On Friday, May 19, 2023, OSHA presented at the Small Business Administration’s (“SBA”) Small Business Labor Safety (OSHA/MSHA) Roundtable about OSHA’s Heat Illness Rulemaking. At the meeting, OSHA reported about the status of the rulemaking, including the heat working group’s (as led by sub-group two) recommendations regarding potential elements of a standard, as we describe below (see “NACOSH Heat Working Group Meeting” section below). OSHA also gave an update on its work regarding changes to its compliance materials, which are in line with the heat working group’s (as led by sub-group one) recommendations made to the full NACOSH committee, and then from the full NACOSH committee to OSHA, earlier this year.
Importantly, just as we predicted, during the SBA roundtable meeting, OSHA stated that it is working diligently to pull together materials to initiate the SBREFA process as soon as possible, and when asked about the timing of issuance of the final standard, specifically, whether that will not happen until 10-12 months at the earliest, OSHA stated that the SBREFA process will be happening very soon, and that the heat injury and illness prevention rulemaking is a high priority for this Administration.
As we mentioned previously, we have officially moved into what we are calling Phase 2 of the rulemaking, which covers all advocacy and information-sharing from today (the start of the SBREFA process) through issuance of a Notice of Proposed Rulemaking (“NPRM”). Here are some of the benefits Continue reading →
On May 1, 2023, OSHA announced the launch of a new National Emphasis Program (“NEP”) focused on preventing fall hazards in general industry and construction, the leading cause of fatal workplace injuries and the violation that the agency cites most frequently in construction industry inspections. The Falls NEP was signed April 24, 2023, and took effect the same day as OSHA’s announcement, on May 1, 2023.
It may have been that the Falls NEP was a long time coming. Per OSHA’s announcement, the NEP is based on historical Bureau of Labor Statistics (“BLS”) data and OSHA enforcement history. For example, data from BLS shows that, of the 5,190 fatal workplace injuries in 2021, 680 were associated with falls from elevations, about 13 percent of all deaths. Additionally, data from OSHA’s annual enforcement report indicates that, of 24,333 total inspections in 2021, 7,954 had an emphasis on falls, or about 33% of all inspections.
With regard to the new Falls NEP, Assistant Secretary of Labor for OSHA Doug Parker said:
“Considering that falls remain the leading cause of fatalities and serious injuries in all industries, the agency has determined that an increase in enforcement and outreach activities is warranted…. This national emphasis program aligns all of OSHA’s fall protection resources to combat one of the most preventable and significant causes of workplace fatalities.”
OSHA’s goal of significantly reducing or eliminating unprotected worker exposures to fall-related hazards in all industries that can result in serious injuries and deaths will be accomplished by a combination of enforcement (which includes hazard-based inspection targeting and optional locally-generated programmed targeting in construction as outlined in the Falls NEP’s Appendix A), outreach to employers, and compliance assistance.
Who is Covered by the Falls NEP?
The Falls NEP is meant to focus on reducing or eliminating fall-related injuries and fatalities for people working at heights in all industries. Although OSHA anticipates that most inspections under the Falls NEP will occur in construction because the majority of fatal falls to lower levels each year occur on construction worksites, it is important to note that the Falls NEP is not limited to construction.
Indeed, and importantly, the Falls NEP provides that Compliance Safety and Health Officers (“CSHO”) are authorized Continue reading →
On March 20th OSHA announced that it will hold a virtual meeting of the Heat Working Group (“Working Group”) of the National Advisory Committee on Occupational Safety and Health (“NACOSH”) for later this week – on Thursday, April 27, 2023. We expect the Working Group presentation to include specific recommendations on potential elements of a Heat Injury and Illness Prevention standard. The full NACOSH committee will meet a little later, sometime in May (date TBD), likely to receive and vote on the recommendations of the Heat Working Group about a potential heat illness standard. NACOSH recommendations typically carry great weight with OSHA, and we expect OSHA will most certainly give them serious consideration. Indeed, we believe OSHA has delayed the start of its SBREFA process so that it can utilize the NACOSH recommendations in formulating the rulemaking package for participants in the SBREFA (more on that below). Accordingly, these Spring NACOSH meetings will be a major milestone in OSHA’s rulemaking process, as the recommendations from NACOSH are expected to set the foundation for OSHA to develop its proposed rule.
