Author: Anthony Troia

Second Circuit Grants Injunction on Healthcare Worker Vaccination Mandate

Posted on | by Anthony Troia

Late on Friday, the United States Court of Appeals for the Second Circuit granted an injunction to “We The Patriots USA, Inc.” a nonprofit group that had filed a lawsuit seeking to stop the enforcement of the healthcare worker vaccination mandate (the “Mandate” or the “Regulation”). The lawsuit filed by We The Patriots USA had been unsuccessful originally, with a federal district court judge dismissing the claims altogether.  As we had reported, however, We The Patriots USA appealed their loss to the Second Circuit Court of Appeals.  On appeal, We The Patriots USA requested an injunction to prohibit the enforcement of the Mandate while their appeal is pending. The Second Circuit granted the injunction late on Friday.

The appeal of We The Patriots USA, Inc. will be decided by a panel of three federal Circuit Court judges, on an expedited basis. During the pendency of the appeal, the Mandate will be suspended, effectively. It is not clear how long the Court’s injunction will be in effect, but for the time being, covered healthcare providers are not required to comply with the September 27 deadline to vaccinate their healthcare staff.  For home care providers, it is not clear whether the expedited appeal will be decided by the Second Circuit by October 8. Should We The Patriots USA lose on their appeal before October 8, and the Regulation is, thus, reinstated, covered home care providers will be required to comply with the vaccination mandate at that time.

If you have any questions about these developments, please do not hesitate to reach out.

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New York DOH Posts FAQs Regarding the Healthcare Worker Vaccination Mandate

Posted on | by Anthony Troia

Today, the Department of Health (“DOH”) posted a FAQ guidance document concerning the healthcare worker vaccination mandate. The FAQs are available here.

In relevant part, the FAQs reaffirm that fiscal intermediaries and personal assistants are not covered by the vaccination mandate.

Insofar as office staff are concerned, the FAQs state that “personnel may include members of the workforce who have no direct patient or resident contact if the personnel engage in activities such that if they were infected with COVID-19, they could potentially expose other covered personnel.”  Unhelpfully, the DOH further states that it will be up to the individual providers to identify which of their office staff are covered by the vaccination mandate, in view of their definition and FAQ guidance.

As we have discussed in a webinar, the FAQs reaffirm that employees who receive an exemption from the vaccination requirements are not required to undergo weekly COVID-19 testing. Similarly, the DOH’s FAQ confirms that antibodies and evidence of a prior COVID-19 infection will not be acceptable in lieu of vaccination.

The DOH has stated that covered personnel may utilize this form and this one to request an exemption on the basis of medical reasons.

Insofar as vaccines received in other countries, the FAQ notes that “only people who have received a complete series of a COVID-19 vaccine that is either approved or authorized for emergency use by the U.S. Food and Drug Administration (FDA) or the World Health Organization (WHO) are considered to be ‘fully vaccinated.’” Thus, the FAQ concludes, “People who received a COVID-19 vaccine that has neither been authorized by the FDA or the WHO are not fully vaccinated and will, thus, need to comply with this vaccination mandate.”

The FAQ does not address religious exemptions, or the ongoing litigation regarding the validity of the State’s vaccination mandate. Notably, Governor Hochul has, over the last few days, vowed to fight and protect the mandate in courts.

If you have any questions about these developments, please do not hesitate to reach out.

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New York Healthcare Worker Vaccine Mandate Litigation Heats Up

Posted on | by Anthony Troia

Earlier today, a federal court judge for the Northern District of New York granted a temporary restraining order (the “Order”) against the enforcement of the State’s vaccine mandate for healthcare workers but only “to the extent that the DOH is barred from enforcing any requirement that employers deny religious exemptions from COVID-19 vaccination or that they revoke any exemptions” that were already provided. The Order further bars the DOH from “interfering in any way with the granting of religious exemptions from COVID-19 vaccination going forward.” The Court did not invalidate the New York State vaccine mandate entirely. Rather, the Court has prohibited the Department from enforcing the vaccine mandate in any manner that would disregard employees’ religious reasons for refusing to take the COVID-19 vaccines.

