Update on Fed OSHA’s COVID-19 Vaccination and Testing Emergency Rulemaking

By Conn Maciel Carey LLP’s COVID-19 Task Force

Although it has only been 10 days since OSHA delivered a proposed COVID-19 Vaccination and Testing emergency temporary standard (ETS) to the White House’s Office of Management and Budget (OMB), a lot has happened.  We have seen bizarre attempts by groups of individuals to try to muck up the OMB review process.  The US Department of Labor sent letters to certain states informing them that federal OSHA is considering revoking their approved status to operate their State OSH Plans.  And, President Biden’s nominee to Head OSHA, Doug Parker, is scheduled to be confirmed early next week.  Here is a summary of what we’ve been seeing and where we are now.

When Will the Vaccination and Testing ETS be Issued? 

The stakeholder input process at OMB’s Office of Information and Regulatory Affairs (OIRA) is well underway.  OMB’s website reflecting the schedule of Executive Order 12866 meetings is normally only updated once per day, making it hard to nail down when OMB intends to conclude its review of the proposed ETS.  As of the end of last week, we heard that OMB might conclude its review process as early as last Friday, October 12th, but every day, OMB’s website updated to include more and more stakeholder meetings.  As of this morning (Friday, October 22nd), the OMB website updated again, and it did add some new scheduled OIRA EO 12866 stakeholder meetings (now up to 68 meetings), but all of the new meetings have been scheduled to be completed today by 3 PM.

It is beginning to look to us like OMB will have “completed” its review of the ETS by the end of the day today, so at this point, we think OSHA could release the pre-publication package revealing the regulatory text and the preamble of the final ETS, as early as the close of business today.

We have also been hearing Continue reading

Fed OSHA’s COVID-19 Vaccine and Testing Emergency Temporary Standard At OMB for Approval

By Conn Maciel Carey’s COVID-19 Task Force

On September 9th, President Biden announced that he was 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 more importantly, to implement “soft” vaccine mandates; i.e., require employees either to be fully vaccinated or get weekly COVID-19 testing.  This new ETS focused on vaccinations and testing is a central element of the President’s newly unveiled Path Out of the Pandemic – COVID-19 Action Plan, with a central tenet to “vaccinate the unvaccinated.”

We heard from our contacts at OSHA that the agency would move much more quickly to prepare and send this ETS to the White House than it had done with the first COVID-19 ETS this Spring and Summer, and they have done just that.  On Tuesday, October 12, 2021, the Department of Labor issued a statement confirming that OSHA delivered to the White House’s Office of Management and Budget what the statement characterized as the “initial text” of the ETS.  Here is the relevant except from the DOL statement:

“The Occupational Safety and Health Administration has been working expeditiously to develop an emergency temporary standard that covers employers with 100 or more employees to ensure their workers are fully vaccinated or undergo weekly testing to protect employees from the spread of coronavirus in the workplace.  On Tuesday, October 12, as part of the regulatory review process, the agency submitted the initial text of the emergency temporary standard to the Office of Management and Budget.”

We thought the reference to “initial text” was peculiar.  Generally, it is a proposed final regulation that OSHA delivers to OMB in the context of an emergency rulemaking, not a working draft. But, the very next day, on Wednesday, October 13, 2021, after hitting the “refresh” button more times through the night than we would like to admit, we saw what we were expecting – a proposed final version of Federal OSHA’s COVID-19 Vaccination and Testing 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: Continue reading

OSHA Launches Regional Emphasis Program Focused on Storage Tank Cleaning Operations

By Aaron R. Gelb

On August 2, 2021, OSHA announced a new Regional Emphasis Program (“REP”) focused on transportation tank cleaning operations in the rail and truck shipping industries.  This is the second REP launched in Region 5 in less than a month; on June 14, 2021, OSHA commenced an REP to address hazardous noise levels in the Midwest. Employers who perform tank cleaning operations in Region 5, which covers Illinois, Ohio, Wisconsin, Michigan, Minnesota and Indiana, would be well-advised to dust off their copy of Conn Maciel Carey LLP’s OSHA Inspection Toolkit and take the necessary steps to ensure they are ready for the inspections that will begin before the end of the year.

Why Is OSHA Targeting Tank Cleaning Operations?

