OSHA Launches Regional Emphasis Program Focused on Storage Tank Cleaning Operations

By Aaron R. Gelb

On August 2, 2021, OSHA announced a new Regional Emphasis Program (“REP”) focused on transportation tank cleaning operations in the rail and truck shipping industries.  This is the second REP launched in Region 5 in less than a month; on June 14, 2021, OSHA commenced an REP to address hazardous noise levels in the Midwest. Employers who perform tank cleaning operations in Region 5, which covers Illinois, Ohio, Wisconsin, Michigan, Minnesota and Indiana, would be well-advised to dust off their copy of Conn Maciel Carey LLP’s OSHA Inspection Toolkit and take the necessary steps to ensure they are ready for the inspections that will begin before the end of the year.

Why Is OSHA Targeting Tank Cleaning Operations?

In the REP and accompanying press release, OSHA places a special emphasis on the dangers posed by the exposure to toxic fumes from cleaning chemicals or stored products that can build up inside a storage tank, as well as risks of fire or explosion when a worker must handle volatile materials in confined spaces.  Additionally, OSHA warns that the workers cleaning these tanks may “face many serious and potentially deadly hazards caused by toxic fumes from chemicals, decaying crops, waste and other substances that can expose workers to suffocation, fires and explosions.” OSHA also highlighted several fatal accidents that occurred in the Midwest, noting that Region 5 has investigated 23 worker deaths and 97 incidents in the transportation and tank cleaning industries since 2016.  According to OSHA, the hazards most often found during these inspections involved the failure to prevent the inhalation of harmful substances and to follow procedures for permit-required confined space requirements.

Which Employers Will Be Targeted? Continue reading

Q&As About Fed OSHA’s New COVID-19 Vaccination and Testing Emergency Rulemaking

By Conn Maciel Carey’s COVID-19 Taskforce

Last 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.  To help our clients and friends in industry prepare for and navigate this emergency rulemaking, we have prepared an extensive list of Q&As about OSHA’s Emergency Rulemaking for a COVID-19 Vaccine-Mandate ETS.  Also, here are links to an article we prepared summarizing OSHA’s new emergency rulemaking, a recording of the webinar about the ETS we conducted last week, and the slides we used.

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 coalition of employers and trade groups to advocate for the most reasonable fed OSHA COVID-19 emergency rule focused on vaccination and testing possible.

For several reasons, we believe this emergency rulemaking may be the OSHA rulemaking that has the most opportunity for industry influence that we can recall.  First, Continue reading

Cal/OSHA Proposes “Permanent” COVID-19 Prevention Rule – Under Review By Its Advisory Committee

Cal/OSHA has just convened an Advisory Committee to consider a proposed permanent Cal/OSHA COVID-19 prevention permanent rule, scheduled to meet on September 23, 2021.  Conn Maciel Carey has been invited to serve on the Advisory Committee, on behalf of the California Employers COVID-19 Prevention Coalition – composed of a broad array of California and national employers substantially impacted by Cal/OSHA’s COVID-19 standards.

Last Friday, the Division of Occupational Safety and Health (DOSH) posted the attached discussion draft for the proposed permanent rule.  If adopted, the permanent rule would expire in 2 years (subject to renewal/amendment) and replace the existing Cal/OSHA COVID-19 Emergency Temporary Standard (ETS). We expect that upon the permanent rule sunsetting, the Cal/OSHA Standards Board might take up a permanent general infectious disease standard – which would be another battle to be waged.  There is a broad consensus among the employer community that a general infectious disease standard is unnecessary and ill advised, in light of the existing Injury and Illness Prevention Program (IIPP) and Aerosol Transmissible Diseases standards and the inability to prescribe specific measures to address pandemics that have yet to arise.

As many may recall, the ETS was hurriedly adopted around Thanksgiving last year and then amended in June 2021 following bizarre twists and turns, with the Standards Board reconsidering proposed text and votes faced with concerns the draft amendment was not aligned with CDC guidance and was otherwise unwieldy.  Ultimately, the Standards Board formed a subcommittee to consider the future of the ETS that has met regularly since June.

