Update on the Timeline for OSHA to Finalize the Permanent COVID Rule for Healthcare

It’s been a while since our last update about OSHA’s rulemaking for the permanent COVID-19 rule for healthcare, which is very good news.  It was always a possibility that by the time OSHA got around to finalizing and issuing its permanent COVID-19 regulation that the pandemic would be in such a state that it would not make any practical, health, or political sense to actually issue the rule.  But that does not appear to be OSHA’s thinking right now, or the thinking of the DC Circuit and the nurses unions that continue to push OSHA to finalize the rule.

According to a sworn statement by Assistant Secretary of Labor for OSHA Doug Parker on July 25, 2022, OSHA remains “on track” to complete its long-term COVID-19 safety healthcare standard in September to October of 2022.  This is consistent with OSHA’s January 2022 statement that it intended to develop a permanent COVID-19 standard for healthcare workers within six to nine months.

Assistant Secretary Parker’s statement appears to be a reaction to inconsistent testimony from Secretary of Labor Marty Walsh before the Senate Appropriations Committee on June 15, 2022.  There, Secretary Walsh testified that OSHA would finalize the standard in three to six months, which sounded like a shift in OSHA’s target issuance date to later in the year or even next year.  Continue reading

What Does the EEOC’s Updated COVID-19 Testing Guidance Mean for Employers

By Kara M. Maciel and Ashley D. Mitchell

As COVID-19 infections continue to climb, the EEOC rolled back its guidance that COVID-19 viral screening tests conducted by employers is always permissive under the Americans with Disabilities Act (“ADA”). The updated guidance requires employers to weigh a host of factors and determine whether COVID-19 viral screening is “job-related and consistent with business necessity,” the traditional standard for determining compliance with the ADA.

The Factors Employers Should Consider:

Under the EEOC’s updated FAQs, an employer may, as a mandatory screening measure, administer a COVID-19 viral test, if the employer can show it is “job-related and consistent with business necessity.” In making this determination, employers should assess these factors:

  • The level of community transmission
  • The vaccination status of employees
  • The accuracy and speed of processing different types of COVID-19 viral tests
  • The degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations
  • The ease of transmissibility of the current variant(s)
  • The possible severity of illness from the current variant
  • What types of contact employees may have with others in the workplace or elsewhere that they are required to work
  • The potential effect on operations of an employee enters the workplace with COVID-19

It is worth noting, Continue reading

Comment Period Set for Cal/OSHA’s Permanent COVID-19 Rule

Last month, the California Division of Occupational Safety and Health (Cal/OSHA) revealed a proposed Permanent COVID-19 regulationThe draft permanent rule is intended to replace the current version of the COVID-19 Emergency Temporary Standard (ETS) that is set to expire at the end of 2022.  Here is a link to the agency’s draft regulatory text for the permanent rule.

The proposed permanent rule is expected to remain in effect for two years, except for the record-making and recordkeeping provisions that would remain effective for three years.

On July 29, 2022, the Standards Board issued the attached rulemaking notice that set both the date for a meeting of the Standards Board when the proposed COVID-19 permanent rule would be debated and discussed, as well as an official due date for written comments from interested stakeholder.  Both of those are set for September 15, 2022.

The rulemaking process for the proposed permanent rule is different than with the prior iterations of the emergency COVID-19 rulemaking.  A nonemergency rule requires Continue reading

The Employers E-Recordkeeping Coalition Submits Comprehensive Written Comments to OSHA’s E-Recordkeeping Rulemaking Docket

By Eric J. Conn, Chair of Conn Maciel Carey’s national OSHA Practice

On March 30th, OSHA published a new proposed rule to amend and dramatically expand the requirements of its “Improve Tracking of Workplace Injuries and Illnesses Rule” (aka, the E-Recordkeeping Rule).  We digested the tortured history of OSHA’s E-Recordkeeping Rule, the proposed amendments OSHA introduced this Spring, and the implications of the proposed changes in this article.

