On January 21, 2021, President Biden issued an Executive Order on Protecting Worker Health and Safety. The order directed the Occupational Safety and Health Administration (OSHA) to take action to reduce the risk that workers may contract COVID-19 in the workplace. On June 10, 2021, OSHA announced a highly-anticipated Emergency Temporary Standard (ETS) setting forth steps that employers in the healthcare industry must take to protect workers from COVID-19 risks while the pandemic is ongoing. The ETS will become effective 14 days after it is formally published in the Federal Register.

Healthcare Services and Healthcare Support Services

The ETS requires employers in settings that provide healthcare services or healthcare support services—such as hospitals, long-term care, home health and hospice care, emergency medical response, ambulatory care, patient transport, patient food services, equipment and facility management, healthcare laundry services, and medical waste handling services—to, among other things, ensure use of face masks, gloves and other Personal Protective Equipment (PPE) (i.e., respirators), maintain social distancing protocols, clean and disinfect pursuant to CDC guidelines, properly ventilate work areas, properly screen employees and patients for COVID-19 symptoms, limit and monitor points of entry to locations where direct patient care is provided, and install solid barriers in non-patient care areas.

Exceptions to many of the requirements of the ETS exist for fully vaccinated workers in “well-defined areas” where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present, i.e., where employees are fully vaccinated, all non-employees are screened prior to entry, and people with suspected or confirmed COVID-19 are prohibited. Under such circumstances, if fully-vaccinated employees are in such well-defined areas, the fully-vaccinated employees do not have to wear masks or adhere to distancing requirements. The ETS requires employers to determine whether an employee is fully vaccinated, but provides little guidance on how to accomplish this task, beyond stating that employers may rely on vaccination cards and possibly employee attestations of full vaccination.

Mini Respiratory Protection Program

The ETS has implemented a “mini respiratory protection program” (MRPP) which applies to specified circumstances, i.e., when a respirator is not required, but is provided by an employer instead of a face mask for enhanced worker protection. Under the MRPP, an employer must ensure that each employee that opts to wear a respirator receives proper training prior to first use; ensure that respirators are properly sealed to each employee’s face; ensure that respirators used by a particular employee are only reused by that same employee and that the respirator is still in adequate condition upon reuse; and require employees to discontinue use of a respirator when the employee exhibits signs or symptoms that are related to the ability to use a respirator (e.g. shortness of breath, coughing, wheezing, chest pain or any other symptoms related to lung problems or cardiovascular symptoms).

The MRPP does not replace OSHA’s Respiratory Protection Standard (RPS), which still applies in all instances where the employee is required to wear a respirator, i.e., when performing aerosol generating procedures, when exposed to persons with suspected or confirmed cases of COVID-19, and for Standard and Transmission-Based Precautions in accordance with the CDC’s “Guidelines for Isolation Precautions.” The MRPP dispenses with some of the more formal requirements of the RPS, such as fit-testing and medical evaluations. Employers may permit employees to use their own respirator so long as the employer provides the employee with a notice regarding proper use, maintenance, cleaning and care, and warnings about the respirator’s limitations and when a respirator should not be utilized.

COVID-19 Plans and Safety Coordinators

The ETS requires healthcare employers to develop and implement a COVID-19 safety plan and specific policies and procedures. The COVID-19 safety plan must include a designated safety coordinator, a workplace-specific hazard assessment, involvement of non-managerial employees in hazard assessment and plan development, and policies and procedures to minimize the risk of transmission of COVID-19 to employees. The plan must be in writing if more than 10 employees are employed. Additionally, healthcare employers must develop and implement policies and procedures to adhere to Standard and Transmission-Based precautions based on CDC guidelines.

Paid Time Off for Vaccination and Side Effects

Healthcare employers must also support vaccination for employees by providing reasonable paid time off for employees to get vaccinated and recover from any vaccine side effects.

