Cal/OSHA Updates FAQS Following Third Readoption of COVID-19 Emergency Temporary Standard

By Megan S. Shaked

Now that Cal/OSHA’s Third Readoption of the COVID-19 Emergency Temporary Standard is in effect, the agency has updated its Frequently Asked Questions to reflect those revisions effective May 6, 2022.  (See our previous blog articles regarding the revisions in the Third Readoption and the Board vote to approve the readoption.)

Many of the updated FAQs simply reflect the revised ETS language itself, for example, removing references to vaccination status as the ETS requirements are no longer dependent on such status.  The FAQs have also been updated to reflect the current terminology used in the Third Readoption, for example, using “infections period” instead of “high risk exposure period.”

However, some of the updated Frequently Asked Questions provide added clarity regarding the current requirements: Continue reading

Coalition to Work on OSHA’s Rulemaking to Expand the E-Recordkeeping Rule

On March 30th, OSHA published a new proposed rule to amend and dramatically expand the requirements of its Improve Tracking of Workplace Injuries and Illnesses Rule (i.e., the E-Recordkeeping Rule).  Read our full article here for more information about the history of E-Recordkeeping, the new proposed amendments to the E-Recordkeeping Rule, and the implications of the proposed changes.

As we have had to do too often the last couple of years, Conn Maciel Carey’s OSHA Team is organizing a flat fee-based rulemaking coalition of employers and trade groups to collaborate to work on submitting public comments on this new proposal and otherwise participate in the rulemaking process to advocate for the most manageable possible E-Recordkeeping Rule.

We held a kickoff call for the coalition earlier this week.  If you were unable to attend, we are pleased to share links to the recording and a copy of the slides that we used. We expect to have a follow up virtual meeting in May to solicit detailed input from coalition participants and review our advocacy strategy.

There is still time to join our coalition if your organization would like to partner with us on this rulemaking.  OSHA requested public comments to be submitted by May 31, 2022.

We expect to address, among other important concerns, that: Continue reading

Cal/OSHA Standards Board Approves Third Re-adoption of COVID-19 Emergency Rule

As expected, on April 21st the Cal/OSHA Standards Board voted to adopt the proposed third re-adoption of the COVID-19 Emergency Temporary Standard.  The Board voted 6-1, with management representative Kathleen Crawford casting the sole no vote.  The new rule iteration is set to take effect on about May 2, 2022, once approved by the Office of Administrative Law, and will remain in effect until December 31, 2022.  As mentioned in our prior blog post, the third re-adoption retains the core elements of the emergency rule but with various substantive changes.

DOSH Deputy Chief Eric Berg, in his briefing to the Board ahead of the vote, indicated that there will be FAQs issued to Continue reading

OSHA Launches an Enforcement National Emphasis Program For Outdoor and Indoor Heat Illness Prevention

By Beeta Lashkari and Eric Conn

Last week, on April 12, 2022, OSHA announced that it has launched an enforcement National Emphasis Program (“NEP”) for Outdoor and Indoor Heat-Related Hazards.  The Heat Illness NEP applies to both indoor and outdoor workplaces, including general industry, construction, maritime, and agriculture.  The NEP is already in effect – as of April 8th – even before OSHA made its April 12th announcement, and will remain in effect for three years unless canceled or extended by a superseding directive.

Secretary of Labor Walsh, joined by Vice President Harris, announced this new enforcement program at a speech at the Sheet Metal Workers Local 19 Training Center in Philadelphia with these remarks:

“Tragically, the three-year average of workplace deaths caused by heat has doubled since the early 1990s. These extreme heat hazards aren’t limited to outdoor occupations, the seasons or geography. From farm workers in California to construction workers in Texas and warehouse workers in Pennsylvania, heat illness – exacerbated by our climate’s rising temperatures – presents a growing hazard for millions of workers….  This enforcement program is another step towards our goal of a federal heat standard. Through this work, we’re also empowering workers with knowledge of their rights, especially the right to speak up about their safety without fear of retaliation.”

Below is an analysis of the mechanics of OSHA’s Heat Illness NEP: Continue reading

Attorney Spotlight – Meet Aaron Gelb!