Conn Maciel Carey’s OSHA Team organized a flat fee-based E-Recordkeeping Rulemaking Coalition of employers and trade groups to collaborate to submit public comments on this proposal and otherwise participate in the rulemaking process to advocate for the most manageable possible E-Recordkeeping Rule.  The first major step taken by our Employers E-Recordkeeping Coalition was to submit a comprehensive set of written comments to OSHA’s rulemaking record on June 30th.  Here is a copy of our as-filed comments.

To summarize, we addressed in the comments that: Continue reading

Cal/OSHA Updates FAQs Following New CDPH Definition of Close Contacts

By Megan S. Shaked

With the definition of “close contacts” now focused on “shared indoor airspace” rather than the 6 feet/15 minute threshold, Cal/OSHA has updated its FAQs to assist in interpreting the various ETS requirements implicated by the new definition.

Background

When the current version of the ETS was adopted, it specified that if close contact is defined “by regulation or order of the CDPH,” the CDPH definition would apply rather than the definition provided in the ETS itself.  When CDPH issued an order on June 8 updating its definition of “close contact,” that new definition applied to the ETS.  (Cal/OSHA updated its FAQs on June 21 to make clear that the new definition applies to the ETS.)

On June 9, CDPH followed up with updated FAQs to address this new definition.

Cal/OSHA’s FAQs re New Definition of Close Contact

On Monday, Cal/OSHA added its own update to its FAQs, adding a “Definitions” section to address the updated definition of close contact: Continue reading

OSHA’s Heat Illness Rulemaking Update – Recent NACOSH Meetings

By Eric J. Conn and Beeta B. Lashkari

OSHA’s rulemaking for an outdoor and indoor heat illness prevention rule continues to chug along, so we wanted to provide a quick review of the latest developments.  Of particular note, two meetings of the National Advisory Committee on Occupational Safety & Health (NACOSH) focused on heat illness and the heat illness rulemaking were held on June 30th.  Conn Maciel Carey’s Employers Heat Illness Prevention Coalition participated in both. 

Here is a copy of the as-filed comments we submitted to OSHA in advance of these NACOSH meetings, reiterating our previously submitted comments, and requesting to speak at the June 30th NACOSH meeting (which request was granted).

The meetings were well attended by NACOSH committee members and OSHA staff, and included appearances from Andy Levinson (Acting Director, OSHA Directorate of Standards and Guidance), Lisa Long (Acting Deputy Director, OSHA Directorate of Standards and Guidance), Carla Marcellus (Office of Maritime and Agriculture), and Jennifer Levin (Committee Counsel, Office of the Solicitor).  Kate McMahon and Beeta Lashkari attended on behalf of our Coalition.  The first meeting was for public listening only, and Kate was one of only two public stakeholders who spoke at the second meeting, and the only employers’ representative to do so.

Here are the key takeaways from the two meetings, as well as a summary of the public statements we made to the NACOSH committee:  Continue reading

OSHA and Climate Change (Heat Illness, Wildfire Smoke, and Super Storms) [Webinar Recording]

On Tuesday, July 12, 2022, Kate McMahon, Ashley Mitchell, and Samuel Rose presented a webinar regarding OSHA and Climate Change (Heat Illness, Wildfire Smoke, and Super Storms).

Recent studies show that workers are often the first to experience the effects of climate change and may be affected for longer durations and at greater intensities. NIOSH cites a 2014 study indicating that workers are “the canaries in the coal mine of climate change impacts.” Accordingly, OSHA has embarked on one of the broadest, most significant rulemakings it has undertaken in over a decade – to develop a comprehensive occupational standard to regulate heat illness associated with exposure to heat on the job – in outdoors as well as indoor settings.

A heat standard will impact Continue reading

Conn Maciel Carey Adds Two Exceptional OSHA and Employment Law Associates in California and DC

Conn Maciel Carey LLP is pleased to announce the addition of two talented new attorneys — Darius Rohani-Shukla (Washington, DC) and Samuel S. Rose (Los Angeles).

Associate Darius Rohani-Shukla has joined the firm’s Labor and Employment and OSHA practices in Washington, DC.  Mr. Rohani-Shukla adds solid experience in litigation as well as labor and employment law, including restrictive covenants, wage and hour disputes, claims of discrimination and harassment, compliance with the Americans with Disabilities Act (ADA), and the Family Medical Leave Act (FMLA).

