Cal/OSHA Introduces Proposed Amendments to its COVID-19 Emergency Temporary Standard

By Conn Maciel Carey’s COVID-19 Task Force

On Friday, May 7th, Cal/OSHA finalized and published a proposed amended version of its COVID-19 Emergency Temporary Standard (the “ETS”), which the Cal/OSH Standards Board will consider for readoption at the Board’s upcoming May 20, 2021 meeting.  The revised sections of the ETS include a series of changes sought by the regulated community, and quite a few that our

Cal/OSHA’s Proposed Amended COVID-19 Emergency Temporary Standard Sent to the Standards Board

California Employers COVID-19 Prevention Coalition specifically advocated for, but the rule is still a bear.

It bears emphasizing that the proposed updated ETS is coming more than five months after the Board unanimously adopted the ETS, and during that span, Cal/OSHA has been busy considering potential changes, due in large part to the lack of opportunity by the regulated community to consider and comment in the rush to issue the emergency regulation back in November.  Indeed, when the ETS was first adopted, the regulated community struggled to understand and implement the regulation.  And while Cal/OSHA issued numerous FAQs in January, February and March, many questions remained unanswered.

In February, the Division convened an Advisory Committee about the ETS consisting of members from business and industry, labor and community groups, public agencies, and the health sciences to provide input on possible changes to the ETS.  As you know, Conn Maciel Carey, on behalf of the California Employers COVID-19 Prevention Coalition (the “Coalition”), participated in the three-day (February 11, 12 and 16) Advisory Committee meetings.  On March 2, the Coalition submitted written comments to the Chief of the Division addressing a variety of concerns and suggesting, among other recommendations, that the Division:

  • Clarify the scope of the ETS;
  • Clarify various requirements under the ETS to be consistent with guidance the Division has provided in its FAQs;
  • Create more flexibility in the standard to account for the vastly different operations covered by the ETS;
  • Address the evolving science and public health guidance on COVID-19 and the vaccines; and
  • Clarify and align notice requirements under the ETS with other California requirements.

The good news is, the agency Continue reading

[Webinar] OSHA’s Respiratory Protection Rules: Top 5 Reasons to Get it Right and Employer Mistakes

On Wednesday, May 12th, join Aaron Gelb, Amanda Strainis-Walker, Beeta Lashkari and Ashley D. Mitchell for a webinar regarding OSHA’s Respiratory Protection Rules: Top 5 Reasons to Get it Right and Employer Mistakes.

While respiratory protection has been top of mind for the past year due to COVID-19, OSHA’s respiratory protection requirements apply to a wide range of industrial hygiene hazards, from hazardous chemicals to oxygen deficient environments, and dusts, smoke, gases, and vapors. Given that airborne hazards may cause death or serious disease, OSHA requires employers to assess their workplaces to identify hazards that necessitate respiratory protection, and for those, to select the appropriate respirator, train employees how to properly use them, and ensure that the respirator fits properly, is safe to use, and is actually being worn. As such, it is no surprise that OSHA’s respiratory protection standard ranks among the 5 most frequently cited standards each year.

This webinar will highlight Continue reading

Vaccinated Workers Are Not Required to Quarantine Under Cal/OSHA’s COVID-19 ETS, But Masks and Distancing Are Still Required

By Conn Maciel Carey’s COVID-19 Task Force

The California Department of Public Health (CDPH) issued new guidance yesterday – COVID-19 Public Health Recommendations for Fully Vaccinated People – that affects some aspects of Cal/OSHA’s COVID-19 ETS.  For purposes of this discussion, people are considered fully vaccinated for COVID-19 either two weeks or more after they receive the second dose in a two-dose series (Pfizer-BioNTech or Moderna), or two weeks of more after they received a single-dose vaccine (Johnson and Johnson/Janssen).

