Home Health & Hospice Week

ETS publication in the Federal Register starts compliance countdown.

There are a lot of new requirements in the Occupational Safety and Health Administration’s COVID-19 emergency temporary standards (ETS) interim final rule, and now providers know when they’ll have to comply with them.

OSHA released the long-awaited ETS rule on June 10, but compliance deadlines were based on the rule’s publication in the Federal Register. That official publication date was June 21, meaning the requirements with 14-day dates are effective July 5, and 30-day dates are effective July 21.

July 5 deadlines include those for a COVID-19 plan; paid leave; personal protective equipment (PPE); anti-retaliation protections; a COVID-19 log; reporting COVID-19-related hospitalizations and fatalities to OSHA; and employee notification of other worker cases, point out attorneys Courtney Malveaux, Jennifer Bologna, and Patricia Anderson Pryor with law firm Jackson Lewis.

July 21 deadlines include those for employee training; physical workstation barriers; and effective ventilation, Malveaux, Bologna, and Anderson Pryor say in online analysis.

One of the costlier and more controversial ETS provisions is the paid leave benefit for workers removed due to COVID. Under the “health screening and medical management” requirements, healthcare employers with more than 10 employees must “provide medical removal protection benefits in accordance with the standard to workers who must isolate or quarantine,” OSHA explains in an ETS fact sheet.

Removal: Specifically, the employer must “immediately remove any employee who is positive for COVID-19 … any employee who has been told by their healthcare provider that they are suspected to have COVID-19 and any employee who is experiencing certain COVID-19 symptoms,” OSHA says in the ETS interim final rule. “In addition, the employer must remove any employee who has had close contact with someone in the workplace who is COVID-19 positive (unless the employee has either been fully vaccinated or has recently recovered from COVID-19),” the rule continues.

More details about removal requirements are in the 98-question ETS Frequently Asked Question set at www.osha.gov/coronavirus/ets/faqs.

Return: For the COVID-positive or -suspected employees, “the employer must ensure that any such employee is kept out of the workplace until they either meet the return to work criteria or they test negative for COVID-19 based on a polymerase chain reaction (PCR),” OSHA specifies. For those who are unvaccinated and in close contact with a COVID-positive person at work, they “must be removed for 14 days or until they test negative for COVID-19 via a test provided at least 5 days after the exposure and paid for by the employer,” the rule details.

While those employees are out, OSHA now requires medical removal protection benefits. “The employer must continue to pay the employee’s normal earnings, as though the employee were still at their regular job, up to $1,400 a week for the first two weeks,” the rule says. “If employees remain sick after that first two-week period and must stay out longer, employers with fewer than 500 employees are only required to pay two thirds of regular pay, up to $200 per day, after the initial 10 working days.” That totals $1,000 per week in most cases, explain attorneys Megan Baroni, Lisa Boyle, Conor Duffy, and Jonathan Schaefer with law firm Robinson & Cole. Providers with fewer than 10 employees have to follow the same removal guidance, but don’t have to pay the employees.

Employers may “require employees who are removed from the workplace … to work remotely or in isolation when suitable work is available,” OSHA adds. However, “if an employee is too ill to work due to COVID-19, remote work should not be required; and sick leave or other leave should be made available as consistent with the employer’s general policies and any applicable laws,” OSHA says in its ETS FAQs.

Caveat: “Pay during removal can be offset with any employer or public benefits, such as paid leave or workers’ compensation, until the employee meets the return to work criteria,” OSHA clarifies. And “the requirement to pay the employee terminates if the employer offers a COVID-19 test at least five days after the exposure and the employee refuses to take it,” the rule adds.

Another caveat: If the employee was wearing a respirator during the close contact, they do not have to be removed, OSHA clarifies in the rule.