“We are excited to have Darius advising companies on proactive measures to comply with the myriad of regulatory requirements under federal and state law,” Ms. Maciel says. “He is eager to advise clients on privacy rights for employers at the state and local levels.”

“I like that CMC is a growing firm focused on labor and employment.” he says, “I’m looking forward to getting involved in fascinating and sophisticated work.”

Mr. Conn adds, “I was impressed with Darius’ knowledge of employment law and his critical thinking. He is also a terrific writer, which is hard to find in young lawyers.”

Continue reading

CSB Releases Accidental Release Reporting Rule Data

By Darius Rohani-Shukla and Beeta B. Lashkari

Last month, the Chemical Safety Board (“CSB”) published its first list of incidents that had been reported to the agency pursuant to its Accidental Release Reporting Rule.

The CSB’s Reporting Rule was published in the Federal Register on February 21, 2020, and took effect a month later, on March 23, 2020.  As we previously reported, the rule requires that owners and operators of stationary sources report accidental releases that result in a fatality, serious injury, or substantial property damage to the CSB within eight hours.  That accidental release report must indicate:

  1. The name and contact information for the owner/operator;
  2. The name and contact information for the person making the report;
  3. The location information and facility identifier;
  4. The approximate time of the accidental release;
  5. A brief description of the accidental release;
  6. An indication whether one or more of the following has occurred:
    • (1) Fire;
    • (2) Explosion;
    • (3) Death;
    • (4) Serious injury; or
    • (5) Property damage.

Continue reading

Cal/OSHA Reveals a Draft of Its Proposed “Permanent” COVID-19 Regulation

By Andrew J. Sommer

Cal/OSHA has used up all of its “re-adoptions” of its COVID-19 Emergency Temporary Standard, so if COVID-19 regulatory requirements are to remain in effect in California into 2023, the Cal/OSHA Standards Board will need to adopt a “Permanent” COVID-19 rule. At a meeting of the Cal/OSH Standards Board last week, the Division of Occupational Safety and Health (DOSH) revealed a proposed Permanent COVID-19 rule.

Andrew J. Sommer, the Head of CMC’s Cal/OSHA Practice, was interviewed by InsideOSHA about these developments.  Here’s a link to the article with that detailed interview, and below is some additional context and background about the rulemaking.

The draft permanent rule is intended to replace the COVID-19 ETS that is set to expire at the end of 2022.  Here is a link to the agency’s draft regulatory text for the permanent rule.  The proposed permanent rule is expected to remain in effect for two years, except for the record-making and recordkeeping provisions that would remain effective for three years.

While DOSH previously indicated that the “permanent” rule would be consistent with the ETS, there are a few significant changes we have identified.  Most troubling among them, the definition of “close contact” has been made consistent with California Department of Public Health (CDPH) guidance removing the 6-foot, 15-minutes standard.  Instead, the draft defines close contact as:

Continue reading

OSHA’S Top Regulatory Priorities… Other than COVID-19

By Eric J. Conn, Chair, Conn Maciel Carey’s national OSHA Practice

In the June/July issue of Tank Storage Magazine, Eric J. Conn, Founding Partner and Chair of Conn Maciel Carey LLP’s OSHA • Workplace Safety Practice Group, looks at recent changes in OSHA’s regulatory policies in the article, “OSHA’S Top Regulatory Priorities…Other than COVID-19.”

Here is a summary of his observations.

The US Occupational Safety and Health Administration (OSHA) has not slowed it rulemaking activities despite the attention COVID-19 has demanded over the past two years. In just the past six months, OSHA has:

  1. Published a notice of proposed regulation to expand its Electronic Recordkeeping Rule;
  2. Initiated an enforcement National Emphasis Program to address Heat Illness; and
  3. Launched rulemaking for an Outdoor and Indoor Heat Illness Prevention standard.

OSHA’S Rulemaking to Expand the E-Recordkeeping Rule

OSHA’s Standard To Improve Tracking of Workplace Injuries and Illnesses (aka, the E-Recordkeeping Rule) has experienced Continue reading

Evacuating the Workplace: Exit Routes and Exit Doors [Webinar Recording]

On Wednesday, June 8, 2022, Lindsay A. DiSalvoMicah Smith and Dan Deacon presented a webinar regarding Evacuating the Workplace: Exit Routes and Exit Doors.