Recordkeeping and Reporting

Existing OSHA recordkeeping and reporting obligations related to the virus remain in effect as well. However, if the employer employs more than 10 employees, all instances of COVID-19 infection must be recorded on a COVID-19 log without regard to whether the exposure was work-related. The ETS’s requirement is distinct from OSHA’s current requirement that only work-related COVID-19 infections be recorded on OSHA Forms 300, 300A, and 301. Under the ETS, work-related COVID-19 infections still need to be recorded on OSHA Forms 300, 300A, and 301, and, as a result, employers are still required to determine the source of an employee’s infection for those purposes. All employers, regardless of how many employees are employed, are required to report to OSHA each work-related COVID-19 fatality and inpatient hospitalization.

Impacted employers are encouraged to review and update existing policies and procedures, and implement any required policies and procedures, to ensure compliance with their obligations under the ETS. We will keep you informed of further developments, including the ETS’s effective date. In the meantime, Murtha Cullina’s attorneys are prepared to provide guidance on these and related issues.

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Photo of Salvatore G. Gangemi Salvatore G. Gangemi

Salvatore G. Gangemi is a Partner in the Litigation Department of Murtha Cullina and a member of the Labor and Employment Practice Group. He advises clients with respect to state, federal and local employment laws. In addition, he litigates matters involving misappropriation of…

Salvatore G. Gangemi is a Partner in the Litigation Department of Murtha Cullina and a member of the Labor and Employment Practice Group. He advises clients with respect to state, federal and local employment laws. In addition, he litigates matters involving misappropriation of trade secrets, restrictive covenants, breach of employment contract, fiduciary duty, and other work-related common law claims. Sal also counsels clients on day-to-day issues involving workplace management and administration, including requests for reasonable accommodation for disabilities, for family and medical leave, and wage and hour issues.  He conducts employment law training on a variety of topics, including sexual harassment prevention and wage/ hour compliance.  He also drafts employment policies and agreements, and assists clients in auditing worker classification practices and policies both in the context of the Fair Labor Standards Act and state laws governing independent contractor determinations.

Photo of Stephanie S. Sobkowiak Stephanie S. Sobkowiak

Stephanie Sobkowiak is a member of the Firm’s Executive Committee, Co-Chair of the Firm’s Health Care Practice Group and prior Chair of the Firm’s Regulatory Department.  Stephanie’s practice includes representation of health systems, hospitals, physicians, physician groups and other clients in the health…

Stephanie Sobkowiak is a member of the Firm’s Executive Committee, Co-Chair of the Firm’s Health Care Practice Group and prior Chair of the Firm’s Regulatory Department.  Stephanie’s practice includes representation of health systems, hospitals, physicians, physician groups and other clients in the health care industry. Her practice includes assisting those clients with a wide range of compliance, regulatory, managed care, risk management and reimbursement issues, including fraud and abuse, payor contracts, medical staff and credentialing matters, Certificates of Need and HIPAA and related security breaches.

Stephanie has experience assisting health care clients with a wide variety of contracts, from physician and physician extender employment agreements to service agreements and medical staff bylaws and related documents. She has negotiated numerous managed care agreements and counseled clients on a variety of issues related to payor relationships. She has drafted and negotiated numerous purchase and sale transactions for health care clients. She has also worked with physicians and other practitioners involved in matters before the Department of Public Health and with other health care providers involved in a variety of Medicare/Medicaid matters. She has lectured on meaningful use of electronic health records and general medical records issues as well as various other CMS and state law requirements.

Beginning her legal career as an associate in the Firm’s Corporate and Health Care Departments, Stephanie also worked with Jeffers Cowherd P.C. where she practiced health care as well as promotions and marketing law. Her promotions and marketing practice includes client counseling, contract negotiation and preparation of sweepstakes and contest rules, including campaigns run through social media.

Stephanie received her B.S. summa cum laude from the University of Delaware and received her J.D. from Boston College Law School.

Photo of Heather O. Berchem Heather O. Berchem

As Chair of the Firm’s Regulatory Department, Long-Term Care Practice Group and a member of the Health Care and Information Security and Privacy Practice Groups, Heather Berchem advises nursing homes, assisted living communities, CCRCs, hospitals, and home health care and hospice agencies on…

As Chair of the Firm’s Regulatory Department, Long-Term Care Practice Group and a member of the Health Care and Information Security and Privacy Practice Groups, Heather Berchem advises nursing homes, assisted living communities, CCRCs, hospitals, and home health care and hospice agencies on a wide range of regulatory, compliance, risk management and reimbursement issues.  Her practice includes assisting clients in both Connecticut and Massachusetts with licensure; certificates of need; changes of ownership; Medicare and Medicaid audits and appeals; informal dispute resolution and other survey and certification issues; HIPAA compliance; investigation and reporting of security breaches; contract and policy drafting and review; developing and implementing corporate compliance programs; and responding to subpoenas and investigations by federal and state agencies.

