[Webinar] COVID-19 OSHA Enforcement and Regulatory Update

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On Tuesday, April 20, 2021 at 1:00 P.M. ET, join Aaron Gelb, Amanda Strainis-Walker and Dan Deacon for a webinar regarding a “COVID-19 OSHA Enforcement and Regulatory Update”.

Since the 2020 presidential election was decided, employers have waited, wondered, and watched for signs to see how President Biden’s OSHA would regulate and enforce COVID-19 safety in the workplace. Although OSHA missed the March 15 deadline set by President Biden in his Day One Executive Order to issue its COVID-19 Emergency Temporary Standard (ETS), there have been several important developments providing a window into how OSHA will approach COVID-19 enforcement, most notably the agency’s launch of a COVID-19 National Emphasis Program (“COVID-19 NEP”) to focus the agency’s enforcement efforts on “companies that put the largest number of workers at serious risk of contracting the virus,” as well as prioritizing employers that “retaliate against workers for complaints about unsafe or unhealthy conditions, or for exercising other rights protected by federal law.” OSHA also updated its Interim Enforcement Response Plan, which details how OSHA’s field staff should conduct COVID-related inspections, including whether they will resume in person inspections or continue conducting them remotely as has been the norm for the past year.

During this webinar, participants will learn about: Continue reading →

Pres. Biden Nominates an Assistant Secretary of Labor for OSHA – Doug Parker, the Current Head of Cal/OSHA

Eric J. Conn 1 Comment

By Eric Conn, Fred Walter, and Beeta Lashkari

Last Friday, April 9th, the White House announced Pres. Biden’s nomination of Doug Parker for Assistant Secretary of Labor for OSHA – the top job at federal OSHA.  Mr. Parker is currently the Chief of California’s Division of Occupational Safety and Health (Cal/OSHA), serving as the Head of Cal/OSHA since the summer of 2019.  Mr. Parker was considered a leading candidate for this nomination to head OSHA since he was picked for a spot on the Biden-Harris Labor Transition Team to focus on worker safety and health issues.

In his role as Division Chief at Cal/OSHA, Mr. Parker has been involved in numerous major developments, including:

  • Developing the enforcement plan for Cal/OSHA’s new-ish regulation for Workplace Violence Prevention in Healthcare;
  • Rolling out Cal/OSHA’s emergency Wildfire Smoke Rule and overseeing the development of the Permanent Wildfire Smoke Rule;
  • Overseeing an extension of the statute of limitations for injury and illness recordkeeping violations – making them “continuing violations” for the five-year record-retention period;
  • Advancing a rulemaking for an Indoor Heat Illness Prevention standard; and
  • Implementing a Cal/OSHA operational change to significantly expand the agency’s definition of “Repeat” violations

Even with all that, Mr. Parker’s tenure at Cal/OSHA will likely be best remembered for his role in developing and rolling-out Continue reading →

Another Status Update about Federal OSHA’s COVID-19 Emergency Rulemaking

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By Conn Maciel Carey’s COVID-19 Task Force

It has been nearly a full month since the deadline set by President Biden’s Day-1 OSHA Executive Order for Federal OSHA to determine the necessity of and to issue a COVID-19 Emergency Temporary Standard (ETS), and we are all still waiting for the big news.  OSHA has not issued a final ETS.  The Office of Management and Budget’s (OMB) website has not been updated to reflect that it has received a proposed ETS from OSHA.  OSHA has not even explicitly announced that it will issue a COVID-19 ETS.

According to reports last week from Bloomberg Law, brand new Secretary of Labor Marty Walsh requested a hold on the release of an OSHA ETS, but according to a DOL spokesperson, that “hold” was so that OSHA could make “a rapid update based on the Centers for Disease Control and Prevention analysis and the latest information regarding the state of vaccinations and the variants.”  The sense from that reporting was that OSHA would be quickly updating certain provisions in a near-final draft of the ETS to align with the latest CDC guidance.  No suggestion that an ETS would not be issued.

However, later in the week, Politico reports that Secretary Walsh gave a public interview in which he said this:

That was the first time since President Biden’s Executive Order that we heard anyone at OSHA or the Department of Labor imply that a COVID-19 ETS may not happen, and it conflicts directly with Continue reading →

Cal/OSHA’s COVID-19 Emergency Temporary Standard and Vaccinated Workers

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By Conn Maciel Carey’s COVID-19 Task Force

As the number of vaccinated workers continues to rise, and despite guidance from the CDC lifting certain restrictions against fully vaccinated individuals, Cal/OSHA’s current official position, as reflected in its COVID-19 ETS FAQs, is that “[f]or now, all prevention measures must continue to be implemented” for vaccinated persons.  The same set of FAQs, however, also informs us that “[t]he impact of vaccines will likely be addressed in a future revision to the ETS.”  See Cal/OSHA COVID-19 ETS FAQs “Vaccines” FAQ #1.

