Employer Updates Relating to COVID-19

The following article does NOT constitute legal advice and should not be used as such. It is for educational purposes only. Readers should retain legal counsel to obtain definitive answers.

Last month, we wrote about the EEOC update to its COVID-19 vaccination guidance, stating that the EEOC now allowed employers to offer incentives to employees to get the vaccine (assuming certain other requirements are met).

We are adding two other updates which employers should be aware of relating to COVID-19. First, is the OSHA standards that came out regarding COVID-19 exposure. Second, are the lawsuits that have been resolved regarding COVID-19 vaccine mandates.

OSHA Guidance

On June 11, 2021, the Occupational Safety and Health Administration (OSHA) sent an email alerting the public about emergency temporary standards (ETS) for those working in “healthcare” to protect them from COVID-19 exposure now that vaccinations are available. These standards stem from one of President Biden’s first Executive Orders issued on January 21, 2021.

As with most health-related guidance, it is not obvious whether these standards apply to wellness providers, or “Complementary and Alternative Medicine (“CAM”) Providers.” Wellness providers might include health coaches, naturopathic doctors, ayurvedic medical providers, functional medicine providers, lifestyle medicine providers, acupuncturists, chiropractors, nutritional counselors, fitness professionals, yoga and meditation providers, to name just a few.

Before we address whether ETS applies to CAM and other wellness providers, it is important to understand what the ETS entail. Here is a summary of the requirements that those who deliver services in “healthcare settings” must meet:

• COVID-19 plan: Develop and implement a COVID-19 plan (in writing if more than 10 employees) that includes a designated safety coordinator with authority to ensure compliance, a workplace-specific hazard assessment, involvement of non-managerial employees in hazard assessment and plan development/implementation, and policies and procedures to minimize the risk of transmission of COVID-19 to employees.
• Patient screening and management: Limit and monitor points of entry to settings where direct patient care is provided; screen and triage patients, clients, and other visitors and non-employees; implement patient management strategies.
• Standard and Transmission-Based Precautions: Develop and implement policies and procedures to adhere to Standard and Transmission-Based precautions based on CDC guidelines. • Personal protective equipment (PPE): Provide and ensure each employee wears a facemask when indoors and when occupying a vehicle with other people for work purposes; provide and ensure employees use respirators and other PPE for exposure to people with suspected or confirmed COVID-19, and for aerosol-generating procedures on a person with suspected or confirmed COVID-19.
• Aerosol-generating procedures on a person with suspected or confirmed COVID-19: Limit employees present to only those essential; perform procedures in an airborne infection isolation room, if available; and clean and disinfect surfaces and equipment after the procedure is completed.
• Physical distancing: Keep people at least 6 feet apart when indoors.
• Physical barriers: Install cleanable or disposable solid barriers at each fixed work location in non-patient care areas where employees are not separated from other people by at least 6 feet.
• Cleaning and disinfection: Follow standard practices for cleaning and disinfection of surfaces and equipment in accordance with CDC guidelines in patient care areas, resident rooms, and for medical devices and equipment; in all other areas, clean high-touch surfaces and equipment at least once a day and provide alcohol-based hand rub that is at least 60% alcohol or provide readily accessible handwashing facilities.
• Ventilation: Ensure that employer-owned or controlled existing HVAC systems are used in accordance with manufacturer’s instructions and design specifications for the systems and that air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher if the system allows it.
• Health screening and medical management: (1) Screen employees before each workday and shift; (2) Require each employee to promptly notify the employer when the employee is COVID-19 positive, suspected of having COVID-19, or experiencing certain symptoms; (3) Notify certain employees within 24 hours when a person who has been in the workplace is COVID-19 positive; (4) Follow requirements for removing employees from the workplace; (5) Employers with more than 10 employees, provide medical removal protection benefits in accordance with the standard to workers who must isolate or quarantine.
• Vaccination: Provide reasonable time and paid leave for vaccinations and vaccine side effects.
• Training: Ensure all employees receive training so they comprehend COVID-19 transmission, tasks and situations in the workplace that could result in infection, and relevant policies and procedures.
• Anti-Retaliation: Inform employees of their rights to the protections required by the standard and do not discharge or in any manner discriminate against employees for exercising their rights under the ETS or for engaging in actions required by the standard.
• Requirements must be implemented at no cost to employees.
• Recordkeeping: Establish a COVID-19 log (if more than 10 employees) of all employee instances of COVID-19 without regard to occupational exposure and follow requirements for making records available to employees/representatives.
• Report work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.

That’s a lot of requirements, especially for smaller wellness practices with just a few employees.

The remainder of this blog post will address frequently asked questions about the applicability of these standards to various wellness practices.

Do the ETS Apply to Wellness Providers who Exclusively Provide Services via Telehealth?