The April meetings also will be our first opportunity to get a real glimpse at the outline and terms of what a proposed Heat Injury and Illness Prevention rule will look like. On behalf of our Coalition, Conn Maciel Carey has registered to join the April meeting (and, once the date is confirmed and announced by OSHA, will register to the join the May meeting, as well). We will share an update on what we learn following each meeting.
As a brief recap, OSHA initiated its rulemaking on “Heat Injury and Illness Prevention in Outdoor and Indoor Settings” on October 27, 2021, when OSHA published an Advance Notice of Proposed Rulemaking (“ANPRM”) in the Federal Register. Comments on the ANPRM were due January 26, 2022. NACOSH has played an important role Continue reading →
On February 16, 2023, OSHA announced that it is inviting the public and workplace safety stakeholders to share their comments to assist the agency as it modernizes and enhances its Voluntary Protection Program (“VPP”). The deadline for comments is April 14, 2023.
Established in 1982, OSHA’s VPP is a program that recognizes workplaces that demonstrate best practices in safety and health management and serve as industry models. VPP generally requires employers to implement “effective” safety and health management systems (“SHMS”) programs as certified by OSHA, and maintain recorded injury and illness rates below the Bureau of Labor Statistics averages for their sectors. Once admitted to the program, an employer is exempt from “programmed” OSHA inspections, though VPP participants must be recertified every three to five years.
Per OSHA, “VPP is effective at reducing injuries and illnesses at participant worksites.” For example, the average VPP worksite had a Days Away Restricted or Transferred (“DART”) case rate of 53% below the average for its industry for non-construction participants and 60% below the average for its industry for site-based construction and mobile workforce participation for 2020 (calculated annually by the Office of Partnership and Recognition and based upon the injury and illness data submitted every year by the VPP participants). These lower than industry rates have been documented since 2001, showing, per OSHA, that “VPP has consistently reduced injury and illness rates in both construction and non-construction VPP worksites for two decades compared with the national average.”
This week, on September 26-28, 2022, EPA has been hosting virtual public hearings related to its Risk Management Program (RMP) rulemaking. Specifically, the hearings are addressing the RMP Safer Communities by Chemical Accident Prevention (SCCAP) proposed rule, which was signed by EPA Administrator Michael S. Regan on August 18, 2022, and proposes revisions to the RMP Rule to further protect vulnerable communities from chemical accidents, especially those living near facilities with high accident rates. Per the EPA, “The proposed rule would strengthen the existing program and includes new safeguards that have not been addressed in prior RMP rules.”
The virtual public hearings will provide the opportunity to present information, comments or views pertaining to the SCCAP proposed rule. In addition, EPA is accepting written comments during the public comment period, which closes on October 31, 2022.
For background, the RMP Rule has had a long and tortured rulemaking and litigation history. EPA amended the RMP Rule on January 13, 2017, in the final days of the Obama Administration, following President Obama’s Executive Order (EO) 13650, “Improving Chemical Facility Safety and Security,” which directed EPA and other federal agencies to modernize policies, regulations, and standards to enhance safety and security in chemical facilities. More details on the EO in the “OSHA PSM Stakeholder Meeting” section below.
EPA then received three petitions for reconsideration of the 2017 rule, and in December 2019, EPA issued a final rule reconsidering the changes made in January 2017. There are petitions for judicial review of both the 2017 amendments and the 2019 reconsideration rules. Specifically, the 2019 reconsideration rule challenges are being held in abeyance until October 3, 2022, by which time the parties must submit motions to govern, and the case against the 2017 amendments rule is in abeyance pending resolution of the 2019 reconsideration rule case.
So far as the SCCAP proposed rule is concerned, EPA issued a Continue reading →
Earlier this month, on September 1, 2022, the U.S. Chemical Safety Board (CSB) announced the release of a new guidance document about the agency’s still-relatively new Accidental Release Reporting Rule. The Accidental Release Reporting Rule, which went into effect in March 2020, requires owners and operators of stationary sources to report accidental releases that result in a fatality, a serious injury, or substantial property damage to the CSB within eight hours. Just a few months ago, the CSB published its first list of incidents that had been reported to the agency pursuant to the rule.
Of the new guidance document, CSB Interim Executive Steve Owens said:
“Our goal is to make sure that owners and operators report chemical releases to the CSB as required by law. While many companies already have been complying with the rule and submitting their required reports, this guidance should help resolve any uncertainties about the reporting requirement. If someone is unsure about what to do, they should report, rather than risk violating the rule.”