Following the February 11, 12, and 16 Cal/OSHA COVID-19 ETS Advisory Committee meetings, in which CMC participated on behalf of our California Employers COVID-19 Prevention Coalition, Deputy Chief of Cal/OSHA Research and Standards shared an updated version of a “Discussion Draft” of the ETS that reflects changes under consideration by the agency.  The issue of how vaccinated employees should be treated under the ETS was a major topic of discussion during the Advisory Committee meetings, and potential changes to the ETS around that are reflected in notes in the Discussion Draft.

While the notes are not necessarily proposed amended regulatory text (rather, they largely incorporate committee members’ feedback ), reading the tea leaves from the Advisory Committee meetings, it is clear that Cal/OSHA Continue reading →

Due to Low Risk of COVID-19 Surface Transmission, CDC Relaxes Cleaning and Disinfecting Guidance

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By Conn Maciel Carey’s COVID-19 Task Force

Early in the pandemic, popular sentiment—and to a lesser extent, the scientific community—believed that surface transmission of COVID-19 was one of the primary vectors of transmission.  Over time, however, epidemiologists gained a better understanding of how the virus was most typically transmitted.  As a result, the CDC’s guidance evolved to a point where surface transmission was viewed as a less significant mode of transmission than person-to-person transmission.

Throughout all that, spring cleaning took on a new meaning in 2020, as people rushed to purchase all the disinfectant wipes and sprays they could find, wiping down groceries and mail, sanitizing their hands, and treating door handles like they were radioactive.  Workplace sanitation similarly became an area of emphasis as employers distributed wipes, sprays and pump bottles throughout their facilities, hired additional janitorial staff and, in many cases, spent exorbitant sums on third-party vendors to clean and disinfect the workplace, even introducing aggressive surface cleaning techniques like fogging. And once the hygiene frenzy took hold in the workplace, there has been little reprieve for employers from regulatory bodies.  State and local health departments, federal OSHA and State OSH Plans, and even some state legislatures, recommended or imposed strict sanitization protocols, including requirements to routinely wipe down shared surfaces with disinfectant, to close workplaces for deep cleaning even when days had passed since a COVID-positive individual had been in the area, and implement daily cleaning and disinfecting plans.  The financial cost for employers associated with these requirements rose quickly.  Like pre-shift temperature screens, some of these requirements have persisted even after the science has recognized their limited efficacy.

Earlier this week, more than a year after the COVID-19 pandemic began, the CDC has released new guidance clarifying that the risk of contracting COVID-19 from contaminated surfaces is, in fact, quite low. Continue reading →

Cal/OSHA Advisory Committee Convened as Division Considers Changes to COVID-19 Emergency Temporary Standard

Theresa Green 1 Comment

By Conn Maciel Carey’s COVID-19 Task Force

Over four months after the California Occupational Safety and Health Standards Board (“Board”) unanimously adopted a COVID-19 Emergency Temporary Standard (“ETS”), the Division of Occupational Safety and Health (the “Division”) has been busy considering potential changes to the emergency regulation.  When the ETS was first adopted, the regulated community scrambled to understand and implement the regulation.  The Division issued numerous Frequently Asked Questions in January, February and March, but many questions remained unanswered.

Cal ETS Advisory CommitteeIn February, the Division convened an Advisory Committee to provide input on possible changes to the ETS.  The Advisory Committee consisted of members from business and industry, labor and community groups, public agencies, and the health sciences.  A coalition of California employers organized by Conn Maciel Carey – the California Employer COVID-19 Prevention Coalition (the “Coalition”) – was one of a very small group of industry representatives invited to participate on the Advisory Committee.

Ahead of the Advisory Committee meetings, which were held on February 11, 12 and 16, Cal/OSHA circulated Discussion Drafts reflecting changes to be considered during the meetings.  Over the course of the 3-day Advisory Committee meeting, the Coalition had the opportunity to provide meaningful input on it members’ concerns and recommendations to improve the ETS.

