North State SHRM News & Legal Updates
Your source of relevant news in HR in the North State, California and nationwide.
Employers are getting creative with office design—signaling their support of employees’ comfort and well-being, and as a way to spur creativity.
Many business icons started out with humble beginnings, then turned their first jobs into stepping-stones toward astronomical success. They say it was those “seed planting” jobs they held as teenagers or 20-somethings that set the stage for long-term leadership growth.
Since the onset of the COVID-19 pandemic, non-essential employees across the U.S. have adjusted to working from home on a full-time basis. As companies plan for an eventual return to “normalcy,” many are navigating how to reintroduce their workforce to an office setting. However, the pandemic has seemingly demystified working from home, and many organizations…
A federal judge in Texas upheld a hospital system’s mandatory COVID-19 vaccination policy by dismissing a lawsuit that claimed vaccines against the coronavirus are experimental.
Almost six months after President Joe Biden directed the Occupational Safety and Health Administration to determine whether emergency temporary standards (ETS) concerning COVID-19 were necessary, OSHA finally issued the long-anticipated ETS late last week. In an interesting twist, however, the ETS applies only to employers who provide healthcare and healthcare support services. OSHA explained on June 10 that, despite the success of vaccines in helping address the pandemic, data shows that healthcare workers treating patients with suspected or confirmed COVID-19 remain at the highest risk of infection.
The ETS is effective immediately upon publication in the Federal Register, and healthcare employers must comply with most provisions within 14 days. You must comply with other provisions (involving physical barriers, ventilation, and training) within 30 days. It is unclear when the ETS will be published in the Federal Register, but healthcare employers subject to the ETS should start preparing now. Here are the seven key takeaways to ensure your workplace is in compliance with OSHA’s requirements.
First, Is Your Workplace Covered by the ETS?
The ETS applies, with some exceptions, to all settings where any employee provides healthcare services or healthcare support services. Thus, most healthcare settings – including hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in ambulatory care facilities where suspected or confirmed COVID-19 patients are treated – are subject to the ETS. It is also important to note that even though it may not be directly applicable to other employers, OSHA’s ETS and updated guidance for non-healthcare workplaces will still be helpful in preparing for how the agency may approach an inspection or investigation of their workplaces.
In issuing this new rule, OSHA focused on its belief that COVID-19 still poses a grave danger to unvaccinated employees, especially those most likely to be involved in caring for patients who have the virus. Thus, the ETS also excludes certain healthcare settings from the new standard. Specifically, the ETS does not apply to:
Additionally, where a healthcare setting is embedded within a non-healthcare setting – such as a medical clinic on an employer’s premises or a walk-in clinic in a retail store – the ETS only applies to the healthcare setting, not to the remainder of the physical location. Further, when an emergency responder or other licensed healthcare provider enters a non-healthcare setting to provide healthcare services, the ETS applies only to the provision of healthcare services by that employee.
As to those exceptions tied to whether “all employees” must be fully vaccinated – which the ETS considers to be at least two weeks after the final dose of a COVID-19 vaccine – OSHA recognizes that some employees may be unable to get vaccinated due to a medical condition or religious belief. In those instances, so long as the employer reasonable accommodates the employee who is unable to be vaccinated, the exception may still apply, so long as all other requirements are met.
The 7 Main Obligations for Covered Employers Under the ETS
Those employers subject to the ETS must familiarize themselves with the following seven main obligations springing from this latest development.
The ETS further requires, where feasible, the practice of social distancing and installation of cleanable or disposable solid barriers at fixed work locations in non-patient care areas where employees are not separated from others by at least six feet. You must also follow standard practices for cleaning and disinfection of surfaces and equipment in accordance with CDC guidelines. In addition, you must ensure that employer-owned or controlled existing HVAC systems are operating in accordance with the manufacturer’s instructions and design specifications and that all air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher if the system allows it.
You are also required to follow various requirements for the removal of employees who meet the above criteria and subsequently manage their return to work. If you have more than 10 employees, the ETS requires you to provide paid medical removal protection benefits to workers who must isolate or quarantine, meaning the employees must continue to receive the benefits to which they are normally entitled and their same regular compensation had they not been absent from work (up to $1,400/week). If an employee remains away from the workplace for more than two weeks, those employers with less than 500 employees may then pay just two-thirds of the employee’s regular pay (up to $200 per day). Moreover, the employer’s payment obligation is reduced by the amount of compensation an employee receives from any other source (e.g., paid sick leave, administrative leave) or any additional source of income the employee receives that is made possible by virtue of the employee’s removal. Finally, the ETS requires you to pay for testing as well.
Finally, you must report work-related COVID-19 fatalities and in-patient hospitalizations to OSHA. Fatalities must be reported within eight hours of learning about the fatality, and hospitalizations must be reported within 24 hours of learning about the hospitalization. This differs from the existing reporting requirements, as the requirement to report hospitalizations that occurred within 24 hours of a workplace exposure/incident have been removed. Instead, covered employers must now report COVID-19 hospitalizations even if the hospitalization occurs more than 24 hours after the workplace exposure. Similarly, the requirement to report COVID-19 deaths is not subject to the limitation on deaths within 30 days of the workplace exposure found in the existing reporting rule.
Once the ETS is published in the Federal Register, you only have 14 days to comply with most of the requirements discussed above. You should therefore act immediately and begin preparation of your COVID-19 plan to avoid related difficulties with OSHA. As a reminder, nothing in the ETS limits state or local government mandates or guidance that go beyond the ETS requirements.
Fisher Phillips will continue to monitor the status of the ETS, evolving interpretations, and any future revisions and provide updates as appropriate. Make sure you are subscribed to the Fisher Phillips’ Insight System to get the most up-to-date information. For further information, contact your Fisher Phillips attorney, the authors of this Insight, or any member of our Healthcare Practice Group or Workplace Safety Practice Group.
A Black former fire chief of Ontario, Calif., who was fired after working for the city for 30 years can go forward with his claim of racial discrimination, a California…
P.O. Box 494923, Redding, CA 96049
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