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 →
Nevertheless, this dead horse may be in store for some more beating. As you know, the day the ETS was published in the Federal Register back in November, pursuant to Sec. 6(c)(3) of the OSH Act, it became the “proposed rule” in a rulemaking that automatically kicked off to establish a permanent replacement vaccinate-or-test standard. In OSHA’s other big announcement today, the agency indicated that it has not withdrawn that rulemaking. Rather, OSHA declared its intent to move forward with a permanent rulemaking.
This was yet another fascinating development in this roller coaster. While we anticipated that OSHA would withdraw the vaccinate-or-test ETS to avoid having a full merits adjudication by the Supreme Court that would establish more concrete precedent narrowing OSHA’s rulemaking authority, we continue to be surprised to see that OSHA is continuing on with the permanent rulemaking.
Recall that the Supreme Court did not say that OSHA’s ETS exceeded the agency’s emergency rulemaking authority. Rather, the Court found that Continue reading →
As COVID-19 cases continue to rise throughout the state of Illinois, operators of indoor dining establishments, gyms, and entertainment venues where food and drinks are being served in the City of Chicago face a series of new requirements that necessitate quick action. Beginning January 3, 2022, Public Health Order 2021-2 will require all individuals over the age of 5, show proof of full vaccination to dine indoors, workout, and patronize entertainment venues. For purposes of the Public Health Order, fully vaccinated is the more restrictive of either the Centers for Disease Control and Prevention (CDC) guidance or Chicago Department of Public Health (CDPH) posted guidelines. For the time being, both the CDC and CDPH guidelines are aligned, defining fully vaccinated as two weeks after receiving the second dose in a two dose vaccination series and one week after receiving a single dose in a single dose vaccination series. It remains to be seen if, or when, the recommended-but-not-required boosters will be added to that definition.
Employers, of course, must quickly figure out how to implement measures to comply with this Order—both with respect to customers/guests as well as with employees given that the Order does not have a minimum employee threshold like the Fed OSHA ETS. This means that even small, independently owned restaurants and bars will be expected to comply even if they were not covered by the ETS which kicked in only at 100 employees.
This Healthcare ETS was issued back in June 2021 in response to President Biden’s Day 1 OSHA Executive Order. Recall that this was the ETS that had been crafted by OSHA to apply to all employers in all industries, but as it was being finalized in late Spring, when it looked like we might just be approaching the end of the pandemic, the Administration decided to narrow the scope to just the healthcare industry. That ETS was what we call a “programmatic” standard; requiring the development of a comprehensive COVID-19 prevention program, complete with an array of required engineering and administrative controls. When the Healthcare ETS was issued, OSHA noted on its webpage for the ETS that it expected the ETS to be in effect for six months from the date of publication — until December 21, 2021.
December 21st came and went without any word from OSHA. But on Monday of last week, , six days after the Healthcare ETS’s six-month anniversary, OSHA issued a statement that:
“[while OSHA] intends to continue to work expeditiously to issue a final standard that will protect healthcare workers from COVID-19 hazards, and will do so as it also considers its broader infectious disease rulemaking[,]” it is “withdrawing the non-recordkeeping portions of the healthcare ETS. The COVID-19 log and reporting provisions … remain in effect.”
On December 27, 2021, the CDC updated and shortened its recommended isolation and quarantine periods for the general population. To be precise, yesterday CDC issued a media statement laying out its new guidance, but CDC’s actual Isolation Guidance webpage has not yet been updated. CDC explained in the statement that:
“[b]oth updates [to the isolation and quarantine periods] come as the Omicron variant continues to spread throughout the U.S. and reflects the current science on when and for how long a person is maximally infectious.”
What are CDC’s New Isolation and Quarantine Guidelines?
With respect to isolation (which relates to behavior after a confirmed infection), CDC states:
“[g]iven what we currently know about COVID-19 and the Omicron variant, CDC is shortening the recommended time for isolation from 10 days for people with COVID-19 to 5 days, if asymptomatic, followed by 5 days of wearing a mask when around others.”
