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 →
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 →
ANNOUNCING CONN MACIEL CAREY’S
2022 OSHA WEBINAR SERIES
A full year into the Biden Administration, the senior leadership team at federal OSHA is set, the agency’s new regulatory agenda has been revealed, and the enforcement landscape has begun to take shape, revealing a dramatic shift in priorities, including stronger enforcement, higher budgets and more robust policies protecting workers, and a renewed focus on new rulemaking. Following an Administration that never installed an Assistant Secretary of Labor for OSHA, relied almost exclusively on the General Duty Clause to enforce COVID-19 safety measures, drastically curtailed rulemaking, and declined to issue an emergency COVID-19 standard, the pendulum swing at OSHA has already been more pronounced than during past transitions. Accordingly, it is more important now than ever before for employers to stay attuned to developments at OSHA.
Conn Maciel Carey LLP’s complimentary 2022 OSHA Webinar Series, which includes monthly programs (sometimes more often, if events warrant) 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 link in the program description below, or to register for the entire 2022 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 seven 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.
On November 5, 2021, OSHA published its latest Emergency Temporary Standard (“Test-or-Vaccinate ETS”) to address the effects of COVID-19 in the workplace – “COVID-19 Vaccination, Testing, and Face Coverings.” Under the Test-or-Vaccinate ETS, employers with 100 or more employees must implement a program to facilitate (1) a COVID-19 vaccination requirement for all employees or (2) a combination of a COVID-19 vaccination requirement and weekly testing for those employees who choose not to get vaccinated. Per OSHA’s stated intent to strongly encourage vaccination through the Test-or-Vaccinate ETS, the rule specifically requires employers to provide paid time off for vaccination AND to recover from vaccine-related side effects. In the Preamble to the Test-or-Vaccinate ETS, OSHA asserts that these requirements ensure unvaccinated employees can be vaccinated without having to sacrifice pay or their jobs.
Below we review the two different types of leave, including their individual nuances, that are required by the Test-or-Vaccinate ETS.
Paid Leave for Vaccination
Under 29 C.F.R. 1910.501(f)(1), employers must provide reasonable time – up to 4 hours per dose – to each employee to receive their primary vaccine dose or doses during work hours. This includes time spent:
Making the appointment and completing related paperwork;
Waiting to get and actually getting vaccinated, as well as post-vaccination monitoring; and
Traveling to and from the vaccination site as necessary.
OSHA guidance does clarify that an employer is not required to reimburse an employee for transportation costs incurred to receive the vaccine, just for the actual time to receive each vaccine dose. Even where an employer facilitates a vaccination event on site, it must provide reasonable paid time to employees to receive each primary vaccination dose, though the time may be more limited as it takes out travel and making the appointment. Notably, if an employee chooses to receive a primary vaccination dose outside of work hours, the employer would not be required to grant paid time to that employee for that dose. However, because of the paid leave scheme, it does seem less likely that an employee would make the choice to go outside of their work hours.
Time must be paid at the employee’s regular rate of pay and only applies to the primary vaccination doses; i.e., time required to receive a booster shot is not required to be paid under the Test-or-Vaccinate ETS.
Importantly, this paid time cannot be offset by other forms of leave, such as sick leave or vacation leave. As a justification for prohibiting the use of other paid leave for this purpose, OSHA explains that it created this new bucket of required paid time because it believes employees could be discouraged from getting vaccinated if they have to dip into their accrued sick leave or general PTO to get vaccinated. Continue reading →
*As of 12/18/21, the federal contractor mandate is currently subject to federal court injunctions.
While we have been mostly focused on the September 9th directive from President Biden to fed OSHA to issue a COVID-19 vaccination / testing emergency temporary standard, that was hardly the only major move the Administration announced on the vaccine-mandate front. This update will focus on federal contractors – companies that provide services to the federal government through direct contracts with federal agencies and through subcontracts in support of federal contracts.
Setting a “hard” vaccine mandate – “Covered Contractor Employees” must be fully vaccinated byJanuary 18, 2021 (and thereafter before starting to work on any federal contract);
Designating a COVID-19 safety coordinator to communicate requirements to employees and non-employees at your “Covered Contractor Workplaces”; and
Ensuring all individuals at a “Covered Contractor Workplace” comply with CDC masking and distancing guidance.
