By Brent I. ClarkJames L. CurtisAdam R. YoungA. Scott HeckerPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: Yesterday the Senate voted to confirm Doug Parker to serve as Assistant Secretary of the Occupational Safety and Health Administration (OSHA).

Mr. Parker previously served in the Obama Administration as Deputy Assistant Secretary for Policy to the Mine Safety and Health Administration. Mr. Parker also served as a member of the Biden-Harris transition team, where he focused on worker health and safety issues, and has held positions as a senior policy advisor and special assistant at the Department of Labor. An attorney, Mr. Parker previously worked as in-house counsel at a labor union.

Since 2019 he has served as the Chief of the California Division of Occupational Safety and Health. In his tenure at CalOSHA, the Agency has aggressively enforced an overbroad and hastily-issued COVID-19 emergency temporary standard, using COVID-19 as a vehicle to force employers to engage in widespread surveillance testing, and to legislate by regulation progressive priorities on wage and hour issues, which many believe is far beyond the scope of CalOSHa’s safety and health mission.

We anticipate Mr. Parker will pursue labor union priorities at federal OSHA, in conjunction with Secretary of Labor Marty Walsh, as well as aggressive enforcement on a range of controversial issues. While Mr. Parker may not have an official role in issuing a federal COVID-19 emergency temporary standard (ETS), employers should be aware of CalOSHA’s ETS requirements, including the testing and employee benefits provisions mentioned above.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. CurtisAdam R. YoungScott Hecker, and Craig B. Simonsen

Seyfarth Synopsis: Federal OSHA is warning Arizona, South Carolina, and Utah that they risk a federal takeover of their worker safety programs unless they adopt a federal emergency temporary standard (ETS) protecting health-care workers from COVID -19.

OSHA published its first COVID-19 ETS on June 21, 2021, which requires health care industry employers to provide masks, physical barriers, social distancing and proper ventilation to ensure their employees were protected from COVID -19. The ETS affected an estimated 10.3 million workers.

States that operate their own “OSHA State Plan,” with U.S. DOL approval, were then required to adopt their own COVID-19 ETS for health care that was at least as protective by July 21. 22 state plans that cover private-sector workers: most states adopted the federal ETS verbatim. Arizona, Utah and South Carolina have not adopted any part of OSHA’s ETS or an equivalent despite the agency’s “good-faith” efforts to bring them into compliance, according to DOL.

OSHA sent courtesy letters to the states October 19, 2021 informing them that they face wholesale decertification of their OSHA state plans, for failure to protect employees with a health care ETS. The agency will publish a notice for each state in the Federal Register announcing its proposal to revoke approval of the State Plan. This will trigger a 35-day comment period by the state plans and other interested parties. OSHA then will determine how to move forward after publishing the notice and reviewing the comments. The decertification process is a lengthy one. In the recent past, OSHA considered withdrawing its approval of Arizona’s state plan when OSHA determined that Arizona’s residential construction fall protection standard was not at least as effective as federal OSHA’s. After a number of years, Arizona avoided decertification by adopting OSHA’s residential construction standard.

Of course, the three state plans could do the same and adopt the federal COVID-19 ETS in the interim, which likely would resolve the dispute. Each of the states have Republican governors and have expressed opposition to elements of the COVID-19 health care ETS and/or proposed vaccination regulations.

Meanwhile, OSHA is currently preparing to release a second COVID-19 ETS, which would apply to all employers with 100 or more workers, and would require vaccination or regular surveillance testing. The agency sent a draft of the rule to OMB earlier this month, indicating that its release is imminent. OSHA’s proposed COVID-19 vaccination and testing ETS is the focus of ongoing meetings between the White House, business groups, and worker advocacy organizations. The White House’s Office of Information and Regulatory Affairs met with the HR Policy Association Thursday and is set to hold meetings Friday and next week, suggesting a delayed roll-out of the draft regulations.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. Clark, James L. CurtisBenjamin D. BriggsAdam R. Young, Patrick D. JoyceIlana R. Morady, Daniel R. Birnbaum, Scott Hecker, and Craig B. Simonsen

Seyfarth Synopsis: On October 12, 2021, OSHA submitted to the White House’s Office of Information and Regulatory Affairs (“OIRA”) an emergency temporary standard requiring private employers with more than 100 employees to implement vaccine mandates or testing.

The emergency temporary standard seeks to implement President Biden’s directive, a piece of his COVID-19 Action Plan announced on September 9, 2021, for OSHA to issue a regulation requiring businesses with at least 100 employees to mandate workers receive the COVID-19 vaccine or be tested weekly.  President Biden’s Plan indicated that the ETS will “provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination.”  For additional information on the proposed contents of the ETS, see our prior blog on the President’s Plan.