On March 2, the Coalition submitted written comments to the Chief of the Division.  The Coalition addressed a variety of concerns, including suggesting the Division: Continue reading →

Annual Cal/OSHA Update: Legislation, Regulations, Guidance, Executive Orders and More! Oh My! [Webinar Recording]

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On March 23, 2021, Andrew J. Sommer, Fred Walter and Megan Shaked presented a webinar regarding Annual Cal/OSHA Update: Legislation, Regulations, Guidance, Executive Orders and More! Oh My!”

This year’s annual Cal/OSHA update covered the latest legislative, regulatory and enforcement developments concerning COVID-19, including the Emergency COVID-19 Prevention Rule. We also alerted you to new regulatory changes concerning the Wildfire Smoke rule, various proposed rules being considered by Cal/OSH Standards Board, and general DOSH enforcement trends.

Participants in this webinar learned about: Continue reading →

New OSHA Interpretation Letter Clarifies “Double Reporting” Issue

Lindsay A. DiSalvo Leave a comment

By Eric J. Conn and Lindsay Disalvo

In a new formal Letter of Interpretation (“LOI”) responding to Conn Maciel Carey LLP (“CMC”), the Occupational Safety and Health Administration (“OSHA”) explains that employers are only obligated to report a serious injury or illness once, even if it ultimately results in more than one reportable outcome; e.g., an employer need not report to OSHA a later-developing employee death, if the employer has already reported to OSHA the hospitalization of that same employee from the same incident that resulted in his hospitalization.  A plain reading of OSHA’s hospitalization, amputation, and fatality regulatory language did not make this clear, nor did existing guidance provided by OSHA at the time.

CMC has represented numerous employers in contested cases and inspection disputes related to alleged failures to make that second report to OSHA when the same serious injury resulted in more than one reportable outcome under 29 C.F.R. 1904.39.  Thus, members of CMC’s national OSHA Practice submitted a request for an interpretation letter from Fed OSHA on April 14, 2020, seeking to address the confusion among the regulated community and OSHA’s field staff in area offices around the country about whether a second report was required.  As we expected, the answer is that double reporting is not required. Continue reading →

Five Important Updates About Federal OSHA and Cal/OSHA COVID-19 Recordkeeping

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By Conn Maciel Carey’s COVID-19 Task Force

It has been a little while since we last shared an update about COVID-19 recordkeeping issues. Since Fed OSHA issued its COVID-19 recordkeeping guidance in May 2020 and Cal/OSHA issued its controversial COVID-19 Recordkeeping FAQs with unique, more onerous requirements in June, the agencies have been mostly quiet about COVID-19 recordkeeping. But that does not mean there have not been significant developments in that area or that there are no important developments to monitor closely.

Here are five notable OSHA and Cal/OSHA COVID-19 recordkeeping updates that we wanted to share with you:

1.  Congressional Intervention About Cal/OSHA’s COVID-19 Recordkeeping FAQs

As we explained last year, Cal/OSHA’s May 27th COVID-19 Recordkeeping FAQs departed from Fed OSHA’s COVID-19 recordkeeping requirements in two key ways: (i) rejecting Fed OSHA’s recordability precondition of a positive COVID test; and (ii) flipping the burden of establishing work-relatedness on its head, setting instead a presumption of Cal-OSHA RK FAQSwork-relatedness if any workplace exposure can be identified, even if the cause of the illness is just as likely to be attributable to a non-work exposure.

Aside from being bad policy that will result in many non-work related illnesses being recorded on California employers’ 300 Logs, Cal/OSHA is not legally permitted to deviate from Fed OSHA’s recordkeeping requirements.

The latest big development on that front was a helpful letter from the U.S. Department of Labor responding to an inquiry about this issue from a group of California Congressmen, in which DOL confirms that Cal/OSHA should be following the same recordkeeping requirements as Fed OSHA. Despite the clear statements in Cal/OSHA’s FAQs that a “confirmed case” is not required for recordkeeping and that work-relatedness should be presumed, the federal Department of Labor explained in its letter to the Congressmen: Continue reading →

Annual Cal/OSHA Update: Legislation, Regulation, Guidance, Executive Orders and More! Oh My! [Webinar]

Theresa Green Leave a comment

On Tuesday, March 23, 2021 at 1:00 P.M. PT / 4:00 P.M. ET, join Andrew J. Sommer, Fred Walter and Megan Shaked for a webinar regarding “Annual Cal/OSHA Update: Legislation, Regulation, Guidance, Executive Orders and More! Oh My!”

