As the number of vaccinated individuals continues to increase and we are seeing a significant decrease in COVID-19 cases, the landscape of legal requirements applicable to employers and employees is changing, particularly related to employees who are fully vaccinated. Indeed, in an unexpected update to its guidance last week, the CDC stated that fully vaccinated individuals may resume essentially all indoor and outdoor pre-pandemic activities in almost all circumstances. Although federal agencies such as OSHA and the EEOC have not yet updated their relevant guidance on treatment of vaccinated workers to reflect these changes, they both have stated their intent to address, and in OSHA’s case follow, the CDC guidance, and many states are doing the same.
Accordingly, employers now, more than ever, must understand and may want to take certain actions based on the vaccination status of their workers. However, obtaining information on an employee’s status and using that information to dictate policies and practices in the work environment has legal implications and raises many important questions that could pose difficulties for employers who want to ensure that they proceed in compliance with applicable laws. Below, we provide answers to questions we have received related to employee vaccination status as well as tips to effectively deal with these novel and complex issues.
Question 1: Can employers ask employees about their COVID-19 vaccination status?
Yes, but employers should be mindful of compliance with federal and state laws on disability, privacy and discrimination. If the employer requests confirmation and/or proof that an employee has been fully vaccinated, this should be a simple, straightforward inquiry to determine an employee’s current vaccination status. Such a simple, general inquiry is legitimate and would be considered permissible under applicable employment laws, particularly if it is made to determine whether: Continue reading →
In a new formal Letter of Interpretation (“LOI”) responding to Conn Maciel Carey LLP (“CMC”), the Occupational Safety and Health Administration (“OSHA”) explains that employers are only obligated to report a serious injury or illness once, even if it ultimately results in more than one reportable outcome; e.g., an employer need not report to OSHA a later-developing employee death, if the employer has already reported to OSHA the hospitalization of that same employee from the same incident that resulted in his hospitalization. A plain reading of OSHA’s hospitalization, amputation, and fatality regulatory language did not make this clear, nor did existing guidance provided by OSHA at the time.
CMC has represented numerous employers in contested cases and inspection disputes related to alleged failures to make that second report to OSHA when the same serious injury resulted in more than one reportable outcome under 29 C.F.R. 1904.39. Thus, members of CMC’s national OSHA Practice submitted a request for an interpretation letter from Fed OSHA on April 14, 2020, seeking to address the confusion among the regulated community and OSHA’s field staff in area offices around the country about whether a second report was required. As we expected, the answer is that double reporting is not required. Continue reading →
As of January 15, 2021, civil penalties for workplace safety and health violations issued by federal OSHA will increase by about 1.2%. This increase reflects the annual inflation adjustment to civil monetary penalties initiated back in 2016. As in prior years, though the increase seems minimal, the impact of these annual increases in the aggregate is significant, as OSHA’s civil penalty authority has nearly doubled from what it was just 5 years ago.
How the Annual Penalty Adjustments Started
Over the past several years, we have seen civil monetary penalty increases of about 1%-2% each year, but this all started with a huge spike in permissible penalty amounts through a statute covertly passed during the Obama Administration. Specifically, in an effort to avert a government shutdown, outgoing Speaker of the House John Boehner and President Barack Obama made a backroom deal that ultimately took the form of the Bipartisan Budget Act of 2015. That measure included the “Federal Civil Penalties Inflation Adjustment Improvements Act” – a significant and controversial statute that was essentially unknown (including by the folks within OSHA) and saw exactly zero seconds of debate on the floor.
The Act mandated that essentially all executive agencies increase their maximum civil penalty authority by the percent increase to the Consumer Price Index since the last time the agencies had raised their penalties. As OSHA’s civil penalty authority had been stagnant for 25 years, the “catch-up” penalty increase was the most significant at OSHA. Per the formula included in the statute, OSHA was required to increase its penalties on August 1, 2016 by nearly 80%.
