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New OSHA Guidance for Workplaces Not Covered by the Healthcare Emergency Temporary Standard

Client Alert

On June 10, 2021, OSHA issued an Emergency Temporary Standard (ETS) for occupational exposure to COVID-19, but it applies only to healthcare and healthcare support service workers. For a detailed summary of the ETS applicable to the healthcare industry, please visit https://youtu.be/vPyXmKwOzsk.

All employers not subject to the ETS should review OSHA’s contemporaneously released, updated Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. The new Guidance essentially leaves intact OSHA’s earlier guidance, but only for unvaccinated and otherwise at-risk workers (“at-risk” meaning vaccinated or unvaccinated workers with immunocompromising conditions). For fully vaccinated workers, OSHA defers to CDC Guidance for Fully Vaccinated People, which advises that most fully vaccinated people can resume activities without wearing masks or physically distancing, except where required by federal, state, or local laws or individual business policies.

OSHA reminds employers that they are subject to Section 5(a)(1) of the Occupational Safety and Health Act, commonly known as the “General Duty Clause,” which requires an employer to furnish a place of employment that is free from recognized hazards which are likely to cause death or serious physical harm. In other words, in the event a workplace outbreak of COVID-19 comes to the attention of OSHA, OSHA will scrutinize the employer’s COVID-19 mitigation plan to ensure that it is consistent with the new Guidance. If not, a General Duty Clause citation may be forthcoming.

The good news for employers is that existing COVID-19 policies developed and implemented in response to prior OSHA guidance should suffice under the new Guidance for unvaccinated and otherwise at-risk workers. Though nearly one-half of the U.S. population is fully vaccinated and state and local officials continue to ease COVID-19 restrictions, employers should be careful to not allow their COVID-19 policies and practices to become stale for unvaccinated workers and at-risk workers. For such workers, OSHA continues to recommend that employers:

  • Provide face coverings free of charge;
  • Separate from the workplace all persons who are infected, experiencing symptoms, or had close contact with someone with COVID-19;
  • Implement physical distancing;
  • Maintain ventilation systems;
  • Ensure proper use of face coverings or personal protective equipment where appropriate;
  • Perform routine cleaning and disinfect areas encountered by workers testing positive for COVID-19;
  • Install physical barriers where proper physical distancing cannot be maintained;
  • Provide training:
    • To managers on how to implement and monitor COVID-19 policies;
    • Frequently and “via multiple methods” to workers; and
  • Consider and implement where appropriate administrative mitigation strategies such as:
    • Telework;
    • Flexible schedules; and
    • Staggered shifts and breaks

The Guidance also emphasizes that employers should implement effective processes for workers to report COVID-19 concerns, including means to make such reports anonymously. OSHA also expects employers to clearly inform workers that they will be free from retaliation for voicing reasonable concerns to the employer, a government agency, or the public through print or social media outlets.

Though OSHA recording standards continue to require recording of work-related cases of COVID-19, the new Guidance reiterates that OSHA has suspended until at least May 2022 recording of adverse reactions to COVID-19 vaccines, even if the employer requires workers to receive a vaccine.

The new Guidance concludes with an Appendix which strongly encourages employers to implement steps for unvaccinated workers working in close contact to one another, such as on production or assembly lines. Such steps may include:

  • Staggering break times;
  • Staggering work shifts;
  • Providing temporary break areas and restrooms to avoid congregation of workers;
  • Maintaining at least 6 feet of separation from one another at all times, including breaks; or
  • Providing visual cues, such as floor markings and signs, to remind workers to maintain physical distancing.

For most employers, the above recommendations will sound very familiar and are most likely already included in the employer’s COVID-19 mitigation plan. But how do employers distinguish between vaccinated and unvaccinated workers? OSHA provides no answer and the “honor system” is likely insufficient.

Several states, such as Michigan and Washington, have provided guidance as to when an employer may deem a worker to be fully vaccinated and thus relieved of the state’s mandate that unvaccinated workers continue to wear face coverings. Michigan deems sufficient posting signs in the workplace reminding unvaccinated workers to wear masks. Washington requires formal evidence of vaccination, such as a copy of the worker’s vaccination card or an attestation from the worker.

Federal OSHA is silent on the issue, but one can reasonably infer that OSHA would not find acceptable the “honor system” or posting of signs. Unless an employer chooses to continue to enforce its COVID-19 plan for all workers, the employer should consider requiring workers to provide evidence of vaccination, such as a copy of the vaccination card or a sworn statement, before the worker will be relieved from face coverings, physical distancing, and other mitigation practices.

If you have any questions regarding the new Guidance or would like any assistance with your COVID-19 plan, please feel free to contact BMD Member Stephen Matasich at 330-253-9146 or sematasich@bmdllc.com.


“In for a Penny, in for a Pound” is No Longer the Case for Florida Lawyers

On April 1, 2024, newly adopted Rule 1.041 to the Florida Rules of Civil Procedures goes into effect which creates a procedure for an attorney to appear in a limited manner in civil proceedings.  Currently, when a Florida attorney appears in a civil proceeding, he or she is reasonable for handling all aspects of the case for their client.  This new rule authorizes an attorney to file a notice limiting the attorney’s appearance to particular proceedings or specified matters prior to any appearance before the court.  For example, an attorney can now appear for the limited purpose of filing and arguing a motion to dismiss.  Once the motion to dismiss is heard by the court, the attorney may file a notice of termination of limited appearance and will have no further obligations in the case.

Enhancing Privacy Protections for Substance Use Disorder Patient Records

On February 8, 2024, the U.S. Department of Health and Human Services (“HHS”) finalized updated rules to 42 CFR Part 2 (“Part 2”) for the protection of Substance Use Disorder (“SUD”) patient records. The updated rules reflect the requirement that the Part 2 rules be more closely aligned with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) privacy, breach notification, and enforcement rules as mandated by the Coronavirus Aid, Relief, and Economic Security Act of 2020.

Columbus, Ohio Ordinance Prohibits Employers from Inquiries into an Applicant’s Salary History

Effective March 1, 2024, Columbus employers are prohibited from inquiring into an applicant’s salary history. Specifically, the ordinance provides that it is an unlawful discriminatory practice to:

The Ohio Chemical Dependency Professionals Board’s Latest Batch of Rules: What Providers Should Know

The Ohio Chemical Dependency Professionals Board has introduced new rules and amendments, covering various aspects such as CDCA certificate requirements, expanded services for LCDCs and CDCAs, remote supervision, and reciprocity application requirements. Notable changes include revised criteria for obtaining a CDCA certification, expanded services for LCDCs and CDCAs, and updated ethical obligations for licensees and certificate holders, including non-discrimination, confidentiality, and anti-sexual harassment measures.

Governor Mike DeWine and The Ohio State University Introduce the SOAR Study on Ohio Mental Illness

On January 19, Ohio Gov. Mike DeWine and The Ohio State University announced a new research initiative, the State of Ohio Adversity and Resilience (“SOAR”) study, which will investigate all factors influencing Ohio’s mental illness and addiction epidemic.