New DOL, OSHA, and TWC Rules Inform Both Employees and Employers, as Pandemic Eases1
A. New Standard Issued by DOL Aimed at Protecting At-Risk Workers in Healthcare
On June 10, 2021, the Department of Labor ("DOL") issued a highly anticipated emergency temporary standard ("ETS") setting workplace safety parameters for employers in the healthcare sector during COVID-19. What does this new standard mean for employers?
The ETS imposes a laundry list of obligations for healthcare employers in efforts to provide increased COVID-19 protections to healthcare workers. First, employers must maintain proper social distancing and patient screening protocols. Second, employers must encourage COVID-19 vaccinations by giving workers paid time off to get vaccinated and recover from any side effects. If there are more than 10 employees, employers are also required to create a virus safety plan, screen workers prior to their shifts, ensure that proper ventilation procedures are in place, and provide fresh masks and other personal protective equipment for certain high-risk situations. Employees who test positive for COVID-19, or are suspected of being infected, must also be removed from workplaces. When this occurs, employers with more than 10 employees must continue paying workers their normal salary up to $1,400 a week for the first two weeks they are absent if they can't work remotely. To offset the cost of doing so, certain employers may be able to claim a tax credit or use publicly funded programs, such as paid sick leave
B. New OSHA Regulations for Non-Healthcare Employers
Additionally, the DOL's workplace safety arm, Occupational Safety and Health Administration ("OSHA"), has also issued a series of voluntary guidelines for non-healthcare employers, particularly in industries such as meatpacking and high-volume retail where close contact between people is common. These voluntary guidelines include enhanced cleaning programs with a focus on high-touch surfaces, proper ventilation and screening protocols, paid time off vaccination policies, usage of personal protective equipment or face coverings, and social distancing. However, in accordance with new CDC guidance loosening COVID-19 restrictions, and in the absence of any local, state, or federal law stating otherwise, most employers under OSHA no longer need to take the above steps to protect their workers from COVID-19 exposure if all employees at the workplace, or within a well-defined portion of the workplace, are fully vaccinated.
Once published in the Federal Register, the ETS will become effective immediately and employers will have to comply with its provisions within 30 days. However, OSHA will use its enforcement discretion to avoid citing employers who miss a compliance deadline but are making a good faith effort to comply with the ETS.
C. New TWC Guidelines: "Fear of Coronavirus" No Longer an Acceptable Reason to Collect Unemployment Benefits
On June 8, 2021, TWC issued a press release that starting June 26, it would be ending job refusal guidance associated with past COVID-19 emergency orders. This means that jobless Texans who refuse work offers because they feel unsafe to work during the pandemic will now lose access to a $300-per-week supplemental benefit through the federal Pandemic Emergency Unemployment Compensation ("PEUC") program. Additionally, for freelancers, independent contractors, project-based workers, temporary or part-time hires, and others who don't traditionally receive unemployment benefits, Texas Governor Greg Abbott also cut off the Pandemic Unemployment Assistance ("PUC") program.
This response comes after the Texas Association of Business and 37 other business organizations wrote a letter to Gov. Greg Abbott urging him to pull out of the above two unemployment programs to encourage productivity and lower unemployment. Both TWC and Gov. Greg Abbott cited to the decline of COVID-19 cases in Texas, widespread availability of COVID-19 vaccines and testing, greater availability of childcare services, and a need to kickstart the Texas economy as the many reasons to end the previous outdated job refusal guidance. Further, under state and federal law, individuals must actively search for work, and be able and available to work in order to continue receiving unemployment benefits.2
The TWC press release went on to say that it remains dedicated to helping jobless Texans get back on track through a variety of programs and services that help Texans find jobs, expand their skills, and improve their marketability. These programs and services include job search platforms such as MyTXCareer.com and WorkInTexas.com, online training and certification programs through the Restaurant Recovery Training Program, virtual and in-person job fairs, and TWC sponsored child care services. Lastly, according to TWC and Gov. Greg Abbott, there are nearly 60% more listed jobs open in Texas today than February 2020 and approximately 76% of posted jobs pay more than $11.50 an hour.
1 Summer law clerk, Yumna Khan, assisted in the research and writing of this blog.
2 See e.g., Unemployment Insurance Relief During COVID-19 Outbreak, U.S. Dep't of Lab., https://www.dol.gov/coronavirus/unemployment-insurance (last visited June 14, 2021) ("The [Federal Pandemic Emergency Unemployment Compensation] program covers most individuals who have exhausted all rights to regular unemployment compensation under state or federal law and who are able to work, available for work, and actively seeking work as defined by state law."); Work Search Requirements for Unemployment Benefits, TEX. WORKFORCE COMM'N, https://www.twc.texas.gov/jobseekers/work-search-requirements-unemployment-benefits (last visited June 14, 2021) ("You must actively search for work and meet your minimum number of weekly work search activities to be eligible for unemployment benefits. If you work part time, you must continue to look for full-time work each week.").
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