No. According to the rules, telehealth services performed outside of a setting where direct patient care occurs are exempt from complying with the ETS. See ETS Rules at 419. That means if you provide health services out of your home via telehealth, you should be exempt from the ETS.

What about Wellness Providers who see Clients In-Person?

It depends on whether those providers are “professional healthcare practitioners” who deliver “healthcare services.” A common pain point I see when it comes to government guidance in health care is that usually fails to acknowledge that there are many providers of wellness services that fall outside traditional “health care.” As a result, we are often left wondering whether the government guidance is meant to include or exclude these wellness services. Examples of some “grey areas” are naturopathic services, ayurvedic medical services, meditation services, health and wellness coaching and nutritional counseling services. Nevertheless, OSHA did list the following types of health and wellness providers as being subject to the rule:

• Chiropractors
• Mental Health Practitioners
• Podiatrists
• Physical, Occupational and Speech Therapists and Audiologists
• Dentists
• “Offices of Other Miscellaneous Health Practitioners”
• Sports Teams and Clubs

For purposes of the ETS, OSHA defines “healthcare services” as services “that are provided to individuals by professional healthcare practitioners for the purpose of promoting, maintaining, monitoring, or restoring health.” See https://www.osha.gov/sites/default/files/publications/OSHA4125.pdf.

Certainly most CAM and wellness providers help promote, maintain, and even restore health. Thus, CAM and wellness providers who are “professional healthcare practitioners” and view their job as promoting, maintaining or restoring health should assume they are subject to the ETS.

If I Qualify as a Professional Healthcare Practitioner who Provides Healthcare Services, Can I Still be Exempt from Complying with ETS?

Yes, if you meet the following three conditions:

1. You provide healthcare services in a non-hospital ambulatory care setting (e.g., an outpatient clinic);
2. You screen all non-employees for COVID-19 prior to entry in your place of business; and
3. You prohibit those with suspected or confirmed COVID-19 from entering your place of business.

If you do all those things, then you can avoid complying with the ETS provisions above.

COVID-19 Vaccine Mandate Lawsuits Against Employers

Since the roll out of the COVID-19 vaccine, employers have contemplated requiring employees to get the vaccine. Reasons behind the employer mandates may be to help the United States achieve herd immunity, to keep employees and customers safe from the virus, to eliminate the need for masks or social distancing, among other reasons. However, as with any mandate, not all employees are on board with such policies. As of June 2021, about 4.4% of employers in the U.S. are requiring employees to get the vaccine. This percentage may increase as the remaining individuals in the U.S. who have not yet received the vaccine are the most hesitant to do so. In fact, a June report by the Kaiser Family Foundation found that 32% of unvaccinated adults are waiting for full FDA approval of the vaccine before getting it.

As a result, a number of lawsuits have been filed by employees against their employers for imposing COVID-19 vaccine mandates. These lawsuits include claims against a Texas hospital, a Los Angeles school district, a North Carolina sheriff and a New Mexico detention center. See e.g., https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/coronavirus-lawsuits-challenge-vaccination-mandates.aspx.

Although the lawsuits vary by region and industry, two common themes have emerged:

1. The employees who are suing are uncomfortable with the “emergency use authorization” status of the vaccine and therefore feel like they are being forced to take an experimental drug.
2. The employees who are suing have not claimed that the employer is discriminating against them because of an underlying disability or religious belief.

Thus, employers have not been accused of violating any civil rights laws. Rather, the employees are accusing the employers of forcing them to undergo “experimental treatment” with a vaccine that has yet to obtain full approval by the FDA.

Unfortunately, for the employees, these arguments are not winning the day. The Texas hospital lawsuit is the first to be dismissed. In Bridges v. Houston Methodist Hospital, Case No. 21-cv-01774, Judge Lynn Hughes states that mandatory vaccines do not violate the U.S. Constitution (citing Jacobson v. Massachusetts, 197 U.S. 11 (1905)), and that requiring hospital employees to receive the vaccine is not coercion: the employee is free to look for alternative employment. The judge also called the employee’s comparison of the vaccine to Nazi medical experiments “reprehensible.”

As of this writing, the other lawsuits are still pending. However, the Texas court has set the groundwork for other courts to consider when deciding the outcome of these cases. More importantly, however, is that the primary argument about the COVID19 vaccine – that it has only “emergency approval” – is likely short-lived. Both Moderna and Pfizer have sought full approval for their respective COVID19 vaccines. Once full approval is granted by the Food and Drug Administration (FDA), any arguments involving “experimental treatment” will fall away. Perhaps that is what the courts involved with the remaining lawsuits are waiting for.

If you need legal assistance with your health and wellness business, look no further than the Center for Health and Wellness Law, LLC. We are the wellness law experts here to serve you! Visit us at www.wellnesslaw.com.

   

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