OSHA’s Recordkeeping, Reporting, and E-Recordkeeping Rules [Webinar Recording]

On September 13, 2022, Lindsay A. DiSalvo and Ashley D. Mitchell presented a webinar regarding Important Nuances of OSHA’s Recordkeeping, Reporting, and E-Recordkeeping Rules.

Although OSHA’s injury and illness recordkeeping and reporting rules may seem clear on their face, there are many nuances in the applicable standards that can create challenges to accurately making and maintaining those required records and reports. And the accuracy of injury and illness records could be becoming even more essential in light of the changes OSHA has proposed to the current e-recordkeeping rule, which would increase the availability and use of injury and illness data.

Already, e-recordkeeping data is collected by OSHA and used in developing and executing its Site-Specific Targeting (“SST”) Program based on an employer’s 300A Summary. Per the changes proposed in the current rulemaking effort, OSHA intends to expand who is required to submit recordkeeping data, what data is collected, and what data is shared with the public. This would result in more employers’ injury and illness data being under the microscope and incorporated into OSHA’s enforcement efforts. Indeed, as COVID-19 recordkeeping continues to drive up DART rates for a number of employers due to the need for COVID-19 positive employees to isolate, more may be pulled in OSHA’s SST Program. Thus, it is important for employers to understand the changes possibly to come in e-recordkeeping, as well as what those changes could mean in the context of evaluating and recording/reporting injuries and illnesses.

Participants in this webinar learned about: Continue reading

Cal/OSHA Moves Closer to Issuing Its COVID-19 Non-Emergency Standard

By Andrew Sommer and Megan Shaked

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

On July 29, 2022, the Standards Board issued a rulemaking notice that set both the date for a meeting of the Standards Board when the proposed COVID-19 permanent rule would be debated and discussed, as well as an official due date for written comments from interested stakeholder.  Both of those were yesterday, September 15, 2022.  A vote on a proposed final rule is expected in late November or December, with the rule replacing the ETS and going into effect on January 1, 2023 and continuing through December 2024.

Background about the Proposed Permanent Rule

The proposed non-emergency rule (commonly referred to as the permanent rule) would apply until 2 years after effective date, with recordkeeping requirements applying until 3 years after effective date.  The most significant expansion in the proposal is the incorporation of the controversial new definition of “close contact” from the California Department of Public Health, which now means Continue reading

New Twist in the Federal Contractor COVID-19 Vaccine-Mandate Saga

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

In case anyone has forgotten, there are still a few COVID-19 vaccine mandates out there that the Supreme Court has not struck down.  There are the federal employee and military vaccine mandates, and for private employers, the federal contractor vaccine-mandate.  The federal contractor mandate arose from Pres. Biden’s Executive Order 14042, which directed executive agencies to include a clause in procurement agreements requiring employees who work on or in connection with a covered federal contract, or who even share a workplace with another employee who does, to be fully vaccinated against COVID-19.  

You may have forgotten about that federal contractor vaccine mandate because that requirement has been the subject of nationwide temporary injunction for the last nine months, following a decision in December 2021 by a federal district court judge in Georgie in a legal challenge captioned Georgia v. Biden, one of several legal challenges to the Biden Administration’s authority to mandate the COVID-19 vaccine through the 1949 Federal Property and Administrative Services Act (aka the Procurement Act).  The district court judge in Georgia v. Biden entered a nationwide preliminary injunction after concluding that the plaintiff States and one trade association were likely to prevail on their assertion that the mandate was outside the scope of the Procurement Act. The judge ordered the federal government not to enforce the mandate in any covered agreement, and several other federal courts have also imposed other, though narrower, restrictions on EO 14042.  Since then, the Administration has shelved the vaccine requirement for federal contractors. 

A lot of water has also passed under the bridge since that time, and the COVID-19 landscape has changed pretty significantly.  Most notably, the CDC recently updated its COVID-19 guidance in several ways, but most relevant to the federal contractor vaccine mandate, the CDC now no longer distinguishes between vaccinated and unvaccinated individuals for how COVID-19 controls should apply.  For example, quarantine and isolation requirements are perfectly aligned for fully vaccinated, partially vaccinated, and completely unvaccinated individuals.  The rationale for the new relaxed guidance from Pres. Biden’s CDC is that there are now “so many tools available to use for reducing COVID-19 severity, [so] there is significantly less risk of severe illness, hospitalization and death compared to earlier in the pandemic.”  That rationale would seemingly undermine the original purpose of the federal contractor vaccine mandate – ensuring “economy and efficiency” of the federal procurement system by ensuring the health of the contracting workforce.