For months now, since January 2021, contractors and subcontractors working in-person on federal property have already been required to provide a self-certification that they were fully vaccinated OR had received a recent negative COVID-19 test. (SeeEO 13991 – “Protecting the Federal Workforce and Requiring Mask-Wearing”). The new EO for federal contractors eliminates the “testing-out option” and expands the mandate beyond just federal properties to also cover private workplaces, or really any place at all, where an individual is working in support of a covered federal contract.
Only those unvaccinated employees who are “legally entitled to an accommodation” for medical or religious reasons may continue to be employed to work on federal contracts. There are no exceptions for people who previously were infected and recovered. Anti-body tests are not acceptable to prove vaccination status. Under limited special circumstances involving an “urgent, mission critical need”, a federal agency may allow certain individuals who are not fully vaccinated to continue working for only up to 60 days from beginning the work on a covered contract or in a covered workplace.
Another development of this federal contractor mandate is that employers must review covered employees’ official documentation to verify vaccination status (i.e., the white card or an official record from a health department database), and self-attestation is not an acceptable substitute.
On September 9, 2021, President Biden charged federal OSHA with developing a second emergency temporary standard (ETS) requiring all but small employers in all industries but healthcare to implement “soft” vaccine mandates, i.e., to require employees to either be fully vaccinated or get weekly COVID-19 testing. The President directed OSHA to include in this new ETS a requirement that these employers provide paid time for employees to get vaccinated and recover from the vaccine. The President also issued executive orders mandating federal contractors and healthcare employers implement “hard” vaccine mandates.
The push now for a broader COVID-19 ETS applicable beyond just healthcare is a step for which we have been bracing for a while now. In June, when OSHA issued its COVID-19 ETS that was limited only to the healthcare industry, the vast majority of employers dodged the bullet, but since the explosion of new cases because of the Delta variant, we began to see that bullet more as a boomerang, likely to come back around for the rest of industry. Here are five signals we picked up that OSHA was likely to revisit its decision in June to limit its COVID-19 ETS to only healthcare employers:
The rate of community transmission and COVID-19 deaths around the country has returned to the level we were experiencing in the Spring of this year when OSHA delivered to OMB a proposed ETS that was written to cover all industries. To the extent the decline in cases and deaths was a major factor in OSHA’s decision to limit the ETS to just healthcare, that factor no longer cuts in favor of a healthcare-only rule.
Since issuing the ETS for healthcare, OSHA has been under pressure from national unions and worker advocacy groups to expand the ETS to all industries, both in the form of written comments during the ETS’s post-issuance comment period and a lawsuit filed by AFL-CIO challenging OSHA’s decision to limit the ETS to just healthcare.
There has been a growing tension between the Biden Administration and certain Republican governors, particular DeSantis in Florida and Abbott in Texas, around mask and vaccine mandates. The Biden Administration could resolve that tension by issuing a specific federal OSHA regulation setting requirements for masking and vaccinations, which would likely preempt conflicting state laws.
The White House has changed its tune about strict COVID-19 protocols and vaccine mandates dramatically since the OSHA ETS was issued. The Administration’s decision to limit the ETS to healthcare only was likely at least partially politically-motivated; i.e., a broad ETS was too unpopular due to the massive decline in COVID-19 cases and deaths. However, we have started to see President Biden take politically risky moves around vaccinations; e.g., reinstituting mask recommendations for vaccinated individuals and setting a “soft” mandate for federal workers and contractors and encouraging industry to set similar mandates. If the politics of aggressive COVID-19 requirements influenced OSHA’s decision to issue a narrow rule in June, it appears the Administration has changed its political calculation in the face of the spread of the Delta variant surge.
Those were the main signals we saw that kept us up at night worried OSHA would deliver to OMB a new or amended COVID-19 ETS that would apply to all industries. But President Biden’s announcements yesterday sent the strongest signal yet that we will soon see further regulatory action from federal OSHA on the COVID-19 front. A lot of questions remain, and we expect those to be answered in time as the new rules take effect, but we wanted to share with you what we know so far, as well as our preliminary thoughts/speculation about some of those questions.
On Labor Day, the New York State Commissioner of Health designated COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to public health. Under the New York HERO Act, employers must either adopt the New York State Department of Labor’s (“NYDOL”) model prevention plan or develop and establish an alternative prevention plan that equals or exceeds the requirements in the NYDOL’s model plan.