Explaining the change, CDC maintains that it is “motivated by science demonstrating that the majority of SARS-CoV-2 transmission occurs early in the course of illness, generally in the 1-2 days prior to onset of symptoms and 2-3 days after. Therefore, people who test positive should isolate for 5 days, and if asymptomatic at that time, they may leave isolation if they mask for 5 days to minimize the risk of infecting others.”
Additionally, with respect to quarantine (which refers to the time following exposure to the virus or close contact with someone known to have COVID-19), CDC states: Continue reading →
The Q&A document addresses the current status of the ETS and the legal challenges to it, who is covered and who is exempted from the rule, the core elements of the ETS (i.e., what is required and prohibited by the ETS, when the requirements kick-in, etc.), and other issues around enforcement and compliance strategy.
In addition to this FAQ resource, we have also been working with dozens of companies to help them develop custom, compliant written COVID-19 Vaccination, Testing, and Face Coverings Policies, along with the necessary ancillary forms, as required by the ETS. We have a questionnaire that we can work through with you to understand and make the best policy choices for your organization (e.g., what cap you will set for paid recovery time; whether to supply test kits to employees or require them to take tests offsite; how you will communicate to employees the information required to be shared; etc.), and with those answers, we develop a customized written program including: Continue reading →
At long last, OSHA has revealed its COVID-19 Vaccination and Testing emergency regulation. The Federal Register site has updated to show the pre-publication package, which is set to run officially in the Federal Register tomorrow, November 5th. The 490-page package includes the Preamble and economic analysis of the regulation, as well as the regulatory text. The regulatory text begins on PDF page 473. Also here is a Fact Sheet about the ETS issued simultaneously by the White House.
We are extremely pleased to report that the rule aligns very well with positions for which CMC’s Employers COVID-19 Prevention Coalition advocated to OSHA and OMB on the most significant topics, like the responsibility for the cost of COVID-19 testing and a delayed implementation date, as well as very narrow record-preservation requirements, grandfathering of prior vaccine-verification efforts, and other elements. OSHA and the White House clearly listened to our views and the compelling rational we put forward for these positions, making the rule a much better, more effective and less burdensome one for employers.
In the meantime, below is a detailed summary of the rule:
What is the stated purpose of the regulation?
The ETS is “intended to establish minimum vaccination, vaccination verification, face covering, and testing requirements to address the grave danger of COVID-19 in the workplace, and to preempt inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face covering, or testing, regardless of the number of employees.”
Who is covered?
As the president signaled in his announcement and action plan from September 9, the ETS applies only to employers with 100 or more employees, and the rule does make it explicit that the way you count those employees is on a company–wide basis, not establishment-by-establishment.
*As of 12/18/21, the federal contractor mandate is currently subject to federal court injunctions.
While we have been mostly focused on the September 9th directive from President Biden to fed OSHA to issue a COVID-19 vaccination / testing emergency temporary standard, that was hardly the only major move the Administration announced on the vaccine-mandate front. This update will focus on federal contractors – companies that provide services to the federal government through direct contracts with federal agencies and through subcontracts in support of federal contracts.
Setting a “hard” vaccine mandate – “Covered Contractor Employees” must be fully vaccinated byJanuary 18, 2021 (and thereafter before starting to work on any federal contract);
Designating a COVID-19 safety coordinator to communicate requirements to employees and non-employees at your “Covered Contractor Workplaces”; and
Ensuring all individuals at a “Covered Contractor Workplace” comply with CDC masking and distancing guidance.
For months now, since January 2021, contractors and subcontractors working in-person on federal property have already been required to provide a self-certification that they were fully vaccinated OR had received a recent negative COVID-19 test. (SeeEO 13991 – “Protecting the Federal Workforce and Requiring Mask-Wearing”). The new EO for federal contractors eliminates the “testing-out option” and expands the mandate beyond just federal properties to also cover private workplaces, or really any place at all, where an individual is working in support of a covered federal contract.
Only those unvaccinated employees who are “legally entitled to an accommodation” for medical or religious reasons may continue to be employed to work on federal contracts. There are no exceptions for people who previously were infected and recovered. Anti-body tests are not acceptable to prove vaccination status. Under limited special circumstances involving an “urgent, mission critical need”, a federal agency may allow certain individuals who are not fully vaccinated to continue working for only up to 60 days from beginning the work on a covered contract or in a covered workplace.