Aaron R. Gelb is a partner and head of Conn Maciel Carey LLP’s Chicago office where he leads the firm’s Midwest OSHA workplace safety practice. He has more than 25 years’ experience advising and representing clients in relation to inspections, investigations, and enforcement actions involving federal OSHA and state OSH programs and managing the full range of litigation against OSHA.  In support of the firm’s Labor and Employment practice, Aaron defends employers in equal employment opportunity matters in federal and state courts, having tried multiple cases to verdict and obtained the dismissal of more than 300 discrimination charges before the EEOC and fair employment agencies nationwide.

Aaron is frequently asked to speak at conferences, seminars, and industry-specific forums, covering numerous workplace safety and employment topics for events and organizations nationwide including the American Bar Association, the Chemical Industry Council of Illinois, the American Trucking Associations, and the Chicagoland Safety Conference to name a few. Aaron currently leads the Illinois Manufacturers Association’s workplace safety and health education series which includes quarterly webinars and 4 programs during each week of June, which is safety month.  Aaron also helps curate the firm’s annual webinar series – the OSHA Webinar Series and the Labor and Employment Webinar Series and is a frequent contributor to CMC’s blogs – the OSHA Defense Report and the Employer Defense Report.

In addition to his legal practice, Aaron works closely with CMC’s founding partners to help them realize their vision for the firm’s future, acts as a mentor to new partners and associates, actively recruits lateral partner and associate candidates, and helps craft the firm’s strategic marketing plan, including the firm’s social media efforts. Passionate about ensuring equal access to justice for all, Aaron is an active member of the Chicago Lawyers Committee for Civil Rights Under Law and is a frequent participant in the Northern District of Illinois’ Settlement Assistance Program in which he presents pro se litigants in court-led settlement conferences.  At the height of the pandemic, Aaron served as a panelist during a program focused on compliance and legal concerns facing Black-owned small businesses struggling to survive in the face of COVID-19.

Get to Know Aaron! Continue reading

Virginia OSHA Rescinds Its “Permanent” COVID-19 Rule and Introduces New Workplace Guidance

By Conn Maciel Carey’s COVID-19 Task Force

Under the direction of then-Democratic Governor Ralph Northam, the Commonwealth of Virginia was the very first U.S. State to implement a broad, all-industry programmatic COVID-19 emergency temporary standard (“ETS”) way back in July 2020.  Through all the fits and starts with federal OSHA’s COVID-19 rulemaking, VOSH’s COVID-19 regulation was a consistent presence through most of the pandemic.  Indeed, that ETS was made “permanent” in January 2021, months before federal OSHA had even adopted its COVID-19 ETS for Healthcare.

However, on his first day in office – January 15, 2022 – new Virginia Governor Glenn Younkin signed an Executive Order directing the Virginia Safety and Health Codes Board (“Board”) to determine whether there was a continuing need for these regulations (with more than a little pressure from the Governor’s office to conclude it was not).  Not surprisingly, under that political pressure, and in the wake of the Supreme Court’s harsh decision about federal OSHA’s authority to regulate COVID-19, by mid-February, the Board had adopted the position of the Virginia Department of Labor and Industry (“DOLI”) that “based on emerging scientific and medical evidence, [COVID-19] no longer constitute[s] a grave danger to employees in the workplace.”

That Board finding started a 30-day clock for public notice and comment about the Board’s intention to repeal the rule, and as expected, the Board voted on March 21st to rescind the ETS (effective March 23rd, 2022).

So where does that leave Virginia employers?  Continue reading

[Webinar] Religious and Disability Accommodations in Response to COVID-19 Mandates

On Thursday, April 7, 2022 at 1 p.m. ET, join Andrew J. Sommer and Lindsay A. DiSalvo for a webinar regarding Religious and Disability Accommodations in Response to COVID-19 Mandates.

Employee requests for medical and/or religious accommodations in the workplace are not new. However, never before have these accommodation requests been such a hot-button topic, nor have these accommodation requests been used so frequently (and in particular, religious accommodation requests). The imposition of COVID-19 vaccine mandates has changed that, particularly with regard to religious accommodation requests, which has become the ultimate “gray area,” as both employers and employees alike have learned that sincerely held religious belief can include an employee’s religious-based objection to vaccinations. As a result, the Equal Employment Opportunity Commission (“EEOC”) has issued guidance regarding the obligations of employers under Title VII when an employee presents with a religious objection to a mandatory COVID-19 vaccination policy, which actually builds upon prior EEOC guidance regarding COVID-19 vaccinations in the employment context. Thus, there are multiple issues that employers need to keep in mind and juggle when addressing these vaccination accommodation requests.

