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On June 21, 2021, the Occupational Safety and Health Administration’s (“OSHA”) emergency temporary standard (“ETS”) aimed at limiting the spread of COVID-19 in the workplace went into effect. OSHA found, in part, that the COVID-19 pandemic “presents a grave danger to workers in all healthcare settings” and issued the ETS in response.
Who is subject to the ETS?
The ETS applies only to the healthcare sector and includes specific mandatory procedures employers must follow. Specifically, the ETS applies to healthcare “settings where any employee provides healthcare services or healthcare support services.”
OSHA defines “healthcare support services” to include “patient intake/admission, patient food services, equipment and facility maintenance, housekeeping services, healthcare laundry services, medical waste handling services, and medical equipment cleaning/reprocessing services.” The ETS does not apply, however, to healthcare support services that are not performed in a healthcare setting. This would include, for example, off-site laundry and off-site medical billing.
Are any healthcare employers exempted from the ETS?
The ETS specifically excludes:
- Distribution of prescriptions by pharmacists in retail settings;
- First aid provided by employees who are not licensed healthcare providers;
- Non-hospital ambulatory care settings where individuals are screened for COVID-19 before entering, and anyone with suspected or confirmed COVID-19 are not permitted to enter the facility;
- Well-defined hospital ambulatory care settings where all employees are fully vaccinated and individuals are screened for COVID-19 before entering, and people with suspected or confirmed COVID-19 are not permitted to enter the facility;
- Home healthcare settings where all employees are fully vaccinated, and non-employees are screened for COVID-19 before entering;
- Healthcare support services not performed in a healthcare setting; and
- Telehealth services where no direct patient care occurs.
For an easy-to-follow graphic, OSHA released a diagram to assist employers in determining whether they are subject to the ETS.
When is the ETS effective?
The ETS was effective on June 21, 2021 when published in the Federal Register. Employers covered by the ETS are required to comply with all requirements within 14 days except for standards relating to physical barriers, training, and ventilation. Covered employers must comply with these requirements within 30 days of the effective date or by July 21, 2021.
What does the ETS require?
The ETS requires healthcare employers to observe various specific requirements, including:
- COVID-19 Plan. Implement a COVID-19 plan, which must be in writing for covered healthcare employers with more than 10 employees.
- Patient screening and management. Monitor points of entry and exit and screen patient and facility visitors.
- Transmission-based precautions. Implement necessary policies and procedures to adhere to standard and transmission-based precautions based on guidelines promulgated by the Centers for Disease Control and Prevention (“CDC”).
- PPE. Provide personal protective equipment, including face masks while workers are indoors or in vehicles together and respirators when employees are exposed to or engaging in aerosol-generating procedures with individuals with known or suspected cases of COVID-19.
- Distancing. Require physical distancing by at least 6 feet while indoors (unless such social distancing is not feasible for a specific activity).
- Cleaning and disinfection. Follow the CDC’s cleaning and disinfection guidelines. Take additional precautions to limit exposure and to disinfect areas when engaging in aerosol-generating procedures with individuals with known or suspected cases of COVID-19.
- Vaccination. Institute paid leave for COVID-19 vaccinations and recovery.
- Anti-retaliation. Institute anti-retaliation protections for employees engaging in actions required by the ETS.
- Record keeping and reporting. Maintain a COVID-19 log (only for those covered employers with more than 10 employees). A sample COVID-19 log and accompanying explanation on requirements may be found here. Report COVID-19 fatalities and hospitalizations to OSHA.
- Screenings and medical management. Follow medical management requirements, including:
- Daily health screenings (self-monitoring is acceptable);
- Employee notification of employers if an employee tests positive for COVID-19, suspects they have COVID-19, or has symptoms;
- Employer notification of employees within 24 hours of known cases;
- Removal of employees from the workplace in accordance with CDC guidance; and
- For covered employers with more than 10 employees, medical removal protection benefits for isolated or quarantined employees.
All ETS procedures and protocols must be implemented at no cost to employees.
What are the “medical removal protection benefits” employers must provide for isolated or quarantined employees?
Employers with 10 to 499 employees are required to provide “medical removal protection benefits” to those employees who must be removed from work and required to isolate or quarantine due to suspected or confirmed COVID-19 infection or exposure to COVID-19, and employers are required to provide the following:
- Permitting employees to work remotely while in self-isolation or quarantine so that they may continue to receive their regular pay and benefits.
- Paying employees who are unable to work remotely their regular pay, up to $1,400 per week, until the employee meets the return-to-work criteria of the ETS with the following caveats:
- Employees will receive their regular pay for the first 2 weeks of removal. Thereafter, they will receive only two-thirds of their regular pay, up to $200 per day.
