30+ Challenges to OSHA’s Vaccination, Testing, and Face Coverings ETS Consolidated in the Sixth Circuit

By Conn Maciel Carey LLP’s COVID-19 Task Force

Since OSHA published its Vaccinations, Testing, and Face Coverings ETS in the Federal Register 11 days ago, petitioners have filed more than 30 separate lawsuits challenging the legality of the ETS and moving to temporarily and then permanently enjoin implementation of the ETS. The petitioners across these nearly three dozen challenges include more than half the states in the US, numerous private employers, religious groups, the Republican National Committee, and some labor unions (presumably for strategic reasons – to give more liberal courts a chance to take the lead in hearing the litigation).

By judicial procedure, when a legal challenge to an OSHA standard is filed in more than one US Court of Appeals, the US Judicial Panel on Multi-District/Circuit Litigation will respond to a motion by either party in the challenge to consolidate all of the challenges that were filed within 10 days of issuance of the standard, and by way of a true lottery, will assign the consolidated cases to a single circuit court.

Yesterday marked the tenth day since the OSHA ETS was published in the Federal Register, so this morning, (November 16th), the Department of Labor gave notice to the MDL Panel of the numerous petitions for review of a single case filed in each of the 1st, 2nd, 3rd, 5th and 10th Circuits, two cases in each of the 4th and 7th Circuits, three cases in the 9th, 11th, and District of Columbia Circuits, four cases in the 8th Circuit, and five cases in the 6th Circuit.  For those keeping score at home, that’s at least one legal challenge filed in every US Court of Appeals in the country except for the Federal Circuit, which does not have jurisdiction to hear challenges to OSHA standards.  Regardless of the number of challenges filed in any given circuit court, each circuit had one chance in the lottery. Continue reading

[BREAKING] Fifth Circuit Orders a Stay of OSHA’s COVID-19 Vaccination, Testing, and Face Coverings ETS

By Conn Maciel Carey’s COVID-19 Task Force

Emphasizing that the extraordinary power afforded to OSHA under the emergency provisions of the OSH Act should be delicately exercised, the US Court of Appeals for the Fifth Circuit issued a 22-page opinion late yesterday, November 12th, reaffirming after briefing by both parties the Stay of OSHA’s COVID-19 Vaccination, Testing, and Face Coverings emergency temporary standard (ETS) that it had ordered on November 6th. The Fifth Circuit panel ordered that OSHA may take no further steps to implement or enforce its newly issued ETS until further court order, and thus may not require employees of covered employers to undergo COVID-19 vaccination, take weekly COVID-19 tests, or wear a mask.

Why Did the Fifth Circuit Stay OSHA’s ETS?

Notably, the Fifth Circuit commented in a footnote that debates over the Biden Administration’s vaccine mandate have “roiled the country throughout much of the Fall,” and that the ETS (referred to as “the Mandate” by the three-judge panel) “affects every person in America one way or another.”  Drawing from a variety of sources—including White House Chief of Staff Ronald Klain’s retweet of an MSNBC anchor’s tweet characterizing the ETS as a “workaround” for a federal vaccine mandate, the Court refused to accept the government’s arguments that a sufficient emergency exists justifying a second COVID-focused ETS in less than 6 months.  Indeed, the Court found that prior statements by the Administration “belie the notion that COVID-19 poses the kind of emergency that allows OSHA to take the extreme measure of an ETS.”  To that end, the Court seized on the fact that more than 78% of Americans aged 12 and older are either fully or partially vaccinated and thus face “little risk at all” according to the Administration.

While the November 12 opinion was issued after the Fifth Circuit conducted an “expedited” review, the Court leaves little doubt as to how it will likely rule Continue reading

[BREAKING] 5th Cir. Temporarily Stays OSHA’s COVID-19 Vaccination, Testing, and Face Coverings Emergency Rule

By Conn Maciel Carey’s COVID-19 Task Force

On Saturday, November 6th, a three-judge panel of the US Court of Appeals for the Fifth Circuit issued a Temporary Restraining Order (TRO) staying the effect of OSHA’s vaccination, testing, and face coverings emergency temporary standard (ETS) that it had promulgated just the day before.  The entirety of the court’s explanation for the stay Order was this:

“Because the petitions give cause to believe there are grave statutory
and constitutional issues with the Mandate, the Mandate is hereby STAYED
pending further action by this court.”