Nevertheless, the Administration has continued to defend the federal contractor vaccine mandate as the legal challenges to EO 14042 have moved through the court system.  The latest development in that litigation came in yet another Friday night COVID-19 surprise, Continue reading

CDC Updates Its COVID-19 Guidance – But Still No Word From OSHA

By Conn Maciel Carey’s COVID-19 Task Force

Thankfully, it has been quite a while since there has been a material update to discuss on the COVID-19 front.  Except for those of you in the healthcare space, things continue to be pretty quiet at OSHA on that front, but as I am sure you all have seen, a week ago, on August 11th, the CDC updated some of its COVID-19 guidance in a way that probably affects many employers’ COVID-19 protocols. 

The CDC’s new guidance, entitled Summary of Guidance for Minimizing the Impact of COVID-19 on Individual Persons, Communities, and Health Care Systems, scales back prior onerous recommendations for COVID-19 prevention strategies based on an acknowledgement in the guidance document that:

“with so many tools available to use for reducing COVID-19 severity, there is significantly less risk of severe illness, hospitalization and death compared to earlier in the pandemic.”

However, how the new guidance maps to workplaces is not a simple analysis.  As has been the case throughout the pandemic, trying to apply CDC’s guidance to general industry workplaces, when it is actually written for the general public or for specific sectors (most often public health agencies and healthcare) is not always intuitive, and often leads to conflicting and impossible outcomes.  Of course, that’s where OSHA is supposed to come in; i.e., to take CDC’s general guidance and explain for employers how it should apply in private industry workplaces.  But OSHA has not kept up with its duty in that regard.  Indeed, despite promises for more than five months that updated COVID-19 guidance was coming “soon,” OSHA has not chimed in about how it expects employers to map CDC’s general public guidance to the workplace since before the Delta variant struck.  So with that vacuum, here is our best take on the CDC’s updated guidance.

What Does CDC’s Updated COVID-19 Guidance Change?  Continue reading

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

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

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

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

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

By Kara M. Maciel and Ashley D. Mitchell

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

The Factors Employers Should Consider:

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

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

It is worth noting, Continue reading

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

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

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

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

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

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

By Andrew J. Sommer

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

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

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

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

Continue reading

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

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

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

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

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

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

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

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

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

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

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

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

By Conn Maciel Carey’s COVID-19 Task Force

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

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

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

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

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

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

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

Virginia OSHA Rescinds Its “Permanent” COVID-19 Rule and Introduces New Workplace Guidance

By Conn Maciel Carey’s COVID-19 Task Force

Under the direction of then-Democratic Governor Ralph Northam, the Commonwealth of Virginia was the very first U.S. State to implement a broad, all-industry programmatic COVID-19 emergency temporary standard (“ETS”) way back in July 2020.  Through all the fits and starts with federal OSHA’s COVID-19 rulemaking, VOSH’s COVID-19 regulation was a consistent presence through most of the pandemic.  Indeed, that ETS was made “permanent” in January 2021, months before federal OSHA had even adopted its COVID-19 ETS for Healthcare.

However, on his first day in office – January 15, 2022 – new Virginia Governor Glenn Younkin signed an Executive Order directing the Virginia Safety and Health Codes Board (“Board”) to determine whether there was a continuing need for these regulations (with more than a little pressure from the Governor’s office to conclude it was not).  Not surprisingly, under that political pressure, and in the wake of the Supreme Court’s harsh decision about federal OSHA’s authority to regulate COVID-19, by mid-February, the Board had adopted the position of the Virginia Department of Labor and Industry (“DOLI”) that “based on emerging scientific and medical evidence, [COVID-19] no longer constitute[s] a grave danger to employees in the workplace.”

That Board finding started a 30-day clock for public notice and comment about the Board’s intention to repeal the rule, and as expected, the Board voted on March 21st to rescind the ETS (effective March 23rd, 2022).

So where does that leave Virginia employers?  Continue reading

BREAKING – OSHA Reopens Rulemaking for a Permanent COVID-19 Standard for Healthcare (Expanded Scope)

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

After OSHA just recently initiated a three-month COVID-19 focused enforcement blitz targeting the healthcare industry, earlier this week, on March 22nd, OSHA announced that it has officially reopened the rulemaking record for a “permanent” COVID-19 standard applicable to the healthcare industry, and perhaps now some industries tangentially related to healthcare.