This year’s annual Cal/OSHA update will cover the latest legislative, regulatory and enforcement developments concerning COVID-19, including the Emergency COVID-19 Prevention Rule. We will also alert you to new regulatory changes concerning the Wildfire Smoke rule, various proposed rules being considered by Cal/OSH Standards Board, and general DOSH enforcement trends.

Participants in this webinar will learn about: Continue reading →

Update about the Chemical Safety Board [Webinar Recording]

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On March 16, 2021, Eric J. Conn, Micah Smith and Beeta B. Lashkari presented a webinar regarding “Update about the Chemical Safety Board.”

For a small agency, a lot happened at the U.S. Chemical Safety and Hazard Investigation Board (the CSB) last year – and not all related to the COVID-19 pandemic. For example, the CSB promulgated an accidental release reporting rule, requiring employers to report certain chemical incidents to the CSB. Although the rule went into effect last Spring, the CSB set a 1-year enforcement “grace period” to allow time for the regulated community to become familiar with the rule, and for the Agency to develop guidance about the new rule. With the grace period ending later this month, on March 23, 2021, it is critical for employers to understand their new compliance obligations.

In addition, with expired terms, early departures, and the swearing in of a new Chairperson (but no other Board members), the CSB’s Board became a “quorum of one” for the first time, begging questions about its authority to vote on mission-critical work product, such as investigation reports, and its ability to conduct the agency’s business. Although Pres. Biden will likely nominate new Board Members, the Senate confirmation process can be a slog, meaning the CSB may maintain a quorum of one for an extended period.

Participants in this webinar learned about: Continue reading →

Attorney Spotlight – Meet Kara Maciel!

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Kara ACFKara Maciel is a founding Partner of Conn Maciel Carey and Chair of the firm’s national labor & employment practice group.

Ms. Maciel works to create workplace solutions for her clients.  She counsels clients on issues related to ADA accessibility requirements, wage hour compliance, prevention of harassment and discrimination, effective employment policies and procedures, and developing a compliant employee handbook. She also defends employers in litigation at both the federal and state levels.  For unionized and non-unionized companies, Ms. Maciel provides advice and counsel regarding the employer’s rights under the National Labor Relations Act.

Kara is an avid traveler (pre-pandemic) and foodie, so it makes perfect sense that she focuses much of her practice on issues facing companies in the hospitality industry (including hotel owners and managers, resorts, restaurants, and country clubs); retail; grocery; food distributors; and non-profit sectors.

Get to Know Kara!

Continue reading →

OSHA Announces COVID-19 National Emphasis Program and Updated Interim Enforcement Response Plan

Eric J. Conn 2 Comments

By Conn Maciel Carey’s COVID-19 Task Force

While OSHA is expected today, March 15th, to confirm that it will issue a COVID-19 Emergency Temporary Standard (ETS), and to get that ETS released within a month, there were also a couple of important developments last week regarding OSHA’s approach to COVID-19 enforcement.

On Friday afternoon, March 12th, OSHA launched a COVID-19 National Emphasis Program (“COVID-19 NEP”) to:

“focus its inspection and enforcement efforts on companies that put the largest number of workers at serious risk of contracting the virus,” as well as prioritizing employers that “retaliate against workers for complaints about unsafe or unhealthy conditions, or for exercising other rights protected by federal law.”

This move by OSHA was not unexpected.  As we previously shared, Pres. Biden’s Day-1 OSHA Executive Order on Protecting Worker Health and Safety (the same EO that called for the COVID-19 ETS), separately called for OSHA to issue a COVID-19 NEP.

Goals of the COVID-19 NEP

In today’s announcement about the COVID-19 NEP, OSHA explained that “the goal of this NEP is to significantly reduce or eliminate worker exposures to SARS-CoV-2 by targeting industries and worksites where employees may have a high frequency of close contact exposures and therefore, controlling the health hazards associated with such exposures.”  The NEP includes “an added focus to ensure that workers are protected from retaliation” and are accomplishing this by preventing retaliation where possible, distributing anti-retaliation information during inspections and outreach opportunities, as well as promptly referring allegations of retaliation to the Whistleblower Protection Program.

