Employment Law Implications of the OSHA ETS: Paying for COVID-19 Testing

By Conn Maciel Carey’s COVID-19 Taskforce

As the OSHA COVID-19 Vaccination and Testing emergency temporary standard (“ETS”) works its way through the courts in pending legal challenges, employers are still scrambling to position themselves in the event the ETS goes back into effect.  (Review our Employer Defense Report and OSHA Defense Report for full background on the ETS and the most recent updates on its current status.)  A key issue to consider is the cost of testing.

Background

Should the ETS go back into effect, employers with 100 or more employees must implement a program to facilitate (1) a COVID-19 vaccination requirement for all employees (known as a “hard mandate”) or (2) a combination of a COVID-19 vaccination requirement and weekly testing, plus face covering requirement, for those employees who choose not to get vaccinated (known as a “soft mandate”).  Under this soft-vaccine mandate, an employee may only report to the workplace after demonstrating either: proof of being fully vaccinated; or for employees who do not get vaccinated or decline to share their vaccination status, proof of a negative COVID-19 test result from within the last week.  Employees who are not fully vaccinated must also wear face coverings when indoors and when occupying a vehicle with another person for work purposes.

Under the ETS, a COVID-19 test must be: Continue reading

Coalition to Work on OSHA’s Heat Illness Prevention Rulemaking

By Eric J. Conn, Chair of Conn Maciel Carey LLP’s National OSHA Practice

While we and employers across the nation have been focused on OSHA’s issuance of its second COVID-19 emergency temporary standard in six months, earlier this month, OSHA published in the Federal Register an Advanced Notice of Proposed Rulemaking initiating a new formal rulemaking focused onHeat Injury and Illness Prevention in Outdoor and Indoor Work Settings” (the ANPRM).  The ANPRM provided this summary of OSHA’s action:

“OSHA is initiating rulemaking to protect indoor and outdoor workers from hazardous heat and is interested in obtaining additional information about the extent and nature of hazardous heat in the workplace and the nature and effectiveness of interventions and controls used to prevent heat-related injury and illness. This ANPRM provides an overview of the problem of heat stress in the workplace and of measures that have been taken to prevent it. This ANPRM also seeks information on issues that OSHA can consider in developing the standard, including the scope of the standard and the types of controls that might be required.”

And while everyone still has most of our focus on OSHA’s Vaccination, Testing, and Face Coverings emergency temporary standard, it is critical that those industries and employers potentially impacted by an OSHA heat illness regulation focus on this important active agency rulemaking.  In fact, long after COVID-19 is a just bad memory in the rearview mirror, a heat illness standard will have lasting and potentially enormous impacts on your organization.

To that end, Conn Maciel Carey LLP is organizing a new fee-based coalition of employers and trade groups to participate in OSHA’s Indoor and Outdoor Heat Illness Rulemaking with a goal of helping to shape any heat standard that OSHA ultimately promulgates in such a way that the rule is palatable to Industry. Continue reading

Update on Challenges to Federal Contractor Mandate

By Fern Fleischer-Daves

While we remain focused on the legal challenges now consolidated at the Sixth Circuit Court of Appeals, quite a lot has been going on with regard to the Federal Contractor Mandate which is facing its own set of challenges.

Did you recently receive a request to amend an existing federal contract? 

If so, you are not alone!  Over the past few weeks, federal administrative agencies have been busy sending emails to tens of thousands of federal contractors seeking to amend existing federal contracts by implementing a COVID-19 vaccination mandate pursuant to guidance issued by the Safer Federal Workforce Taskforce.  These efforts are now being tracked through a new online interactive dashboard reflecting whether or not the 17,000+ contracts currently administered by GSA have been amended.  The contracts in this publicly accessible database are classified as  “Accepted”, “Closed/Cancelled”, or “Pending.”  Meanwhile, federal agency contracting officers are being strongly encouraged to check this database before placing new orders.

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Needless to say, there are potentially serious consequences for a current federal contractor who fails to respond or declines to accept the vaccination mandate.  GSA has warned that company names flagged as “Closed/Cancelled” in this database may be removed or hidden in other federal contracting tools which will make it difficult if not impossible to get any new orders on existing contracts. Recent solicitations for new federal contracts have the clause implementing EO 14042 already included in the terms and conditions.