OSHA will accept comments on the proposed permanent standard through April 22, 2022, and has scheduled a public hearing on the rulemaking for April 27th.

Below we provide some important background and recommendations on next steps to ensure the healthcare industry and other potentially impacted employers maximize this opportunity to influence the direction and outcome of the permanent COVID-19 rulemaking.

Importantly, we also identify below a potential major expansion of the scope of coverage of the standard that OSHA is contemplating.  OSHA is explicitly considering eliminating the coverage exemption that had been included in the COVID-19 Emergency Temporary Standard for Healthcare (the ETS) for those ambulatory care, non-hospital settings where some healthcare services are provided, but that screen individuals for COVID-19 before entry and prevent COVID-19 infected individuals from entering. If that exemption is not carried forward from the ETS into the permanent standard, then general industry manufacturers that have medical clinics onsite; dental and other doctors’ offices; retail pharmacies; etc. will be pulled into coverage under the permanent standard; i.e., any employer that operates any type of facility where any form of healthcare services are provided could be regulated by the permanent standard.  It is imperative, therefore, that potentially impacted employers participate in this rulemaking.

Why is OSHA Partially Reopening the Rulemaking? Continue reading

Cal/OSHA Enforcement and Regulatory Update [Webinar Recording]

On Tuesday, March 15, 2022, Andrew SommerFred Walter, and Megan Shaked presented a webinar regarding a Cal/OSHA Enforcement and Regulatory Update.

This has been a challenging year for California employers navigating the COVID-19 pandemic with a set of ever-changing regulatory requirements, as well as a flurry of other new workplace safety laws the legislature passed towards the end of 2021. This update covered the latest legislative and rulemaking developments concerning COVID-19, including the second re-adopted COVID-19 Emergency Temporary Standard (ETS).  We will also cover other laws creating new workplace safety requirements and expanding the Division of Occupational Safety and Health’s (DOSH) enforcement authority.

During this webinar, participants learned about: Continue reading

BREAKING – OSHA Launches New COVID-19 Enforcement Blitz for Healthcare Employers

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

On Tuesday, March 8th, OSHA announced a major COVID-19 enforcement blitz in the healthcare industry that will last for the next three months.  OSHA issued an enforcement memorandum announcing the enforcement program, which OSHA is referring to as a major “saturation effort,” to ensure that hospitals and others in the healthcare industry have appropriate COVID-19 mitigation protocols in place to protect workers today and are prepared for a future variant.  The program will be comprised of a short-term burst of highly-focused inspections directed at hospitals and skilled nursing care facilities that treat COVID-19 patients.  Below is a summary of who is covered, when the enforcement effort will end, the impact on State OSH Plans, and what to expect during the inspections.

OSHA states that the goal of this inspection program is to expand its presence to ensure continued mitigation of the spread of COVID-19 and preparation for future variants of the SARS-CoV-2 virus, and to protect the health and safety of healthcare workers at heightened risk for contracting the virus.  New Assistant Secretary of Labor for OSHA Doug Parker stated:

“We are using available tools while we finalize a healthcare standard….  We want to be ahead of any future events in healthcare.”

OSHA plans to conduct as many as 1,000-1,500 inspections in the next 90 days to determine whether hospital and other healthcare workers are being adequately protected from COVID-19 spread at work.  The inspections will last 2-4 days and will focus on what had been the major elements of OSHA’s COVID-19 Emergency Temporary Standard for Healthcare.  The OSHA resources designated for this enforcement blitz and the revised COVID-19 National Emphasis Program (NEP) will comprise at least 15% of OSHA’s enforcement activity for the year.

Who is Covered by the Enforcement Effort?

The initiative supplements OSHA’s targeted enforcement under the Revised COVID-19 NEP [DIR 2021-03 (CPL 03)], by conducting focused, partial follow-up and monitoring inspections of previously inspected or investigated hospitals and skilled nursing care facilities within four North American Industry Classification System (NAICS) codes listed in the enforcement memorandum, where COVID-19 citations or Hazard Alert Letters were issued, including remote-only inspections where COVID-19-related citations were issued.  Specifically, facilities in the four NAICS codes listed below may be selected for inspections under the initiative if they meet one of the following criteria: Continue reading

VOSH Begins the Process of Withdrawing its “Permanent” COVID-19 Rule

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

Last Wednesday (February 16th), at the direction of Virginia’s new Governor, Virginia OSHA’s Safety and Health Codes Board voted to withdraw VOSH’s COVID-19 Regulation. The Board’s vote came after VOSH recommended that COVID-19 no longer constituted a “grave danger,” the legal showing required to justify an emergency rule.  Procedurally, the board vote was just the first step. Next is a 30-day public comment period, followed by a public hearing, then a final Board vote. If the measure is in fact repealed after the final Board vote, then Virginia employers would no longer have to require employees who work indoors to wear a face covering,; social distance; provide employee training; improve or maintain ventilation systems; or inform the VA Department of Health about outbreaks.

