The Occupational Safety and Health Administration (OSHA) issued a COVID‑19 Emergency Temporary Standard (ETS) on Thursday, June 10, 2021, for employers in the health care sector. OSHA issued the ETS in response to the Executive Order on Protecting Worker Health and Safety signed by President Joe Biden in January. The ETS takes effect on the date it is published in the Federal Register. That date has yet to be determined. The ETS contains a number of work-place safety requirements for covered employers, including infection control measures, paid leave and training.
The ETS broadly applies to employers who provide “healthcare services or healthcare support services.” “Healthcare services” include services provided by professional health care practitioners (e.g., doctors, nurses, emergency medical personnel and oral health professionals) for the purpose of promoting, maintaining, monitoring and/or restoring health, and performing autopsies. “Healthcare support services” include services that facilitate the provision of health care services, including patient/intake admission, patient food services, equipment and facility maintenance, housekeeping services, health care laundry services, medical waste handling services and medical equipment cleaning/reprocessing services. The ETS also applies to health care settings embedded within a non-health care setting (e.g., a medical clinic in a manufacturing facility or a walk-in clinic in a retail setting). Certain workplaces are excluded from the ETS’ scope, such as pharmacies, off-site health care support settings, and health care settings where all employees are fully vaccinated and non-employees who may have COVID‑19 are barred from entering the workplace. Moreover, non-hospital ambulatory care settings are excluded from the ETS’ scope where non-employees suspected or confirmed with COVID‑19 are prevented from entering those settings.
COVID‑19 Infection Control Measures
The ETS requires covered employers to implement and maintain a number of COVID‑19 infection control measures, including, without limitation:
Develop a COVID‑19 preparedness and response plan and designate COVID‑19 safety coordinators to implement and monitor the plan.
Limit and monitor points of entry in direct patient care settings and screen individuals entering such settings.
Provide and require employees to wear facemasks or other PPE while working, with limited exceptions.
Implement social distancing.
Install physical barriers where required.
Clean and disinfect measures.
Maintain adequate ventilation systems.
For employers with more than 10 employees, maintain records of all versions of the COVID‑19 preparedness and response plan developed to comply with the ETS, as well as records of positive COVID‑19 cases.
Paid Leave for Isolation and COVID‑19 Vaccinations
In addition to the measures identified above, the ETS requires employers with 10 or more employees to provide paid leave to employees under certain circumstances. Employers must provide paid leave and related benefits to employees who are required to isolate because of confirmed cases of COVID‑19 or have been told by their health care providers that they are suspected of having COVID‑19. Also included are employees who are experiencing a recent loss of taste and/or smell with no other explanation, or an onset of a fever and a new unexplained cough associated with shortness of breath. Under such circumstances, the employer must continue to provide the benefits to which the employee is normally entitled and pay the employee the same regular pay the employee would have received had the employee not been absent from work, up to $1,400 per week, until the employee meets the return to work criteria specified in the ETS. Moreover, employers with more than 10 but fewer than 500 employees must pay an isolated employee up to the $1,400 per week cap. However, beginning the third week of an employee’s removal, the amount is reduced to only two-thirds of the same regular pay the employee would have received had the employee not been absent from work, up to $200 per day ($1,000 per week in most cases). Employees with suspected or confirmed cases of COVID‑19 who refuse to be tested for COVID‑19 are generally unable to receive paid leave during their isolation period.
A covered employer’s payment obligation is reduced by the amount of compensation that the employee receives from any other source, such as a publicly or employer-funded compensation program (e.g., paid sick leave, administrative leave), for earnings lost during the period of removal or any additional source of income the employee receives that is made possible by virtue of the employee’s removal.
Finally, all employers covered by the ETS must support employees’ efforts to get a COVID‑19 vaccination by providing reasonable time and paid leave (e.g., paid sick leave, administrative leave) to employees for vaccination and any side effects experienced following vaccination.
Employees must be trained on the spread of COVID‑19, including any measures maintained by employers to prevent the virus from spreading, such as the use of personal protective equipment, available sick leave policies, cleaning and disinfection procedures and specific procedures adopted by the employer.
Impact on Michigan Employers in Health Care Settings
Michigan employers in the health care sector may be wondering how the ETS impacts their current workplace safety obligations towards employees given that their operations are already covered by MIOSHA’s Emergency Rules on COVID‑19 (Emergency Rules). Under federal law, MIOSHA must either amend its Emergency Rules to be identical or “at least as effective” as the ETS, or show that its Emergency Rules are already at least as effective as the ETS. Since that is presently not the case, MIOSHA will have 30 days from the effective date of the ETS to determine what actions it will take.
Warner’s Labor and Employment Practice Group will continue to monitor developments on this issue and will provide updates as new information becomes available. In the meantime, if you have questions about how to best protect your workplace from the spread of COVID‑19, please contact any member of Warner’s Labor and Employment Practice Group.