Participants in this webinar will learn how to best deal with such requests by their employees, including: Continue reading

OSHA’s Rulemaking to Expand the Electronic Recordkeeping Rule

By Eric J. Conn

Who else misses the time when OSHA would issue a new regulation only once every decade or so?!?!  Alas, OSHA has been quite busy the last few months on the rulemaking front, and it doesn’t seem to be slowing down anytime soon.  You’ve heard a lot from us about the various COVID-19 rulemaking efforts – two emergency standards and a new effort to make permanent the COVID-19 standard for healthcare.  Now, OSHA has turned its attention to a more traditional OSHA subject – injury and illness recordkeeping.

Specifically, on March 30th, OSHA published a new proposed rule to dramatically expand the requirements of its Improve Tracking of Workplace Injuries and Illnesses Rule; i.e., the Electronic Recordkeeping Rule.

Background on OSHA’s E-Recordkeeping Requirements

OSHA first issued regulations requiring that employers record occupational injuries and illnesses in 1971.  Pursuant to 29 CFR 1904.7, employers must keep records of work-related injuries and illnesses that involve death, loss of consciousness, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or diagnosis of a significant injury or illness by a physician or other licensed health care professional.  Additional requirements were added for Reporting of Fatality and Multiple Hospitalization Incidents, and later, in 2014, OSHA expanded the types of incidents that had to be reported to OSHA; i.e., a single in-patient hospitalization, amputations, and losses of an eye. (79 FR 56130)

In 2016 (amended in 2018), annual electronic injury recordkeeping data submissions to OSHA became mandatory both for establishments with 250 or more employees, and establishments with 20-249 employees in certain designated industries.  The current version of the E-Recordkeeping Rule has undergone some changes and revisions, and indeed, as we have chronicled in the past,  the E-Recordkeeping Rule has had a long and tortured history.  Before promulgation of the E-Recordkeeping Rule, unless OSHA opened an enforcement inspection at an employer’s workplace or the Bureau of Labor Statistics requested an employer’s participation in its annual injury data survey, employer injury and illness recordkeeping data was maintained internally by employers. In a major policy shift, in 2016, President Obama’s OSHA enacted the E-Recordkeeping Rule, requiring hundreds of thousands of workplaces to proactively submit injury and illness data to OSHA through OSHA’s Injury Tracking Application (“ITA”).  More specifically, the 2016 E-Recordkeeping Rule required: Continue reading

BREAKING – OSHA Launches New COVID-19 Enforcement Blitz for Healthcare Employers

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

On Tuesday, March 8th, OSHA announced a major COVID-19 enforcement blitz in the healthcare industry that will last for the next three months.  OSHA issued an enforcement memorandum announcing the enforcement program, which OSHA is referring to as a major “saturation effort,” to ensure that hospitals and others in the healthcare industry have appropriate COVID-19 mitigation protocols in place to protect workers today and are prepared for a future variant.  The program will be comprised of a short-term burst of highly-focused inspections directed at hospitals and skilled nursing care facilities that treat COVID-19 patients.  Below is a summary of who is covered, when the enforcement effort will end, the impact on State OSH Plans, and what to expect during the inspections.

OSHA states that the goal of this inspection program is to expand its presence to ensure continued mitigation of the spread of COVID-19 and preparation for future variants of the SARS-CoV-2 virus, and to protect the health and safety of healthcare workers at heightened risk for contracting the virus.  New Assistant Secretary of Labor for OSHA Doug Parker stated:

“We are using available tools while we finalize a healthcare standard….  We want to be ahead of any future events in healthcare.”

OSHA plans to conduct as many as 1,000-1,500 inspections in the next 90 days to determine whether hospital and other healthcare workers are being adequately protected from COVID-19 spread at work.  The inspections will last 2-4 days and will focus on what had been the major elements of OSHA’s COVID-19 Emergency Temporary Standard for Healthcare.  The OSHA resources designated for this enforcement blitz and the revised COVID-19 National Emphasis Program (NEP) will comprise at least 15% of OSHA’s enforcement activity for the year.

Who is Covered by the Enforcement Effort?

