Per our update last month, on December 8, 2022, OSHA delivered to the White House’s Office of Management and Budget (OMB) a proposed final rule for “Occupational Exposure to COVID-19 in Healthcare Settings.” On behalf of our Employers COVID-19 Prevention Coalition, we secured three stakeholder meetings with the Office of Information and Regulatory Affairs (OIRA) within OMB for the three industry segments in the coalition most likely to be affected by the rule:
Construction / Maintenance: Tuesday, January 3rd
Retailers / Retail Pharmacies: Wednesday, January 4th
Manufacturers w/ Medical Clinics: Thursday, January 5th
Below is a report out from those meetings with OIRA and a discussion about what we think is going to happen next and when.
The meetings were hosted by a Deputy Branch Chief at OIRA with participation by representatives from OMB/OIRA, DOL, DOL’s Office of the Solicitor, SBA’s Office of Advocacy, as well as OSHA’s Directorate of Standards and Guidance, Office of Engineering Safety, Office of Physical Hazards, Office of Chemical Hazards, and Office of Regulatory Analysis.
On behalf of our Employers COVID-19 Prevention Coalition, we had representatives from the National Electrical Contractors Association (NECA) for the Construction / Maintenance industry segment, the Retail Industry Leaders Association and the National Association of Chain Drug Stores for the Retail Pharmacy industry segment, and the American Chemistry Council for Manufacturers with On-site Medical Clinics.
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.
We were beginning to think that OSHA had abandoned the rulemaking for a permanent COVID-19 Standard for Healthcare. But we now have some significant news to share. Last week, on December 8th, the Office of Management and Budget (OMB) updated its website to reflect that it officially has OSHA’s “Occupational Exposure to COVID-19 in Healthcare Settings” Standard “under review.”
The website reflects that OMB received the proposed final rule from OSHA on December 7th. Here is a link to the page for this rulemaking and below is all the relevant information reflected on OMB’s website: Continue reading →
Thankfully, it has been quite a while since there has been a material update to discuss on the COVID-19 front. Except for those of you in the healthcare space, things continue to be pretty quiet at OSHA on that front, but as I am sure you all have seen, a week ago, on August 11th, the CDC updated some of its COVID-19 guidance in a way that probably affects many employers’ COVID-19 protocols.
“with so many tools available to use for reducing COVID-19 severity, there is significantly less risk of severe illness, hospitalization and death compared to earlier in the pandemic.”
However, how the new guidance maps to workplaces is not a simple analysis. As has been the case throughout the pandemic, trying to apply CDC’s guidance to general industry workplaces, when it is actually written for the general public or for specific sectors (most often public health agencies and healthcare) is not always intuitive, and often leads to conflicting and impossible outcomes. Of course, that’s where OSHA is supposed to come in; i.e., to take CDC’s general guidance and explain for employers how it should apply in private industry workplaces. But OSHA has not kept up with its duty in that regard. Indeed, despite promises for more than five months that updated COVID-19 guidance was coming “soon,” OSHA has not chimed in about how it expects employers to map CDC’s general public guidance to the workplace since before the Delta variant struck. So with that vacuum, here is our best take on the CDC’s updated guidance.
It’s been a while since our last update about OSHA’s rulemaking for the permanent COVID-19 rule for healthcare, which is very good news. It was always a possibility that by the time OSHA got around to finalizing and issuing its permanent COVID-19 regulation that the pandemic would be in such a state that it would not make any practical, health, or political sense to actually issue the rule. But that does not appear to be OSHA’s thinking right now, or the thinking of the DC Circuit and the nurses unions that continue to push OSHA to finalize the rule.
According to a sworn statement by Assistant Secretary of Labor for OSHA Doug Parker on July 25, 2022, OSHA remains “on track” to complete its long-term COVID-19 safety healthcare standard in September to October of 2022. This is consistent with OSHA’s January 2022 statement that it intended to develop a permanent COVID-19 standard for healthcare workers within six to nine months.
Assistant Secretary Parker’s statement appears to be a reaction to inconsistent testimony from Secretary of Labor Marty Walsh before the Senate Appropriations Committee on June 15, 2022. There, Secretary Walsh testified that OSHA would finalize the standard in three to six months, which sounded like a shift in OSHA’s target issuance date to later in the year or even next year. Continue reading →
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.
