Many will argue that 2021 was simply a variant of 2020. As expected, the Biden Administration has been very deliberate and at times aggressive with their COVID-19 tactics and executive orders, pushing employers to quickly make changes to their policies. Moving into 2022, business leaders and legal analysts are predicting the Administration will refocus on employee rights and other social impact initiatives.

Join our team of panelists on Thursday, December 9, 2021, from 9:30 a.m. to 11:00 a.m. Central, for this discussion on:

  • Trends in employment law – what employers should know as we approach 2022;
  • Updates on vaccine requirements for employers with 100 or more employees;
  • NLRB developments to watch; and
  • Movement in ESG, human capital management disclosures, and other impact initiatives.

Presenters

Matthew Gagnon, Partner
Jennifer Kraft, Partner
Ameena Majid, Partner
Kyla Miller, Associate
Thomas Posey, Partner
Adam Young, Partner

If you have any questions, please contact Julianne Holdsberg at jholdsberg@seyfarth.com and reference this event.

There is no cost to attend, however registration is required. REGISTER HERE

 

By James L. CurtisAdam R. YoungPatrick D. JoyceDaniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: The National Safety Council (NSC) released an update to its annual list of OSHA’s top-ten cited standards. The list provides a starting point for employers to review their own safety programs on an annual basis. 

Patrick Kapust, deputy director of OSHA’s Directorate of Enforcement Programs, presented OSHA’s preliminary Top 10 most frequently cited workplace safety standards for fiscal year 2021. The list was presented virtually during the 2021 NSC Safety Congress & Expo, and summarized in NSC’s Safety+Health magazine.

According to OSHA and NSC, Fall Protection in construction (1926.501) remains at the top of the list for the 11th year in a row.  Likely due to COVID-19 concerns, Respiratory Protection (1910.134) moved up several spots to the second most commonly cited standard, followed by Ladders (1926.1053). Hazard Communication, which spent the last several years at No. 2, moved to the fifth spot on this year’s list.

Drumroll please…OSHA’s Top 10 most frequently cited workplace safety standards for FY 2021 are:

  1. Fall Protection in Construction (1926.501): 5,295 violations
  2. Respiratory Protection (1910.134): 2,527
  3. Ladders (1926.1053): 2,026
  4. Scaffolding (1926.451): 1,948
  5. Hazard Communication (1910.1200): 1,947
  6. Lockout/Tagout (1910.147): 1,698
  7. Fall Protection in General Industry (1926.503): 1,666
  8. Personal Protective Equipment – Eye and Face Protection (1926.102): 1,452
  9. Powered Industrial Trucks (1910.178): 1,420
  10. Machine Guarding (1910.212): 1,113

As 2021 comes to a close, employers should take this opportunity to conduct an annual review of their safety and health programs, with an eye toward addressing OSHA’s top-ten most-cited violations. Though not on the list, OSHA has telegraphed that COVID-19 inspections following the newly-announced National Emphasis Program will be a priority in 2022. OSHA will conduct even more inspections if OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard survives its legal challenges.

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) or the Workplace Counseling & Solutions Teams.

By James L. CurtisAdam R. YoungPatrick D. Joyce, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Department of Labor Tweeted and blogged about the safety of workers during the busy holiday season, indicating an area of potential enforcement for OSHA in the coming weeks.

Unsurprisingly, OSHA has targeted workplace transmission of COVID-19 as a top holiday safety and health concern. All employers who are bringing on additional or temporary workers for the holidays must exercise additional care in their implementation of COVID-19 controls and prevention measures. In light of an anticipated surge in cases due to increased hiring of seasonal workers, as well as non-work-related family and social gatherings, OSHA updated its guidance on mitigating and preventing the spread of COVID-19 in the workplace. The updated guidance follows OSHA’s new Emergency Temporary Standard on Vaccines, Testing, and Face Coverings pending before the 6th Circuit.

Even before COVID-19, crowd management has always been a holiday concern. If large crowds are expected for holiday shopping events, employers should plan ahead and take steps to protect employees. The DOL has crowd management guidance to help employers prevent worker injuries during crowded shopping events.

In addition, for those employers hiring new or temporary workers for the holidays, it’s important to “train them for the risks they may encounter on the job“ – including how to reduce exposure to the coronavirus. Importantly, be sure to know the rules that apply to teen workers if employing anyone under 18. DOL also stresses that it is imperative that every worker is trained in a language they can understand and be encouraged to raise any health or safety concerns to their supervisor without fear of retaliation.

Concerning warehousing, distribution, and delivery hazards, the DOL has updated its guidance for keeping employees safe, including:

We have blogged before on this and similar topics before: OSHA Guidelines for Retailers on Holiday Shopping and Crowd Management Safety, Have Yourself a Safe, Undistracted, and Accident Free Holiday, and Don’t Let Too Much Eggnog Ruin Your Office Holiday Party: Tips to Limit Employer Liability at Company Parties.

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) or the Workplace Counseling & Solutions Teams.

