By Conn Maciel Carey’s COVID-19 Task Force
Today’s topic on the Fed OSHA COVID-19 ETS is health screening and medical management.
29 C.F.R. Section 1910.502(l) sets forth employee screening, employer/employee notification, medical removal, medical removal protection benefits, and return-to-work requirements. This summary describes those requirements of the ETS.
A. Employee Screening
Employers have discretion in choosing whether to implement self-monitoring and/or in-person screening. Employers who choose to have employees self-monitor for COVID-19 symptoms can assist employees in that effort by providing them with a short fact sheet to remind them of the symptoms of concern. Employers may also consider posting a sign stating that any employee entering the workplace certifies that they do not have symptoms of COVID-19, to reinforce the obligation to self-screen before entering the workplace.
Employers who choose to conduct in-person employee screening for COVID-19 symptoms may use methods such as temperature checks and asking the employee if they are experiencing symptoms consistent with COVID-19. Employers should conduct this screening before employees come into contact with others in the workplace, such as co-workers, patients, or visitors.
To the extent employers choose to conduct onsite screening, there are important safety considerations to take into account. Specifically, to ensure screeners and employees waiting to be screened are protected, employers must continue to maintain compliance with all requirements of the ETS for physical distancing, physical barriers, and facemask use; thus, employers may need to provide physical barriers to separate employees and screeners and ensure that employees waiting to be screened can maintain adequate physical distancing between each other. Employers should also ensure screenings are conducted in a timely manner to minimize potential exposure to other employees waiting to be screened and to the screener.
Employees must promptly notify their employers when:
- they learn they are COVID-19 positive, as confirmed by a positive test for COVID-19 or when diagnosed with COVID-19 by a licensed health care provider;
- told by a licensed health care provider that they are suspected to have COVID-19;
- they are experiencing recent loss of taste and/or smell with no other explanation; or
- when they are experiencing both a fever (≥100.4° F) with a new unexplained cough associated with shortness of breath.
OSHA informs that “promptly” takes on two meanings. First, for employees who are not at the workplace when they meet a notification criterion, “promptly” notifying the employer would mean notifying the employer before the employee is scheduled to start their shift or return to work. Second, in the event that the employee is in the workplace when meeting a notification criterion, “promptly” notifying the employer means notifying the employer as soon as safely possible.
Employers also have notification requirements. Once an employer is notified of a COVID-19 positive person who has been in the workplace, such as employees, vendors, contractors, delivery people, visitors, or other non-employees, the employer has three separate notification obligations that must be completed within 24 hours, if applicable. The employer must notify:
- Each employee who was not wearing a respirator and any other required PPE and has been in close contact with the COVID-19 positive person in the workplace. The notification must state that the employee was in close contact with a COVID-19-positive person and the date(s) that the close contact occurred.
- All other employees who were not wearing a respirator and any other required PPE and worked in a well-defined portion of the workplace (e.g., a particular floor) in which the COVID-19 positive person was present during the potential transmission period. The notification must specify the date(s) the COVID-19 positive person was present in that portion of the workplace during the potential transmission period.
- Other employers whose employees were not wearing respirators and any other required PPE and have been in close contact with the COVID-19 positive person, or worked in a well-defined portion of the workplace (e.g., a particular floor) in which that person was present, during the potential transmission period. The notification must specify the date(s) and the location(s) of the COVID-19 positive person within the workplace during the potential transmission period.
Note that the notification provisions are not triggered by the presence of a patient with confirmed COVID-19 in a workplace where services are normally provided to suspected or confirmed COVID-19 patients (e.g., emergency rooms, urgent care facilities, COVID-19 testing sites, COVID-19 wards in hospitals). Additionally, any required notifications under the ETS must not include any employee’s name, contact information (e.g., phone number, email address), or occupation.