- An employer’s payment obligation is reduced by the amount of compensation that the employee receives from any other source, including a publicly or employer-funded compensation program (e.g., employer paid sick leave, PTO, state or federal economic security benefits).
- Continuing to provide the benefits the employee is normally entitled (e.g., employer-sponsored health insurance) during the removal period.
- Ensuring that, whenever an employee returns to the workplace after a COVID-19-related workplace removal, the employee does not suffer any adverse action as a result of that removal from the workplace and ensuring that all the employee’s rights and benefits are maintained, including the employee’s right to their former job status, as if the employee had not been removed.
Where can I find additional information on implementation?
OSHA has created fact sheets and detailed responses to the most frequently asked questions regarding the ETS. This information can be found here.
How long does the ETS last?
The ETS is set to expire on December 21, 2021. Covered healthcare employers must comply with the ETS until it expires.
Will there be additional changes to the ETS?
Given the President’s recent Executive Orders on COVID-19 vaccination for Federal employees and safety protocols for Federal contractors, OSHA may publish a revised ETS, and/or Congress or the White House could implement future COVID-related workplace legislative or regulatory requirements on healthcare employers. Stay tuned.
If you have questions about the ETS, compliance, or any COVID-19 employment-related issues, please contact John Conley.
 Id. at 32377.
 Id. at 32462.
 Id. at 32621.
 Id. at 32485.
 See 29 U.S.C. §§ 651-78, Occupational Safety and Health Act of 1970 (the “OSH Act”). The OSH Act provides that an ETS is effective until superseded by a permanent standard promulgated by the normal rulemaking provisions of the OSH Act. 29 U.S.C. § 655(c)(2). The OSH Act, however, requires OSHA to promulgate a permanent standard within six months of promulgating the ETS. Id. at (c)(3).
 See Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, available here, signed September 9, 2021; Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, available here, signed September 9, 2021.
On July 9, 2021, President Biden issued an “Executive Order on Promoting Competition in the American Economy.” The Executive Order takes aim at non-compete agreements, and affirms the Biden Administration’s policy “to enforce the antitrust laws to combat the excessive concentration of industry, the abuses of market power, and the harmful effects of monopoly and monopsony.” It underscores the authority of the Sherman Antitrust Act (15 U.S.C. §§ 1 et seq.), the Clayton Antitrust Act (15 U.S.C. §§ 12 et seq.) and other laws that challenge transactions that lead to excessive market concentration.
Among other things, the Executive Order asks the Federal Trade Commission (“FTC”) to use its regulatory authority prescribed by Federal Trade Commission Act to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.” See Executive Order, Section 5(g).
A non-compete is a type of employment contract or restrictive covenant that limits an individual’s ability to work in a particular industry. Non-competes may be stand-alone documents or incorporated into the individual’s employment contract. They typically limit the geographical locations that an individual can work in for a certain period after they leave a job. Critics of non-competes note that, although intended to be a “shield” to protect employers, over the years, they are more often used as a “sword” by employers to control their workers with excessive and unreasonable terms.
Because the Executive Order is not particularly specific, the FTC has the discretion to tackle the problem of unfair non-compete agreements as it sees fit. The Executive Order does not suggest a complete ban on non-competes, so long as such agreements reasonably protect businesses. However, the Executive Order demonstrates the Biden Administration’s determination to protect workers from abusive restrictive covenants.
The business industry is likely to challenge any FTC regulations that follow the Executive Order. It is unclear whether such regulations will survive constitutional scrutiny in federal litigation. However, there appears to be some public and Congressional support for restricting the use of non-competes. For example, the bipartisan Workforce Mobility Act of 2021 (“WMA”) has been introduced in the House of Representative and the Senate. If enacted, it would limit the use of non-competes to sales or dissolutions of business, authorize the U.S. Department of Labor to educate the general public about the use of non-competes, and give workers a private right of action to sue for violations of the WMA.
In Arizona, reasonable non-compete agreements may be enforceable. That includes physician non-competition agreements. In determining reasonableness, Arizona courts look at the duration, geographic scope, and type of activity prohibited by the agreement. Arizona law concerning non-competes is complex. Employers should ensure non-compete agreements are carefully drafted with reasonable terms specifically addressing the business interests of the employer for which the agreement is designed to protect. Employees, including physicians, should seek legal advice regarding the enforceability of non-compete clauses and potential consequences for violating them.
For more information, please contact John Conley or Chelsea Gulinson at 602-792-3500.
 The Executive Order is not directed at the use of non-competes to protect owners in business sales. The Executive Order’s purpose is to protect an employee’s ability to work.
 Section 5(g) may potentially apply to other types of restrictive covenants, e.g., non-solicitation and non-disclosure agreements.
