Richard R. Renner
The 1970 Occupational Safety and Health Act (called the OSH Act), gives OSHA the authority to issue emergency temporary standards (ETS). 29 U.S.C. § 655(c). It is an authority that the previous Administration never used to protect any American workers from the fatal risk of COVID-19.
According to Kaiser Health News and The Guardian, 3,600 American healthcare workers died during the first year of the COVID-19 pandemic. The previous Administration did not require employers to report deaths of their employees by COVID-19, so the total number of American workers who died of COVID-19 likely will never be known.
On January 21, 2021, President Biden signed Executive Order 13999, which required OSHA to issue new guidance because, “[t]he Federal Government must take swift action to reduce the risk that workers may contract COVID-19 in the workplace.” EO 13999 called for OSHA to issue the new guidance for employers and to consider and implement any needed ETS. Unfortunately, the Senate did not confirm President Biden’s nominee for Secretary of Labor, Marty Walsh, until March 23, 2021.
On January 29, 2021, OSHA nevertheless posted updated guidance on COVID-19 safety.
On June 10, 2021, Secretary Walsh issued America’s first OSHA regulation to protect workers from COVID-19. The new ETS is mandatory only for employers in the healthcare industry, including hospitals, nursing homes, and assisted living facilities, emergency responders, home health care workers, and employees in ambulatory care settings where suspected or confirmed coronavirus patients are treated. It is codified at 29 C.F.R. § 1910.502 and became effective on June 21, 2021. OSHA also released new guidance for all employers, with a summary in Spanish.
While vaccinations have dramatically reduced the number of new COVID-19 cases and deaths, the country is still seeing over 15,000 new cases and hundreds of deaths every day. “Too many of our frontline healthcare workers continue to be at high risk of contracting the coronavirus,” Secretary Walsh stated in a press release.
Some of the more significant aspects of the new regulation are the following.
- the ETS requires healthcare employers to report work-related COVID-19 deaths of their employees to OSHA within eight hours and hospitalizations within 24 hours, § 1910.502(r);
- the ETS requires covered employers to conduct a hazard assessment and have a written plan to mitigate virus spread. § 1910.502(c). California has released a model plan;
- the ETS requires healthcare employers to provide employees with personal protective equipment (PPE), including facemasks, if they have direct patient contact. The ETS specifically refers to the CDC’s “Strategies for Optimizing the Supply of N95 Respirators,” § 1910.502(f);
- covered employers must ensure 6 feet of distance between workers. In situations where this is not possible, employers should erect barriers between employees where feasible, § 1910.502(h) and (I);
- the ETS requires covered employers to follow CDC recommendations for cleaning and disinfecting patient care areas, resident rooms, and medical devices and equipment. § 1910.502(j);
- when employees test positive for, exhibit symptoms, or are advised that they are suspected of having COVID-19, the covered employer must remove them from the workplace and provide paid leave, “up to $1,400 per week.” § 1910.502(l)(2), (4) and (5)(iii)(A). This amount matches the tax credit from the American Rescue Plan for most employers with fewer than 500 employees, so taxpayers will be footing the bill for this paid health leave;
- covered employees must provide workers with paid time off to get vaccinated and to recover from any side effects. The paid time can be charged to accrued sick leave, § 1910.502(m);
- the ETS exempts fully vaccinated workers from masking, distancing and barrier requirements when there is no reasonable expectation that any person will be present with suspected or confirmed coronavirus; and, importantly,
- the ETS prohibits employers from imposing any of the costs of compliance on employees, with the exception of employee self-monitoring devices, § 1910.502(p).
One of the more interesting provisions, that will require close monitoring is § 1910.502(o), which prohibits employers from discharging or in any manner discriminating against any employee for exercising their right to the protections required by this section, or for engaging in actions that are required by this section, specifically citing Section 11(c) of the OSH Act.
Last year, KCNF posted a blog about the weakness of Section 11(c), highlighting how the short time limit to complain (30 days) and lack of any individual right of action make it one of America’s weakest whistleblower protections.
OSHA has been swamped with COVID-19 related retaliation cases. It posted daily reports showing a peak of 44 complaints on January 11, 2021, and a current level of about 20 each week.
OSHA is administratively closing about two-thirds of the complaints and has docketed 1,379 cases to investigate. In FY 2020, OSHA received a total of 2,539 complaints of retaliation under Section 11(c) and found merit in precisely 20 cases (although 624 others were settled on unknown terms).
OSHA’s ETS does not address whether employers should require employees to be vaccinated. However, the federal Equal Employment Opportunity Commission (EEOC) recently stated that:
The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below.
The “reasonable accommodation provisions of Title VII and the ADA” mean that employers must provide reasonable accommodations for employees’ disabilities, pregnancy or religious beliefs. They must also refrain from acts and practices that have a disparate impact on protected classes. For example, requiring employees to access services that are not equally available to all communities would likely pose a disparate impact on minority communities.
In one publicized case, Houston Methodist Hospital required its 26,000 employees to be vaccinated. It approved 600 accommodations, but 178 employees without accommodations still refused. The Hospital has suspended all 178 and planned to terminate them on June 21, 2021, if they had not been vaccinated. Of those, 117 employees filed a lawsuit against the vaccination requirement. On June 13, 2021, a federal judge dismissed the lawsuit, finding that because the hospital was only “trying to do their business of saving lives without giving [patients] the COVID-19 virus,” the plaintiffs “can freely choose to accept or refuse a Covid-19 vaccine [and] work somewhere else.”
By June 22, 2021, 153 employees had resigned or were terminated for failing to get vaccinated.
As OSHA introduces more regulations protecting employees from the COVID virus, the Houston decision will merely be the first of many decisions on this topic. Biometricians and historians may someday consider how many thousands of lives could have been saved if OSHA had issued a more timely ETS.
If you have questions about reasonable accommodations, or you are concerned that your employer is not properly administering its return-to-work policy, please contact the experienced employment attorneys at Kalijarvi, Chuzi, Newman & Fitch, P.C.