The suit challenging OSHA’s new vaccination, testing, and face coverings ETS was initiated on behalf of a group of private businesses and religious organizations, as well as several states, including Texas, Louisiana, South Carolina, Utah and Mississippi. The petitioners argued that OSHA overstepped its legal authority in issuing an emergency standard to address COVID-19 in US workplaces at this point in the pandemic. The petitioners assert that an emergency stay is necessary because these employers will face workforce shortages if unvaccinated employees quit their jobs in lieu of receiving a COVID-19 vaccination, and the ETS forces them to expend resources to develop and implement written compliance and reporting procedures beyond what the law authorizes under the circumstances.

Specifically, their objections to the OSHA ETS include: Continue reading

OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard Set to Issue Imminently

By Conn Maciel Carey LLP’s COVID-19 Task Force

OSHA’s COVID-19 Vaccination and Testing emergency temporary standard is expected to be released imminently, likely Wednesday or Thursday of this week.

OMB Has Concluded Its Review of the ETS:

This morning, OMB’s website updated again, but this time, it was not to add more EO 12866 stakeholder meetings to the calendar, it was to declare OMB’s review of the ETS “concluded.”  Here are two screenshots from OMB’s website.  The first shows the list of active DOL rulemakings at OMB for some form of review, and it identifies the status for the COVID-19 vaccination and testing ETS as “Concluded.”

The second one provides a little more detail, including these notes about the ETS:  “Received Date: 10/12/2021” and “Concluded Date: 11/01/2021.”

The Dept. of Labor Gives Some Clues About What to Expect in the ETS:

Additionally, a Department of Labor spokesman shared this statement this morning:

“On November 1, the Office of Management and Budget completed its regulatory review of the emergency temporary standard. The Federal Register will publish the emergency temporary standard in the coming days. [OSHA] has been working expeditiously to develop an emergency temporary standard that covers employers with 100 or more employees, firm- or company-wide, and provides options for compliance…. Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose either to get vaccinated or to undergo regular COVID-19 testing and wear a face covering at work. The ETS also requires employers to provide paid time to workers to get vaccinated and paid sick leave to recover from any side effects.”

The DOL statement provides some useful insight about what will be in the final rule and when we will see it.  First, OSHA did stick with the 100-employee threshold that the President identified in his announcement and new COVID-19 Action Plan from September 9th.  There was always a chance that OSHA would  scrapped that employee-count trigger as they wrote the rule and instead made it apply to everyone.  We also see in this DOL statement that, as expected, the 100-employee count will be Continue reading

Update on Fed OSHA’s COVID-19 Vaccination and Testing Emergency Rulemaking

By Conn Maciel Carey LLP’s COVID-19 Task Force

Although it has only been 10 days since OSHA delivered a proposed COVID-19 Vaccination and Testing emergency temporary standard (ETS) to the White House’s Office of Management and Budget (OMB), a lot has happened.  We have seen bizarre attempts by groups of individuals to try to muck up the OMB review process.  The US Department of Labor sent letters to certain states informing them that federal OSHA is considering revoking their approved status to operate their State OSH Plans.  And, President Biden’s nominee to Head OSHA, Doug Parker, is scheduled to be confirmed early next week.  Here is a summary of what we’ve been seeing and where we are now.

When Will the Vaccination and Testing ETS be Issued? 

The stakeholder input process at OMB’s Office of Information and Regulatory Affairs (OIRA) is well underway.  OMB’s website reflecting the schedule of Executive Order 12866 meetings is normally only updated once per day, making it hard to nail down when OMB intends to conclude its review of the proposed ETS.  As of the end of last week, we heard that OMB might conclude its review process as early as last Friday, October 12th, but every day, OMB’s website updated to include more and more stakeholder meetings.  As of this morning (Friday, October 22nd), the OMB website updated again, and it did add some new scheduled OIRA EO 12866 stakeholder meetings (now up to 68 meetings), but all of the new meetings have been scheduled to be completed today by 3 PM.

It is beginning to look to us like OMB will have “completed” its review of the ETS by the end of the day today, so at this point, we think OSHA could release the pre-publication package revealing the regulatory text and the preamble of the final ETS, as early as the close of business today.

We have also been hearing Continue reading

Fed OSHA’s COVID-19 Vaccine and Testing Emergency Temporary Standard At OMB for Approval

By Conn Maciel Carey’s COVID-19 Task Force

On September 9th, President Biden announced that he was directing OSHA to issue a new Emergency Temporary Standard (ETS) that would require many employers to provide paid time for employees to get and recover from getting vaccinated, and more importantly, to implement “soft” vaccine mandates; i.e., require employees either to be fully vaccinated or get weekly COVID-19 testing.  This new ETS focused on vaccinations and testing is a central element of the President’s newly unveiled Path Out of the Pandemic – COVID-19 Action Plan, with a central tenet to “vaccinate the unvaccinated.”