Employees of federal contractors challenge EO 14042

While several cases have been filed to challenge the President’s authority to mandate vaccinations for federal employees and/or contractors, so far, none have secured a stay of EO 14042.

In Altschuld v. Raimondo, employees of more than a dozen different federal agencies and two unnamed government contractors are challenging both Executive Orders 14042 and 14043.  Last week, Judge Chutkan in the DC Circuit Court held that plaintiffs failed to show irreparable harm, since they had all requested religious exemptions from the vaccination mandate, so they are not entitled to a preliminary injunction.  Explaining further, the Court noted that: Continue reading

30+ Challenges to OSHA’s Vaccination, Testing, and Face Coverings ETS Consolidated in the Sixth Circuit

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

Since OSHA published its Vaccinations, Testing, and Face Coverings ETS in the Federal Register 11 days ago, petitioners have filed more than 30 separate lawsuits challenging the legality of the ETS and moving to temporarily and then permanently enjoin implementation of the ETS. The petitioners across these nearly three dozen challenges include more than half the states in the US, numerous private employers, religious groups, the Republican National Committee, and some labor unions (presumably for strategic reasons – to give more liberal courts a chance to take the lead in hearing the litigation).

By judicial procedure, when a legal challenge to an OSHA standard is filed in more than one US Court of Appeals, the US Judicial Panel on Multi-District/Circuit Litigation will respond to a motion by either party in the challenge to consolidate all of the challenges that were filed within 10 days of issuance of the standard, and by way of a true lottery, will assign the consolidated cases to a single circuit court.

Yesterday marked the tenth day since the OSHA ETS was published in the Federal Register, so this morning, (November 16th), the Department of Labor gave notice to the MDL Panel of the numerous petitions for review of a single case filed in each of the 1st, 2nd, 3rd, 5th and 10th Circuits, two cases in each of the 4th and 7th Circuits, three cases in the 9th, 11th, and District of Columbia Circuits, four cases in the 8th Circuit, and five cases in the 6th Circuit.  For those keeping score at home, that’s at least one legal challenge filed in every US Court of Appeals in the country except for the Federal Circuit, which does not have jurisdiction to hear challenges to OSHA standards.  Regardless of the number of challenges filed in any given circuit court, each circuit had one chance in the lottery. Continue reading

[BREAKING] Fifth Circuit Orders a Stay of OSHA’s COVID-19 Vaccination, Testing, and Face Coverings ETS

By Conn Maciel Carey’s COVID-19 Task Force

Emphasizing that the extraordinary power afforded to OSHA under the emergency provisions of the OSH Act should be delicately exercised, the US Court of Appeals for the Fifth Circuit issued a 22-page opinion late yesterday, November 12th, reaffirming after briefing by both parties the Stay of OSHA’s COVID-19 Vaccination, Testing, and Face Coverings emergency temporary standard (ETS) that it had ordered on November 6th. The Fifth Circuit panel ordered that OSHA may take no further steps to implement or enforce its newly issued ETS until further court order, and thus may not require employees of covered employers to undergo COVID-19 vaccination, take weekly COVID-19 tests, or wear a mask.

Why Did the Fifth Circuit Stay OSHA’s ETS?

Notably, the Fifth Circuit commented in a footnote that debates over the Biden Administration’s vaccine mandate have “roiled the country throughout much of the Fall,” and that the ETS (referred to as “the Mandate” by the three-judge panel) “affects every person in America one way or another.”  Drawing from a variety of sources—including White House Chief of Staff Ronald Klain’s retweet of an MSNBC anchor’s tweet characterizing the ETS as a “workaround” for a federal vaccine mandate, the Court refused to accept the government’s arguments that a sufficient emergency exists justifying a second COVID-focused ETS in less than 6 months.  Indeed, the Court found that prior statements by the Administration “belie the notion that COVID-19 poses the kind of emergency that allows OSHA to take the extreme measure of an ETS.”  To that end, the Court seized on the fact that more than 78% of Americans aged 12 and older are either fully or partially vaccinated and thus face “little risk at all” according to the Administration.