CDPH Vaccination GuidanceRelevant to application of Cal/OSHA’s COVID-19 ETS requirements to fully vaccinated workers, the new CDPH guidance provides that in a workplace setting, fully vaccinated workers are no longer required to quarantine following a known exposure at work, so long as the exposed vaccinated worker remains asymptomatic.  But that is as far as the guidance goes in providing relief under Cal/OSHA’s COVID-19 ETS for vaccinated workers.

Specifically, employers must still follow all other requirements of the ETS with respect to fully vaccinated workers.  Regardless of vaccination status, an exposed fully vaccinated worker or a fully vaccinated worker who is part of a group of workers covered by an outbreak determination must still Continue reading

Attorney Spotlight – Meet Eric Conn!

Eric J. Conn is a founding partner of Conn Maciel Carey and Chair of the firm’s national OSHA • Workplace Safety Practice Group. For more than twenty years now, Eric’s practice has focused exclusively on issues involving occupational safety and health law.

Before launching his own OSHA Practice, Eric practiced for more than a decade alongside the former first General Counsel of the OSH Review Commission. Eric then became Head of an OSHA practice at a large employment law firm that was honored as the “Occupational Health & Safety Law Firm of the Year” by Corporate INTL Magazine in 2014.

Mr. Conn is a popular speaker on OSHA topics, including as the director of Conn Maciel Carey’s annual OSHA Webinar Series, and he regularly keynotes trade group and industry conferences.  He is also the curator of the firm’s award-winning OSHA Blog, the OSHA Defense Report, and he is often quoted as a leader in the field in trade publications.

Eric and his team of OSHA-specialist attorneys develop safety and health regulatory strategies for employers across all industries with a particular emphasis on:

  • Advising and representing employers through inspections, investigations and enforcement actions involving OSHA and other safety-related agencies
  • Managing the full range of litigation against OSHA
  • Representing employers during U.S. DOJ investigations and prosecutions of alleged OSH Act criminal violations
  • Developing and auditing safety programs and policies
  • Providing workplace safety training and compliance counseling for employers

Get to Know Eric!

Where is your favorite vacation spot?   Continue reading

“What’s The Hazard” Podcast – Special Guest Eric Conn of Conn Maciel Carey

Conn Maciel Carey’s Co-Founder and OSHA Practice Chair, Eric J. Conn, made a special guest appearance on the most recent episode of the “What’s The Hazard” safety podcast series hosted by Doug Fletcher, of Fletcher Safety Consulting.

During this interview, Eric shared an OSHA defense counsel’s insight about the highly anticipated Federal OSHA COVID-19 Emergency Temporary Standard, and tips for employers about managing OSHA inspections, including the most important steps to prepare for inspections, common mistakes employers make during inspections, and strategies to achieve successful outcomes at the end of inspections.

Click here to listen to the full podcast.

Fed OSHA’s COVID-19 Emergency Temporary Standards Officially Submitted to OMB for Final Approval

By Conn Maciel Carey’s COVID-19 Task Force

We have officially entered the phase of Federal OSHA’s emergency rulemaking when things are going to start to move very quickly.  After hitting the “refresh” button more times over the last month than we would like to admit, today we finally saw what we have been expecting since mid-March – Federal OSHA’s COVID-19 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:

  • Has received a proposed COVID-19 rule from OSHA;
  • The rule is in the “Final Rule” stage;
  • The rule is characterized as “Economically Significant”; and
  • Regulatory text is not available to be reviewed by the public.

The Department of Labor issued this press statement confirming that the rule was sent to OMB:

“Today, OSHA sent draft standards to the Office of Management and Budget’s Office of Information and Regulatory Affairs for review.  OSHA has been working diligently on its proposal and has taken the appropriate time to work with its science-agency partners, economic agencies, and others in the U.S. government to get this proposed emergency standard right.”