As our readers know, New York’s vaccine mandate was adopted by the DOH on August 26 and, as adopted, the mandate only exempted from its requirements those employees who were unable to become vaccinated due to medical reasons. The vaccine mandate, thus, did not expressly allow for religious objections as a way to avoid the general vaccination mandate. Today’s Order effectively forces the Department to allow covered healthcare providers to recognize their employees’ religious beliefs as a second exemption.

On Sunday, in a separate federal lawsuit out of Brooklyn, three New York nurses lost their legal challenge to the State’s healthcare worker vaccination mandate. In We The Patriots USA Inc., et al. v. Hochul et. al., the nurses argued that New York’s vaccination mandate for healthcare workers violated their Constitutional rights, including their First Amendment right to practice religion. These were the same arguments that were successful in today’s litigation out of the Norther District of New York. The three nurses sought a temporary restraining order and an injunction against the vaccination mandate. The Court, without providing an opinion, rejected the nurses’ motion. The plaintiffs immediately filed an appeal.

To summarize, as of today, there are two conflicting decisions regarding the same vaccine mandate. One federal judge upheld the Department’s mandate entirely, while the second federal judge upheld the mandate but created an exception for those employees with sincerely held religious belief that prevent them from becoming vaccinated. Today’s Order is on schedule to be fully briefed and decided by the end of September, but these issues are likely to be appealed further.

Today’s case, out of the Northern District of New York, was filed by the Thomas More Society, a Chicago-based “not-for-profit, national public interest law firm dedicated to restoring respect in law for life, family, and religious liberty.” Their 205-page complaint was filed yesterday, and the Order was granted today. Given their mission and, most likely, deep pockets, the Thomas More Society will probably continue to litigate this matter, even potentially to the United States Supreme Court.

As providers wait on the litigation dust to settle and resolve, we wish to emphasize the
following:

1. As of today, there is no all-encompassing prohibition on New York’s healthcare worker vaccination mandate. The mandate is still scheduled to take effect on October 7 for covered healthcare providers. Today’s Order, should it be upheld, merely creates an additional basis to grant exemptions to those workers who have a sincerely held religious belief against the COVID-19 vaccine. Thus, employers should not cease their efforts to vaccinate their workforce and secure proof of vaccination or medical exemptions by October 7.

2. A religious exemption is not a panacea, and it cannot be automatically granted to everyone who requests it. Only exemptions based on “sincerely held religious beliefs” are permissible. Thus, an employee that invokes a religious reason as an objection to the vaccine mandate would have to establish that their religious beliefs bar prohibition, at a time when many rabbis, ministers, and other religious leaders have endorsed vaccination. The difficult task of determining who has a sincere religious reason for not taking the vaccine (versus a philosophical, medical or political reason) would be on the employer. And employers that wrongfully deny an exemption request from an employee can be sued under various federal and State laws protecting employees’ rights to a reasonable religious accommodation. Thus, today’s Order – while it may seem like a victory for the industry – could open the door to tougher times.

3. If the religious exemption is ultimately enforced – either by an order of a court or through the Department’s willing amendment of its regulation – providers will need the Department’s guidance on how to ensure the safety of patients and other employees from the unvaccinated employees who are working and continuing to provide services under the medical and religious exemption.

Lastly, on a separate note, thank you to the 220+ of you who attended my webinar yesterday with the New York Healthcare Providers’ Association. As evident by the questions that came in throughout the presentation, providers are continuing to struggle with this mandate and the quickly approaching compliance deadline. In the absence of a broader injunction against its enforcement, the healthcare worker vaccine mandate is on course to take effect October 7. Please do not hesitate to reach out if we can help answer any questions or help your agency come into compliance by that deadline.

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Hochul Activates the Hero Act Obligations, but is your Agency Covered by the Hero Act?

Posted on | by Anthony Troia

On Labor Day, Governor Hochul announced that the COVID-19 resurgence warrants implementing the safety plans required by the New York HERO Act (the “Act”). The Act permits the NYS Commissioner of Health to direct covered employers to activate their Hero Act airborne infectious disease exposure prevention plan (“Plan”) if the Commissioner determines that a highly contagious communicable disease presents a serious risk of harm to the public health.