While the November 12 opinion was issued after the Fifth Circuit conducted an “expedited” review, the Court leaves little doubt as to how it will likely rule Continue reading

Employment Law Implications of the OSHA ETS: Paid Time Off for Vaccination

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

OSHA’s COVID-19 Vaccination, Testing, and Face Coverings Emergency Temporary Standard [Webinar Recording]

On November 10, 2021, Eric Conn, Kate McMahon, and Lindsay DiSalvo presented a webinar regarding OSHA’s new COVID-19 vaccinate-or-test emergency rule.

In September, President 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 was a directive to federal OSHA to develop another COVID-19 Emergency Temporary Standard requiring many employers to implement a “soft” vaccine mandate; i.e., to require employees to either be fully vaccinated or submit to a weekly testing. The President also directed OSHA to include in this new ETS a requirement that employers provide paid time off for employees to get vaccinated and recover from any side effects of the vaccine.

OSHA moved quickly in response to the President’s directive, and published the final ETS in the Federal Register on November 5, 2021. During this webinar, the attorneys from CMC’s OSHA and Employment Law practices provided a detailed analysis of the rule and addressed these important questions raised by the latest development on the COVID-19 front:
Continue reading

[BREAKING] 5th Cir. Temporarily Stays OSHA’s COVID-19 Vaccination, Testing, and Face Coverings Emergency Rule

By Conn Maciel Carey’s COVID-19 Task Force

On Saturday, November 6th, a three-judge panel of the US Court of Appeals for the Fifth Circuit issued a Temporary Restraining Order (TRO) staying the effect of OSHA’s vaccination, testing, and face coverings emergency temporary standard (ETS) that it had promulgated just the day before.  The entirety of the court’s explanation for the stay Order was this:

“Because the petitions give cause to believe there are grave statutory
and constitutional issues with the Mandate, the Mandate is hereby STAYED
pending further action by this court.”

The suit challenging OSHA’s new vaccination, testing, and face coverings ETS was initiated on behalf of a group of private businesses and religious organizations, as well as several states, including Texas, Louisiana, South Carolina, Utah and Mississippi. The petitioners argued that OSHA overstepped its legal authority in issuing an emergency standard to address COVID-19 in US workplaces at this point in the pandemic. The petitioners assert that an emergency stay is necessary because these employers will face workforce shortages if unvaccinated employees quit their jobs in lieu of receiving a COVID-19 vaccination, and the ETS forces them to expend resources to develop and implement written compliance and reporting procedures beyond what the law authorizes under the circumstances.

Specifically, their objections to the OSHA ETS include: Continue reading

OSHA Issues Its COVID-19 Vaccination, Testing, and Face Coverings Emergency Temporary Standard

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

At long last, OSHA has revealed its COVID-19 Vaccination and Testing emergency regulation.  The Federal Register site has updated to show the pre-publication package, which is set to run officially in the Federal Register tomorrow, November 5th.  The 490-page package includes the Preamble and economic analysis of the regulation, as well as the regulatory text.  The regulatory text begins on PDF page 473.  Also here is a Fact Sheet about the ETS issued simultaneously by the White House.

We are extremely pleased to report that the rule aligns very well with positions for which CMC’s Employers COVID-19 Prevention Coalition advocated to OSHA and OMB on the most significant topics, like the responsibility for the cost of COVID-19 testing and a delayed implementation date, as well as very narrow record-preservation requirements, grandfathering of prior vaccine-verification efforts, and other elements. OSHA and the White House clearly listened to our views and the compelling rational we put forward for these positions, making the rule a much better, more effective and less burdensome one for employers.

Conn Maciel Carey’s COVID-19 Task Force will be conducting a webinar about the ETS on Wednesday, November 10th at 1:00 PM ET.  Here is a link to register for that program.

In the meantime, below is a detailed summary of the rule:

What is the stated purpose of the regulation?

The ETS is “intended to establish minimum vaccination, vaccination verification, face covering, and testing requirements to address the grave danger of COVID-19 in the workplace, and to preempt inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face covering, or testing, regardless of the number of employees.”

