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Everything you need to know about BMD and the industry.

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

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.

Changes to Physician Assistant Statutes in Florida

In the last year, there have been many changes to the scope of practice and collaboration/supervision requirements for advanced practice providers such as APRNs and physician assistants in the state of Florida. In a previous Client Alert we discussed House Bill 607, which expanded the autonomous practice of APRNs providing primary care services in Florida.

Ohio Senate Bill 49 – Ohio Expands Lien Rights for Design Professionals

Effective September 30, 2021, Ohio granted limited lien rights to design professionals, including architects, landscape architects, engineers, and surveyors. Ohio Governor Mike DeWine signed Senate Bill 49 into law on July 1, 2021. This new law established a statutory right to lien commercial real estate by Ohio design professionals who, until now, could not file a lien for non-payment of professional services. Senator Vernon Sykes, a primary sponsor of Senate Bill 49, stated that the “legislation ensures that architects, engineers and other designers will get paid for their work, regardless of the outcome of their projects . . . It will support hardworking Ohioans by protecting the value of their labor . . ..”

Primary Care Practice Officially Defined in Florida for APRNs Practicing Autonomously

As many providers in Florida are aware, House Bill 607 (the “Bill”), which was passed in February of last year, gives certain APRNs in Florida the ability to practice autonomously. The only catch is that they must work in primary practice. When the Bill was initially passed, there was question as to what was exactly considered primary care, absent a definition from the Florida Board of Nursing. However, as of February 25, 2021, “primary care practice” has officially been defined.

Part II of the No Surprises Act

The Department of Health and Human Services (“HHS”) published Part II of the No Surprises Act on September 30, 2021, which will take effect on January 1, 2022. The new guidance, in large part, focuses on the independent dispute resolution process that was briefly mentioned in Part I of the Act. In addition, there is now guidance on good faith estimate requirements, the patient-provider dispute resolution processes, and added external review provisions.

Safer Federal Workforce Task Force - Guidance for Federal Contractors and Subcontractors

The Safer Federal Workforce Task Force has issued its Guidance for Federal Contractors and Subcontractors (Guidance). Note that the Guidance applies only to “covered contracts,” which are contracts that include the clause (Clause) set forth in Sec. 2(a) of Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Federal Contractors). The Federal Acquisition Regulatory Council (FARC) is to conduct rulemaking and take related action to ensure that the Clause is incorporated into federal contracts. Until that happens, federal contractors likely will not see the Clause in its contracts. Following is a broad summary of the Guidance.