The new guidance has been a long time coming. Indeed, the agency Continue reading →
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:
The name and contact information for the owner/operator;
The name and contact information for the person making the report;
The location information and facility identifier;
The approximate time of the accidental release;
A brief description of the accidental release;
An indication whether one or more of the following has occurred:
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 →
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 →
New York City employers finally have some clarity about whether the New York City private employer hard vaccine mandate will survive the transition from Mayor de Blasio to Mayor-Elect Eric Adams, and will be enforced under the new Administration. Late last week, on December 30th, Mayor-Elect Eric Adams announced that he will keep Mayor de Blasio’s private-sector vaccine mandate in place, which took effect earlier this week – on Monday, December 27th, but with a focus on compliance – not punishment. He also noted that the city will promptly analyze whether the mandate, along with other NYC vaccine requirements, will need to be updated to include obligatory booster doses in lieu of two vaccine shots, according to Adams’ winter coronavirus agenda passed out to reporters Thursday morning.
As outlined in our prior communication about the NYC mandate below (and in this blog article), beginning December 27, 2021, workers are required to provide proof of vaccination against COVID-19 to a covered entity before entering the workplace, and a covered entity must exclude from the workplace any worker who has not provided such proof, unless they are provided an accommodation for a disability or religious reason.
A “Covered entity” means a non-governmental entity that employs more than one worker in New York City or maintains a workplace in New York City; or a self-employed individual or a sole practitioner who works at a workplace or Continue reading →
As we previously reported, on September 6, 2021, the New York State Commissioner of Health issued a designation determining COVID-19 to be “a highly contagious communicable disease that presents a serious risk of harm to the public health in New York State.” Such designation triggered requirements on employers to activate their airborne infectious disease exposure prevention plans in accordance with the New York Health and Essential Rights Act (“HERO Act”).
The New York State Department of Labor (“NYDOL”) issued the HERO Act Standards and model plan, which set forth the minimum requirements employers must provide to address exposure to airborne infectious diseases in the workplace. As explained in our prior blog post, those requirements include:
employee health screenings;
employee face coverings;
personal protective equipment;
workplace hand hygiene stations and protocols, which includes adequate break times for employees to wash their hands;
cleaning and disinfecting shared equipment and frequently touched surfaces and high-risk areas;
social distancing;
complying with mandatory or precautionary orders of isolation or quarantine issued to employees;
air flow, exhaust ventilation, or other special engineering design requirements;
designation of one or more supervisors with the responsibility to ensure compliance with the prevention plan and any applicable federal, state, or local laws, rules, or guidance on preventing the spread of an airborne infectious disease;
notice to employees; and
verbal review of the infectious disease standard, employer policies, and employee rights under the NY HERO Act.
On Labor Day, the New York State Commissioner of Health designated COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to public health. Under the New York HERO Act, employers must either adopt the New York State Department of Labor’s (“NYDOL”) model prevention plan or develop and establish an alternative prevention plan that equals or exceeds the requirements in the NYDOL’s model plan.
The NYDOL issued the HERO Act Standards and model plan, which set forth the minimum requirements employers must provide to address exposure to airborne infectious diseases in the workplace, on July 7, 2021. As explained in our prior blog post, those requirements include:
employee health screenings;
employee face coverings;
personal protective equipment;
workplace hand hygiene stations and protocols, which includes adequate break times for employees to wash their hands;
cleaning and disinfecting shared equipment and frequently touched surfaces and high-risk areas;
social distancing;
complying with mandatory or precautionary orders of isolation or quarantine issued to employees;
air flow, exhaust ventilation, or other special engineering design requirements;
designation of one or more supervisors with the responsibility to ensure compliance with the prevention plan and any applicable federal, state, or local laws, rules, or guidance on preventing the spread of an airborne infectious disease;
notice to employees; and
verbal review of the infectious disease standard, employer policies, and employee rights under the NY HERO Act.
Employers were required to adopt a model plan or develop an individualized plan that met the Act’s requirements by August 5, 2021 and to provide the plan to employees by September 4, 2021. Implementation of the plan, however, is only required whenever the Commissioner of Health designates an airborne infectious disease as a highly contagious communicable disease that presents serious risk of harm to public health. As such, implementation of HERO Act plans is a bit of a moving target that employers must constantly monitor. With total cases reaching an all-time low during the pandemic earlier this summer, the NYDOL clarified that the Commissioner of Health had not (yet) designated COVID-19 as such a disease, thus making the HERO Act Standards unenforceable. That decision, however, has since changed as the highly transmissible Delta variant rages on and over 97% of US counties are now at substantial or high levels of community transmission.