The Act became law as a result of the coronavirus pandemic earlier in 2021. However, it was intended to apply to future outbreaks and, while covered employers were required to adopt Plans (by August 5, 2021) and issue Plans to employees (by September 4, 2021), the Plans were not technically in effect because COVID was, seemingly, under control and there was no highly contagious communicable disease in effect. But now that Governor Hochul has declared a contagious disease to be in effect, many providers have asked, are we required to comply with the Hero Act and, if so, for which workers?

Scope of Coverage and Applicability

As readers of our alert will recall, OSHA adopted an emergency temporary standard (the “ETS”) in June 2021 that established workplace safety standards for healthcare providers specifically related to the coronavirus health risks. The Hero Act exempts from coverage employees that are covered by an OSHA standard, even a “temporary” OSHA standard like the ETS. Thus, to the extent an organization or segments of a workplace are covered by OSHA’s ETS, then the Plan requirements of the Hero Act would not apply.  Note, however, that once the ETS expires or is revoked, the Hero Act will take effect for those providers who were previously only under OSHA’s ETS. Thus, eventually, all providers in New York will be covered by the Hero Act.

The OSHA ETS exempts from coverage “home healthcare settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not present.” Until October 7, 2021, when the vaccination mandate takes effect in New York, this exception to the OSHA ETS requirements is unlikely to apply to LHCSA providers in New York because very few employers have “all employees” fully vaccinated as of today. Thus, at least for the caregiver population of LHCSAs, the OSHA ETS is now in effect.  This means that the Hero Act Plans do not have to be activated for the caregivers. Providers are reminded, however, to ensure that they are complying with the ETS requirements.

The OSHA ETS further provides an exemption for “healthcare support services not performed in a healthcare setting (e.g., off-site laundry, off-site medical billing).” Thus, it appears that LHCSA office settings are exempt from coverage of the OSHA ETS. That would also mean, however, that the LHCSA offices and office employees are covered by the Hero Act.

Turning to fiscal intermediaries, due to a very specific definition of healthcare services under OSHA’s ETS, it is our opinion that fiscal intermediary services do not qualify as healthcare services under the OSHA ETS. Thus, we have taken the position that the ETS does not apply to personal assistants. However, the Hero Act appears to apply.

As discussed in prior alerts, the Hero Act has a broad definition of employee, employer, and work site. Employee is defined in the Act as “any person providing services for remuneration…and shall include part-time workers, independent contractors, domestic workers, home care and personal care workers…” The term “employer” in the Act includes “any person, entity, business, corporation…” Thus, even for fiscal intermediaries that are not the employer of the personal assistant, the consumer him or herself would be considered an “employer” of the personal assistant and trigger the Hero Act’s requirements. The Hero Act requires covered employers (such as consumers) to adopt and implement a model plan. Readers will note that there is a general Plan, and a domestic worker Plan, available on the DOL’s website. The Plans are designed, depending on the nature of the worksite. Questions have arisen whether the Act will apply to consumers’ homes, because worksite is defined as “any physical space…that has been designated as the location where work is performed over which an employer has the ability to exercise control.” The consumer has the ability to exercise control in his/her home and, thus, this definition does not relieve a consumer employer from compliance with the Hero Act. Moreover, the definition of worksite specifically states that the term “worksite” will include “employer-provided housing…but shall not include the residence of the employer or employee unless such residence has been provided by the employer and is used as the primary place of work…” In the CDPAP, since the residence is provided by the employer (i.e., the consumer) and the home is the primary place of work, the Act would apply.

To summarize, based on our review, LHCSAs and FIs should ensure that they have adopted and implemented the Hero Act requirements for their office staff. LHCSAs should ensure that they follow the OSHA ETS for caregivers.  Fiscal intermediaries should assist their consumers, as the employer of the personal assistants, to comply with the Hero Act.  Even in a joint employer scenario, the Hero Act would seem to apply and require the fiscal intermediary and/or the consumer to adopt the Plans for personal assistants.

