Solicitor of Labor Publishes Annual “Enforcement Report” for 2023

By Darius Rohani-Shukla and Eric J. Conn

In late January 2024, the Department of Labor released its annual report summarizing the Solicitor of Labor’s (SOL) enforcement work in FY 2023. SOL enforces more than 180 federal statutes and their implementing regulations. This report is a helpful resource for employers as it demonstrates SOL’s most recent enforcement priorities. In its report, SOL emphasized three aspects of its FY23 enforcement work:

  • SOL’s Emphasis on Retaliation Claims;
  • SOL’s Use of Litigation and Amicus Work to Affect Employee Misclassification and Coercive Employer Tactics; and
  • SOL’s Willingness to Use All Tools at its Disposable.

As the Solicitor of Labor said as an introduction to the report:

“We recognize that as the government, we play a unique role in the federal labor enforcement landscape…. This report will focus on three key aspects of our work: building out our retaliation priority across program areas; utilizing our litigation tools and our amicus and appellate practices to build positive developments in the law, such as combatting misclassification and coercive employer tactics; and deepening our use of all the tools in our toolbox, from warrants, to enhanced
compliance agreements, to criminal enforcement coordination.”

  1. SOL’s Emphasis on Retaliation Claims

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Announcing Conn Maciel Carey’s 2024 OSHA Webinar Series

Now three full years into the Biden Administration, it is the perfect time to take a close look at what we learned from and about OSHA during these very eventful years.  More importantly, as OSHA has turned the page from the pandemic and started to “use all of the tools available” in its regulatory and enforcement toolbox, it is a good time to look ahead and assess what OSHA’s priorities will be leading up to the Presidential Election this Fall and in the years ahead.  That picture is becoming clearer (and more fraught for employers), as OSHA has drastically increased its penalty authority, reimagined its dreaded Severe Violator Enforcement Program, expanded its “instance-by-instance” citation policy, launched new emphasis programs, worked an aggressive rulemaking agenda, and set new records for significant enforcement actions year after year.  Accordingly, it is more important now than ever before for employers to keep abreast of developments at OSHA.

Conn Maciel Carey’s complimentary 2024 OSHA Webinar Series, which includes monthly programs (sometimes more often) put on by the OSHA-focused attorneys in the firm’s national OSHA Practice Group, is designed to give employers insight into developments at OSHA during this period of unpredictability and significant change.  ​To register for an individual webinar in the series, click on the registration link within the individual program descriptions below, or to register for the full webinar series, click here to send us an email request and we will get you registered for all of the programs.  Also check out our companion Cal/OSHA Webinar Series, MSHA Webinar Series, and Labor & Employment Webinar Series.

If you missed any of our 100+ webinar programs over the past decade, here is a link to recordings in our webinar archive.  If your organization or association would benefit from an exclusive program presented by our OSHA team on any important OSHA-related topic, please do not hesitate to contact us.

OSHA's 2023 in Review and 2024 Forecast

Wednesday, January 17th
Process Safety Management & CalARP

Monday, August 5th
OSHA Recordkeeping & Reporting Update

Thursday, February 8th
Unique Aspects of OSHA-Approved State Plans

Thursday, September 19th
OSH & Employment Law Compliance in ESG

Thursday, March 21st
Employee Retaliation & Whistleblower Claims

Wednesday, September 25th
Tips for Responding to Workplace Violence

Wednesday, April 24th
Cal/OSHA & Employment Law In-Person Summit

Tuesday, Oct. 8th and Thursday, Oct. 10th
Mid-Year Review: OSHA/MSHA Developments

Tuesday, May 28th
Deep Dive: OSHA’s Hazard Communication Rule

Tuesday, October 15th
Impact of EPA's New TSCA Rules on OSHA Chemical Safety Enforcement  

Wednesday, June 12th
Intersection of Artificial Intelligence and OSHA and Employment Law

Wednesday, November 13th
OSHA's Enforcement National & Local Emphasis Programs

Thursday, July 18th
2025 OSHA New Year's Resolutions: 12 Ways to Improve Your OSHA-Readiness

Wednesday, December 18th


See below for the full program descriptions.


