The American Rescue Plan Act’s Potential Impacts on Health Care Employers and Related OSHA Enforcement Initiatives
This Bulletin is brought to you by AHLA’s Labor and Employment Practice Group.
- March 24, 2021
- Dee Anna D. Hays , Ogletree Deakins Nash Smoak & Stewart PC
- James J. Plunkett , Ogletree Deakins Nash Smoak & Stewart PC
The federal government has appropriated approximately $6 trillion over the last year to help fight the COVID-19 pandemic and buttress the economy. About one-third of this money—$1.9 trillion—was authorized on March 11, 2021, when President Biden signed the American Rescue Plan (ARP) into law. In addition to money directly related to combatting the virus, the ARP is intended to flood the economy with money—through direct payments to individuals, unemployment insurance benefits, tax breaks, or other forms of relief. Of course, with such a massive piece of legislation, there are bound to be impacts on employers. More specifically, there are certain provisions in the ARP that may have unique impacts on health care employers.
For example, the three unemployment programs established by the CARES Act will continue through September 6, 2021. This includes the Pandemic Unemployment Assistance program for independent contractors and other workers who are not normally eligible for unemployment insurance, increasing the number of eligibility weeks from 50 weeks to 79 weeks. The ARP also continues the Pandemic Emergency Unemployment Compensation that provides extra weeks of unemployment benefits for workers who have maxed out their state unemployment benefits. Again, the benefits weeks for this program are increased, this time from 24 weeks to 53 weeks. Lastly, a third program—Federal Pandemic Unemployment Compensation—continues a $300 per week supplement to unemployed workers. Health care employers might have to account for these benefit programs when making personnel decisions relating to reductions in force and return to work matters. Further, in hopes of benefitting from these unemployment compensation programs, some employees who are recalled from a layoff or who have been working remotely may be reluctant to return.
While the unemployment insurance programs are obviously intended to support workers who become unemployed through no fault of their own, other programs in the ARP help to limit separations from work in the first place. For example, tax credits will continue to be available for employers who voluntarily provide COVID-related paid leave, including for situations in which the employee is obtaining the COVID-19 vaccination or to obtain a COVID-19 test when requested by the employer. Further, the employee retention credit established under the CARES Act, which allows employers to claim a tax credit for wages paid to employees, will be continued through December 31, 2021 under the ARP. For health care employers who are federal contractors, the ARP continues to reimburse them for costs related to providing paid leave to certain employees and subcontractors who cannot work or telework due to the pandemic.
Finally, the ARP provides up to $200 million in funds for the U.S. Department of Labor, half of which are allocated to the Occupational Safety and Health Administration (OSHA), “to carry out COVID-19 related worker protection activities” and for the Office of Inspector General to oversee those efforts. As of January 14, 2021, OSHA had issued hundreds of citations resulting from COVID-19 inspections, with total initial penalties of $4,034,288. Many of these citations involved health care organizations, including hospitals, home health care, assisted living facilities, rehabilitation and nursing centers, family care centers, addiction treatment centers, dental facilities, and health care management companies. Inspections have continued to rise over the past few months. As of March 14, 2021, OSHA had received a total of 16,192 COVID-19 related health and safety complaints and referrals at the federal level, and opened 1,816 inspections. The majority of these inspections were triggered by employee complaints. Separately, OSHA has received 5,035 whistleblower complaints related to COVID-19.
In addition to the ARP, on January 21, 2021, President Biden issued an Executive Order on Protecting Worker Health and Safety, which, among other things, requires OSHA to “consider whether any emergency temporary standards on COVID-19 … are necessary, and if such standards are determined to be necessary, issue them by March 15, 2021.” Although OSHA missed the deadline for issuing the emergency temporary standards, they are expected to be issued soon. In the meantime, on March 12, 2021, OSHA issued a new National Emphasis Program (NEP) “targeting specific high-hazard industries or activities,” including health care, in which there is a hazard of contracting the virus causing COVID-19. The NEP also aims to protect workers from retaliation. The NEP is effective immediately and will remain in force no longer than a year from March 12, 2021.
Also on March 12, 2021, OSHA issued an “Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19)” (ERP). The ERP summarizes the NEP and details how OSHA inspections should be conducted, making on-site inspections the default method. Offices of physicians and dentists, hospitals, facilities for nursing care, assisted living, and retirement, home health care, and ambulance services are specifically targeted. With the influx of resources and new workplace safety policies at OSHA, health care employers may see a further uptick in OSHA inspections and COVID-19 related citations in the coming months.