UPDATE ON THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT: REVISIONS TO PAID LEAVE BENEFITS, INCLUDING HEALTHCARE PROVIDER EXEMPTION
The United States Department of Labor’s (DOL) Wage and Hour Division has issued revisions to the regulations implementing the paid leave provisions of the “Families First Coronavirus Response Act” (FFCRA). Responding to a recent federal court decision striking down key provisions of the DOL’s previously-issued regulations, the DOL has reaffirmed certain regulations, amended other regulations, and further explained the rationale behind its positions. The revised regulations went into effect on September 16, 2020.
FFCRA PAID LEAVE BASICS
Signed into law on March 18, 2020, the FFCRA authorized an emergency relief package providing support for individuals impacted by the COVID-19 public health emergency, including temporary paid sick and emergency family leave for eligible employees. The law applies to private sector employers with fewer than 500 employees as well as government entities, though certain exceptions may apply.
The FFCRA became effective on April 1, 2020 and is designated to expire on December 31, 2020.
Paid Sick Leave
The FFCRA provides paid sick leave to employees who are unable to work (or telework) due to the following COVID-19-related reasons:
1) The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
2) The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in subparagraph (2).
5) The employee is caring for their son or daughter if the school or place of care of the son or daughter has been closed, or the childcare provider of the son or daughter is unavailable, due to COVID-19 precautions.
6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor.
Under the law, full-time employees are entitled to 80 hours of immediately-available paid sick leave. Part-time employees are entitled to paid sick leave in an amount that is equivalent to their normal work hours in a two-week period.
Employees must be paid their normal rate of pay or minimum wage – whichever is greater. With respect to self-care, paid sick leave is capped at $511/day and $5,110 in the aggregate. In cases in which an employee uses paid sick leave to care for others, the cap is $200/day and $2,000 in the aggregate.
Emergency Family Leave
The FFCRA (as an expansion of the Family Medical Leave Act or “FMLA”) provides up to 12 weeks of emergency family leave (or ten weeks of emergency family leave and two weeks of paid sick leave) to eligible employees who are unable to work (or telework) due to a need to care for a minor child whose school/daycare is closed or because the child’s childcare provider is unavailable due to COVID-19.
Eligible employees are any part-time or full-time employee who has been on the job for at least 30 days.
An employer is permitted to designate the first ten days of emergency family leave as unpaid (although an employee can opt to use vacation time or other paid time off, including paid sick leave provided under the FFCRA, to cover the unpaid time).
Beyond the first ten days, emergency family leave is paid at two-thirds the employee’s normal rate of pay with a cap of $200/day and $10,000 in the aggregate.
Emergency family leave does not change the overall amount of FMLA leave available to employees during an applicable FMLA 12-month period.
THE REVISED REGULATIONS
Narrowing the definition of “healthcare provider”
Under the FFCRA, employers of “healthcare providers” may elect to exclude such employees from taking paid leave. While the initial regulations broadly defined “healthcare provider” to include nearly any person employed in a doctor’s office, hospital, or clinic, the revised regulations significantly narrow this definition to the following:
1) A “healthcare provider” as defined by the FMLA. The definition includes doctors (M.D.s and D.O.s), podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical social workers, physician assistants, certain Christian Science Practitioners, and other limited health care providers; or
2) Any other employee of a covered employer who is capable of providing health care services, “meaning he or she is employed to provide diagnostic services, preventive services, treatment services or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.” This category of “healthcare providers” includes nurses, nurse assistants, medical technicians, and laboratory technicians.
The revised regulations provide examples of employees who will not be considered a “healthcare provider” for purposes of the FFCRA, including IT professionals, maintenance staff, human resources personnel, records managers, billers, and consultants.
Relaxing the requirement for providing notice and supporting documentation
The initial regulations required employees to provide employers with notice and documentation establishing the need for paid leave prior to taking the leave.
The revised regulations relax that standard. Rather than dictating that employees provide notice and documentation before taking leave, the revised regulations clarify that employees may provide documentation “as soon as practicable.”
In cases in which the need for leave is foreseeable, e.g., an employee knows that his or her child’s school is closed in advance, the DOL anticipates that the employee generally will provide notice before taking leave.
Reiterating paid leave is only available to employees “unable” to work/telework
An employee’s reason for taking paid leave must be the sole reason the employee is unable to work/telework (i.e., “but-for” the employee’s need to take leave, the employee would otherwise be working).
This means that an employee cannot use paid leave if his or her employer closes its worksite or otherwise does not have work available for the employee for reasons other than the employee’s need to take leave (i.e., paid leave is not available to employees who are furloughed, laid off, or on a reduced schedule due to lack of work or business).
With that said, the revised regulations underscore that employers may not arbitrarily withhold work or reduce an employee’s hours to prevent the employee from taking paid leave. An unavailability of work must be due to legitimate, non-discriminatory business reasons and not simply that an employer is attempting to thwart an employee’s ability to take paid leave.
