Coronavirus

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

Theresa Green Leave a comment

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 →

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

Theresa Green Leave a comment

On June 18, 2021, Andrew J. Sommer and Eric J. Conn presented a webinar regarding Cal/OSHA’s Revised COVID-19 Emergency Temporary Standard.

The saga around Cal/OSHA’s COVID-19 Emergency Temporary Standard (ETS) has taken several bizarre twists and turns.  After hurriedly adopting the ETS over Thanksgiving weekend 2020, Cal/OSHA set about this spring to fix some problems with the initial ETS regulatory text.  The agency proposed a revised version of the ETS to be considered by the Cal/OSHA Standards Board in late May 2021, but on the eve of that Standards Board meeting, Cal/OSHA pulled it back, purportedly to address the CDC’s updated guidance about masks and distancing for vaccinated workers. Inexplicably, however, Cal/OSHA produced an updated proposed amended ETS that was more onerous, not less.

On June 3, 2021, the Cal/OSHA Standards Board convened a special meeting to consider the revisions to the ETS.  The public meeting was long and contentious, with 100+ stakeholders testifying lasting late into the evening.  Initially, the Board voted to Continue reading →

Is Your Workplace Covered by Fed OSHA’s New COVID-19 ETS for Healthcare?

Eric J. Conn 3 Comments

By Conn Maciel Carey’s COVID-19 Task Force

Nearly 16 months after the pandemic began, federal OSHA revealed its COVID-19 Emergency Temporary Standard (the ETS) that imposes a series of requirements on healthcare employers.  While OSHA’s issuance of an ETS comes as no surprise to many who have been tracking the agency since Pres. Biden’s inauguration, the fact that it applies only to the healthcare sector and not to all industries is not what we expected.  Looking back, the promulgation of an ETS applicable to all workplaces seemed a foregone conclusion when President Biden took office in January and issued an Executive Order that same day directing OSHA to update its COVID-19 guidance, adopt a COVID-19 National Emphasis Program, evaluate whether an ETS was necessary and, if so, issue the ETS on or before March 15, 2021.

On April 27, 2021, OSHA delivered to the White House Office of Management and Budget (OMB) an ETS, which, by all accounts, was a broad rule applicable to all industries, but because this was an emergency rulemaking, the proposed regulatory text was not available to the public.  In the weeks that followed, the Office of Information and Regulatory Affairs (OIRA), within OMB, hosted a series of meetings to hear from stakeholders regarding a proposed rule they had not seen.  On behalf of the Employers COVID-19 Prevention Coalition, Conn Maciel Carey organized and led two OIRA meetings at which we and our coalition members provided input and recommendations to OSHA and OMB.  As the meetings continued, the success of the vaccine rollout became clearer, with a corresponding drop in COVID-19 cases, hospitalizations, and deaths, and then came the Centers for Disease Control (“CDC”) game-changing guidance on May 13, 2021 relaxing protocols for vaccinated individuals.  All of this caused many to question whether an OSHA ETS was still necessary.  With conditions on the ground improving rapidly, we continued to help stakeholder schedule and participate in OIRA meetings to argue that a general industry ETS was no longer needed.

On June 10, 2011, after more than 50 OIRA meetings, a final ETS applicable only to the healthcare industry was sent to the Office of the Federal Register for publication.  The standard appears at 29 C.F.R. Section 1910.502, and will appear in the Federal Register within a couple of weeks.

Explaining the purpose of the ETS for Healthcare, U.S. Secretary of Labor Marty Walsh offered this statement: Continue reading →

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

Theresa Green Leave a comment

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

Daniel C. Deacon Leave a comment

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 →

Oregon Requires Employers to Verify Vaccination Status of Third Parties

Aaron Gelb Leave a comment

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 →

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

Eric J. Conn Leave a comment

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 →

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

Megan Shaked Leave a comment

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 →

Another Status Update about Federal OSHA’s COVID-19 Emergency Rulemaking

Eric J. Conn Leave a comment

By Conn Maciel Carey’s COVID-19 Task Force

It has been nearly a full month since the deadline set by President Biden’s Day-1 OSHA Executive Order for Federal OSHA to determine the necessity of and to issue a COVID-19 Emergency Temporary Standard (ETS), and we are all still waiting for the big news.  OSHA has not issued a final ETS.  The Office of Management and Budget’s (OMB) website has not been updated to reflect that it has received a proposed ETS from OSHA.  OSHA has not even explicitly announced that it will issue a COVID-19 ETS.