The initiative supplements OSHA’s targeted enforcement under the Revised COVID-19 NEP [DIR 2021-03 (CPL 03)], by conducting focused, partial follow-up and monitoring inspections of previously inspected or investigated hospitals and skilled nursing care facilities within four North American Industry Classification System (NAICS) codes listed in the enforcement memorandum, where COVID-19 citations or Hazard Alert Letters were issued, including remote-only inspections where COVID-19-related citations were issued.  Specifically, facilities in the four NAICS codes listed below may be selected for inspections under the initiative if they meet one of the following criteria: Continue reading

Conn Maciel Carey LLP Hires Mikel Smith Koon as Chief Operating Officer

Conn Maciel Carey LLP, a boutique law firm with national practices in labor and employment, workplace safety (OSHA and MSHA), and litigation, welcomes Mikel Smith Koon in the new position of Chief Operating Officer.

Ms. Koon brings over 20 years of experience in business management, working with both large corporations and small businesses. For 15 of those years, she ran her own consulting firm, using her expertise in project and people management to service her clients. As Conn Maciel Carey’s COO, she manages essential business processes, ensuring the efficiency of the firm’s business functions. More importantly, she fills a new role made necessary by the firm’s significant growth.

“Being a relatively young firm,” says Eric Conn, Chair of the firm’s OSHA Practice, “we’ve graduated from a startup to an established, national firm. We’ve tripled in size. So, we need someone with the talent, experience and savvy to manage the firm’s growingly complex operations.”

As part of the leadership team, she works directly with the Managing Partners to develop and implement the firm’s strategic plan to elevate CMC to the next level. Continue reading

VOSH Begins the Process of Withdrawing its “Permanent” COVID-19 Rule

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

Last Wednesday (February 16th), at the direction of Virginia’s new Governor, Virginia OSHA’s Safety and Health Codes Board voted to withdraw VOSH’s COVID-19 Regulation. The Board’s vote came after VOSH recommended that COVID-19 no longer constituted a “grave danger,” the legal showing required to justify an emergency rule.  Procedurally, the board vote was just the first step. Next is a 30-day public comment period, followed by a public hearing, then a final Board vote. If the measure is in fact repealed after the final Board vote, then Virginia employers would no longer have to require employees who work indoors to wear a face covering,; social distance; provide employee training; improve or maintain ventilation systems; or inform the VA Department of Health about outbreaks.

Although this move comes in lock step with Friday’s CDC announcement that it is rescinding mask guidance, along with other states like California and New Jersey rescinding their mask mandate, on January 15th Virginia’s newly elected Governor Glenn Youngkin issued an Executive Order instructing the Board to Continue reading

CDC Relaxes Face Covering and Distancing Guidelines

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

As governors and big city mayors across the country have been allowing indoor masking mandates to expire over the last few weeks, last Friday, February 25th, the CDC unveiled a brand new approach to assessing COVID-19 risks and setting mask and distancing recommendations.   The CDC’s old tool, which measured the number of COVID-19 cases to determine the relevant level of virus transmission in each community had lost its usefulness as it rendered nearly the entire country as high-risk (95% of all counties), even as the number of people getting seriously ill had dropped precipitously this year.

CDC’s new guidelines measure the impact the pandemic by looking at three factors week over week:

  1. New cases per capita (as with the prior guidelines; but also
  2. New COVID-19 related hospital admissions; and
  3. The percentage of area hospital beds occupied by COVID-19 patients.

Each county will have a weekly “COVID Community Level Rating” that is either Low (green), Medium (yellow) or High (orange).  Each level/color has recommended mitigation strategies, set in the table below:

Here is a link to CDC’s tool to identify the level of COVID-19 transmission in your county.

The big news is that CDC recommends Continue reading

Celebrating Black History Month

Black History Month is a time to recognize the contributions of Black Americans throughout U.S. history.  As the month comes to a close, Conn Maciel Carey Partner, Aaron Gelb, reflects on African American mentors and peers who have impacted his life both personally and professionally.

I’ve been fortunate during my life and career to have been influenced and shaped by several African American mentors, friends, and colleagues.  Starting at the beginning, my godfather, Sidney Bertrand, had a big influence on me as I remember spending time with him and his wife, Zelda, at their apartment on 125th Street in Harlem as a young kid, having sleepovers, etc.  Although Sidney succumbed to cancer at a relatively young age, his efforts in the face of adversity taught me a lot.

When I was in college at the University of Chicago, I worked as a teaching assistant to Continue reading

OSHA’s COVID-19 Emergency and Permanent Standards and Enforcement [Webinar Recording]

On Thursday, February 10, 2022, Eric J. ConnKate McMahonAaron Gelb and Amanda Strainis-Walker presented a webinar regarding OSHA’s COVID-19 Emergency and Permanent Standards and Enforcement.