Industries and Workplaces Covered by the NEP

OSHA also explained that inspections under the COVID-19 NEP will include some follow-up inspections of worksites previously inspected by OSHA in 2020, but principally will focus on establishments in industries identified on targeting lists OSHA will develop now.  The NEP covers a broader set of workplaces than seems consistent with the goals of the NEP.  The directive creates three different lists of covered workplaces – high risk healthcare establishments and high risk non-healthcare establishments (which is how the NEP has been described), and also a third list of “Supplemental Industries for non-Healthcare in Essential Critical Infrastructure” that does not have the same high exposure risk characteristics of the first two lists.  The industries covered by these three lists are included at the bottom of this email.  Area Offices may also “add establishments to the generated master lists based on information from appropriate sources (e.g., local knowledge of establishments, commercial directories, referrals from the local health department, or from other federal agencies with joint jurisdictions, such as the Centers for Medicare & Medicaid Services (CMS) and the U.S. Department of Agriculture (USDA), media referrals or previous OSHA inspection history).” Continue reading →

[Webinar] Update about the Chemical Safety Board

Theresa Green Leave a comment

On Tuesday, March 16, 2021 from 1:00 P.M. to 2:15 P.M., join Eric J. Conn, Micah Smith and Beeta B. Lashkari for a webinar regarding “Update about the Chemical Safety Board.”

For a small agency, a lot happened at the U.S. Chemical Safety and Hazard Investigation Board (the CSB) last year – and not all related to the COVID-19 pandemic. For example, the CSB promulgated an accidental release reporting rule, requiring employers to report certain chemical incidents to the CSB. Although the rule went into effect last Spring, the CSB set a 1-year enforcement “grace period” to allow time for the regulated community to become familiar with the rule, and for the Agency to develop guidance about the new rule. With the grace period ending later this month, on March 23, 2021, it is critical for employers to understand their new compliance obligations.

In addition, with expired terms, early departures, and the swearing in of a new Chairperson (but no other Board members), the CSB’s Board became a “quorum of one” for the first time, begging questions about its authority to vote on mission-critical work product, such as investigation reports, and its ability to conduct the agency’s business. Although Pres. Biden will likely nominate new Board Members, the Senate confirmation process can be a slog, meaning the CSB may maintain a quorum of one for an extended period.

Participants in this webinar will learn about: Continue reading →

Status Update About OSHA’s Emergency COVID-19 Rulemaking

Eric J. Conn 1 Comment

By Conn Maciel Carey’s COVID-19 Task Force

We are sure many of you have been on the edge of your seat waiting for news about OSHA’s COVID-19 emergency temporary standard, which was expected to be issued by next Monday, March 15th  per Pres. Biden’s Day-1 OSHA Executive Order (EO).  So that you might be able to enjoy your weekend, we wanted to share with you the latest we are hearing about the status of the emergency rulemaking.

Status of Rulemaking

As we expected, the process OSHA is following (an emergency rulemaking with some time pressure set by Pres. Biden) does not include an opportunity for a formal pre-rule public notice-and-comment period.  Nevertheless, the rule still needs to go to the White House’s Office of Management and Budget (OMB) for approval before it is issued and can go into effect.  That likely means that the Office of Information and Regulatory Affairs (OIRA) within OMB will provide for stakeholder input in some form pursuant to Executive Order 12866.  As of now, OMB’s website still does not reflect a docket entry for OSHA’s COVID-19 ETS, and we have not otherwise heard or seen anything that would indicate the proposed rule has been delivered to OMB.  To monitor that, here is a link to OMB’s page about regulations under EO 12866 review — scroll down to the Department of Labor section of rules.

We also have started to hear through the rumor-mill that OSHA understand the Executive Order to require Continue reading →

MSHA Issues Guidance for Mine Operators and Independent Contractors to Mitigate and Prevent Spread of COVID-19

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By: Nicholas W. Scala and Conn Maciel Carey’s COVID-19 Task Force

On March 10, 2021, the Mine Safety and Health Administration (“MSHA”) released additional – and more detailed – COVID-19 guidance.  Issued under the Biden Administration, “Protecting Miners: MSHA Guidance on Mitigating and Preventing the Spread of COVID-19” is significantly more detailed than what was provided by MSHA in 2020. The enhanced guidance recommends mine operators and independent contractors working at mines take additional action to limit the spread of COVID-19 in the workplace. This is akin to what the Occupational Safety and Health Administration (“OSHA”) has recommended in its COVID-19 guidance for general industry workplaces.

Similar to the previous guidance issued by the agency, MSHA continues to rely heavily on best practices outlined byCOVID guidnce the Centers for Disease Control (“CDC”), however, unlike MSHA’s 2020 guidance, this time the agency lays out specific actions and policies it “recommends” operators undertake while highlighting several specific, existing MSHA regulations that can be applied to COVID-19 prevention for enforcement purposes.