The NYDOL issued the HERO Act Standards and model plan, which set forth the minimum requirements employers must provide to address exposure to airborne infectious diseases in the workplace, on July 7, 2021. As explained in our prior blog post, those requirements include:
employee health screenings;
employee face coverings;
personal protective equipment;
workplace hand hygiene stations and protocols, which includes adequate break times for employees to wash their hands;
cleaning and disinfecting shared equipment and frequently touched surfaces and high-risk areas;
social distancing;
complying with mandatory or precautionary orders of isolation or quarantine issued to employees;
air flow, exhaust ventilation, or other special engineering design requirements;
designation of one or more supervisors with the responsibility to ensure compliance with the prevention plan and any applicable federal, state, or local laws, rules, or guidance on preventing the spread of an airborne infectious disease;
notice to employees; and
verbal review of the infectious disease standard, employer policies, and employee rights under the NY HERO Act.
Employers were required to adopt a model plan or develop an individualized plan that met the Act’s requirements by August 5, 2021 and to provide the plan to employees by September 4, 2021. Implementation of the plan, however, is only required whenever the Commissioner of Health designates an airborne infectious disease as a highly contagious communicable disease that presents serious risk of harm to public health. As such, implementation of HERO Act plans is a bit of a moving target that employers must constantly monitor. With total cases reaching an all-time low during the pandemic earlier this summer, the NYDOL clarified that the Commissioner of Health had not (yet) designated COVID-19 as such a disease, thus making the HERO Act Standards unenforceable. That decision, however, has since changed as the highly transmissible Delta variant rages on and over 97% of US counties are now at substantial or high levels of community transmission.
Since the Commissioner of Health has made a designation, employers must now activate their written airborne infectious disease plans. The HERO Act Standards detail additional steps employers must take when implementing their airborne infectious disease exposure prevention plan, including immediately reviewing their current plan; updating the plan to incorporate current information, guidance and any mandatory requirements, as appropriate; and finalizing the plan. Employers are also required to conduct a “verbal review” of the plan’s protocols and employee rights under the Act, which is akin to a training requirement. Finally, employers must distribute the plans to employees, post a copy of the plan in the workplace, and ensure that a copy of the plan is accessible during all work shifts.
Although it is unclear whether employers will be provided some leeway/time to ensure that their plans are reviewed, updated, and implemented in the workplace, employers should promptly take steps to comply with the Act. As the Delta variant continues to surge throughout America, there will almost certainly be updated guidance regarding these plans from the NYDOL in the near future.
As previously discussed, the NY HERO Act requires all New York employers to implement workplace health and safety protocols in response to a “highly contagious communicable disease,” as designated by the New York State Commissioner of Health. On July 7, 2021, the New York Department of Labor finally released the anticipated HERO Act standards and industry-specific model plans.
Notably, the HERO Act standards only apply in relation to “an airborne infectious agent or disease designated by the Commission of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health” and do not apply to “any employee within the coverage of a temporary or permanent standard adopted by the Occupational Safety and Health Administration setting forth applicable standards regarding COVID-19 and/or airborne infectious agents and diseases.”
The standards and industry-specific model plans include requirements cover the following topics:
employee health screenings,
face coverings,
physical distancing,
workplace hygiene stations,
regular cleaning and disinfecting of shared equipment and surfaces and housekeeping,
personal protective equipment,
compliance with quarantine guidelines in cases of exposure and infection response during a designated outbreak,
advanced engineering requirements, such as air flow and exhaust systems,
compliance with local laws,
the appointment of supervisory employees to maintain enforcement of these new standards,
regular reviews of employer policies, and
anti-retaliation provisions
Although the NY Department of Health continues to grapple with COVID-19 pandemic, interestingly, the NY Department of Labor has clarified that the Commissioner of Health has not designated COVID-19 as a highly contagious communicable disease. Therefore, the HERO Act standards are not currently being enforced.
On January 7, 2021, President-elect Joe Biden announced his much-awaited choice for nominee to serve as Secretary of Labor, selecting Boston Mayor Marty Walsh. Mayor Walsh made his mark as a labor leader, ultimately heading the Building and Construction Trades Council from 2011 to 2013. Mr. Walsh was also a full-time legislator, serving in the Massachusetts state legislature for some 17 years before being elected mayor in 2014.
If confirmed, it is expected that Mayor Walsh’s close personal friendship with President-elect Biden will elevate the importance of the Labor Department in President Biden’s cabinet, allowing a Secretary Walsh significant influence in the Administration.
Mayor Walsh’s strong ties to organized labor and his selection follows through on President-elect Biden’s campaign promise to give unions a stronger voice in labor policy in his Administration. Mayor Walsh has a reputation as a “pragmatic deal maker,” and he is respected in Massachusetts by both business and labor for his reasonable approach to solving labor and employment issues facing the state.