Who is covered?

As the president signaled in his announcement and action plan from September 9, the ETS applies only to employers with 100 or more employees, and the rule does make it explicit that the way you count those employees is on a company–wide basis, not establishment-by-establishment.

Continue reading

OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard Set to Issue Imminently

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

OSHA’s COVID-19 Vaccination and Testing emergency temporary standard is expected to be released imminently, likely Wednesday or Thursday of this week.

OMB Has Concluded Its Review of the ETS:

This morning, OMB’s website updated again, but this time, it was not to add more EO 12866 stakeholder meetings to the calendar, it was to declare OMB’s review of the ETS “concluded.”  Here are two screenshots from OMB’s website.  The first shows the list of active DOL rulemakings at OMB for some form of review, and it identifies the status for the COVID-19 vaccination and testing ETS as “Concluded.”

The second one provides a little more detail, including these notes about the ETS:  “Received Date: 10/12/2021” and “Concluded Date: 11/01/2021.”

The Dept. of Labor Gives Some Clues About What to Expect in the ETS:

Additionally, a Department of Labor spokesman shared this statement this morning:

“On November 1, the Office of Management and Budget completed its regulatory review of the emergency temporary standard. The Federal Register will publish the emergency temporary standard in the coming days. [OSHA] has been working expeditiously to develop an emergency temporary standard that covers employers with 100 or more employees, firm- or company-wide, and provides options for compliance…. Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose either to get vaccinated or to undergo regular COVID-19 testing and wear a face covering at work. The ETS also requires employers to provide paid time to workers to get vaccinated and paid sick leave to recover from any side effects.”

The DOL statement provides some useful insight about what will be in the final rule and when we will see it.  First, OSHA did stick with the 100-employee threshold that the President identified in his announcement and new COVID-19 Action Plan from September 9th.  There was always a chance that OSHA would  scrapped that employee-count trigger as they wrote the rule and instead made it apply to everyone.  We also see in this DOL statement that, as expected, the 100-employee count will be Continue reading

Update on Fed OSHA’s COVID-19 Vaccination and Testing Emergency Rulemaking

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

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.

We have also been hearing Continue reading

Fed OSHA’s COVID-19 Vaccine and Testing Emergency Temporary Standard At OMB for Approval

By Conn Maciel Carey’s COVID-19 Task Force

On September 9th, President Biden announced that he was directing OSHA to issue a new Emergency Temporary Standard (ETS) that would require many employers to provide paid time for employees to get and recover from getting vaccinated, and more importantly, to implement “soft” vaccine mandates; i.e., require employees either to be fully vaccinated or get weekly COVID-19 testing.  This new ETS focused on vaccinations and testing is a central element of the President’s newly unveiled Path Out of the Pandemic – COVID-19 Action Plan, with a central tenet to “vaccinate the unvaccinated.”

We heard from our contacts at OSHA that the agency would move much more quickly to prepare and send this ETS to the White House than it had done with the first COVID-19 ETS this Spring and Summer, and they have done just that.  On Tuesday, October 12, 2021, the Department of Labor issued a statement confirming that OSHA delivered to the White House’s Office of Management and Budget what the statement characterized as the “initial text” of the ETS.  Here is the relevant except from the DOL statement:

“The Occupational Safety and Health Administration has been working expeditiously to develop an emergency temporary standard that covers employers with 100 or more employees to ensure their workers are fully vaccinated or undergo weekly testing to protect employees from the spread of coronavirus in the workplace.  On Tuesday, October 12, as part of the regulatory review process, the agency submitted the initial text of the emergency temporary standard to the Office of Management and Budget.”

We thought the reference to “initial text” was peculiar.  Generally, it is a proposed final regulation that OSHA delivers to OMB in the context of an emergency rulemaking, not a working draft. But, the very next day, on Wednesday, October 13, 2021, after hitting the “refresh” button more times through the night than we would like to admit, we saw what we were expecting – a proposed final version of Federal OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) has been submitted to the White House’s Office of Management and Budget (“OMB”) for approval:

The entry for the ETS on OMB’s website confirms that OMB: Continue reading

President Biden’s Broad COVID-19 “Hard” Vaccine-Mandate for Federal Contractors

By Conn Maciel Carey’s COVID-19 Task Force

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.