Since the Commissioner of Health has made a designation, employers must now activate their written airborne infectious disease plans. The HERO Act Standards detail additional steps employers must take when implementing their airborne infectious disease exposure prevention plan, including immediately reviewing their current plan; updating the plan to incorporate current information, guidance and any mandatory requirements, as appropriate; and finalizing the plan. Employers are also required to conduct a “verbal review” of the plan’s protocols and employee rights under the Act, which is akin to a training requirement. Finally, employers must distribute the plans to employees, post a copy of the plan in the workplace, and ensure that a copy of the plan is accessible during all work shifts.
Although it is unclear whether employers will be provided some leeway/time to ensure that their plans are reviewed, updated, and implemented in the workplace, employers should promptly take steps to comply with the Act. As the Delta variant continues to surge throughout America, there will almost certainly be updated guidance regarding these plans from the NYDOL in the near future.
We know that many of our friends in the healthcare industry are knee-deep analyzing Fed OSHA’s new COVID-19 Emergency Temporary Standard (“ETS”) and making adjustments to COVID-19 protocols and programs to quickly come into compliance with this onerous new regulation. Conn Maciel Carey LLP’s COVID-19 Taskforce has carefully reviewed all 1,000+ pages of the ETS, its Preamble, and the rest of the supporting documentation, and has participated in several discussions with senior leadership at OSHA about thorny provisions of the rule, so we have a good understanding of what is required. To help you understand precisely what is required of your covered facilities, and to assist with compliance implementation, we have prepared summaries of all the major requirements of the ETS below.
Hazard Assessments and COVID-19 Plans
One of the first steps employers must take is to conduct a hazard assessment of your operations to determine those areas where risk of virus transmission exists, and to then develop a response plan for dealing with those risks. The hazard assessment findings and your plans for transmission mitigation must be incorporated into a written COVID-19 Plan. Here is a summary of the ETS requirements for conducting the hazard assessment and preparing a written plan.
29 C.F.R. Section 1910.502(c) requires all employers covered by the ETS to develop and implement a COVID-19 Plan for each workplace. If the employer has more than 10 employees, the Plan must be written. This summary describes the requirements associated with the COVID-19 Plan.
Before developing the Plan, employers must conduct a workplace specific hazard assessment for the purpose of identifying and understanding where potential COVID-19 hazards exist and what controls must be implemented to reduce those hazards. Employers must inspect the entire workplace and the hazard assessment should: Continue reading →
Today’s topic on the Fed OSHA COVID-19 ETS is health screening and medical management.
29 C.F.R. Section 1910.502(l) sets forth employee screening, employer/employee notification, medical removal, medical removal protection benefits, and return-to-work requirements. This summary describes those requirements of the ETS.
A. Employee Screening
Employers have discretion in choosing whether to implement self-monitoring and/or in-person screening. Employers who choose to have employees self-monitor for COVID-19 symptoms can assist employees in that effort by providing them with a short fact sheet to remind them of the symptoms of concern. Employers may also consider posting a sign stating that any employee entering the workplace certifies that they do not have symptoms of COVID-19, to reinforce the obligation to self-screen before entering the workplace.
Employers who choose to conduct in-person employee screening for COVID-19 symptoms may use methods such as temperature checks and asking the employee if they are experiencing symptoms consistent with COVID-19. Employers should conduct this screening before employees come into contact with others in the workplace, such as co-workers, patients, or visitors.
To the extent employers choose to conduct onsite screening, there are important safety considerations to take into account. Continue reading →
Today’s topic on the Fed OSHA COVID-19 ETS is training.
Training:
29 C.F.R. Section 1910.502(n) requires that all employers covered by the ETS provide training to their employees. To the extent that the employer has already provided training and that training is compliant with the standard, the employer does not need to re-train employees. This summary describes the training requirements of the ETS.
If the employer has already provided training related to COVID-19, but the previous training did not cover all the elements required by the ETS, the employer must offer training on the elements it had not previously addressed.
As with other OSHA standards, the training required by the ETS must be administered at a literacy level and in a language employees understand. The trainer must be a person knowledgeable in the topics covered by the training and how they apply to the employee’s specific job tasks. Additionally, the training should be interactive, providing an opportunity for interactive questions and answers. An employer may satisfy the interactive requirement even if the employer offers a virtual training if the employer makes available a qualified trainer to address questions after the training or offers a telephone hotline where employees may ask questions.
