Articles | Cases

COVID-19: federal, state, and other updates

OSHA's COVID-19 ETS submitted to OMB for final approval

The long anticipated COVID-19 Emergency Temporary Standard (ETS) was submitted to the White House's Office of Management and Budget (OMB) for approval on April 26. Since the rule is an emergency temporary standard, it bypassed the typical public notice and comment period that precedes most rules. The listing on the OMB website indicates that it is a final rule, is economically significant, and that the regulatory text is not available to be viewed by the public.

Although the OMB has 90 days to review and approve the rule, most experts suggest it will only take two or three weeks and that the Office of Information and Regulatory Affairs (OIRA) within OMB is likely to provide some opportunity for stakeholder input. In a news release, OSHA referred to "standards" without further explanation. It is possible that there may be one standard for higher risk industries and another for all industries.

The rule will stay in effect for six months at which time the Department is required to adopt a permanent standard.

Tax Credit for small businesses that provide PTO for vaccinations

The tax credit is available to organizations with fewer than 500 employees, and it also provides full pay for employees who take time to recover from the vaccination. The credit covers up to $511 per day for each vaccinated employee and is funded by the American Rescue Plan. The IRS has released a fact sheet on eligibility and how to claim the credit.

OSHA head

President Joe Biden nominated the head of the California Division of Occupational Safety and Health, Doug Parker, for assistant secretary for Occupational Safety and Health, Department of Labor. The nomination requires Senate confirmation. Mr. Parker has a long history of worker safety and health involvement and most recently developed and rolled out Cal/OSHA's COVID-19 Emergency Temporary Standard (ETS), considered to be the toughest in the country.

New CDC guidelines on surface cleaning

Cleaning once a day is usually enough to sufficiently remove virus that may be on surfaces and help maintain a healthy facility when no people with confirmed or suspected COVID-19 are known to have been in a space according to updated CDC guidance.

However, establishments "may want to either clean more frequently or choose to disinfect (in addition to cleaning) in shared spaces if certain conditions apply that can increase the risk of infection from touching surfaces." Such conditions include high transmission of COVID-19 in the community, a low number of people wearing masks, infrequent hand hygiene, or if the space is occupied by people at increased risk for severe illness from COVID-19.

Meatpackers suit against OSHA dismissed

A federal judge in Pennsylvania dismissed a lawsuit by meat plant workers at Maid-Rite Specialty Foods plant in Dunmore against OSHA, claiming the agency failed to protect them from COVID-19. The judge noted that an OSHA inspector did not find the workers to be in "imminent danger."


Process launched for adding COVID-19 protocols to drug formulary

The Division of Workers' Compensation launched its process for adopting COVID-19 treatment protocols into its drug formulary for treating injured workers, the first state with a drug formulary to do so. The agency has issued a notice for a virtual public hearing May 14 on the proposed update to the Medical Treatment Utilization Schedule, which would put the state's formulary in line with the American College of Occupational and Environmental Medicine's (ACOEM) Coronavirus Guideline.

Supplemental workplace safety requirements for employers overseeing events at private events and venues

Effective April 15, 2021, the Department of Public Health launched supplemental workplace safety requirements for employers overseeing events at private events and venues, calling for social distancing, employee testing, and mask-wearing as well as attendance limits, ventilation, and cleaning and disinfecting protocols.

COVID Liability Shield for 'Good-Faith' Compliance with Health Guidelines

Effective March 29, 2021, a new law protects businesses, health care providers, schools, religious institutions, and public entities from COVID-19 liability, provided they have made a good-faith effort to follow "authoritative or controlling government-issued health standards or guidance." The new law also requires that COVID-19-related torts be filed within a year after the alleged injury or by March 29, 2022, if the one-year window had already closed before the law went into effect.

Bill limits work safety standards to federal OSHA

Lawmakers overrode the Governor's veto of a bill that prevents the Kentucky Occupational Safety and Health Standard's Board or the state's Labor secretary from promulgating any workplace safety and health rules more stringent than those of the federal Occupational Safety and Health Act.


The Governor signed into law a bill that extends a presumption that COVID-19 is compensable for frontline workers through the end of the year. The presumption was set to expire May 1 and covers doctors, nurses, paramedics, firefighters, police, correctional officers and child care workers. It also includes other provisions based on recommendations from the Workers' Compensation Advisory Council. It allows for a $1,000 penalty for health care providers who attempt to collect payment from an injured worker, and a $2,000 penalty if the worker made the payment. A new provision, effective Oct. 1, requires the minimum weekly compensation to be 20% of the maximum benefit or the employee's actual weekly wage, whichever is less.

New York
New policies for nursing homes and vaccinations

The State Health Department (NYSDOH) is trying to encourage nursing home staff and residents to get vaccinated. Effective April 15, 2021, Title 10 of the Official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR) was amended by adding a new Subpart 66-4, COVID-19 Nursing Home and Adult Care Facility Vaccination Program. Nursing homes must ensure that all new personnel, including employees and contract staff, and every new resident and resident readmitted to the facility has an opportunity to receive the first or any required next dose of the COVID-19 vaccine within fourteen days of having been hired by or admitted or readmitted to such facility. Workers and residents who refuse to be vaccinated must sign a waiver indicating they were offered the vaccine but declined. Nursing homes that fail to comply face fines of up to $2,000 per violation.

Amazon loses bid to move COVID-19-related lawsuit to federal court

The New York Attorney General filed a lawsuit against Amazon, claiming it prioritized profits over worker safety at two NYC warehouses. In turn, Amazon filed suit in a federal court to stop her from suing. A federal judge granted the AG's request to return the lawsuit to New York state court.

Expands presumption for emergency rescue workers

The state has expanded the presumption it gives to emergency rescue workers who have suffered a disability in the line of duty to include a virus or other communicable disease for which a pandemic has been declared by the World Health Organization or the federal centers for disease control and prevention, and for which the governor has declared a state of emergency.

Rebuttable presumption with vaccine requirement

A recently signed law that creates a rebuttable presumption makes it easier for healthcare workers and first responders to obtain workers' compensation for coronavirus. It provides coverage from March 12, 2020 until December 31, 2021. The health care worker must have been treated for COVID-19 symptoms and been diagnosed by a medical provider to qualify for compensation before July 1, 2020. The individual must have received medical treatment and a positive COVID-19 test to be eligible for compensation after July 1, 2020.

However, if the employer offered a vaccine and a worker refused, the presumption does not apply. There is an exception for people with a medical condition that puts them at risk from a vaccine.

ACOEM updates guidelines for COVID-19

The updated COVID-19 evidence-based guideline provides recommendations for employer considerations, including vaccinations, high-risk employees, educational tools, travel issues, PPE, ventilation, a discussion of disability considerations, as well as treatment recommendations.

States and comp payers typically rely on ACOEM or the Official Disability Guidelines (ODG) drug list to manage and update their formularies. Researchers note that it's been a challenge to develop evidence-based clinical guidelines because there is limited data. ODG guidelines are scheduled to be updated in June.