Big picture, the draft permanent rule is largely a significant improvement over the ETS but there are some areas of concern that we hope are addressed through the Advisory Committee process.  We have summarized how the draft permanent rule materially departs from the ETS: 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

Federal OSHA to Issue Another COVID-19 Emergency Temporary Standard Setting a “Soft” Vaccine-Mandate

By Conn Maciel Carey’s COVID-19 Taskforce

On September 9, 2021, President Biden charged federal OSHA with developing a second emergency temporary standard (ETS) requiring all but small employers in all industries but healthcare to implement “soft” vaccine mandates, i.e., to require employees to either be fully vaccinated or get weekly COVID-19 testing.  The President directed OSHA to include in this new ETS a requirement that these employers provide paid time for employees to get vaccinated and recover from the vaccine.  The President also issued executive orders mandating federal contractors and healthcare employers implement “hard” vaccine mandates.

The push now for a broader COVID-19 ETS applicable beyond just healthcare is a step for which we have been bracing for a while now.  In June, when OSHA issued its COVID-19 ETS that was limited only to the healthcare industry, the vast majority of employers dodged the bullet, but since the explosion of new cases because of the Delta variant, we began to see that bullet more as a boomerang, likely to come back around for the rest of industry.  Here are five signals we picked up that OSHA was likely to revisit its decision in June to limit its COVID-19 ETS to only healthcare employers:

    1. The rate of community transmission and COVID-19 deaths around the country has returned to the level we were experiencing in the Spring of this year when OSHA delivered to OMB a proposed ETS that was written to cover all industries.  To the extent the decline in cases and deaths was a major factor in OSHA’s decision to limit the ETS to just healthcare, that factor no longer cuts in favor of a healthcare-only rule.
    2. Between the time OSHA delivered the broad proposed ETS and the time it issued the narrow healthcare-only ETS, the CDC released groundbreaking guidance relaxing COVID-19 protocols for vaccinated individuals.  OSHA’s decision to limit the ETS to just healthcare only a month later had to be influenced by that seismic shift.  But since that time, in July, CDC backtracked on its guidance for vaccinated workers, causing OSHA to adjust its own guidance in that regard.
    3. Since issuing the ETS for healthcare, OSHA has been under pressure from national unions and worker advocacy groups to expand the ETS to all industries, both in the form of written comments during the ETS’s post-issuance comment period and a lawsuit filed by AFL-CIO challenging OSHA’s decision to limit the ETS to just healthcare.
    4. There has been a growing tension between the Biden Administration and certain Republican governors, particular DeSantis in Florida and Abbott in Texas, around mask and vaccine mandates.  The Biden Administration could resolve that tension by issuing a specific federal OSHA regulation setting requirements for masking and vaccinations, which would likely preempt conflicting state laws.
    5. The White House has changed its tune about strict COVID-19 protocols and vaccine mandates dramatically since the OSHA ETS was issued.  The Administration’s decision to limit the ETS to healthcare only was likely at least partially politically-motivated; i.e., a broad ETS was too unpopular due to the massive decline in COVID-19 cases and deaths.  However, we have started to see President Biden take politically risky moves around vaccinations; e.g., reinstituting mask recommendations for vaccinated individuals and setting a “soft” mandate for federal workers and contractors and encouraging industry to set similar mandates.  If the politics of aggressive COVID-19 requirements influenced OSHA’s decision to issue a narrow rule in June, it appears the Administration has changed its political calculation in the face of the spread of the Delta variant surge.

Those were the main signals we saw that kept us up at night worried OSHA would deliver to OMB a new or amended COVID-19 ETS that would apply to all industries.  But President Biden’s announcements yesterday sent the strongest signal yet that we will soon see further regulatory action from federal OSHA on the COVID-19 front.  A lot of questions remain, and we expect those to be answered in time as the new rules take effect, but we wanted to share with you what we know so far, as well as our preliminary thoughts/speculation about some of those questions.

What Happened Yesterday?

Let’s start with the President’s “Path Out of the Pandemic: POTUS COVID-19 Action Plan.”  Continue reading

Pfizer Vaccine’s Full FDA Approval – What Does This Mean for Employers?