In the REP and accompanying press release, OSHA places a special emphasis on the dangers posed by the exposure to toxic fumes from cleaning chemicals or stored products that can build up inside a storage tank, as well as risks of fire or explosion when a worker must handle volatile materials in confined spaces.  Additionally, OSHA warns that the workers cleaning these tanks may “face many serious and potentially deadly hazards caused by toxic fumes from chemicals, decaying crops, waste and other substances that can expose workers to suffocation, fires and explosions.” OSHA also highlighted several fatal accidents that occurred in the Midwest, noting that Region 5 has investigated 23 worker deaths and 97 incidents in the transportation and tank cleaning industries since 2016.  According to OSHA, the hazards most often found during these inspections involved the failure to prevent the inhalation of harmful substances and to follow procedures for permit-required confined space requirements.

Which Employers Will Be Targeted? Continue reading

Coalition to Work on OSHA’s 2nd COVID-19 Emergency Rulemaking to Set a “Soft” Vaccine Mandate

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

Pfizer Vaccine’s Full FDA Approval – What Does This Mean for Employers?

By Conn Maciel Carey’s COVID-19 Task Force

Earlier this week, on August 23, 2021, the U.S. Food and Drug Administration fully approved the Pfizer-BioNTech COVID-19 vaccine.   Earlier this year, many employers were hesitant to issue vaccine mandates and expressed concerns about potential legal risks associated with such a mandate since the COVID-19 vaccines were only approved for emergency use.  While the full approval designation may not change the legal landscape as it relates to vaccine mandates, many employers may feel more comfortable imposing such mandates.

As explained in our prior blog, employers can mandate employee vaccinations under federal law.  The U.S. Equal Employment Opportunity Commission (EEOC) issued guidance several months ago stating that employers generally can mandate COVID-19 vaccinations for employees who physically enter the workplace without running afoul of the federal anti-discrimination laws it enforces.  The U.S. Department of Justice (DOJ) also issued a slip opinion on July 6, 2021, regarding vaccination mandates and the emergency use authorization status of the vaccines:

We conclude that section 564(e)(1)(A)(ii)(III) concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to EUAs. Continue reading

Fed OSHA’s COVID-19 ETS: What You Need to Know About Health Screening and Medical Management

By Conn Maciel Carey’s COVID-19 Task Force

Today’s topic on the Fed OSHA COVID-19 ETS is health screening and medical management.

29 C.F.R. Section 1910.502(l) sets forth employee screening, employer/employee notification, medical removal, medical removal protection benefits, and return-to-work requirements.  This summary describes those requirements of the ETS.

A. Employee Screening

Employers have discretion in choosing whether to implement self-monitoring and/or in-person screening.  Employers who choose to have employees self-monitor for COVID-19 symptoms can assist employees in that effort by providing them with a short fact sheet to remind them of the symptoms of concern.  Employers may also consider posting a sign stating that any employee entering the workplace certifies that they do not have symptoms of COVID-19, to reinforce the obligation to self-screen before entering the workplace.

Employers who choose to conduct in-person employee screening for COVID-19 symptoms may use methods such as temperature checks and asking the employee if they are experiencing symptoms consistent with COVID-19.  Employers should conduct this screening before employees come into contact with others in the workplace, such as co-workers, patients, or visitors.

To the extent employers choose to conduct onsite screening, there are important safety considerations to take into account.  Continue reading

Fed OSHA’s COVID-19 ETS: What You Need to Know About Training

By Conn Maciel Carey’s COVID-19 Task Force

Today’s topic on the Fed OSHA COVID-19 ETS is training.

Training:

29 C.F.R. Section 1910.502(n) requires that all employers covered by the ETS provide training to their employees.  To the extent that the employer has already provided training and that training is compliant with the standard, the employer does not need to re-train employees.  This summary describes the training requirements of the ETS.

If the employer has already provided training related to COVID-19, but the previous training did not cover all the elements required by the ETS, the employer must offer training on the elements it had not previously addressed.

As with other OSHA standards, the training required by the ETS must be administered at a literacy level and in a language employees understand.  The trainer must be a person knowledgeable in the topics covered by the training and how they apply to the employee’s specific job tasks.  Additionally, the training should be interactive, providing an opportunity for interactive questions and answers.  An employer may satisfy the interactive requirement even if the employer offers a virtual training if the employer makes available a qualified trainer to address questions after the training or offers a telephone hotline where employees may ask questions.

The training must be designed to allow employees to understand the following: Continue reading

Fed OSHA’s COVID-19 ETS: What You Need to Know About Vaccination, and Patient Screening & Management

By Conn Maciel Carey’s COVID-19 Task Force

Today’s topics on the Fed OSHA COVID-19 ETS are vaccination, and patient screening and management.