As US employers grapple with the latest surge of COVID-19 cases from the Omicron variant, they are also left to grapple with uncertainty following the Supreme Court’s decision to reinstitute a Stay of OSHA’s Vaccinate-or-Test ETS. Will we see another COVID-19 emergency rule that tries to navigate the guardrails set by the Supreme Court? Will OSHA return to aggressive enforcement under the OSH Act’s General Duty Clause? What is expected from employers on the COVID-19 front to avoid OSHA enforcement?

During this webinar, attorneys from CMC’s COVID-19 Task Force provided a detailed analysis of OSHA’s regulatory and enforcement landscape post-Supreme Court. Specifically, we addressed these important questions raised by the latest developments on the COVID-19 front: Continue reading

Conn Maciel Carey LLP Promotes Lindsay DiSalvo to Partner in Washington, DC Practice

Conn Maciel Carey LLP, a boutique law firm with national practices in labor and employment, workplace safety (OSHA and MSHA), and litigation, is pleased to announce that Lindsay DiSalvo has been promoted to Partner in the firm’s Washington, DC office.

Ms. DiSalvo defends employers in OSHA inspections, investigations, and litigation. She also represents and advises employers in all phases of the employer-employee relationship. Ms. DiSalvo was the firm’s very first Associate, joining the firm the day it was founded in 2014.

“She has been a backbone of the firm since we launched,” says Eric Conn, a co-founding partner and Chair of the firm’s national OSHA Practice. “I am excited to finally call her my Partner. She has grown into one of the finest OSHA lawyers in the country.”

“I have been working toward this my entire career,” Ms. DiSalvo says. “It is particularly exciting to be chosen by people I have been working with since the beginning. I feel like I helped build this firm, and now I am a Partner. I feel honored.”

Mr. Conn adds, “As a specialty boutique firm, what sets us apart is the mastery of the nuance of the practices for which we are known – workplace safety and employment law.  Ms. DiSalvo Continue reading

[WEBINAR] OSHA’s COVID-19 Emergency and Permanent Standards and Enforcement

On Thursday, February 10, 2022 at 1 p.m. EST, join Eric J. Conn, Kate McMahon, Aaron Gelb and Amanda Strainis-Walker for a webinar regarding OSHA’s COVID-19 Emergency and Permanent Standards and Enforcement.

As US employers grapple with the latest surge of COVID-19 cases from the Omicron variant, they are also left to grapple with uncertainty following the Supreme Court’s decision to reinstitute a Stay of OSHA’s Vaccinate-or-Test ETS. Will we see another COVID-19 emergency rule that tries to navigate the guardrails set by the Supreme Court? Will OSHA return to aggressive enforcement under the OSH Act’s General Duty Clause? What is expected from employers on the COVID-19 front to avoid OSHA enforcement?

During this webinar, attorneys from CMC’s COVID-19 Task Force will provide a detailed analysis of OSHA’s regulatory and enforcement landscape post-Supreme Court. Specifically, we will address these important questions raised by the latest developments on the COVID-19 front: Continue reading

OSHA COVID-19 Regulation and Enforcement Post-Supreme Court [Webinar Recording]

On Thursday, January 20, 2022 we hosted a special bonus event in Conn Maciel Carey’s 2022 OSHA Webinar Series in the form of a panel webinar program regarding OSHA COVID-19 Regulation and Enforcement After the Supreme Court Stayed the Vaccinate-or-Test ETS.

Presented by
Conn Maciel Carey LLP with Special Guests
Neal Katyal and Jordan Barab

In this exclusive, bonus program we facilitated a panel discussion regarding the Supreme Court’s recent decision to stay OSHA’s Vaccinate-or-Test emergency temporary standard, what that decision means for employers in fed OSHA and State OSH Plan states, and how OSHA will address the COVID-19 hazard in the workplace moving forward.

We would like to extend our gratitude to our remarkable cast of panelists for participating in this event:

  • Neal Katyal – former Acting Solicitor General of the United States and leading Constitutional Law expert; Partner at Hogan Lovells and Professor of Law at Georgetown University Law Center
  • Jordan Barab – President Obama’s Deputy Assistant Secretary of Labor for OSHA and Acting Head of OSHA; former Sr. Policy Advisor to the US House Education and Labor Committee
  • Moderated by Eric J. Conn, Chair, Conn Maciel Carey LLP’s national OSHA Practice Group

The Supreme Court has spoken, and OSHA’s Vaccination, Testing and Face Coverings Emergency Temporary Standard is once again subject to a nationwide judicial stay.  The conservative majority on the Court reasoned that the 50-year old OSH Act does not include an explicit-enough delegation of authority from the US Congress for OSHA to issue a regulation that addresses an issue that is not unique to the workplace and which is of such great economic and social significance. Shortly after the Supreme Court issued its decision, Secretary of Labor Marty Walsh announced that “OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.”

