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The Masks Are Back: New OSHA Regulations for Healthcare Employers

June 11, 2021

Employment Law After Hours is back with a News Break Episode. Yesterday, OSHA published new rules for healthcare facilities, including hospitals, home health employers, nursing homes, ambulance companies, and assisted living facilities. These new rules are very cumbersome, requiring mask wearing for all employees, even those that are vaccinated. The only exception is for fully vaccinated employees (2 weeks post final dose) who are in a "well-defined" area where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.

These new regulations also require the implementation of a compliant COVID-19 safety policy, COVID case record keeping for employees (regardless of whether the infection came from work or outside of work), and it discusses and requires many of the best practices most of our healthcare clients have followed since day one, among other requirements. Many of the regulations require implementation within 14 to 30 days, so your clients will want to speak with their OSHA expert as soon as possible. BMD has a few OSHA knowledgeable attorneys that can be available to answer questions/concerns. Your clients will want to implement these new requirements alongside their OSHA certified employees who handle existing OSHA issues/concerns.

Stephen Matasich, one of our resident OSHA attorneys, has also published a client alert for general industry employers other than healthcare.

What healthcare providers are specifically exempt from these new regulations?

  1. Non-Hospital Ambulatory Care Setting where (a) all non-employees are screened prior to entry, and (b) people with suspected or confirmed COVID-19 are not permitted to enter.
  2. Hospital Ambulatory Care Setting where (a) all employees are fully vaccinated, (b) all non-employees are screened prior to entry, and (c) people with suspected or confirmed COVID-19 are not permitted to enter.
  3. Home Healthcare Setting when (a) all employees are fully vaccinated, (b) all non-employees are screened prior to entry, and (c) people with suspected or confirmed COVID-19 are not permitted to enter.

The new OSHA regulations also require these employers to provide paid leave for vaccination obtainment, and its side effects, which we previously covered in an ELAH episode, link provided below. I also provided the link to the mandatory vaccine episode as healthcare clients may now desire to implement a mandatory vaccine policy given these new requirements.

Link to watch this Breaking News episode on the new OSHA requirements is here: https://youtu.be/vPyXmKwOzsk

Link to Paid COVID Leave (including Vaccination Obtainment) is here: https://youtu.be/NOv0_R_SMpg

Link to Episode on Mandatory Vaccine Policies is here: https://youtu.be/rWqGbOzWzWw and https://youtu.be/5CrBCjK2rv8 (with updated EEOC guidance).

For more information, please feel free to contact BMD Labor + Employment Partner Bryan Meek at bmeek@bmdllc.com or 330.253.5586.

Client Alert

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

May 19, 2022While 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).Client Alert

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

May 13, 2022Our 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.Client Alert

2021 EEOC Charge Statistics: Retaliation & Impact of Remote Work

May 11, 2022The 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.Client Alert

Ohio’s Managed Care Overhaul Delayed – New Implementation Timeline

May 4, 2022At the direction of Governor Mike DeWine, the Ohio Department of Medicaid (ODM) launched the Medicaid Managed Care Procurement process in 2019. ODM’s stated vision for the procurement was to focus on people and not just the business of managed care. This is the first structural change to Ohio’s managed care system since the Centers for Medicare & Medicaid Services' (CMS) approval of Ohio’s Medicaid program in 2005. Initially, all of the new managed care programs were supposed to be implemented starting on July 1, 2022. However, ODM Director Maureen Corcoran recently confirmed that this date will be pushed back for several managed care-related programs.Client Alert

Laboratory Specimen Collection Arrangements with Contract Hospitals - OIG Advisory Opinion 22-09

May 3, 2022On April 28, 2022, the Department of Health and Human Services, Office of Inspector General (“OIG”) published an Advisory Opinion[1] in which it evaluated a proposed arrangement where a network of clinical laboratories (the “Requestor”) would compensate hospitals (each a “Contract Hospital”) for specimen collection, processing, and handling services (“Collection Services”) for laboratory tests furnished by the Requestor (the “Proposed Arrangement”). The OIG concluded that the Proposed Arrangement would generate prohibited remuneration under the federal Anti-Kickback Statute (“AKS”) if the requisite intent were present. This is due to both the possibility that the proposed per-patient-encounter fee would be used to induce or reward referrals to Requestor and the associated risk of improperly steering patients to Requestor.
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