According to reports last week from Bloomberg Law, brand new Secretary of Labor Marty Walsh requested a hold on the release of an OSHA ETS, but according to a DOL spokesperson, that “hold” was so that OSHA could make “a rapid update based on the Centers for Disease Control and Prevention analysis and the latest information regarding the state of vaccinations and the variants.”  The sense from that reporting was that OSHA would be quickly updating certain provisions in a near-final draft of the ETS to align with the latest CDC guidance.  No suggestion that an ETS would not be issued.

However, later in the week, Politico reports that Secretary Walsh gave a public interview in which he said this:

That was the first time since President Biden’s Executive Order that we heard anyone at OSHA or the Department of Labor imply that a COVID-19 ETS may not happen, and it conflicts directly with Continue reading →

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

Daniel C. Deacon Leave a comment

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 →

Five Important Updates About Federal OSHA and Cal/OSHA COVID-19 Recordkeeping

Eric J. Conn Leave a comment

By Conn Maciel Carey’s COVID-19 Task Force

It has been a little while since we last shared an update about COVID-19 recordkeeping issues. Since Fed OSHA issued its COVID-19 recordkeeping guidance in May 2020 and Cal/OSHA issued its controversial COVID-19 Recordkeeping FAQs with unique, more onerous requirements in June, the agencies have been mostly quiet about COVID-19 recordkeeping. But that does not mean there have not been significant developments in that area or that there are no important developments to monitor closely.

Here are five notable OSHA and Cal/OSHA COVID-19 recordkeeping updates that we wanted to share with you:

1.  Congressional Intervention About Cal/OSHA’s COVID-19 Recordkeeping FAQs

As we explained last year, Cal/OSHA’s May 27th COVID-19 Recordkeeping FAQs departed from Fed OSHA’s COVID-19 recordkeeping requirements in two key ways: (i) rejecting Fed OSHA’s recordability precondition of a positive COVID test; and (ii) flipping the burden of establishing work-relatedness on its head, setting instead a presumption of Cal-OSHA RK FAQSwork-relatedness if any workplace exposure can be identified, even if the cause of the illness is just as likely to be attributable to a non-work exposure.

Aside from being bad policy that will result in many non-work related illnesses being recorded on California employers’ 300 Logs, Cal/OSHA is not legally permitted to deviate from Fed OSHA’s recordkeeping requirements.

The latest big development on that front was a helpful letter from the U.S. Department of Labor responding to an inquiry about this issue from a group of California Congressmen, in which DOL confirms that Cal/OSHA should be following the same recordkeeping requirements as Fed OSHA. Despite the clear statements in Cal/OSHA’s FAQs that a “confirmed case” is not required for recordkeeping and that work-relatedness should be presumed, the federal Department of Labor explained in its letter to the Congressmen: Continue reading →

OSHA Announces COVID-19 National Emphasis Program and Updated Interim Enforcement Response Plan

Eric J. Conn 3 Comments

By Conn Maciel Carey’s COVID-19 Task Force

While OSHA is expected today, March 15th, to confirm that it will issue a COVID-19 Emergency Temporary Standard (ETS), and to get that ETS released within a month, there were also a couple of important developments last week regarding OSHA’s approach to COVID-19 enforcement.

On Friday afternoon, March 12th, OSHA launched a COVID-19 National Emphasis Program (“COVID-19 NEP”) to:

“focus its inspection and 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.”

This move by OSHA was not unexpected.  As we previously shared, Pres. Biden’s Day-1 OSHA Executive Order on Protecting Worker Health and Safety (the same EO that called for the COVID-19 ETS), separately called for OSHA to issue a COVID-19 NEP.

Goals of the COVID-19 NEP

In today’s announcement about the COVID-19 NEP, OSHA explained that “the goal of this NEP is to significantly reduce or eliminate worker exposures to SARS-CoV-2 by targeting industries and worksites where employees may have a high frequency of close contact exposures and therefore, controlling the health hazards associated with such exposures.”  The NEP includes “an added focus to ensure that workers are protected from retaliation” and are accomplishing this by preventing retaliation where possible, distributing anti-retaliation information during inspections and outreach opportunities, as well as promptly referring allegations of retaliation to the Whistleblower Protection Program.