So, the big question facing employers now is what are the potential regulatory pitfalls from unwinding or stopping the implementation of any of their COVID-19 prevention and/or vaccination policies developed either in response to OSHA’s Vaccinate-or-Test ETS or more general efforts to keep up with CDC recommendations and/or protect against OSHA General Duty Clause citations?  Or said another way, without the COVID-19 emergency standards, what does OSHA expect from employers on the COVID-19 front to avoid enforcement?

Our panel of experts reviewed: Continue reading

[Panel Webinar] OSHA COVID-19 Regulation and Enforcement Post-Supreme Court

Block your calendars and make sure you join us on Thursday, January 20th at 3 PM ET for a very special bonus event in Conn Maciel Carey’s 2022 OSHA Webinar Series in the form of a panel webinar program regarding OSHA COVID-19 Regulation and Enforcement After the Supreme Court Stayed the Vaccinate-or-Test ETS.

Presented by
Conn Maciel Carey LLP with Special Guests
Neal Katyal and Jordan Barab

In this exclusive, bonus program we will facilitate a panel discussion regarding the Supreme Court’s recent decision to stay OSHA’s Vaccinate-or-Test emergency temporary standard, what that decision means for employers in fed OSHA and State OSH Plan states, and how OSHA will address the COVID-19 hazard in the workplace moving forward.

We are especially excited to be hosting a remarkable cast of panelists for this event:

  • Neal Katyal – former Acting Solicitor General of the United States and leading Constitutional Law expert; Partner at Hogan Lovells and Professor of Law at Georgetown University Law Center
  • Jordan Barab – President Obama’s Deputy Assistant Secretary of Labor for OSHA and Acting Head of OSHA; former Sr. Policy Advisor to the US House Education and Labor Committee
  • Moderated by Eric J. Conn, Chair, Conn Maciel Carey LLP’s national OSHA Practice Group

The Supreme Court has spoken, and OSHA’s Vaccination, Testing and Face Coverings Emergency Temporary Standard is once again subject to a nationwide judicial stay.  The conservative majority on the Court reasoned that the 50-year old OSH Act does not include an explicit-enough delegation of authority from the US Congress for OSHA to issue a regulation that addresses an issue that is not unique to the workplace and which is of such great economic and social significance. Shortly after the Supreme Court issued its decision, Secretary of Labor Marty Walsh announced that “OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.”

So, the big question facing employers now is what are the potential regulatory pitfalls from unwinding or stopping the implementation of any of their COVID-19 prevention and/or vaccination policies developed either in response to OSHA’s Vaccinate-or-Test ETS or more general efforts to keep up with CDC recommendations and/or protect against OSHA General Duty Clause citations?  Or said another way, without the COVID-19 emergency standards, what does OSHA expect from employers on the COVID-19 front to avoid enforcement?
Continue reading

OSHA’s 2021 Year in Review and 2022 Forecast [Webinar Recording]

On January 12, 2022, the Partners in Conn Maciel Carey’s national OSHA Practice Group on presented the kickoff event in Conn Maciel Carey’s 2022 OSHA Webinar series.  This first program of the year, as is tradition, was OSHA’s 2021 Year in Review and 2022 Forecast.

As we kickoff Year 2 of the Biden Administration, it is time to look back and take stock of what we learned from and about OSHA during the very eventful year that just concluded.  And more importantly, it is time to look ahead and assess what to expect from OSHA now that OSHA’s full senior leadership team is in place and ready to put its stamp on the agency.

In this webinar, the Partners in Conn Maciel Carey’s national OSHA Practice Group reviewed OSHA enforcement, rulemaking, and personnel developments from 2021. We also discussed the top OSHA issues employers should monitor and prepare for in the New Year.