Although it has only been 10 days since OSHA delivered a proposed COVID-19 Vaccination and Testing emergency temporary standard (ETS) to the White House’s Office of Management and Budget (OMB), a lot has happened. We have seen bizarre attempts by groups of individuals to try to muck up the OMB review process. The US Department of Labor sent letters to certain states informing them that federal OSHA is considering revoking their approved status to operate their State OSH Plans. And, President Biden’s nominee to Head OSHA, Doug Parker, is scheduled to be confirmed early next week. Here is a summary of what we’ve been seeing and where we are now.
When Will the Vaccination and Testing ETS be Issued?
The stakeholder input process at OMB’s Office of Information and Regulatory Affairs (OIRA) is well underway. OMB’s website reflecting the schedule of Executive Order 12866 meetings is normally only updated once per day, making it hard to nail down when OMB intends to conclude its review of the proposed ETS. As of the end of last week, we heard that OMB might conclude its review process as early as last Friday, October 12th, but every day, OMB’s website updated to include more and more stakeholder meetings. As of this morning (Friday, October 22nd), the OMB website updated again, and it did add some new scheduled OIRA EO 12866 stakeholder meetings (now up to 68 meetings), but all of the new meetings have been scheduled to be completed today by 3 PM.
It is beginning to look to us like OMB will have “completed” its review of the ETS by the end of the day today, so at this point, we think OSHA could release the pre-publication package revealing the regulatory text and the preamble of the final ETS, as early as the close of business today.
On Sept. 9th, Pres. Biden revealed a new COVID-19 Action Plan with one of several key goals to “Vaccinate the Unvaccinated.” The most notable aspect of that plan is a directive to federal OSHA to develop a 2nd COVID-19 Emergency Temporary Standard requiring all but small employers in all industries to implement “soft” vaccine mandates; i.e., require employees to either be fully vaccinated or get weekly testing. The President also directed OSHA to include in this new ETS a requirement that employers provide paid time for employees to get vaccinated and recover from ill effects of the vaccine. Separately, the President issued Executive Orders setting “hard” vaccine mandates for federal contractors and healthcare workers.
The President’s announcement was lean on details, and prompted as many questions as it answered. Join the attorneys from CMC’s OSHA and Employment Law practices to talk through our take on the burning questions raised by this latest development on the COVID-19 front: Continue reading →
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.
Today’s topic on the Fed OSHA COVID-19 ETS is face masks, respiratory protection, and other personal protective equipment (“PPE”)…what is required and when.
29 C.F.R. Section 1910.502(f) of the ETS establishes the personal protective equipment (“PPE”), including respiratory protection, requirements that must be implemented at covered facilities. This summary describes these requirements.
Face Masks
The standard does not mandate that all employees wear N95 or other higher-level respiratory protection at all times. Rather, it allows employees who work at covered facilities but do not have exposures to suspected or confirmed COVID-19 persons to wear face masks, defined as “surgical, medical procedure, dental, or isolation mask[s] that [are] FDA-cleared, authorized by an FDA EUA, or offered or distributed as described in an FDA enforcement policy.” Face masks must be worn on all employees indoors or when in a vehicle with another person (for work purposes). The face masks must be provided at no cost to the employee, and the employer must ensure that employees change their masks at least once per day (or when they are soiled, damaged or for other patient-care related reasons).
Certain exceptions to the requirement to wear face masks are allowed under the ETS, including when employees:
Are alone in a room
Are eating or drinking (and remain 6 feet from others or are separated by a physical barrier)
Have a medical condition, disability or religious beliefs that prevents use
Would risk serious injury or death by their use (in other words, where mask use poses a greater hazard)
Need to see another’s mouth when communicating (e.g., deaf employees)
In the above situations (except when alone or eating/drinking), the employer must ensure that employees are provided with and use Continue reading →
Today’s topic is cleaning and disinfecting…when cleaning/disinfecting is required and what needs to be cleaned/disinfected.
29 C.F.R. Section 502(j) of the ETS establishes the cleaning and disinfecting requirements that must be implemented at covered facilities. This summary describes these requirements.