The training must be designed to allow employees to understand the following: Continue reading →
Today’s topic on the Fed OSHA COVID-19 ETS is ventilation.
Ventilation
29 C.F.R. Section 1910.502(k) establishes ventilation requirements for covered facilities. This summary describes the standard’s requirements for ventilation.
The ventilation provisions of the ETS do not require employers to purchase new HVAC systems or to reconfigure existing duct work to comply with the standard. Rather, employers are required simply to increase indoor ventilation to the maximum extent possible on existing systems. New filtration equipment may be required, however, depending on the existing air filters in an HVAC system.
OSHA ventilation requirements are based on the concern that, without adequate ventilation, continued exhalation can cause the amount of infectious smaller droplets and particles produced by people with COVID-19 to become concentrated enough in the air to spread the virus to other people. OSHA explained in the preamble that the more outdoor air the HVAC system is capable of drawing into the building, the greater the impact may be on limiting the potential for the virus to accumulate.
Accordingly, the ETS establishes five main requirements that employers who own or control buildings or structures with an existing heating, ventilation, and air conditioning (HVAC) system(s) must follow to comply with the ETS: Continue reading →
Today’s topics on the Fed OSHA COVID-19 ETS are vaccination, and patient screening and management.
Vaccination
29 C.F.R. Section 1910.502(m) requires that all employers covered by the ETS support COVID-19 vaccination for each employee. This summary describes the vaccination requirements of the ETS.
To support COVID-19 vaccination, employers must provide to their employees:
reasonable time during work hours for employees to receive COVID-19 vaccinations, and
paid leave for employees to receive vaccinations and any side effects experienced following vaccination (to the extent these occur during regular work hours).
“Reasonable time” may include, but is not limited to: Continue reading →
Today’s topic on the Fed OSHA COVID-19 ETS is face masks, respiratory protection, and other personal protective equipment (“PPE”)…what is required and when.
29 C.F.R. Section 1910.502(f) of the ETS establishes the personal protective equipment (“PPE”), including respiratory protection, requirements that must be implemented at covered facilities. This summary describes these requirements.
Face Masks
The standard does not mandate that all employees wear N95 or other higher-level respiratory protection at all times. Rather, it allows employees who work at covered facilities but do not have exposures to suspected or confirmed COVID-19 persons to wear face masks, defined as “surgical, medical procedure, dental, or isolation mask[s] that [are] FDA-cleared, authorized by an FDA EUA, or offered or distributed as described in an FDA enforcement policy.” Face masks must be worn on all employees indoors or when in a vehicle with another person (for work purposes). The face masks must be provided at no cost to the employee, and the employer must ensure that employees change their masks at least once per day (or when they are soiled, damaged or for other patient-care related reasons).
Certain exceptions to the requirement to wear face masks are allowed under the ETS, including when employees:
Are alone in a room
Are eating or drinking (and remain 6 feet from others or are separated by a physical barrier)
Have a medical condition, disability or religious beliefs that prevents use
Would risk serious injury or death by their use (in other words, where mask use poses a greater hazard)
Need to see another’s mouth when communicating (e.g., deaf employees)
In the above situations (except when alone or eating/drinking), the employer must ensure that employees are provided with and use Continue reading →
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 →
On January 7, 2021, President-elect Joe Biden announced his much-awaited choice for nominee to serve as Secretary of Labor, selecting Boston Mayor Marty Walsh. Mayor Walsh made his mark as a labor leader, ultimately heading the Building and Construction Trades Council from 2011 to 2013. Mr. Walsh was also a full-time legislator, serving in the Massachusetts state legislature for some 17 years before being elected mayor in 2014.
If confirmed, it is expected that Mayor Walsh’s close personal friendship with President-elect Biden will elevate the importance of the Labor Department in President Biden’s cabinet, allowing a Secretary Walsh significant influence in the Administration.
Mayor Walsh’s strong ties to organized labor and his selection follows through on President-elect Biden’s campaign promise to give unions a stronger voice in labor policy in his Administration. Mayor Walsh has a reputation as a “pragmatic deal maker,” and he is respected in Massachusetts by both business and labor for his reasonable approach to solving labor and employment issues facing the state.
