Special to the Ledger
The Occupational Safety and Health Administration’s recently published Emergency Temporary Standard went into effect July 6. The ruling outlines day-to-day COVID-19 safety protocols for health care workplace settings, including best practices according to Centers for Disease Control and Prevention guidance. Other issues, such as recordkeeping, patient screening, hazard assessment and the use of personal protective equipment are also stipulated.
The ETS applies specifically to health care providers and settings where patients receive related services, with limited exceptions. It does not apply to employers in general.
The list of changes to implement may include routines already in place as part of day-to-day work standards throughout the pandemic but their inclusion formalizes related logistics as official requirements.
Health care industry employers with more than 10 employees should take the following steps immediately for ETS compliance:
Find out if the ETS applies to your organization: Health care employers should consult OSHA’s interactive Employer Coverage Chart to determine if they are subject to the new rules. While the ETS requirements are for in-patient treatment facilities like hospitals, clinics, nursing homes and assisted living centers, employees like administrative leaders, maintenance workers and housekeeping personnel are also covered. Specialized outpatient services, including dentist offices and pharmacies, are not required to follow its tenets.
Create a detailed COVID-19 response plan: Consult with your employees to identify workplace hazards and develop a written outline of response procedures. A template with provisions pre-defined and ready for customization is available at www.osha.gov.
Implement ETS-mandated safety requirements: Make any necessary changes to operations to help mitigate the spread of COVID-19. Follow OSHA’s online checklists to ensure compliance.
Plan for the appropriate HR response for covered absences: Employers must provide Medical Removal Protection Benefits if an employee is absent from the workplace due to a positive COVID-19 test or related symptoms. The ETS stipulates regular pay and benefits for employers with more than 500 employees, up to $1,400 per week, until the employee meets official Return to Work criteria. The same requirements apply for employers with fewer than 500 employees, except that beginning in the third week of the employee’s removal, the payment is reduced to only two-thirds of the employee’s regular pay, up to $200 per day. Any requirement that an employee must use employer-funded sick or vacation leave prior to the application of the ETS medical removal protection benefits should be defined in the employer’s COVID-19 plan. An employer is under no obligation to provide these benefits to an employee refusing to take a COVID-19 test. An employer, however, must ensure that an employee is not subject to any adverse action for exercising their rights under the ETS.
Put OSHA’s ETS guidelines into practice with additional guidance found at https://www.osha.gov/coronavirus/ets.
The foregoing should not be understood as, or considered a substitute for, legal advice. For specific inquiries, please contact Jaycee Booth, Allen L. Hutson or another licensed attorney.
Jaycee Booth and Allen L. Hutson are attorneys with Crowe & Dunlevy, crowedunlevy.com, and members of the Labor & Employment Practice Group.