News and Insights
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OSHA’S COVID-19 Emergency Temporary Standard: What Employers Need to Know
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.[1] 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.[2]
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.”[3]
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.”[4] 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.[5]
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.[6] 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.[7] Stay tuned.
If you have questions about the ETS, compliance, or any COVID-19 employment-related issues, please contact John Conley.
[1] Occupational Exposure to COVID-19; Emergency Temporary Standard, 86 Fed. Reg. 116, 32376 (June 21, 2021) (to be codified at 29 C.F.R. § 1910.502). The full text of OSHA’s ETS is available here.
[2] Id. at 32377.
[3] Id. at 32462.
[4] Id. at 32621.
[5] Id. at 32485.
[6] 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).
[7] 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.
Scrutiny and Regulation of Non-Compete Agreements
On July 9, 2021, President Biden issued an “Executive Order on Promoting Competition in the American Economy.”[1] 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.[2]
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).[3]
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.[4]
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.[5] 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.
[1] https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/
[2] 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.
[3] Section 5(g) may potentially apply to other types of restrictive covenants, e.g., non-solicitation and non-disclosure agreements.
[4] https://www.forbes.com/sites/tomspiggle/2021/07/16/president-bidens-recent-executive-order-takes-aim-at-non-competes/?sh=20f440f12cc4
[5] https://www.congress.gov/bill/117th-congress/house-bill/1367/text
Dental Services Provider Paid $350,000 for Alleged Improper Medicaid Billing
On August 11, 2021, the U.S. Department of Justice (DOJ) issued a press release announcing a $350,000 settlement between the federal government, Cornell Scott Hill Health Corporation (“Cornell”), a Federally Qualified Health Center (“FQHC”), and the State of Connecticut to settle Medicaid fraud claims asserted against Cornell.
As a FQHC, Medicaid pays Cornell for certain services on an “encounter-based” reimbursement structure. Per federal law, claims for dental services, paid on an encounter-basis, are limited to one all-inclusive encounter per day, which should include all dental services rendered to a patient during his or her visit. The government alleged that Cornell improperly billed Connecticut’s Medicaid program for prophylactic cleaning and dental exams by requiring Medicaid patients to receive prophylactic cleanings and dental exams on different days so that Cornell would receive payment for two encounters instead of one. To resolve the allegations against it, Cornell paid $350,000 to the federal and Connecticut state governments. It also agreed to change its policy by offering Medicaid patients the option of scheduling their prophylactic cleaning and dental examination for the same day.
Earlier this year, in a January 2021 press release, the DOJ announced that it obtained more than $2.2 billion in settlements and judgments from civil fraud cases in the fiscal year that ended in September 30, 2020. $1.8 billion of that amount represented federal losses that were recovered from the health care industry. Many cases also included the recovery of millions of dollars for state Medicaid programs. This recent settlement with Cornell should prompt healthcare providers who are serving Medicaid beneficiaries to proactively assess their billing practices and policies to ensure that their policies are compliant with federal and their state’s Medicaid laws.
To review the August 11, 2021 Press Release from the U.S. Department of Justice, visit https://www.justice.gov/usao-ct/pr/health-center-pays-350k-settle-improper-billing-allegations-related-medicaid-dental.
Provider Relief Fund Reporting and Use of Funds Deadlines
On June 11, 2021, the U.S. Department of Health and Human Services (HHS) issued new guidance on the use and reporting of Provider Relief Fund (PRF) payments, and announced that PRF reporting will begin on July 1, 2021.
Many health care providers have been anxiously awaiting additional HHS guidance on their obligations regarding reporting of their use of PRF funds. Since January 15th, providers have been able to register their reporting accounts in the PRF Reporting Portal, but the portal has not yet been open for reporting. In its recent guidance, HHS adopted a multiphase reporting system, pursuant to which the deadlines for the provider’s use and reporting of PRF funds are based on the specific dates on which the provider received the PRF payments..