Evacuating the workplace during an emergency is critical. However, consistently maintaining compliant exit access, routes, and doors in a busy workplace is often challenging, especially in warehouses, manufacturing facilities, and retail settings. OSHA routinely cites egress violations as Serious because of the potential for injury or death. It is an easy violation for inspectors to identify during on-site inspections, which often leads to the issuance of costly Repeat or Willful citations.

Temporary or permanent storage of materials can create several compliance issues related to OSHA’s egress requirements, but there are several ways to maintain compliant exit routes and doors and ensure that they are always accessible. Identifying and maintaining egress routes and exits is an important element of a workplace’s emergency action plan. Employers should carefully develop emergency action plans and ensure employees understand not only how to evacuate the workplace during an emergency but how to maintain proper egress routes and exits throughout their work shifts, as it provides employees with a safer workplace and may even save lives.

Participants in this webinar learned about: Continue reading

CMC Spotlight: Meet Mikel Koon!

Mikel Smith Koon is Conn Maciel Carey LLP’s first Chief Operating Officer. She brings over 20 years of experience in business management, including 10 years in law firm management, focusing on operations and human resources.

As the COO, Ms. Koon manages CMC’s day-to-day operational efficiency by identifying key procedural issues. She crafts core processes to improve essential business functions that align with the firm’s objectives. She also oversees the administrative divisions of the firm—marketing, accounting, IT, and human resources. As part of the firm’s leadership team, she works directly with the Managing Partners, playing a pivotal role in developing and executing CMC’s strategic plan as the firm continues to expand.

Ms. Koon has an entrepreneurial spirit with special expertise in project and people management. Prior to joining the legal industry, she founded and ran a consulting firm, Mosaik Strategies, for 16 years. Here she was dedicated to coaching small business and nonprofit leaders to establish growth initiatives and build strategic relationships to achieve greater success.

In her spare time, Mikel enjoys running, and she practices Jhoon Rhee-style Tae Kwon Do. She and her husband have two daughters.

Get to Know Mikel!

Where is your favorite vacation spot?  

Any place on a warm beach! For short breaks, I love Cape May, New Jersey. For longer vacations, OBX. If money is no object, Hawaii.

What was your first job?  

A sales clerk at Patterson Silks Fabrics when I was 16. This was Continue reading

[Webinar] Evacuating the Workplace: Exit Routes and Exit Doors

On Wednesday, June 8, 2022 at 1 p.m. ET, join Lindsay A. DiSalvo, Micah Smith and Dan Deacon for a webinar regarding Evacuating the Workplace: Exit Routes and Exit Doors.

Evacuating the workplace during an emergency is critical. However, consistently maintaining compliant exit access, routes, and doors in a busy workplace is often challenging, especially in warehouses, manufacturing facilities, and retail settings. OSHA routinely cites egress violations as Serious because of the potential for injury or death. It is an easy violation for inspectors to identify during on-site inspections, which often leads to the issuance of costly Repeat or Willful citations.

Temporary or permanent storage of materials can create several compliance issues related to OSHA’s egress requirements, but there are several ways to maintain compliant exit routes and doors and ensure that they are always accessible. Identifying and maintaining egress routes and exits is an important element of a workplace’s emergency action plan. Employers should carefully develop emergency action plans and ensure employees understand not only how to evacuate the workplace during an emergency but how to maintain proper egress routes and exits throughout their work shifts, as it provides employees with a safer workplace and may even save lives.

Participants in this webinar will learn about: Continue reading

Chambers USA Recognizes Conn Maciel Carey as 1 of Only 3 “Band 1” Ranked Law Firms for OSHA Law

Conn Maciel Carey LLP (CMC) is honored to announce that the firm has been recognized as one of only three national law firms ranked in Band 1 Nationwide for Occupational Safety and Health (OSHA) Law. CMC is the only “boutique” firm among all of the law firms recognized.

The recognition comes from Chambers and Partners, an independent research company that delivers detailed rankings and insight into the world’s leading lawyers. This is the first year that Chambers has ranked the OSHA Law practice area.