Clarifying when an employee can take intermittent leave
For employees who are teleworking or working onsite, the revised regulations reiterate that employees may take intermittent emergency family leave or paid sick leave only with the consent of their employer.
With respect to employees who work onsite, the revised regulations also reaffirm that employees can only take intermittent paid sick leave because of a need to care for a minor child whose school/daycare is closed or because the child’s childcare provider is unavailable due to COVID-19 (i.e., employees who work onsite cannot take intermittent paid sick leave for any other qualifying reasons).
The revised regulations also elaborate on the meaning of “intermittent.” The DOL provides an example of an employee’s child who is participating in hybrid learning in which the child attends school only certain days during the week and is at home the remaining days. In this case, the DOL clarifies that an employee who takes emergency family leave, for example, Mondays and Wednesdays (when the employee’s child is not in school) and then works Tuesdays, Thursdays, and Fridays (when the employee’s child is in school) is not considered to be taking intermittent leave (and therefore does not require consent of his or her employer).
TAKEAWAYS FOR EMPLOYERS
Employers should make necessary adjustments to their FFCRA paid leave policies and procedures to ensure compliance with the revised regulations. Importantly, healthcare employers should take note of the DOL’s updated (and much narrower) definition of “healthcare provider” when determining which employees can be exempted from the FFCRA’s paid leave benefits.
The attorneys at Milligan Lawless will continue to update employers on various workplace issues arising from the COVID-19 public health emergency.
If you have any questions regarding how the FFCRA’s paid sick leave or emergency leave requirements affect your workplace, please contact John Conley or Kylie Mote at (602) 792-3500.
The Best Lawyers in America© is the longest-running, peer-review publication in the legal profession. Every year, Best Lawyers conducts comprehensive surveys of tens of thousands of lawyers who confidentially evaluate their professional peers. Based on the results of these surveys, the publication designates the year’s leading lawyers in all 50 states and the District of Columbia.
The Milligan Lawless attorneys recognized in the 2021 edition are:
2021 Best Lawyers
- Bryan S. Bailey: Health Care Law
- John A. Conley: Administrative/Regulatory Law
- Robert J. Itri: Commercial Litigation; Copyright Law; Litigation – Intellectual Property; and Trademark Law
- Steven T. Lawrence: Corporate Law
- Thomas A. Maraz: Construction Law
- Robert J. Milligan: Health Care Law
- James R. Taylor: Health Care Law
2021 Best Lawyers: Ones To Watch
- Lauren A. Crawford: Commercial Litigation
- Kylie E. Mote: Health Care Law
- Miranda Preston: Health Care Law
In a landmark decision issued on June 15, 2020, the United States Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sexual orientation and gender identity. Resolving a longstanding split among federal courts as to whether Title VII’s protections extend to LGBTQ employees, the Court ruled 6-3 that Title VII’s prohibition on sex-based employment discrimination encompasses sexual orientation and gender identity discrimination.
The Basics of Title VII
Title VII of the Civil Rights Act of 1964 is a federal law prohibiting employment discrimination based on race, color, religion, sex, or national origin (i.e., protected classes). The law applies to any public or private sector employer with 15 or more employees, employment agencies, labor unions, and training programs.
Title VII makes it unlawful for employers to discriminate in any aspect of employment, including recruiting, hiring, promoting, training, terminating, and providing benefits. Additionally, Title VII prohibits employers from retaliating against employees for complaining about discrimination, filing a charge of discrimination, and/or participating in an investigation of discrimination or legal proceeding.
The Court’s Decision
The Court’s decision is in response to a trio of consolidated cases (captioned Bostock v. Clayton County) alleging employment discrimination: a child welfare coordinator was fired after his employer learned of his participation in a gay softball league; a skydiving instructor was fired after informing a customer that he is gay; a transgender funeral director was fired after telling her boss about her plans to transition.
In all three cases, the employee asserted unlawful sex discrimination in violation of Title VII. Rejecting an argument by the employers that Title VII only prohibits sex discrimination on the basis of an employee’s status as a male or female, the Court declared that it is impossible for employers to discriminate on the basis of sexual orientation or gender identity without impermissibly discriminating based on sex. Writing for the majority, Justice Neil Gorsuch opined, “An employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules.”
The Court’s full opinion can be accessed here: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
Takeaways for Employers
Employers should review their employment policies and practices to ensure compliance with the Court’s ruling. Specifically, employers should make certain that their anti-discrimination policies include express language prohibiting discrimination and/or harassment based on sexual orientation and gender identity. Employers should also consider conducting employee training addressing anti-discrimination and harassment policies.
For more information regarding the implications of the Court’s decision, please contact attorneys John Conley or Kylie Mote at (602) 792-3500.