Effective Dates

Note, for the workforce covered by the Hero Act, the initial designation of an airborne disease is currently only effective until September 30, 2021. The Commissioner of Health may extend it at that time.

Reminders of Hero Act’s Requirements

Now that the Hero Act’s requirements have been activated, covered employers must conduct a verbal review of their policies with the covered employees, employee rights under section 218-b of the NYS Labor Law and their Plan.  This review should be done “in a manner most suitable for the prevention of an airborne infectious disease.” Options suggested by the DOL include in-person with good ventilation and face masks or via audio/video conference technology.

Employers must also provide a copy of their plan to all employees as implemented. Some employers may need to provide the plan in Spanish to employees for whom that is their primary language. (Additional languages may be required when the DOL provides model plans in that language.)

While the airborne infectious disease exposure prevention plan remains in effect, employers must continually ensure that it is adhered to by doing the following:

  • assign enforcement responsibilities to supervisory employees and ensure adequate enforcement;
  • monitor and maintain exposure controls; and
  • regularly check for updated information and guidance from the NYS DOH and the CDC.

Contact us with Questions

Please let us know if you have any questions regarding the OSHA ETS, the Hero Act, or if you might need assistance with implementing your obligations under either of these laws.

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Healthcare Worker Vaccination Mandate Adopted Today

Posted on | by Anthony Troia

The Department of Health, Codes Committee of the Public Health and Health Planning Council (PHHPC) has just adopted the Department’s emergency regulation that will require covered providers, including LHCSAs, to vaccinate their healthcare staff. CDPAP is not covered by this regulation. We summarize the key points here:

  1. Contrary to the proposed regulation that was published by the Department only a few days ago, the final regulation (see final regulation HERE) does not allow for workers to avoid vaccination on the basis of a religious reason. The only remaining basis for a worker to decline the vaccine is to provide a medical reason.
  2. “Covered entities” under the regulation include any Article 28 licensed entity, including but not limited to general hospitals, nursing homes, and diagnostic and treatment centers, any Article 36 entity (including CHHAs, LHCSAs, LTHHCPs, AIDS home care programs), hospices, and adult care facility licensed by the DOH.  Standalone EMT companies are not covered. However, any EMT affiliated with a hospital will be covered.
  3. Covered personnel include “all persons” employed or affiliated with a “covered entity,” whether paid or unpaid, including but not limited to employees, members of the medical and nursing staff, contract staff, students, and volunteers who engage in activities such that if they were infected with COVID-19, they could potentially expose other covered personnel, patients, or residents to the disease. This definition is a bit vague and has garnered a lot of questions about whether LHCSA office staff would be covered. The PHHPC did not discuss LHCSAs specifically today, but they did discuss other settings where non-caregiver staff would be required to vaccinate. Based on that discussion by the PHHPC, it appears that office staff would be required to vaccinate because office staff have the “potential” to expose aides to COVID. This issue, however, will be subject to further guidance from the State. The PHHPC urged the Department to address this question in a DAL.
  4. The medical exemption will be allowed for workers who present a certification from a licensed physician or a certified nurse practitioner that the vaccine “is detrimental to the health” of the employee, “based upon a pre-existing health condition” of that employee.
  5. The regulation, once effective, will supersede Executive Order 16, which had mandated vaccination of certain hospital and nursing staff, including contractors who went into congregate settings (such as home care staff that service patients in nursing homes or assisted living facilities).
  6. Workforce shortages were raised as a concern during today’s PHHPC meeting, when this emergency regulation’s adoption was discussed. The Council was urged to consider an exemption for providers who – despite efforts to vaccinate staff – would have workforce shortages if their staff refused to vaccinate. The Council nonetheless adopted the regulation without making any exceptions for these staff shortage scenarios, but it did urge the Department to consider and address this concern.
  7. There was a brief discussion by the Council regarding enforcement and penalties for noncompliance. The Department expects providers to be the “gatekeepers” and ensure that any medical exemption request submitted by an employee is valid. It is daunting for providers, who are already busy with the ordinary demands of operating a home care agency, to think about policing physicians’ notes and ensuring that those physicians are accurately recommending a medical exemption for their aide patients. However, the Department expects the providers to do their due diligence and ensure that any physician notes are valid and based on “generally accepted medical standards.” The Department reinforced that it would audit providers for compliance, but it is not clear how they would do that given their limited resources. Insofar as penalties are concerned, the Department attorney alluded to, but did not specifically state, that the Department could initiate enforcement proceedings against noncompliant agencies, and such enforcement proceedings could include monetary penalties. LHCSAs looking to apply through the RFO in several months should diligently avoid incurring any liability or penalties through the Department, as such penalties will surely be subject to review in the RFO.
  8. For home care, the deadline for compliance with these mandates is October 7, 2021. The first vaccine must be received by all covered employees by October 7, unless an exemption applies. Thereafter, the aide will not be able to work. For office staff who refuse to vaccinate, providers may consider moving such individuals to remote work environments.