Participants in this webinar learned about: Continue reading

Chicago’s New Year Vaccine Requirements

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

As COVID-19 cases continue to rise throughout the state of Illinois, operators of indoor dining establishments, gyms, and entertainment venues where food and drinks are being served in the City of Chicago face a series of new requirements that necessitate quick action. Beginning January 3, 2022, Public Health Order 2021-2 will require all individuals over the age of 5, show proof of full vaccination to dine indoors, workout, and patronize entertainment venues. For purposes of the Public Health Order, fully vaccinated is the more restrictive of either the Centers for Disease Control and Prevention (CDC) guidance or Chicago Department of Public Health (CDPH) posted guidelines. For the time being, both the CDC and CDPH guidelines are aligned, defining fully vaccinated as two weeks after receiving the second dose in a two dose vaccination series and one week after receiving a single dose in a single dose vaccination series.  It remains to be seen if, or when, the recommended-but-not-required boosters will be added to that definition.

Employers, of course, must quickly figure out how to implement measures to comply with this Order—both with respect to customers/guests as well as with employees given that the Order does not have a minimum employee threshold like the Fed OSHA ETS.  This means that even small, independently owned restaurants and bars will be expected to comply even if they were not covered by the ETS which kicked in only at 100 employees.

Who is covered?

Public Health Order 2021-2 applies to the following venues: Continue reading

Conn Maciel Carey’s 2022 OSHA Webinar Series

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.


2022 OSHA Webinar Series – Program Schedule

Continue reading

CDC Relaxes Isolation and Quarantine Recommendations – How Does That Affect OSHA’s Vaccinate-or-Test ETS?

By Conn Maciel Carey’s COVID-19 Task Force

On December 27, 2021, the CDC updated and shortened its recommended isolation and quarantine periods for the general population.  To be precise, yesterday CDC issued a media statement laying out its new guidance, but CDC’s actual Isolation Guidance webpage has not yet been updated.  CDC explained in the statement that:

“[b]oth updates [to the isolation and quarantine periods] come as the Omicron variant continues to spread throughout the U.S. and reflects the current science on when and for how long a person is maximally infectious.”

What are CDC’s New Isolation and Quarantine Guidelines? 

With respect to isolation (which relates to behavior after a confirmed infection), CDC states:

“[g]iven what we currently know about COVID-19 and the Omicron variant, CDC is shortening the recommended time for isolation from 10 days for people with COVID-19 to 5 days, if asymptomatic, followed by 5 days of wearing a mask when around others.”

Explaining the change, CDC maintains that it is “motivated by science demonstrating that the majority of SARS-CoV-2 transmission occurs early in the course of illness, generally in the 1-2 days prior to onset of symptoms and 2-3 days after. Therefore, people who test positive should isolate for 5 days, and if asymptomatic at that time, they may leave isolation if they mask for 5 days to minimize the risk of infecting others.”

Additionally, with respect to quarantine (which refers to the time following exposure to the virus or close contact with someone known to have COVID-19), CDC states: Continue reading

OSHA’s Vaccinate-or-Test ETS in the Hands of the Supreme Court

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

As we shared over the weekend, at 6:50 PM on Friday night (December 17th), a three-judge panel at the US Court of Appeals for the Sixth Circuit dissolved the nationwide stay of OSHA’s Vaccinate-or-Test ETS that had been issued in early November by the Fifth Circuit.  That same night, several of the petitioners in the legal challenges to the ETS appealed the Sixth Circuit’s decision to the Supreme Court.

As we have been discussing for a while, the decision about the Stay of the ETS (and ultimately the legality of the ETS) was destined for the Supreme Court, and the Court, at least on the issue of the TRO/Stay, could choose to address the question either by:

  • the so-called “shadow docket,” with no briefing and a decision perhaps issued by a single Justice; or
  • more conventional proceedings, with briefing and oral argument, and likely a decision by all nine Justices.

Each of the nine Justices on the US Supreme Court is assigned to oversee one or more of the regional US courts of appeals.  Justice Kavanaugh is the justice assigned to the Sixth Circuit, to oversee requests for emergency review or shadow docket consideration from cases before the Sixth Circuit.  Justice Kavanaugh is part of what is becoming something of a triad of swing voters on the Court, along with justice Coney Barrett and Chief justice Roberts.

On Monday, Justice Kavanaugh issued an Order to the Department of Labor to submit briefing in response to the emergency petitions with a deadline of 4 PM on Thursday, December 30th.  The Order does not provide for any additional briefing by petitioners or friends of the court.  Then, just a few hours ago, the Court issued another Order setting the case for oral argument a week later, on January 7, 2022.