Although this move comes in lock step with Friday’s CDC announcement that it is rescinding mask guidance, along with other states like California and New Jersey rescinding their mask mandate, on January 15th Virginia’s newly elected Governor Glenn Youngkin issued an Executive Order instructing the Board to Continue reading

CDC Relaxes Face Covering and Distancing Guidelines

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

As governors and big city mayors across the country have been allowing indoor masking mandates to expire over the last few weeks, last Friday, February 25th, the CDC unveiled a brand new approach to assessing COVID-19 risks and setting mask and distancing recommendations.   The CDC’s old tool, which measured the number of COVID-19 cases to determine the relevant level of virus transmission in each community had lost its usefulness as it rendered nearly the entire country as high-risk (95% of all counties), even as the number of people getting seriously ill had dropped precipitously this year.

CDC’s new guidelines measure the impact the pandemic by looking at three factors week over week:

  1. New cases per capita (as with the prior guidelines; but also
  2. New COVID-19 related hospital admissions; and
  3. The percentage of area hospital beds occupied by COVID-19 patients.

Each county will have a weekly “COVID Community Level Rating” that is either Low (green), Medium (yellow) or High (orange).  Each level/color has recommended mitigation strategies, set in the table below:

Here is a link to CDC’s tool to identify the level of COVID-19 transmission in your county.

The big news is that CDC recommends Continue reading

OSHA’s COVID-19 Emergency and Permanent Standards and Enforcement [Webinar Recording]

On Thursday, February 10, 2022, Eric J. ConnKate McMahonAaron Gelb and Amanda Strainis-Walker presented a webinar regarding OSHA’s COVID-19 Emergency and Permanent Standards and Enforcement.

As US employers grapple with the latest surge of COVID-19 cases from the Omicron variant, they are also left to grapple with uncertainty following the Supreme Court’s decision to reinstitute a Stay of OSHA’s Vaccinate-or-Test ETS. Will we see another COVID-19 emergency rule that tries to navigate the guardrails set by the Supreme Court? Will OSHA return to aggressive enforcement under the OSH Act’s General Duty Clause? What is expected from employers on the COVID-19 front to avoid OSHA enforcement?

During this webinar, attorneys from CMC’s COVID-19 Task Force provided a detailed analysis of OSHA’s regulatory and enforcement landscape post-Supreme Court. Specifically, we addressed these important questions raised by the latest developments on the COVID-19 front: Continue reading

[WEBINAR] OSHA’s COVID-19 Emergency and Permanent Standards and Enforcement

On Thursday, February 10, 2022 at 1 p.m. EST, join Eric J. Conn, Kate McMahon, Aaron Gelb and Amanda Strainis-Walker for a webinar regarding OSHA’s COVID-19 Emergency and Permanent Standards and Enforcement.

As US employers grapple with the latest surge of COVID-19 cases from the Omicron variant, they are also left to grapple with uncertainty following the Supreme Court’s decision to reinstitute a Stay of OSHA’s Vaccinate-or-Test ETS. Will we see another COVID-19 emergency rule that tries to navigate the guardrails set by the Supreme Court? Will OSHA return to aggressive enforcement under the OSH Act’s General Duty Clause? What is expected from employers on the COVID-19 front to avoid OSHA enforcement?

During this webinar, attorneys from CMC’s COVID-19 Task Force will provide a detailed analysis of OSHA’s regulatory and enforcement landscape post-Supreme Court. Specifically, we will address these important questions raised by the latest developments on the COVID-19 front: Continue reading

OSHA Withdraws Its Vaccinate-or-Test ETS, But Continues Rulemaking for Two Permanent COVID-19 Rules

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

Earlier today, January 26, 2022, OSHA published in the Federal Register a Notice of Withdrawal of its COVID-19 Vaccination, Testing, and Face Covering ETS.  After the Supreme Court’s January 13th decision in Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor reinstituting the Stay of the ETS, the writing was on the wall for OSHA’s vaccinate-or-test ETS, but today’s announcement made it official.  The Notice of Withdrawal does not call for comment, as it is “impracticable, unnecessary, and contrary to the public interest.”  OSHA further explained that it would unnecessarily delay the resolution of ambiguity for employers and workers.  So that’s that for the Vaccinate-or-Test ETS, effective immediately.

