CLIENT ALERT: OSHA Issues Covid Workplace Safety Rules for Healthcare Industry

The Occupational Safety and Health Administration (“OSHA”) has issued new, mandatory safety standards for employers in the healthcare industry. The Emergency Temporary Standard (“ETS”) focuses on protecting healthcare workers from COVID-19 infection. It also imposes new mandatory paid leave requirements for larger healthcare employers.

Covered Employers

Generally speaking, the ETS applies to all settings where any employee provides healthcare services (i.e., health-related services provided by professional healthcare practitioners like doctors, nurses, emergency health professionals, or oral health professionals) or healthcare support services (i.e., any services that facilitate the provision of healthcare services, including patient intake, housekeeping, laundry, and medical waste handling). There are exceptions, however, for some healthcare settings, provided that certain requirements are met, including carveouts for narrow categories of businesses that have fully vaccinated workforces and satisfy other preventive measures. (Employees will be considered fully vaccinated even if some employees remain unvaccinated due to medical or religious accommodations.) OSHA has provided a flowchart to help employers determine whether a given workplace must comply with the ETS.

Safety Measures

Covered employers must assess the workplace for COVID-related hazards and develop a mitigation plan. If the employer has more than 10 employees, the mitigation plan must be in writing. OSHA intends to make a model plan available on its website. Employers of all sizes must include non-managerial representatives from the workforce when conducting the hazard assessment and developing the plan. The ETS mandates several preventive measures, including the following:

• Screening patients and other visitors for COVID symptoms;
• Ensuring that workers wear facemasks indoors;
• Providing respirators and other PPE to workers exposed to people with suspected or confirmed COVID-19;
• Maintaining physical distancing of at least six feet whenever possible, and installing physical barriers where employees cannot be six feet apart;
• Training workers in a language they understand on the employer’s COVID-19 policies;
• Maintaining proper ventilation;
• Screening employees for symptoms before each shift and requiring that employees report symptoms, positive test results, and known exposures (OSHA has provided a Sample Employee COVID-19 Health Screening Questionnaire for this purpose); and
• For workplaces with more than 10 employees, establishing a log to track all instances where an employee is positive for COVID-19, regardless of occupational exposure. An anonymous version of the log must be available to employees and their representatives (both “personal” and “authorized”).

Paid Leave for Vaccinations

Additionally, healthcare employers must provide paid time off during work hours for workers to get vaccinated and recover from any side effects. The paid leave can be in the form of an employee’s accrued sick leave, if available, or additional paid leave provided by the employer solely for vaccination purposes. Employers can set a reasonable cap on leave for vaccination purposes. OSHA suggests that four hours per dose, plus up to eight additional hours per dose for side effects, will be considered sufficient for vaccine-related leave.

Mandatory Removal from the Workplace; Paid Leave and Job Protection Benefits

Another important feature of the ETS is the medical removal requirement. Employers must remove employees from the workplace if they: (1) experience a recent loss of taste and/or smell with no other explanation, have a fever accompanied by a new, unexplained cough and shortness of breath, or are told by a licensed healthcare provider that they are suspected to have COVID-19; (2) receive a positive COVID-19 test; or (3) for unvaccinated workers, have a known exposure to someone who is COVID-19 positive.

Significantly, workplaces with more than 10 employees must provide medical removal protection (“MRP”) benefits, including paid leave, to employees who are removed from the workplace for these reasons and are unable to work remotely. MRP benefits must be available to such employees regardless of whether the symptoms or exposure are work related. The amount of paid leave depends on the size of the employer:

• Employers with more than 10 but fewer than 500 employees must pay the employee’s regular pay, up to $1,400 per week, for the first two weeks. For the third and any subsequent weeks, the employer must pay 2/3 of the employee’s regular pay, up to $200 per day.
• Employers with 500 or more employees must pay the employee’s regular pay, up to $1,400 per week, until the employee is cleared to return to work.

MRP benefits can be offset by employer-provided paid sick leave or any other source of income an employee receives due to being removed from work. In some circumstances, employers can deny MRP benefits to employees who are suspected of having COVID-19 but refuse to be tested. Also, businesses with fewer than 500 employees may be able to take tax credits for paid leave under the American Rescue Plan, at least through September 2021.

Further, employees who experience medical removal from the workplace as mandated by the ETS cannot be discharged, regardless of the length of the absence. Thus, for larger healthcare employers, employees who develop severe COVID-19 infections (even due to exposure outside of the workplace) could be entitled to fully paid leave, as well as job protection beyond the 12 weeks that would normally be required by the Family and Medical Leave Act. OSHA expects that employers will hire temporary workers to fill these roles, despite also having to pay the salaries of workers who are removed from the workplace pursuant to the ETS. The potential expense to large healthcare employers may provide an incentive for employers to implement mandatory COVID-19 vaccination policies.

Anti-Retaliation Provision

Finally, the ETS includes non-retaliation provisions that permit OSHA to cite healthcare employers who retaliate against workers who voice concerns about COVID-related unsafe work conditions. Employers must notify employees of the anti-retaliation protections under the ETS, which are specifically directed to the rights employees may exercise under the ETS and actions employees may take as required by the ETS.

Short Compliance Deadlines

The ETS will become effective immediately after it is published in the Federal Register. Covered healthcare employers will need to act quickly, as compliance is mandatory for most requirements within 14 days after publication of the ETS. (Employers have 30 days after publication of the ETS to comply with provisions relating to physical barriers, ventilation, and training.)

Given the burdensome nature of the requirements imposed by the ETS, a legal challenge could be on the horizon. Emergency temporary standards enable OSHA to bypass the typical agency rulemaking process and, as a result, frequently face lawsuits arguing that the agency has exceeded its authority by imposing requirements that should be passed only through notice-and-comment rulemaking procedures. Although such challenges have been successful in the past, covered employers will have to comply by the deadlines in the ETS until a court orders otherwise.

For More Information

Detailed information from OSHA about the new ETS, including compliance assistance, is available on OSHA’s website. A Frequently Asked Questions page also is available.

If you have questions about the ETS, please contact the Labor and Employment team at Potter Anderson (Jennifer Gimler Brady, Kathleen Furey McDonough, or Jennifer Penberthy Buckley).

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