Heather serves as counsel to the Connecticut Association of Health Care Facilities and the Connecticut Assisted Living Association. She serves on the American Health Care Association’s National Legal Committee, is a contributing author of Fifty State Survey of Certificate of Need and Licensure: Nursing Homes, Assisted Living, Home Health, and Hospice and a co-author of the “Assisted Living Communities and Continuing Care Retirement Communities” chapter in The Post-Acute Care Handbook: Regulatory, Risk and Compliance Issues, both published by the American Health Lawyers Association.  Heather has lectured on a wide variety of long-term care and health care topics both at the state and national level.  She also served as a member of the Editorial Advisory Board for the American Health Lawyers Association’s (“AHLA”) LTC-SIR Advisor.  Heather is listed as a leading healthcare lawyer in Chambers USA, Chambers & Partners-Publishing (ChambersandPartners.com) and in Connecticut Super Lawyers®.

Heather received her B.A. from the University of California at Berkeley and her law degree from Boston University School of Law. Prior to joining Murtha Cullina in 1997, she was an associate at Schwartz, Shaw & Griffith in Boston, MA, where she handled health care criminal defense matters. Heather is admitted to practice in Connecticut and Massachusetts.

Photo of Emily McDonough Souza Emily McDonough Souza

Emily McDonough Souza is an Associate in the Litigation Department and the Labor and Employment Practice Group of Murtha Cullina LLP.  Her experience includes representing clients in a broad range of disputes involving insurance coverage, business torts, and contractual rights, as well as…

Emily McDonough Souza is an Associate in the Litigation Department and the Labor and Employment Practice Group of Murtha Cullina LLP.  Her experience includes representing clients in a broad range of disputes involving insurance coverage, business torts, and contractual rights, as well as representing employers in claims involving discrimination and retaliation, breach of non-compete and restrictive covenants, and wage and hour violations.  Emily has regularly appeared on behalf of clients in both state and federal court matters, including oral arguments, mediations, depositions, and pretrial conferences.

Prior to joining Murtha Cullina, Emily clerked for the Honorable Eliot D. Prescott of the Connecticut Appellate Court.  She received her J.D. magna cum laude from Quinnipiac University School of Law, where she served as the Executive Managing Editor of the Quinnipiac Law Review. Emily earned her B.S. magna cum laude from the University of Connecticut, where she was a member of the Honors Program.

Photo of Arielle M. Smitt Arielle M. Smitt

Arielle M. Smitt is a member of the Firm’s Health Care and Tax-Exempt Organizations Practice Groups. She assists hospitals, physicians, physician practice groups, social service providers, and other for-profit and nonprofit health care providers with a variety of health care regulatory, corporate, and

Arielle M. Smitt is a member of the Firm’s Health Care and Tax-Exempt Organizations Practice Groups. She assists hospitals, physicians, physician practice groups, social service providers, and other for-profit and nonprofit health care providers with a variety of health care regulatory, corporate, and business issues.

Arielle has experience advising on Federal and State regulatory compliance and government investigations and audits, the Certificate of Need process, licensing, and accreditation, practitioner licensure, Medicare and Medicaid compliance and reimbursement, fraud and abuse matters, and HIPAA and privacy compliance. She also has experience assisting physician and physician practices with medical staff issues, including drafting physician employment agreements.

For nonprofit providers, Arielle also assists with filing for recognition of tax exemption, board management issues, and general operational issues.

Arielle received her J.D., magna cum laude, from Quinnipiac University School of Law where she served as the Executive Managing Editor for the Health Law Journal. Arielle received her B.S., magna cum laude, from Northeastern University. She is a member of the American Health Lawyers Association.