In patient care areas, resident rooms, and for medical devices and equipment, the employer must follow standard practices for cleaning and disinfection of surfaces and equipment in accordance with CDC’s “COVID-19 Infection Prevention and Control Recommendations” and CDC’s “Guidelines for Environmental Infection Control,” both of which the ETS incorporates by reference. Under the ETS and CDC Guidance, cleaning refers to removal of dirt and germs using soap and water or other cleaning agents while disinfecting means using an EPA-registered, hospital-grade disinfectant included on EPA’s “List N” in accordance with manufacturers’ instructions.
Most healthcare settings have been following this CDC Guidance throughout the pandemic, so OSHA’s incorporation of these requirements into the ETS likely requires nothing new to be done when cleaning and disinfecting. Some of the more fundamental requirements Continue reading →
Today’s topic is physical distancing…when distancing is required and ways to maintain distance.
29 C.F.R. Section 1910.502(h) establishes the requirements employers covered by the ETS must follow regarding physical distancing. Employers must ensure that each employee is separated from all other people by at least 6 feet when indoors, unless the employer can demonstrate that it is not feasible to remain distant to accomplish a specific activity (e.g., hands-on medical care). This summary describes the physical distancing requirements of the ETS.
To determine when and where physical distancing is necessary in the workplace, employers must rely on the results of their hazard assessments. Places and times where people may congregate or come in contact with one another must be identified and addressed, regardless of whether employees are performing an assigned work task or not. For instance, it is typical that employees congregate during meetings or training sessions, as well as in and around entrances, bathrooms, hallways, aisles, walkways, elevators, breakrooms or eating areas, and waiting areas. All of these areas must be identified and addressed as part of the hazard assessment.
After identifying potential areas where employees may congregate and therefore where concern regarding workplace exposure is heightened, employers must develop and implement policies and procedures to comply with the 6 feet physical distancing requirements.
The ETS establishes several exceptions to the physical distancing requirements of the standard. Physical distancing is not required for employees who are fully vaccinated when those employees are in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present. (Face masking and physical barriers also are not required in this situation.)
The physical distancing requirement also does not apply Continue reading →
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.
Today’s topic is physical barriers…what has to be installed and where they have to be installed.
29 C.F.R. Section 1910.502(i) of the ETS establishes a requirement for physical barriers to be installed under certain circumstances. Solid barriers must be installed at each fixed work location outside of direct patient care areas where an employee is not separated from all other people by at least 6 feet of distance, except where the employer can demonstrate it is not feasible to do so or where the exception for vaccinated employees applies. This summary describes the standard’s requirements for physical barriers.
Where barriers are required, they must be of sufficient height and width and situated in a manner to block face-to-face pathways between individuals based on where each person would normally stand or sit. They must either be easily cleanable or disposable. While the ETS does not specify the type of material that must be used for physical barriers, OSHA explains in the preamble that the material must be impermeable to infectious droplets that are transmitted when an infected individual is sneezing, coughing, breathing, talking, or yelling – such as plastic or acrylic partitions. The barriers must be designed, constructed, and installed to prevent droplets from reaching employees when they are in their normal sitting or standing location relative to the workstation. OSHA recognizes that effective design and installation of physical barriers will differ among workplaces based on job tasks, work processes, potential users, and the physical layout of the work area.
In terms of where barriers need to be installed and where they don’t, the ETS Continue reading →
Many of you are likely knee-deep in ensuring that your facilities are in compliance with the various components of OSHA’s new Emergency Temporary Standard, with the July 6th compliance deadline upon us. Our CMC COVID-19 Taskforce has reviewed all 1,000+ pages of OSHA’s ETS and supporting documentation and has as good an understanding of what is required as one can have – although OSHA has left some big question marks and caused a fair amount of head scratching in some areas. To help you understand precisely what is required of your covered facilities, and to assist with compliance implementation, we have prepared summaries of the major requirements of the ETS. Look for our summaries here each day over the next week. The devil is in the details, however, so please reach out if you would like a more nuanced understanding of how the standard applies to your particular facility and what steps you need to take to ensure you are in compliance – and avoid an enforcement action under OSHA’s COVID-19 National Emphasis Program.
Here is a summary of the ETS requirements for reporting:
Reporting
29 C.F.R. Section 1910.502(r) revises the fatality and hospitalization reporting requirements for COVID-19 cases. This summary describes the new reporting requirements.