Vaccination

29 C.F.R. Section 1910.502(m) requires that all employers covered by the ETS support COVID-19 vaccination for each employee.  This summary describes the vaccination requirements of the ETS.

To support COVID-19 vaccination, employers must provide to their employees:

    • reasonable time during work hours for employees to receive COVID-19 vaccinations, and
    • paid leave for employees to receive vaccinations and any side effects experienced following vaccination (to the extent these occur during regular work hours).

“Reasonable time” may include, but is not limited to: Continue reading

Fed OSHA Updates Its COVID-19 Workplace Guidance – Realigns with CDC on Masks for Vaccinated Workers

By Conn Maciel Carey’s COVID-19 Task Force

As we predicted a few week ago, following in CDC’s footsteps, on Friday of last week (August 13, 2021), OSHA updated its primary COVID-19 guidance for non-healthcare employers – Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace to embraces CDC’s updated mask recommendations for vaccinated individuals from July 27th.  OSHA’s updated guidance includes several links directly to CDC’s July Interim Public Health Recommendations for Fully Vaccinated People, as well as CDC’s COVID-19 Integrated County View Data Tracker, which depicts levels of county-level community transmission (low, moderate, substantial, or high).

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.

What Changed in OSHA’s Updated COVID-19 Guidance? Continue reading

CDC Updates Mask Recommendations for Fully Vaccinated Individuals

By Conn Maciel Carey’s COVID-19 Task Force

We have an unfortunate update to share out of the CDC yesterday, July 27, 2021.  Short story, do not throw away your “Masks Required” signs.

What Did the CDC Change About Mask Recommendations?

In the afternoon of Tuesday, July 27th, the CDC updated its “Interim Public Health Recommendations for Fully Vaccinated People,” in which the CDC recommends:

    • fully vaccinated people wear masks in public indoor settings in areas where there is substantial or high transmission;
    • fully vaccinated people can choose to wear a mask regardless of the level of transmission, particularly if they are immunocompromised or at increased risk for severe disease from COVID-19, or if they have someone in their household who is immunocompromised, at increased risk of severe disease or not fully vaccinated; and
    • fully vaccinated people who have a known exposure to a suspected or confirmed COVID-19 case be tested 3-5 days after exposure, and wear a mask in public indoor settings for 14 days or until they receive a negative test result.

Although the guidance speaks in absolutes, we think that the general limitations that have applied to all prior mask mandates throughout the pandemic continue to inform this updated guidance; i.e., “public indoor settings” is intended to cover locations where there is the potential for exposure to another individual, and not where an employee is “alone in a room” or “alone in a vehicle.”

Is Your County Experiencing Substantial or High Levels of Transmission?

To determine whether your workplace is in a county experiencing substantial or high transmission of COVID-19, the CDC uses two different indicators, the higher of which prevails:

  1. total new cases per 100,000 persons over the past seven days; and
  2. positive test rate over the past seven days.

Continue reading

Mid-Year Review of OSHA Developments [Webinar Recording]

On July 22, 2021, the Partners from Conn Maciel Carey’s OSHA Practice presented a webinar regarding the “2021 Mid-Year Review of Key OSHA Developments.

Having shared a series of predictions during our January webinar regarding how OSHA would tackle the COVID-19 pandemic and reshape its priorities under new leadership during the first year of the Biden Administration, we have now taken stock of what has happened at DOL and OSHA during the first months of the Biden Administration, discussed surprise developments, and looked ahead at the remainder of 2021 and beyond. We took a close look at senior leadership now in place or on the way and analyzed what those appointments likely mean for employers. We also reviewed OSHA’s efforts to address the COVID-19 pandemic, including the new healthcare-focused emergency temporary standard and updated guidance for everyone else. In addition, we examined President Biden’s efforts to make good on his promises to increase OSHA’s budget, grow the number of inspectors and generally ramp up enforcement. Lastly, we reviewed key developments in OSHA’s rulemaking agenda.

Participants in this webinar learned the following: Continue reading

[WEBINAR] 2021 Mid-Year Review of Important Developments at OSHA

On Thursday, July 22, 2021 at 1:00 p.m. ET, join the Partners from Conn Maciel Carey’s national OSHA Practice for a webinar event – “2021 Mid-Year Review of Key OSHA Developments

Having shared a series of predictions during our January webinar regarding how OSHA would tackle the COVID-19 pandemic and reshape its priorities under new leadership during the first year of the Biden Administration, we will now take stock of what has happened at DOL and OSHA during the first months of the Biden Administration, discuss surprise developments, and look ahead at the remainder of 2021 and beyond. We will take a close look at senior leadership now in place or on the way, and analyze what those appointments likely mean for employers. We will also review OSHA’s efforts to address the COVID-19 pandemic, including the new healthcare-focused emergency temporary standard and updated guidance for everyone else. We will also examine Pres. Biden’s efforts to make good on his promises to increase OSHA’s budget, grow the number of inspectors and generally ramp up enforcement. We will also review key developments in OSHA’s rulemaking agenda.