Industries and Workplaces Covered by the NEP

OSHA also explained that inspections under the COVID-19 NEP will include some follow-up inspections of worksites previously inspected by OSHA in 2020, but principally will focus on establishments in industries identified on targeting lists OSHA will develop now.  The NEP covers a broader set of workplaces than seems consistent with the goals of the NEP.  The directive creates three different lists of covered workplaces – high risk healthcare establishments and high risk non-healthcare establishments (which is how the NEP has been described), and also a third list of “Supplemental Industries for non-Healthcare in Essential Critical Infrastructure” that does not have the same high exposure risk characteristics of the first two lists.  The industries covered by these three lists are included at the bottom of this email.  Area Offices may also “add establishments to the generated master lists based on information from appropriate sources (e.g., local knowledge of establishments, commercial directories, referrals from the local health department, or from other federal agencies with joint jurisdictions, such as the Centers for Medicare & Medicaid Services (CMS) and the U.S. Department of Agriculture (USDA), media referrals or previous OSHA inspection history).” Continue reading →

Status Update About OSHA’s Emergency COVID-19 Rulemaking

Eric J. Conn 1 Comment

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 →

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

Theresa Green Leave a comment

On February 11th, Kara M. Maciel, Fern 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

Theresa Green Leave a comment

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

Theresa Green 1 Comment

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 →

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

Theresa Green Leave a comment

On January 26th, Andrew J. Sommer, Fred 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 →

Fed OSHA Issues Updated COVID-19 Guidance, As Mandated by Pres. Biden’s Day 1 OSHA Executive Order

Eric J. Conn 3 Comments

By Conn Maciel Carey’s COVID-19 Task Force

As we shared earlier this month, President Biden’s Day 1 OSHA Executive Order On Protecting Workers from COVID-19, directed federal OSHA to take 3 key actions:

  1. issue new COVID-19 guidance to protect workers within 2 weeks;
  2. consider whether to issue a COVID-19 emergency temporary standard (and to do so by March 15th); and
  3. enhance health and safety enforcement, including with a National Emphasis Program).

On Friday, January 29, 2021, OSHA delivered on the first of those mandates from the Executive Order, issuing a detailed set of new COVID-19 guidance for employers and workers entitled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.”

OSHA explained in its press release announcing the new guidance:

“The U.S. Department of Labor announced today that its Occupational Safety and Health Administration has issued stronger worker safety guidance to help employers and workers implement a coronavirus prevention program and better identify risks which could lead to exposure and contraction. Last week, President Biden directed OSHA to release clear guidance for employers to help keep workers safe from COVID-19 exposure.”

We first heard about the new guidance during a Small Business Administration Labor and Safety Round Table on Friday morning, when the new Acting Head of OSHA, Jim Frederick, and new Senior Advisor, Ann Rosenthal, gave an update about the new Administration’s priorities and plans for OSHA.  Mr. Frederick said the updated guidance is just “OSHA’s first step to re-establishing that OSHA is advocating for workers.”

As it comes still only in the form of guidance, the document technically does not create new legal obligations, but OSHA under the Biden Administration has already made clear that COVID-19 enforcement will be a priority, and unless (or really, until) it issues an emergency temporary standard, this guidance will almost certainly be relevant to OSHA’s enforcement efforts.  For example, like OSHA does in so many areas without existing standards, it is likely to point to this guidance to establish recognition of a serious hazard and the existence of feasible means of abatement for general duty clause citations.  Likewise, it could point to this guidance to challenge employer’s PPE determinations. Continue reading →

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

Theresa Green Leave a comment

On Tuesday, January 26th at 12:00 PM PT / 3:00 PM ET, plan to join Andrew J. Sommer, Fred 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 →

Cal/OSHA’S New Budget Raises Questions About The Future of Enforcement

Theresa Green 2 Comments

By Fred Walter

Governor Newsom has announced his proposed budget for 2020-2021 and it has some good news and some bad for Cal/OSHA. Under the Governor’s proposal, Cal/OSHA’s overall budget will increase by $12,107,000, or just over 8% to $168,661,000.Cal-OSHA Budget (002)

This will be split between the three arms of Cal/OSHA. The budget for the Standards Board, which adopts regulations, is slated to increase to $3,946,000. The Appeals Board, which hears appeals of citations, is expected to get $6,706,000. But the Division of Occupational Safety and Health (DOSH) is by far the elephant in the room. Its current budget of $146,743,000 is 24 times that of the Appeals Board and 41 times that of the Standards Board. Its budget for 2021 will be $158,009,000.