Of the many issues likely to be tackled by the Labor Department over the next few years, one of the first and most impactful will be the likely issuance of a federal COVID-19 Emergency Temporary Standard by OSHA. President-elect Biden has pledged to have OSHA quickly address this issue. If a federal ETS is promulgated, it would replace the current Administration’s approach, which has relied heavily on CDC and agency guidance, as well as existing OSHA standards, like the respiratory protection standard and recordkeeping rules, to issue citations. With respect to COVID-19, under Mayor Walsh’s leadership, the City of Boston implemented a Continue reading →
With the availability of a safe, effective COVID-19 vaccine edging closer and closer, employers understandably have a number of questions regarding their role in the workplace – whether and when they can require a vaccination, what exceptions are required in a mandatory vaccination program, and whether they should require (as opposed to encourage and facilitate) the COVID-19 vaccine for employees once it becomes available.
This summer, the World Health Organization reported that nearly 200 potential vaccines were currently being developed in labs across the world, and as of mid-October, disclosed that more than 40 had advanced to clinical stage testing on humans. Drug manufacturers estimate that a vaccine will be ready and approved for general use by the end of this year, although logistically not ready for widespread distribution until mid-2021.
Indeed, just over the past couple of weeks, Pfizer and Moderna have made promising announcements regarding the results of their clinical trials. Namely, on Monday, November 9, 2020, Pfizer and BioNTech announced that a vaccine candidate against COVID-19 achieved success in the firm interim analysis from the Phase 3 study. The vaccine candidate was found to be more than 90% effective in preventing COVID-19 in participants without evidence of prior SARS-CoV-2 infection in the first interim efficacy analysis. According to the announcement, submission for Emergency Use Authorization (EUA) to the U.S. Food and Drug Administration (FDA) is planned for soon after the required safety milestone is achieved, which is currently expected to occur this week. Additionally, as reported by the National Institutes of Health (NIH) on November 16, 2020, there have been promising interim results from a clinical trial of a NIH-Moderna COVID-19 vaccine. An independent data and safety monitoring board (DSMB) reported that the vaccine candidate was safe and well-tolerated and noted a vaccine efficacy rate of 94.5%.
As the reality of a vaccination nears, employers are inquiring whether they can and should mandate the vaccine for their employees.
Can Employers Require Employees to Take the COVID-19 Vaccine?
As a threshold matter, it should be noted that according to a member of the federal advisory panel on immunizations that will be making recommendations to the CDC on who should get the first doses, vaccines authorized under the FDA’s emergency use authority, as these COVID-19 vaccinations will be at the start, cannot be mandated. Any COVID-19 vaccine brought to market under an EUA instead of the normal non-emergency approval process will, by necessity, lack long term safety data.
In general though, outside the context of EUA vaccine, employers can require vaccination as a term and condition of employment, but such practice is not without limitations, nor is it always recommended. Although the issue is only now coming to the forefront because of COVID-19, mandatory vaccinations in the workplace are not new, and have been particularly prevalent among healthcare providers for decades. Some variability exists under federal law and among federal agencies, but for the most part, mandatory vaccination programs are permissible, as long as employers consider religious accommodation requests under Title VII of the Civil Rights Act of 1964 (Title VII) and medical accommodation requests under the Americans with Disabilities Act (ADA). Continue reading →
Responding to the surge in workplace violence faced by retailers and others in the service industries, on September 1, 2020, the CDC issued guidance on Limiting Workplace Violence Associated with COVID-19 Prevention Policies in Retail and Services Businesses. The new guidance covers how to manage the threat of violence from customers or others who are asked to comply with Governors’ or Health Department mandates or the businesses’ own infection control policies, such as requiring masks to be worn by customers, asking customers to follow social distancing rules, and setting limits on the number of customers allowed inside at one time. Specifically, the guidance discourages retailers from becoming the enforcer in these situations, and includes recommendations like calling 911 and not arguing with a customer who refuses to comply with the rules.
This guidance is vital as we have seen the opposite instruction from such governmental agencies as Michigan OSHA (“MIOSHA”), Oregon OSHA (“OR OSHA”), and the New Mexico Occupational Health and Safety Bureau (“NMOHSB”). Indeed, those state OSH Programs have been issuing citations and shutdown orders for retailers and restaurants who do not refuse service to customers unwilling to wear a face covering onsite. CDC’s guidance will hopefully force these agencies to be sensible about the terrible dilemma they are forcing on businesses and their front line employees who feel the brunt of these enforcement policies that would turn them into law enforcement. Continue reading →
On August 19, 2020, the Food and Drug Administration (FDA) and the Occupational Safety and Health Administration (OSHA) released a detailed checklist for human and animal food manufacturers to consider when continuing, resuming or reevaluating operations due to the COVID-19 pandemic.