We heard from our contacts at OSHA that the agency would move much more quickly to prepare and send this ETS to the White House than it had done with the first COVID-19 ETS this Spring and Summer, and they have done just that.  On Tuesday, October 12, 2021, the Department of Labor issued a statement confirming that OSHA delivered to the White House’s Office of Management and Budget what the statement characterized as the “initial text” of the ETS.  Here is the relevant except from the DOL statement:

“The Occupational Safety and Health Administration has been working expeditiously to develop an emergency temporary standard that covers employers with 100 or more employees to ensure their workers are fully vaccinated or undergo weekly testing to protect employees from the spread of coronavirus in the workplace.  On Tuesday, October 12, as part of the regulatory review process, the agency submitted the initial text of the emergency temporary standard to the Office of Management and Budget.”

We thought the reference to “initial text” was peculiar.  Generally, it is a proposed final regulation that OSHA delivers to OMB in the context of an emergency rulemaking, not a working draft. But, the very next day, on Wednesday, October 13, 2021, after hitting the “refresh” button more times through the night than we would like to admit, we saw what we were expecting – a proposed final version of Federal OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) has been submitted to the White House’s Office of Management and Budget (“OMB”) for approval:

The entry for the ETS on OMB’s website confirms that OMB: Continue reading

Coalition to Work on OSHA’s 2nd COVID-19 Emergency Rulemaking to Set a “Soft” Vaccine Mandate

We hate that we have to do this again, but alas, as we reported late last week, on Thursday, September 9th, President Biden announced that he is directing OSHA to issue a new Emergency Temporary Standard (ETS) that would require many employers to provide paid time for employees to get and recover from getting vaccinated and to implement “soft” vaccine mandates; i.e., require employees either to be fully vaccinated or get weekly COVID-19 testing, as well as issuing new Executive Orders requiring federal contractors to implement “hard” vaccine mandates.

While we anticipated OSHA would reconsider the need for a broader COVID-19 ETS applicable beyond just the healthcare sector in light of the impact of the Delta variant, President Biden’s decision to use a new ETS focused on vaccinations and testing as a central element of his newly unveiled Path Out of the Pandemic – COVID-19 Action Plan raises a host of challenges for employers across the country.  We understand from our contacts at OSHA that the agency will move much more quickly to prepare and send this ETS to the White House, so it is imperative that the employer community come together now to identify shared concerns and considerations and begin advocating to OSHA and OMB so that this new ETS is one with which industry can reasonably manage.

To that end, Conn Maciel Carey LLP is organizing a fee-based company-anonymous coalition of employers and trade groups to advocate for the most reasonable fed OSHA COVID-19 emergency rule focused on vaccination and testing possible. Continue reading

[WEBINAR] 2021 Mid-Year Review of Important Developments at OSHA

On Thursday, July 22, 2021 at 1:00 p.m. ET, join the Partners from Conn Maciel Carey’s national OSHA Practice for a webinar event – “2021 Mid-Year Review of Key OSHA Developments

Having shared a series of predictions during our January webinar regarding how OSHA would tackle the COVID-19 pandemic and reshape its priorities under new leadership during the first year of the Biden Administration, we will now take stock of what has happened at DOL and OSHA during the first months of the Biden Administration, discuss surprise developments, and look ahead at the remainder of 2021 and beyond. We will take a close look at senior leadership now in place or on the way, and analyze what those appointments likely mean for employers. We will also review OSHA’s efforts to address the COVID-19 pandemic, including the new healthcare-focused emergency temporary standard and updated guidance for everyone else. We will also examine Pres. Biden’s efforts to make good on his promises to increase OSHA’s budget, grow the number of inspectors and generally ramp up enforcement. We will also review key developments in OSHA’s rulemaking agenda.

Participants in this webinar will learn the following:

Continue reading

Fed OSHA’s COVID-19 ETS: What You Need to Know About Cleaning and Disinfecting

By Conn Maciel Carey’s COVID-19 Task Force

Today’s topic is cleaning and disinfecting…when cleaning/disinfecting is required and what needs to be cleaned/disinfected.

29 C.F.R. Section 502(j) of the ETS establishes the cleaning and disinfecting requirements that must be implemented at covered facilities. This summary describes these requirements.

In patient care areas, resident rooms, and for medical devices and equipment, the employer must follow standard practices for cleaning and disinfection of surfaces and equipment in accordance with CDC’s “COVID-19 Infection Prevention and Control Recommendations” and CDC’s “Guidelines for Environmental Infection Control,” both of which the ETS incorporates by reference.  Under the ETS and CDC Guidance, cleaning refers to removal of dirt and germs using soap and water or other cleaning agents while disinfecting means using an EPA-registered, hospital-grade disinfectant included on EPA’s “List N” in accordance with manufacturers’ instructions.

