New OSHA emergency temporary standard could impact health care employer benefit plans
Under certain circumstances, an employer must remove exposed employees from the workplace while continuing to provide them benefits.
The Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) on June 10, 2021. The ETS directs covered health care employers to devise a plan that minimizes their employees’ potential risk of occupational exposure to COVID-19.
To develop such a plan, health care employers must conduct a hazard assessment and receive input from employees and their representatives. The plan must include safety precautions such as screening employees for COVID-19, providing PPE, and implementing and adhering to CDC guidelines on Standard and Transmission-Based Precautions. For more detailed information relating to the requirements for conducting a hazard assessment or developing a plan, click here.
Related: OSHA emphasizes enforcement effort for COVID-19 hazards
Employers must also provide benefits, including pay, for employees who are placed out of work due to a qualifying reason. The following FAQs provide a summary of such benefit continuation requirements for employers:
Who are covered health care employers?
The ETS generally applies to all settings where any employee provides “health care services” or “health care support services,” including hospitals, nursing homes and assisted living facilities, emergency responders, home health care workers, and employees in ambulatory care facilities where suspected or confirmed COVID-19 patients are treated.
What is paid medical removal for COVID-19?
An employer must remove employees from the workplace, while continuing to provide them benefits, when an employee has either:
1. Tested positive for COVID-19 or is diagnosed with COVID-19 by a licensed health care provider (employee is required to alert employer immediately);
- Employee is to be removed from the workplace until certain return to work criteria are met
2. Exhibited certain COVID-related symptoms or is suspected by a licensed health care provider of having COVID-19 (employee is required to alert employer immediately);
- Employee is to be removed from the workplace until certain return to work criteria are met; or
- Employee is to be removed from the workplace and provided a COVID-19 test, at no cost
- With negative test, employee may return to work immediately;
- With positive test, employee must stay removed from workplace until certain return to work criteria are met; or
- If employee refuses test, employee must stay removed from workplace until certain return to work criteria are met.
3. Been in close contact, without wearing PPE, to someone in the workplace who has tested positive for COVID-19 (employer is required to notify employee of exposure). The only exception for removal is if the exposed employee has been either fully vaccinated or has previously had COVID-19 and recovered within the last three months, and is not experiencing a recent onset of certain COVID-related symptoms.
- Employee is to either be removed for 14 days, or
- Employee is to be removed and provided a COVID-19 test, at no cost, at least five days after exposure
- With negative test, employee may return to work after 7 days following exposure;
- With positive test, employee will be removed from workplace until certain return to work criteria are met; or
- If employee refuses test, employee must be removed from workplace for 14 days and employer is not required to provide paid leave.
How much must an employer pay an employee who is on leave due to medical removal?
Employers with 10 or fewer employees are not required to maintain pay for removed employees.
Employers with fewer than 500 employees, but more than 10, are required to pay employees’ regular pay (up to $1,400/week) for the first two weeks of removal. At the start of third week, the employer must pay 2/3 of the employee’s regular pay (up to $200/day). Note: An employer may be eligible for refundable tax credits under the American Rescue Plan if it provided paid time off for qualified sick and family leave due to COVID-19 related reasons from April 1, 2021 through September 30, 2021.
Employers with 500 or more employees are required to pay employees’ salaries (up to $1,400/week) during the entire period of removal, e.g. until the employee meets the return to work criteria.
Employers are not required to pay overtime pay even if the employee normally works overtime hours. Should an employee receive lost earnings compensation from another source (e.g., paid sick leave, administrative leave, or a publicly funded compensation program), an employer may reduce the removed employee’s pay by the amount paid from the outside source.
During the removal period, covered health care employers must continue to provide employer-sponsored benefits (e.g., health insurance) to employees, provided such benefits are ones the employee would normally be entitled to receive.
Importantly, employers who remove employees from the workplace for reasons other than those required by the ETS are not required to provide paid medical removal protection benefits during the removal period.
What effect does this have on an employer’s benefit plan(s)?
Employers should ensure their benefit plans clearly reflect that coverage will be provided during the period of removal. Many plans provide specific terms regarding when and how long an employee may be eligible for continued coverage while on leave, and therefore may not currently provide for the extension of coverage mandated by the ETS.
These plan provisions should be updated as soon as possible. If the plan coverages are not updated, an insurer may refuse to cover the employee – causing a violation of the ETS – and, for self-insured plans, offering coverage mandated by the ETS but not described in the plan may result in denial of stop-loss coverage for claims incurred during that period. Please contact benefits counsel if you would us to review your plan document or if you wish to receive more information.
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