The largest piece of the DOSH pie (33%) will go to the Elevator Unit. Consultation, PSM, and the Pressure Vessel Unit each will receive an 8% increase while Mining and Tunneling will get 9%.

But here is where it gets weird. Continue reading →

President Biden’s Day 1 Executive Order regarding OSHA’s Response to the COVID-19 Pandemic

Eric J. Conn 13 Comments

By Conn Maciel Carey’s COVID-19 Task Force

We did not have to wait long for the big update we have been holding our breath about – what the Biden Administration’s plans will be for a federal COVID-19 emergency standard.  As we expected, in just his first full day in Office (January 21, 2021), President Biden has already issued an Executive Order focused on OSHA’s approach to managing the COVID-19 crisis in the workplace, but the answer about a federal COVID-19 ETS is not as clear as we expected, or at least, the definitive answer will come a little later.

In the Order entitled “Executive Order on Protecting Worker Health and Safety,” President Biden has directed federal OSHA to revisit its overall strategy for regulating and enforcing issues associated with workplace spread of COVID-19 to execute his Administration’s policy on worker safety:

“Ensuring the health and safety of workers is a national priority and a moral imperative. Healthcare workers and other essential workers, many of whom are people of color and immigrants, have put their lives on the line during the coronavirus disease 2019 (COVID-19) pandemic. It is the policy of my Administration to protect the health and safety of workers from COVID-19.”

Specifically, President Biden has directed the Assistant Secretary of Labor for OSHA to take four key actions relative to COVID-19 in the workplace: Continue reading →

[Webinar] OSHA’s 2020 in Review and 2021 Forecast

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On Thursday, January 14th at 1:00 PM ET, plan to join the Partners in Conn Maciel Carey’s national OSHA • Workplace Safety Practice Group for a webinar regarding Annual OSHA Update: 2020 In-Review and 2021 Forecast.

The ball has dropped, the confetti has been swept out of Times Square, and 2020 is in the books. It’s time to look back and take stock of what we learned from and about OSHA over the past year. More importantly, it is time to look ahead and assess what to expect from OSHA during the new year, and the start of a new Presidential term (either the 2nd Term of President Trump or new Administration under former Vice President Joe Biden). In this webinar, the Chair of Conn Maciel Carey’s national OSHA Practice Group will review OSHA enforcement, rulemaking, and leadership developments from 2020, and will discuss the top OSHA issues employers should monitor and prepare for in the New Year.

Participants in this webinar will learn the following: Continue reading →

Announcing Conn Maciel Carey’s 2021 OSHA Webinar Series

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ANNOUNCING CONN MACIEL CAREY’S
2021 OSHA WEBINAR SERIES

As the Trump Administration hands over the keys to President-Elect Biden and a new Democratic Administration, OSHA’s enforcement and regulatory landscape is set to change in dramatic ways, from shifting enforcement priorities, budgets and policies, to efforts to reignite OSHA’s rulemaking apparatus. Following an Administration that never installed an Assistant Secretary of Labor for OSHA, handled COVID-19 enforcement with a light touch, pumped the brakes on almost all rulemaking in general, and declined to issue an emergency COVID-19 standard in particular, the pendulum swing at OSHA is likely to be more pronounced than during past transitions. Accordingly, it is more important now than ever before to pay attention to OSHA developments.

​Conn Maciel Carey’s complimentary 2021 OSHA Webinar Series, which includes (at least) monthly programs put on by the attorneys in the firm’s national OSHA Practice, is designed to give employers insight into developments at OSHA during this period of flux and unpredictability.

To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2021 series, click here to send us an email request, and we will register you.  If you missed any of our programs from the past seven years of our annual OSHA Webinar Series, click here to subscribe to our YouTube channel to access those webinars.