Below, we take a look at some of the most impactful elements of the MSHA guidance, but for a complete review of the MSHA guidance, join us on Thursday, March 18th for the MSHA Defense Report 2021 Webinar – COVID-19 and MSHA: Best Practices and Compliance Strategies for Mine Operators.

COVID-19 Prevention Programs

 For the first time, MSHA formally recommends that each mine develop and implement a COVID-19 Prevention Program. These programs, which have been recommended by OSHA and are required in multiple state-plan OSHA Emergency Temporary Standards (“ETS”), are expected to be the mine’s (or contractor’s) outline and collection of COVID-19 mitigation efforts. Our Conn Maciel Carey workplace safety team has been recommending employers have these plans in place, and assisting clients with the development of COVID-19 Exposure Control and Response Plans throughout the pandemic.

Now, those employers regulated by MSHA will be expected to have the plans in place. In instances where OSHA has come on site for COVID-19 complaints or investigations, most often the first document request to the employer is for the site’s COVID-19 Prevention Program, even though under federal OSHA – as with MSHA – it is not currently required by regulation.

MSHA recommends a miner’s COVID-19 Prevention Program and plan would at a minimum: Continue reading →

We are Celebrating International Women’s Day with our #ChooseToChallenge!

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Female,Diverse,Faces,Of,Different,Ethnicity,Seamless,Pattern.,Women,EmpowermentToday is International Women’s Day, a global day celebrating the historical, cultural, and political achievements of women. To honor this day, we reflect on the significant progress made in gender equality and recognize the adversity that women continue to push through to attain a more inclusive world.  Just this year, Kamala Harris shattered the glass ceiling by not only becoming the first female U.S. Vice President, but the first Black, and South Asian-American U.S. Vice President.

This significant event in recent history showcases the many women who have paved the way.  Women such as Shirley Chisholm, the first Black woman elected to Congress; Eleanor Roosevelt, the first U.S. delegate to the United Nations; and, of course, Ruth Bader Ginsberg, the second female and the first Jewish female Justice of the U.S. Supreme Court.  As we already know, we experienced the loss of Justice Ginsberg just last year, but the impact she made as a pioneer who fought for women’s rights, and a leading voice for civil rights and liberties influences the gender equality movement to this day.

What do you #choosetochallenge?

Picture1The theme for International Women’s Day 2021 is #choosetochallenge.  This initiative is meant to drive actions that will create the gender-equal society we all deserve.  We must challenge ourselves to take accountability for our own thoughts and actions, and be the change we want to see in the world. Check out what Conn Maciel Carey’s Attorneys and Staff #choosetochallenge! Continue reading →

Cal/OSHA’s COVID-19 Emergency Temporary Standard Survives Two Legal Challenges

Beeta B. Lashkari Leave a comment

By Andrew Sommer, Eric Conn, and Beeta Lashkari

On February 25, 2021, Superior Court Judge Ethan Schulman officially ruled on two requests for preliminary injunctions against the implementation of Cal/OSHA’s COVID-19 emergency temporary standard (ETS), denying the injunctive relief sought in both cases.

Two separate legal challenges to the ETS were filed a couple of weeks after the rule was adopted by the Cal/OSHA Standards Board.  The first was filed by the National Retail Federation and others, alleging generally that an emergency rule was not necessary and appropriate; i.e., the agency had not asserted facts adequate to establish the existence of an emergency, and therefore, the rushed rulemaking process that ignored stakeholder input was not lawful.  It also alleged that Cal/OSHA overstepped its jurisdictional authority with respect to the ETS provisions mandating wage and benefits continuation.

The second legal challenge was filed by the Western Growers Association and other agricultural interests.  This lawsuit similarly challenged the legality of an emergency rule in this context and the pay and benefits provisions.  It also attacked the provisions regarding employer-provided housing and transportation.

In a 40-page order, Judge Schulman rejected all of the plaintiffs’ arguments, commenting, “No federal or state court in the country has blocked emergency public health orders intended to curb the spread of COVID-19, and the illnesses, hospitalizations and deaths that follow in its wake.  This Court will not be the first.  Lives are at stake.”  Indeed, the cases faced long odds, with Judge Schulman Continue reading →

What Employers Need to Know About COVID-19 Vaccines [Webinar Recording]

Theresa Green Leave a comment

On February 11th, Kara M. Maciel, Fern Fleischer-Daves, and Lindsay A. DiSalvo presented a webinar regarding What Employers Need to Know About COVID-19 Vaccines.