In addition to the one-time 80% “catch up” increase that went into effect on August 1, 2016, the Federal Civil Penalties Inflation Adjustment Improvements Act required that agencies make automatic annual updates thereafter (by January 15th each year) to civil penalties based on inflation. OSHA made its Continue reading →
There are myriad workplace safety and health implications of the COVID-19 pandemic, but one OSHA regulatory obligation about which we have received countless questions in recent days is the requirement to record and/or report work-related cases of COVID-19. Below are two FAQs that describe the relevant analysis in more detail.
Do I have to record a case of COVID-19 of an employee on my OSHA 300 Log?
“The illness is the common cold or flu (Note: contagious diseases such as tuberculosis, brucellosis, hepatitis A, or plague are considered work-related if the employee is infected at work).”
The rationale for the exemption is that the spread of the cold and flu are so pervasive that it is typically near impossible to identify the source of infection; i.e., there would be no reasonable way to determine whether it was more likely than not that the illness was caused by an exposure in the workplace.
Despite great sacrifice around the country, the scale of infection of COVID-19 is expected to soon spread like the flu and common cold, but OSHA has already expressed in guidance that COVID-19 is not subject to the cold/flu recordkeeping exemption:
“While 29 CFR 1904.5(b)(2)(viii) exempts recording of the common cold and flu, COVID-19 is a recordable illness when a worker is infected on the job.”
Employment relationships can take many forms, and employers’ perceptions of their legal responsibilities for certain workers is not always reality. An employer may classify workers as temporary or independent contractors, but that does not mean DOL will agree. This is particularly challenging due to continuous changes in the law relating to these types of employment relationships.
One particular area in flux over the past several years has been the joint-employer standard, significantly expanding in the Obama-era NLRB decision in Browning-Ferris, but in the wake of change through an ongoing NLRB rulemaking. Similarly, the boundary between employees and independent contractors has also been a moving target. Although the prior administration took the view that a majority of workers are employees in its guidance to employers, the Trump Admin. has signaled a change in direction.
Even where there is not a legal employer-employee relationship, companies may have certain safety and health obligations and potential liabilities depending on their role at multi-employer worksites or the use of temporary workers. Protecting temporary workers and enforcing the responsibilities of host employers and staffing agencies was a priority of OSHA in the Obama Admin. through a Temporary Worker Initiative that continues today. OSHA has also continued to defend its multi-employer worksite enforcement policy through legal challenges.
When OSHA receives a complaint related to employee safety and health or a severe injury report, OSHA often gives the employer an opportunity to respond before it takes the more extreme action of opening an inspection. In addition, when OSHA receives an allegation of retaliation, it must provide the employer a chance to explain why the action of which it is accused was legitimate or did not occur as alleged. These responses are an opportunity for the employer to provide sufficient information to avoid a full-blown OSHA inspection or becoming enmeshed in the litigation of a retaliation claim. A strong and thorough response could resolve OSHA’s concerns and resolve the retaliation complaint in a favorable manner for the employer.
However, these responses could also create a written record of admissions to which OSHA can hold the employer accountable, and any supporting documentation may be closely scrutinized and potentially used to create liability. Thus, employers must be strategic about the information they share at this early stage and should ensure there is a procedure in place for managing and developing these responses.
OSHA’s enforcement authority, specifically as it relates to the agency’s ability to expand an unprogrammed inspection beyond its original scope, has been limited, at least for employers in the Southeast. Late last year, in United States v. Mar-Jac Poultry, Inc., the U.S. Court of Appeals for the 11th Circuit affirmed a district court decision to quash an administrative inspection warrant that would have permitted OSHA to expand an inspection of Mar-Jac Poultry, Inc.’s (“Mar-Jac”) poultry processing facility in Georgia, initiated as a partial scope inspection in response to a single, specific reported injury, to become a comprehensive inspection under a Regional Emphasis Enforcement Program. This decision is important for employers because OSHA’s inspection authority has generally been understood to be quite broad, and judges have generally deferred to OSHA when applying the applicable administrative probable cause standard to OSHA’s inspection authority. But in Mar-Jac, the 11th Circuit determined that an unprogrammed inspection initiated as a result of a specific reported injury could not lawfully be expanded to include other areas of the facility, other hazards unrelated to the specific reported injury, and other aspects of Mar-Jac’s safety program, because the evidence presented by OSHA in support of its warrant application was inadequate to establish reasonable suspicion of the presence of violative conditions unrelated to the reported injury.