Summary of PRF Use and Reporting Deadlines
| Period | Payment Received Period | Deadline to Use Funds | Reporting Time Period |
| Period 1 | April 10 – June 30, 2020 | June 30, 2021 | July 1 – September 30, 2021 |
| Period 2 | July 1 – December 31, 2020 | December 31, 2021 | January 1 – March 31, 2022 |
| Period 3 | January 1 – June 30, 2021 | June 30, 2022 | July 1 – September 30, 2022 |
| Period 4 | July 1 – December 31, 2021 | December 31, 2022 | January 1 – March 31, 2023 |
.The reporting deadlines apply to all recipients who received one or more payments exceeding $10,000 in the aggregate during a Payment Received Period. Recipients who received PRF payments during multiple Payment Received Periods will be required to submit multiple reports.
Key Considerations
- The reporting requirements are also now applicable to recipients of the Skilled Nursing Facility (SNF) and Nursing Home Infection Control Distribution, which were not included in prior Post-Payment Notices.
. - As set forth in the table above, there are four new deadlines by which providers must use PRF funds, and four new deadlines by which providers must submit their reports to HHS as to how they used the PRF funds.
. - The guidance replaces all prior versions of HHS’s Post-Payment Notice of Reporting Requirements documents.
. - The reporting requirements set out in the guidance apply to past and future PRF General and Targeted Distributions.
. - The reporting requirements set out in the guidance do not apply to recipients of funds from the Rural Health Clinic (RHC) COVID-19 Testing Program, the HRSA COVID-19 Uninsured Program, or the HRSA COVID-19 Coverage Assistance Fund.
. - The updated guidance extends the time in which providers are required to complete their report from 30 days to 90 days after the end of the Payment Received Period.
. - HHS issued updated PRF FAQs, clarifying PRF funding and reporting. HHS added some new FAQs, and removed some previously issued FAQs.
. - HHS issued an updated Reporting Portal FAQ. In this FAQ, HHS announced that the PRF Reporting Portal will open July 1, 2021.
. - Failing to report within the applicable time period(s) is a breach of the Terms and Conditions applicable to the recipient of the PRF distribution, and may result in recoupment of PRF funds received.[1]
If you have questions or would like additional information about this topic, please contact Miranda Preston at miranda@milliganlawless.com, or your primary Milligan Lawless attorney.
[1] The Terms and Conditions applicable to the recipients of each type of PRF distribution require the recipient to submit reports as specified by HHS in future program instructions. The Terms and Conditions also provide that non-compliance with the Terms and Conditions is grounds for HHS to recoup PRF funds. To view the Terms and Conditions applicable to the various PRF distributions, click here.
Liability for Negligent Disclosure of Medical Records
Since HIPAA’s creation almost 25 years ago, many have long suspected that, eventually, a provider’s failure to comply with HIPAA might result in a patient’s recovery of economic damages as a result. Although HIPAA violations can lead to economic penalties imposed by the U.S. Department of Health and Human Services Office for Civil Rights, HIPAA does not include a mechanism for patients to seek economic damages from non-compliant providers. However, the Arizona Supreme Court recently determined that HIPAA standards can be used in the context of a patient’s claim against a provider for negligently disclosing protected information.
Understanding when and how a provider may disclose a patient’s information is tricky. Typically, a provider discloses an individual’s protected health information to the individual, the individual’s family or specifically-authorized representatives, or pursuant to a subpoena. However, in each instance, a provider can only disclose such information pursuant to Arizona’s medical records statute[1] and HIPAA.
In a case decided earlier this month, the Arizona Supreme Court clarified that Arizona’s medical records statute “affords healthcare providers immunity from liability for damages if they acted in good faith when disclosing medical information pursuant to applicable law.”[2] However, although HIPAA does not include a private right of action, the Court concluded that HIPAA is applicable to defining the standard of care in a state law negligence claim.[3] Thus, although Arizona law may protect against liability for good faith disclosures of a patient’s protected information, understanding when and how disclosures are allowed under HIPAA and Arizona’s medical records statute is essential.
For any questions on the above, please contact Jim Taylor or Chelsea Gulinson at 602-792-3500.
[1] A.R.S. § 12-2296.
[2] Shepherd v. Costco Wholesale Corp., CV-19-0144-PR, 2021 WL 941432, at *1 (Ariz. Mar. 8, 2021).
[3] Id.