Of particular note in this press statement is DOL’s use of Continue reading

A Private Right of Action to Enforce Federal OSHA Violations Would Benefit Attorneys, Not Employees

By Eric J. Conn and Mark M. Trapp

When the Trump Administration’s OSHA declined repeatedly to issue a COVID-19 emergency temporary standard and otherwise favored issuing guidance over citations, the agency faced a series of lawsuits and legal challenges from worker advocacy groups and national unions.  OSHA prevailed in those actions, retaining its primacy and exclusive authority to make workplace safety enforcement decisions.  But in the wake of those failed legal challenges, pro-labor advocates and Democratic politicians and policymakers have begun a serious push to establish a private right of action for employees and their representatives under the Occupational Safety and Health Act.

For example, in July of 2020, the Center for Progressive Reform (CPR), a left-leaning think tank focused on advancing policies to address health and well-being of workers and others, issued a report calling on Congress to legislate a private right of action for employees about workers safety conditions. The purpose of CPR’s policy proposal is explained this way:

OSHA has failed not only to protect workers from existing hazards – ranging from unsecured trenches to infectious diseases like COVID-19 – but has also taken minimal action to tackle emerging risks, such as those associated with climate change, the reshoring of manufacturing jobs, increased automation, and the expansion of artificial intelligence in the workplace. . . .  [I]t is time to address the law’s and agency’s shortcomings and chart a course of action to revolutionize worker health and safety for the next 50 years.

Fixing the current system requires an updated and vastly improved labor law that empowers workers to speak up about health and safety hazards, rather than risk their lives out of fear of losing employment and pay. It also requires that workers be empowered to fight back when government agencies fail to enforce safety and health requirements. Our vision is to guarantee all workers a private right of action to enforce violations of the OSH Act, coupled with incentives for speaking up and strong whistleblower protections to ensure workers can and will utilize their new authority.

Continue reading

COVID-19 OSHA Enforcement and Regulatory Update [Webinar Recording]

On  April 20, 2021, Aaron GelbAmanda Strainis-Walker and Dan Deacon presented a webinar regarding a “COVID-19 OSHA Enforcement and Regulatory Update.

Since the 2020 presidential election was decided, employers have waited, wondered, and watched for signs to see how President Biden’s OSHA would regulate and enforce COVID-19 safety in the workplace. Although OSHA missed the March 15 deadline set by President Biden in his Day One Executive Order to issue its COVID-19 Emergency Temporary Standard (ETS), there have been several important developments providing a window into how OSHA will approach COVID-19 enforcement, most notably the agency’s launch of a COVID-19 National Emphasis Program (“COVID-19 NEP”) to focus the agency’s enforcement efforts on “companies that put the largest number of workers at serious risk of contracting the virus,” as well as prioritizing employers that “retaliate against workers for complaints about unsafe or unhealthy conditions, or for exercising other rights protected by federal law.” OSHA also updated its Interim Enforcement Response Plan, which details how OSHA’s field staff should conduct COVID-related inspections, including whether they will resume in person inspections or continue conducting them remotely as has been the norm for the past year.

During this webinar, participants learned about: Continue reading

[Webinar] COVID-19 OSHA Enforcement and Regulatory Update

On Tuesday, April 20, 2021 at 1:00 P.M. ET, join Aaron Gelb, Amanda Strainis-Walker and Dan Deacon for a webinar regarding a “COVID-19 OSHA Enforcement and Regulatory Update”.

Since the 2020 presidential election was decided, employers have waited, wondered, and watched for signs to see how President Biden’s OSHA would regulate and enforce COVID-19 safety in the workplace. Although OSHA missed the March 15 deadline set by President Biden in his Day One Executive Order to issue its COVID-19 Emergency Temporary Standard (ETS), there have been several important developments providing a window into how OSHA will approach COVID-19 enforcement, most notably the agency’s launch of a COVID-19 National Emphasis Program (“COVID-19 NEP”) to focus the agency’s enforcement efforts on “companies that put the largest number of workers at serious risk of contracting the virus,” as well as prioritizing employers that “retaliate against workers for complaints about unsafe or unhealthy conditions, or for exercising other rights protected by federal law.” OSHA also updated its Interim Enforcement Response Plan, which details how OSHA’s field staff should conduct COVID-related inspections, including whether they will resume in person inspections or continue conducting them remotely as has been the norm for the past year.