OIRA’s regulatory reviews can take months, as it’s agency policy to meet with interested stakeholders in public meetings; OIRA held more than 40 such meetings when considering OSHA’s healthcare ETS published in June 2021.  However, we anticipate the OIRA will limit stakeholder input, perhaps eschewing the meetings altogether, so that OSHA can be cleared to push its rule on an expedited basis and meet the Administration’s goal to maximize vaccinations in the near term.

Once OIRA approves the vaccine ETS, OSHA likely will post an unofficial version of the text on its website, before the Federal Register publishes the final standard.  We expect legal challenges to the emergency standard (e.g., from State attorneys general), and would note that OSHA has had limited success clearing court challenges with regard to many past emergency standards.  Nonetheless, employers should evaluate their ability to comply with a vaccine mandate, including whether to allow for a testing option, how to handle accommodation requests, and what implications they may have vis-à-vis unionized workforces.

Under this new ETS, employers may implement a “hard” vaccine mandate with no testing option.  We have numerous materials to help employers develop and implement a vaccine program, including with regard to requests for religious and disability accommodations.

For more information on vaccines or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. CurtisAdam R. YoungMark A. Lies, II, Ilana R. Morady, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: OSHA intends to restore an Obama-era requirement that employers submit OSHA 300 logs and OSHA 301 reports electronically, ostensibly to improve the Agency’s data and to potentially target employers with injury rates over the industry average for additional scrutiny.

In the waning months of the Obama administration, OSHA issued a rule that required employers to submit all OSHA forms via an electronic reporting portal. After fits and starts, the Trump administration limited the electronic submission to only OSHA Form 300As (and not the full OSHA 300 logs) for establishments with 250 or more employees, and establishments with 20-249 employees that are in certain industries with historically high rates of occupational injuries and illnesses. Now, the Biden administration has drafted a new Executive Order to expand the documents employers must submit and revert to the prior rules.

OSHA proposes to amend its recordkeeping regulation to restore the requirement to electronically submit the employer’s OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301s (Injury and Illness Incident Report) for establishments with 250 or more employees which are required to routinely keep injury and illness records on an annual basis. OSHA State Plan states will be required to follow suit. Under the current regulation, these establishments are only required to electronically submit information from the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses) annually.

Since the institution of the electronic submission rule during the Obama administration, OSHA has cited employers who failed to upload their information. This enhanced submission rule will create a tremendous administrative burden on employers, and the fluid requirements will create additional confusion and unintentional noncompliance. OSHA likely will use the information to send out warning letters, conduct inspections, and target employers who properly record injuries and illnesses if they happen to have injury and illness rates above their industry average. The Injury Tracking Application data is also available online, accessible to competitors, labor unions, and employees.  Employee-centered interests groups are also likely to weaponize the publication of work injury and illness data for use in organizing campaigns or to submit complaints to OSHA.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Daniel I. Small and Robert S. Whitman

Seyfarth Synopsis: With little fanfare and no public reporting, the New York Commissioner of Health extended the designation of COVID-19 as highly contagious, thereby requiring employers to keep their safety plans activated through October 31, 2021. 

As previously reported (herehere, and here), New York State’s health commissioner designated COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health, requiring employers to activate their safety plans under the NY HERO Act.  The designation initially noted that it was to remain in effect until September 30, 2021 unless extended further.  With the designation in place, employers were required to activate their respective Disease Exposure Prevention Plan and put into place the various mitigation measures specified therein.

With no publicity, the health commissioner issued a revised designation under the NY HERO Act requiring employers to continue implementing their respective Disease Exposure Prevention Plan through October 31, at which time the commissioner will decide once again whether to extend the designation further.

Therefore, employers must continue to implement the various disease-prevention measures including daily health screenings and masking for workplaces where all individuals on premises are not fully-vaccinated, among other requirements.

Seyfarth will continue to monitor developments in this space and provide updates when available

By Ilana R. Morady, Brent I. ClarkJames L. CurtisBenjamin D. Briggs, Adam R. YoungPatrick D. Joyce, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: California Governor Gavin Newsom signed SB 606 into law on September 27, 2021. It creates two new categories of Cal/OSHA violations: “enterprise-wide” and “egregious”. It also provides Cal/OSHA with additional subpoena power during investigations, and expands on Cal/OSHA’s ability to seek an injunction.  The new law will go into effect on January 1, 2022.