The stated purpose of the new guidance document is “for FDA-regulated human and animal food operations to use when assessing operations during the COVID-19 pandemic, especially when re-starting operations after a shut down or when reassessing operations because of changes due to the COVID-19 public health emergency caused by the virus SARS-CoV.”
The checklist is intended to guide employers who grow, harvest, pack, manufacture, process or hold human and animal food regulated by FDA, and covers nearly every (if not every) topic related to COVID-19 including:
Employee health screenings;
Operation configuration for social distancing;
Recommended engineering controls (e.g., physical barriers and adequate ventilation);
Communication and training;
Signage;
Coordination with public health officials;
Exposure scenarios and return-to-work criteria;
Hand hygiene and respiratory etiquette;
Flexible sick leave policies;
Cleaning/disinfecting; and
PPE and face coverings.
The checklist also includes some more topics somewhat unique to the food industry, such as:
Shared/communal housing;
Recommendations for critical infrastructure workers;
Social distancing configurations for harvesting and along production lines; and
Process Safety Management considerations for facilities with ammonia refrigeration systems that may have been shut down.
On July 20, 2020, the U.S. Centers Disease Control and Prevention (“CDC”) made major revisions to its COVID-19 “discontinue home isolation” guidance, upon which employers may rely to determine when it is safe for employees to return to work. This comes only a couple months after CDC made major revisions to the same guidance document when, on May 3, 2020, it extended the home isolation period from 7 to 10 days since symptoms first appeared for the symptom-based strategy in persons with COVID-19 who have symptoms, and from 7 to 10 days after the date of their first positive test for the time-based strategy in asymptomatic persons with laboratory-confirmed COVID-19.
In its most recent update, CDC has determined that a test-based strategy is no longer recommended to determine when to discontinue home isolation, except in certain circumstances. It has also modified its symptom-based strategy in part by changing the number of hours that must pass since last fever without the use of fever-reducing medication from “at least 72 hours” to “at least 24 hours.” CDC’s revisions should trigger employers to immediately revise their COVID-19 preparedness, response, and control plans to account for the latest changes. In light of the recent COVID-19 regulation that Virginia promulgated almost at the same time that CDC decided to update its guidance, the revisions also demonstrate that COVID-19 is not the type of hazard easily subject to a regulatory standard.
Revised Guidance
To start, it is important to understand the major changes that CDC has just made. As you know, prior to CDC’s most recent changes, CDC offered individuals with COVID-19 who had symptoms two options for discontinuing home isolation:
a symptom-based strategy; and
a test-based strategy.
It also offered individuals with COVID-19 who never showed symptoms two options:
a time-based strategy; and
a test-based strategy.
With its most recent update, CDC has essentially eliminated Continue reading →
Continuing its effort to issue numerous industry-specific COVID-19 guidance documents, last week OSHA released guidance for the Oil and Gas Industry to help employers manage the COVID-19 hazard in oil and gas workplaces. The new guidance builds on existing CDC and/or OSHA guidance that we have seen for all employers or from other industry-specific guidance, and adds in a few oil and gas specific recommendations.
To start, OSHA makes clear that the guidance is geared towards oil and gas industry workers and employers, including those in sub-industries and tasks that make up the broader oil and gas sector. In that regard, OSHA provides a table that describes oil and gas work tasks associated with the exposure risk levels in OSHA’s occupational exposure risk pyramid, which divides tasks into four risk exposure categories – very high, high, medium, and lower (caution). Specifically, OSHA groups most oil and gas work tasks in the lower (caution) and medium exposure risk levels.
For the medium exposure risk level category, OSHA includes:
oil and gas drilling, servicing, production, distribution, and/or processing tasks that require frequent close contact (within 6 feet) with coworkers, contractors, customers, or the general public; and
traveling within facilities or between facilities when workers must share vehicles.
For the first group of tasks, OSHA notes that control rooms, trailers and doghouses are frequent high-traffic areas. The Agency also includes a general note that working and living together in close quarters where social distancing is not always feasible may increase exposure risk compared to other activities in the medium exposure risk category. Continue reading →