Of the many issues likely to be tackled by the Labor Department over the next few years, one of the first and most impactful will be the likely issuance of a federal COVID-19 Emergency Temporary Standard by OSHA. President-elect Biden has pledged to have OSHA quickly address this issue. If a federal ETS is promulgated, it would replace the current Administration’s approach, which has relied heavily on CDC and agency guidance, as well as existing OSHA standards, like the respiratory protection standard and recordkeeping rules, to issue citations. With respect to COVID-19, under Mayor Walsh’s leadership, the City of Boston implemented a Continue reading →
ANNOUNCING CONN MACIEL CAREY’S
2021 OSHA WEBINAR SERIES
As the Trump Administration hands over the keys to President-Elect Biden and a new Democratic Administration, OSHA’s enforcement and regulatory landscape is set to change in dramatic ways, from shifting enforcement priorities, budgets and policies, to efforts to reignite OSHA’s rulemaking apparatus. Following an Administration that never installed an Assistant Secretary of Labor for OSHA, handled COVID-19 enforcement with a light touch, pumped the brakes on almost all rulemaking in general, and declined to issue an emergency COVID-19 standard in particular, the pendulum swing at OSHA is likely to be more pronounced than during past transitions. Accordingly, it is more important now than ever before to pay attention to OSHA developments.
Conn Maciel Carey’s complimentary 2021 OSHA Webinar Series, which includes (at least) monthly programs put on by the attorneys in the firm’s national OSHA Practice, is designed to give employers insight into developments at OSHA during this period of flux and unpredictability.
To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2021 series, click here to send us an email request, and we will register you. If you missed any of our programs from the past seven years of our annual OSHA Webinar Series, click here to subscribe to our YouTube channel to access those webinars.
Over the course of the last month, several of our retail clients have been visited by Michigan OSHA (MIOSHA) for COVID-19 enforcement inspections in circumstances without an employee complaint or any self-reported work-related COVID-19 hospitalization or death. The reason for these inspections, it turns out, is MIOSHA has launched a State Emphasis Program (SEP) on COVID-19 in Bars, Restaurants, Gas Stations, Grocery and Convenience Stores, and Other Retail. We got our hands on the Directive for the Emphasis Program. Here’s a summary of what Michigan employers in those industries need to know about MIOSHA’s new enforcement strategy.
The Directive lays out MIOSHA’s approach for selecting various retail and hospitality workplaces for programmed inspections about COVID-19 infection control.
The stated purposes of the Emphasis Program is to “increase MIOSHA’s presence in retail establishments to ensure workers are protected from SARS-CoV-2,” because “employees who come in contact with large numbers of people as a result of their employment [like in retail] are at elevated risk of infection.”
The inspections are evaluating the employer’s adherence to Governor Whitmer’s Executive Orders for COVID-19, OSHA Guidance on Preparing Workplaces for COVID-19, and applicable CDC guidance for COVID-19.
The agency has created a targeting list of retail/hospitality businesses broken down as follows:
On Wednesday, July 15, 2020, Virginia’s Governor Ralph Northam announced the commonwealth’s adoption of an emergency temporary standard (“ETS”) on infectious disease prevention. With that, Virginia became the first state in the nation to promulgate a mandatory safety regulation designed to prevent and/or reduce COVID-19 infections in the workplace. The Virginia Department of Labor and Industry’s Safety and Health Codes Board voted to approve the ETS after Governor Northam directed the creation of enforceable regulations in a May Executive Order (the same EO that mandated the use of masks in public for all Virginians). Specifically, Governor Northam directed:
“The Commissioner of the Virginia Department of Labor and Industry shall promulgate emergency regulations and standards to control, prevent, and mitigate the spread of COVID-19 in the workplace. The regulations and standards … shall apply to every employer, employee, and place of employment within the jurisdiction of the Virginia Occupational Safety and Health (VOSH) program.”
Virginia state officials said they were forced to act because federal OSHA had not developed an employer safety standard to protect against infections from the Coronavirus, and thus the burden to do so has been left to the states.
The ETS, which was drafted by Virginia’s Department of Labor and Industry, will go into effect after it is published in a newspaper in Richmond, VA, which is expected to occur the week of July 27th. The rule will remain in effect as an ETS for at least six months, but can be made permanent through the Virginia OSHA (VOSH) formal rulemaking process defined by state law. Although the Final Rule has not been published, the rulemaking process has been somewhat public, with early drafts of the rule discussed and debated in public meetings, and what appears to be the final rule published today.
