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 national 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 Recordkeeping

By Conn Maciel Carey’s COVID-19 Task Force

Many of you are likely knee-deep in ensuring that your facilities are in compliance with the various components of OSHA’s new Emergency Temporary Standard, with the July 6th compliance deadline upon us.  Our CMC COVID-19 Taskforce has reviewed all 1,000+ pages of OSHA’s ETS and supporting documentation and has as good an understanding of what is required as one can have – although OSHA has left some big question marks and caused a fair amount of head scratching in some areas.  To help you understand precisely what is required of your covered facilities, and to assist with compliance implementation, we have prepared summaries of the major requirements of the ETS.  Look for our summaries here each day over the next week.  The devil is in the details, however, so please reach out if you would like a more nuanced understanding of how the standard applies to your particular facility and what steps you need to take to ensure you are in compliance – and avoid an enforcement action under OSHA’s COVID-19 National Emphasis Program.

Here is a summary of the ETS requirements for recordkeeping:

Recordkeeping

29 C.F.R. Section 1910.502(q) establishes a new recordkeeping obligation applicable to covered employers requiring the creation and maintenance of a dedicated COVID-19 Log, while leaving in place the existing requirements applicable to all employers (including employers covered by the ETS) to record workplace COVID-19 cases that meet the Section 1904 recordkeeping criteria threshold (days away from work, etc.) on the employer’s OSHA 300 Log.  It also establishes recordkeeping obligations for the COVID-19 Plan that is required by Section 1910.502(c) of the ETS.  This summary describes the new requirements for COVID-19 recordkeeping.

The ETS requires covered employers — unless they have 10 or fewer employees in the entire company — to create, maintain, and make available to regulators COVID-19 records. Most notably, this requires covered employers to maintain a COVID-19 Log on which they must record every instance of a COVID-19-positive employee, whether or not the illness is work-related¸ with the limited exception of employees who exclusively telework.  Unlike an OSHA 300 Log, for which employers have seven days to record an injury or illness, positive COVID-19 cases must be recorded on the COVID-19 Log within 24 hours of learning of the positive diagnosis.  (Note that the 10 or fewer employee exemption applies to the new COVID-19 Log recordkeeping obligations only and not to a covered employer’s obligation to report work-related COVID-19 fatality or in-patient hospitalizations.) Continue reading

Fed OSHA’s COVID-19 ETS: What You Need to Know About Hazard Assessments and COVID-19 Plans

By Conn Maciel Carey’s COVID-19 Task Force

Many of you are likely knee-deep in ensuring that your facilities are in compliance with the various components of OSHA’s new Emergency Temporary Standard, with the July 6th compliance deadline nearly upon us.  Our CMC COVID-19 Taskforce has reviewed all 1,000+ pages of OSHA’s ETS and supporting documentation and has as good an understanding of what is required as one can have – although OSHA has left some big question marks and caused a fair amount of head scratching in some areas.  To help you understand precisely what is required of your covered facilities, and to assist with compliance implementation, we have prepared summaries of the major requirements of the ETS.  Look for our summaries here each day over the next week.  The devil is in the details, however, so please reach out if you would like a more nuanced understanding of how the standard applies to your particular facility and what steps you need to take to ensure you are in compliance – and avoid an enforcement action under OSHA’s COVID-19 National Emphasis Program.

One of the first steps employers must take is to conduct a hazard assessment of your operations to determine those areas where risk of virus transmission exists, and to then develop a response plan for dealing with those risks.  The hazard assessment findings and your plans for transmission mitigation must be incorporated into a written COVID-19 Plan.  Here is a summary of the ETS requirements for conducting the hazard assessment and preparing a written plan:

29 C.F.R. Section 1910.502(c) requires all employers covered by the ETS to develop and implement a COVID-19 Plan for each workplace. If the employer has more than 10 employees, the Plan must be written. This summary describes the requirements associated with the COVID-19 Plan.

Before developing the Plan, employers must conduct a workplace specific hazard assessment for the purpose of identifying and understanding where potential COVID-19 hazards exist and what controls must be implemented to reduce those hazards. Employers must inspect the entire workplace and the hazard assessment should: Continue reading

Federal OSHA’s New COVID-19 ETS Standard and Updated COVID-19 Workplace Guidance [Webinar Recording]

On Wednesday, June 16, 2021, Conn Maciel Carey’s national OSHA Practice presented a webinar regarding Federal OSHA’s New COVID-19 ETS Standard and Updated COVID-19 Workplace Guidance.