Background of the Case
OSHA decided to inspect Mar-Jac’s poultry processing facility in Georgia after the facility called OSHA to report a serious injury that resulted in an in-patient hospitalization on February 4. 2016. The injury occurred on February 3rd, when an employee attempted to repair an electrical panel with a non-insulated screwdriver, resulting in an arc flash and serious burns to the employee. After receiving the injury report, OSHA opened an unprogrammed inspection at the facility on February 8th. At that time, OSHA asked the employer for consent to inspect both Continue reading →
This is your yearly reminder about the important February 1st deadline to prepare, certify and post your OSHA 300A Annual Summary of workplace injuries and illnesses, for all U.S. employers, except those with ten or fewer employees or those whose NAICS code is in the set of low-hazard industries exempt from OSHA’s injury and illness recordkeeping requirements, such as dental offices, advertising services, and car dealers (see the exempted industries at Appendix A to Subpart B of Part 1904).
This February 1st requirement to prepare, certify and post 300A forms should not be confused with OSHA’s new-ish Electronic Recordkeeping Rule. The February 1st deadline is only about the internal hard copy posting of 300A data for your employees’ eyes. The E-Recordkeeping Rule, on the other hand, requires certain employers to electronically submit data from their 300A Annual Summary forms to OSHA through OSHA’s web portal – the Injury Tracking Application. The deadline for those submissions this year (i.e., to submit 300A data from 2018) is March 2, 2019.
By February 1st every year, however, employers must:
Review their OSHA 300 Log(s);
Verify the entries on the 300 Log are complete and accurate;
Correct any deficiencies identified on the 300 Log;
Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses and complete the 300A Annual Summary Form; and
Certify the accuracy of the 300 Log and the 300A Summary Form.
The Form 300A is a summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the particular OSHA 300 Log.
Five Common 300A Mistakes that Employers Make
We frequently see employers make the following four mistakes related to this annual duty to prepare, post and certify the injury and illness recordkeeping summary: Continue reading →
In former President Obama’s second term, his Administration rolled-out a major change to OSHA’s Fatality & Significant Injury Reporting Rule. Not to be confused with the new Electronic Recordkeeping Rule (which requires certain employers to submit injury and illness data to OSHA on annual basis), this amended rule required all employers to make prompt phone calls to OSHA when work related fatalities or covered in-patient hospitalizations and amputations occur.
The rule has resulted in thousands more reports of incidents to OSHA than before. Now, three years into the new reporting scheme, we have learned a lot of lessons about what is being reported to OSHA, what non-mandatory reports are often made, and what OSHA is doing with all the new reported incidents.
As the private sector continues to see a decline in labor union membership among employees, labor unions are struggling to remain relevant and recruit new, dues-paying members. Traditionally, when a labor union begins an organizing campaign at a workplace, the federal agency at the center of the process is the National Labor Relations Board (“NLRB”). The NLRB’s purpose is to protect the rights of workers to organize and to freely choose whether or not to be represented by a labor union. Indeed, the NLRB is an intrinsic part of the election process, and the NLRB may also become involved in a union organizing campaign if, for instance, the union asserts that the employer has committed an unfair labor practice.