By Conn Maciel Carey’s COVID-19 Task Force

Earlier this week, on August 23, 2021, the U.S. Food and Drug Administration fully approved the Pfizer-BioNTech COVID-19 vaccine.   Earlier this year, many employers were hesitant to issue vaccine mandates and expressed concerns about potential legal risks associated with such a mandate since the COVID-19 vaccines were only approved for emergency use.  While the full approval designation may not change the legal landscape as it relates to vaccine mandates, many employers may feel more comfortable imposing such mandates.

As explained in our prior blog, employers can mandate employee vaccinations under federal law.  The U.S. Equal Employment Opportunity Commission (EEOC) issued guidance several months ago stating that employers generally can mandate COVID-19 vaccinations for employees who physically enter the workplace without running afoul of the federal anti-discrimination laws it enforces.  The U.S. Department of Justice (DOJ) also issued a slip opinion on July 6, 2021, regarding vaccination mandates and the emergency use authorization status of the vaccines:

We conclude that section 564(e)(1)(A)(ii)(III) concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to EUAs. Continue reading

Fed OSHA Updates Its COVID-19 Workplace Guidance – Realigns with CDC on Masks for Vaccinated Workers

By Conn Maciel Carey’s COVID-19 Task Force

As we predicted a few week ago, following in CDC’s footsteps, on Friday of last week (August 13, 2021), OSHA updated its primary COVID-19 guidance for non-healthcare employers – Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace to embraces CDC’s updated mask recommendations for vaccinated individuals from July 27th.  OSHA’s updated guidance includes several links directly to CDC’s July Interim Public Health Recommendations for Fully Vaccinated People, as well as CDC’s COVID-19 Integrated County View Data Tracker, which depicts levels of county-level community transmission (low, moderate, substantial, or high).

Broadly, OSHA’s updated COVID-19 guidance tracks CDC’s updated guidance closely.  For example, OSHA now recommends that:

    • Fully vaccinated workers in areas of substantial or high community transmission wear masks in order to protect unvaccinated workers; and
    • Fully vaccinated workers everywhere in the country who experience a close contact exposure with a COVID-19 case wear a mask for 14 days or until they receive a negative COVID test taken at least 3 days after the contact.

Additionally, the guidance clarifies OSHA’s recommendations for protecting unvaccinated workers and other at-risk workers in “workplaces with heightened risk due to workplace environmental factors,” including those in manufacturing, meat and poultry processing, seafood processing and agricultural processing.

What Changed in OSHA’s Updated COVID-19 Guidance? Continue reading

CDC Updates Mask Recommendations for Fully Vaccinated Individuals

By Conn Maciel Carey’s COVID-19 Task Force

We have an unfortunate update to share out of the CDC yesterday, July 27, 2021.  Short story, do not throw away your “Masks Required” signs.

What Did the CDC Change About Mask Recommendations?

In the afternoon of Tuesday, July 27th, the CDC updated its “Interim Public Health Recommendations for Fully Vaccinated People,” in which the CDC recommends:

    • fully vaccinated people wear masks in public indoor settings in areas where there is substantial or high transmission;
    • fully vaccinated people can choose to wear a mask regardless of the level of transmission, particularly if they are immunocompromised or at increased risk for severe disease from COVID-19, or if they have someone in their household who is immunocompromised, at increased risk of severe disease or not fully vaccinated; and
    • fully vaccinated people who have a known exposure to a suspected or confirmed COVID-19 case be tested 3-5 days after exposure, and wear a mask in public indoor settings for 14 days or until they receive a negative test result.

Although the guidance speaks in absolutes, we think that the general limitations that have applied to all prior mask mandates throughout the pandemic continue to inform this updated guidance; i.e., “public indoor settings” is intended to cover locations where there is the potential for exposure to another individual, and not where an employee is “alone in a room” or “alone in a vehicle.”

Is Your County Experiencing Substantial or High Levels of Transmission?

To determine whether your workplace is in a county experiencing substantial or high transmission of COVID-19, the CDC uses two different indicators, the higher of which prevails:

  1. total new cases per 100,000 persons over the past seven days; and
  2. positive test rate over the past seven days.

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