SOL

By Darius Rohani-Shukla and Eric J. Conn

In late January 2024, the Department of Labor released its annual report summarizing the Solicitor of Labor’s (SOL) enforcement work in FY 2023. SOL enforces more than 180 federal statutes and their implementing regulations. This report is a helpful resource for employers as it demonstrates SOL’s most recent enforcement priorities. In its report, SOL emphasized three aspects of its FY23 enforcement work:

SOL’s Emphasis on Retaliation Claims;
SOL’s Use of Litigation and Amicus Work to Affect Employee Misclassification and Coercive Employer Tactics; and
SOL’s Willingness to Use All Tools at its Disposable.

As the Solicitor of Labor said as an introduction to the report:

“We recognize that as the government, we play a unique role in the federal labor enforcement landscape…. This report will focus on three key aspects of our work: building out our retaliation priority across program areas; utilizing our litigation tools and our amicus and appellate practices to build positive developments in the law, such as combatting misclassification and coercive employer tactics; and deepening our use of all the tools in our toolbox, from warrants, to enhanced
compliance agreements, to criminal enforcement coordination.”

SOL’s Emphasis on Retaliation Claims

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

On Tuesday, March 8^th, OSHA announced a major COVID-19 enforcement blitz in the healthcare industry that will last for the next three months. OSHA issued an enforcement memorandum announcing the enforcement program, which OSHA is referring to as a major “saturation effort,” to ensure that hospitals and others in the healthcare industry have appropriate COVID-19 mitigation protocols in place to protect workers today and are prepared for a future variant. The program will be comprised of a short-term burst of highly-focused inspections directed at hospitals and skilled nursing care facilities that treat COVID-19 patients. Below is a summary of who is covered, when the enforcement effort will end, the impact on State OSH Plans, and what to expect during the inspections.

OSHA states that the goal of this inspection program is to expand its presence to ensure continued mitigation of the spread of COVID-19 and preparation for future variants of the SARS-CoV-2 virus, and to protect the health and safety of healthcare workers at heightened risk for contracting the virus. New Assistant Secretary of Labor for OSHA Doug Parker stated:

“We are using available tools while we finalize a healthcare standard…. We want to be ahead of any future events in healthcare.”

OSHA plans to conduct as many as 1,000-1,500 inspections in the next 90 days to determine whether hospital and other healthcare workers are being adequately protected from COVID-19 spread at work. The inspections will last 2-4 days and will focus on what had been the major elements of OSHA’s COVID-19 Emergency Temporary Standard for Healthcare. The OSHA resources designated for this enforcement blitz and the revised COVID-19 National Emphasis Program (NEP) will comprise at least 15% of OSHA’s enforcement activity for the year.

Who is Covered by the Enforcement Effort?

The initiative supplements OSHA’s targeted enforcement under the Revised COVID-19 NEP [DIR 2021-03 (CPL 03)], by conducting focused, partial follow-up and monitoring inspections of previously inspected or investigated hospitals and skilled nursing care facilities within four North American Industry Classification System (NAICS) codes listed in the enforcement memorandum, where COVID-19 citations or Hazard Alert Letters were issued, including remote-only inspections where COVID-19-related citations were issued. Specifically, facilities in the four NAICS codes listed below may be selected for inspections under the initiative if they meet one of the following criteria: Continue reading →