Upon the request of the DOH, covered entities will be required report and submit documentation regarding the following:

  • the number and percentage of personnel that have been vaccinated against COVID;
  • the number and percentage of personnel for which medical exemptions have been granted; and
  • the total number of covered personnel.

With the Council having adopted the emergency regulation today, the regulation will take effect immediately once it is recorded with the Department of State. The recording could be done today or by the end of the week. The October 7 deadline for home care providers is fast approaching though. Thus, we encourage all providers to promptly work on implementing these requirements. The shortage of home care caregivers has never been more acute, and it will take creative and prompt efforts by providers to persuade and vaccinate their workers. There are many cultural and deep-rooted reasons that have kept as many as 75% of workers of some agencies from vaccination thus far, and agencies will have to understand and break through those cultural divides in order to get their staff vaccinated. Please reach out to us if you need any assistance in this regard.

The Department requires all LHCSAs to adopt and implement policies and procedures to ensure compliance with the foregoing requirements. Our attorneys and consultants can assist your teams to prepare these policies.

If you have any questions about this alert, please do not hesitate to reach out.

DOH Poised to Mandate COVID Vaccinations for Home Care Workers, Starting Oct. 7

Posted on | by Anthony Troia
The New York Department of Health, Codes Committee of the Public Health and Health Planning Council (PHHPC) will hold a special meeting this Thursday, August 26, to consider adopting an emergency regulation regarding “Prevention of COVID-19 Transmission by Covered Entities.” If adopted, the regulation would mandate the vaccination of covered personnel, with the requirement that the first dose be administered by October 7, 2021. The proposed regulation is available here.For purposes of the regulation, “covered personnel” that will be subject to the regulation include “all persons” employed or affiliated with a “covered entity,” whether paid or unpaid, including but not limited to employees, members of the medical and nursing staff, contract staff, students, and volunteers. “Covered entities” include any Article 28 licensed entity, including but not limited to general hospitals, nursing homes, and diagnostic and treatment centers, any Article 36 entity (including CHHAs, LHCSAs, LTHHCPs, AIDS home care programs), hospices, and adult care facility licensed by the DOH. The regulation would allow for limited exemptions based on religious or medical reasons.

Upon the request of the DOH, covered entities will be required report and submit documentation regarding the following:

  • the number and percentage of personnel that have been vaccinated against COVID-19;
  • the number and percentage of personnel for which medical exemptions have been granted;
  • the number and percentage of personnel for which religious exemptions have been granted; and
  • the total number of covered personnel.

We will monitor this development and provide updates. However, this regulation seems poised to pass. In the absence of an injunction, the regulation would take effect and be binding on covered entities. Thus, in anticipation of this regulation’s mandates, providers should begin to plan for compliance. Providers should consider how they will address potential staffing shortages and patient scheduling challenges if a large number of their unvaccinated staff refuse to adhere to the mandate and become vaccinated. Providers should also consider the logistics of securing proof of vaccination and addressing any exemption requests. Coordinators should be trained on how to inform and respond to questions from caregivers who will, surely, have questions about these requirements.

If you have any questions about this matter, please do not hesitate to reach out to us.