During this webinar, participants will learn about: Continue reading

Due to Low Risk of COVID-19 Surface Transmission, CDC Relaxes Cleaning and Disinfecting Guidance

By Conn Maciel Carey’s COVID-19 Task Force

Early in the pandemic, popular sentiment—and to a lesser extent, the scientific community—believed that surface transmission of COVID-19 was one of the primary vectors of transmission.  Over time, however, epidemiologists gained a better understanding of how the virus was most typically transmitted.  As a result, the CDC’s guidance evolved to a point where surface transmission was viewed as a less significant mode of transmission than person-to-person transmission.

Throughout all that, spring cleaning took on a new meaning in 2020, as people rushed to purchase all the disinfectant wipes and sprays they could find, wiping down groceries and mail, sanitizing their hands, and treating door handles like they were radioactive.  Workplace sanitation similarly became an area of emphasis as employers distributed wipes, sprays and pump bottles throughout their facilities, hired additional janitorial staff and, in many cases, spent exorbitant sums on third-party vendors to clean and disinfect the workplace, even introducing aggressive surface cleaning techniques like fogging. And once the hygiene frenzy took hold in the workplace, there has been little reprieve for employers from regulatory bodies.  State and local health departments, federal OSHA and State OSH Plans, and even some state legislatures, recommended or imposed strict sanitization protocols, including requirements to routinely wipe down shared surfaces with disinfectant, to close workplaces for deep cleaning even when days had passed since a COVID-positive individual had been in the area, and implement daily cleaning and disinfecting plans.  The financial cost for employers associated with these requirements rose quickly.  Like pre-shift temperature screens, some of these requirements have persisted even after the science has recognized their limited efficacy.

Earlier this week, more than a year after the COVID-19 pandemic began, the CDC has released new guidance clarifying that the risk of contracting COVID-19 from contaminated surfaces is, in fact, quite low. Continue reading

Cal/OSHA Advisory Committee Convened as Division Considers Changes to COVID-19 Emergency Temporary Standard

By Conn Maciel Carey’s COVID-19 Task Force

Over four months after the California Occupational Safety and Health Standards Board (“Board”) unanimously adopted a COVID-19 Emergency Temporary Standard (“ETS”), the Division of Occupational Safety and Health (the “Division”) has been busy considering potential changes to the emergency regulation.  When the ETS was first adopted, the regulated community scrambled to understand and implement the regulation.  The Division issued numerous Frequently Asked Questions in January, February and March, but many questions remained unanswered.

Cal ETS Advisory CommitteeIn February, the Division convened an Advisory Committee to provide input on possible changes to the ETS.  The Advisory Committee consisted of members from business and industry, labor and community groups, public agencies, and the health sciences.  A coalition of California employers organized by Conn Maciel Carey – the California Employer COVID-19 Prevention Coalition (the “Coalition”) – was one of a very small group of industry representatives invited to participate on the Advisory Committee.

Ahead of the Advisory Committee meetings, which were held on February 11, 12 and 16, Cal/OSHA circulated Discussion Drafts reflecting changes to be considered during the meetings.  Over the course of the 3-day Advisory Committee meeting, the Coalition had the opportunity to provide meaningful input on it members’ concerns and recommendations to improve the ETS.

On March 2, the Coalition submitted written comments to the Chief of the Division.  The Coalition addressed a variety of concerns, including suggesting the Division: Continue reading

Annual Cal/OSHA Update: Legislation, Regulations, Guidance, Executive Orders and More! Oh My! [Webinar Recording]

On March 23, 2021, Andrew J. SommerFred Walter and Megan Shaked presented a webinar regarding Annual Cal/OSHA Update: Legislation, Regulations, Guidance, Executive Orders and More! Oh My!