While some requirements apply to all employers of any size and in any industry, the Rule requires employers to conduct a risk assessment to identify potential exposures to COVID-19 in the workplace, and to categorize employees’ job tasks as “very high,” “high,” “medium,” or “lower” (as defined in the Rule). The hazard assessment has to be verified by a written certification that identifies the workplace evaluated, the person certifying that the evaluated was completed, the dates of the assessment, and the document as a certification.
Each category has a separate list of precautions employers are required to take Continue reading →
California increased its efforts to combat COVID-19 over the July 4th holiday weekend by deploying multi-agency strike teams to visit or otherwise make contact with businesses to evaluate and enforce compliance with and/or educate them about the State’s numerous COVID-19 orders, directives, and guidance.
The “Strike Force” includes representatives from at least ten different state agencies. Approximately 100 agents are from the Alcohol Beverage Control agency and the rest from the Division of Occupational Safety and Health (Cal/OSHA), the California Highway Patrol, the Board of Barbering & Cosmetology, Consumer Affairs, Food and Agriculture, Labor Commissioner’s Office, the Governor’s Office of Business and Economic Development, and other state licensing entities.
Ahead of the July 4th holiday, Governor Newsom ordered bars, indoor restaurants, movie theaters and more to close in a number of counties on a state watch list. The state monitoring list is ever changing and represents counties with a need for more support and/or enforcement.
Over the holiday, hundreds of state inspectors fanned out across California to enforce health orders related to Coronavirus.
The State’s actions are likely authorized by Executive Order N-33-20, which generally directs all residents immediately to heed current State public health directives to stay home, except as needed to maintain continuity of operations of essential critical infrastructure sectors and additional sectors as the State Public Health Officer “may designate” as critical to protect health and well-being of all Californians. As for the crackdown, the actions taken are likely be based on recent Continue reading →
Governors across the nation have signed various “stay-at-home” or “shelter-in-place” orders in an increased effort to slow the spread of COVID-19. Many cities and counties have also signed such orders as well, including in states with no statewide order in place. These orders vary in their scope in the restricted activities and affected industries but they typically address: (1) the continued operations of critical businesses; (2) restrictions on non-essential businesses; (3) the activities individuals may continue to perform; and (4) other limitations on gatherings.
Spotlight: California
On March 19, 2020, California Governor Gavin Newsom signed an emergency order requiring all individuals living in California “stay home or at their places of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors.” Californians may continue working for such critical infrastructure sectors and any other industries the governor designates as critical. The emergency order cites to federal guidance on the federal critical infrastructure sectors, which identifies the 16 critical infrastructure sectors including critical manufacturing, food and agriculture, transportation, energy, healthcare and emergency services.
The emergency order references a March 19, 2020 Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response issued by the U.S. Department of Homeland Security, which includes more detailed descriptions of categories of workers falling under each of the identified critical infrastructure sectors. Some of the other state orders also rely on this federal guidance on “essential critical infrastructure workers” in defining the critical business that may continue to operate under the orders.
Late last year, on October 9, 2019, President Trump issued two Executive Orders (“EOs”) that could have a dramatic impact on the way OSHA and other executive agencies operate:
These EOs were designed to, according to the President:
“protect Americans from out-of-control bureaucracy and stop regulators from imposing secret rules and hidden penalties on the American people. . .”
In a nutshell, the Guidance Documents EO mandates that the public be provided with an opportunity to comment on proposed guidance and interpretive documents (similar to what is required under the Administrative Procedures Act for rulemaking). It requires notice and publication of guidance, and the creation of a comprehensive online database where all such guidance must be housed and easily searched.
The Transparency EO focuses on agency enforcement actions. Most significantly, it requires agencies to provide all parties potentially subject to an enforcement action the opportunity to engage with the agency over the merits of the action prior to commencement of the enforcement action. It also:
prevents agencies from enforcing standards that are not public and that would cause unfair surprise to the regulated entity (i.e., no enforcement relying on guidance documents that are not created and maintained pursuant to the Guidance Documents EO);
requires the publication of any potential new or expanded jurisdiction in the Federal Register;
mandates the development of procedures for encouraging voluntary self-reporting in exchange for penalty reductions; and
requires that agencies adhere to standards in the Paperwork Reduction Act when asking regulated parties for information without a formal subpoena or investigative demand.