For fatalities, covered employers must report all work-related COVID-19 fatalities within 8 hours of learning of the reportable fatality. Unlike the requirement to report work-related fatalities under the existing injury and illness reporting standard (29 C.F.R. Section 1904.39), the reporting obligation is not limited to fatalities that occur within 30 days of exposure.
This means if these two factors are present, the case is reportable:
The employee died from a confirmed case of COVID-19; and
The cause of death was a work-related exposure to COVID-19.
For hospitalizations, covered employers must report all work-related COVID-19 in-patient hospitalization within 24 hours of learning of the reportable in-patient hospitalization. Similar to fatalities, OSHA did not include in the COVID-19 reporting standard the temporal boundary included in the existing Section 1904.39 reporting standard. Continue reading →
Many of you are likely knee-deep in ensuring that your facilities are in compliance with the various components of OSHA’s new Emergency Temporary Standard, with the July 6th compliance deadline upon us. Our CMC COVID-19 Taskforce has reviewed all 1,000+ pages of OSHA’s ETS and supporting documentation and has as good an understanding of what is required as one can have – although OSHA has left some big question marks and caused a fair amount of head scratching in some areas. To help you understand precisely what is required of your covered facilities, and to assist with compliance implementation, we have prepared summaries of the major requirements of the ETS. Look for our summaries here each day over the next week. The devil is in the details, however, so please reach out if you would like a more nuanced understanding of how the standard applies to your particular facility and what steps you need to take to ensure you are in compliance – and avoid an enforcement action under OSHA’s COVID-19 National Emphasis Program.
Here is a summary of the ETS requirements for recordkeeping:
Recordkeeping
29 C.F.R. Section 1910.502(q) establishes a new recordkeeping obligation applicable to covered employers requiring the creation and maintenance of a dedicated COVID-19 Log, while leaving in place the existing requirements applicable to all employers (including employers covered by the ETS) to record workplace COVID-19 cases that meet the Section 1904 recordkeeping criteria threshold (days away from work, etc.) on the employer’s OSHA 300 Log. It also establishes recordkeeping obligations for the COVID-19 Plan that is required by Section 1910.502(c) of the ETS. This summary describes the new requirements for COVID-19 recordkeeping.
The ETS requires covered employers — unless they have 10 or fewer employees in the entire company — to create, maintain, and make available to regulators COVID-19 records. Most notably, this requires covered employers to maintain a COVID-19 Log on which they must record every instance of a COVID-19-positive employee, whether or not the illness is work-related¸ with the limited exception of employees who exclusively telework. Unlike an OSHA 300 Log, for which employers have seven days to record an injury or illness, positive COVID-19 cases must be recorded on the COVID-19 Log within 24 hours of learning of the positive diagnosis. (Note that the 10 or fewer employee exemption applies to the new COVID-19 Log recordkeeping obligations only and not to a covered employer’s obligation to report work-related COVID-19 fatality or in-patient hospitalizations.) Continue reading →
Many of you are likely knee-deep in ensuring that your facilities are in compliance with the various components of OSHA’s new Emergency Temporary Standard, with the July 6th compliance deadline nearly upon us. Our CMC COVID-19 Taskforce has reviewed all 1,000+ pages of OSHA’s ETS and supporting documentation and has as good an understanding of what is required as one can have – although OSHA has left some big question marks and caused a fair amount of head scratching in some areas. To help you understand precisely what is required of your covered facilities, and to assist with compliance implementation, we have prepared summaries of the major requirements of the ETS. Look for our summaries here each day over the next week. The devil is in the details, however, so please reach out if you would like a more nuanced understanding of how the standard applies to your particular facility and what steps you need to take to ensure you are in compliance – and avoid an enforcement action under OSHA’s COVID-19 National Emphasis Program.
One of the first steps employers must take is to conduct a hazard assessment of your operations to determine those areas where risk of virus transmission exists, and to then develop a response plan for dealing with those risks. The hazard assessment findings and your plans for transmission mitigation must be incorporated into a written COVID-19 Plan. Here is a summary of the ETS requirements for conducting the hazard assessment and preparing a written plan:
29 C.F.R. Section 1910.502(c) requires all employers covered by the ETS to develop and implement a COVID-19 Plan for each workplace. If the employer has more than 10 employees, the Plan must be written. This summary describes the requirements associated with the COVID-19 Plan.