Participants in this webinar will learn the following:

Continue reading

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

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

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

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

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

Participants in this webinar learned the following: Continue reading

Is Your Workplace Covered by Fed OSHA’s New COVID-19 Emergency Temporary Standard?

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

In Lieu of a COVID-19 ETS Applicable to All Industries, Fed OSHA Updated Its COVID-19 Guidance

By Conn Maciel Carey’s COVID-19 Task Force

On June 10th, Fed OSHA revealed its much anticipated (or dreaded) COVID-19 Prevention Emergency Temporary Standard, but rather than a rule applicable to all industries, OSHA issued a regulation narrowly tailored only to certain healthcare settings.

So what does that mean for all other employers?  For everyone else, federal OSHA simultaneously published significant updates (mostly improvements) to its principal workplace COVID-19 guidance – Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.  This was an update to the original version that issued on January 29, 2021 in response to Pres. Biden’s Day 1 OSHA Executive Order, and the first time it has been updated since the COVID-19 vaccines became widely available.

OSHA announced that the updated guidance is intended to help employers protect non-vaccinated workers in non-healthcare settings (i.e., industries not covered by the new ETS), with a special emphasis on other industries noted for prolonged close-contacts among workers, such as meat processing, manufacturing, seafood, and grocery and high-volume retail workplaces.  The guidance also states that it applies to otherwise at-risk workers; i.e., those with conditions that may affect the workers’ ability to have a full immune response to vaccination.

OSHA categorizes the updates to the guidance into three buckets:

  1. focus protections on unvaccinated and otherwise at-risk workers;
  2. encourage COVID-19 vaccination; and
  3. link to guidance with the most up-to-date content.

At its core, though, OSHA’s new guidance was updated to Continue reading

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

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

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

Check out the updated description and register below. Continue reading

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

By Conn Maciel Carey’s COVID-19 Task Force

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

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

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

By Conn Maciel Carey’s COVID-19 Task Force

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

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

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

EEOC Updates COVID-19 Vaccination Guidance

By Conn Maciel Carey’s COVID-19 Task Force

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

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

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

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

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

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

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

Adverse Reactions to COVID-19 Vaccines Are NOT Recordable On Your OSHA 300 Log

By Conn Maciel Carey’s COVID-19 Task Force

Our national OSHA Practice at Conn Maciel Carey has been advocating hard to OSHA about COVID-19 related recordkeeping issues.  One of those issues has been the recordability of adverse reactions to the COVID-19 vaccine.  Specifically, if we want to encourage more workers to get vaccinated, and to encourage more employers to mandate, incentivize, or encourage employees to get vaccinated, OSHA should not require employers to record adverse reactions to the vaccines as days away illnesses on their 300 Logs.

Many people have experienced something of a flu-like reaction to the COVID-19 vaccines, and often have required at least a day away from work the day after the second dose.  OSHA had previously indicated that many of these reactions would be recordable on the OSHA 300 Log, especially if the employer required or strongly encouraged the vaccine, or if the circumstances of the job made vaccination something of a de facto requirement.

In mid-April, OSHA clarified its position in a couple of FAQs about the recordability of adverse reactions to the vaccine in a couple of FAQs on its COVID-19 page.  At that time, OSHA said: Continue reading

How to Navigate the Thorny Legal Landscape Around Employee Vaccination Status

By Conn Maciel Carey’s COVID-19 Task Force

As the number of vaccinated individuals continues to increase and we are seeing a significant decrease in COVID-19 cases, the landscape of legal requirements applicable to employers and employees is changing, particularly related to employees who are fully vaccinated.  Indeed, in an unexpected update to its guidance last week, the CDC stated that fully vaccinated individuals may resume essentially all indoor and outdoor pre-pandemic activities in almost all circumstances.  Although federal agencies such as OSHA and the EEOC have not yet updated their relevant guidance on treatment of vaccinated workers to reflect these changes, they both have stated their intent to address, and in OSHA’s case follow, the CDC guidance, and many states are doing the same.

Accordingly, employers now, more than ever, must understand and may want to take certain actions based on the vaccination status of their workers.  However, obtaining information on an employee’s status and using that information to dictate policies and practices in the work environment has legal implications and raises many important questions that could pose difficulties for employers who want to ensure that they proceed in compliance with applicable laws.  Below, we provide answers to questions we have received related to employee vaccination status as well as tips to effectively deal with these novel and complex issues.

[6/1/21 UPDATE – Check out our newer article about updated EEOC vaccination guidance that touches on many of these same issues.]

Question 1: Can employers ask employees about their COVID-19 vaccination status?

Yes, but employers should be mindful of compliance with federal and state laws on disability, privacy and discrimination.  If the employer requests confirmation and/or proof that an employee has been fully vaccinated, this should be a simple, straightforward inquiry to determine an employee’s current vaccination status.  Such a simple, general inquiry is legitimate and would be considered permissible under applicable employment laws, particularly if it is made to determine whether: Continue reading

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

On Wednesday, May 12th, Aaron GelbAmanda Strainis-WalkerBeeta Lashkari and Ashley D. Mitchell presented a webinar regarding OSHA’s Respiratory Protection Rules: Top 5 Reasons to Get it Right and Employer Mistakes.

While respiratory protection has been top of mind for the past year due to COVID-19, OSHA’s respiratory protection requirements apply to a wide range of industrial hygiene hazards, from hazardous chemicals to oxygen deficient environments, and dusts, smoke, gases, and vapors. Given that airborne hazards may cause death or serious disease, OSHA requires employers to assess their workplaces to identify hazards that necessitate respiratory protection, and for those, to select the appropriate respirator, train employees how to properly use them, and ensure that the respirator fits properly, is safe to use, and is actually being worn. As such, it is no surprise that OSHA’s respiratory protection standard ranks among the 5 most frequently cited standards each year.

This webinar highlighted Continue reading

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

By Fred Walter

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

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

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

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

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

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

CDC Drops Mask and Distancing Requirements for Fully Vaccinated Individuals — What About the Workplace?

By Conn Maciel Carey’s COVID-19 Task Force

By now you have likely heard the big news that yesterday, May 13th, the CDC updated guidance related to masks and physical distancing for individuals who are fully vaccinated (i.e., two weeks after receiving a single-dose vaccine or after the second dose in a two-dose series).  Specifically, in its updated guidance — “Interim Public Health Recommendations for Fully Vaccinated People” — the CDC now says fully vaccinated individuals may resume essentially all indoor and outdoor pre-pandemic activities in almost all circumstances.  As of now, there is no outside limit to one’s status as fully vaccinated.

In a public video released just before the CDC posted its updated written guidance, CDC Director Dr. Walensky shared that “based on data about vaccine effectiveness and the low risk of transmission to others, and universal access to vaccines today, the CDC is updating our guidance for fully vaccinated individuals.  Anyone who is fully vaccinated can participate in indoor and outdoor activities—large or small—without wearing a mask or physical distancing.”  Even in the case of “breakthrough” infections, Dr. Walensky acknowledged that there is likely low risk of transmission to others.  Dr. Walensky cautioned that “over the past year, we saw how unpredictable this virus can be, so we may have to change these recommendations if things get worse.”

What Does This Mean For Workplaces?

The question everyone is asking is whether this updated guidance applies to employees and workplaces.  The best answer we can give now is that the guidance does technically apply to workplaces, but there is a significant exception relative to workplaces built into the new guidance that swallows most of the relief it purports to provide, at least for now in many jurisdictions. Here’s our analysis about why this new guidance does apply to workplaces, but how geographically limited the relief is for the time being. Continue reading

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

On Wednesday, May 12th, join Aaron Gelb, Amanda Strainis-Walker, Beeta Lashkari and Ashley D. Mitchell for a webinar regarding OSHA’s Respiratory Protection Rules: Top 5 Reasons to Get it Right and Employer Mistakes.

While respiratory protection has been top of mind for the past year due to COVID-19, OSHA’s respiratory protection requirements apply to a wide range of industrial hygiene hazards, from hazardous chemicals to oxygen deficient environments, and dusts, smoke, gases, and vapors. Given that airborne hazards may cause death or serious disease, OSHA requires employers to assess their workplaces to identify hazards that necessitate respiratory protection, and for those, to select the appropriate respirator, train employees how to properly use them, and ensure that the respirator fits properly, is safe to use, and is actually being worn. As such, it is no surprise that OSHA’s respiratory protection standard ranks among the 5 most frequently cited standards each year.

This webinar will highlight Continue reading