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 →
OSHA’s COVID-19 Vaccination and Testing emergency temporary standard is expected to be released imminently, likely Wednesday or Thursday of this week.
OMB Has Concluded Its Review of the ETS:
This morning, OMB’s website updated again, but this time, it was not to add more EO 12866 stakeholder meetings to the calendar, it was to declare OMB’s review of the ETS “concluded.” Here are two screenshots from OMB’s website. The first shows the list of active DOL rulemakings at OMB for some form of review, and it identifies the status for the COVID-19 vaccination and testing ETS as “Concluded.”
The second one provides a little more detail, including these notes about the ETS: “Received Date: 10/12/2021” and “Concluded Date: 11/01/2021.”
The Dept. of Labor Gives Some Clues About What to Expect in the ETS:
Additionally, a Department of Labor spokesman shared this statement this morning:
“On November 1, the Office of Management and Budget completed its regulatory review of the emergency temporary standard. The Federal Register will publish the emergency temporary standard in the coming days. [OSHA] has been working expeditiously to develop an emergency temporary standard that covers employers with 100 or more employees, firm- or company-wide, and provides options for compliance…. Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose either to get vaccinated or to undergo regular COVID-19 testing and wear a face covering at work. The ETS also requires employers to provide paid time to workers to get vaccinated and paid sick leave to recover from any side effects.”
The DOL statement provides some useful insight about what will be in the final rule and when we will see it. First, OSHA did stick with the 100-employee threshold that the President identified in his announcement and new COVID-19 Action Plan from September 9th. There was always a chance that OSHA would scrapped that employee-count trigger as they wrote the rule and instead made it apply to everyone. We also see in this DOL statement that, as expected, the 100-employee count will be Continue reading →
On September 9th, President Biden revealed a new COVID-19 Action Plan with one of several key goals to “Vaccinate the Unvaccinated.” The most notable aspect of that plan is a directive to federal OSHA to develop a 2nd COVID-19 Emergency Temporary Standard requiring all but small employers in all industries to implement “soft” vaccine mandates; i.e., require employees to either be fully vaccinated or get weekly testing. The President also directed OSHA to include in this new ETS a requirement that employers provide paid time for employees to get vaccinated and recover from ill effects of the vaccine. Separately, the President issued Executive Orders setting “hard” vaccine mandates for federal contractors and healthcare workers.
The President’s announcement was lean on details, and prompted as many questions as it answered. The attorneys from CMC’s OSHA and Employment Law practices discussed our take on the burning questions raised by this latest development on the COVID-19 front: Continue reading →
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.
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 →
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 →
As we continue our marathon COVID-19 ETS watch, some news today made the future of OSHA’s emergency rulemaking more clear. OSHA has officially delivered a proposed COVID-19 emergency temporary standard to the White House’s Office of Management Budget today, Monday, April 26th. Although the OMB website is still not showing a record of the rule, the Department of Labor issued this statement:
“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.”
We had circled this Wednesday, April 28th, on our calendar as the likely day OSHA would officially announce it was going to issue an ETS because that is Workers Memorial Day, and that seemed to be a good symbolic occasion to announce a rule designed to address a pandemic that has claimed so many lives. Here’s a link to the Dept. of Labor’s Virtual Workers Memorial Day event, and here’s how the event is billed: Continue reading →
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 →
This year’s annual Cal/OSHA update covered the latest legislative, regulatory and enforcement developments concerning COVID-19, including the Emergency COVID-19 Prevention Rule. We also alerted you to new regulatory changes concerning the Wildfire Smoke rule, various proposed rules being considered by Cal/OSH Standards Board, and general DOSH enforcement trends.
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 work-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.
This year’s annual Cal/OSHA update will cover the latest legislative, regulatory and enforcement developments concerning COVID-19, including the Emergency COVID-19 Prevention Rule. We will also alert you to new regulatory changes concerning the Wildfire Smoke rule, various proposed rules being considered by Cal/OSH Standards Board, and general DOSH enforcement trends.
On February 25, 2021, Superior Court Judge Ethan Schulman officially ruled on two requests for preliminary injunctions against the implementation of Cal/OSHA’s COVID-19 emergency temporary standard (ETS), denying the injunctive relief sought in both cases.
Two separate legal challenges to the ETS were filed a couple of weeks after the rule was adopted by the Cal/OSHA Standards Board. The first was filed by the National Retail Federation and others, alleging generally that an emergency rule was not necessary and appropriate; i.e., the agency had not asserted facts adequate to establish the existence of an emergency, and therefore, the rushed rulemaking process that ignored stakeholder input was not lawful. It also alleged that Cal/OSHA overstepped its jurisdictional authority with respect to the ETS provisions mandating wage and benefits continuation.
The second legal challenge was filed by the Western Growers Association and other agricultural interests. This lawsuit similarly challenged the legality of an emergency rule in this context and the pay and benefits provisions. It also attacked the provisions regarding employer-provided housing and transportation.
In a 40-page order, Judge Schulman rejected all of the plaintiffs’ arguments, commenting, “No federal or state court in the country has blocked emergency public health orders intended to curb the spread of COVID-19, and the illnesses, hospitalizations and deaths that follow in its wake. This Court will not be the first. Lives are at stake.” Indeed, the cases faced long odds, with Judge Schulman Continue reading →
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 (seeVirginia OSHA’s ETS) and a daunting, sometimes unworkable rule (seeCal/OSHA’s ETS). Continue reading →
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?