Before developing the Plan, employers must conduct a workplace specific hazard assessment for the purpose of identifying and understanding where potential COVID-19 hazards exist and what controls must be implemented to reduce those hazards. Employers must inspect the entire workplace and the hazard assessment should: Continue reading →
On June 10th, federal OSHA finally revealed its much anticipated COVID-19 Emergency Temporary Standard (ETS), but rather than a rule applicable to all industries, OSHA developed a regulation that is narrowly tailored only to certain healthcare settings. For everyone else, federal OSHA simultaneously published significant updates to its workplace COVID-19 guidance that it had originally prepared in Jan. 2021 in response to President Biden’s Day 1 OSHA Executive Order.
The COVID-19 ETS, and its 900+ page Preamble, is a dizzying piece of regulation. While there are lots of generalizations about how it applies only to hospital settings, there are quirks in the Applicability section that could sweep in other employers, including on-site medical clinics at manufacturing plants, COVID-19 testing facilities in otherwise non-healthcare workplaces, and general facilities support at healthcare locations, such as maintenance, housekeeping, and laundry services. And in terms of substantive provisions, the ETS does depart from the COVID-19 landscape we have all grown accustomed to over the past year and a half – the ETS requires creation of new roles, will likely require updates to written prevention plans and training, may require new engineering installations and work on HVAC systems, and will definitely affect record making, recordkeeping, and reporting policies.
The updated guidance for all other industries will also likely result in material changes to the way employers are managing the COVID-19 crisis in the workplace. However, those will be mostly welcome changes, as, at its core, OSHA’s updated guidance aligns OSHA’s recommendations with the CDC’s May guidance regarding dropping masks and distancing for fully vaccinated workers. But the devil is in the details.
Nearly 16 months after the pandemic began, federal OSHA revealed its COVID-19 Emergency Temporary Standard (the ETS) that imposes a series of requirements on healthcare employers. While OSHA’s issuance of an ETS comes as no surprise to many who have been tracking the agency since Pres. Biden’s inauguration, the fact that it applies only to the healthcare sector and not to all industries is not what we expected. Looking back, the promulgation of an ETS applicable to all workplaces seemed a foregone conclusion when President Biden took office in January and issued an Executive Order that same day directing OSHA to update its COVID-19 guidance, adopt a COVID-19 National Emphasis Program, evaluate whether an ETS was necessary and, if so, issue the ETS on or before March 15, 2021.
On April 27, 2021, OSHA delivered to the White House Office of Management and Budget (OMB) an ETS, which, by all accounts, was a broad rule applicable to all industries, but because this was an emergency rulemaking, the proposed regulatory text was not available to the public. In the weeks that followed, the Office of Information and Regulatory Affairs (OIRA), within OMB, hosted a series of meetings to hear from stakeholders regarding a proposed rule they had not seen. On behalf of the Employers COVID-19 Prevention Coalition, Conn Maciel Carey organized and led two OIRA meetings at which we and our coalition members provided input and recommendations to OSHA and OMB. As the meetings continued, the success of the vaccine rollout became clearer, with a corresponding drop in COVID-19 cases, hospitalizations, and deaths, and then came the Centers for Disease Control (“CDC”) game-changing guidance on May 13, 2021 relaxing protocols for vaccinated individuals. All of this caused many to question whether an OSHA ETS was still necessary. With conditions on the ground improving rapidly, we continued to help stakeholder schedule and participate in OIRA meetings to argue that a general industry ETS was no longer needed.
On June 10, 2011, after more than 50 OIRA meetings, a final ETS applicable only to the healthcare industry was sent to the Office of the Federal Register for publication. The standard appears at 29 C.F.R. Section 1910.502, and will appear in the Federal Register within a couple of weeks.
Explaining the purpose of the ETS for Healthcare, U.S. Secretary of Labor Marty Walsh offered this statement: Continue reading →
By now you have likely heard the big news that yesterday, May 13th, the CDC updated guidance related to masks and physical distancing for individuals who are fully vaccinated (i.e., two weeks after receiving a single-dose vaccine or after the second dose in a two-dose series). Specifically, in its updated guidance — “Interim Public Health Recommendations for Fully Vaccinated People” — the CDC now says fully vaccinated individuals may resume essentially all indoor and outdoor pre-pandemic activities in almost all circumstances. As of now, there is no outside limit to one’s status as fully vaccinated.