Nevertheless, this dead horse may be in store for some more beating.  As you know, the day the ETS was published in the Federal Register back in November, pursuant to Sec. 6(c)(3) of the OSH Act, it became the “proposed rule” in a rulemaking that automatically kicked off to establish a permanent replacement vaccinate-or-test standard.  In OSHA’s other big announcement today, the agency indicated that it has not withdrawn that rulemaking.  Rather, OSHA declared its intent to move forward with a permanent rulemaking.

This was yet another fascinating development in this roller coaster.  While we anticipated that OSHA would withdraw the vaccinate-or-test ETS to avoid having a full merits adjudication by the Supreme Court that would establish more concrete precedent narrowing OSHA’s rulemaking authority, we continue to be surprised to see that OSHA is continuing on with the permanent rulemaking.

Recall that the Supreme Court did not say that OSHA’s ETS exceeded the agency’s emergency rulemaking authority.  Rather, the Court found that Continue reading

OSHA COVID-19 Regulation and Enforcement Post-Supreme Court [Webinar Recording]

On Thursday, January 20, 2022 we hosted a special bonus event in Conn Maciel Carey’s 2022 OSHA Webinar Series in the form of a panel webinar program regarding OSHA COVID-19 Regulation and Enforcement After the Supreme Court Stayed the Vaccinate-or-Test ETS.

Presented by
Conn Maciel Carey LLP with Special Guests
Neal Katyal and Jordan Barab

In this exclusive, bonus program we facilitated a panel discussion regarding the Supreme Court’s recent decision to stay OSHA’s Vaccinate-or-Test emergency temporary standard, what that decision means for employers in fed OSHA and State OSH Plan states, and how OSHA will address the COVID-19 hazard in the workplace moving forward.

We would like to extend our gratitude to our remarkable cast of panelists for participating in this event:

  • Neal Katyal – former Acting Solicitor General of the United States and leading Constitutional Law expert; Partner at Hogan Lovells and Professor of Law at Georgetown University Law Center
  • Jordan Barab – President Obama’s Deputy Assistant Secretary of Labor for OSHA and Acting Head of OSHA; former Sr. Policy Advisor to the US House Education and Labor Committee
  • Moderated by Eric J. Conn, Chair, Conn Maciel Carey LLP’s national OSHA Practice Group

The Supreme Court has spoken, and OSHA’s Vaccination, Testing and Face Coverings Emergency Temporary Standard is once again subject to a nationwide judicial stay.  The conservative majority on the Court reasoned that the 50-year old OSH Act does not include an explicit-enough delegation of authority from the US Congress for OSHA to issue a regulation that addresses an issue that is not unique to the workplace and which is of such great economic and social significance. Shortly after the Supreme Court issued its decision, Secretary of Labor Marty Walsh announced that “OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.”

So, the big question facing employers now is what are the potential regulatory pitfalls from unwinding or stopping the implementation of any of their COVID-19 prevention and/or vaccination policies developed either in response to OSHA’s Vaccinate-or-Test ETS or more general efforts to keep up with CDC recommendations and/or protect against OSHA General Duty Clause citations?  Or said another way, without the COVID-19 emergency standards, what does OSHA expect from employers on the COVID-19 front to avoid enforcement?

Our panel of experts reviewed: Continue reading

The Latest with Pres. Biden’s Federal Contractor COVID-19 Vaccine-Mandate Executive Order

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

It has been a real adventure trying to track all the different legal challenges in so many different courts to President Biden’s various different executive actions related to vaccination.  While the fate of the OSHA Vaccinate-or-Test ETS (dead) and the CMC Healthcare Vaccine-Mandate (very much alive) are essentially settled by the Supreme Court, the Federal Contractor Vaccine-Mandate Executive Order (EO 14042) is still meandering its way through the federal courts.  And there was a lot of activity in the courts this past Friday, January 21st, regarding the federal contractor EO and the federal employee vaccination mandate.