By A. Scott HeckerBrent I. ClarkBenjamin D. Briggs, James L. CurtisAdam R. YoungIlana Morady, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The Judicial Panel on Multidistrict Litigation (MDL) lottery selected the U.S. Court of Appeals for the 6th Circuit to hear the consolidated legal challenges to OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), a result that anti-ETS parties may welcome.

The Sixth Circuit has been randomly assigned by a November 16, 2021 MDL lottery to hear the consolidated legal challenges to OSHA’s ETS.  A Court with a majority of judges appointed by Republican practice in its active and senior ranks, including many from the Trump years, the Sixth Circuit will now determine whether to maintain the U.S. Court of Appeals for the Fifth Circuit’s November 12, 2021 stay and will be tasked with guiding the ETS contests toward resolution.

This is not the result the government, unions, and like-minded entities were hoping for, and they will now pitch their positions to the Sixth Circuit, attempting to convince the Court that the ETS is necessary to protect workers from a grave danger.  Those seeking to overturn the ETS will argue that the Court’s sister circuit got the decision right and will rely on the Fifth Circuit’s stay opinion to continue their push to ensure the ETS never sees the light of a covered workplace.  This result could well continue OSHA’s less-than-stellar streak with ETS challenges.

As employers consider how this latest twist impacts their compliance efforts, your Seyfarth attorneys are prepared to help you navigate your chosen course.

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 Adam R. YoungRobert T. Szyba, Robert S. Whitman, and  Craig B. Simonsen

Seyfarth Synopsis: The New York Department of Labor published “Frequently Asked Questions” which address occupational cannabis issues under the adult-use cannabis and the Marijuana Regulation and Taxation Act (MRTA).

New York State has legalized medical and recreational marijuana, and the NYDOL’s FAQs provide additional insights into how the agency will interpret the statutory protections and employer obligations.

One key take away from the FAQs is that the NYDOL takes the position that drug testing for marijuana (i.e., THC) is generally prohibited, unless such testing is specifically required by federal or other state law, such as with commercial motor vehicle drivers. In effect, employers cannot test and cannot rely on testing as proof of impairment. According to the NYDOL, “such tests do not currently demonstrate impairment,” meaning that current testing technology is insufficient to establish impairment without more information. This prohibition does not appear in the statute, and we anticipate confusion among employers because drug testing programs adopt a legal presumption of impairment based on test positivity. Further, new technologies may increase the accuracy of testing and its correlation with identifiable impairment at the time of the test, which may undermine NYDOL’s rationale.

The FAQs indicate that an “employer is not prohibited from taking employment action against an employee if the employee is impaired by cannabis while working,” only if the employee manifests specific articulable symptoms of impairment that (1) decrease or lessen the performance of their duties or tasks, or (2) interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health laws. In effect, the FAQs suggest that an employee can be physiologically impaired at work and not face discipline or discharge, so long as the employee does not “manifest specific articulable symptoms” and the employer does not have a written policy in place prohibiting impairment.

An employer can have a written policy prohibiting impairment at work, and can take disciplinary action for violation of that policy. If there is no such policy, however, the employer cannot take action unless the employee’s job performance suffers or there is some safety risk. So, employers seeking to create an impairment-free workplace should ensure that they maintain a written policy.

As we have previously blogged, the National Safety Council advises that employers adopt a zero tolerance policy for marijuana use in safety-sensitive positions. The NYDOL’s FAQs draw into question employers’ ability to enforce reasonable safety rules relating to marijuana use and impairment, particularly for positions that implicate the safety of employees. On the other hand, the FAQs highlight the need for employers to have written policies prohibiting workplace impairment to protect safety and comply with the law.

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) or Cannabis Law Practice Teams.

By Scott HeckerElisabeth Watson, and Karla Grossenbacher

Seyfarth Synopsis: Your dedicated Seyfarth Team has created a checklist to help covered employers achieve compliance with the OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) in timely fashion.

Pending legal challenges have called into question the viability of ETS, published in the Federal Register on November 5, 2021. Despite the Fifth Circuit promptly staying the ETS on November 6 – a Saturday! – we continue to encourage clients to move toward complying with the ETS’s requirements. The ETS includes two compliance dates, December 6, 2021, which includes most of the obligations mandated under the standard, and January 4, 2022, which primarily addresses testing.

Our checklist, with linked regulatory sections and additional resources, follows.