On the same day last month that Pres. Biden announced the OSHA “soft” vaccine mandate for private employers that serve only private customers, he also issued an executive order (EO) setting three new requirements for federal contractors at all tiers:

    1. Setting a “hard” vaccine mandate – “Covered Contractor Employees” must be fully vaccinated by January 18, 2021 (and thereafter before starting to work on any federal contract);
    2. Designating a COVID-19 safety coordinator to communicate requirements to employees and non-employees at your “Covered Contractor Workplaces”; and
    3. 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.  (See EO 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.

Who is covered by the various requirements of the EO? Continue reading

California Governor Signs Bill Vastly Expanding Cal/OSHA’s Enforcement Authority

By Fred Walter and Andrew J. Sommer

California Governor Newsom has just signed Senate Bill 606 authored by Senator Lena Gonzalez (D-Long Beach), broadly expanding Cal/OSHA’s enforcement authority and the penalty amounts employers may be assessed.  This new law targets employers with multiple work sites in California, recognizing violations on an enterprise-wide basis resulting from a written policy or procedure or otherwise a pattern of violations.  SB 606 also empowers Cal/OSHA to levy penalties for each violation and each employee deemed exposed to an alleged hazard where there is a finding an employer “willfully and egregiously” violated a safety order.  Lastly, the California Division of Occupational Safety and Health, also known as Cal/OSHA, is empowered to seek permanent injunctions in civil court against employers who are deemed in violation of the new law.  SB 606 will take effect January 1, 2022.

SB 606 leaves little room for California employers to make an honest mistake or to be presumed by Cal/OSHA as acting in good faith.  The new law is likely to foster a radical change in the way Cal/OSHA interacts with employers and weaken employers’ appeal rights.  It is certain that the penalties assessed for citations will increase as will the number of appeals filed with the Cal/OSHA Appeals Board.  It is therefore crucial that employers, large and small, understand these regulatory changes and take steps now to strengthen their safety programs to be as bulletproof as possible.  To that end, we have broken our discussion of the law into two key parts. Continue reading

Cal/OSHA Proposes “Permanent” COVID-19 Prevention Rule – Under Review By Its Advisory Committee

Cal/OSHA has just convened an Advisory Committee to consider a proposed permanent Cal/OSHA COVID-19 prevention permanent rule, scheduled to meet on September 23, 2021.  Conn Maciel Carey has been invited to serve on the Advisory Committee, on behalf of the California Employers COVID-19 Prevention Coalition – composed of a broad array of California and national employers substantially impacted by Cal/OSHA’s COVID-19 standards.

Last Friday, the Division of Occupational Safety and Health (DOSH) posted the attached discussion draft for the proposed permanent rule.  If adopted, the permanent rule would expire in 2 years (subject to renewal/amendment) and replace the existing Cal/OSHA COVID-19 Emergency Temporary Standard (ETS). We expect that upon the permanent rule sunsetting, the Cal/OSHA Standards Board might take up a permanent general infectious disease standard – which would be another battle to be waged.  There is a broad consensus among the employer community that a general infectious disease standard is unnecessary and ill advised, in light of the existing Injury and Illness Prevention Program (IIPP) and Aerosol Transmissible Diseases standards and the inability to prescribe specific measures to address pandemics that have yet to arise.

As many may recall, the ETS was hurriedly adopted around Thanksgiving last year and then amended in June 2021 following bizarre twists and turns, with the Standards Board reconsidering proposed text and votes faced with concerns the draft amendment was not aligned with CDC guidance and was otherwise unwieldy.  Ultimately, the Standards Board formed a subcommittee to consider the future of the ETS that has met regularly since June.