In a public video released just before the CDC posted its updated written guidance, CDC Director Dr. Walensky shared that “based on data about vaccine effectiveness and the low risk of transmission to others, and universal access to vaccines today, the CDC is updating our guidance for fully vaccinated individuals. Anyone who is fully vaccinated can participate in indoor and outdoor activities—large or small—without wearing a mask or physical distancing.” Even in the case of “breakthrough” infections, Dr. Walensky acknowledged that there is likely low risk of transmission to others. Dr. Walensky cautioned that “over the past year, we saw how unpredictable this virus can be, so we may have to change these recommendations if things get worse.”
What Does This Mean For Workplaces?
The question everyone is asking is whether this updated guidance applies to employees and workplaces. The best answer we can give now is that the guidance does technically apply to workplaces, but there is a significant exception relative to workplaces built into the new guidance that swallows most of the relief it purports to provide, at least for now in many jurisdictions. Here’s our analysis about why this new guidance does apply to workplaces, but how geographically limited the relief is for the time being. Continue reading →
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.
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Not to be outdone by Virginia OSHA, Oregon OSHA, or Michigan OSHA, Cal/OSHA is on the precipice of issuing an onerous COVID-19 specific regulation that is expected to be issued, with all provisions immediately effective, next week. Below is detailed summary of how we got here, as well as an outline of what the California rule will require.
On November 19, 2020, the California’s Occupational Safety and Health Standards Board (“Board”) voted unanimously to adopt an Emergency COVID-19 Prevention Rule following a contentious public hearing with over 500 participants in attendance (albeit virtually). The Emergency Rule has been presented to California’s Office of Administrative Law (“OAL”) for approval and publication. OAL has ten days to approve the Rule; if approved, the Rule will become immediately effective, likely next Monday, November 30th. The Rule brings with it a combination of requirements overlapping with and duplicative of already-existing state and county requirements applicable to employers, as well as a number of new and, in some cases, very burdensome, compliance obligations.
The Board’s emergency rulemaking was triggered last May with the submission of a Petition for an emergency rulemaking filed by worker advocacy group WorkSafe and National Lawyers’ Guild, Labor & Employment Committee. The Petition requested the Board amend Title 8 standards to create two new regulations – the first, a temporary emergency standard that would provide specific protections to California employees who may experience exposure to COVID-19, but who are not already covered by Cal/OSHA’s existing Aerosol Transmissible Diseases standard (section 5199, which applies generally to healthcare employers); and the second, a regular rulemaking for a permanent infectious diseases standard, including novel pathogens such as SARS-CoV-2. Note that emergency rulemakings are rare and must meet a very high threshold designed to allow this abbreviated process; only when a true emergency necessitates this process. Here is a very simplified flowchart of the emergency standards rulemaking process.
Interestingly, the Standard Board’s staff found that a new COVID-19 rule was unnecessary because much of the proposed requirements recommended by WorkSafe’s Petition are already addressed under Cal/OSHA’s Injury and Illness Prevention Program Standard (“IIPP”), and therefore, recommended that the Petition be denied. DOSH staff, however, recommended that the Petition be approved, finding that an emergency regulation is warranted by the COVID-19 public health crisis and that the agency’s enforcement efforts would benefit from a specific regulatory mandate related to COVID-19.
On September 17th, the Standards Board accepted DOSH’s recommendation, finding that Continue reading →
With the availability of a safe, effective COVID-19 vaccine edging closer and closer, employers understandably have a number of questions regarding their role in the workplace – whether and when they can require a vaccination, what exceptions are required in a mandatory vaccination program, and whether they should require (as opposed to encourage and facilitate) the COVID-19 vaccine for employees once it becomes available.
This summer, the World Health Organization reported that nearly 200 potential vaccines were currently being developed in labs across the world, and as of mid-October, disclosed that more than 40 had advanced to clinical stage testing on humans. Drug manufacturers estimate that a vaccine will be ready and approved for general use by the end of this year, although logistically not ready for widespread distribution until mid-2021.
