DOL Publishes Long Overdue COVID Safety Rules For Health Care Settings

Written by: Jacqueline Voronov, Esq and Robert Romeo

It has been well over a year since the start of the coronavirus pandemic, and the Department of Labor (“DOL”) has finally issued its highly anticipated COVID workplace safety rules.  In January 2021, President Joe Biden issued an Executive Order ordering the DOL to consider issuing an Emergency Temporary Standard (“ETS”) addressing COVID-19. After numerous delays, the final ETS was issued on June 10, 2021.  These regulations will only apply to health care settings, while all other businesses will have to follow optional safety guidelines from the Occupational Safety and Health Administration (“OSHA”) for their workforces.

What Does This New Standard Mean For Health Care Employers?

The ETS, a summary of which is available here, is aimed at protecting workers facing the highest COVID-19 hazards—those working in health care settings where suspected or confirmed COVID-19 patients are treated. This includes employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home health care workers; and employees in ambulatory care facilities where suspected or confirmed COVID-19 patients are treated. It does not apply to:

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

The new guidelines will require employers in the health care sector to maintain physical barriers, social distancing protocols, make sure that patients are properly screened for virus symptoms and give workers paid time off to get vaccinated and recover from vaccine side effects as encouragement to get the shot. Employers will also be required to craft a virus safety plan, screen workers prior to their shifts, provide masks and other personal protective equipment to employees for use in certain high-risk situations, ensure that masks are worn indoors and changed daily, and put in place ventilation procedures when dealing with patients who may have the virus, among other things.

Fully vaccinated health care workers don’t have to wear masks or adhere to masking or distancing requirements if they are in “well-defined areas where all employees are fully vaccinated” and where people who have or could potentially have the virus aren’t reasonably expected to be present.

Additionally, the ETS also requires employers to remove from workplaces any employee who tests positive for COVID-19, is suspected of being infected or is symptomatic for defined periods of time.  When that happens, health care employers with more than 10 people on staff must continue paying workers who can’t operate remotely their normal salary up to $1,400 a week for the first two weeks they are absent. Certain employers may be able to claim a tax credit or offset some of the cost through publicly funded programs like paid sick leave, according to the DOL.

Employers must comply with all provisions above except physical barriers, ventilation, and training within 14 days after the final rule is published in the Federal Register. Employers must comply with a physical barrier, ventilation, and training requirements within 30 days after the final rule is published in the Federal Register. However, OSHA said it would use “enforcement discretion” if employers are making “a good-faith effort” to adhere if they miss a deadline, according to the DOL, which said it would update the ETS as needed.

Employers that meet the definition of a “health care provider” under the ETS should immediately review the requirements of the ETS to assess compliance and be prepared to comply with its relatively short deadline of 14 days of its effective date.

Hall Booth Smith, P.C.’s labor and employment attorneys are available to answer any questions you may have on this or other employment law issues.

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