“Close contact” and “potential transmission period” are defined as follows:
- “Close contact” is defined as being within 6 feet of another person for a cumulative total of 15 minutes or more over a 24-hour period during that person’s potential period of transmission. Examples of cumulative exposures for 15 minutes could be 3 exposures for 5 minutes each or 1 exposure for 5 minutes and a second exposure for 10 minutes, over a 24-hour period.
- The potential transmission period runs from 2 days before the person felt sick (or, for asymptomatic people, 2 days prior to test specimen collection) until the time the person is isolated.
OSHA informs that, when making required notifications, employers should notify each individual in a language and manner they understand via a phone call, text message, e-mail, or in person (if using protections such as physical distancing and face coverings); however, in some cases, such as when close contact did not occur and all persons who could have been potentially exposed in a general area may not be known (e.g., restroom, building floor), the employer may satisfy notification requirements by posting notices in common areas (e.g., break rooms, time clock areas, or restrooms) as well as using alternative modes of communication needed to reach employees with disabilities.
C. Medical Removal From the Workplace
Employer must remove an employee from the workplace when the employer knows that the employee:
- is COVID-19 positive (confirmed positive for or was diagnosed by a licensed healthcare provider with COVID-19);
- has been told by a healthcare provider that they are suspected to have COVID-19;
- is experiencing recent loss of taste and/or smell, with no other explanation;
- is experiencing both fever (≥100.4° F) and new unexplained cough associated with shortness of breath;
- is required to be notified by the employer of a close contact in the workplace to a person who is COVID-19 positive (unless the employee has been fully vaccinated against COVID-19, or recovered from COVID-19 within the past 3 months, and does not experience: recent loss of taste and/or smell, with no other explanation; or both fever (≥100.4° F) and new unexplained cough associated with shortness of breath).
Employers must remove the employee from the workplace and keep the employee removed until the employee meets return to work criteria based on guidance from a licensed healthcare provider or applicable guidance from the CDC, unless state or local public health authorities specify a longer period of removal. More details provided in the “Return to Workplace After Medical Removal” section below.
After removing an employee who is suspected to have COVID-19, is experiencing recent loss of taste and/or smell, with no other explanation, or is experiencing both fever (≥100.4° F) and new unexplained cough associated with shortness of breath, the employer must either:
- Keep the employee removed until the employee meets the return to work criteria; or
- Remove the employee, provide a polymerase chain reaction (PCR) COVID-19 test at no cost to the employee, and keep the employee removed until the employer is notified by the employee of the test results.
- If the test results are negative, the employee may return to work immediately.
- If the test results are positive, the employer must keep the employee removed until the employee meets return to work criteria.
- If the employee refuses to take the test, the employer must continue to keep the employee removed until the employee meets return to work criteria, but the employer is not obligated to provide medical removal protection benefits. Note: Absent undue hardship, employers must make reasonable accommodations for employees who cannot take the test for religious or disability-related medical reasons.
After removing an employee who is required to be notified of close contact with a COVID-19 positive person in the workplace, the employer must either:
- Keep the employee removed from the workplace for 14 days.
- Keep the employee removed and provide a PCR COVID-19 test, at no cost to the employee, at least 5 days after the exposure that triggered the notification requirement.
- If the test results are negative, the employee may return to work after 7 days have passed following the exposure.
As a reminder, employees required to be notified by the employer of a close contact in the workplace to a person who is COVID-19 positive need not be removed if they have been fully vaccinated against COVID-19, or recovered from COVID-19 within the past 3 months, unless they experience: recent loss of taste and/or smell, with no other explanation; or both fever (≥100.4° F) and new unexplained cough associated with shortness of breath.
Additionally, employers may (but are not required to) remove employees who:
- are experiencing symptoms other than recent loss of taste and/or smell or fever coupled with new unexplained cough and shortness of breath;
- were exposed to a COVID-19 positive person outside of the workplace; or
- were notified by a state or local public health authority to quarantine or isolate.
