OSHA’s Emergency Rule may Affect Employer’s Benefit Plans

On June 10, 2021, The Department of Labor’s Occupational Safety and Health Administration (OSHA) announced the forthcoming issuance of an emergency temporary standard (ETS) establishing workplace safety standards for healthcare employers for the duration of the pandemic.

Considerations offered by OSHA in their 900+ page rule may affect an employer’s health plan benefits or employment policies, especially where recommendations suggest provision of PTO and remote work policies. Read below for highlights as applied to healthcare and non-healthcare employers, effective the date it is published in the Federal Register, not as yet determined.

Healthcare employers (unless all workers are fully vaccinated and those with COVID-19 are barred from the workplace) must comply with the following within two weeks, and up to a month, after the rule takes effect:

• Create a written safety protocol if the employer has 10+ employees
• Maintain social distancing protocols, screen patients for the coronavirus, and provide paid time off for employees to secure a vaccine (and recover from the vaccine side effects as incentive to be vaccinated).
• Screen workers before shifts; provide personal protective equipment in certain situations; ensure masks are worn indoors; and provide proper ventilation for patients suspected of having the virus, among other precautions.
• Remove employees from the workplace who: test positive for COVID-19; are symptomatic for a period; or are suspected of being infected.
• For employers with 10+ employees, and for employees removed from workplaces, continue to pay staff their normal salary (who can’t operate remotely) up to $1,400 a week for the first two weeks of absence. Consult counsel to learn what tax credits may apply to these workers.

Non-Healthcare Employers were provided a series of voluntary guidelines for consideration:

• Loosening guidance for fully vaccinated persons, in alignment with the CDC’s guidance.
• For workers who are not fully vaccinated or otherwise deemed “high-risk, ” the DOL suggested: granting paid time off to secure a vaccination; provide masks and other PPE at the workplace; encourage those in contact with infected persons to remain at home; and implement onsite workplace strategies such as spacing workstations at CDC-recommended distances.

In light of emerging and ever-changing guidance, employers in all sectors may want to take a “fresh look” at their employment practices, including policies, benefit plan details, and communication strategies.