In the first case, Feds for Medical Freedom v. Biden, employees of federal contractors and employees of the federal government together are challenging both Executive Orders 14042 (vaccine-mandate for federal contractors) and 14043 (vaccine-mandate for federal employees).  Judge Jeffrey V. Brown (a Trump-appointee to the S.D. of Texas) issued an opinion and order enjoining only enforcement of the federal employee mandate.  Judge Brown’s reasoning in that case boiled down to a conclusion that injunctive relief is appropriate because: (1) the “Hobson’s Choice” of a workplace vaccine-mandate creates irreparable harm; and (2) the challenging federal employees have a likelihood of success on the merits because the President acted ultra vires and the implementation of EO 14043 violates the Administrative Procedures Act.  Notably, Judge Brown declined to take action with regard to the federal contractor EO, noting that Judge R. Stan Baker (a Trump appointee to the S.D. of Georgia) in Georgia v. Biden had previously enjoined the federal government from enforcing the vaccination mandate on a nationwide basis.

While Judge Brown’s decision in Feds for Medical Freedom v. Biden did not change the status of the federal contractor EO, on the same day, Judge Baker issued a new order with regard to the injunction he had put in place in Georgia v. Biden in December.  First, Judge Baker declined to address whether private federal contractors are enjoined from mutually agreeing with a federal agency to include COVID-19 safety clauses in their contracts; i.e., to voluntarily comply with the Safer Federal Workforce Task Force (“Task Force”) guidelines, as he viewed that as improperly seeking an advisory opinion while the case is pending on appeal.  But on the broader question as to the scope of his national injunction, on Friday he wrote: Continue reading

[Panel Webinar] OSHA COVID-19 Regulation and Enforcement Post-Supreme Court

Block your calendars and make sure you join us on Thursday, January 20th at 3 PM ET for a very special bonus event in Conn Maciel Carey’s 2022 OSHA Webinar Series in the form of a panel webinar program regarding OSHA COVID-19 Regulation and Enforcement After the Supreme Court Stayed the Vaccinate-or-Test ETS.

Presented by
Conn Maciel Carey LLP with Special Guests
Neal Katyal and Jordan Barab

In this exclusive, bonus program we will facilitate a panel discussion regarding the Supreme Court’s recent decision to stay OSHA’s Vaccinate-or-Test emergency temporary standard, what that decision means for employers in fed OSHA and State OSH Plan states, and how OSHA will address the COVID-19 hazard in the workplace moving forward.

We are especially excited to be hosting a remarkable cast of panelists for this event:

  • Neal Katyal – former Acting Solicitor General of the United States and leading Constitutional Law expert; Partner at Hogan Lovells and Professor of Law at Georgetown University Law Center
  • Jordan Barab – President Obama’s Deputy Assistant Secretary of Labor for OSHA and Acting Head of OSHA; former Sr. Policy Advisor to the US House Education and Labor Committee
  • Moderated by Eric J. Conn, Chair, Conn Maciel Carey LLP’s national OSHA Practice Group

The Supreme Court has spoken, and OSHA’s Vaccination, Testing and Face Coverings Emergency Temporary Standard is once again subject to a nationwide judicial stay.  The conservative majority on the Court reasoned that the 50-year old OSH Act does not include an explicit-enough delegation of authority from the US Congress for OSHA to issue a regulation that addresses an issue that is not unique to the workplace and which is of such great economic and social significance. Shortly after the Supreme Court issued its decision, Secretary of Labor Marty Walsh announced that “OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.”

So, the big question facing employers now is what are the potential regulatory pitfalls from unwinding or stopping the implementation of any of their COVID-19 prevention and/or vaccination policies developed either in response to OSHA’s Vaccinate-or-Test ETS or more general efforts to keep up with CDC recommendations and/or protect against OSHA General Duty Clause citations?  Or said another way, without the COVID-19 emergency standards, what does OSHA expect from employers on the COVID-19 front to avoid enforcement?
Continue reading

OSHA’s 2021 Year in Review and 2022 Forecast [Webinar Recording]

On January 12, 2022, the Partners in Conn Maciel Carey’s national OSHA Practice Group on presented the kickoff event in Conn Maciel Carey’s 2022 OSHA Webinar series.  This first program of the year, as is tradition, was OSHA’s 2021 Year in Review and 2022 Forecast.

As we kickoff Year 2 of the Biden Administration, it is time to look back and take stock of what we learned from and about OSHA during the very eventful year that just concluded.  And more importantly, it is time to look ahead and assess what to expect from OSHA now that OSHA’s full senior leadership team is in place and ready to put its stamp on the agency.

In this webinar, the Partners in Conn Maciel Carey’s national OSHA Practice Group reviewed OSHA enforcement, rulemaking, and personnel developments from 2021. We also discussed the top OSHA issues employers should monitor and prepare for in the New Year.

Participants in this webinar learned about: Continue reading