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Update About OSHA’s Worker Walkaround Designation Process Rulemaking

By Eric Conn, Mark Trapp, and Darius Rohani-Shukla

Back in Q1 of 2023, OSHA revealed plans for a rulemaking for a Worker Walkaround Representative Designation Process Rule, and we have been tracking the rulemaking on the OSHA Defense Report blog since that time.  Specifically, the Worker Walkaround Representative Designation Process rulemaking proposes to amend the existing regulation at 29 CFR § 1903.8(c), which governs participation by third parties in OSHA inspections as employee representatives. The proposed rule changes three key components of the existing regulation:

  1. Changing the existing language that historically has generally limited employee representation during an OSHA inspection to individuals who are employees of the employer being inspected, to now allow non-employee third parties to act as representatives; and
  2. Expanding the types of third parties permitted to represent employees during OSHA inspections. The existing regulation allows a non-employee “such as an industrial hygienist or a safety engineer” to accompany an OSHA compliance officer during an inspection when it “is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace[.]” The specific reference in the regulation to these technical credential has meant that only representatives with relevant technical expertise, credentials, or unique language skills have been permitted to accompany OSHA.  The new Proposal eliminates the limitation to these technical experts, and indicates that a third party representative may be “reasonably necessary” because of “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills.”
  3. The proposed rule may also expand the role these third party representatives can play during the inspection. The OSH Act and the existing regulation speak in terms of the employee representative “accompanying” OSHA during the walkaround phase of the inspection, but the proposed amended rule introduces the term “participate,” which could mean OSHA intends for these third parties to have a more active role; e.g., attending and asking questions during private employee interviews, reviewing the employer’s records produced to OSHA, etc.

Conn Maciel Carey’s national OSHA and Labor & Employment Practice Groups formed the Employers Walkaround Representative Rulemaking Coalition, composed of a broad and diverse group of employers and trade associations representing many industries, including retail, manufacturing, petroleum refining, construction, food manufacturing and distribution, agricultural, and more, with millions of employees across thousands of workplaces in every state in the US. On behalf of that rulemaking coalition, we recently submitted a comprehensive set of written comments to OSHA’s rulemaking docket.  In this post, we provide you with a summary of our comments that detailed:

  1. The concerning ways the proposed rule would impact employers;
  2. How the proposed rule conflicts with the OSH Act, the National Labor Relations Act, and the US Constitution; and
  3. How the rulemaking process has violated the Administrative Procedure Act and Executive Order 12866

The written comments submitted on behalf of the Employers Walkaround Representative Rulemaking Coalition, available here (https://www.regulations.gov/comment/OSHA-2023-0008-1976), present our concerns that the Proposal would open a flood gate to a multitude of workplace disruptions.  Specifically, we explained how: Continue reading

New Memorandum of Understanding Between OSHA and the NLRB Will Drive Coordinated Enforcement Efforts

By Kimberly Richardson and Eric J. Conn

On October 31, 2023, the Occupational Safety and Health Administration (OSHA) and the National Labor Relations Board (NLRB) signed a new Memorandum of Understanding (MOU) to coordinate investigations and other enforcement activities. The agencies’ coordinated enforcement applies not only to protections afforded to employees under the Occupational Safety and Health Act (OSH Act) and the National Labor Relations Act (NLRA), but it also applies to the 20 plus whistleblower laws that OSHA is charged with enforcing. The OSH Act and the NLRA both include protections for workers who complain to management about unsafe or unhealthy working conditions.

The purpose of the MOU is to:

“facilitate interagency
cooperation and coordination between the [NLRB] and [OSHA] by
establishing a process for information sharing and referrals, training, and outreach between
the agencies concerning the [NLRA], 29 U.S.C. 151 et seq., the
[OSH Act], including, but not limited to, its
anti-retaliation provision, section 11(c), 29 U.S.C. 660(c), and any current and future
statutory protections which OSHA is charged with enforcing, including various
whistleblower provisions.”

Under the new MOU, OSHA and the NLRB agreed to the following:

  • Information Sharing. OSHA and the NLRB and OSHA may, either upon request or upon one of the agency’s own initiative, share information or data that supports enforcement mandates regardless of whether the information or data was obtained through investigations or from other sources.
  • Coordinated Investigations and Inspections. Where OSHA or NLRB suspects there are overlapping statutory violations at issue, they will coordinate investigations and inspections with the other “in appropriate cases and to the extent allowable under law.”
  • Informing Employees About Their Rights. The MOU provides guidance for OSHA and NLRB staff on how to inform complainants and charging parties of their rights under the NLRA and any act enforced by OSHA, and how to contact the appropriate agency for further assistance. Continue reading

[Special Webinar Event] California’s New General Industry Workplace Violence Prevention Law (SB 553)

On Thursday, November 9, 2023, at 10 a.m. PT / 1 p.m. ET, join Rachel Conn, Megan Shaked, and Andrea Chavez of Conn Maciel Carey’s Cal/OSHA Practice, and a Special Guest Speaker (to be announced soon), for a special webinar event regarding California’s brand new General Industry Workplace Violence Prevention Law (SB 553).

Even while Cal/OSHA was working away on a General Industry Workplace Violence Prevention Rule, on September 30, 2023, California Gov. Gavin Newsom signed SB 553 – a sweeping new law addressing Workplace Violence Prevention in virtually all California workplaces.  California employers (unless they fall under one of the limited exemptions) will be required by July 1, 2024 to establish, implement, and maintain an “effective” written workplace violence prevention plan, investigate every incident workplace violence (broadly defined), create and maintain violent incident logs, conduct annual employee and supervisor training, and abide by additional recordkeeping requirements.  The new law also expands the circumstances when and the parties who may seek workplace violence restraining orders on behalf of employees.  Finally, the law requires Cal/OSHA to finalize the Workplace Violence Prevention rule that it has been crafting in short order.

Employers will need to work quickly to understand their new compliance obligations and develop and implement the onerous new requirements. This program will be a deep dive into the background of this new law, the new requirements, the other employment laws implicated by implementing a workplace violence prevention program, what to expect from Cal/OSHA moving forward, and tips and strategies for employers.

Participants in this special webinar event will learn: Continue reading

OSHA Proposes Rule that May Allow Union Organizers and Plaintiffs’ Attorneys to “Walk Around” Workplaces

By Eric J. Conn and Mark Trapp

Earlier this month, OSHA issued a Notice of Proposed Rulemaking for a “Worker Walkaround Representative Designation Process” Rule, which would expand the circumstances when non-employees, particularly union representatives at non-union workplaces, can accompany OSHA inspectors during enforcement inspections.

The proposed rule would allow union representatives, other labor or community activist groups, and even plaintiffs’ attorneys (or their expert witnesses) direct and early access to non-union workplaces and employees, potentially as a front for organizing campaigns where they otherwise would not have access or to advance personally injury lawsuits. Similarly, the rule could allow competitors, contractors, or others onsite to employers’ detriment.

The Washington Legal Foundation featured an article by Eric J. Conn of Conn Maciel Carey’s national OSHA Practice and Mark Trapp of CMC’s Labor & Employment Practice about this development. Here is a link to the WLF article.

Employers OSHA Inspection Walkaround Rulemaking Coalition

With that backdrop, we understand that employers have a strong interest in having a seat at the table for this rulemaking.  To that end, Conn Maciel Carey’s OSHA Practice and Labor Law Practice are collaborating to organize a fee-based company-anonymous coalition of employers and trade groups to advocate for the most reasonable possible fed OSHA regulation about third party participation in OSHA inspections. Continue reading

Third Circuit Applies Narrow Reading of the OSH Act’s Private Right of Action

By Megan Shaked and Eric Conn

In a case of first impression, the United States Court of Appeals for the Third Circuit held that a limited private right of action included in the Occupational Safety and Health Act of 1970 (the OSH Act) is very narrow and it does not continue after the Department of Labor completes its enforcement proceedings.

The OSH Act does not provide employees or other interested parties with a private right of action against employers to enforce OSHA standards or OSH Act requirements against employers, but it does, in very limited circumstances, allow employees to sue OSHA for the agency’s failure to address workplace safety concerns under.  Historically, employees’ role in OSHA enforcement is just to observe workplace safety violations and lodge anonymous complaints with OSHA, requesting that OSHA conduct an inspection.  OSHA then makes its own independent determination whether there are grounds for safety violations; i.e., whether to issue citations.

One area where employees have a slightly more power is in the context of imminent dangers.  OSHA has authority under the OSH Act, when it identifies an imminent danger (or is informed of an imminent danger by a whistleblower-employee), to seek injunctive relief to promptly address the danger or stop work at the workplace.  In this rare circumstance—where the risk of danger in the workplace is “imminent”—employees can attempt to force their employers’ and OSHA’s hands by Continue reading

OSHA Initiates Rulemaking to Revive Union Participation in OSHA Inspections at Non-Union Workplaces

By Aaron Gelb, Eric Conn, and Ashley Mitchell

Consistent with the Biden Administration’s promise to be “the most labor friendly administration” in history,” OSHA recently announced plans to publish a notice of proposed rulemaking (“NPRM”), as early as this Spring, to amend 29 CFR 1903.8(c), which is the regulation governing the rights to participate in OSHA inspections by non-employees of the inspected employer.

OSHA-savvy employers may remember that OSHA tried during the Obama/Biden Administration to give union representatives the ability to participate in OSHA inspections at non-union workplaces by way of a formal letter of interpretation in February 2013.  The interpretation letter responded to an inquiry by a labor union about inspection rights:

“May workers at a worksite without a collective bargaining agreement designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative?”

The question must be considered in the context of the existing regulatory text of 29 C.F.R. 1903.8(c):

“The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.”

Notwithstanding a pretty clear regulatory limitation to third party inspection participation rights, OSHA’s responded to the unions interpretation request in the affirmative, explaining that notwithstanding: Continue reading

Announcing Conn Maciel Carey LLP’s 2023 OSHA Webinar Series!

ANNOUNCING CONN MACIEL CAREY LLP’S
2023 OSHA WEBINAR SERIES

Two years into the Biden Administration, with senior political leadership now firmly entrenched at federal OSHA, the agency is making good on its promise to “use all of the tools available” in its regulatory and enforcement toolbox to protect workers.  In part, that has taken the form of increasingly aggressive enforcement (more inspections, more significant penalties, etc.), hiring more compliance officers, launching new special emphasis enforcement programs, and expanding its enforcement policies like its Severe Violator Enforcement Program.  It has also taken the form of a broad-based rulemaking agenda that includes work on a new heat illness rule, pushing out a permanent COVID-19 standard for healthcare, expanding its E-Recordkeeping requirements, among other high priority rulemakings.

Accordingly, it is more important now than ever before for employers to stay attuned to developments at OSHA.  To help you do so, ​Conn Maciel Carey LLP is pleased to present our complimentary 2023 OSHA Webinar Series, which includes monthly programs (sometimes more often, if events warrant) put on by the OSHA-specialist attorneys in the firm’s national OSHA Practice Group.  The webinar series is designed to arm employers with the insight into developments at OSHA that they need during this period of unpredictability and significant change.

​To register for an individual webinar in the series, click on the link in the program description below, or to register for the entire 2023 series, click here to send us an email request so we can get you registered.  If you missed any of our programs over the past eight years of our annual OSHA Webinar Series, here is a link to a library of webinar recordings.  If your organization or association would benefit from an exclusive program presented by our team on any of the subjects in this year’s webinar series or any other important OSHA-related topic, please do not hesitate to contact us.

2022 Year in Review and 2023 Forecast

Thursday, January 26th

MidYear Review of OSHA Developments

Thursday, July 20th

Annual Cal/OSHA Update

Thursday, February 16th

OSH State Plan Update

Thursday, August 10th

Responding to Whistleblower Complaints

Tuesday, March 21st

Powered Industrial Trucks

Thursday, September 14th

Repeat, Willful, Egregious and SVEP

Thursday, April 13th

Investigations and Audit Reports

Thursday, October 5th

OSHA Rulemaking Update

Thursday, May 18th

OSHA’s PSM Standard & EPA’s RMP Rule

Tuesday, November 14th

Preparing for OSHA Inspections

Thursday, June 8th

Combustible Dust

Thursday, December 7th

See below for the full schedule with program descriptions,
dates, times and links to register for each webinar event.

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Preventing and Responding to Workplace Violence [Webinar Recording]

On Tuesday, October 11, 2022, Kara M. MacielLindsay A. DiSalvo, and special guest Terri D. Patterson, Ph.D., a Principal at Control Risks and threat management expert with over two decades of experience, presented a webinar on Preventing and Responding to Workplace Violence.

In 2020, physical assault was identified as the 4th leading cause of workplace deaths. Nearly 2 million American workers experience violent acts at work annually. As the COVID-19 pandemic appears to be entering the endemic phase and workers begin to transition back into the workplace, experts predict even more of an increase in workplace violence. Thus, employers will want to be prepared to prevent these types of incidents and protect their employees to the extent possible, as well as ensure they are doing all that’s required from a regulatory standpoint.

Workplace violence has been a focus for both the Occupational Safety and Health Administration (“OSHA”) and the Equal Employment Opportunity Commission (“EEOC”) well before the pandemic and remains so now. While OSHA has no specific standard for workplace violence, the OSH Act’s General Duty Clause requires employers to provide a workplace free from recognized serious hazards, and OSHA has instituted enforcement actions under its General Duty Clause after incidents of workplace violence. OSHA has also initiated a rulemaking to address workplace violence in specific industries. For its part, the EEOC has also prioritized ways to effectively prevent and address workplace violence, particularly in the form of workplace harassment. And outside of OSHA and the EEOC, employers can also be held liable for workplace violence through other claims such as negligent hiring and supervision.

In this webinar, attendees learned: Continue reading

[Webinar] Preventing and Responding to Workplace Violence

On Tuesday, October 11, 2022 at 1 p.m. EST, Kara M. Maciel, Lindsay A. DiSalvo, and special guest Terri D. Patterson, Ph.D., a Principal at Control Risks and threat management expert with over two decades of experience, will present a webinar on Preventing and Responding to Workplace Violence.

In 2020, physical assault was identified as the 4th leading cause of workplace deaths. Nearly 2 million American workers experience violent acts at work annually. As the COVID-19 pandemic appears to be entering the endemic phase and workers begin to transition back into the workplace, experts predict even more of an increase in workplace violence. Thus, employers will want to be prepared to prevent these types of incidents and protect their employees to the extent possible, as well as ensure they are doing all that’s required from a regulatory standpoint.

Workplace violence has been a focus for both the Occupational Safety and Health Administration (“OSHA”) and the Equal Employment Opportunity Commission (“EEOC”) well before the pandemic and remains so now. While OSHA has no specific standard for workplace violence, the OSH Act’s General Duty Clause requires employers to Continue reading

What Employers Need to Know About the Monkeypox Virus [Webinar Recording]

On September 6, 2022, Kara M. MacielEric J. Conn and Ashley D. Mitchell presented a webinar regarding What Employers Need to Know About the Monkeypox Virus.

On July 23rd, the World Health Organization declared Monkeypox a Public Health Emergency of International Concern. By late July, the U.S. surpassed 10,000 total cases, and the Biden Administration declared it a public health emergency. While the Monkeypox Virus is less transmissible than COVID-19 and rarely fatal in its current form, there are still workplace safety and health considerations employers will have to address.

Participants in this webinar learned: 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

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

[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

Washington’s New Safety Standard for Protecting Temporary Workers

By Aaron R. Gelb & Beeta B. Lashkari

Last Spring, Washington governor Jay Inslee signed into law Substitute House Bill (SHB) 1206, creating new duties for staffing agencies and worksite employers to protect the safety of temporary workers.  The law, codified at Revised Code of Washington (“RCW”) 49.17.490, went into effect on July 25, 2021, but received scant attention from the media or safety professionals—no doubt, in large part, due to an ongoing focus on the COVID-19 pandemic.  Nonetheless, given the extent to which many employers rely on temporary workers to staff their operations, this new law is one that covered employers should pay attention to and develop a plan to help ensure compliance.  Below is a summary of the scope and requirements of the new standard, as well best practice tips for covered employers.

Who Is Covered by the New Standard?

The new standard generally applies to staffing agencies and worksite employers, as defined by the standard:

  • A “staffing agency” is an employer as defined in Chapter 49.17 of the RCW and North American industry classification system (NAICS) 561320 and means an organization that recruits and hires its own employees and temporarily assigns those employees to perform work or services for another organization, under such other organization’s supervision, to:
    • (i) [s]upport or supplement the other organization’s workforce;
    • (ii) provide assistance in special work situations including, but not limited to, employee absences, skill shortages, or seasonal workloads; or
    • (iii) perform special assignments or projects.
  • “Worksite employer” is an employer as defined in Chapter 49.17 of the RCW and means an individual, company, corporation, or partnership with which a staffing agency contracts or otherwise agrees to furnish persons for temporary employment in the industries described in sectors 23 and 31 through 33 of the North American industry classification system.

Importantly, per the definition of “worksite employer” Continue reading

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

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