Chambers’ researchers identified CMC as a “leading national boutique handling the full spectrum of labor and employment litigation with particular emphasis on workplace safety issues. The group…maintains a strong track record in complex OSHA inspections and enforcement matters.”

Among the client comments collected by Chambers about the firm, one stated that CMC’s OSHA Team “offers impressive expertise in federal- and state-level workplace safety laws, and has been especially active in recent months guiding clients through COVID-19 compliance…The firm is the real deal; it is a top OSHA firm.”

Continue reading

[Panel Webinar] A Chat with EEOC Commissioner Keith Sonderling: Artificial Intelligence in the Workforce in 2022 and Beyond

​Join Kara Maciel and Jordan Schwartz on Tuesday, June 7th at 2 PM ET for a very special bonus event in Conn Maciel Carey’s 2022 Labor and Employment Webinar Series in the form of a panel webinar program regarding The Impact of Artificial Intelligence on the Workforce in 2022 and Beyond.

Presented by
Conn Maciel Carey LLP with Special Guest
EEOC Commissioner Keith Sonderling

On May 12, 2022, the EEOC issued a Technical Assistance (“TA”) document entitled, “The Americans with Disabilities Act (“ADA”) and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees” focused on providing “clarity to the public regarding existing requirements” under the ADA and agency policy. This is the first guidance document the EEOC has issued regarding the use of Artificial Intelligence (“AI”) in employment decision-making since announcing its Al Initiative in October 2021.

It’s no secret that more employers have turned to AI to enhance their work processes over the years. An estimated 83% of employers have Continue reading

OSHA Grants Request to Extend the Comment Period for the Proposed Amended E-Recordkeeping Rule

By Eric J. Conn, Chair of CMC’s National OSHA Practice

On March 30th, OSHA published a proposal to dramatically expand the requirements of its Improve Tracking of Workplace Injuries and Illnesses Rule (aka the E-Recordkeeping Rule).  Read our full article here for more information about the history of E-Recordkeeping, the new proposed amendments to the E-Recordkeeping Rule, and the implications of the proposed changes.

In short, the proposed changes to the E-Recordkeeping Rule would:

  1. Replace the current requirement for all workplaces with 250+ employees to annually submit to OSHA’s electronic Injury Tracking Application the data from their 300A Annual Summary of work-related injuries, with a new requirement for workplaces with 100+ employees in the “high hazard industries” listed in new Appendix B to submit the full panoply of OSHA recordkeeping records – i.e., OSHA Forms 300 (the OSHA Log), 301 (detailed incident reports for each recorded injury), and the 300A Annual Summary;
  2. Require workplaces with 20+ employees in another larger list of so-called “high-hazard industries” (new Appendix A) to submit the data from their 300As; and
  3. Compel all submitting employers to include their proper company name with the electronic data submissions.

That Federal Register Notice set the deadline for stakeholders to submit comments for Tuesday, May 31 — the day after Memorial Day and one week after the deadline to submit post-hearing comments about OSHA’s proposed Permanent COVID-19 Standard for Healthcare.  Because of that crowded schedule and the importance of the proposed changes to the E-Recordkeeping Rule, last week, on behalf of Conn Maciel Carey’s Employers E-Recordkeeping Rulemaking Coalition, we prepared and filed a Letter to OSHA Requesting an Extension of the Comment Period. Continue reading

Cal/OSHA Updates FAQS Following Third Readoption of COVID-19 Emergency Temporary Standard

By Megan S. Shaked

Now that Cal/OSHA’s Third Readoption of the COVID-19 Emergency Temporary Standard is in effect, the agency has updated its Frequently Asked Questions to reflect those revisions effective May 6, 2022.  (See our previous blog articles regarding the revisions in the Third Readoption and the Board vote to approve the readoption.)

Many of the updated FAQs simply reflect the revised ETS language itself, for example, removing references to vaccination status as the ETS requirements are no longer dependent on such status.  The FAQs have also been updated to reflect the current terminology used in the Third Readoption, for example, using “infections period” instead of “high risk exposure period.”

