Presentation for the New York State Association of Health Care Providers - The Application of the OSHA COVID-19 Standard and the NY HERO Act to ...

Presentation for the New York
                              State Association of Health
                                    Care Providers

The Application of the OSHA COVID-19 Standard and the NY HERO Act
to Home and Community-Based Health Care Providers

Theresa E. Rusnak
Associate
Bond, Schoeneck & King
trusnak@bsk.com
Rochester, NY

Introduction to the NY HERO Act

Amends New York Labor Law
• Adds Section 218-b – “Prevention of occupational exposure to
  an airborne infectious disease”
 o Original: Goes into effect 30 days after enactment (signature by Governor
   or otherwise)  June 4, 2021
 o Proposed Amendment: Goes into effect 60 days after enactment
   (signature by Governor Cuomo)  July 4, 2021

• Adds Section 27-D – “Workplace Safety Committees”
 o Goes into effect 180 days after enactment (signature by Government or
   otherwise)  November 1, 2021

Definitions
 Employer:

 • “Any person, entity, business, corporation, partnership, limited liability
   company, or association employing, hiring, or paying for the labor of any
   individual in any occupation, industry, trade, business, or service.”

 • The term shall not include the state, any political subdivision of the state, a
   public authority, or any other governmental agency or instrumentality.

Definitions
Employee:
• “Any person providing labor or services for remuneration for a private entity
  or business within the state, without regard to an individual’s immigration
  status, and shall include part-time workers, independent contractors,
  domestic workers, home care and personal care workers, day laborers,
  farmworkers and other temporary and seasonal workers.
• The term shall also include individuals working for digital applications or
  platforms, staffing agencies, contractors or subcontractors on behalf of the
  employer at any individual work site…
• The term shall not include employees or independent contractors of the
  state, any political subdivision of the state, a public authority, or any other
  governmental agency or instrumentality.”

Definitions
Work site:
• “Any physical place, including a vehicle, that has been designated as the
  location where work is performed over which an employer has the ability to
  exercise control.
• The term shall include employer-provided housing and employer-provided
  transportation at, to or from the work site 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 or such residence is
  provided by an employer covered under the provisions of article nineteen-A
  of this chapter.
• The term shall not include a telecommuting or telework site unless the
  employer has the ability to exercise control of such site.

Definitions
Airborne Infectious Disease:

• “Any infectious viral, bacterial or aerosol particles or droplets and is designed
  by the commissioner of health a highly contagious communicable disease
  that presents a serious risk of harm to the public health.”

• Please note: This is more than just COVID-19.

Workplace Safety Plans

Model Standards & Plans
• Department of Labor in consultation with Department of Health
  tasked with developing and publishing “model airborne infectious
  disease exposure prevention standard”
 o “General” Prevention Standard – applicable to all worksites not included in
   the specific industry standards

 o “Specific” Industry Prevention Standards
   − Industries representing significant portion of the workforce, or
   − Those with unique characteristics requiring distinct standards

 o English and Spanish (+ other selected languages)

Model Plans
• NY DOL/DOH released its model prevention plans on July 6,
  2021.
  o https://dol.ny.gov/ny-hero-act

• The State released a general model plan that entities could adopt,
  as well as model plans for 11 specific industries, including
  construction, delivery, food services, retail, private education, and
  others.
  o The State did not release an industry-specific plan for healthcare.

Airborne Infectious Disease Standard
• Along with the plans, the State released guidance on the HERO Act plans,
  called the “Airborne Infectious Disease Exposure Prevention Standard”
  o https://dol.ny.gov/system/files/documents/2021/07/p764-the-airborne-
    infectious-disease-exposure-prevention-standard-v4.pdf

• Per the Guidance, the HERO Act plan requirement does not apply to “Any
  employee within the coverage of a temporary or permanent standard
  adopted by the Occupational Safety and Health Administration setting forth
  applicable standards regarding COVID-19 and/or airborne infectious agents
  and diseases.”