December 6, 2021 Deadlines[1],[2], 29 CFR 1910.501(m)(2)(i)

  1. Written Policy
  • Establish, implement, and enforce a written mandatory vaccination policy; or
  • Establish, implement, and enforce a written policy allowing employees to choose to be fully vaccinated against or provide proof of regular testing for COVID-19.
  • The requirements do not apply to employees who work from home, do not report to a worksite with other individuals, or work exclusively outdoors.
  1. Determination of Vaccination Status/Recordkeeping[3]
  • Employer must determine the vaccination status of each employee and whether the employee is fully vaccinated.
  • Employer must require each vaccinated employee to provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated.
  • The employer must maintain a roster of each employee’s vaccination status.
  • This information must be treated as confidential medical records.
  1. Paid Time/PTO Related to Vaccination and Recovery
  • Provide reasonable time for each vaccination shot (up to four hours paid working time, not paid leave)
  • Provide reasonable time off for recovery. Must permit employees to use reasonable available paid sick leave reasonable (generally up to two days is reasonable).
  • Not retroactive.
  1. Removal of COVID-positive Employees
  • Regardless of COVID-19 vaccination status or any COVID-19 testing the employer must:
    • Require each employee to promptly notify the employer when they receive a positive COVID-19 test or are diagnosed with COVID-19 by a licensed healthcare provider; and
    • Immediately remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider and keep the employee removed until the employee:
      • Receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing;
      • Meets the return to work criteria in CDC’s “Isolation Guidance” (incorporated by reference, § 1910.509); or
      • Receives a recommendation to return to work from a licensed healthcare provider.
  1. Face Coverings
  • The employer must ensure that each employee who is not fully vaccinated wears a face covering when indoors and when occupying a vehicle with another person for work purposes, except under certain, designated circumstances.
  1. Information for Employees
  • The employer must inform each employee, in a language and at a literacy level the employee understands, about:
    • The requirements of this section as well as any employer policies and procedures established to implement this section;
    • COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated, by providing the document, “Key Things to Know About COVID-19 Vaccines.”
    • The anti-retaliation and non-discrimination provisions of 29 CFR 1904.35(b)(1)(iv) and section 11(c) of the OSH Act.
    • The prohibitions of 18 U.S.C. 1001 and of section 17(g) of the OSH Act, providing for criminal penalties associated with knowingly supplying false statements or documentation.

January 4, 2021 Deadlines, 29 CFR 1910.501(m)(2)(ii)

  1. Testing for Not-Fully-Vaccinated Employees
  • Employees who have received the final vaccine dose of their chosen course do not need to be tested:
    • Employers must ensure that employees have received both shots of a two-dose vaccination regimen, or one dose for single-dose vaccines by January 4, 2022; or
  • Employees must undergo at least weekly testing, or test within 7 days before returning to work (if away from the workplace for a week or longer).
    • Employees who fail to provide timely test documentation must be sent home. Employers must retain and treat test records as confidential medical records.
  • Over-the-counter antigen testing is acceptable. However, testing cannot be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.
  • Testing can be unpaid; however, accommodations requirements, state law, or bargaining issues may require payment.

We recommend that as employers navigate compliance, they consult OSHA’s ETS resource page, including its extensive FAQs.  Your friendly, neighborhood Seyfarth attorneys stand ready to assist as well.

[1] Twenty-one state-plan U.S. jurisdictions must choose whether to formally adopt the ETS or to issue their own standard that is at least as effective as the OSHA ETS.  They include Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming.

[2] OSHA’s ETS is effective immediately in 29 jurisdictions, including Alabama, America Samoa, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Guam, Idaho, Illinois, Kansas, Louisiana, Maine, Massachusetts, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Northern Mariana Islands, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Virgin Islands, West Virginia, and Wisconsin.

[3] Employers must have an employee vaccination status roster in place by December 6, 2021, and should implement a system to keep that roster current as employees work toward receiving the final doses of their chosen vaccine regimen by January 4, 2022.

By Scott HeckerAdam YoungNoah FinkelDavid BaffaJoshua SeidmanLaura MaechtlenCamille OlsonKristin McGurnLawrence Lorber,  Brent Clark, Jim Curtis, Ben Briggs and Patrick D. Joyce

Seyfarth Synopsis: The much-anticipated OSHA Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) posted this morning, November 4, 2021, for public inspection.

The ETS is scheduled for publication in the Federal Register on November 5, at which point it will be effective, with new obligations for employers beginning December 5, 2021, and an ultimate “vaccination or testing” deadline of January 4, 2022. This morning, the White House announced that it would also change the December vaccination deadline for covered federal contractors to align with the January 4th ETS deadline.

Now that we can review the text of the ETS, we finally have some answers to questions that have been percolating since at least September 9, 2021, when President Biden Announced his Administration’s COVID-19 Action Plan.  OSHA also released Frequently Asked Questions to guide employers with regard to the new ETS.

1. 100-Employee Coverage Threshold

The ETS requires covered employers, those with 100 or more employees, to implement a policy on vaccination ensuring their employees are fully vaccinated by January 4, 2022, subject to required accommodations.  OSHA explains in the ETS’s preamble and FAQs that “employers must include all employees across all of their U.S. locations, regardless of employees’ vaccination status or where they perform their work.  Part-time employees do count towards the company total, but independent contractors do not.”  Fully remote workers count towards the 100-employee threshold.  Corporate entities with more than one location must count “all employees at all locations . . . for purposes of the 100-employee threshold.”  Franchisors and franchisees are “separate entities for coverage purposes, such that the franchisor would only count ