Last Wednesday (February 16th), at the direction of Virginia’s new Governor, Virginia OSHA’s Safety and Health Codes Board voted to withdraw VOSH’s COVID-19 Regulation. The Board’s vote came after VOSH recommended that COVID-19 no longer constituted a “grave danger,” the legal showing required to justify an emergency rule. Procedurally, the board vote was just the first step. Next is a 30-day public comment period, followed by a public hearing, then a final Board vote. If the measure is in fact repealed after the final Board vote, then Virginia employers would no longer have to require employees who work indoors to wear a face covering,; social distance; provide employee training; improve or maintain ventilation systems; or inform the VA Department of Health about outbreaks.
Although this move comes in lock step with Friday’s CDC announcement that it is rescinding mask guidance, along with other states like California and New Jersey rescinding their mask mandate, on January 15th Virginia’s newly elected Governor Glenn Youngkin issued an Executive Order instructing the Board to Continue reading →
It has been a real adventure trying to track all the different legal challenges in so many different courts to President Biden’s various different executive actions related to vaccination. While the fate of the OSHA Vaccinate-or-Test ETS (dead) and the CMC Healthcare Vaccine-Mandate (very much alive) are essentially settled by the Supreme Court, the Federal Contractor Vaccine-Mandate Executive Order (EO 14042) is still meandering its way through the federal courts. And there was a lot of activity in the courts this past Friday, January 21st, regarding the federal contractor EO and the federal employee vaccination mandate.
In the first case, Feds for Medical Freedom v. Biden, employees of federal contractors and employees of the federal government together are challenging both Executive Orders 14042 (vaccine-mandate for federal contractors) and 14043 (vaccine-mandate for federal employees). Judge Jeffrey V. Brown (a Trump-appointee to the S.D. of Texas) issued an opinion and order enjoining only enforcement of the federal employee mandate. Judge Brown’s reasoning in that case boiled down to a conclusion that injunctive relief is appropriate because: (1) the “Hobson’s Choice” of a workplace vaccine-mandate creates irreparable harm; and (2) the challenging federal employees have a likelihood of success on the merits because the President acted ultra vires and the implementation of EO 14043 violates the Administrative Procedures Act. Notably, Judge Brown declined to take action with regard to the federal contractor EO, noting that Judge R. Stan Baker (a Trump appointee to the S.D. of Georgia) in Georgia v. Biden had previously enjoined the federal government from enforcing the vaccination mandate on a nationwide basis.
While Judge Brown’s decision in Feds for Medical Freedom v. Biden did not change the status of the federal contractor EO, on the same day, Judge Baker issued a new order with regard to the injunction he had put in place in Georgia v. Biden in December. First, Judge Baker declined to address whether private federal contractors are enjoined from mutually agreeing with a federal agency to include COVID-19 safety clauses in their contracts; i.e., to voluntarily comply with the Safer Federal Workforce Task Force (“Task Force”) guidelines, as he viewed that as improperly seeking an advisory opinion while the case is pending on appeal. But on the broader question as to the scope of his national injunction, on Friday he wrote: Continue reading →
We hate that we have to do this again, but alas, as we reported late last week, on Thursday, September 9th, President Biden announced that he is directing OSHA to issue a new Emergency Temporary Standard (ETS) that would require many employers to provide paid time for employees to get and recover from getting vaccinated and to implement “soft” vaccine mandates; i.e., require employees either to be fully vaccinated or get weekly COVID-19 testing, as well as issuing new Executive Orders requiring federal contractors to implement “hard” vaccine mandates.
While we anticipated OSHA would reconsider the need for a broader COVID-19 ETS applicable beyond just the healthcare sector in light of the impact of the Delta variant, President Biden’s decision to use a new ETS focused on vaccinations and testing as a central element of his newly unveiled Path Out of the Pandemic – COVID-19 Action Plan raises a host of challenges for employers across the country. We understand from our contacts at OSHA that the agency will move much more quickly to prepare and send this ETS to the White House, so it is imperative that the employer community come together now to identify shared concerns and considerations and begin advocating to OSHA and OMB so that this new ETS is one with which industry can reasonably manage.
To that end, Conn Maciel Carey LLP is organizing a fee-based company-anonymous coalition of employers and trade groups to advocate for the most reasonable fed OSHA COVID-19 emergency rule focused on vaccination and testing possible.Continue reading →
On Sept. 9th, Pres. 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. Join the attorneys from CMC’s OSHA and Employment Law practices to talk through our take on the burning questions raised by this latest development on the COVID-19 front: Continue reading →
On September 9, 2021, President Biden charged federal OSHA with developing a second emergency temporary standard (ETS) requiring all but small employers in all industries but healthcare to implement “soft” vaccine mandates, i.e., to require employees to either be fully vaccinated or get weekly COVID-19 testing. The President directed OSHA to include in this new ETS a requirement that these employers provide paid time for employees to get vaccinated and recover from the vaccine. The President also issued executive orders mandating federal contractors and healthcare employers implement “hard” vaccine mandates.
The push now for a broader COVID-19 ETS applicable beyond just healthcare is a step for which we have been bracing for a while now. In June, when OSHA issued its COVID-19 ETS that was limited only to the healthcare industry, the vast majority of employers dodged the bullet, but since the explosion of new cases because of the Delta variant, we began to see that bullet more as a boomerang, likely to come back around for the rest of industry. Here are five signals we picked up that OSHA was likely to revisit its decision in June to limit its COVID-19 ETS to only healthcare employers:
The rate of community transmission and COVID-19 deaths around the country has returned to the level we were experiencing in the Spring of this year when OSHA delivered to OMB a proposed ETS that was written to cover all industries. To the extent the decline in cases and deaths was a major factor in OSHA’s decision to limit the ETS to just healthcare, that factor no longer cuts in favor of a healthcare-only rule.
Since issuing the ETS for healthcare, OSHA has been under pressure from national unions and worker advocacy groups to expand the ETS to all industries, both in the form of written comments during the ETS’s post-issuance comment period and a lawsuit filed by AFL-CIO challenging OSHA’s decision to limit the ETS to just healthcare.
There has been a growing tension between the Biden Administration and certain Republican governors, particular DeSantis in Florida and Abbott in Texas, around mask and vaccine mandates. The Biden Administration could resolve that tension by issuing a specific federal OSHA regulation setting requirements for masking and vaccinations, which would likely preempt conflicting state laws.
The White House has changed its tune about strict COVID-19 protocols and vaccine mandates dramatically since the OSHA ETS was issued. The Administration’s decision to limit the ETS to healthcare only was likely at least partially politically-motivated; i.e., a broad ETS was too unpopular due to the massive decline in COVID-19 cases and deaths. However, we have started to see President Biden take politically risky moves around vaccinations; e.g., reinstituting mask recommendations for vaccinated individuals and setting a “soft” mandate for federal workers and contractors and encouraging industry to set similar mandates. If the politics of aggressive COVID-19 requirements influenced OSHA’s decision to issue a narrow rule in June, it appears the Administration has changed its political calculation in the face of the spread of the Delta variant surge.
Those were the main signals we saw that kept us up at night worried OSHA would deliver to OMB a new or amended COVID-19 ETS that would apply to all industries. But President Biden’s announcements yesterday sent the strongest signal yet that we will soon see further regulatory action from federal OSHA on the COVID-19 front. A lot of questions remain, and we expect those to be answered in time as the new rules take effect, but we wanted to share with you what we know so far, as well as our preliminary thoughts/speculation about some of those questions.
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 →
issue new COVID-19 guidance to protect workers within 2 weeks;
consider whether to issue a COVID-19 emergency temporary standard (and to do so by March 15th); and
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.”
“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 →
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 →
Following in the wake of Virginia OSHA and Michigan OSHA issuing enforceable COVID-19 emergency temporary standards, and as Oregon OSHA and Cal/OSHA ready their own COVID-19 emergency standards this month, New Jersey’s governor, Phil Murphy, issued Executive Order No. 192 (“EO 192”) on October 28, 2020, imposing a series of requirements on Garden State employers.
Whereas Virginia, Michigan, California, and Oregon are all State OSH Plan States, meaning they have state agencies that enforce workplace safety and health standards, New Jersey employers fall within the jurisdiction of federal OSHA, and as a result, enforcement of EO 192 will fall to New Jersey state agencies that do not normally focus on occupational safety and health issues. In a press release announcing EO 192, Governor Murphy explained why he issued the Order despite federal OSHA’s primary jurisdiction over workplace safety in New Jersey. Governor Murphy explained:
“A more significant portion of the State’s workforce has returned to in-person work, and as [New Jersey’s] economy continues to gradually reopen, it is necessary to ensure broad application of relevant health and safety standards to protect workers across all industries.”
Governor Murphy also pointed to the absence of a federal COVID-19 standard as another reason for the need for the EO in New Jersey:
“the federal government has failed to provide all workers the proper standards and protections that they deserve. Today’s executive order closes that gap to help ensure the health and safety of our workforce during this unprecedented time…. Today’s executive order lays out the enforceable standards we need, ensuring the safety of our workers, employers and customers. I will continue to fight for a federal OSHA emergency temporary standard, but where the Trump Administration and Mitch McConnell have dropped the ball, our state has stepped up.”
In order to comply with EO 192, New Jersey employers must:
Continue to focus on ensuring 6 feet of distance between workers whenever feasible. Where the nature of an employee’s work or the work area does not allow for 6 feet of distance to be maintained at all times, employers must ensure that each such employee wears a mask and install physical barriers between workstations wherever possible.
Require employees, customers, visitors, and other individuals entering the worksite to wear cloth or disposable face masks while on the premises. Masks must be provided to employees at no cost. Employees may remove their masks when at their workstations if they are at least 6 feet from anyone else, or when alone in a walled office. Notably, EO 192 provides that employers may deny entry to customers who refuse to wear a mask but does not mandate denial of service as states such as Michigan and Oregon have required.
With no fanfare, California Governor Gavin Newsom issued the latest in his series of COVID-19-related executive orders on May 7, 2020. Executive Order N-63-20 extends by 60 days the time for Cal/OSHA to issue citations and for employers to file appeals, motions and petitions for reconsideration.
As rationale for extending these statutory, jurisdictional deadlines, Governor Newsom explained:
WHEREAS the COVID-19 pandemic, as well as physical distancing and
other public health measures undertaken in response to it, have affected
governmental agencies, workers, private businesses, and California residents,
with associated impacts on adherence to certain statutory and regulatory
deadlines, as well as to workers’ efforts to vindicate their labor and employment
WHEREAS the COVID-19 pandemic, as well as physical distancing and
other public health measures undertaken in response to it, have also had
widespread impacts on state and local governments’ ability to perform certain
functions via in-person interactions, and such functions should be performed via
other means to the extent consistent with public safety and other critical public
As to the Cal/OSHA related deadlines specifically, the Order states:
“The deadlines specified in or that apply to (Labor Code section 6317, related to the issuance of Cal/OSHA citations, and Labor Code sections 6319, 6600, 6600.5, 6601a and 6601.5) shall be extended for a period of 60 days to the limited extent that at the time to issue a citation or file a complaint, claim, or appeal would otherwise elapse in the 60-day period…” following the effective date of the Order, which was May 7, 2020.
A review of the cited Labor Code sections reveals that this Order extends Cal/OSHA’s time to issue citations and the employer’s time to file appeals, motions and petitions for reconsideration.
Labor Code section 6317 gives Cal/OSHA six months following the occurrence of a violation of a safety order to issue a citation or notice in lieu of citation. The remaining Labor Code sections cited in the Order put employers on notice that they must file an appeal within 15 working days of receipt of a citation or notice. If they do not, their right to do so would be lost.
As with most executive orders, this language is open to interpretation. Cal/OSHA Enforcement reads the Order to mean that Continue reading →
On May 1, 2020, Governor Wanda Vázquez Garced of Puerto Rico issued a COVID-related Executive Order (“EO 2020-038”), which imposes a number of requirements upon employers, included among them that every employer must develop a comprehensive, site-specific COVID-19 exposure control plan prior to reopening. The Executive Order also makes clear that employers already open under prior exemptions to prior lockdown orders must also prepare a plan and must do so as soon as possible.
To implement the Executive Order, the Puerto Rico Secretary of Labor issued Circular Letter 2020-03 (“CL 2020-03”), setting forth the elements that must be covered in the plan, including the requirement that the plan be “exclusive to [your] particular workplace.”
There are 22 total elements that must be covered, including the requirements that the plan:
Be a written document, specific to the workplace and contemplates the particular tasks, the physical structure and the number of employees.
Include recommendations issued by local, national and international health agencies regarding controls to prevent the spread of COVID-19.
Detail the monitoring and/or screening process of personnel prior to entering the workplace.
Indicate the control measures that will be taken to achieve the physical distance between employees and clients/public.
Indicate how adequate ventilation will be provided to ensure adequate air flows and, in locations with air conditioning systems, effective filtering.
These EOs were designed to, according to the President:
“protect Americans from out-of-control bureaucracy and stop regulators from imposing secret rules and hidden penalties on the American people. . .”
In a nutshell, the Guidance Documents EO mandates that the public be provided with an opportunity to comment on proposed guidance and interpretive documents (similar to what is required under the Administrative Procedures Act for rulemaking). It requires notice and publication of guidance, and the creation of a comprehensive online database where all such guidance must be housed and easily searched.
The Transparency EO focuses on agency enforcement actions. Most significantly, it requires agencies to provide all parties potentially subject to an enforcement action the opportunity to engage with the agency over the merits of the action prior to commencement of the enforcement action. It also:
prevents agencies from enforcing standards that are not public and that would cause unfair surprise to the regulated entity (i.e., no enforcement relying on guidance documents that are not created and maintained pursuant to the Guidance Documents EO);
requires the publication of any potential new or expanded jurisdiction in the Federal Register;
mandates the development of procedures for encouraging voluntary self-reporting in exchange for penalty reductions; and
requires that agencies adhere to standards in the Paperwork Reduction Act when asking regulated parties for information without a formal subpoena or investigative demand.
The two new Executive Orders align with the President’s business-friendly agenda, making it more difficult for regulators to engage in backdoor rulemaking (i.e., supplementing or changing regulations via the issuance of guidance documents developed without public input), and easier for businesses to keep track of the regulatory requirements with which they must comply, and to head off enforcement actions before they begin.
How will the Executive Orders change the OSH regulatory landscape, and what should employers expect next?Continue reading →
OSHA initiated a “Standards Improvement Project” (SIP) under the Clinton Admin. to make non-controversial changes to confusing, outdated or duplicative OSHA standards. There have been a series of SIP rulemakings since, culminating in SIP Phase IV, published by Obama’s OSHA late in 2016, which proposes numerous revisions to existing standards, including a change to OSHA’s Lockout/Tagout (LOTO) standard that is hardly non-controversial. Specifically, OSHA is attempting to use SIP to undo a judicial interpretation of “unexpected energization” that OSHA does not support; reading “unexpected” right out of the standard.
What Trump’s OSHA does with the LOTO proposal specifically is a mystery, but what is more important is Trump’s recent actions to address the “regulatory state,” which appear to put SIP on steroids. Trump has long stated that over-regulation is hampering America’s economic growth, and plans for decreasing regulations have been a high priority in his 100-day action plan. Trump and Congressional Republicans have made heavy use of the obscure “Congressional Review Act” to permanently repeal numerous Obama-era regulations. The President has also signed a “2-for-1” Executive Order that requires federal agencies to cut two existing regulations for every new regulation they implement, and another Executive Order directing federal agencies to create “regulatory reform” Task Forces to evaluate federal rules and recommend whether to keep, repeal or change them. Trump intends for these task forces to reduce what it deems expensive or unnecessary rules. OSHA rules may be on the chopping block.
Participants in this webinar learned about:
The origins and intent of the Standards Improvement Project
A controversial proposal to remove “unexpected energization” from OSHA’s LOTO Standard
Use of the Congressional Review Act to repeal numerous Obama-era regulations
Pres. Trump’s executive orders designed to slash regulations
Other steps by the Trump Admin. to “Dismantle the Regulatory State”