Federal OSHA files COVID-19 healthcare Emergency Temporary Standard

We wanted to alert our healthcare clients to a provision in OSHA’s healthcare Emergency Temporary Standard (ETS) that went in to effect July 6, 2021, requiring covered healthcare employers with more than ten employees to provide medical removal protection benefits when an employee is removed from the workplace due to a positive COVID-19 test, COVID-19 related symptoms, or because of close contact in the workplace to a person who is COVID-19 positive (e.g. required quarantine situation). Under the ETS, larger employers with more than 500 employees must continue to provide the employee with benefits and regular pay that they would have received had the employee not been absent from work, up to US$1400 per week, until the employee meets ETS return to work criteria. The same requirements apply for healthcare employers with fewer than 500 employees, except that beginning in the third week of the employee’s removal, the payment is reduced to only two-thirds of the employee’s regular pay, up to US$200 per day.

These medical removal protection benefits apply to all employees (e.g. doctors, nurses, cafeteria and hospital administrative staff). Significantly, an employee who is required to be removed because of a COVID-19 positive test is entitled to receive the medical removal benefits regardless of whether the employee was infected inside or outside the workplace. However, the requirement that medical removal benefits be paid due to a close contact and resulting quarantine only applies to a close contact occurring in the workplace.

The medical protection benefits do not prevent the employer from reducing the amount of compensation if the employee uses or is required to use paid sick, administrative leave or any additional source of income made possible by virtue of the employee’s removal. Thus, employers may want to make clear in its COVID-19 plan under the ETS that an employee will be required to use any accrued paid leave during which the employee is removed from the workplace due to a positive COVID-19 test or related symptoms and where quarantine is required because of close contact in the workplace. Finally, an employer is under no obligation to provide these benefits to an employee that refuses to take a COVID-19 test.

For the full text of the ETS, refer to 29 CFR 1910.502 at www.osha.gov/coronavirus/ets.