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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

June 24, 2021

COVID-19 Workplace Safety Bill Issued for Health Care Workers

Pursuant to President Biden’s January 21, 2021, Executive Order on Protecting Worker Health and Safety during the COVID-19 pandemic, the United State Department of Labor, Occupational Safety and Health Administration (OSHA), issued its COVID-19 Workplace Safety Rule on Thursday, June 10, 2021. This new rule will be published in the Federal Register on June 21, has been promulgated as an Emergency Temporary Standard (ETS), and will include minimum mandatory requirements for certain health care settings. This new rule does not apply to every workplace, but rather applies to employees in health care settings who are at risk of exposure to people who may have COVID-19. In addition, OSHA released new guidance for all employers on mitigating and preventing the spread of COVID-19. For employers in New York State not covered by the ETS, the New York HERO Act also imposes health and safety obligations as discussed in our previous alert.

Health Care Settings

The ETS applies to “all settings where any employee provides health care services or health care support services.” This includes hospitals, nursing homes, assisting living facilities, emergency responders, home health care workers, employees in ambulatory care facilities, and private medical practices, among others, unless they fall under one of the following exceptions:

  • The provision of first aid by an employee who is not a licensed health care provider
  • The dispensing of prescriptions by pharmacists in retail settings
  • Nonhospital ambulatory settings where all nonemployees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings
  • Well-defined hospital ambulatory settings where all employees are fully vaccinated and all nonemployees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings
  • Home health care settings where all employees are fully vaccinated and all nonemployees are screened prior to entry and people with suspected or confirmed COVID-19 are not present
  • Health care support services not performed in a health care setting (e.g., off-site laundry, off-site medical billing)
  • Telehealth services performed outside of a setting where direct patient care occurs

In order to assist employers in determining whether and how they are covered by the ETS, OSHA has developed a flowchart.

Safety Standard Requirements

For those health care settings that fall within the ETS, there are several requirements that must be put in place. Health care employers must develop and implement a COVID-19 plan that includes a designated safety coordinator, a hazard assessment for the specific workplace, and other policies and procedures to minimize risk of transmission of COVID-19. In addition, there must be patient screening and management at limited points of entry.

Vaccinated Employees and Defined Areas

The PPE, physical distancing, and physical barrier provisions of the ETS do not apply to fully vaccinated employees while in well-defined areas of workplaces that are listed in the exemptions. However, all other provisions of the ETS apply (assuming no other exception applies). To meet this exemption, your COVID-19 plan must include policies and procedures to determine your employees’ vaccination status.

Barclay Damon attorneys will continue to closely follow developments relating to the COVID-19 Workplace Safety Rule. Meanwhile, employers should continue to monitor guidelines from state and local authorities.

If you have any questions regarding the content of this alert, please contact Margaret Surowka, counsel, at msurowka@barclaydamon.com, or another other member of the firm’s Labor & Employment Practice Area.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com, or any member of the COVID-19 Response Team, at COVID-19ResponseTeam@barclaydamon.com.

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