On June 10th, federal OSHA finally revealed its much anticipated COVID-19 Emergency Temporary Standard (ETS), but rather than a rule applicable to all industries, OSHA developed a regulation that is narrowly tailored only to certain healthcare settings. For everyone else, federal OSHA simultaneously published significant updates to its workplace COVID-19 guidance that it had originally prepared in Jan. 2021 in response to President Biden’s Day 1 OSHA Executive Order.

The COVID-19 ETS, and its 900+ page Preamble, is a dizzying piece of regulation.  While there are lots of generalizations about how it applies only to hospital settings, there are quirks in the Applicability section that could sweep in other employers, including on-site medical clinics at manufacturing plants, COVID-19 testing facilities in otherwise non-healthcare workplaces, and general facilities support at healthcare locations, such as maintenance, housekeeping, and laundry services.  And in terms of substantive provisions, the ETS does depart from the COVID-19 landscape we have all grown accustomed to over the past year and a half – the ETS requires creation of new roles, will likely require updates to written prevention plans and training, may require new engineering installations and work on HVAC systems, and will definitely affect record making, recordkeeping, and reporting policies.

The updated guidance for all other industries will also likely result in material changes to the way employers are managing the COVID-19 crisis in the workplace.  However, those will be mostly welcome changes, as, at its core, OSHA’s updated guidance aligns OSHA’s recommendations with the CDC’s May guidance regarding dropping masks and distancing for fully vaccinated workers.  But the devil is in the details.

Participants in this webinar learned the following: Continue reading

New Guidance Recommends Employers Engage with Employees and Unions to Mitigate COVID-19 in the Workplace

By: Conn Maciel Carey’s COVID-19 Taskforce

On June 10th, federal OSHA published significant updates to its principal workplace COVID-19 guidance – Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.  This was an update to the original version that issued on January 29, 2021 in response to Pres. Biden’s Day 1 OSHA Executive Order, and the first time it has been updated since the COVID-19 vaccines became widely available.

At its core, OSHA’s new guidance was updated to align with CDC’s May 13, 2021 guidance regarding relaxing requirements for vaccinated individuals and advises that, unless otherwise required by another jurisdiction’s laws, rules, or regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure.

To the extent workers are not vaccinated or are otherwise at risk, however, OSHA states that employers must continue to implement controls to help protect them, include:

  • separating from the workplace all infected people, all people experiencing COVID symptoms, and any unvaccinated people who have had a close contact with someone with COVID-19
  • implementing physical distancing
  • maintaining ventilation systems, and
  • enforcing the proper use of face coverings or PPE when appropriate.

Importantly, OSHA recommends employers engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated and otherwise at-risk workers and mitigate the spread of COVID-19 by taking some combination of these actions: Continue reading

Cal/OSHA’s COVID-19 ETS To Be Updated This Week — And They Mean It This Time

By Andrew J. Sommer and Eric J. Conn

We are barreling towards major changes to Cal/OSHA’s COVID-19 requirements for California employers expected to take effect on Thursday or Friday of this week.

After the back and forth with the last revised ETS that was voted down, then approved minutes later, the clawed back a few days later to make way for another revised ETS, late last week, Cal/OSHA released the new revised text for its COVID-19 ETS.

The text of what appears now to become the official updated version of Cal/OSHA COVID-19 ETS is available here, and a redline comparison with the presently effective text is here.  Additionally, DOSH has just issued these FAQs clarifying the intent of the proposed revised COVID-19 ETS.

Below is our summary of the major substantive changes coming to the ETS, as compared to the prior proposed revisions (subsequently withdrawn), as well as highlighted guidance that interprets or expands on these anticipated new regulatory requirements.

Substantive Revisions to the ETS Text

As expected, these latest changes were limited given the short window for issuing revisions following the Standards Board’s special meeting earlier this week.  We understood Continue reading

[Webinar] Federal OSHA’s New COVID-19 Emergency Temporary Standard and Updated COVID-19 Workplace Guidance

On Wednesday, June 16, 2021 at 1:00 p.m. ET, join Conn Maciel Carey’s national OSHA Practice for a webinar regarding Federal OSHA’s New COVID-19 ETS and Updated COVID-19 Workplace Guidance.

On June 10th, federal OSHA finally revealed its much anticipated COVID-19 Emergency Temporary Standard (ETS), but rather than a rule applicable to all industries, OSHA developed a regulation that is narrowly tailored only to certain healthcare settings.  For everyone else, federal OSHA simultaneously published significant updates to its workplace COVID-19 guidance that it had originally prepared in January 2021in response to President Biden’s Day 1 OSHA Executive Order.