Most healthcare settings have been following this CDC Guidance throughout the pandemic, so OSHA’s incorporation of these requirements into the ETS likely requires nothing new to be done when cleaning and disinfecting.  Some of the more fundamental requirements Continue reading

Fed OSHA’s COVID-19 ETS: What You Need to Know About Physical Distancing

By Conn Maciel Carey’s COVID-19 Task Force

Today’s topic is physical distancing…when distancing is required and ways to maintain distance.

29 C.F.R. Section 1910.502(h) establishes the requirements employers covered by the ETS must follow regarding physical distancing.  Employers must ensure that each employee is separated from all other people by at least 6 feet when indoors, unless the employer can demonstrate that it is not feasible to remain distant to accomplish a specific activity (e.g., hands-on medical care).  This summary describes the physical distancing requirements of the ETS.

To determine when and where physical distancing is necessary in the workplace, employers must rely on the results of their hazard assessments.  Places and times where people may congregate or come in contact with one another must be identified and addressed, regardless of whether employees are performing an assigned work task or not.  For instance, it is typical that employees congregate during meetings or training sessions, as well as in and around entrances, bathrooms, hallways, aisles, walkways, elevators, breakrooms or eating areas, and waiting areas.  All of these areas must be identified and addressed as part of the hazard assessment.

After identifying potential areas where employees may congregate and therefore where concern regarding workplace exposure is heightened, employers must develop and implement policies and procedures to comply with the 6 feet physical distancing requirements.

The ETS establishes several exceptions to the physical distancing requirements of the standard. Physical distancing is not required for employees who are fully vaccinated when those employees are in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.  (Face masking and physical barriers also are not required in this situation.)

The physical distancing requirement also does not apply Continue reading

Fed OSHA’s COVID-19 ETS: What You Need to Know About Physical Barriers

By Conn Maciel Carey’s COVID-19 Task Force

Today’s topic is physical barriers…what has to be installed and where they have to be installed.

29 C.F.R. Section 1910.502(i) of the ETS establishes a requirement for physical barriers to be installed under certain circumstances. Solid barriers must be installed at each fixed work location outside of direct patient care areas where an employee is not separated from all other people by at least 6 feet of distance, except where the employer can demonstrate it is not feasible to do so or where the exception for vaccinated employees applies.  This summary describes the standard’s requirements for physical barriers.

Where barriers are required, they must be of sufficient height and width and situated in a manner to block face-to-face pathways between individuals based on where each person would normally stand or sit. They must either be easily cleanable or disposable.  While the ETS does not specify the type of material that must be used for physical barriers, OSHA explains in the preamble that the material must be impermeable to infectious droplets that are transmitted when an infected individual is sneezing, coughing, breathing, talking, or yelling – such as plastic or acrylic partitions. The barriers must be designed, constructed, and installed to prevent droplets from reaching employees when they are in their normal sitting or standing location relative to the workstation. OSHA recognizes that effective design and installation of physical barriers will differ among workplaces based on job tasks, work processes, potential users, and the physical layout of the work area.

In terms of where barriers need to be installed and where they don’t, the ETS Continue reading

Fed OSHA’s COVID-19 ETS: What You Need to Know About Reporting

By Conn Maciel Carey’s COVID-19 Task Force

Many of you are likely knee-deep in ensuring that your facilities are in compliance with the various components of OSHA’s new Emergency Temporary Standard, with the July 6th compliance deadline upon us.  Our CMC COVID-19 Taskforce has reviewed all 1,000+ pages of OSHA’s ETS and supporting documentation and has as good an understanding of what is required as one can have – although OSHA has left some big question marks and caused a fair amount of head scratching in some areas.  To help you understand precisely what is required of your covered facilities, and to assist with compliance implementation, we have prepared summaries of the major requirements of the ETS.  Look for our summaries here each day over the next week.  The devil is in the details, however, so please reach out if you would like a more nuanced understanding of how the standard applies to your particular facility and what steps you need to take to ensure you are in compliance – and avoid an enforcement action under OSHA’s COVID-19 National Emphasis Program.

Here is a summary of the ETS requirements for reporting:

Reporting

29 C.F.R. Section 1910.502(r) revises the fatality and hospitalization reporting requirements for COVID-19 cases.  This summary describes the new reporting requirements.