Cal/OSHA’s enforcement power is soon-to-be radically increased. SB 606, which was co-authored by Senator Lena Gonzalez and Assemblywoman Lorena Gonzalez — both of whom have significant organized labor backgrounds — was signed by Governor Newsom on September 27, 2021. Although SB 606 does not directly relate to COVID-19, the bill’s co-authors leveraged the pandemic to push and ultimately succeed on these amendments to the Labor Code. When the bill was introduced, Senator Gonzalez announced that that the new legislation would “address the need for stronger enforcement measures to keep workers safe as the COVID-19 pandemic continues.”

Key provisions are as follows:

  • Creates a rebuttable presumption that an employer with multiple worksites has committed an “enterprise-wide” violation if Cal/OSHA determines that either of the following factors “is true”:
    • The employer has a non-compliant written policy or procedure.
    • Cal/OSHA “has evidence of a pattern or practice of the same violation or violations committed by that employer involving more than one of the employer’s worksites.”

This presumption will, among other things, have the effect of creating an enterprise-wide violation for any written policy and procedure violations unless an employer can show that its other worksites have different, compliant written policies and procedures. Appeal of an enterprise-wide violation will stay abatement, but if the violation is affirmed, abatement will be required across all of the employer’s California worksites. Enterprise-wide citations will carry the same penalties as willful or repeated citations, i.e. up to $134,334 per violation.

Federal OSHA has for many years used corporate-wide abatement agreements in negotiations with employers, but AB 606 goes much farther. Cal/OSHA’s ability to issue enterprise-wide citations obviates the need for Cal/OSHA to rely on negotiated settlements to achieve enterprise-wide abatement.

  • Authorizes Cal/OSHA to seek an injunction restraining certain uses or operations of employment if it has grounds to issue a citation. This is a massive expansion of Cal/OSHA enforcement power; currently, Cal/OSHA may only seek an injunction if “the condition of any employment or place of employment or the operation of any machine, device, apparatus, or equipment constitutes a serious menace to the lives or safety of persons about it.”
  • Establishes an “egregious violation” category. Cal/OSHA can issue an egregious violation if it finds that at least one of the following seven criteria “is true:”
    • (1) The employer, intentionally, through conscious, voluntary action or inaction, made no reasonable effort to eliminate the known violation.
    • (2) The violations resulted in worker fatalities, a worksite catastrophe, or a large number of injuries or illnesses. For purposes of this paragraph, “catastrophe” means the inpatient hospitalization, regardless of duration, of three or more employees resulting from an injury, illness, or exposure caused by a workplace hazard or condition.
    • (3) The violations resulted in persistently high rates of worker injuries or illnesses.
    • (4) The employer has an extensive history of prior violations of this part.
    • (5) The employer has intentionally disregarded their health and safety responsibilities.
    • (6) The employer’s conduct, taken as a whole, amounts to clear bad faith in the performance of their duties under this part.
    • (7) The employer has committed a large number of violations so as to undermine significantly the effectiveness of any safety and health program that may be in place.

The framework for issuance of repeat citations is applicable to egregious citations, in that the underlying conduct must have occurred within the past five years. Significantly, each employee exposed to an egregious violation will be considered a separate violation for purposes of the issuance of fines and penalties. This could result in breathtakingly large penalties for employers subject to alleged egregious violations.

  • Authorizes Cal/OSHA to issue a subpoena during inspection “if the employer or the related employer entity fails to promptly provide the requested information, and may enforce the subpoena if the employer or the related employer entity fails to provide the requested information within a reasonable period of time.” Apparently Cal/OSHA has the discretion to determine what constitutes a “reasonable period of time.”

The foregoing changes to the Labor Code are undoubtedly significant for employers in California, and will have the largest impact of companies with multiple locations, for example retailers and construction companies. Perhaps the only silver lining is that the original bill was even more expansive of Cal/OSHA’s authority. It is now more important than ever for California employers to ensure regulatory compliance across all worksites and carefully manage Cal/OSHA inspections.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety Counseling and Litigation  (OSHA/MSHA) Team.

By Brent I. ClarkJames L. CurtisMark A. Lies, IIAdam R. YoungPatrick D. JoyceIlana R. Morady, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis:OSHA recently announced a three-pronged approach to establish a heat illness enforcement initiative, pertaining to both indoor or outdoor work settings: an enforcement memorandum, a National Emphasis Program, and drafting of a heat illness prevention permanent standard.

Federal OSHA and most states address heat illness hazards through the OSH Act’s General Duty Clause or state equivalent, which requires employers to provide a workplace free from recognized serious hazards. With respect to heat illness, employers must have sufficient means of abatement in place to address a recognized heat hazards where the temperature and work conditions actually constitute a hazard.  Essentially, this means employers whose employees are exposed to recognized heat illness hazards (indoor or outdoor) need to have a plan and effective mitigation measures in place, or face potential OSHA citations.

Due to a tight labor market, many employers are bringing in new or returning workers who are not used to working in the heat. Because of COVID-19, many of these individuals are also required to wear face masks while working, which can exacerbate heat exposures. New and returning workers, who are not used physical stresses of the job, face the greatest risks of heat illness. As with any physical activity, workers build a tolerance to working in the heat over time.

On September 20, 2021, OSHA issued an updated heat illness enforcement initiative to guide the agency’s enforcement of heat illness inspections and to inform employers what is expected of them from a heat illness prevention standpoint. The initiative prioritizes inspections of work activities on days when the heat index exceeds 80℉, and will target specific industries, including, in a change to prior focus on outdoor work, industries that may be primarily indoors or in shaded work environments. Many of these expectations appear to be modeled after Cal/OSHA’s heat illness standard.

Targeted industries include Commercial Construction, Landscaping, Manufacturing, Waste Management, Transportation, and Warehousing. OSHA’s proposed alleged violation description for heat illness citations is telling and clearly contemplates indoor heat exposure, as it includes other sources of heat such as boilers, furnaces, and engines. Accordingly, we anticipate that OSHA will increasingly target indoor workplaces with these inspections. As employers focus on re-opening efforts, employers should remain aware of risks of safety rule violations, injuries, and heat illness.

Also announced in OSHA’s press release, but not yet published, are a planned National Emphasis Program (NEP), based upon a heat illness Local Emphasis Program (LEP) in OSHA Region 6, as well as a plan to start the official rulemaking process on a federal heat illness prevention permanent standard. A permanent standard has been discussed by many prior OSHA administrations, but has not yet reached the rulemaking stage. OSHA’s reference to the Region 6 LEP provides some insight into what may be contained in a federal NEP.

We have previously blogged on heat stress in the workplace. See Heat Illness and Back to Work — Summer 2021“Water. Rest. Shade.” OSHA Campaign to Prevent Heat Illness in Outdoor WorkersCool For the SummerAvoid the Summer Heat! Sweat the Details of California’s “Cool-Down” Periods and Avoid the Burn of Wage and Hour Class Litigation, and Cal/OSHA Drafts Rules for the Marijuana/Cannabis Industry and Heat Illness Prevention in Indoor Places of Employment.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis, Benjamin D. Briggs, Adam R. YoungPatrick D. Joyce, A. Scott Hecker, Ilana Morady, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: President Biden announced a six-pronged, “comprehensive national strategy” to combat COVID-19, which will include a second OSHA Emergency Temporary Standard requiring vaccines or testing.

On June 21, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS), its first in decades, relating to COVID-19 that only applied to health care employers. On September 9, 2021, the Biden Administration announced the framework for a second OSHA ETS that will apply to all employers with 100 or more employees, and will mandate COVID-19 vaccination or weekly testing for employees who choose not to get vaccinated. The announcement explains:

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.

No draft regulations have been released, and employers have no indication of compliance dates.  When issuing an ETS, OSHA does not need to pursue notice-and-comment rulemaking; however, the White House’s Office of Information and Regulatory Affairs held over 40 stakeholder meetings (known as “12866 meetings,” after Executive Order 12866) prior to OSHA’s issuing its healthcare ETS, the development of which took approximately six months. OSHA state plans will have 30 days to adopt their own regulations that are similar or more restrictive than OSHA’s vaccine ETS. The new OSHA ETS will be part of a larger White House plan intended to address the ongoing COVID-19 pandemic and high rates of infection, hospitalization, and death.

The President noted that there are still nearly 80 million Americans eligible to be vaccinated who have not yet gotten their first shot. The President’s plan will reduce the number of unvaccinated Americans by using “regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements—these requirements will become dominant in the workplace.” In addition, the plan will provide “paid time off for vaccination for most workers in the country.” The regulations may put employers on the hook for those payments.

The six prongs of the White House Plan are:

  1. Vaccinating the Unvaccinated
  2. Further Protecting the Vaccinated
  3. Keeping Schools Safely Open
  4. Increasing Testing & Requiring Masking
  5. Protecting Our Economic Recovery
  6. Improving Care for those with COVID-19

Specifically, with respect to COVID-19 vaccines, the President’s plan will:

  • Require All Employers with 100+ Employees to Ensure their Workers are Vaccinated or Tested Weekly
  • Require Vaccinations for all Federal Workers and for Millions of Contractors that Do Business with the Federal Government
  • Require COVID-⁠19 Vaccinations for Over 17 Million Health Care Workers at Medicare and Medicaid Participating Hospitals and Other Health Care Settings
  • Require Staff in Head Start Programs, Department of Defense Schools, and Bureau of Indian Education-Operated Schools to be Vaccinated
  • Call on Large Entertainment Venues to Require Proof of Vaccination or Testing for Entry
  • Require Employers to Provide Paid Time Off to Get Vaccinated

If you’re struggling with a company vaccine policy, see Seyfarth’s Vaccine Policy Playbook – An “essential resource in designing, communicating, and deploying your company’s vaccine policy.” The Playbook guides employers through types of mandates, policy creation and considerations, such as reporting, incentives, and local mandates, and perhaps most importantly, defining an accommodation strategy that reduces the risk of ADA and EEOC claims.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

Seyfarth Synopsis: The deadline for employers to distribute their airborne disease prevention safety plan and post the plan in the workplace is approaching. 

As previously reported, the New York Department of Labor has published general and industry-specific model disease prevention protocols under the New York HERO Act. Employers were required to either adopt one of the DOL’s models or create their own airborne disease prevention plan that meets or exceeds the minimum requirements of the law.

Now, employers must distribute the protocol to all of their employees. Technically, the statute calls for this to be done by September 4.  But because that is a Saturday, and the next weekday (Monday, September 6) is Labor Day, employers arguably have until September 7 to distribute the plans.

Although the statute requires that the notice be in English and any other language identified by an employee as their primary language, employers can satisfy their obligation by distributing the English version until the DOL publishes non-English versions. Thus far, the only non-English version the DOL has published is Spanish (available here and here). As such, employers with Spanish-speaking employees should use those versions as appropriate.

Employers must also post the safety protocol at each worksite “in a visible and prominent location” within 30 days of adopting their respective safety protocol. Employers must include the protocol in any handbook it provides to its employees. (Doing so will presumably satisfy the need to provide the protocol to newly-hired employees if the employer provides the handbook to new employees at the time of hire.)

Finally, it remains important to bear in mind that that the current requirements pertain only to adoption and circulation of safety plans. Because no current airborne safety emergency has been declared (notwithstanding the continued threat posed by COVID-19 and the Delta variant), employers are not currently required to activate their plans.

Employers should continue working with counsel to ensure compliance with the provisions of the HERO Act, particularly regarding their distribution and posting requirements for workforces that speak languages other than English.

Seyfarth will continue to monitor developments in this space and provide updates when available.

By James L. CurtisAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: Labelling the Delta-variant surge as the “Pandemic of the Unvaccinated,” on August 26, 2021, Illinois Governor J.B. Prtizker announced that Illinois residents must wear masks indoors, and that school and health care staff must be vaccinated.

Cook County and the City of Chicago both had mask mandates in place for “indoor public settings.” On August 26, 2021, Illinois Governor J.B. Pritzker issued Executive Order 2021-20, providing that that:

All individuals in Illinois who are age two or over and able to medically tolerate a face covering (a mask or cloth face covering) shall be required to cover their nose and mouth with a face covering when in an indoor public place. Illinoisans should also consider wearing a mask in a crowded outdoor settings and for activities that involve close contact with others who are not fully vaccinated. Face coverings may be removed temporarily while actively eating or drinking (including in bars and restaurants), and may be removed by workers at workplaces where they can consistently maintain six feet of distance (such as when workers are in their office or cubicle space).

The requirement is effective Monday August 30, 2021. The governor also announced a COVID vaccine mandate for health care, schools, higher education, and state-owned or operated congregate settings.

As we have blogged with regard to CDC and OSHA guidance, the new Illinois EO does not define an indoor “public” place, which appears to give employers in non-public facing environments continued discretion in enforcing mask requirements for vaccinated employees. The Governor’s press release of August 26, 2021 explains the mask mandate to cover all vaccinated and unvaccinated individuals entering workplaces, all adults and children two years old and older, and “all indoor settings.”  Accordingly, the Governor’s office appears to be taking an expansive view of an indoor public place.

The Governor noted that due to the Delta variant, that the number of new cases, including children, is of increasing concern. He explained that Illinois hospitals were facing rising levels of COVID hospitalization, with admissions made up almost entirely (98%) of the unvaccinated. He reiterated a push for vaccination, and requires it of those employed in healthcare and schools.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.