We now have a clearer picture of Continue reading

New York City Issues Private Employer Vaccine Mandate

By Dan C. Deacon

For those of you with establishments in New York City, note that this week, Mayor Bill de Blasio and the New York City Commissioner of Health and Mental Hygiene issued a private employer vaccinate mandate, and yesterday published this implementation guidance for employers.

The key provisions of the mandate include:

1.  Beginning December 27, 2021, workers must provide proof of vaccination against COVID-19 to a covered entity before entering the workplace, and a covered entity must exclude from the workplace any worker who has not provided such proof, unless they are provided an accommodation for a disability or religious reason.

    • “Covered entity” means:
      • a non-governmental entity that employs more than one worker in New York City or maintains a workplace in New York City; or
      • a self-employed individual or a sole practitioner who works at a workplace or interacts with workers or the public in the course of their business.
    • “Worker” means an individual who works in-person in New York City at a workplace. Worker includes a full- or part-time staff member, employer, employee, intern, volunteer or contractor of a covered entity, as well as a self-employed individual or a sole practitioner.
      • Worker does not include:
        • an individual who works from their own home and whose employment does not involve interacting in-person with co-workers or members of the public;
        • an individual who enters the workplace for a quick and limited purpose (such as to use the bathroom, make a delivery, or clocking in and receiving an assignment before leaving to begin a solitary assignment); or
        • non-City residents who are performing artists, college or professional athletes, or individuals accompanying such performing artists or college or professional athletes who do not have to display proof of vaccination pursuant to the Key to NYC program, Emergency Executive Order No. 316 and successor Orders.
    • “Workplace” means any location, including a vehicle, where work is performed in the presence of another worker or member of the public.
    • “Proof of vaccination” means one of the following documents demonstrating that an individual has (1) been fully vaccinated against COVID-19; (2) received one dose of a single-dose COVID-19 vaccine; or (3) received the first dose of a two dose COVID-19 vaccine, provided that a worker providing proof of only such first dose provides proof of receiving the second dose of that vaccine within 45 days after receiving the first dose:
      • A CDC COVID-19 Vaccination Record Card or other official immunization record from the jurisdiction, city, state, or country where the vaccine was administered, or from a healthcare provider or other approved immunizer who administered the vaccine, that provides the person’s name, vaccine brand, and date of administration. A digital photo or photocopy of such record is also acceptable.
      • New York City COVID Safe App showing a vaccination record;
      • A valid New York State Excelsior Pass/Excelsior Pass Plus;
      • CLEAR Health Pass; or
      • Any other method specified by the Commissioner as sufficient to demonstrate proof of vaccination.

2.  Workers in New York City who perform in-person work or interact with the public in the course of business must show proof they have received at least one dose of a COVID-19 vaccine by December 27th.

        • Workers will then have 45 days to show proof of their second dose (for Pfizer or Moderna vaccines).

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Employment Law Implications of the OSHA ETS: Medical and Religious Accommodation Requests

By Ashley D. Mitchell

Published in the Federal Register on November 5, 2021, the Federal OSHA Emergency Temporary Standard on Vaccination and Testing (“ETS”) first major compliance deadline was December 6, 2021. However, as a result of a stay entered by the 5th Circuit, and the 6th Circuit’s refusal to grant the Biden Administration’s petition to move up the briefing schedule, OSHA cannot begin enforcing, and has ceased all action, including answering employer questions about, the standard. (For continued updates on the status of the ETS review our Employer Defense Report and OSHA Defense Report.) Accommodation,Sign,With,Sky,BackgroundAs outlined in greater detail in a previous blog, the ETS generally requires employers with 100 or more employees to: develop employer policies on vaccination; provide paid time off for vaccination and to recover from vaccination; require employees to provide proof of full vaccination or submit to weekly testing; require unvaccinated workers to wear a face covering; remove COVID-19 positive cases from the workplace; and inform employees about the requirements of the ETS, COVID-19 vaccine efficacy and safety, prohibited retaliation, and the criminal penalties associated with knowingly supplying false statements or documentation. Given the robust requirements of the ETS, employers would be well advised to put in place mechanisms for compliance with the ETS in the event the stay is lifted, particularly if there is no delay in compliance deadlines. One important consideration is how to handle ETS-related medical and religious accommodation requests.

1. Background

Title I of the Americans with Disabilities Act of 1990 (ADA) requires employers to provide a reasonable accommodation, so long as it does not Continue reading