However, some of the updated Frequently Asked Questions provide added clarity regarding the current requirements: Continue reading

OSHA Conducts Comprehensive Heat Illness Prevention Stakeholder Meeting

By Beeta B. Lashkari and Eric J. Conn

On Tuesday, May 3, 2022, OSHA held a virtual stakeholder meeting to discuss and receive public input about OSHA’s various initiatives designed to protect workers from heat-related hazards.  Below is a summary of the stakeholder meeting, as well as the comments we presented on behalf of our Employers Heat Illness Prevention Coalition.  If you would like to view the entire meeting, or view the agenda or some of the heat illness-related materials OSHA made available, they are available on OSHA’s Heat Forum Public Stakeholder Meeting website.

The meeting ran for approx. 6 hours (from noon to 6 PM).  More than 3,000 stakeholders signed up for the meeting, and more than 500 people requested to speak, including OSHA representatives, an OSHA leadership panel, and four batches of public comment.  Public commenters were each allotted a strictly enforced 3-minute window to speak.

Opening Remarks from Heads of DOL/OSHA

The Assistant Secretary of Labor for OSHA, Doug Parker, kicked off the meeting with opening remarks.  Mr. Parker began by explaining that heat-related hazards do not Continue reading

Coalition to Work on OSHA’s Rulemaking to Expand the E-Recordkeeping Rule

On March 30th, OSHA published a new proposed rule to amend and dramatically expand the requirements of its Improve Tracking of Workplace Injuries and Illnesses Rule (i.e., the E-Recordkeeping Rule).  Read our full article here for more information about the history of E-Recordkeeping, the new proposed amendments to the E-Recordkeeping Rule, and the implications of the proposed changes.

As we have had to do too often the last couple of years, Conn Maciel Carey’s OSHA Team is organizing a flat fee-based rulemaking coalition of employers and trade groups to collaborate to work on submitting public comments on this new proposal and otherwise participate in the rulemaking process to advocate for the most manageable possible E-Recordkeeping Rule.

We held a kickoff call for the coalition earlier this week.  If you were unable to attend, we are pleased to share links to the recording and a copy of the slides that we used. We expect to have a follow up virtual meeting in May to solicit detailed input from coalition participants and review our advocacy strategy.

There is still time to join our coalition if your organization would like to partner with us on this rulemaking.  OSHA requested public comments to be submitted by May 31, 2022.

We expect to address, among other important concerns, that: Continue reading

Cal/OSHA Standards Board Approves Third Re-adoption of COVID-19 Emergency Rule

As expected, on April 21st the Cal/OSHA Standards Board voted to adopt the proposed third re-adoption of the COVID-19 Emergency Temporary Standard.  The Board voted 6-1, with management representative Kathleen Crawford casting the sole no vote.  The new rule iteration is set to take effect on about May 2, 2022, once approved by the Office of Administrative Law, and will remain in effect until December 31, 2022.  As mentioned in our prior blog post, the third re-adoption retains the core elements of the emergency rule but with various substantive changes.

DOSH Deputy Chief Eric Berg, in his briefing to the Board ahead of the vote, indicated that there will be FAQs issued to Continue reading

OSHA Launches an Enforcement National Emphasis Program For Outdoor and Indoor Heat Illness Prevention

By Beeta Lashkari and Eric Conn

Last week, on April 12, 2022, OSHA announced that it has launched an enforcement National Emphasis Program (“NEP”) for Outdoor and Indoor Heat-Related Hazards.  The Heat Illness NEP applies to both indoor and outdoor workplaces, including general industry, construction, maritime, and agriculture.  The NEP is already in effect – as of April 8th – even before OSHA made its April 12th announcement, and will remain in effect for three years unless canceled or extended by a superseding directive.

Secretary of Labor Walsh, joined by Vice President Harris, announced this new enforcement program at a speech at the Sheet Metal Workers Local 19 Training Center in Philadelphia with these remarks:

“Tragically, the three-year average of workplace deaths caused by heat has doubled since the early 1990s. These extreme heat hazards aren’t limited to outdoor occupations, the seasons or geography. From farm workers in California to construction workers in Texas and warehouse workers in Pennsylvania, heat illness – exacerbated by our climate’s rising temperatures – presents a growing hazard for millions of workers….  This enforcement program is another step towards our goal of a federal heat standard. Through this work, we’re also empowering workers with knowledge of their rights, especially the right to speak up about their safety without fear of retaliation.”