However, unions are more and more often engaging with or depending on the regulations of other federal agencies as a tactic to gain leverage during organizing campaigns. There are numerous ways a union may influence the outcome of an organizing campaign by using federal agencies, such as the Occupational Safety and Health Administration (“OSHA”) or the Wage and Hour Division (“WHD”) of the Department of Labor (“DOL”), to persuade employees to embrace the union, or to put pressure on employers to concede to union representation.
Taking OSHA as an example, an on-site workplace safety inspection, or even just the threat of an inspection, can impact an organizing campaign in a manner favorable for the union. The threat of making an OSHA complaint or inviting OSHA into the workplace to conduct an inspection can put pressure on an employer to stand-down against a union’s organizing efforts, even if it does not believe a particular violative condition or safety hazard exists. A safety complaint could spark an OSHA inspection and, with 75% of all OSHA inspections resulting in the issuance of at least one citation, the chances are high that the employer would have an OSHA enforcement action on its hands. Continue reading →
On Thursday, April 27, 2017, Alexander Acosta was confirmed by the United States Senate to serve as the first Secretary of Labor in the Trump Administration. As we reported in an earlier article when Acosta was first nominated by Pres. Trump, in this role, Sec. Acosta will oversee the federal department that develops and interprets labor regulations and investigates alleged violations of minimum wage, overtime, and workplace safety laws and regulations.
The Senate approved Acosta by a vote of 60-38, meaning there was some cross-party support, despite the party-line vote on Acosta’s nomination by the Senate Health, Education, Labor and Pensions Committee. This marks the fourth time Acosta has been confirmed by the Senate, including his prior positions in the Bush Administration.
Specifically, during the Bush Administration, Acosta served as a member of the National Labor Relations Board for approximately eight months. In 2003, President Bush appointed him to Head the Civil Rights Division at the U.S. Department of Justice’s , a position which he held for about two years, before being appointed to serve as the United States Attorney for the Southern District of Florida. Most recently, Acosta was the Dean of Florida International University’s School of Law.
At this point, it is still uncertain what jurisprudence Acosta will bring to the role of Secretary of Labor. The Trump Administration and its initial Secretary of Labor nominee, Andrew Puzder, who withdrew from consideration back in February, have taken aggressive stands on deregulation. However, Acosta’s positions on regulation and enforcement have not been as clearly expressed, and his prior experience as a prosecutor may suggest a more measured approach in managing the enforcement responsibilities of the various agencies under his direction. We will have a better idea of Acosta’s approach soon, however, because there are a number of time sensitive issues that will need his prompt attention upon being sworn in.
In particular, we expect that one immediate priority for Acosta will be Continue reading →
On February 1, 2017, President Trump nominated Neil Gorsuch, a judge on the U.S. Court of Appeals for the Tenth Circuit in Denver, Colorado, to fill the vacancy on the Supreme Court left by Antonin Scalia’s death in February 2016. Indeed, since February 2016, the High Court has functioned with only eight members; four liberal Justices and four conservative Justices. Therefore, the confirmation of a ninth Justice to fill the vacant position, and establish a majority conservative bench, is likely to have a substantial impact on the outcome of controversial issues brought before the Court.
Gorsuch was appointed to the Tenth Circuit by President George W. Bush in 2006. Although he is considered a firm conservative, as was expected given President Trump’s public stance to fill the vacancy with a judge who embodies Scalia’s principles, he has garnered praise from both liberals and conservatives for his work as an appellate judge due to his reputation for conveying his ideas fluently and courteously.
A number of Democrats have already conveyed their opposition to Gorsuch’s nomination, which could prove problematic as he will need to win over some Democratic senators to get the 60 votes needed to clear procedural hurdles.However, setting the political climate aside, when Judge Gorsuch was appointed to the Tenth Circuit in 2006, he was confirmed by the Senatewithout objection. Only time will tell if Judge Gorsuch will acquire enough support from Senate Democrats to overcome a filibuster given the immediate public opposition from Democrats following Gorsuch’s nomination, and whether he will be approved in time to hear oral arguments later this spring. Judge Gorsuch’s opinions on labor and employment topics suggest that he favors businesses, and his decisions reflect a distaste for overreaching agency action which could result in some limiting decisions if he is ultimately confirmed.