For fatalities, covered employers must report all work-related COVID-19 fatalities within 8 hours of learning of the reportable fatality.  Unlike the requirement to report work-related fatalities under the existing injury and illness reporting standard (29 C.F.R. Section 1904.39), the reporting obligation is not limited to fatalities that occur within 30 days of exposure.

This means if these two factors are present, the case is reportable:

  • The employee died from a confirmed case of COVID-19; and
  • The cause of death was a work-related exposure to COVID-19.

For hospitalizations, covered employers must report all work-related COVID-19 in-patient hospitalization within 24 hours of learning of the reportable in-patient hospitalization.  Similar to fatalities, OSHA did not include in the COVID-19 reporting standard the temporal boundary included in the existing Section 1904.39 reporting standard.  Continue reading

Fed OSHA’s COVID-19 ETS: What You Need to Know About Recordkeeping

By Conn Maciel Carey’s COVID-19 Task Force

Many of you are likely knee-deep in ensuring that your facilities are in compliance with the various components of OSHA’s new Emergency Temporary Standard, with the July 6th compliance deadline upon us.  Our CMC COVID-19 Taskforce has reviewed all 1,000+ pages of OSHA’s ETS and supporting documentation and has as good an understanding of what is required as one can have – although OSHA has left some big question marks and caused a fair amount of head scratching in some areas.  To help you understand precisely what is required of your covered facilities, and to assist with compliance implementation, we have prepared summaries of the major requirements of the ETS.  Look for our summaries here each day over the next week.  The devil is in the details, however, so please reach out if you would like a more nuanced understanding of how the standard applies to your particular facility and what steps you need to take to ensure you are in compliance – and avoid an enforcement action under OSHA’s COVID-19 National Emphasis Program.

Here is a summary of the ETS requirements for recordkeeping:

Recordkeeping

29 C.F.R. Section 1910.502(q) establishes a new recordkeeping obligation applicable to covered employers requiring the creation and maintenance of a dedicated COVID-19 Log, while leaving in place the existing requirements applicable to all employers (including employers covered by the ETS) to record workplace COVID-19 cases that meet the Section 1904 recordkeeping criteria threshold (days away from work, etc.) on the employer’s OSHA 300 Log.  It also establishes recordkeeping obligations for the COVID-19 Plan that is required by Section 1910.502(c) of the ETS.  This summary describes the new requirements for COVID-19 recordkeeping.

The ETS requires covered employers — unless they have 10 or fewer employees in the entire company — to create, maintain, and make available to regulators COVID-19 records. Most notably, this requires covered employers to maintain a COVID-19 Log on which they must record every instance of a COVID-19-positive employee, whether or not the illness is work-related¸ with the limited exception of employees who exclusively telework.  Unlike an OSHA 300 Log, for which employers have seven days to record an injury or illness, positive COVID-19 cases must be recorded on the COVID-19 Log within 24 hours of learning of the positive diagnosis.  (Note that the 10 or fewer employee exemption applies to the new COVID-19 Log recordkeeping obligations only and not to a covered employer’s obligation to report work-related COVID-19 fatality or in-patient hospitalizations.) Continue reading

Fed OSHA’s COVID-19 ETS: What You Need to Know About Hazard Assessments and COVID-19 Plans

By Conn Maciel Carey’s COVID-19 Task Force

Many of you are likely knee-deep in ensuring that your facilities are in compliance with the various components of OSHA’s new Emergency Temporary Standard, with the July 6th compliance deadline nearly upon us.  Our CMC COVID-19 Taskforce has reviewed all 1,000+ pages of OSHA’s ETS and supporting documentation and has as good an understanding of what is required as one can have – although OSHA has left some big question marks and caused a fair amount of head scratching in some areas.  To help you understand precisely what is required of your covered facilities, and to assist with compliance implementation, we have prepared summaries of the major requirements of the ETS.  Look for our summaries here each day over the next week.  The devil is in the details, however, so please reach out if you would like a more nuanced understanding of how the standard applies to your particular facility and what steps you need to take to ensure you are in compliance – and avoid an enforcement action under OSHA’s COVID-19 National Emphasis Program.

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

New Guidance Recommends Employers Engage with Employees and Unions to Mitigate COVID-19 in the Workplace

By: Conn Maciel Carey’s COVID-19 Taskforce

On June 10th, federal OSHA published significant updates to its principal workplace COVID-19 guidance – Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.  This was an update to the original version that issued on January 29, 2021 in response to Pres. Biden’s Day 1 OSHA Executive Order, and the first time it has been updated since the COVID-19 vaccines became widely available.

At its core, OSHA’s new guidance was updated to align with CDC’s May 13, 2021 guidance regarding relaxing requirements for vaccinated individuals and advises that, unless otherwise required by another jurisdiction’s laws, rules, or regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure.