Below is an analysis of the mechanics of OSHA’s Heat Illness NEP: Continue reading

Washington’s New Safety Standard for Protecting Temporary Workers

By Aaron R. Gelb & Beeta B. Lashkari

Last Spring, Washington governor Jay Inslee signed into law Substitute House Bill (SHB) 1206, creating new duties for staffing agencies and worksite employers to protect the safety of temporary workers.  The law, codified at Revised Code of Washington (“RCW”) 49.17.490, went into effect on July 25, 2021, but received scant attention from the media or safety professionals—no doubt, in large part, due to an ongoing focus on the COVID-19 pandemic.  Nonetheless, given the extent to which many employers rely on temporary workers to staff their operations, this new law is one that covered employers should pay attention to and develop a plan to help ensure compliance.  Below is a summary of the scope and requirements of the new standard, as well best practice tips for covered employers.

Who Is Covered by the New Standard?

The new standard generally applies to staffing agencies and worksite employers, as defined by the standard:

  • A “staffing agency” is an employer as defined in Chapter 49.17 of the RCW and North American industry classification system (NAICS) 561320 and means an organization that recruits and hires its own employees and temporarily assigns those employees to perform work or services for another organization, under such other organization’s supervision, to:
    • (i) [s]upport or supplement the other organization’s workforce;
    • (ii) provide assistance in special work situations including, but not limited to, employee absences, skill shortages, or seasonal workloads; or
    • (iii) perform special assignments or projects.
  • “Worksite employer” is an employer as defined in Chapter 49.17 of the RCW and means an individual, company, corporation, or partnership with which a staffing agency contracts or otherwise agrees to furnish persons for temporary employment in the industries described in sectors 23 and 31 through 33 of the North American industry classification system.

Importantly, per the definition of “worksite employer” Continue reading

11th Cir. Hears Oral Argument in Challenge to Biden’s EO for a Federal Contractor COVID-19 Vaccine-Mandate

By Conn Maciel Carey’s COVID-19 Task Force

This past Friday, April 8, 2022, the US Court of Appeals for the Eleventh Circuit heard oral argument in Georgia v. Biden, one of the legal challenges to President Biden’s Executive Order imposing a hard vaccine-mandate on federal contractors.  This was the first of several challenges to the federal contractor vaccination mandate to be heard at the US Court of Appeals level, and this particular challenge reaches the 11th Circuit with a rare nationwide temporary injunction imposed at the district court level.

There’s a link to the recording of the 11th Circuit argument on this page – https://www.ca11.uscourts.gov/oral-argument-recordings.  Scroll down to docket number 21-14269.  The recording is difficult to load, it stops and starts, and the sound quality is uneven, so if you don’t want to subject yourself to that, here is a summary of the argument and our best effort to read the tea leaves.

During this hearing, the three-judge panel was most interested in two aspects of the dispute: Continue reading

Religious and Disability Accommodations in Response to COVID-19 Mandates [Webinar Recording]

On Thursday, April 7, 2022, Andrew J. Sommer and Lindsay A. DiSalvo presented a webinar regarding Religious and Disability Accommodations in Response to COVID-19 Mandates.

Employee requests for medical and/or religious accommodations in the workplace are not new. However, never before have these accommodation requests been such a hot-button topic, nor have these accommodation requests been used so frequently (and in particular, religious accommodation requests). The imposition of COVID-19 vaccine mandates has changed that, particularly with regard to religious accommodation requests, which has become the ultimate “gray area,” as both employers and employees alike have learned that sincerely held religious belief can include an employee’s religious-based objection to vaccinations. As a result, the Equal Employment Opportunity Commission (“EEOC”) has issued guidance regarding the obligations of employers under Title VII when an employee presents with a religious objection to a mandatory COVID-19 vaccination policy, which actually builds upon prior EEOC guidance regarding COVID-19 vaccinations in the employment context. Thus, there are multiple issues that employers need to keep in mind and juggle when addressing these vaccination accommodation requests.

Participants in this webinar learned how to best deal with such requests by their employees, including: Continue reading