Who is Judge Gorsuch?
Prior to being appointed to the Tenth Circuit, Judge Gorsuch amassed an impressive resume. He received his undergraduate degree from Columbia University in New York City in 1988 and his law degree from Harvard Law School, with honors, in 1991 where he was the editor of the Harvard Journal of Law & Public Policy and classmates with former President Obama. Judge Gorsuch also earned a doctorate of legal philosophy from Oxford University in 2004, where he studied as a Marshall Scholar. Judge Gorsuch began his law career as a
OSHA compliance issues have been long ignored in the due diligence process for mergers, acquisitions and divestitures. With OSHA’s focus on follow-up inspections and Repeat citations, and expanding the concept of successor OSHA liability, it is a topic that should no longer be left out of the due diligence process. This webinar delved into the current landscape of successor liability under the OSH Act, explained what safety and health obligations a new employer may assume as a result of past conduct by a predecessor employer, and provided tips and strategies for managing OSHA compliance related due diligence.
Employers must beware as the U.S. Department of Labor (“DOL”) cracks down on what it perceives as rampant misclassifying employees as contractors and shirking other responsibilities, such as safety training, because a worker is supplied by another employer. With more and more unique employment relationships and multi-employer worksites, it is crucial to understand the complexities of how the DOL and its various enforcement agencies define the employment relationship and/or assign liability in these contexts.
It has long been a priority of the Obama Administration to treat more workers as actual employees of host employers in order to provide them with a litany of labor protections and benefits, even when these workers are not hired directly, may not stay long, and may not even consider themselves to be employees. This enforcement philosophy affects businesses in numerous areas – such as wage and hour law and OSHA compliance – even when employers thought staffing through an agency or on an independent contract basis relieved them of many of these DOL burdens and liabilities. Not only does this increase the cost of many temporary, contract and multi-employer arrangements, it also puts employers at great risk of costly DOL enforcement actions if they do not understand when they have the responsibility (as opposed to another employer) to satisfy certain terms of labor law compliance.
First and foremost to keep in mind, although an employer may classify a worker as an independent contractor or as a non-employee temporary worker, and their maybe contract documents that express that classification, that does not mean DOL takes the same view. Indeed, as DOL sees it, most workers should be treated as employees. Also, employers may have certain employment law and OSHA-related obligations and potential liability even for non-employees depending on the employers’ roles at multi-employer worksites or in joint-employer situations.
New ‘Joint Employer’ Standard
Outsourcing to a temporary or contract worker can be a great way for a company to take care of some tasks and may make more sense for the business, rather than hiring full-time workers to fill those gaps. However, if the DOL finds under one of various legal tests that the business is a joint-employer of that worker with another company, then numerous legal obligations kick in vis-a-vis these shared employees (such as collective bargaining and mandatory dispute resolution) as well as significant exposure for your organization under various labor laws.
In the past few years, both state and federal agencies have been expanding the joint-employer definition. Continue reading →
Employers’ perceptions about their legal responsibilities for certain workers is not always reality. Although an employer may classify a worker as a temporary worker or independent contractor, that does not mean the Department of Labor takes the same view. Recently, DOL has been vocal about its belief that most workers should be treated as employees, insinuating that in a majority of cases, it would hold employers accountable for the specific obligations of an employer-employee relationship. Additionally, employers may have certain employment law and OSHA related obligations and potential liability depending on their role at multi-employer worksites or in joint employer situations.
Overall, DOL has been cracking down on employee misclassification and division of responsibility among multiple employers; thus, it is essential for employers to carefully evaluate the employment relationship and their own individual function at in the multi-employer context.
Employers with multiple worksites beware – OSHA is now much more likely to demand so-called “enterprise-wide abatement” in Complaints filed with the Occupational Safety and Health Review Commission (the “Review Commission”).