2021 OSHA Webinar Series – Program Schedule

OSHA’s 2020 in Review
and 2021 Forecast

Thursday, January 14th
Respiratory Protection Rules –
Top 5 Risks and Mistakes

Wednesday, May 12th
Cal/OSHA’s COVID-19
Emergency Temporary Standard

Tuesday, January 26th
What to Expect from DOL Under
a Biden Administration

Wednesday, June 16th
What Employers Need to Know
About the COVID-19 Vaccine

Thursday, February 11th
Mid-Year Review of OSHA Developments

Thursday, July 22nd
COVID-19 Vaccine Distribution and Administration: OSHA Considerations

Thursday, February 18th
OSHA VPP and other Cooperative Programs

Tuesday, August 24th
Update About the
Chemical Safety Board

Tuesday, March 16th
Update about OSHA’s Electronic Recordkeeping Rule

Wednesday, September 8th
Annual Cal/OSHA Enforcement
and Regulatory Update

Tuesday, March 23rd
OSHA Issues During
Acquisitions and Divestitures

Thursday, October 7th
COVID-19 OSHA Enforcement
and Regulatory Update

Wednesday, April 20th
Updates about OSHA’s PSM
Standard EPA’s RMP Rule

Tuesday, November 16th
Recap of Year One of the Biden Administration

Tuesday, December 14th

See below for the full schedule with program descriptions,
dates, times and links to register for each webinar event.

Continue reading →

[Client Alert] New California Employment Laws for 2021 Will Leave Their Mark

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By Andrew Sommer, Fred Walter, and Megan Shaked

2020 has been another banner year for California employment laws, with legislation and Cal/OSHA rulemaking associated with COVID-19 prevention and reporting taking center stage.  In our annual update of new employment laws impacting California private sector employers, we lead off with California’s COVID-19 related laws, given their far-reaching impact on the state’s workforce during the pandemic as employers continue to implement measures to prevent the spread of COVID-19 in the workplace.  We have also addressed other substantive legislative developments, particularly in the areas of wage and hour law and reporting of employee pay data.  Unless otherwise indicated, these new laws will take effect on January 1, 2021.

COVID-19 Related Rulemaking and Legislation

Temporary Emergency COVID-19 Prevention Rule Not to be outdone by Virginia OSHA, Oregon OSHA or Michigan OSHA, Cal/OSHA adopted an onerous COVID-19 specific temporary emergency regulation effective November 30, 2020.  Below is a detailed summary of how we got here, as well as an outline of what the rule requires.

On November 19, 2020, the California’s Occupational Safety and Health Standards Board (Standards Board) voted unanimously to adopt an Emergency COVID-19 Prevention Rule following a contentious public hearing with over 500 participants in attendance (albeit virtually).  The Emergency Rule was then presented to California’s Office of Administrative Law for approval and publication.  The Rule brings with it a combination of requirements overlapping with and duplicative of already-existing state and county requirements applicable to employers, as well as a number of new and, in some cases, very burdensome compliance obligations.

The Standards Board’s emergency rulemaking was triggered last May with the submission of a Petition for an emergency rulemaking filed by worker advocacy group WorkSafe and National Lawyers’ Guild, Labor & Employment Committee.  The Petition requested the Board amend Title 8 standards to create two new regulations Continue reading →

VOSH and the Virginia Dept. of Health Adopt Big Changes to Employers’ COVID-19 Requirements

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By Conn Maciel Carey’s COVID-19 Task Force

Virginia made two significant changes to its COVID-19 regulatory landscape last week as it relates to quarantine measures and reporting positive cases to the Virginia Department of Health (VDH).

First, VDH has officially adopted CDC’s new quarantine guidance.  VDH and CDC continue to recommend a quarantine period of 14 days.  However, CDC guidance now includes two additional options for how long quarantine should last.  The safest option is still to quarantine for 14 days after last exposure, shorter quarantine periods are acceptable for close contacts who are quarantining but who have not experienced any systems.  Specifically, asymptomatic close contacts may end a quarantine after day 10 without testing, or after day 7 with a negative PCR or negative antigen test, if the test was performed on or after day 5.  It is still important to watch for symptoms of COVID-19 until 14 days after exposure, and to take other prevention measures including wearing a mask, distancing, and frequent hand washing.

VDH formally adopted this revised quarantine guidance in an announcement on its website for everyone except healthcare workers or healthcare facilities.  VDH recommends that Continue reading →