This year’s annual Cal/OSHA update covered the latest legislative, regulatory and enforcement developments concerning COVID-19, including the Emergency COVID-19 Prevention Rule. We also alerted you to new regulatory changes concerning the Wildfire Smoke rule, various proposed rules being considered by Cal/OSH Standards Board, and general DOSH enforcement trends.

Participants in this webinar learned about: Continue reading

Annual Cal/OSHA Update: Legislation, Regulation, Guidance, Executive Orders and More! Oh My! [Webinar]

On Tuesday, March 23, 2021 at 1:00 P.M. PT / 4:00 P.M. ET, join Andrew J. Sommer, Fred Walter and Megan Shaked for a webinar regarding “Annual Cal/OSHA Update: Legislation, Regulation, Guidance, Executive Orders and More! Oh My!

This year’s annual Cal/OSHA update will cover the latest legislative, regulatory and enforcement developments concerning COVID-19, including the Emergency COVID-19 Prevention Rule. We will also alert you to new regulatory changes concerning the Wildfire Smoke rule, various proposed rules being considered by Cal/OSH Standards Board, and general DOSH enforcement trends.

Participants in this webinar will learn about: Continue reading

Update about the Chemical Safety Board [Webinar Recording]

On March 16, 2021, Eric J. ConnMicah Smith and Beeta B. Lashkari presented a webinar regarding “Update about the Chemical Safety Board.”

For a small agency, a lot happened at the U.S. Chemical Safety and Hazard Investigation Board (the CSB) last year – and not all related to the COVID-19 pandemic. For example, the CSB promulgated an accidental release reporting rule, requiring employers to report certain chemical incidents to the CSB. Although the rule went into effect last Spring, the CSB set a 1-year enforcement “grace period” to allow time for the regulated community to become familiar with the rule, and for the Agency to develop guidance about the new rule. With the grace period ending later this month, on March 23, 2021, it is critical for employers to understand their new compliance obligations.

In addition, with expired terms, early departures, and the swearing in of a new Chairperson (but no other Board members), the CSB’s Board became a “quorum of one” for the first time, begging questions about its authority to vote on mission-critical work product, such as investigation reports, and its ability to conduct the agency’s business. Although Pres. Biden will likely nominate new Board Members, the Senate confirmation process can be a slog, meaning the CSB may maintain a quorum of one for an extended period.

Participants in this webinar learned about: Continue reading

Attorney Spotlight – Meet Kara Maciel!

Kara ACFKara Maciel is a founding Partner of Conn Maciel Carey and Chair of the firm’s national labor & employment practice group.

Ms. Maciel works to create workplace solutions for her clients.  She counsels clients on issues related to ADA accessibility requirements, wage hour compliance, prevention of harassment and discrimination, effective employment policies and procedures, and developing a compliant employee handbook. She also defends employers in litigation at both the federal and state levels.  For unionized and non-unionized companies, Ms. Maciel provides advice and counsel regarding the employer’s rights under the National Labor Relations Act.

Kara is an avid traveler (pre-pandemic) and foodie, so it makes perfect sense that she focuses much of her practice on issues facing companies in the hospitality industry (including hotel owners and managers, resorts, restaurants, and country clubs); retail; grocery; food distributors; and non-profit sectors.

Get to Know Kara!

Continue reading

[Webinar] Update about the Chemical Safety Board

On Tuesday, March 16, 2021 from 1:00 P.M. to 2:15 P.M., join Eric J. ConnMicah Smith and Beeta B. Lashkari for a webinar regarding “Update about the Chemical Safety Board.”