The COVID-19 ETS, and its 900+ page Preamble, is a dizzying piece of regulation.  While there are lots of generalizations about how it applies only to hospital settings, there are quirks in the Applicability section that could sweep in other employers, including on-site medical clinics at manufacturing plants, COVID-19 testing facilities in otherwise non-healthcare workplaces, and general facilities support at healthcare locations, such as maintenance, housekeeping, and laundry services.  And in terms of substantive provisions, the ETS does depart from the COVID-19 landscape we have all grown accustomed to over the past year and a half – the ETS requires creation of new roles, will likely require updates to written prevention plans and training, may require new engineering installations and work on HVAC systems, and will definitely affect record making, recordkeeping, and reporting policies.

The updated guidance for all other industries will also likely result in material changes to the way employers are managing the COVID-19 crisis in the workplace.  However, those will be mostly welcome changes, as, at its core, OSHA’s updated guidance aligns OSHA’s recommendations with the CDC’s May guidance regarding dropping masks and distancing for fully vaccinated workers.  But the devil is in the details.

Participants in this webinar will learn the following: Continue reading

[RESCHEDULED] Cal/OSHA’S Revised COVID-19 Emergency Temporary Standard

Because the Cal/OSHA Standards Board has just pulled back the revisions to the Cal/OSHA COVID-19 Emergency Temporary Standard (ETS) and will consider other revisions at its June 17th meeting, we have rescheduled our webinar “Cal/OSHA’s Revised COVID-19 Emergency Temporary Standard” for June 18, 2021, at 10 a.m. PT.

As background, the Standards Board voted to withdraw the recently approved revised version of the ETS.  The Division is going to introduce by Friday June 11th a new proposed revised ETS that better aligns with Centers for Disease Control and Prevention and California Department of Public Health guidance (i.e., no masking for fully vaccinated workers even if there are some unvaccinated people present).  The new revised ETS that is expected to issue will be voted on at the Board’s next scheduled meeting on June 17th and, if approved, go into effect on June 28th.  Between now and June 28th, the original ETS remains in effect.

Check out the updated description and register below. Continue reading

State COVID-19 Regulations Multiply as Fed. OSHA Declines to Adopt General Industry COVID-19 Regulations

By Conn Maciel Carey’s COVID-19 Task Force

Well over a year after the pandemic began, federal OSHA has declined to adopt a set of COVID-19 regulations for general industry.  Shape,3d,Of,State,Of,New,York,Map,With,FlagJust yesterday, federal OSHA announced that it had “completed” the rulemaking process for the COVID-19 emergency temporary standard, which will only apply to healthcare industry employers.  This long awaited rule is expected to be released later today.  While federal OSHA has been evaluating whether a COVID-19 ETS is even necessary, several states have been aggressive in passing their own workplace safety and health rules related to COVID-19.  Most recently, New York State passed the New York Health and Essential Rights Act (HERO Act), which went into effect just last week on June 4, 2021.  New York State joins a number of states that have promulgated COVID-19 regulations, including California, Virginia, Oregon, Michigan, and, in the near future, Maryland.  In light of federal OSHA’s decision to adopt COVID-19 regulations solely related to the health care industry, several other states may take action to implement their own COVID-19 regulations.  New York State’s HERO Act, however, goes even one step further.  The HERO Act is not solely focused on COVID-19, it addresses any and all airborne infectious diseases.

New York is also the first state in the country to require its Department of Labor to develop “industry-specific” health and safety standards for private sector employers to reduce the risk of airborne illnesses for employees (including but not limited to COVID-19).  New York employers should move quickly to adopt safety and health plans and revise employee handbooks to conform with the Act’s requirements.  Below is an overview of the key provisions of the Act. Continue reading

Cal/OSHA Standards Board Votes Down – Then Revotes to Adopt, with Reservations – Cal/OSHA Revised COVID-19 Emergency Temporary Standard

By Conn Maciel Carey’s COVID-19 Task Force

Yesterday, June 3, 2021, the California Occupational Safety and Health Standards Board (Board) convened and, in a bizarre turn of events, voted against, and then, moments later, voted to approve, Cal/OSHA’s revised COVID-19 Emergency Temporary Standard (ETS).  The revised ETS is expected to take effect on June 15, 2021.

The Board initially voted 4-3 against adoption of the revised ETS, and next voted to set up a Subcommittee of three Board members to meet with the Division of Occupational Safety and Health (Division) to make the rule “better.”  The Board members rejecting the proposal had expressed concern over the clarity of the vaccination documentation requirement, the continued use of face masks in the workplace, and the mandate for employers to provide N95 respirators for unvaccinated workers.  Yet, the stated goals for this Subcommittee are ambiguous, to say the least.

