The Temporary Emergency Standard generally applies to any facility where an employee provides “health services” or “health support services” including hospitals, nursing homes and assisted living facilities.
The health and safety authority (OSHA) issued a temporary emergency standard (ETS) on June 10, 2021. The ETS instructs healthcare employers to develop a plan that will minimize their employees’ potential risk of occupational exposure to COVID-19.
Kelsey Mayo ([email protected]) is a partner with Poyner Spruill with a focus on employee benefits and management board remuneration.
To develop such a plan, healthcare employers must conduct a risk assessment and receive input from workers and their representatives. The plan must include safeguards such as screening employees for COVID-19, providing PPE, and implementing and complying with CDC guidelines on standard and transmission-based precautions. For more detailed information on the requirements for performing a risk assessment or creating a plan, see Here.
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Employers must also provide benefits, including remuneration, to workers who have become unemployed for a qualifying reason. The following frequently asked questions provide a summary of such continuation requirements for employers:
Brett Zimmermann ([email protected]) is an associated with Poyner Spruill Emphasis on preventing and solving employment problems for employers.
Who are insured employers in the healthcare sector?
The ETS generally applies to any setting in which an employee provides “health services” or “health support services” including hospitals, nursing homes and assisted living facilities, emergency responders, home care workers, and home care workers when the suspicion is suspected or confirmed COVID-19 patients are treated.
What is Paid Medical Removal for COVID-19?
An employer must remove employees from the workplace and continue to provide them with benefits if an employee either:
1. Tested positive for COVID-19 or has been diagnosed with COVID-19 by a licensed healthcare provider (the employee must notify the employer immediately);
- The worker must be removed from the job until certain criteria for return to work are met
2. Have shown certain COVID-related symptoms or is suspected by a licensed health care provider to have COVID-19 (the employee must notify the employer immediately);
- The worker is to be removed from the workplace until certain criteria for return to work are met; or
- The employee must be removed from the workplace and must carry out a COVID-19 test free of charge
- If the test is negative, the employee can return to work immediately;
- If the test is positive, the employee must remain away from work until certain criteria for return to work are met; or
- If the employee rejects the test, the employee must remain away from the workplace until certain criteria for return to work are met.
3. Have been in close contact without wearing PPE, to someone in the workplace who has tested positive for COVID-19 (the employer is obliged to inform the employee of the exposure). The only exception to removal is that the exposed employee was either fully vaccinated or previously had COVID-19 and has recovered within the last three months and has not recently experienced any specific COVID-related symptoms.
- Employees should either be laid off for 14 days, or
- The employee must be removed and have a free COVID-19 test performed at least five days after exposure
- If the test is negative, the worker can return to work 7 days after exposure;
- If the test is positive, the employee will be removed from the workplace until certain criteria for return to the workplace are met; or
- If the employee refuses the test, the employee must be removed from the workplace for 14 days and the employer is not required to grant paid vacation.
How much does an employer have to pay an employee who is on leave for medical removal?
Employers with 10 or fewer employees are not required to maintain pay for laid-off workers.
Employers with fewer than 500 but more than 10 employees must pay regular wages (up to $ 1,400 / week) for the first two weeks of firing. At the start of the third week, the employer must pay 2/3 of the employee’s regular salary (up to $ 200 / day). Note: An employer may be eligible for American Rescue Plan refundable tax credits if they took paid time off for qualifying sick leave and family leave for 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) throughout the layoff period, for example until the employee meets the criteria for return to work.
Employers are not required to pay overtime, even if the employee normally works overtime. If an employee receives compensation for loss of earnings from another source (e.g., paid sick leave, administrative leave or a publicly funded compensation program), the employer may reduce the redundant employee’s salary by the amount paid from the external source.
During the period of deportation, healthcare employers must continue to provide employer-funded benefits (e.g. health insurance) to employees, if those benefits are normally due to the employee.
It is important that employers who dismiss employees from work for reasons other than those prescribed in the EHS do not have to provide paid medical removal protection benefits during the dismissal period.
What impact does this have on the employer’s pension plans?
Employers should ensure that their benefit plans clearly reflect that they will be covered during deportation. Many plans have specific conditions as to when and for how long an employee can be eligible for continued coverage during their vacation and therefore may not currently provide for the extension of coverage required by the ETS.
These plan terms should be updated as soon as possible. If the plan’s coverage is not updated, an insurer may refuse to cover the employee – causing a breach of the ETS – and for self-insured plans, offering coverage required by the ETS but not described in the plan may result in the denial of the stop – Loss coverage for damage that occurred during this period. Please contact the benefits advisor if we are reviewing your planning document or would like more information.