For a small agency, a lot happened at the U.S. Chemical Safety and Hazard Investigation Board (the CSB) last year – and not all related to the COVID-19 pandemic. For example, the CSB promulgated an accidental release reporting rule, requiring employers to report certain chemical incidents to the CSB. Although the rule went into effect last Spring, the CSB set a 1-year enforcement “grace period” to allow time for the regulated community to become familiar with the rule, and for the Agency to develop guidance about the new rule. With the grace period ending later this month, on March 23, 2021, it is critical for employers to understand their new compliance obligations.

In addition, with expired terms, early departures, and the swearing in of a new Chairperson (but no other Board members), the CSB’s Board became a “quorum of one” for the first time, begging questions about its authority to vote on mission-critical work product, such as investigation reports, and its ability to conduct the agency’s business. Although Pres. Biden will likely nominate new Board Members, the Senate confirmation process can be a slog, meaning the CSB may maintain a quorum of one for an extended period.

Participants in this webinar will learn about: Continue reading

Status Update About OSHA’s Emergency COVID-19 Rulemaking

By Eric J. Conn

We are sure many of you have been on the edge of your seat waiting for news about OSHA’s COVID-19 emergency temporary standard, which was expected to be issued by next Monday, March 15th  per Pres. Biden’s Day-1 OSHA Executive Order (EO).  So that you might be able to enjoy your weekend, we wanted to share with you the latest we are hearing about the status of the emergency rulemaking.

Status of Rulemaking

As we expected, the process OSHA is following (an emergency rulemaking with some time pressure set by Pres. Biden) does not include an opportunity for a formal pre-rule public notice-and-comment period.  Nevertheless, the rule still needs to go to the White House’s Office of Management and Budget (OMB) for approval before it is issued and can go into effect.  That likely means that the Office of Information and Regulatory Affairs (OIRA) within OMB will provide for stakeholder input in some form pursuant to Executive Order 12866.  As of now, OMB’s website still does not reflect a docket entry for OSHA’s COVID-19 ETS, and we have not otherwise heard or seen anything that would indicate the proposed rule has been delivered to OMB.  To monitor that, here is a link to OMB’s page about regulations under EO 12866 review — scroll down to the Department of Labor section of rules.

We also have started to hear through the rumor-mill that OSHA understand the Executive Order to require Continue reading

We are Celebrating International Women’s Day with our #ChooseToChallenge!

Female,Diverse,Faces,Of,Different,Ethnicity,Seamless,Pattern.,Women,EmpowermentToday is International Women’s Day, a global day celebrating the historical, cultural, and political achievements of women. To honor this day, we reflect on the significant progress made in gender equality and recognize the adversity that women continue to push through to attain a more inclusive world.  Just this year, Kamala Harris shattered the glass ceiling by not only becoming the first female U.S. Vice President, but the first Black, and South Asian-American U.S. Vice President.

This significant event in recent history showcases the many women who have paved the way.  Women such as Shirley Chisholm, the first Black woman elected to Congress; Eleanor Roosevelt, the first U.S. delegate to the United Nations; and, of course, Ruth Bader Ginsberg, the second female and the first Jewish female Justice of the U.S. Supreme Court.  As we already know, we experienced the loss of Justice Ginsberg just last year, but the impact she made as a pioneer who fought for women’s rights, and a leading voice for civil rights and liberties influences the gender equality movement to this day.

What do you #choosetochallenge?

Picture1The theme for International Women’s Day 2021 is #choosetochallenge.  This initiative is meant to drive actions that will create the gender-equal society we all deserve.  We must challenge ourselves to take accountability for our own thoughts and actions, and be the change we want to see in the world. Check out what Conn Maciel Carey’s Attorneys and Staff #choosetochallenge! Continue reading

What Employers Need to Know About COVID-19 Vaccines [Webinar Recording]

On February 11th, Kara M. MacielFern Fleischer-Daves, and Lindsay A. DiSalvo presented a webinar regarding What Employers Need to Know About COVID-19 Vaccines.

In December 2020, two COVID-19 vaccines received emergency use authorization from the US government and several more vaccines may be approved in the coming months. In the initial phases, front-line health care workers, nursing home residents, persons over 75 years of age, and others with underlying health conditions were given first priority. Many employers want to have their “essential workers” or all of their workers vaccinated as soon as possible.

During this webinar, Conn Maciel Carey’s OSHA and Labor & Employment attorneys discussed these important questions:

Continue reading

SPECIAL BONUS WEBINAR: COVID-19 Vaccines at the Workplace

On Thursday, February 18th from 1:00 P.M. – 2:15 P.M. (ET), join Conn Maciel Carey for a special bonus webinar regarding COVID-19 Vaccines at the Workplace.

Are you curious how the COVID-19 vaccine distribution effort works or is intended to work?  Is your organization considering standing up an onsite vaccination program or looking into options to facilitate the vaccination of your employees?  As this country embarks on a massive undertaking that involves a series of remarkable public/private partnerships, many employers are anxious to better understand how the supply chain works, who is making prioritization decisions and why, and what they can do now to help increase the number of arms that receive shots.  If you have questions about these issues or other vaccine rollout-related matters, we hope you will join us for an informative panel discussion moderated by Aaron Gelb, Partner in Charge of Conn Maciel Carey’s Chicago Office with special guests:

  • Lori Tremmel Freeman, CEO of the National Association of County and City Health Officials (NACCHO)
  • Michelle Kite, Retail Health and Safety Manager at Walgreens
  • Sonali Kshatriya, Pharmacist and Manager on the Walgreens Clinical Team
  • Fern Fleischer-Daves, OSHA Attorney at Conn Maciel Carey

Participants in this webinar will learn about: Continue reading

Coalition to Work on Federal OSHA’s COVID-19 Emergency Rulemaking

Background

In his first day in office, President Biden issued an Executive Order (“EO”) that directed Fed OSHA to revisit its strategy for regulating and enforcing workplace spread of COVID-19.  Among other actions, the EO directed OSHA to consider whether a federal COVID-19 emergency temporary standard (“ETS”) is necessary.  We believe it is a foregone conclusion OSHA will issue an ETS.  The lack of an explicit mandate to do so is likely more a formality than a real open question; i.e., the President prefers the appearance that the workplace safety experts at OSHA made the decision, but the White House has made clear what it expects.

Assuming OSHA determines an ETS is needed, the EO sets a March 15th deadline for OSHA to finalize and issue the rule, so OSHA is surely already working intensely on a COVID-19 ETS.  Although OSHA has not yet confirmed its intent to develop an ETS, we believe it prudent to begin our advocacy efforts as soon as possible, as there will likely be a small pre-rule window to impact the rule before it issues.

The question remains, though, what will a Fed OSHA COVID-19 ETS look like?  We need look no further than the examples set by the State OSH Plans that already have issued COVID-19 ETSs to see the difference between a manageable, effective rule (see Virginia OSHA’s ETS) and a daunting, sometimes unworkable rule (see Cal/OSHA’s ETS). Continue reading

[Webinar] What Employers Need to Know About COVID-19 Vaccines

On Thursday, February 11th from 1:00 PM – 2:15 PM EST, join Kara M. Maciel, Fern Fleischer-Daves, and Lindsay A. DiSalvo for a webinar regarding What Employers Need to Know About COVID-19 Vaccines.

In December 2020, two COVID-19 vaccines received emergency use authorization from the US government and several more vaccines may be approved in the coming months. In the initial phases, front-line health care workers, nursing home residents, persons over 75 years of age, and others with underlying health conditions were given first priority. Many employers want to have their “essential workers” or all of their workers vaccinated as soon as possible.

During this webinar, Conn Maciel Carey’s OSHA and Labor & Employment attorneys will discuss these important questions:

Continue reading

Cal/OSHA’s COVID-19 Emergency Temporary Standard [Webinar Recording]

On January 26th, Andrew J. SommerFred Walter and Megan S. Shaked presented a webinar regarding Cal/OSHA’s COVID-19 Emergency Temporary Standard.