Despite what had been settled law for years and the plain language of the OSH Act – that abatement must be limited to the specific workplace where a violative condition was observed by OSHA during an inspection – during the Obama Administration, OSHA began to pursue “enterprise-wide” mandatory abatement; not only as negotiated terms in settlement agreements, but also in relief sought in Complaints filed with the Review Commission. 29 U.S.C. Sec. 659(c) authorizes the Review Commission to:
“issue an order … affirming, modifying or vacating the Secretary’s citation or proposed penalty or directing other appropriate relief ….”
Relying on the “other appropriate relief” language, OSHA has been requesting the Review Commission to order enterprise-wide abatement based simply on observations of a violation at a single location within a multi-facility company.
The Agency’s enterprise-wide abatement efforts first gained notoriety a few years ago during OSHA’s relentless enforcement efforts targeting the U.S. Postal Service. In a 2010 enforcement action against USPS, relying on the “other appropriate relief” OSH Act language, OSHA demanded from the Review Commission an order for USPS to abate the alleged hazards that the Agency observed at one USPS station at all USPS operations around the country. USPS fiercely contested that demand. The enterprise-wide abatement issue was not decided by the Review Commission in that case, however, because OSHA and USPS reached a landmark settlement obviating the need for the Commission to rule on its authority to grant such relief.
“Within twenty-four (24) hours after … an employee’s amputation …, as a result of a work-related incident, you must report the … amputation … to OSHA. . . . For an … amputation …, you must only report the event to OSHA if it occurs within twenty-four (24) hours of the work-related incident.”
The long and short of the new reporting requirement is that an amputation constitutes an automatic report to OSHA even if it does not result in a hospitalization or any days away from work, or even require medical treatment beyond first aid. There are, however, several key nuances that employers must be aware of before they pick up the phone to call OSHA.
What Types of Injuries Should be Reported as an Amputation?
As an initial matter, an employer must understand what constitutes an amputation. The rule defines “amputations” as:
“[T]he traumatic loss of a limb or other external body part. Amputations include a part, such as a limb or appendage, that has been severed, cut off, amputated (either completely or partially); fingertip amputations with or without bone loss; medical amputations resulting from irreparable damage; amputations of body parts that have since been reattached. Amputations do not include avulsions, enucleations, deglovings, scalpings, severed ears, or broken or chipped teeth.”
Although this definition may seem straightforward, there is ambiguity around the distinction between a “partial amputation” and an avulsion or laceration. Based on OSHA’s definition, the term “amputation” would require Continue reading →
In April of 2013, OSHA declared that protecting temporary workers would become a top priority, and that has proven true in 2014 with the roll-out of OSHA’s Temporary Worker Initiative and in 2015 with a heavy dose of enforcement and new guidance for employers. OSHA maintains that temporary employees are entitled to the same safety protections as other workers, and no one would dispute that, but the question remains, who is responsible – the staffing agency or the host employer – when a temporary worker is exposed to workplace hazards?
Although OSHA has regulated the treatment of temporary workers for many years, its new emphasis on protecting temporary workers has been sparked by several concerns. Most prominent among them is the surge (and expected continued growth) of the temporary workforce, the nature of the work performed by temporary workers, and recent fatalities among temporary workers. For purposes of the Initiative, OSHA defines “temporary worker” to include only one who is working in a host employer/staffing agency employment structure.
OSHA’s stated goals for the Temporary Worker Initiative are to:
Protect temporary workers from workplace hazards;
Ensure staffing agencies and host employers understand their safety and health obligations; and
Allow OSHA to learn information regarding hazards in workplaces utilizing temporary workers.
To achieve these goals, OSHA has been producing compliance assistance materials, such as fact sheets and webpages, conducting outreach to affected stakeholders, and of course, exercising its enforcement hammer. Specifically, OSHA directed its inspectors to Continue reading →