Gov. Cuomo Announces Covid Vaccination Mandate for Healthcare Workers

Posted on | by Anthony Troia

Governor Cuomo announced today that all healthcare workers in New York State, “including staff at hospitals and long-term care facilities (LTCF), including nursing homes, adult care, and other congregate care settings, will be required to be vaccinated against COVID-19 by Monday, September 27.” The State Department of Health will issue Section 16 Orders requiring all hospital, LTCF, and nursing homes to develop and implement a policy mandating employee vaccinations, with limited exceptions for those with religious or medical reasons.

The announcement does not specifically state that home care workers will be covered by this requirement, and the Governor’s Press Release suggests that the requirement will only apply to healthcare workers that work in congregate care settings. However, the vaccination requirement generally and broadly applies to “all healthcare workers,” which could be interpreted to include home care workers. We trust that confirmation and clarification as to the applicability of this vaccination requirement to home care workers (including CDPAP) will be provided soon. In either case, home care workers that work in facilities, such as nursing homes, will almost surely be covered by this requirement.

We will provide more information about this development as it becomes available.

OSHA Issues Updated Enforcement Guidance

Posted on | by Anthony Troia

On March 12, 2021, OSHA established the National Emphasis Program – COVID-19 (the NEP) targeting higher hazard industries for enforcement action and updated and replaced its Enforcement Response Plan for COVID-19 (the Enforcement Plan) to prioritize in-person worksite inspections by OSHA Compliance Safety and Health Officers.

According to the NEP, OSHA is targeting those specified industries whose workers have increased “potential exposure” to a COVID-19 hazard, and that puts the largest number of workers at serious risk. The NEP also focuses on making sure that “workers are protected from retaliation,” including by referring allegations of retaliation to OSHA’s Whistleblower Protection Program. Home health care is one of the industries that will be specifically targeted by OSHA per these new NEP guidelines.

In the Enforcement Plan, OSHA instructs its Area Directors to “prioritize COVID-19-related inspections involving deaths or multiple hospitalizations due to occupational exposures to COVID-19” and “[w]here practical … perform on-site workplace inspections.”

What Should Providers Do Now?

In light of the NEP and the Enforcement Plan, all employers who are not primarily relying on telework or other remote practices for their employees should consider the following:

  • Review and update your COVID-19 safety documents, programs, and procedures, including your:
    • written COVID-19 safety and health plan, including contingency planning for emergencies, such as the pandemic
    • procedures for hazard assessment
    • procedures for PPE assessment and use
    • face covering measures for employees and all those with whom an employee would come in contact in the work environment, consistent with CDC guidelines regarding construction, donning, and maintenance of face coverings
    • sanitation practices
    • worker protection actions implemented under the hierarchy of controls (engineering controls, administrative controls, work practices, and PPE), including physical distancing measures; ventilation; stay-home-when sick and return-to-work procedures for exposed and sick workers; and both routine and case-specific cleaning of surfaces
    • respiratory program and PPE provision, including any modifications made as a result of the pandemic and documented good faith measures when compliance is not possible – OSHA has been asking for this from home health care providers throughout the audits they have done during the pandemic
    • COVID-19 signage
    • training and training records
    • signage, training, and procedures encouraging employees to report symptoms and to raise safety concerns, and protecting employees against retaliation for doing so
    • practices regarding employee access to exposure and medical records
    • injury/illness recordkeeping and reporting documents and procedures
    • OSHA Hazard Alerts applicable to the healthcare industry (there is no home care-specific Hazard Alert)
  • Review OSHA’s newest COVID-19 Guidance, Mitigating and Preventing the Spread of COVID-19 in the Workplace
  • Consider the four elements of the General Duty Clause violation with respect to COVID-19-related hazards: (1) employer failed to keep the workplace free of a hazard to which employees of that employer were exposed; (2) hazard was recognized; (3) hazard was causing or was likely to cause death or serious physical harm; and (4) there was a feasible and useful method to correct the hazard. CDC guidelines will be used to show a recognized hazard and/or feasible means to abate the hazard.

What Should an Employer Expect if OSHA Conducts an Inspection?

  • OSHA will not tell you in advance that it is starting an investigation and typically arrives on-site without prior warning.
  • Opening conferences will be held in a manner consistent with COVID-19 safety precautions, i.e., in an uncontaminated administrative area or outdoors, and will include union/employee representatives and management personnel responsible for COVID-19 safety and for other COVID-19-related programs, such as HR, medical staff, and facilities/physical plant.
  • The “walkaround” will occur in areas that an OSHA investigator determines he/she wants to see. Note that the investigator can issue citations for any health or safety hazard observed during the walkaround, even if not related to COVID-19.
  • Interviews of management and non-management personnel can be conducted before, during, and after the walkaround. Employees may be contacted by phone and/or the investigator may ask the employer to set up such calls while on-site. Typically, management cannot be present during the interviews, and an employee can approach the investigator to speak privately.
  • The investigator’s document review, including of records of programs described above, may occur before a walkaround and/or the investigator will ask to see or to have sent to the Area Office a copy of specified categories of documents.
  • Investigators will be particularly sensitive to indications or complaints of retaliation, including with respect to talking to OSHA representatives at any time, including during an investigation. Actions considered to be retaliation can result in separate Whistleblower enforcement actions, which can result in injunctive or monetary relief to the employee.
  • Citations, if issued, will be in the Serious classification, with penalties up to $13,653 per violation.
  • A General Duty Clause violation will not be issued except after approval by the OSHA Regional Administrator and the National Office, with input from the Department of Labor’s Regional Solicitor.
  • OSHA may decide to issue a Hazard Alert Letter (HAL) rather than a General Duty Clause or other citation, with recommended actions to be taken and subsequently reported to OSHA.
  • If the work establishment is part of a multi-location corporation, and a COVID-19 citation or HAL has been issued, OSHA may send a letter to the corporate entity about the citation or HAL and recommend that the corporation assess and abate COVID-19 hazards at all other locations. If unabated hazards are subsequently found, this notification letter may serve as subsequent bases for OSHA upgrading the amount of penalties or classification of its violations.

In sum, OSHA has proclaimed that it intends to take aggressive enforcement measures with respect to a broad range of businesses that have been operating in their usual workplaces during the pandemic. Employers in these businesses should prepare accordingly.

This week, on the Home Care Forum Podcast

Posted on | by Anthony Troia

In this week’s episode, Sasha Guillaume and I will discuss all of the above topics, PLUS the unfortunate failure of the LHCSA RFO repeal to pass. The New York State Legislative session is officially over and it is unlikely that anything will occur with the LHCSA RFO (insofar as a repeal is concerned) until the next budget season, which kicks off in January 2022. In the meantime, the reports of a LHCSA RFO have been conflicting, with some Albany insiders predicting that the LHCSA RFO is imminent. Tune in to hear Sasha and I discuss all these issues and what they mean for your business.

OSHA Issues Emergency Temporary Standard for Healthcare -Does it Apply to Home Care?

Posted on | by Anthony Troia

On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) released the long-awaited COVID-19 Emergency Temporary Standard (ETS), establishing new mandatory safety requirements generally applicable to the healthcare industry.  The ETS applies to all settings where healthcare services or healthcare support services are provided, with certain enumerated exceptions. The ETS requires healthcare employers to take certain precautions to protect employees from the transmission of COVID-19 in the workplace, such as developing and implementing a COVID-19 plan to meet certain parameters, screening patients and limiting access to settings where direct patient care is provided, providing PPE to employees and ensuring appropriate use, and enforcing indoor physical social distancing requirements.

The proposed regulations specify that the ETS does NOT apply to “home healthcare settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not present.” Thus, patient homes might not be subject to the ETS, assuming the employees are vaccinated and pre-entry COVID screening is performed. Separately, the proposed regulation states that the ETS does not apply to “healthcare support services not performed in a healthcare setting (e.g., off-site laundry, off-site medical billing).” Therefore, it appears that the ETS is not applicable to home care and fiscal intermediary offices, where mainly clerical and administrative services (such as billing, payroll, human resources) are performed.

The ETS will be published in the Federal Register shortly and will take effect immediately upon publication, for covered providers.