New COVID-19 Laws That Affect Your Workforce

Medical professionals face unique sets of challenges and specific regulations during the COVID-19 pandemic. As knowledge about the virus evolves, and as cases of affected patients continue to rise, community responses and government regulations also evolve to help practices safely manage patients’ health, protect their staff’s safety, and remain financially solvent. Below are several of these new laws and protocols that likely affect your medical practice, plus recommended and required steps to take.

Though current at the time of writing, these regulations and guidelines are subject to change, so be sure to verify with official sources.

OSHA Regulations and New Protocols

As part of its efforts to protect workers from on-the-job hazards, the Occupational Safety and Hazard Administration (OSHA) issued interim guidance for specific worker groups and their employers, with specific instructions to health care employers. OSHA’s infection prevention recommendations include engineering controls (such as the use of physical barriers between patients and staff), administrative controls (such as isolating patients and minimizing staff present for procedures), and safe work practices (like avoiding unnecessary touching of surfaces) to help protect workers from COVID-19 exposure.

Employers of health care workers remain responsible for following applicable OSHA requirements. Workplaces such as dental offices and medical practices with occupational exposure to blood and other potentially infectious materials, including saliva in dental procedures, must comply with OSHA’s Bloodborne Pathogens standards. These standards include the practice of universal safety precautions. While employers still are responsible for complying with OSHA’s Personal Protective Equipment standards, which includes the Respiratory Protection standard, OSHA is providing temporary flexibility for certain requirements under these and other standards. Specifically, OSHA has issued temporary enforcement guidance related to the executive order making general use respirators available to health care personnel during the COVID-19 emergency.

Personal Protective Equipment

Employers must provide appropriate personal protective equipment (PPE) to staff to limit their potential exposure to infectious hazards. Workers who must use PPE must be trained on when to use it, what equipment is necessary, how to put on and take off PPE to prevent self-contamination, how to dispose of or disinfect PPE properly, how to maintain PPE, and limitations of the PPE safely. Applicable standards include Eye and Face Protection, Hand Protection, and Respiratory Protection.

Recommended PPE for health care personnel who interact with patients or could be exposed to contaminated materials include:

• Isolation gowns
• Nitrile exam gloves
• National Institute for Occupational Safety and Health (NIOSH)-certified, disposable N95 or better respirators
• Eye and face protection, such as goggles and face shield

Given supply chain shortages of PPE across the country, the Centers for Disease Control (CDC) updated its recommendations to allow facemasks as an acceptable alternative to N95 respirators, with respirators prioritized for use in procedures more likely to generate respiratory aerosols. Practices should preserve their inventory of PPE as much as reasonably possible. In case of shortage, PPE protocols may require modification to allow the reuse of equipment or allow alternatives that do not meet the standards.

Required Training

Employers also are responsible for training workers about:

• Sources of occupational exposure to the virus
• Appropriate workplace protocols to prevent or reduce exposure
• How to isolate people with suspected COVID-19
• How to report possible cases to public health authorities

All training must be provided during scheduled work times for free to the employee. Refer to OSHA’s reference library for training resources.

State-Specific Standards

Twenty-eight states have OSHA-approved State Plans, which could include more stringent or extensive standards. For example, the California Division of Occupational Safety and Health (Cal/OSHA) mandates certain employers follow the Aerosol Transmissible Diseases (ATD) standard. Employers must follow the stricter guidelines, where both state and federal regulations exist.

Actions to Take:

• Perform a hazard assessment that identifies potential sources of exposure.
• Establish office protocols to minimize risks of exposure, including limiting patients, prohibiting visitors, screening staff, and patients for symptoms, disinfecting surfaces more frequently and more.
• Consult the CDC’s Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings.
• Review OSHA standards, especially Bloodborne Pathogens, Personal Protective Equipment, and Respiratory Protection.
• Review applicable state occupational standards.
• Ensure your staff has adequate PPE, and they know how to use it properly.
• Inventory your PPE and prioritize the use in case of shortages.
• Provide training to staff as required by OSHA.

Families First Coronavirus Response Act (FFCRA)

The Families First Coronavirus Response Act (FFCRA) includes the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). Enacted into federal law on March 18, 2020, the legislation is effective April 1, 2020, until December 31, 2020. These laws cover all private employers with fewer than 500 employees and require them to provide paid leave to employees under certain circumstances related to COVID-19. The U.S. Department of Labor’s Wage and Hour Division (WHD) administers and enforces the requirements.

Emergency Sick Leave

Covered employers who are not electing an exception (see below) must provide any employee two weeks (up to 80 hours for full-time employees) of emergency paid sick leave in certain circumstances, detailed below. This sick leave is available to all employees, regardless of their length of employment.

Emergency sick leave must be paid at the worker’s regular rate of pay if the employee cannot work because:

• The employee is quarantined on the advice of a health care provider
• The employee is under a federal, state, or local government isolation order
• The employee is experiencing COVID-19 symptoms and seeking a medical diagnosis

Note that the amount paid is subject to aggregate caps. Sick leave for one of the above reasons is limited to a maximum benefit payment of $511 per day, or $5,110 total over the entire emergency paid sick leave time.

If the employee cannot work because of a need to care for someone subject to quarantine (pursuant to government order or health care provider advice) or to care for a child under 18 years of age whose school or child care provider is closed for COVID-19 related reasons, then the employee is eligible for up to 80 hours (two weeks) of emergency paid sick leave paid at two-thirds the employee’s regular rate of pay. In these circumstances, the sick leave benefit pays a maximum of $200 per day or $2,000 over the entire two week period.

Note that the employee cannot take emergency paid sick leave both for themselves and to care for another; the total hours of emergency paid sick leave cannot exceed 80 hours. Also, note that you cannot require an employee to first exhaust other paid leave. You must grant emergency sick leave in addition to any pre-existing leave benefits.

Emergency FMLA

Covered employers must provide employees that have been employed for at least 30 days with up to an additional 10 weeks of paid expanded family and medical leave when an employee cannot work. The reason for the employee’s absence must be a need to care for a child under 18 years of age whose school or child care provider is closed for reasons related to COVID-19. Employees are to be paid two-thirds of their regular rate of pay for the hours they would have been scheduled to work during that period. The maximum pay is $200 per day, or $12,000 in the aggregate if the employee takes two weeks of paid emergency sick leave followed by 10 weeks of emergency leave.

Exceptions

Employers with less than 50 employees or who are health care providers under the FFCRA’s definition may provide FFCRA paid leave to their employees, or they may elect for an exemption to the requirements. According to the regulations, an employer might need to rely on the exemption if it determines that:

• Providing paid sick leave or expanded FMLA would cause the business to cease operating at a minimal capacity because expenses would exceed revenue
• The absence of the employee requesting paid sick leave or expanded FMLA would pose a substantial risk to the finances or operational capabilities of the business because of the employee’s specialized skills or responsibilities
• There are not sufficient workers able, willing, and qualified to perform the labor or services of the employee requesting paid sick leave or expanded FMLA, and the labor or services are needed to operate at minimal capacity

Tax Credits

Covered employers qualify for tax credits that provide dollar-for-dollar reimbursement for all qualifying emergency paid sick leave or expanded FMLA wages paid under the FFCRA, up to the aggregate payment caps. The fully refundable tax credits also include the employer’s share of Medicare tax for those wages and the cost of maintaining health insurance coverage for the employee during the sick leave period. The employer is not subject to the employer portion of social security tax imposed on those wages. 

Employers claim the credits on their federal employment tax returns, but they can benefit more quickly by reducing their federal employment tax deposits. If there are not enough federal employment taxes to cover the amount of the credits, employers may request an advance payment of the credits from the IRS by submitting a Form 7200, Advance Payment of Employer Credits Due to COVID-19. 

Actions to Take:

• Post the required FFCRA notice according to the notice posting requirements. The notice must be in clearly visible locations and sent to remote staff. To obtain notices free of charge, contact the WHD at 1-866-4-USWAGE (1-866-487-9243), or download and print the notice yourself from https://www.dol.gov/agencies/whd/posters.
• Determine whether your practice will require the use of the exemption to FFCRA.
• In addition to policies around requiring symptomatic or at-risk employees to stay home, create policies regarding emergency sick leave, and expanded FMLA.
• If your practice will not be taking exception to FFCRA and intends to obtain tax credits, thoroughly document the staff absences and leaves taken for COVID-19 related reasons, including specific details such as the names and ages of children, the name of the closed school or child care provider, etc.
• Retain a copy of Form 941, Employer’s Quarterly Federal Tax Return.

Local and State Sick and Family Leave

Several cities and states have enacted their own emergency sick leave and paid family leave requirements to expand protections beyond the federal programs. For example, San Francisco issued new guidance that requires covered employers in the city to let employees use accrued sick leave for several COVID-19 related reasons. San Francisco also created the Workers and Families First Program to offer financial incentives for businesses to provide an additional five days of sick leave pay.  

Actions to Take:

Consult your city government, state labor agencies, and benefits providers to find out whether you have additional employment laws to follow for sick leave or family leave.

Restrictions on Different Practice Types

The Centers for Medicare & Medicaid Services (CMS) issued “Non-Emergent, Elective Medical Services, and Treatment Recommendations” to guide practices in determining what health care they should postpone during the COVID-19 crisis. Many state governments, state medical boards, and local jurisdictions have issued restrictions on different practices and different procedures. The intent of the restrictions is to help prevent the spread of the virus by limiting potential contact with infected persons, preserve the availability of health care personnel to care for patients affected by COVID-19, ration use of limited supplies of PPE, and save additional hospital space to care for infected patients. Generally, all licensed health care providers should postpone all surgeries and procedures that are not immediately necessary to prevent serious adverse medical consequences or death.

Many states have issued orders specific to specialty. For example, in California, the Department of Public Health issued “COVID-19 Guidance for Dentistry.” The directive:

• Advises dentists to postpone all routine, cosmetic, and non-emergency care indefinitely
• Requires dentists be available to their patients of record for emergency care
• Instructs dentists to screen each patient to be sure they are asymptomatic and have not been exposed to someone with COVID-19
• Details protocols for treating patients for emergency dental issues

Actions to Take:

• Review any federal, state, professional, or CDC directives applicable to your specialty and your location.
• Postpone any elective or cosmetic surgeries, as well as non-emergency procedures.
• Thoroughly document any decisions to proceed with treatment or delay scheduled procedures and surgeries.
• Develop guidelines for allowable office visits.
• Follow up-to-date guidance on treating patients with confirmed or suspected COVID-19.

Special Considerations for Contract Staff

Independent contractors are not employees. They are not eligible for emergency sick leave or expanded FMLA under the FFCRA, and you cannot claim tax credits. However, there are a few financial assistance resources possibly available to contract staff.

Under the Coronavirus Aid, Relief and Economic Security (CARES) Act, eligibility criteria are expanded to include people not typically eligible for unemployment insurance. The CARES Act provides for Pandemic Unemployment Assistance (PUA) for independent contractors and self-employed individuals who have lost employment or have reduced hours of work as a result of the COVID-19 emergency.

Contract staff (and your practice) might qualify for a $10,000 Economic Injury Disaster Loan Emergency Advance through the Small Business Administration, as well as the Paycheck Protection Program. These programs, enacted through the CARES Act, provide temporary, immediate relief for small businesses, self-employed individuals, and independent contractors. The funds are intended to pay for payroll expenses, as well as some operating expenses like rent and utilities.

Special note to California practices or practices that use California-based workers: With legislation effective January 1, 2020, classification of workers as independent contractors narrowed significantly. While Assembly Bill No. 5 (AB5) exempts physicians and dentists, nurses, physician’s assistants, behavioral health providers, medical transcriptionists, and more are subject to the law. By default, everyone not exempted is considered an employee; businesses bear the burden of ensuring an individual fulfills the criteria of the so-called ABC test for independent contractors.

If a worker you treated as an independent contractor attempts to file for standard unemployment insurance, the state Employment Development Department (EDD) likely will audit your working relationship to determine whether the classification was correct. The EDD could determine the individual should have been classified as a W2 wage employee. In that case, you will be liable for the back payment of employment taxes.

Actions to Take:

• Review available resources for financial assistance, if needed.
• If in California, review the potential impact of the AB5 legislation on your classification of workers as independent contractors.

Stay-at-home Orders and Social Distancing Protocols

No federal stay-at-home order has been issued, though the White House recommends the country follow social distancing measures. However, up to 97 percent of the United States population is subject to state and/or local stay-at-home orders. Nearly all stay-at-home orders include exceptions related to essential activities and purposes, including health care. Most stay-at-home orders do not consider elective medical procedures and surgeries to be essential, and as such, prohibit them.

Though physicians’ offices, dental practices, and other health care providers generally are considered essential businesses, many city, county, or state jurisdictions have imposed mandatory social distancing protocols. For example, Eagle County, Colorado, requires essential businesses that remain open to create and visibly post a Social Distancing Protocol that explains how the business plans to meet social distancing, sanitizing, and cleaning requirements. Employers must give every employee working on-site a copy of the protocol, and businesses must follow the protocol. Similarly, several counties in California now require dental offices, ambulatory clinics, and more to complete the Social Distancing Protocol PDF form; the form must be given to employees, posted near the facility’s entrance, and be available to any enforcing authority upon request.

Actions to Take:

• Review any local order to stay-at-home, and confirm your practice does not perform any prohibited activities.
• Delay all non-urgent patient care.
• Establish and follow the required and recommended social distancing protocols whenever possible.
• Make adjustments to the workplace and to protocols to allow staff more physical distance from each other and from the public.
• Consider allowing staff to complete certain tasks remotely, provided that appropriate security measures will be in place to fulfill HIPAA-related privacy requirements.
• Consider implementing telehealth technologies to continue to serve patients remotely via virtual visits.

Key Takeaways

• Regularly check the CDC for updated guidance on safety precautions.
• Stay current on OSHA guidelines and interim enforcement orders regarding workplace safety requirements and recommendations.
• Check with national and state chapters of professional organizations, such as the American Dental Association, for practice-specific guidance.
• Comply with current and updated labor law requirements from the Department of Labor.
• Follow more specific local and state orders for public health.
• Explore options available for financial assistance.
• Establish communication channels with staff and patients and clearly communicate information about your practice’s protocols and policies for handling their health and safety during the COVID-19 emergency.

At Doctor Genius, our team works to help inform practices and provide guidance on operational decisions for your practice’s best interests. Contact us with questions and to learn more about what we can do for you in this crisis.

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