In December 2020, two COVID-19 vaccines received emergency use authorization from the US government and several more vaccines may be approved in the coming months. In the initial phases, front-line health care workers, nursing home residents, persons over 75 years of age, and others with underlying health conditions were given first priority. Many employers want to have their “essential workers” or all of their workers vaccinated as soon as possible.

During this webinar, Conn Maciel Carey’s OSHA and Labor & Employment attorneys discussed these important questions:

Continue reading →

SPECIAL BONUS WEBINAR: COVID-19 Vaccines at the Workplace

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On Thursday, February 18th from 1:00 P.M. – 2:15 P.M. (ET), join Conn Maciel Carey for a special bonus webinar regarding COVID-19 Vaccines at the Workplace.

Are you curious how the COVID-19 vaccine distribution effort works or is intended to work?  Is your organization considering standing up an onsite vaccination program or looking into options to facilitate the vaccination of your employees?  As this country embarks on a massive undertaking that involves a series of remarkable public/private partnerships, many employers are anxious to better understand how the supply chain works, who is making prioritization decisions and why, and what they can do now to help increase the number of arms that receive shots.  If you have questions about these issues or other vaccine rollout-related matters, we hope you will join us for an informative panel discussion moderated by Aaron Gelb, Partner in Charge of Conn Maciel Carey’s Chicago Office with special guests:

  • Lori Tremmel Freeman, CEO of the National Association of County and City Health Officials (NACCHO)
  • Michelle Kite, Retail Health and Safety Manager at Walgreens
  • Sonali Kshatriya, Pharmacist and Manager on the Walgreens Clinical Team
  • Fern Fleischer-Daves, OSHA Attorney at Conn Maciel Carey

Participants in this webinar will learn about: Continue reading →

Coalition to Work on Federal OSHA’s COVID-19 Emergency Rulemaking

Theresa Green 1 Comment

Background

In his first day in office, President Biden issued an Executive Order (“EO”) that directed Fed OSHA to revisit its strategy for regulating and enforcing workplace spread of COVID-19.  Among other actions, the EO directed OSHA to consider whether a federal COVID-19 emergency temporary standard (“ETS”) is necessary.  We believe it is a foregone conclusion OSHA will issue an ETS.  The lack of an explicit mandate to do so is likely more a formality than a real open question; i.e., the President prefers the appearance that the workplace safety experts at OSHA made the decision, but the White House has made clear what it expects.

Assuming OSHA determines an ETS is needed, the EO sets a March 15th deadline for OSHA to finalize and issue the rule, so OSHA is surely already working intensely on a COVID-19 ETS.  Although OSHA has not yet confirmed its intent to develop an ETS, we believe it prudent to begin our advocacy efforts as soon as possible, as there will likely be a small pre-rule window to impact the rule before it issues.

The question remains, though, what will a Fed OSHA COVID-19 ETS look like?  We need look no further than the examples set by the State OSH Plans that already have issued COVID-19 ETSs to see the difference between a manageable, effective rule (see Virginia OSHA’s ETS) and a daunting, sometimes unworkable rule (see Cal/OSHA’s ETS). Continue reading →

[Webinar] What Employers Need to Know About COVID-19 Vaccines

Theresa Green Leave a comment

On Thursday, February 11th from 1:00 PM – 2:15 PM EST, join Kara M. Maciel, Fern Fleischer-Daves, and Lindsay A. DiSalvo for a webinar regarding What Employers Need to Know About COVID-19 Vaccines.

In December 2020, two COVID-19 vaccines received emergency use authorization from the US government and several more vaccines may be approved in the coming months. In the initial phases, front-line health care workers, nursing home residents, persons over 75 years of age, and others with underlying health conditions were given first priority. Many employers want to have their “essential workers” or all of their workers vaccinated as soon as possible.

During this webinar, Conn Maciel Carey’s OSHA and Labor & Employment attorneys will discuss these important questions:

Continue reading →

Cal/OSHA’s COVID-19 Emergency Temporary Standard [Webinar Recording]

Theresa Green Leave a comment

On January 26th, Andrew J. Sommer, Fred Walter and Megan S. Shaked presented a webinar regarding Cal/OSHA’s COVID-19 Emergency Temporary Standard.

Not to be outdone by other State OSH Plans like Virginia OSHA, Oregon OSHA, and Michigan OSHA, Cal/OSHA has adopted its own COVID-19 specific emergency temporary standard, and it is in a league of its own. This standard adds significant, burdensome new compliance obligations to California’s existing slate of state and local requirements applicable to employers.