Another development of this federal contractor mandate is that employers must review covered employees’ official documentation to verify vaccination status (i.e., the white card or an official record from a health department database), and self-attestation is not an acceptable substitute.
Broadly, OSHA’s updated COVID-19 guidance tracks CDC’s updated guidance closely. For example, OSHA now recommends that:
Fully vaccinated workers in areas of substantial or high community transmission wear masks in order to protect unvaccinated workers; and
Fully vaccinated workers everywhere in the country who experience a close contact exposure with a COVID-19 case wear a mask for 14 days or until they receive a negative COVID test taken at least 3 days after the contact.
Additionally, the guidance clarifies OSHA’s recommendations for protecting unvaccinated workers and other at-risk workers in “workplaces with heightened risk due to workplace environmental factors,” including those in manufacturing, meat and poultry processing, seafood processing and agricultural processing.
Earlier this Summer, Virginia became the first state in the nation to promulgate a mandatory safety regulation designed to reduce COVID-19 infections in the workplace, when Virginia’s Governor Ralph Northam announced the commonwealth’s adoption of an Emergency Temporary Standard (“ETS”). The COVID-19 ETS, which was drafted by Virginia’s Department of Labor and Industry, requires Virginia employers to:
Assess potential exposures to COVID-19 in the workplace
Categorize the level of risk of exposure from Low to Very High (each with different mitigation requirements)
Develop and implement a written infection control plan
Provide employee training on the virus and control measures in the workplace
Make certain notifications about infected employees to co-workers, to VOSH, and to the VA Dept. of Health
VOSH’s COVID-19 ETS went to effect on July 27th, with major elements of the rule kicking in in August and September. Now, several months into implementation of the COVID-19-specific regulation, we check on the status of the rule, challenges employers have faced complying with it, and enforcement issues. Participants in this webinar will learn:
Earlier this week, on Monday, November 9, 2020, Oregon OSHA released its final COVID-19 Emergency Temporary Standard (the “OR ETS”) after several delays. Employers will have to act quickly to come into compliance, as the ETS goes into effect November 16th, with a series of major deadlines coming due in early December.
The ETS includes one set of mandates for all workplaces and another set for what it defines as “workplaces of exceptional risk” — namely those that include job duties related to direct patient care, aerosol-generating or post-mortem procedures, in-home care and/or direct client service in residential care or assisted living facilities. The OR ETS also includes an appendix with “mandatory guidance” for 19 specific industries and/or workplace activities, including:
restaurants and bars;
veterinary clinics; and
Explaining the need for an emergency rule, leadership at OR OSHA said this:
“The COVID-19 emergency has highlighted the risks that any infectious disease, particularly one that is airborne, can create for a wide variety of workplaces. As a result of both the immediate and long-term risks highlighted by the current public and occupational health crisis, Oregon OSHA is responding to the request that the state adopt an enforceable workplace health rule on an emergency basis this summer, to be replaced by a permanent rule.”
Oregon OSHA has plans to release materials on its website to support work on the risk assessment, the written exposure control plan, and the training activities required in the rule. Presently, there is a template exposure risk assessment form available. The agency also released a poster that employers must post in the workplace.
As employers around the country grapple with the employment law and workplace safety implications of the 2019 Novel Coronavirus (“COVID-19”), Conn Maciel Carey formed a national, multi-disciplinary legal and regulatory task force dedicated to helping our clients across all industries manage the multitude of pandemic-related issues employers are facing and preparing them for the tidal wave of litigation that is waiting around the corner.
As part of our COVID-19 Task Force, the firm’s dedicated Workplace Safety, Labor and Employment, and Litigation attorneys have produced a comprehensive set of resources to guide employers through this uncharted territory and the unique workplace challenges presented by the presence of a new health hazard in our nation’s workplaces.
We have now pulled those resources together in a single location — Conn Maciel Carey’s COVID-19 Task Force Page, where employers can find: