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COVID-19 Alert: OSHA Issues Emergency Temporary Standard for Healthcare Settings

June 14, 2021 Leave a comment

 

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By: Matthew Mitchell & Amanda Thibodeau

On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) issued an Emergency Temporary Standard (“ETS”) directed at protecting frontline healthcare workers for the duration of the COVID-19 pandemic. As part of the Biden Administration’s directives, OSHA determined that its current standards and regulations, and OSHA’s General Duty Clause, were inadequate to protect workers in the healthcare sector, and issued this ETS. OSHA additionally updated its non-binding guidance for all other industries, which still remain subject only to OSHA’s regular regulations, standards, and General Duty Clause.

THE “NEW” REQUIREMENTS

The main section of the ETS requires employers to develop and implement effective COVID-19 plans, the control strategies of which should be very familiar to most employers at this point in the pandemic. However, now OSHA will require employers to use a number of familiar controls in a layered approach in order to protect employees.  The key requirements of the ETS are:

  • COVID-19 Plan. OSHA will now require every qualifying employer to develop and implement a COVID-19 plan for each workplace site. If the employer has more than 10 employees, the plan must be in writing. The Plan must be developed in conjunction with management and non-management and must be clearly communicated to employees.
  • Patient screening and management. Employers must limit points of entry in direct care patient settings, screen and triage all visitors, clients, patients, and others entering the setting, and encourage telehealth services when appropriate.
  • Standard and transmission-based precautions. Employers must develop and implement policies and procedures to adhere to Standard and Transmission-Based precautions based on CDC guidelines.
  • PPE. Employers must provide facemasks to be worn by each employee when indoors or when sharing a vehicle for work purposes, with some exceptions.
  • Aerosol-generating procedures on a person with suspected or confirmed COVID-19. Employers must limit employees present for the procedure to only those essential, and perform procedures in an airborne infection isolation room, if available; and clean and disinfect surfaces and equipment after the procedure is completed.
  • Physical distancing. Employers must keep people at least 6 feet apart when indoors, unless not feasible (such as for hands-on medical care).
  • Physical barriers. Employers must install cleanable or disposable barriers installed at fixed work locations in non-patient areas where social distancing is not possible.
  • Cleaning and disinfection. Employers must engage in standard practices for cleaning and disinfection for patient care areas, resident rooms, and medical devices and equipment, and in all other high-touch areas, in accordance with CDC guidelines.
  • Ventilation. Employers must ensure that all HVAC systems are used in accordance with the manufacturer’s instructions, and that all air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher, or the highest compatible with the system.
  • Health screening and medical management. Employers must screen each employee daily, which may be done through self-monitoring by the employee. Each employee must report COVID-19 confirmed and suspected illness, or symptoms to the employer. The Employer must also notify all employees who were not wearing respirators and/or required PPE of any COVID-19 exposure at the workplace.
  • Vaccination. Employers must provide support and paid leave for employees to receive a COVID-19 vaccination, and to recover from any side effects.
  • Training. Employers must train and educate employees on COVID-19 transmittal, hygiene, and other prevention policies and procedures.
  • Anti-retaliation. Employers must inform employees of their rights to the protections required by the ETS, and employers must not discharge or discriminate against employees for exercising their rights under the ETS or for engaging in actions required by the ETS.
  • Recordkeeping. Employers with more than 10 employees must establish a COVID-19 log of all employee COVID-19 infections and follow requirements for making records available to employees and union representatives.
  • Reporting requirements. Employers must comply with OSHA’s reporting requirements for work-related COVID-19 fatalities and in-patient hospitalizations.

Will these changes under OSHA’s new ETS affect your business? Learn more in our COVID-19 Alert

 

New Massachusetts Law Provides COVID-Related Emergency Paid Leave To Employees

June 2, 2021 Leave a comment

 

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By: Matthew Mitchell & Amanda Thibodeau

Massachusetts Governor Charlie Baker signed into law the Massachusetts COVID-19 Emergency Leave Act (the “Act”) on May 28, 2021. 

Under the COVID-19 Emergency Leave Act:

  • Massachusetts employers are required to provide COVID-19 Emergency Paid Leave benefits (up to $850) to employees who are unable to work for certain specified reasons related to COVID-19.
  • A $75 Million fund (the “Trust Fund”) is created to reimburse employers for financial costs related to compliance with the Act.

All Massachusetts employers, regardless of size, are subject to the Act, and all Massachusetts employees, regardless of full-time or part-time status, are eligible to receive paid leave benefits under the Act.

Employer obligations under the Act commence on June 7, 2021, and remain in effect through September 30, 2021, or until the Trust Fund is exhausted. The Massachusetts Executive Office of Labor and Workforce Development is expected to publish clarifying regulations in coming weeks. 

The key aspects of the Act are summarized in our COVID-19 Alert

Federal EEOC Issues New Workplace Guidelines Related to Employee Vaccinations and Employee Safety

June 1, 2021 Leave a comment

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By: Matthew Mitchell & Amanda Thibodeau

On May 28, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) published two guidelines intended to assist employers and employees transition to “post-COVID” work environments:

  • The Technical Assistance provides instruction that applies the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”) to employer policies that either mandate or incentivize employee vaccinations.
  • An Employee Resource provides a basic overview of federal anti-discrimination laws that apply to employees in need of leave or job modification due to COVID-19 illness.

The EEOC’s new COVID-19 guidelines highlight complexities that are attendant to the management of worksites and employees, that employers are now facing. An overview of these new guidelines can be found in our COVID-19 Alert.

Massachusetts Employers Prepare to Re-Open Their Workplaces

May 27, 2021 Leave a comment

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By: Matthew Mitchell & Amanda Thibodeau

On May 17, 2021, Massachusetts Governor Charlie Baker announced that the Commonwealth’s COVID-19 Phased Economic Re-Opening Plan will terminate on May 29, 2021. The City of Boston, and most municipalities around the Commonwealth, have indicated their intent to align with the Governor’s announcement, and have taken steps to rescind the various municipal COVID-19 regulations and restrictions. As such, for Massachusetts employers, this means, effective May 29, 2021:

  • Almost all worksites are permitted to re-open without limitations. 
  • Employee facial covering mandates are rescinded. 

The Governor’s announcement emphasizes that employers must continue to adhere to practices that are consistent with their fundamental obligation to provide a safe work environment for their employees. 

A detailed summary of Governor Baker’s announcement can be found in our COVID-19 Alert.

COVID-19 Alert: The American Rescue Plan Act Of 2021: What Employers Need to Know

April 5, 2021 Leave a comment

 

By: Joe Hunt, Matthew Mitchell, & Amanda Thibodeau

On March 11, 2021, President Biden signed into law the American Rescue Plan Act of 2021 (“ARPA”). ARPA provides $1.9 trillion in stimulus, and establishes new, significant employee rights and employer obligations, to address the economic fall-out of the COVID-19 pandemic.

The key ARPA provisions that affect employers include the following:

  • Consolidated Omnibus Budget Reconciliation Act
  • Families First Coronavirus Response Act Leave
  • Short-Time Compensation Programs
  • Employee Retention Credits

Read more in our latest COVID-19 Alert.

Massachusetts Advances To Step 1 Of Phase IV; Replaces Travel Order With Travel Advisory: What Employers Need To Know Now

March 24, 2021 Leave a comment

By Matthew L. Mitchell

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On March 22, 2021, Massachusetts Governor Charlie Baker implemented “Step 1 of Phase IV” of the Commonwealth’s phased economic re-opening plan –  authorizing several previously closed business sectors, such as performance venues and exhibition halls, to recommence limited operations. The transition to Step 1, Phase 4 is triggered by the recent decrease in COVID-19 infection and hospitalization rates, and the recent increase in public access to vaccines, across the Commonwealth.

Coincident with the implementation of the Step 1, Phase 4 plan, the Commonwealth has issued revised COVID-19 standards that apply to employee safety, including adjustments to worksite social distancing and hygiene standards, and a scaling-back of travel restrictions.

Read our full COVID-19 Alert for a summary of these new regulations.

EEOC Issues New Employer Guidance on COVID-19 Vaccines – Private Employers Poised To Play Front Line Role in Government’s Mass Vaccination Effort

December 22, 2020 Leave a comment

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By: Matthew Mitchell & Amanda Thibodeau

On December 16, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued new guidance to employers related to mandatory COVID-19 vaccination programs for employees (the “Guidance”).  In broad terms, the Guidance instructs that, subject to certain limits:

  • Federal law does not prohibit mandatory employee COVID-19 vaccination programs; and
  • Under certain circumstances, employers may bar employees who refuse COVID-19 vaccinations from the workplace.

A summary of what employers need to know about the “Guidance” can be found in our COVID-19 Alert.

Employment Law Round-Up: What Massachusetts Employers Need to Know For Q4 2020

October 15, 2020 Leave a comment

By Matthew L. Mitchell and Amanda Thibodeau

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With a work environment pressurized by the COVID-19 crisis and a contentious election cycle, employers are finding themselves increasingly involved with unusual employee conflicts and complicated employment law compliance questions. This can be particularly disruptive during the closing months of the business year.

The following summary discusses a variety of key concepts and new employment law standards that are intended to support Massachusetts employers in avoiding and navigating issues that may arise in the closing months of 2020. Topics include: Politics in the workplace, employee social media activity, responding to worksite infections, workplace safety, Massachusetts Paid Family Medical Leave, and unemployment insurance fraud. 

Employment law attorneys Matt Mitchell and Amanda Thibodeau summarize these standards here.

DOL Updates FAQs on FFCRA Leave as a New School Year Approaches

August 28, 2020 Leave a comment

By: Amanda E. Thibodeau

This week the U.S. Department of Labor (DOL) updated its Frequently Asked Questions (See Questions #98-100) on leave eligibility under the Families First Coronavirus Response Act (FFCRA), in anticipation of a significant shift to remote school programs across the U.S. As a new school year approaches, employers should familiarize themselves with this new development as they begin to field new requests for FFCRA leave from their employees.

The DOL addressed how the FFCRA applies to several school program scenarios including fully remote programs, hybrid arrangements, and what happens if a parent chooses a remote option over in-person schooling.

The DOL clarified that if a school does not permit the child to attend school in-person and is instead only permitting remote learning, the school is effectively “closed” for purposes of the FFCRA, and the parent may take leave to care for the child. Likewise, if a school is operating on a hybrid basis with some days in-person and other days remote, the FFCRA leave would apply to those remote days where the child is not permitted in school. This would effectively allow an employee to be eligible for FFCRA leave on an intermittent basis.

If a school is offering in-person attendance (either fully in-person or on a hybrid basis), but a parent elects to keep the child home and engage in remote learning, the parent would not qualify for FFCRA leave. The DOL reasons that because the school is open for in-person learning, it would not be covered under the regulations. If, however, the child is home on a remote basis because of another COVID-19-related reason, such as a quarantine order from a health professional, then the parent may be eligible for FFCRA leave.

It is important to note that when evaluating such leave requests, the employee must still supply certain information, including the child’s name (who is under the age of 14), the name of the school that is closed, and that there is no other suitable person available to care for the child. It is unlikely, then, that both parents of a child engaged in remote learning would qualify for FFCRA leave. And, of course, employers should continue to keep such written documentation in order to take advantage of the available tax credit.

See our complete COVID-19 Resource Collection for additional information, or contact a member of the Morse Employment Team.

The Complex Web of Employment Law Regulations Expands: The Latest COVID-19 Considerations for Massachusetts Employers 

July 29, 2020 Leave a comment

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By: Matthew Mitchell & Amanda Thibodeau

In response to the COVID-19 outbreak, government regulators have created a web of legal requirements intended to promote employee safety and economic stability. The count, scope, issuance rate, and complexity of these new rules are unprecedented.

Compliance with this ever-expanding, and sometimes inconsistent, landscape of COVID-19 regulations is a clear and present challenge for employers.

We’ve prepared a summary of the most recent COVID-19 regulations that apply to Massachusetts employers, as of July 2020. It is critical that Massachusetts employers identify, understand, and comply with these standards.

Learn more in our COVID-19 Alert.

OSHA Publishes Guidance on Returning to Work

June 26, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda E. Thibodeau

On June 18, 2020, the Occupational Safety and Health Administration (OSHA) published Guidance on Returning to Work (the “Guide”). The Guide, just as with other recent COVID-19-related OSHA publications, was published as recommendations meant to assist employers, and does not impose new regulations or standards.

The Guide supplements OSHA’s previously published Guidance on Preparing Workplaces for COVID-19, and expands on the three-phased re-opening approach articulated in the White House’s Opening Up America Again:

  • Phase 1: Businesses should encourage telework where feasible. Where not feasible, businesses should consider limiting the number of people in the workplace to maintain proper social distancing. Flexibilities and accommodations for employees who are at high-risk of contracting the virus should be considered.
  • Phase 2: Businesses should continue to allow telework but can begin to ease up on social distancing protocols at the workplace.
  • Phase 3: Businesses may resume without restrictions at the workplaces.

The Guide then identifies nine key areas employers should assess when creating their re-opening plans, and provides examples to guide employers in each area:

  • Hazard assessment
  • Hygiene
  • Social distancing
  • Identification and isolation of sick employees
  • Return to work after illness or exposure
  • Controls
  • Workplace flexibilities
  • Training
  • Anti-retaliation

The Guide is not meant to cover every scenario or to provide the only solution to the various challenges that businesses may encounter when re-opening. Employers reviewing the Guide should keep in mind that that the Guide provides recommendations that should be read in the context of local re-opening regulations and recommendations from the CDC. It is important to keep up-to-date with the state and local orders and implement those directives within this framework provided by OSHA.

For more information, please contact Amanda Thibodeau.

EEOC Updates COVID-19-Related Employer Guidance on Antibody Testing

June 26, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda E. Thibodeau

The U.S. Equal Employment Opportunity Commission (“EEOC”) again updated its employer guidance related to COVID-19 late last week, this time with guidance related to employers requiring antibody testing before allowing employees to return to the workplace.

The EEOC previously released guidance allowing employers to conduct temperature checks on employees and to inquire about COVID-19-related symptoms as part of their outbreak mitigation strategies. The EEOC also advised employers that they could require employees to test for COVID-19 prior to returning to the workplace. These are temporary practices that are typically disallowed by the Americans With Disabilities Act (ADA).

The EEOC clarified now, however, that based on guidance from the Centers for Disease Control (CDC), employers cannot require antibody testing before allowing employees to return to the workplace. Antibody testing, the EEOC advises, is considered a medical examination under the ADA and does not meet the “business necessity” standard. Employers may still require viral testing to determine of an employee has an active COVID-19 case, but antibody testing is strictly disallowed.

Morse is focused on assisting our clients through these unprecedented and challenging times. Please contact the Firm should you have questions concerning this subject, or any other COVID-19 response matters.

OSHA Publishes FAQs on Face Coverings in the Workplace

June 17, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda E. Thibodeau

The Occupational Safety and Health Administration (OSHA) recently published additional recommendations in the form of FAQs related to the use of face masks in the workplace. The new guidance covers the differences between PPE, cloth face masks, and surgical masks, and what the current OSHA regulations require of employers. OSHA clarifies that the new FAQs do not place new regulatory burdens on employers, but are instead provided to assist employers in providing a safe workplace under current regulations.

The Occupational Safety and Health Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their employees with “a workplace free from recognized hazards likely to cause death or serious physical harm.” This generally requires employers to adopt strategies and other control measures to protect their workers from known hazards. While cloth face coverings are encouraged by the Centers for Disease Control (CDC), current OSHA regulations do not require cloth face coverings. However, OSHA does have regulations and standards on when PPE is required or recommended. It also notes that cloth face coverings or even surgical face masks are not a substitute for PPE, such as N95 masks, under OSHA’s PPE standards.

OSHA’s FAQs detail the differences between cloth face coverings, surgical masks, and respirators, and the merits and protections of each. OSHA recommends that even though cloth face coverings are not required under its regulations, employers may choose to adopt such a policy as a control measure, and OSHA does encourage their use. OSHA notes, however, that whether an employer chooses to require or encourage masks will be highly dependent on the specific circumstances of each worker, workspace, and work requirements. In some instances, the wearing of a face covering may increase other hazards, and employers should be cognizant of evaluating such risks when forming any policies on face coverings. OSHA also emphasized that face coverings are not a substitute for social distancing measures, and employers must still adopt such strategies with or without face coverings.

OSHA additionally made clear that for industries or situations where respirators and other PPE are required by the presence of applicable workplace hazards, the regulations require that employers attempt other mitigation and control strategies before requiring respirators – but when respirators cannot be obtained due to supply issues (or other unavailability), employers cannot substitute cloth or surgical masks. For example, where asbestos is present and creates an imminent danger to the worker, the employer must attempt other control issues (engineering, administrative, and work practice controls) first. If the control measures do not eliminate the hazard and respirators are not available, the employer must delay the task, if feasible, to avoid exposing the worker to the hazardous condition.

For more information, please contact Amanda Thibodeau.

EEOC Updates COVID-19-Related Employer Guidance

June 15, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)The U.S. Equal Employment Opportunity Commission (“EEOC”) again updated its employer guidance related to COVID-19 late last week, this time with guidance related towards warning employers against falling into traps related to age discrimination or age bias when bringing employees back to work facilities, as well as discrimination based on other factors such as race or national origin, and pregnancy and sex.

Learn about the EEOC’s specific guidance related to age discrimination, harassment and discrimination based on race or national origin, and pregnancy and sex discrimination in our COVID-19 Alert.

EEOC Announces Delay in EEO Data Collections

May 11, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda E. Thibodeau

The U.S. Equal Employment Opportunity Commission (“EEOC”) announced that it will delay the collection of 2019 EEO-1 Component 1 data and the 2020 EEO-3 and EEO-5 data due to COVID-19. The EEOC stated that it recognizes the challenges that EEO filers are currently facing, and that delaying the collection will assist with the filers’ ability to provide accurate and timely data.

The EEOC expects that the collections may begin in March 2021, but will notify filers of the exact date when it is determined.

Morse is focused on assisting our clients through these unprecedented and challenging times. Please contact the Firm should you have questions concerning this subject, or any other COVID-19 response matters. You can find our complete COVID-19 resource collection here.

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EEOC Issues Guidelines with Respect to COVID-19 “Higher Risk” Employees

May 11, 2020 Leave a comment

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The Centers for Disease Control and Prevention has identified certain groups of individuals as “higher risk” for severe illness from COVID-19.

A growing number of states have effected, or have announced, plans that relate to an easing of shelter-in-place and business closure orders. Many of these plans incorporate specific instructions that relate to higher risk employees, including instructions that exclude higher risk employees from worksites, under certain circumstances.

As emphasized in a recent federal Equal Employment Opportunity Commission (“EEOC”) guidance, state re-opening standards that relate to higher risk employees must be interpreted, and applied by employers, in accordance with federal Americans with Disabilities Act anti-discrimination standards.

Employment law attorneys Matt Mitchell and Amanda Thibodeau summarize the EEOC Guidance in our COVID-19 Alert.

CDC Recommends New Workplace Sanitation Standards

May 5, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)By: Matthew L. Mitchell

The Centers for Disease Control and Prevention (CDC) has issued new Guidance related to the re-opening of public spaces, workplaces, businesses, schools, and homes following COVID-19 shutdowns. Among other instructions, the Guidance offers very specific workspace sanitation standards that are designed to address continuing COVID-19 infection risks.

It is anticipated that this CDC Guidance will be a bedrock component of state and federal government policies related to the re-opening businesses following COVID-19 shutdowns. As such, it is critical that employers understand, and be in a position to execute on, the recommendations contained in the Guidance.

Of particular note, the Guidance instructs employers to:

  • Develop formal sanitation plans that include strategies, that are customized for the specific elements of the employer’s workplace, for cleaning and disinfecting employee environments in preparation for, and following, business re-openings.
  • Use specific, recommended disinfectant techniques for particular environments and surfaces.
  • Adopt formal safe behavioral practices, including social distancing and employee hygiene and PPE standards.
  • Consider changes to practice and procedures aimed at reducing infection risk, including changes to the way and frequency public spaces are used.

The Guidance includes a Cleaning and Disinfection Decision Tool that distills the advice into a form that may be incorporated into an employer policy document.

Morse is focused on assisting our clients through these unprecedented and challenging times. Please contact the Firm should you have questions concerning this subject, or any other COVID-19 response matters.

MA Governor Extends Non-Essential Business Closings Until May 18, 2020

April 29, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By Amanda E. Thibodeau

Massachusetts Governor Charlie Baker extended his previous emergency order to close non-essential businesses and his stay-at-home advisory until May 18. His previous order closed non-essential businesses until May 4. The press release can be found here.

Along with extending the closure of non-essential businesses, the order also extends the stay-at-home advisory, urging residents to stay at home and limiting all gatherings to 10 people or less until May 18.

Governor Baker also appointed a 17-person re-opening advisory board who will plan a phased re-opening of the state. The new board is comprised of leaders from government, business, and healthcare sectors.

The Morse Employment Law team is following the latest developments related to COVID-19 responses, and will continue to report as appropriate. You can find our complete COVID-19 resource collection here.

The Post-Quarantine Workplace: Practical Considerations Related to the Re-Call of Employees to the Worksite

April 27, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)As employers continue to navigate unprecedented economic challenges – with possible easing of shelter-in-place and business closure orders in the coming weeks – one thing is clear: A return to normal business operations, in any short-term scenario, is unlikely. 

Employers will soon face very difficult decisions concerning the re-opening of worksite locations and the re-calling of employees. To help prepare for this eventuality, Matthew Mitchell has identified common themes and subjects employers may encounter in the  Post-Quarantine Workplace including worksite preparation, change management, government relief opportunities and employment law compliance considerations.

Read our full COVID-19 Alert for our Return-to-Work Guide.

Unemployment Options Under the Massachusetts Emergency Regulations

April 27, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)Currently, 26 million Americans have requested unemployment benefits since the outbreak of the coronavirus pandemic. Federally, the CARES Act provides new and expanded emergency options, which are being adopted and implemented by individual states. At the state level, Massachusetts has put into effect Emergency Regulations to assist both employees and employers with unemployment insurance during COVID-19 and to help implement portions of the CARES Act. For Massachusetts employers trying to put their employees in the best position to maintain wage rates, the following options and strategies are available to help:

  • Federal Pandemic Unemployment Compensation (FPUC)
  • Pandemic Unemployment Assistance (PUA)
  • Furloughs and Standby Status
  • Short-Term Compensation Programs (or Work Share Programs)
  • Other Important Provisions

Amanda Thibodeau explains each of these programs and qualifying criteria in our recent COVID-19 Alert.