This webinar provided an overview of the regulation, existing and anticipated guidance provided by Cal/OSHA about it, as well as enforcement efforts by Cal/OSHA to date.  We will also examine the interplay between the emergency temporary standard and other new California legislation, including AB 685 and SB 1159.  Finally, we will help you interpret and avoid common pitfalls from some of the trickier sections of the regulation, such as the Outbreaks and Testing provisions.
Participants in this webinar learned about:

Continue reading →

Fed OSHA Issues Updated COVID-19 Guidance, As Mandated by Pres. Biden’s Day 1 OSHA Executive Order

Eric J. Conn 1 Comment

By Conn Maciel Carey’s COVID-19 Task Force

As we shared earlier this month, President Biden’s Day 1 OSHA Executive Order On Protecting Workers from COVID-19, directed federal OSHA to take 3 key actions:

  1. issue new COVID-19 guidance to protect workers within 2 weeks;
  2. consider whether to issue a COVID-19 emergency temporary standard (and to do so by March 15th); and
  3. enhance health and safety enforcement, including with a National Emphasis Program).

On Friday, January 29, 2021, OSHA delivered on the first of those mandates from the Executive Order, issuing a detailed set of new COVID-19 guidance for employers and workers entitled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.”

OSHA explained in its press release announcing the new guidance:

“The U.S. Department of Labor announced today that its Occupational Safety and Health Administration has issued stronger worker safety guidance to help employers and workers implement a coronavirus prevention program and better identify risks which could lead to exposure and contraction. Last week, President Biden directed OSHA to release clear guidance for employers to help keep workers safe from COVID-19 exposure.”

We first heard about the new guidance during a Small Business Administration Labor and Safety Round Table on Friday morning, when the new Acting Head of OSHA, Jim Frederick, and new Senior Advisor, Ann Rosenthal, gave an update about the new Administration’s priorities and plans for OSHA.  Mr. Frederick said the updated guidance is just “OSHA’s first step to re-establishing that OSHA is advocating for workers.”

As it comes still only in the form of guidance, the document technically does not create new legal obligations, but OSHA under the Biden Administration has already made clear that COVID-19 enforcement will be a priority, and unless (or really, until) it issues an emergency temporary standard, this guidance will almost certainly be relevant to OSHA’s enforcement efforts.  For example, like OSHA does in so many areas without existing standards, it is likely to point to this guidance to establish recognition of a serious hazard and the existence of feasible means of abatement for general duty clause citations.  Likewise, it could point to this guidance to challenge employer’s PPE determinations. Continue reading →

What Employers Need to Know about the Pay and Benefits Continuation Elements of Cal/OSHA’s COVID-19 Emergency Rule

Theresa Green 1 Comment

By Mark Trapp, Andrew Sommer, and Beeta Lashkari

On November 30, 2020, Cal/OSHA issued its final COVID-19 Emergency Temporary Standard (“ETS”), with all of its provisions effective immediately.  One of those provisions — the exclusion pay and benefits continuation requirements — has been at the center of much controversy.

Typical among these COVID-19 emergency rules, the Cal/OSHA regulations requires employers to exclude from the workplace “COVID-19 cases” as well as employees who experience a “close contact” exposure (i.e., contact within 6′ of a confirmed case for a cumulative 15 minutes). But the Cal/OSHA ETS gets controversial at Sec. 3205(c)(10)(C), where it requires employers to continue and maintain those employees’ earnings, seniority, and all other employment rights and benefits, as if the employee had not been removed from the job. Where permitted by law and when not covered by workers’ compensation, employers may use employer-provided employee sick leave benefits, and may consider benefit payments from public sources, in determining how to maintain earnings, rights and benefits.

There are several important exceptions to these exclusion pay and benefits continuation requirements.  For example, the ETS provides that the provision does not kick in for any period of time when the employee is not able to work for reasons other than protecting persons at the workplace from possible COVID-19 transmission.  Likewise, the pay and benefits continuation provision does not apply where the employer can demonstrate the employee’s COVID-19 exposure is not work-related.  Finally, although not characterized as an “exception” specific to the exclusion pay and benefits provision, the ETS does also carve-out employees who can be temporarily reassigned to work where they do not have contact with other persons until applicable return-to-work requirements are met.

To provide some clarification about this pay and benefits continuation provision (as well as most other elements of the ETS), Cal/OSHA has issued two batches of FAQs, most recently updated January 8th.  There are now 10 FAQs related to exclusion pay and benefits, most notable among them: Continue reading →