OSHA COVID-19 Emergency Temporary Standard

OSHA COVID-19 Emergency Temporary Standard
• On June 10, 2021, OSHA released its Emergency Temporary
  Standard (ETS) for COVID-19
 o https://www.osha.gov/laws-
   regs/regulations/standardnumber/1910/1910.502

• The ETS applies in all settings where any individual provides
  healthcare services or healthcare support services.

OSHA COVID-19 ETS
• The ETS defines “healthcare services” as: “services that are
  provided to individuals by professional healthcare practitioners
  (e.g., doctors, nurses, emergency medical personnel, oral health
  professionals) for the purpose of promoting, maintaining,
  monitoring, or restoring health. Healthcare services are delivered
  through various means including: Hospitalization, long-term care,
  ambulatory care, home health and hospice care, emergency
  medical response, and patient transport.”

OSHA COVID-19 ETS
• The ETS also provides that the ETS is not applicable to:
 o “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”

• So…. The ETS will apply if there is a “professional healthcare
  practitioner” providing services in the home, but not if the home
  healthcare setting has all employees fully vaccinated, non-
  employees screening, and those with suspected or confirmed
  COVID-19 are not present.

Does the ETS Apply to Personal Assistants?
• Unlikely. Personal assistants are usually not “professional
  healthcare practitioners.”

• Therefore, if the ETS does not apply, the NY HERO Act does.
 o Which plan to adopt?
 o How to customize?
 o Other requirements?

OSHA COVID-19 ETS Requirements
• Develop and Implement a COVID-19 Plan
  All covered employers must develop and implement a COVID-19
  plan and must do so in writing if they employ more than 10
  employees. The plan must include:
  • a designated safety coordinator who must have compliance enforcement
    authority;
  • a workplace-specific hazard assessment;
  • an outline of the involvement of non-supervisory employees in hazard
    assessment and the development and implementation of the plan; and
  • policies and procedures to minimize the risk of transmission of COVID-19
    to other employees.

OSHA COVID-19 ETS Requirements
• Patient Screening and Management
  Employers are required to:
 • limit and monitor points of entries to workplace settings where direct
   patient care is provided;
 • screen and triage patients, clients, other non-visitors including non-
   employees; and
 • implement patient management strategies.

OSHA COVID-19 ETS Requirements
• Develop and Implement policies and procedures to adhere to the
  Standard and Transmission-Based precautions based on the
  CDC’s “Guidelines for Isolation Precautions”
• Personal Protective Equipment (PPE)
  Employers are required to:
  • provide and ensure each employee wears a facemask indoors and when
    occupying a vehicle with other people for work purposes; and
  • 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.

OSHA COVID-19 ETS Requirements
• Implement specific aerosol-generating procedures on a person with
  suspected or confirmed COVID-19
• Ensure physical distancing and install cleanable and disposable physical
  barriers
• Follow CDC guidelines to clean and disinfect surfaces and equipment
• 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

OSHA COVID-19 ETS Requirements
• Ensure health screening and medical management
• Provide reasonable time and paid leave for vaccinations and
  vaccine side effects
• 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

OSHA COVID-19 ETS Requirements
• Notification of exposure in the workplace
• Protections for retaliation for exercising rights under the ETS
• Establish a COVID-19 log of all employee instances of COVID-19
  (whether contracted through workplace exposure or not)
• Report all work-related COVID-19 fatalities and in-patient
  hospitalizations

• The ETS became effective on June 21, 221, and compliance was
  required by July 6th for most provisions.

NY HERO Act Plans

NY HERO Act Plans
• For those entities to whom the ETS does not apply, a plan
  compliant with the HERO Act must be adopted by August 5, 2021
 o Applies to entities of all sizes

• However…. Does the HERO Act apply to those entities to whom
  the ETS applies for purposes of airborne infectious diseases that
  are not COVID-19?
 o “Any infectious viral, bacterial or aerosol particles or droplets and is
   designed by the commissioner of health a highly contagious communicable
   disease that presents a serious risk of harm to the public health.”

