New England Biz Law Update
A new federal rule that requires health care employers to take certain steps to protect their workers in settings where suspected or confirmed COVID-19 patients are treated has raised concerns.
The Occupational Safety and Health Administration published the emergency temporary standard June 21, setting a July 6 deadline for employers to comply with most provisions.
“The rule is 900 pages,” said Jaycee Booth, an Oklahoma City labor and employment attorney. “There are just so many parts to it and that’s a concern to employers.”
What previously were guidelines for hospitals and health care providers have become “full-on mandatory requirements,” Booth said.
“The most shocking thing is the pay,” she said. “We were very surprised by that. We thought the COVID pay was done.”
The Families First Coronavirus Response Act guaranteeing employees paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 expired Dec 31, 2020.
The new OSHA rule requires covered employers to provide Medical Removal Protection Benefits when an employee is removed from the workplace due to a positive COVID-19 test or COVID-19 exposure.
It applies to all workers from doctors to cafeteria staff, Booth said.
Hospitals and health care facilities must pay removed workers $1,400 a week until they return to work. Those that employ fewer than 500 people can reduce the amount after two weeks if the employee is still unable to return.
“That payment amount is required no matter how many times an employee contracts or has exposure to COVID,” Booth said.
It could be a big financial weight on employers, she said. To ease that, employers can require workers to take any accumulated paid time off benefits first.
The American Hospital Association noted several concerns regarding the new rule and urged its members to submit a letter to OSHA by the July 21 comment deadline.
In an advisory, AHA noted some requirements contradict or go beyond what the Centers for Disease Control and Prevention recommends “in some instances, in ways that may put health care workers at greater risk.”
“We also are disappointed by the unrealistically short compliance period, and the significant costs and additional resources that the rule will impose on hospitals without adequate rationale that these measures will better protect staff,” the advisory states.
The new OSHA rule on identifying and controlling COVID-19 hazards is a response to President Joe Biden’s executive order on “Protecting Worker Health and Safety.”
It generally applies to workplaces that provide health care services or health care support services. But it does not apply to many related operations such as retail pharmacies, telehealth services and hospital services performed outside of a setting where direct patient care occurs (off-site laundry, off-site medical billing).
“It can be very nuanced,” Booth said. She suggests employers have an attorney review their COVID-19 policy and plan to ensure they comply.
Booth said employers can read the information on the OSHA website to determine if they are covered and need to develop and implement a COVID-19 plan and can use the checklist to see if they already are doing everything required.
Health care facilities likely are doing most of what the rule requires but may need to step up where they have cut back on some protocols, she said.
“The evidence clearly shows that hospitals and health systems have successfully protected their employees from COVID-19 throughout the public health emergency,” the AHA stated. “Indeed, it was their top priority.”