To the extent workers are not vaccinated or are otherwise at risk, however, OSHA states that employers must continue to implement controls to help protect them, include:

  • separating from the workplace all infected people, all people experiencing COVID symptoms, and any unvaccinated people who have had a close contact with someone with COVID-19
  • implementing physical distancing
  • maintaining ventilation systems, and
  • enforcing the proper use of face coverings or PPE when appropriate.

Importantly, OSHA recommends employers engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated and otherwise at-risk workers and mitigate the spread of COVID-19 by taking some combination of these actions: Continue reading

Is Your Workplace Covered by Fed OSHA’s New COVID-19 ETS for Healthcare?

By Conn Maciel Carey’s COVID-19 Task Force

Nearly 16 months after the pandemic began, federal OSHA revealed its COVID-19 Emergency Temporary Standard (the ETS) that imposes a series of requirements on healthcare employers.  While OSHA’s issuance of an ETS comes as no surprise to many who have been tracking the agency since Pres. Biden’s inauguration, the fact that it applies only to the healthcare sector and not to all industries is not what we expected.  Looking back, the promulgation of an ETS applicable to all workplaces seemed a foregone conclusion when President Biden took office in January and issued an Executive Order that same day directing OSHA to update its COVID-19 guidance, adopt a COVID-19 National Emphasis Program, evaluate whether an ETS was necessary and, if so, issue the ETS on or before March 15, 2021.

On April 27, 2021, OSHA delivered to the White House Office of Management and Budget (OMB) an ETS, which, by all accounts, was a broad rule applicable to all industries, but because this was an emergency rulemaking, the proposed regulatory text was not available to the public.  In the weeks that followed, the Office of Information and Regulatory Affairs (OIRA), within OMB, hosted a series of meetings to hear from stakeholders regarding a proposed rule they had not seen.  On behalf of the Employers COVID-19 Prevention Coalition, Conn Maciel Carey organized and led two OIRA meetings at which we and our coalition members provided input and recommendations to OSHA and OMB.  As the meetings continued, the success of the vaccine rollout became clearer, with a corresponding drop in COVID-19 cases, hospitalizations, and deaths, and then came the Centers for Disease Control (“CDC”) game-changing guidance on May 13, 2021 relaxing protocols for vaccinated individuals.  All of this caused many to question whether an OSHA ETS was still necessary.  With conditions on the ground improving rapidly, we continued to help stakeholder schedule and participate in OIRA meetings to argue that a general industry ETS was no longer needed.

On June 10, 2011, after more than 50 OIRA meetings, a final ETS applicable only to the healthcare industry was sent to the Office of the Federal Register for publication.  The standard appears at 29 C.F.R. Section 1910.502, and will appear in the Federal Register within a couple of weeks.

Explaining the purpose of the ETS for Healthcare, U.S. Secretary of Labor Marty Walsh offered this statement: Continue reading

In Lieu of a COVID-19 ETS Applicable to All Industries, Fed OSHA Updated Its COVID-19 Guidance

By Conn Maciel Carey’s COVID-19 Task Force

On June 10th, Fed OSHA revealed its much anticipated (or dreaded) COVID-19 Prevention Emergency Temporary Standard, but rather than a rule applicable to all industries, OSHA issued a regulation narrowly tailored only to certain healthcare settings.

So what does that mean for all other employers?  For everyone else, federal OSHA simultaneously published significant updates (mostly improvements) to its principal workplace COVID-19 guidance – Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.  This was an update to the original version that issued on January 29, 2021 in response to Pres. Biden’s Day 1 OSHA Executive Order, and the first time it has been updated since the COVID-19 vaccines became widely available.

OSHA announced that the updated guidance is intended to help employers protect non-vaccinated workers in non-healthcare settings (i.e., industries not covered by the new ETS), with a special emphasis on other industries noted for prolonged close-contacts among workers, such as meat processing, manufacturing, seafood, and grocery and high-volume retail workplaces.  The guidance also states that it applies to otherwise at-risk workers; i.e., those with conditions that may affect the workers’ ability to have a full immune response to vaccination.

OSHA categorizes the updates to the guidance into three buckets:

  1. focus protections on unvaccinated and otherwise at-risk workers;
  2. encourage COVID-19 vaccination; and
  3. link to guidance with the most up-to-date content.