Big picture, the draft permanent rule is largely a significant improvement over the ETS but there are some areas of concern that we hope are addressed through the Advisory Committee process.  We have summarized how the draft permanent rule materially departs from the ETS: Continue reading

Coalition to Work on OSHA’s 2nd COVID-19 Emergency Rulemaking to Set a “Soft” Vaccine Mandate

We hate that we have to do this again, but alas, as we reported late last week, on Thursday, September 9th, President Biden announced that he is directing OSHA to issue a new Emergency Temporary Standard (ETS) that would require many employers to provide paid time for employees to get and recover from getting vaccinated and to implement “soft” vaccine mandates; i.e., require employees either to be fully vaccinated or get weekly COVID-19 testing, as well as issuing new Executive Orders requiring federal contractors to implement “hard” vaccine mandates.

While we anticipated OSHA would reconsider the need for a broader COVID-19 ETS applicable beyond just the healthcare sector in light of the impact of the Delta variant, President Biden’s decision to use a new ETS focused on vaccinations and testing as a central element of his newly unveiled Path Out of the Pandemic – COVID-19 Action Plan raises a host of challenges for employers across the country.  We understand from our contacts at OSHA that the agency will move much more quickly to prepare and send this ETS to the White House, so it is imperative that the employer community come together now to identify shared concerns and considerations and begin advocating to OSHA and OMB so that this new ETS is one with which industry can reasonably manage.

To that end, Conn Maciel Carey LLP is organizing a fee-based company-anonymous coalition of employers and trade groups to advocate for the most reasonable fed OSHA COVID-19 emergency rule focused on vaccination and testing possible. Continue reading

[Bonus Webinar] Fed OSHA’s 2nd COVID-19 Emergency Temporary Standard: Vaccine and Testing Mandates

Join attorneys from Conn Maciel Carey LLP’s COVID-19 Task Force on Fri., Sept. 17th at 1 PM ET for a webinar reviewing OSHA’s 2nd COVID-19 emergency rulemaking focused on vaccine and testing mandates for many US employers.

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

Federal OSHA to Issue Another COVID-19 Emergency Temporary Standard Setting a “Soft” Vaccine-Mandate

By Conn Maciel Carey’s COVID-19 Taskforce

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:

    1. 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.
    2. Between the time OSHA delivered the broad proposed ETS and the time it issued the narrow healthcare-only ETS, the CDC released groundbreaking guidance relaxing COVID-19 protocols for vaccinated individuals.  OSHA’s decision to limit the ETS to just healthcare only a month later had to be influenced by that seismic shift.  But since that time, in July, CDC backtracked on its guidance for vaccinated workers, causing OSHA to adjust its own guidance in that regard.
    3. 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.
    4. 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.
    5. 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.

What Happened Yesterday?

Let’s start with the President’s “Path Out of the Pandemic: POTUS COVID-19 Action Plan.”  Continue reading

Fed OSHA Updates Its COVID-19 Workplace Guidance – Realigns with CDC on Masks for Vaccinated Workers

By Conn Maciel Carey’s COVID-19 Task Force

As we predicted a few week ago, following in CDC’s footsteps, on Friday of last week (August 13, 2021), OSHA updated its primary COVID-19 guidance for non-healthcare employers – Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace to embraces CDC’s updated mask recommendations for vaccinated individuals from July 27th.  OSHA’s updated guidance includes several links directly to CDC’s July Interim Public Health Recommendations for Fully Vaccinated People, as well as CDC’s COVID-19 Integrated County View Data Tracker, which depicts levels of county-level community transmission (low, moderate, substantial, or high).

Broadly, OSHA’s updated COVID-19 guidance tracks CDC’s updated guidance closely.  For example, OSHA now recommends that:

    • Fully vaccinated workers in areas of substantial or high community transmission wear masks in order to protect unvaccinated workers; and
    • Fully vaccinated workers everywhere in the country who experience a close contact exposure with a COVID-19 case wear a mask for 14 days or until they receive a negative COVID test taken at least 3 days after the contact.

Additionally, the guidance clarifies OSHA’s recommendations for protecting unvaccinated workers and other at-risk workers in “workplaces with heightened risk due to workplace environmental factors,” including those in manufacturing, meat and poultry processing, seafood processing and agricultural processing.

What Changed in OSHA’s Updated COVID-19 Guidance? Continue reading

CDC Updates Mask Recommendations for Fully Vaccinated Individuals

By Conn Maciel Carey’s COVID-19 Task Force

We have an unfortunate update to share out of the CDC yesterday, July 27, 2021.  Short story, do not throw away your “Masks Required” signs.

