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The Masks Are Back: New OSHA Regulations for Healthcare Employers

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 herehttps://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.

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.

Employer Liability for COVID-19 Vaccine Side Effects

As employers encourage or require employees to obtain a COVID-19 vaccine, they should be aware of OSHA recording obligations and potential workers’ compensation liability. Though OSHA has yet to revise its COVID-19 guidance in response to the latest CDC recommendations, OSHA has revised its position regarding the recording of injury or illness resulting from the vaccine. Until now, OSHA required an employer to record an adverse reaction when the vaccine was required for employees and the injury or illness otherwise met the recording criteria (work-related, a new case, and meets one or more of the general recording criteria). OSHA has reversed course and announced that it will not require recording adverse reactions until at least May 2022, irrespective of whether the employer requires the vaccine as a condition of employment. In its revised COVID-19 FAQs, OSHA states:

The New Rule 1.510 - Radical Change for Summary Judgement Procedure in Florida

In civil litigation, where both sides participate actively, trial is usually required at the end of a long, expensive case to determine a winner and a loser. In federal and most state courts, however, there are a few procedural shortcuts by which parties can seek to prevail in advance of trial, saving time, money and annoyance. The most common of these is the “motion for summary judgment”: a request to the court by one side for judgment before trial, generally on the basis that the evidence available reflects that a win for that party is legally inevitable and thus required. Effective May 1, 2021, summary judgment procedure in Florida has radically changed.

Vacating, Modifying or Correcting an Arbitration Award Under R.C. 2711.13: Three-Month Limitation Maximum; Not Guaranteed Amount of Time

In a recent decision, the Supreme Court of Ohio held that neither R.C. 2711.09 nor R.C. 2711.13 requires a court to wait three months after an arbitration award is issued before confirming the award. R.C. 2711.13 provides that “after an award in an arbitration proceeding is made, any party to the arbitration may file a motion in the court of common pleas for an order vacating, modifying, or correcting the award.” Any such motion to vacate, modify, or correct an award “must be served upon the adverse party or his attorney within three months after the award is delivered to the parties in interest.” In BST Ohio Corporation et al. v. Wolgang, the Court held the three-month period set forth in R.C. 2711.13 is not a guaranteed time period in which to file a motion to vacate, modify, or correct an arbitration award. 2021-Ohio-1785.

EEOC Provides Updated Guidance Regarding Employer COVID-19 Vaccine Policies

On May 28, 2021, the U.S. Equal Employment Opportunity Commission updated its guidance regarding employer COVID-19 vaccination policies. The new guidance provides much-needed clarification of expectations for employers seeking to promote workplace safety and prevent the spread of COVID-19, including discussion of mandatory vaccination policies, voluntary vaccination incentives, and accommodation of employees based on disability or sincerely held religious beliefs. The full text of the update is found in Section K of the EEOC’s COVID Q&A document. You can also learn more about these and other developments from BMD's Bryan Meek and Monica Andress through the Employment Law After Hours YouTube channel, available here.