continue to rely on OSHA’s guidance on mitigating and preventing the spread of COVID-19 in the workplace, which was updated on June 10, 2021.

The ETS went into effect immediately upon publication in the Federal Register on June 21, 2021, and will require healthcare employers to comply with most sections of the standard within 14 days, or by July 5, 2021. Healthcare employers are advised to contact their employment counsel to determine ETS’s applicability and ensure timely compliance.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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