What Did the CDC Change About Mask Recommendations?

In the afternoon of Tuesday, July 27th, the CDC updated its “Interim Public Health Recommendations for Fully Vaccinated People,” in which the CDC recommends:

    • fully vaccinated people wear masks in public indoor settings in areas where there is substantial or high transmission;
    • fully vaccinated people can choose to wear a mask regardless of the level of transmission, particularly if they are immunocompromised or at increased risk for severe disease from COVID-19, or if they have someone in their household who is immunocompromised, at increased risk of severe disease or not fully vaccinated; and
    • fully vaccinated people who have a known exposure to a suspected or confirmed COVID-19 case be tested 3-5 days after exposure, and wear a mask in public indoor settings for 14 days or until they receive a negative test result.

Although the guidance speaks in absolutes, we think that the general limitations that have applied to all prior mask mandates throughout the pandemic continue to inform this updated guidance; i.e., “public indoor settings” is intended to cover locations where there is the potential for exposure to another individual, and not where an employee is “alone in a room” or “alone in a vehicle.”

Is Your County Experiencing Substantial or High Levels of Transmission?

To determine whether your workplace is in a county experiencing substantial or high transmission of COVID-19, the CDC uses two different indicators, the higher of which prevails:

  1. total new cases per 100,000 persons over the past seven days; and
  2. positive test rate over the past seven days.

Continue reading

Mid-Year Review of OSHA Developments [Webinar Recording]

On July 22, 2021, the Partners from Conn Maciel Carey’s OSHA Practice presented a webinar regarding the “2021 Mid-Year Review of Key OSHA Developments.

Having shared a series of predictions during our January webinar regarding how OSHA would tackle the COVID-19 pandemic and reshape its priorities under new leadership during the first year of the Biden Administration, we have now taken stock of what has happened at DOL and OSHA during the first months of the Biden Administration, discussed surprise developments, and looked ahead at the remainder of 2021 and beyond. We took a close look at senior leadership now in place or on the way and analyzed what those appointments likely mean for employers. We also reviewed OSHA’s efforts to address the COVID-19 pandemic, including the new healthcare-focused emergency temporary standard and updated guidance for everyone else. In addition, we examined President Biden’s efforts to make good on his promises to increase OSHA’s budget, grow the number of inspectors and generally ramp up enforcement. Lastly, we reviewed key developments in OSHA’s rulemaking agenda.

Participants in this webinar learned the following: Continue reading

Fed OSHA’s COVID-19 ETS: What You Need to Know About Face Masks, Respiratory Protection and Other PPE

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

[WEBINAR] 2021 Mid-Year Review of Important Developments at OSHA

On Thursday, July 22, 2021 at 1:00 p.m. ET, join the Partners from Conn Maciel Carey’s national OSHA Practice for a webinar event – “2021 Mid-Year Review of Key OSHA Developments

Having shared a series of predictions during our January webinar regarding how OSHA would tackle the COVID-19 pandemic and reshape its priorities under new leadership during the first year of the Biden Administration, we will now take stock of what has happened at DOL and OSHA during the first months of the Biden Administration, discuss surprise developments, and look ahead at the remainder of 2021 and beyond. We will take a close look at senior leadership now in place or on the way, and analyze what those appointments likely mean for employers. We will also review OSHA’s efforts to address the COVID-19 pandemic, including the new healthcare-focused emergency temporary standard and updated guidance for everyone else. We will also examine Pres. Biden’s efforts to make good on his promises to increase OSHA’s budget, grow the number of inspectors and generally ramp up enforcement. We will also review key developments in OSHA’s rulemaking agenda.

Participants in this webinar will learn the following:

Continue reading

Fed OSHA’s COVID-19 ETS: What You Need to Know About Cleaning and Disinfecting

By Conn Maciel Carey’s COVID-19 Task Force

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

Fed OSHA’s COVID-19 ETS: What You Need to Know About Physical Distancing

By Conn Maciel Carey’s COVID-19 Task Force

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