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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.


A Win for the Hospitals: An Update on the Latest 340B Lawsuit

On Wednesday, the Supreme Court unanimously rejected massive payment cuts to hospitals under the 340B drug discount program. Now, the Department of Health and Human Services no longer has the discretion to change 340B reimbursement rates without gathering data on what hospitals actually pay for outpatient drugs. This “straightforward” ruling was based on the text and structure of the statute, per the Supreme Court. Simply put, because HHS did not conduct a survey of hospitals’ acquisition costs, HHS acted unlawfully by reducing the reimbursement rates for 340B hospitals.

New Office of Environmental Justice Announced

The profound impacts of climate change, combined with environmental and industrial pollutions, have led the U.S. Department of Health and Human Services (HHS) to establish the Office of Environmental Justice (OEJ). The creation of OEJ aligns with President Biden’s Executive Order Tackling the Climate Crisis at Home and Abroad. The OEJ will be led by Sharunda Buchanan, a former official for the Center for Disease Control and Prevention and will target disadvantaged communities around the country in hopes of improving the health of those populations and preventing future harm.

New York, Kansas, Massachusetts, and Delaware Become the latest States to Adopt Full Practice Authority for Nurse Practitioners

While the COVID-19 pandemic certainly created many obstacles and hardships, it also created many opportunities to try doing things differently. This can be seen in the instant rise of remote work opportunities, telehealth visits, and virtual meetings. Many States took the challenges of the pandemic and turned them into an opportunity to adjust the regulations governing licensed professionals, including for advanced practice registered nurses (APRNs).

Explosive Growth in Pot of Gold Opportunity for Bank (and Other) Cannabis Lenders Driving Erosion of the Barriers

Our original article on bank lending to the cannabis industry anticipated that the convergence of interest between banks and the cannabis industry would draw more and larger banks to the industry. Banks were awash in liquidity with limited deployment options, while bankable cannabis businesses had rapidly growing needs for more and lower cost credit. Since then, the pot of gold opportunity for banks to lend into the cannabis industry has grown exponentially due to a combination of market constraints on equity causing a dramatic shift to debt and the ever-increasing capital needs of one of the country’s fastest growing industries. At the same time, hurdles to entry of new banks are being systematically cleared as the yellow brick road to the cannabis industry’s access to the financial markets is being paved, brick by brick, by the progressively increasing number and size of banks that are now entering the market.

2021 EEOC Charge Statistics: Retaliation & Impact of Remote Work

The U.S. Equal Employment Opportunity Commission (EEOC) released its detailed information on workplace discrimination charges it received in 2021. Unsurprisingly, for the second year in a row, the total number of charges decreased as COVID-19 either shut down workplaces or disconnected employees from each other. In 2021, the agency received a total of approximately 61,000 workplace discrimination charges - the fewest in 25 years by a wide margin. For reference, the agency received over 67,000 charges in 2020, and averaged almost 90,000 charges per year over the previous 10 years.