Note that, although OSHA’s ETS does not require removal in these situations, the state or local public health authority may impose separate obligations or the employer might choose to remove employees in those circumstances, above and beyond what is required by the ETS.
When employee must be removed from the workplace pursuant to the ETS, the employer may require the employee to work remotely (e.g., telework) or in isolation if suitable work is available. When an employee’s regular duties cannot be performed remotely, employers should consider flexible and creative solutions (e.g., temporary reassignment to a position that can be performed by telework). If an employee is too ill to work due to COVID-19, however, remote work should not be required; sick leave or other leave should be made available as consistent with the employer’s general policies and any applicable laws.
D. Medical Removal Protection Benefits
Like other OSHA standards, such as OSHA’s lead standard, the ETS provides medical removal protection (“MRP”). This is in part to ensure continuity of benefits during an employee’s removal period. Importantly, the ETS MRP benefits provisions only apply if the employer is required to remove an employee under the ETS – that is, the ETS does not require the employer to provide paid medical removal protection benefits when removal is not required under the ETS.
If an employer is required to remove an employee under the ETS, obligations to pay the removed employee depend on the size of the employer:
- Employers with 10 or fewer employees on the date that the ETS became effective (i.e., June 21, 2021) are not required to maintain pay for removed employees.
- Employers with fewer than 500 employees, must pay the employee’s regular pay, up to $1400 per week, for the first two weeks that the employee is removed. Beginning in the third week, if the employee’s removal continues that long, the employer must pay two thirds of the same regular pay the employee would have received if working, up to $200 a day (equivalent to $1000 per week in most cases). Employers must also continue to provide the benefits to which the employee is normally entitled (e.g., employer-sponsored health insurance) during the removal period.
- Employers with 500 or more employees must pay the employee’s salary up to $1400 per week during the entire period of removal, until the employee meets applicable return to work criteria. Employers must also continue to provide the benefits to which the employee is normally entitled (e.g., employer-sponsored health insurance) during the removal period.
Note that, if the employee receives compensation for lost earnings from any other source, such as employer-paid sick leave, administrative leave, or a publicly funded compensation program, then the employer may reduce the amount paid to the removed employee by however much the employee receives from the outside source.
Additionally, employers are not required to provide overtime pay, even if the employee had regularly worked overtime hours in recent weeks. The employer’s obligation to pay medical removal benefits ceases when the employee meets the return to work criteria described in the ETS, even if the employer chooses to require a longer removal period.
Whenever an employee returns to the workplace after a COVID–19-related workplace removal, that employee must not suffer any adverse action as a result of that removal from the workplace and must maintain all employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed.
E. Return to Work
Employer’s decision to return an employee to work must be made in accordance with guidance from a licensed healthcare provider or applicable guidance from the CDC, unless state or local public health authorities specify a longer period of removal.
For example, as of the date of this writing, the CDC’s Isolation Guidance states that a COVID-19 positive person with symptoms can stop isolation when three criteria are met:
- at least ten days have passed since the first appearance of the person’s symptoms;
- the person has gone at least 24 hours without a fever (without the use of fever-reducing medication); and
- the person’s other symptoms of COVID-19 are improving (excluding loss of taste and smell).
If a person has tested positive but never experiences symptoms, then the person can stop isolating after ten days from the date of their positive test.
Importantly, to the extent that removal is causing critical staffing shortages, the ETS also includes a note stating, “OSHA recognizes that CDC’s ‘‘Strategies to Mitigate Healthcare Personnel Staffing Shortages’’  allows elimination of quarantine for certain healthcare workers, but only as a last resort, if the workers’ absence would mean there are no longer enough staff to provide safe patient care, specific other amelioration strategies have already been tried, patients have been notified, and workers are utilizing additional PPE at all times.”
Please contact any of the OSHA attorneys in Conn Maciel Carey’s national OSHA Practice if you need help determining ETS requirements regarding training. Also, check out our articles about other sections of the ETS, including: