On June 10, 2021, the Occupational Safety and Health Administration (OSHA) released an Emergency Temporary Standard (ETS) establishing heightened COVID-19 workplace safety regulations for most healthcare providers in the United States. In addition to workplace safety requirements, the ETS also reincarnates mandatory paid time off for employees, introduces expanded reporting and recordkeeping requirements, and mandates the creation and implementation of a COVID-19 plan and training.

Health care providers must act promptly to comply with the ETS, as enforcement of many of its provisions begins on July 6, 2021. Some of the key provisions of the ETS are described below. Health care providers should contact BrownWinick’s health care and employment law attorneys for guidance now, before enforcement begins.

Scope and Application

The ETS applies to all settings where any employee provides healthcare services or healthcare support services. There are exceptions, however, and the ETS does not apply to:

  • The provision of first aid by an employee who is not a licensed healthcare provider;
  • The dispensing of prescriptions by pharmacists in retail settings;
  • Non-hospital ambulatory care settings where all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter;
  • Well-defined hospital ambulatory care settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter;
  • Home healthcare settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not present.

Certain provisions of the ETS, including requirements for personal protective equipment, physical distancing, and physical barriers, do not apply to fully vaccinated employees in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.

This is not an exhaustive list of all exceptions. You should contact a BrownWinick health care or employment law attorney to determine whether, and to what extent, the ETS applies to your business.

Mandatory Paid Time Off for Employees

The ETS requires employers to remove employees from the workplace under certain circumstances. When an employer removes an employee from the workplace under the ETS, the employer may be required to pay “medical removal protection benefits” to the removed employee.

Employers with 10 or fewer employees are exempt from providing these benefits, but employers with 11 or more employees are required to provide some form of paid leave to affected workers.

  • Employers with 11-499 employees:
    • Must continue to provide the benefits to which the employee is normally entitled.
    • Must pay the employee the same regular pay they would have received had they not been absent from work, up to $1,400 per week, for two weeks. Beginning the third week, the amount is reduced to only 2/3 of the same regular pay the employee would have received, up to $200/day.
  • Employers with 500+ employees:
    • Must continue to provide the benefits to which the employee is normally entitled.
    • Must pay the employee the same regular pay they would have received had they not been absent from work, up to $1,400 per week, until the employee meets the return to work criteria.

The employer’s payment obligation is reduced by the amount of compensation the employee receives from any other source, like paid sick leave, including any additional source of income the employee receives that is made possible by virtue of their removal from the workplace under the ETS.

When the employee returns to work after a COVID-19 related absence, the employer must not take any adverse action against the employee because of their removal. Further, to encourage COVID-19 immunity, employers must support vaccination for each employee by providing reasonable time and paid leave to each employee for vaccination and any side effects experienced following vaccination.

The ETS also introduces heightened notice requirements for employers and employees and recordkeeping and reporting requirements for employers.

Employers should refer to the full ETS for more details regarding paid leave, removal, screening, recordkeeping, reporting, and notification requirements, or contact a BrownWinick attorney for assistance.

Vaccinated Employee Removal Exception

Employers are not required to remove an employee from the workplace if either (1) the employee is asymptomatic and has been fully vaccinated against COVID-19, or (2) the employee had COVID-19 and recovered from it within the past three months. This is merely a summary of one portion of the ETS. Employers should refer to the full ETS or contact a BrownWinick attorney for assistance.

COVID-19 Training

Section N of the ETS requires employers to provide COVID-19 training to their employees. Required COVID-19 training is robust and will require a significant time investment by knowledgeable individuals. A key exception to training requirements is that when employees have previously been trained on topics covered in the ETS, retraining them is not necessary. Some of the pertinent training requirements are as follows:

  • Employers must train each employee on:
    • COVID-19, including how the disease is transmitted, the importance of hand hygiene, ways to reduce the risk of spreading COVID-19, and when to seek medical attention;
    • Employer-specific policies and procedures on patient screening and management;
    • Tasks and situations in the workplace that could result in COVID-19 infection;
    • Workplace-specific policies and procedures to prevent the spread of COVID-19 that are applicable to the employee’s duties;
    • Employer-specific policies and procedures for PPE worn to comply with the ETS;
    • Available sick leave policies, COVID-19 related benefits, other supportive policies, and practices;
    • The identity of safety coordinators from the COVID-19 plan; and
    • The ETS.

Training must be overseen or conducted by a person knowledgeable in the covered subject matter and must provide for interactive questions and answers with that person. Retraining is necessary when an employer changes its policies or when changes occur to the hazards presented by the workplace.

This list of training requirements is not exhaustive. Employers should refer to the full ETS or contact a BrownWinick attorney for assistance.

COVID-19 Plan

Covered employers are required to develop a new COVID-19 plan subject to the updated ETS requirements. Employers with 11 or more employees must put their plan in writing. The plan must:

  • Designate one or more workplace COVID-19 safety coordinators who are knowledgeable in infection control principles and practices as they apply to the workplace and job operations;
  • Include policies and procedures to determine employees’ vaccination status; and
  • Address hazards identified by the assessment, including policies and procedures to minimize the risk of transmission of COVID-19 for each employee.

When drafting the plan, employers must conduct a hazard assessment to identify potential workplace hazards related to COVID-19 and must communicate with employees (or their representatives) in developing the plan. Once implemented, employers must monitor the workplace to ensure ongoing effectiveness of the plan.

This is merely a summary of the COVID-19 Plan requirements from the ETS. Employers should refer to the full ETS or contact a BrownWinick attorney for assistance.

PPE, Physical Distancing, and Physical Barriers

The ETS mandates the use of personal protective equipment, including facemasks, respirators (during certain procedures,) protective gowns, eyewear, and more. Employers should ensure their current practices comply with the ETS’ heightened standards.

The ETS also contains requirements for ventilation control and maintenance, physical barriers, physical distancing, cleaning and disinfection, and other workplace safety matters. Employers should refer to the full ETS or contact a BrownWinick attorney for assistance.

Effective Date

The ETS was published in the Federal Register on June 21, 2021, and it became effective immediately.

Except for requirements related to physical barriers, ventilation, and training, the ETS requirements must be implemented within 14 days (July 6, 2021.) Physical barriers, ventilation, and training requirements must be implemented within 30 days (July 21, 2021.)

You can access the full ETS here. You can view the full Federal Register entry here. If you have any questions about implementing or complying with the ETS, contact any of the lawyers in BrownWinick’s health care or employment law practice groups.

Written by BrownWinick attorney Nate Borland, along with 2021 Summer Law Clerk Carter Albrecht