At that point, the Board members expressed concern about the existing ETS remaining in effect indefinitely in the meantime, and took a break apparently to confer over whether to reconsider their earlier vote.  After returning to the meeting, the Board voted unanimously, without explanation, to Continue reading

EEOC Updates COVID-19 Vaccination Guidance

By Conn Maciel Carey’s COVID-19 Task Force

Last week, Conn Maciel Carey posted a blog article about How to Navigate the Thorny Legal Landscape Around Employee Vaccination Status.  One of the observation in that article was that we were all on the edge of our seats waiting for the EEOC to issue promised guidance about employer incentives and mandates about the COVID-19 vaccination.  On Friday, the EEOC finally issued much-anticipated updated FAQs about the legal landscape of various employer vaccinations policies.

Here is a summary of the vaccine section of the guidance:

May employers ask employees about vaccination status under federal law?  See FAQs K9, K5, K15, K16, K18, K19

  • Yes – does not violate ADA or GINA.
  • However, employer should not ask “why” an employee is unvaccinated, as this could compel the employee to reveal disability information that is protected under the ADA and/or GINA.
  • Recommended practice: If employer requires documentation or other confirmation of vaccination, “notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis.”

Is vaccination information “confidential” under the ADA?  See FAQ K4

  • Yes, this includes documentation (i.e., the white vaccination card)  or “other confirmation” of vaccination, which we presume means any self-attestation form or email from the employee, as well as any record, matrix, spreadsheet, or checklist created by the employer after viewing employees’ vaccination cards or receiving a verbal confirmations from employees.
  • The records or information must be kept confidential and stored separately from employee personnel files.

How may employers encourage employees and family members to get vaccinated?  See FAQ K3 Continue reading

Oregon Requires Employers to Verify Vaccination Status of Third Parties

By Conn Maciel Carey’s COVID-19 Task Force

On May 19, Oregon OSHA issued a Statement Regarding Vaccination Status in Relation to Oregon’s Facial Covering and Social Distancing Requirements in which it advises that employers may discontinue enforcing face covering and physical distancing requirements as to employees and/or visitors (which apparently includes customers) only if the employer verifies the vaccination status of any such individuals attempting to enter without a face covering.  Notably, Oregon OSHA further advises that the employer must enforce the physical distancing and facial covering requirements without regard to the exemption with respect to anyone who refuses to provide verification of their vaccination status.  Over the past year, many retailers struggled to craft a workable policy that complied with the intent of Oregon OSHA’s expectation that they deny entry/refuse service to customers who refuse to wear a mask.  As we discussed in prior blog posts, placing front line retail workers in such a position was not only infeasible, but it put them at greater risk of harm by customers who reacted in a violent manner when asked to wear a face covering.  It remains to be seen, however, whether Oregon OSHA will adopt a rational approach respect to vaccination status verification requirements for retailers and other employers with public-facing operations.

Notably, Oregon OSHA’s Statement references the Oregon Health Authority’s May 18 Interim Guidance for Vaccinated Individuals, which includes retailers in the definition of a covered business; it does not, however define visitor.  We nonetheless read the OHA’s Interim Guidance and the OR OSHA Statement together to treat customers/shoppers as visitors.  According to the OR Health Authority, a business must continue to enforce the physical distancing and face covering requirements unless it: Continue reading

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

On Wednesday, May 12th, Aaron GelbAmanda Strainis-WalkerBeeta Lashkari and Ashley D. Mitchell presented 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 highlighted Continue reading

More On Cal/OSHA’s Proposed Amendments to its COVID-19 ETS

By Fred Walter

In our May 11th blog article, we covered some of the most important changes to Cal/OSHA’s COVID-19 emergency temporary standard that the Division has proposed for approval at the next Cal/OSHA Standards Board meeting later this week on May 20, 2021. Here we offer some additional insights into the amendments and their likely impact on California employers.

Face coverings: The new language mentions several options for face coverings but does not mention a popular one — gaiters. Responding to a question we presented to the Division, Cal/OSHA confirmed that gaiters can be an acceptable face covering if they are doubled over to create two layers of protection.

Written notice of COVID-19 cases: Verbal notice can be substituted where the employer has reason to know that an employee will not get the written notice or has such “limited literacy” that a written notice will be ineffective.

Testing: The requirement that employers “offer” testing, which was ambiguous from Day One, has been changed to: “Make … testing available…,” an almost completely verbatim copy of a suggestion made in written comments by CMC’s California Employers COVID-19 Prevention Coalition during the Advisory Committee process. You’re welcome Cal/OSHA.

The requirements that the test be free to the employee and conducted on company time remain. In a bit of foresight, the new rule will provide an exception for employees who are fully vaccinated before a close contact and remain symptom-free.

Training: This and other sections of the new regulation signal a shift to what might be called “mandatory-voluntary” use of the N95. Continue reading

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