At its core, though, OSHA’s new guidance was updated to Continue reading

EEOC Updates COVID-19 Vaccination Guidance

By Conn Maciel Carey’s COVID-19 Task Force

Last week, Conn Maciel Carey posted a blog article about How to Navigate the Thorny Legal Landscape Around Employee Vaccination Status.  One of the observation in that article was that we were all on the edge of our seats waiting for the EEOC to issue promised guidance about employer incentives and mandates about the COVID-19 vaccination.  On Friday, the EEOC finally issued much-anticipated updated FAQs about the legal landscape of various employer vaccinations policies.

Here is a summary of the vaccine section of the guidance:

May employers ask employees about vaccination status under federal law?  See FAQs K9, K5, K15, K16, K18, K19

  • Yes – does not violate ADA or GINA.
  • However, employer should not ask “why” an employee is unvaccinated, as this could compel the employee to reveal disability information that is protected under the ADA and/or GINA.
  • Recommended practice: If employer requires documentation or other confirmation of vaccination, “notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis.”

Is vaccination information “confidential” under the ADA?  See FAQ K4

  • Yes, this includes documentation (i.e., the white vaccination card)  or “other confirmation” of vaccination, which we presume means any self-attestation form or email from the employee, as well as any record, matrix, spreadsheet, or checklist created by the employer after viewing employees’ vaccination cards or receiving a verbal confirmations from employees.
  • The records or information must be kept confidential and stored separately from employee personnel files.

How may employers encourage employees and family members to get vaccinated?  See FAQ K3 Continue reading

CDC Drops Mask and Distancing Requirements for Fully Vaccinated Individuals — What About the Workplace?

By Conn Maciel Carey’s COVID-19 Task Force

By now you have likely heard the big news that yesterday, May 13th, the CDC updated guidance related to masks and physical distancing for individuals who are fully vaccinated (i.e., two weeks after receiving a single-dose vaccine or after the second dose in a two-dose series).  Specifically, in its updated guidance — “Interim Public Health Recommendations for Fully Vaccinated People” — the CDC now says fully vaccinated individuals may resume essentially all indoor and outdoor pre-pandemic activities in almost all circumstances.  As of now, there is no outside limit to one’s status as fully vaccinated.

In a public video released just before the CDC posted its updated written guidance, CDC Director Dr. Walensky shared that “based on data about vaccine effectiveness and the low risk of transmission to others, and universal access to vaccines today, the CDC is updating our guidance for fully vaccinated individuals.  Anyone who is fully vaccinated can participate in indoor and outdoor activities—large or small—without wearing a mask or physical distancing.”  Even in the case of “breakthrough” infections, Dr. Walensky acknowledged that there is likely low risk of transmission to others.  Dr. Walensky cautioned that “over the past year, we saw how unpredictable this virus can be, so we may have to change these recommendations if things get worse.”

What Does This Mean For Workplaces?

The question everyone is asking is whether this updated guidance applies to employees and workplaces.  The best answer we can give now is that the guidance does technically apply to workplaces, but there is a significant exception relative to workplaces built into the new guidance that swallows most of the relief it purports to provide, at least for now in many jurisdictions. Here’s our analysis about why this new guidance does apply to workplaces, but how geographically limited the relief is for the time being. Continue reading

Cal/OSHA Introduces Proposed Amendments to its COVID-19 Emergency Temporary Standard

By Conn Maciel Carey’s COVID-19 Task Force

On Friday, May 7th, Cal/OSHA finalized and published a proposed amended version of its COVID-19 Emergency Temporary Standard (the “ETS”), which the Cal/OSH Standards Board will consider for readoption at the Board’s upcoming May 20, 2021 meeting.  The revised sections of the ETS include a series of changes sought by the regulated community, and quite a few that our

Cal/OSHA’s Proposed Amended COVID-19 Emergency Temporary Standard Sent to the Standards Board

California Employers COVID-19 Prevention Coalition specifically advocated for, but the rule is still a bear.

It bears emphasizing that the proposed updated ETS is coming more than five months after the Board unanimously adopted the ETS, and during that span, Cal/OSHA has been busy considering potential changes, due in large part to the lack of opportunity by the regulated community to consider and comment in the rush to issue the emergency regulation back in November.  Indeed, when the ETS was first adopted, the regulated community struggled to understand and implement the regulation.  And while Cal/OSHA issued numerous FAQs in January, February and March, many questions remained unanswered.

In February, the Division convened an Advisory Committee about the ETS consisting of members from business and industry, labor and community groups, public agencies, and the health sciences to provide input on possible changes to the ETS.  As you know, Conn Maciel Carey, on behalf of the California Employers COVID-19 Prevention Coalition (the “Coalition”), participated in the three-day (February 11, 12 and 16) Advisory Committee meetings.  On March 2, the Coalition submitted written comments to the Chief of the Division addressing a variety of concerns and suggesting, among other recommendations, that the Division:

  • Clarify the scope of the ETS;
  • Clarify various requirements under the ETS to be consistent with guidance the Division has provided in its FAQs;
  • Create more flexibility in the standard to account for the vastly different operations covered by the ETS;
  • Address the evolving science and public health guidance on COVID-19 and the vaccines; and
  • Clarify and align notice requirements under the ETS with other California requirements.

