Kristin M. Ahr (kristin.ahr@nelsonmullins.com) is a Partner in the West Palm Beach office and Amy B. Cheng (amy.cheng@nelsonmullins.com) is an Attorney in the Atlanta office of Nelson Mullins Riley & Scarborough LLP.
When the Occupational Safety and Health Administration (OSHA) released its broad Emergency Temporary Standard (ETS) on June 10,[1] the healthcare community scrambled to implement the safety requirements identified in the ETS to mitigate the spread of COVID-19 in the workplace. Notably, the ETS requires healthcare employers with more than 10 employees to take additional steps to protect their workers in settings where suspected or confirmed COVID-19 patients are treated, such as paying its employees when they are on medical removal leave pursuant to the Temporary Standard medical removal pay (MRP) requirements. The MRP imposes a financial burden on the healthcare employer, and an employer’s failure to comply may lead to dire consequences.
Employees eligible for MRP under ETS
All healthcare providers that employ more than 10 employees must immediately remove an employee and place them on medical removal leave when:
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The employee is COVID-19 positive (i.e., they have a confirmed positive test for or have been diagnosed by a licensed healthcare provider with COVID-19);
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The employee has been told by a licensed healthcare provider that they are suspected to have COVID-19;
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The employee is experiencing recent loss of taste and/or smell with no other explanation; or
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The employee is experiencing both a fever of at least 100.4°F and new unexplained cough associated with shortness of breath.
This list represents the minimum medical removal requirements for compliance with OSHA’s COVID-19 ETS. The full list of COVID-19 symptoms provided by the Centers for Disease Control and Prevention[2] includes additional symptoms not listed above. Further, additional studies and reports reveal that COVID-19–positive patients who have contracted the Delta variant or breakthrough COVID-19 infection may experience symptoms different than those originally connected to COVID-19 at the onset of the outbreak in early to mid-2020.[3] Employers may choose to remove or test employees with additional symptoms from the Centers for Disease Control and Prevention list or refer the employees to a healthcare provider.