Indeed, just over the past couple of weeks, Pfizer and Moderna have made promising announcements regarding the results of their clinical trials. Namely, on Monday, November 9, 2020, Pfizer and BioNTech announced that a vaccine candidate against COVID-19 achieved success in the firm interim analysis from the Phase 3 study. The vaccine candidate was found to be more than 90% effective in preventing COVID-19 in participants without evidence of prior SARS-CoV-2 infection in the first interim efficacy analysis. According to the announcement, submission for Emergency Use Authorization (EUA) to the U.S. Food and Drug Administration (FDA) is planned for soon after the required safety milestone is achieved, which is currently expected to occur this week. Additionally, as reported by the National Institutes of Health (NIH) on November 16, 2020, there have been promising interim results from a clinical trial of a NIH-Moderna COVID-19 vaccine. An independent data and safety monitoring board (DSMB) reported that the vaccine candidate was safe and well-tolerated and noted a vaccine efficacy rate of 94.5%.
As the reality of a vaccination nears, employers are inquiring whether they can and should mandate the vaccine for their employees.
Can Employers Require Employees to Take the COVID-19 Vaccine?
As a threshold matter, it should be noted that according to a member of the federal advisory panel on immunizations that will be making recommendations to the CDC on who should get the first doses, vaccines authorized under the FDA’s emergency use authority, as these COVID-19 vaccinations will be at the start, cannot be mandated. Any COVID-19 vaccine brought to market under an EUA instead of the normal non-emergency approval process will, by necessity, lack long term safety data.
In general though, outside the context of EUA vaccine, employers can require vaccination as a term and condition of employment, but such practice is not without limitations, nor is it always recommended. Although the issue is only now coming to the forefront because of COVID-19, mandatory vaccinations in the workplace are not new, and have been particularly prevalent among healthcare providers for decades. Some variability exists under federal law and among federal agencies, but for the most part, mandatory vaccination programs are permissible, as long as employers consider religious accommodation requests under Title VII of the Civil Rights Act of 1964 (Title VII) and medical accommodation requests under the Americans with Disabilities Act (ADA). Continue reading →
Earlier this week, on Monday, November 9, 2020, Oregon OSHA released its final COVID-19 Emergency Temporary Standard (the “OR ETS”) after several delays. Employers will have to act quickly to come into compliance, as the ETS goes into effect November 16th, with a series of major deadlines coming due in early December.
The ETS includes one set of mandates for all workplaces and another set for what it defines as “workplaces of exceptional risk” — namely those that include job duties related to direct patient care, aerosol-generating or post-mortem procedures, in-home care and/or direct client service in residential care or assisted living facilities. The OR ETS also includes an appendix with “mandatory guidance” for 19 specific industries and/or workplace activities, including:
restaurants and bars;
retail;
construction;
veterinary clinics; and
entertainment facilities.
Explaining the need for an emergency rule, leadership at OR OSHA said this:
“The COVID-19 emergency has highlighted the risks that any infectious disease, particularly one that is airborne, can create for a wide variety of workplaces. As a result of both the immediate and long-term risks highlighted by the current public and occupational health crisis, Oregon OSHA is responding to the request that the state adopt an enforceable workplace health rule on an emergency basis this summer, to be replaced by a permanent rule.”
Oregon OSHA has plans to release materials on its website to support work on the risk assessment, the written exposure control plan, and the training activities required in the rule. Presently, there is a template exposure risk assessment form available. The agency also released a poster that employers must post in the workplace.
For the majority of employers, the OR ETS requires that they Continue reading →
On June 26, 2020, Oregon OSHA announced that in consultation with the Oregon Health Authority (OHA)/Public Health and other technical advisors, as well as affected stakeholders, it had begun to develop a pair of temporary COVID-19 workplace rules — one for healthcare and closely-related industries, and another for general workplaces. The target effective date for those temporary rules is September 1, 2020, with the rules to remain in effect through at least February 2021. In parallel, Oregon will also begin work on permanent rules addressing airborne infectious disease control through the state’s normal rulemaking process.
The technical advisory group meetings and external stakeholder meetings are already taking place and are expected to be completed over the next two weeks.
Even though the emergency temporary standards will not go through the typical, more formal rulemaking process, there are still opportunities for employers to influence:
the scope of the rules;
the substantive requirements of the rules; and/or
how their workplaces will be characterized (i.e., as healthcare or general industry).
Participation in the stakeholder meetings and the submission of comments could make
a significant impact on the nature of the burdens placed on Oregon employers through the remainder of the pandemic.