The good news is, the agency Continue reading

Fed OSHA’s COVID-19 Emergency Temporary Standards Officially Submitted to OMB for Final Approval

By Conn Maciel Carey’s COVID-19 Task Force

We have officially entered the phase of Federal OSHA’s emergency rulemaking when things are going to start to move very quickly.  After hitting the “refresh” button more times over the last month than we would like to admit, today we finally saw what we have been expecting since mid-March – Federal OSHA’s COVID-19 Emergency Temporary Standard (“ETS”) has been submitted to the White House’s Office of Management and Budget (“OMB”) for approval:

The entry for the ETS on OMB’s website confirms that OMB:

  • Has received a proposed COVID-19 rule from OSHA;
  • The rule is in the “Final Rule” stage;
  • The rule is characterized as “Economically Significant”; and
  • Regulatory text is not available to be reviewed by the public.

The Department of Labor issued this press statement confirming that the rule was sent to OMB:

“Today, OSHA sent draft standards to the Office of Management and Budget’s Office of Information and Regulatory Affairs for review.  OSHA has been working diligently on its proposal and has taken the appropriate time to work with its science-agency partners, economic agencies, and others in the U.S. government to get this proposed emergency standard right.”

Of particular note in this press statement is DOL’s use of Continue reading

OSHA Takes A Big Step Towards Issuing a COVID-19 Emergency Temporary Standard

By Conn Maciel Carey’s COVID-19 Task Force

As we continue our marathon COVID-19 ETS watch, some news today made the future of OSHA’s emergency rulemaking more clear.  OSHA has officially delivered a proposed COVID-19 emergency temporary standard to the White House’s Office of Management Budget today, Monday, April 26th.  Although the OMB website is still not showing a record of the rule, the Department of Labor issued this statement:

“Today, OSHA sent draft standards to the Office of Management and Budget’s Office of Information and Regulatory Affairs for review.  OSHA has been working diligently on its proposal and has taken the appropriate time to work with its science-agency partners, economic agencies, and others in the U.S. government to get this proposed emergency standard right.”

We had circled this Wednesday, April 28th, on our calendar as the likely day OSHA would officially announce it was going to issue an ETS because that is Workers Memorial Day, and that seemed to be a good symbolic occasion to announce a rule designed to address a pandemic that has claimed so many lives.  Here’s a link to the Dept. of Labor’s Virtual Workers Memorial Day event, and here’s how the event is billed: Continue reading

A Private Right of Action to Enforce Federal OSHA Violations Would Benefit Attorneys, Not Employees

By Eric J. Conn and Mark M. Trapp

When the Trump Administration’s OSHA declined repeatedly to issue a COVID-19 emergency temporary standard and otherwise favored issuing guidance over citations, the agency faced a series of lawsuits and legal challenges from worker advocacy groups and national unions.  OSHA prevailed in those actions, retaining its primacy and exclusive authority to make workplace safety enforcement decisions.  But in the wake of those failed legal challenges, pro-labor advocates and Democratic politicians and policymakers have begun a serious push to establish a private right of action for employees and their representatives under the Occupational Safety and Health Act.

For example, in July of 2020, the Center for Progressive Reform (CPR), a left-leaning think tank focused on advancing policies to address health and well-being of workers and others, issued a report calling on Congress to legislate a private right of action for employees about workers safety conditions. The purpose of CPR’s policy proposal is explained this way:

OSHA has failed not only to protect workers from existing hazards – ranging from unsecured trenches to infectious diseases like COVID-19 – but has also taken minimal action to tackle emerging risks, such as those associated with climate change, the reshoring of manufacturing jobs, increased automation, and the expansion of artificial intelligence in the workplace. . . .  [I]t is time to address the law’s and agency’s shortcomings and chart a course of action to revolutionize worker health and safety for the next 50 years.

Fixing the current system requires an updated and vastly improved labor law that empowers workers to speak up about health and safety hazards, rather than risk their lives out of fear of losing employment and pay. It also requires that workers be empowered to fight back when government agencies fail to enforce safety and health requirements. Our vision is to guarantee all workers a private right of action to enforce violations of the OSH Act, coupled with incentives for speaking up and strong whistleblower protections to ensure workers can and will utilize their new authority.

Continue reading

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

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

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