Not to be outdone by other State OSH Plans like Virginia OSHA, Oregon OSHA, and Michigan OSHA, Cal/OSHA has adopted its own COVID-19 specific emergency temporary standard, and it is in a league of its own. This standard adds significant, burdensome new compliance obligations to California’s existing slate of state and local requirements applicable to employers.

This webinar provided an overview of the regulation, existing and anticipated guidance provided by Cal/OSHA about it, as well as enforcement efforts by Cal/OSHA to date.  We will also examine the interplay between the emergency temporary standard and other new California legislation, including AB 685 and SB 1159.  Finally, we will help you interpret and avoid common pitfalls from some of the trickier sections of the regulation, such as the Outbreaks and Testing provisions.
Participants in this webinar learned about:

Continue reading

What Employers Need to Know about the Pay and Benefits Continuation Elements of Cal/OSHA’s COVID-19 Emergency Rule

By Mark TrappAndrew Sommer, and Beeta Lashkari

On November 30, 2020, Cal/OSHA issued its final COVID-19 Emergency Temporary Standard (“ETS”), with all of its provisions effective immediately.  One of those provisions — the exclusion pay and benefits continuation requirements — has been at the center of much controversy.

Typical among these COVID-19 emergency rules, the Cal/OSHA regulations requires employers to exclude from the workplace “COVID-19 cases” as well as employees who experience a “close contact” exposure (i.e., contact within 6′ of a confirmed case for a cumulative 15 minutes). But the Cal/OSHA ETS gets controversial at Sec. 3205(c)(10)(C), where it requires employers to continue and maintain those employees’ earnings, seniority, and all other employment rights and benefits, as if the employee had not been removed from the job. Where permitted by law and when not covered by workers’ compensation, employers may use employer-provided employee sick leave benefits, and may consider benefit payments from public sources, in determining how to maintain earnings, rights and benefits.

There are several important exceptions to these exclusion pay and benefits continuation requirements.  For example, the ETS provides that the provision does not kick in for any period of time when the employee is not able to work for reasons other than protecting persons at the workplace from possible COVID-19 transmission.  Likewise, the pay and benefits continuation provision does not apply where the employer can demonstrate the employee’s COVID-19 exposure is not work-related.  Finally, although not characterized as an “exception” specific to the exclusion pay and benefits provision, the ETS does also carve-out employees who can be temporarily reassigned to work where they do not have contact with other persons until applicable return-to-work requirements are met.

To provide some clarification about this pay and benefits continuation provision (as well as most other elements of the ETS), Cal/OSHA has issued two batches of FAQs, most recently updated January 8th.  There are now 10 FAQs related to exclusion pay and benefits, most notable among them: Continue reading

[Webinar] Cal/OSHA’s COVID-19 Emergency Temporary Standard

On Tuesday, January 26th at 12:00 PM PT / 3:00 PM ET, plan to join Andrew J. SommerFred Walter and Megan S. Shaked for a webinar regarding Cal/OSHA’s COVID-19 Emergency Temporary Standard.

Not to be outdone by other State OSH Plans like Virginia OSHA, Oregon OSHA, and Michigan OSHA, Cal/OSHA has adopted its own COVID-19 specific emergency temporary standard, and it is in a league of its own. This standard adds significant, burdensome new compliance obligations to California’s existing slate of state and local requirements applicable to employers.

This webinar will provide an overview of the regulation, existing and anticipated guidance provided by Cal/OSHA about it, as well as enforcement efforts by Cal/OSHA to date.  We will also examine the interplay between the emergency temporary standard and other new California legislation, including AB 685 and SB 1159.  Finally, we will help you interpret and avoid common pitfalls from some of the trickier sections of the regulation, such as the Outbreaks and Testing provisions.
Participants in this webinar will learn about:

Continue reading