The two new Executive Orders align with the President’s business-friendly agenda, making it more difficult for regulators to engage in backdoor rulemaking (i.e., supplementing or changing regulations via the issuance of guidance documents developed without public input), and easier for businesses to keep track of the regulatory requirements with which they must comply, and to head off enforcement actions before they begin.
How will the Executive Orders change the OSH regulatory landscape, and what should employers expect next?Continue reading →
Last week, on the day of a federal district court-mandated deadline — Wednesday, February 5, 2020 — the Chemical Safety and Hazard Investigation Board (the CSB) announced its Final Rule on Accidental Release Reporting. The CSB posted a prepublication version of the Final Rule last week, on February 5th. The official version should be published in the Federal Register within the next few days.
As we previously reported, on December 12, 2019, the CSB issued a Notice of Proposed Rulemaking for its new reporting rule, which set out the circumstances when facility owners and operators are required to file reports with the CSB about certain accidental chemical releases and what must be communicated in the reports.
As stated in the NPRM, the purpose of the rule is “to ensure that the CSB receives rapid, accurate reports of any accidental release that meets established statutory criteria.”
The rule requires owners and operators of stationary sources to report accidental releases that result in a fatality, a serious injury, or substantial property damage to the CSB within eight hours. The specific information required to be provided in the accidental release report includes:
A brief description of the accidental release;
Whether the release resulted in a fire, explosion, death, serious injury, or property damage;
The number of fatalities and/or serious injuries, and the estimated property damage at or outside the stationary source;
The name of the material involved;
The amount of the release; and
Whether the accidental release resulted in an evacuation order impacting members of the general public and other details associated with the evacuation.
Issuance of the CSB’s reporting rule has been a long time coming. Although the CSB did not become operational until 1998, its enabling legislation – the Clean Air Act Amendments – was enacted in 1990. That statute, from nearly thirty years ago, expressly required the agency to issue a rule governing the reporting of accidental releases to the CSB. Although the CSB submitted an Advanced Notice of Proposed Rulemaking for Chemical Release Reporting in 2009, that effort died on the vine. Accordingly, the CSB has never had its own reporting rule, relying instead on other sources to receive incident information. In February 2019, however, Continue reading →
We are three years into the Trump Administration, and we have seen a mixed bag of change and business as usual at OSHA in enforcement and rulemaking. We watched late Obama-era OSHA rules get repealed, delayed, or amended and a modest boost in compliance assistance—the sort of policy shifts you expect to see in a transition from a Democratic to a Republican Administration. However, we have seen plenty of the unexpected, such as increases in virtually every enforcement metric, including record numbers of $100K+ enforcement actions. And most surprising of all, OSHA still does not have an Assistant Secretary—the longest ever vacancy for the top job at OSHA—and it seems highly likely the Agency will remain without a Senate-approved leader for the entirety of this presidential term. As we move into an election year, the final year of President Trump’s current term, we expect more reshuffling of OSHA enforcement policies and rulemaking priorities, and surely more surprises, so it is critical to stay abreast of OSHA developments.
Conn Maciel Carey’s complimentary2020 OSHA Webinar Series includes monthly webinars presented by OSHA-specialist attorneys in the firm’s national OSHA Practice designed to give employers insight into developments at OSHA during this remarkable time in OSHA’s history.
To register for an individual webinar, use the registration links in the program descriptions below. To register for the entire 2020 Series, click hereto send an email request, and we will register you. If you miss a program this year or missed any in prior years, click here for our webinar archive.
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We are now two years into the Trump Administration, and we have seen a mixed bag of changes in the OSHA enforcement and regulatory landscape. We have watched some late Obama-era OSHA rules get repealed by the Congressional Review Act or delayed and amended through deregulatory rulemaking. We have seen some efforts to boost up the VPP Program and other cooperative programs—the sorts of policy shifts at OSHA many expect in a transition to a republican administration. However, we have also been surprised by OSHA increasing the number of inspections, setting records for the number of $100K+ enforcement actions, and continuing to issue hard hitting press releases. And most surprising of all, OSHA still does not have a Senate-approved Assistant Secretary—the longest ever wait for a permanent OSHA Administrator.
As we move into the out years of Pres. Trump’s first term, we expect more reshuffling of OSHA’s enforcement priorities and policies, and more surprises, so it is critical to stay abreast of OSHA developments. This complimentary 2019 OSHA Webinar Series, presented by the OSHA-specialist attorneys inConn Maciel Carey’s national OSHA Practice Group, is designed to give employers insight into changes and developments at OSHA during this unpredictable time.
On September 25, 2018, OSHA announced the launch of a new Regional Emphasis Program (REP) to address the hazards from exposure to fertilizer grade ammonium nitrate (FGAN) and agricultural anhydrous ammonia. The REP, effective October 1, 2018, covers the states of Arkansas, Louisiana, Oklahoma, and Texas in OSHA Region VI, and Kansas, Missouri, and Nebraska in OSHA Region VII. OSHA will commence enforcement activities on January 1, 2019, after a three-month period of education and prevention outreach. Generally, enforcement activities will include the inspection and review of: (1) production operations and working conditions; (2) injury and illness records; (3) safety and health programs; and (4) chemical handling and use. OSHA’s decision to initiate a new REP covering two regions and seven states is yet another reminder that the agency is continuing full-speed ahead with enforcement efforts. While many anticipated that the Trump administration would retire OSHA’s national, regional and local emphasis programs, that has not happened. To the contrary, OSHA continues to implement the same number of enforcement emphasis programs as at the end of the Obama administration.
What prompted OSHA to act now?
On April 17, 2013, a fire and explosion involving FGAN occurred at the West Fertilizer Company in West, Texas, resulting in at least 14 fatalities. While OSHA and the West Fertilizer Company ultimately reached a settlement, OSHA initially issued more than 20 citations, including several under Section (i) of its Explosives and Blasting Agents Standard. Continue reading →
What is the Process Safety Summit in Washington, DC?
The Process Safety Summit in Washington, DC will be an annual event featuring a full-day program in Washington, DC gathering interested stakeholders from the chemical, petrochemical, and petroleum refining industries, and other industries with operations impacted by OSHA’s PSM Standard and EPA’s RMP Rule.
The focus of the Process Safety Summit in Washington, DC will be on the process safety regulatory landscape. The full-day Program will cover the PSM/RMP rulemakings, enforcement programs, significant cases, trends through the transition to the new Administration, best practices, and other key process safety regulatory issues impacting Industry.
This Process Safety Summit fills an important gap in Washington, DC. Although there are opportunities for trade groups and employers to interact with key government regulators, none of those opportunities focus on process safety, and the process safety-oriented events that do exist are far from Washington, DC, making it hard to attract more than one senior agency official.
The Trump Administration has taken the reins at OSHA, and the first year of the new OSHA’s enforcement and regulatory (or de-regulatory) agenda is in the books. We have already seen significant changes in the way OSHA does business and the tools available to the Agency in its toolkit. Now, as the new Administration finishes filling out the OSHA leadership team with its own appointees, we are sure to see shifting of enforcement priorities, budgets and policies, and an amplified effort to repeal or re-interpret controversial Obama-era OSHA rules and policies. Accordingly, it is critical to stay abreast of OSHA developments.
Conn Maciel Carey’s complimentary 2018 OSHA Webinar Series, presented by the firm’s national OSHA Practice Group, is designed to give employers insight into changes and developments at OSHA during this period of flux.
The Trump Administration submitted a blueprint budget for 2018 to Congress proposing $2.5 Billion in cuts to the U.S. Department of Labor’s (“DOL”) operating budget. The President’s proposed budget expressly calls for reduced funding for grant programs, job training programs for seniors and disadvantaged youth, and support for international labor efforts. It also proposes to entirely defund and eliminate the U.S. Chemical Safety and Hazard Investigation Board (“CSB”) – an independent, federal, non-enforcement agency that investigates chemical accidents at fixed facilities. The budget plan also purports to shift more funding responsibility to the states with labor related programs. Finally, although less explicit, the budget blueprint appears to deliver on promises from Trump’s campaign trail that rulemaking and regulatory enforcement efforts under the myriad laws and regulations enforced by the sub-agencies, such as the Wage and Hour Division and OSHA would be slashed.
These proposed budget cuts at DOL and other agencies are all part of a plan to offset the White House’s intent to increase defense and security spending by $54 billion. Overall, Trump requested $1.065 Trillion in total discretionary spending, with $603 billion going to Defense.
The proposal would shrink DOL’s budget to $9.6 Billion – down 21% from the $12.2 Billion budget for 2017. Trump’s planned reductions announced on March 16, 2017 – while not really surprising in the context of his view toward federal spending on non-defense agencies – would have a seismic impact on DOL’s ability to carry out both policy initiatives under former President Obama as well as many of the Department’s longstanding programs.
The business community welcomes Trump’s effort to rein in what has been viewed as an intrusive, enforcement-heavy Labor Department, but we caution not to count chickens yet. These proposed cuts will undergo heavy scrutiny by Congress before any budget is finalized. The President’s spending plan is only the first step in months of negotiations between the White House and both houses (and parties) in Congress. Pres. Trump will put forward a more detailed spending proposal in May, and various legislative committees will scrutinize his requests, calling on Cabinet Secretaries, Agency Heads, and others in the Administration to testify about or otherwise explain their spending needs and requests.
Key Takeaways from Trump’s Budget Blueprint
While the administration provided estimates for some of the proposed cuts, it did not specify where the majority of the budget cuts would come from. What we do know is that the proposed budget would Continue reading →
Texas District Court Enjoins the Administration from Enforcing the Federal Government Contractor “Blacklisting” Provisions of the Federal Acquisition Regulatory Council’s New Final “Fair Pay and Safe Workplaces” Rule.
On August 25, 2016, the Obama Administration, through the Federal Acquisition Regulatory (FAR) Council and in conjunction with the U.S. Department of Labor, promulgated the final Fair Pay and Safe Workplaces regulation and parallel guidance from the Labor Department, which collectively federal contractors have unaffectionately dubbed the “Blacklisting Rule.” The cornerstone provisions of the final rule establish expansive new reporting obligations for contractors bidding on executive branch contracts with an estimated value exceeding $500,000. These contractors, along with subcontractors whose portions of the overall contract meet the $500,000 threshold contract value, must disclose all confirmed and alleged violations issued under 14 labor laws, including alleged OSHA citations, within the three years prior to a prospective contractor’s bid submission, regardless of the status of the citation or whether the citation has yet been upheld in a judicial or administrative review process afforded employers. To be clear, under the final rule, all OSHA citations must be reported, even minor paperwork citations characterized as “OTS” (“other-than-serious”).
The final rule change the manner in which the rule applies to subcontractors. Unlike the proposed rule, the final rule requires covered subcontractors to disclose violations directly to the Department of Labor, which will conduct a “responsibility determination” and return it to the subcontractor, who in turn will then be required to deliver it to the prime contractor. The final rule also pushed back the mandatory disclosure date for subcontractors to October 25, 2017, a year after the disclosure requirements were set to begin for prime contractors.
The disclosure requirements for all contractors apply equally to related state labor laws, which sweeps in all citations issued under the 27 federal OSHA-approved state OSH programs administered by state occupational safety and health agencies such as CAL/OSHA. Whichever contractor is awarded a covered contract must also disclose any old and new OSHA or other alleged labor law violation (referred to in the regulation as “administrative merits determinations”) during regular, bi-annual reports throughout the life of the contract.
Rule Challenged and Preliminary Injunction Granted
Barely before contractors had time to read the regulation and attendant DOL guidance, however, and prior to its first effective date of October 25th, a group of industry trade associations filed a legal challenge in a Texas federal district court to the rule and requested the court grant emergency relief by Continue reading →
On June 30, 2016, President Obama signed into law the FOIA Improvement Act of 2016, Pub. L. No. 114-185, which made significant changes to the Freedom of Information Act, 5 U.S.C. § 552, et seq. (“FOIA”). FOIA can be a great tool for unlocking the federal government’s vast compilations of documents and information, which make it a great resource for business intelligence. But you also should be aware of FOIA’s pitfalls, including how your own business’s confidential documents and information can be disclosed to the public, including the media, if the federal government has them in its possession and they become subject to a FOIA request.
FOIA was enacted in 1966 and allows any member of the public to request access to government information without requiring a showing of a need or reason for seeking the information. FOIA was a revision of the Administrative Procedure Act, 5 U.S.C. § 551, et seq. (“APA”). Congress saw that the APA was falling short of its original disclosure goals and that the original law came to be viewed more as a withholding statute than a disclosure statute. See EPA v. Mink, 410 U.S. 73, 79 (1973). Congress’s intent in enacting FOIA was to make the government’s records and activities available and transparent to the public with only a handful of express exemptions that the government could invoke to withhold documents and information from disclosure. Generally the exemptions prevent disclosure of information related to national security, law enforcement investigations, government personnel rules and practices, specific exemptions from other statutes, and trade secret, commercial, or financial information obtained from third parties such as individuals and businesses.
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.
These orders vary in their scope in the restricted activities and affected industries but they typically address: (1) the continued operations of critical businesses; (2) restrictions on non-essential businesses; (3) the activities individuals may continue to perform; and (4) other limitations on gatherings.