NY HERO Act Plans
• The State Guidance does not discuss this possibility, but the
  statutory language would suggest that entities are still required to
  adopt a plan for viruses not covered by an OSHA standard.
  o Each entity must decide whether to develop a plan for illnesses other than
    COVID-19.
  o Penalties for not adopting a plan when required are $50 per day from NY
    DOL, as well as a limited private right of action (notice must be given and
    employer has 30 days to correct)

NY HERO Act Plans
• The industry-specific plans are largely similar to the model plan
  o Entities may adopt alternative plans that meet the statutory requirements

• “Domestic Workers” model plan applies to: “domestic workers,
  home care and personal care workers, as well as individuals
  working for digital applications or platforms, staffing agencies,
  contractors or subcontractors on behalf of the employer at any
  individual work site, as well as any individual delivering goods or
  transporting people at, to or from the work site on behalf of the
  employer ”

NY HERO Act Plans
• Requires the designation of individual to oversee the
  implementation of the plan

• Requires the implementation of exposure controls during a
  designated outbreak
 o Education/awareness
 o Stay at Home Policy for sick individuals
 o Health screenings
 o Face coverings
 o Physical Distancing
 o

NY HERO Act Plans
•   Hand hygiene
•   Cleaning and disinfection
•   Respiratory etiquette
•   Accommodations for individuals with added risk factors

• Engineering controls: ventilation, air purifiers, automatic
  disinfection systems, barriers

NY HERO Act Plans
• Administrative Controls: Examples
 o Provide additional short breaks for handwashing and cleaning;
 o Ensure health screenings are conducted for the household residents and
   frequent visitors;
 o Prohibit eating and drinking at the worksite;
 o Establish a plan with residents regarding cleaning high touch surfaces;
 o Establish a plan with residents indicating who is responsible for cleaning
   areas that the domestic worker will be in;
 o Communicate with residents in advance that NYSDOH/CDC guidance will
   be followed including but not limited to: quarantine orders, social
   distancing, and face coverings.

NY HERO Act Plans
• Plan must list the PPE to be required/provided

• Housekeeping:
 o Objects that are touched repeatedly by multiple individuals, such as door
   handles, light switches, control buttons/levers, dials, levers, water faucet
   handles, computers, phones, or handrails must be cleaned frequently with
   an appropriate disinfectant. Surfaces that are handled less often, or by
   fewer individuals, may require less frequent disinfection.

NY HERO Act Plans
• Plan must provide for the removal of a potential or diagnosed
  individual from the work area, as well as how to inform impacted
  individuals

• Training must be done for all individuals when the plan is
  adopted, including location of plan and events that trigger the
  plan, as well as when the plan goes into effect (in a state of
  emergency)

NY HERO Act Plans
• Must contain anti-retaliation provision, and method for reporting
  plan violations

• Provision for the regular review of the plan

Posting/Notice Requirements
• Must provide prevention plan in writing to employees:

 o Within 30 days after adoption of plan

 o Within 15 days after reopening after period of closure due to airborne
   infectious disease

 o Upon hire to newly hired employees

 o If business is open on effective date (July 4, 2021), within 60 days after
   DOL publishes model standard relevant to the industry.

Posting/Notice Requirements
Additional Requirements:

 o Plan must be provided in an employee’s primary language + English

 o Prevention plan must be posted in visible and prominent location within
   each worksite (not including vehicles)

 o Must be included in employee handbook (if any)

 o Must provide it upon request to employees, independent contractors,
   union, DOL, and DOH

Coming Attractions
• NY HERO Act Part II:
 o Workplace safety committees
 o Applies to workforces with 10 or more employees
   − Fiscal intermediaries

 o Workplace safety committees may be formed on or after November 1,
   2021

Questions?