The Paid Sick Leave Act, embedded in the Families First Coronavirus Response Act, temporarily compelled covered employers to pay for leave that employees took for certain COVID-related purposes during 2020. The burden was balanced by permitting employers to take offsetting tax credits. Congress let the PSLA expire at year end but extended the tax credits for employers who voluntarily continued to pay the expired PSLA benefits through September 2021.

In Executive Order 13999 (Jan. 21, 2021), President Biden directed the Labor Secretary to consider issuing an OSHA Emergency Temporary Standard on COVID-19, “including with respect to masks in the workplace.” No surprise there; the AFL-CIO had been clamoring for a COVID ETS and Congress clearly had authorized OSHA to issue an ETS to protect employees from “grave danger.” 29 U.S.C. §655.

The ETS that OSHA published on June 21, 2021, far exceeded the mask mandate mentioned in the President’s Order. Among other things, OSHA directed non-exempt health care employers to pay what looks remarkably like PSLA leave for the entire, indefinite term of the ETS. Did OSHA have authority to revive by regulation what Congress declined to extend by legislation? The legal weeds here are deep, but this review isn’t just for lawyers. It’s also for normal people who expect their chosen legislators to have the final word on legislation.

The Former Paid Sick Leave Entitlement

DOL put enforcement meat on the bones of the Paid Sick Leave Act—Pub. L. 116-127 (March 18, 2020), Division E, §§5101–11—in the April 6, 2020, Federal Register. All government employers and private employers of fewer than 500 employees were compelled to grant up to 80 hours of paid leave during 2020 for any of five qualifying reasons:

  1. The employee was subject to a COVID quarantine order;
  2. A health care provider had told the employee to self-quarantine due to COVID;
  3. The employee had COVID symptoms and was seeking a diagnosis;
  4. The employee was caring for someone in category 1 or 2;
  5. The employee was caring for a child whose school or child care provider had closed due to COVID.

Health care providers were allowed to deny such leave to those employees actually providing health care to patients. All benefits ended December 31, 2020.

Medical Removal Benefits under OSHA’s COVID-19 Emergency Temporary Standard

The ETS is broader than and may last longer than the PSLA. It applies indefinitely to all nonexempt “settings where any employee provides healthcare services or healthcare support services.” 29 CFR §1910.502(a)(1); 86 Fed. Reg. 32,620. Healthcare employers may exempt—

  1. First aid not provided by licensed healthcare providers;
  2. Retail pharmacy dispensing;
  3. Non-hospital ambulatory care settings where all non-employees are screened for COVID;
  4. Hospital ambulatory care settings where all employees are vaccinated and all non-employees are screened for COVID;
  5. Home healthcare settings where all employees are vaccinated and all non-employees are screened for COVID;
  6. Healthcare support services separated from patient care facilities;
  7. Telehealth services separated from patient care facilities.

Employees must be removed from nonexempt workplaces and must be paid removal benefits for these four reasons:

  1. A positive COVID test;
  2. A provider’s advice that the employee probably has COVID;
  3. A recent loss of taste or smell not otherwise explained;
  4. Fever > 100.4F and cough and shortness of breath not otherwise explained.

Those reasons overlap PSLA reasons 1-3, and ETS #3—loss of smell or taste—cannot be verified by employers, which presents an opportunity for abuse. If the employee is removed and not allowed to work, then the employer must continue regular compensation, capped at $1,400 weekly (reduced after two weeks for employers of fewer than 500 employees), until reinstatement. The employer’s obligation may be reduced by the amount of other benefits drawn by the employee due to the compelled leave. And, OSHA says that employers may take the same tax credits available for voluntary continuance of expired PSLA benefits. See 86 Fed. Reg. 32,508, n. 48, citing Pub. L. 117-2, §9641.

Legal Authority for Medical Removal Benefits

Congress gave OSHA authority to issue Emergency Temporary Standards to protect employees from “grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards . . .” 29 U.S.C. §655(c). The antecedent description of the nature of OSHA standards, however, gave many examples – labeling, toxic substance exposure avoidance, protective equipment mandates, medical exams at employer cost, etc.—but paid leave was not among them.

This isn’t OSHA’s first ETS or its first paid leave mandate. Long ago, OSHA required employers to remove employees from injurious exposure to lead (29 CFR §1910.1025) without loss of pay, due to the dire consequences of bloodstream accumulation and the risk that employees might wait too long to report illness if it meant loss of pay. United Steelworkers of America v. Marshall, 647 F.2d 1189, 1231, 1237 (D.C. Cir. 1980) held those reasons to be good enough, given the broad policies of the OSH Act and the generality of the standard-setting language that Congress used: “The scheme of the statute . . . appears to permit OSHA to charge to employers the cost of any new means it devises to protect workers.” OSHA cited Marshall to support its COVID ETS medical removal benefits mandate. 86 Fed. Reg. 32,379.

However, OSHA has failed consistently to persuade courts to use the APA’s “arbitrary and capricious” test. Instead, OSHA has been required to show substantial evidence for the standard adopted. And, in practice, OSHA’s Emergency Temporary Standards seem to have attracted special judicial scrutiny. See Florida Peach Growers Ass’n v. Brennan, 489 F.2d 120, 130 (5th Cir. 1979) (“The record supports the need for some standards, but not emergency standards.”); Asbestos Information Association / North America v. OSHA, 727 F.2d 415, 425-26 (5th Cir. 1984) (“The Agency has not proved that the ETS, OSHA’s most dramatic weapon in its enforcement arsenal, is ‘necessary’ to achieve the projected benefits.”). Just last year, the AFL-CIO was unable to convince jurists that there was a grave COVID danger that compelled OSHA to issue an ETS. See In Re Am. Federation of Labor and Congress of Industrial Organizations, 2020 WL 3125324 (D.C. Cir. June 11, 2020).

OSHA’s COVID ETS adds to these issues a new question: What weight, if any, should a reviewing court give to the arguable determination of Congress that COVID does not require compelled continuation of medical removal benefits of the PSLA sort?

The Puzzle

Recognizing the critical need for direct health care workers to remain on the job during a pandemic, Congress allowed their employers to deny them, categorically, PSLA leave, and Congress allowed the PSLA to expire before vaccines became widely available. Without any new congressional authority, OSHA has essentially re-imposed paid sick leave on health care employers, but as a less verifiable medical removal benefit that cannot be denied to many employees who provide direct patient care, with no end date.

Assuming that OSHA would have had authority to compel COVID medical removal benefits if Congress had never legislated on the subject, does Marshall remain persuasive authority despite the different choices made by Congress? Someone should pose that question to a court.

OSHA’s analogy to its lead protection standard may not wash. Lead poisoning is accretive, can become irreversible before it is obvious, and there is no immunity. Only medical monitoring and removal can avoid serious injury or death. For almost all, COVID infection is acute, temporary and limited by immunity. At least arguably, employers engaged in lead-related business knowingly expose employees to lead while working, and can fairly be charged the costs of failing to protect them adequately. Health care employers do not, in the same way, create unique workplace COVID risks. Rather, the virus threatens most of their employees equally, or almost equally, when they are not at work. What OSHA has done looks, to health care employers, a lot like undead PSLA leave, amended and indefinitely extended, contrary to congressional command.

See (really, do see) Dracula: Dead and Loving It, starring Leslie Nielsen.

 

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us at [email protected].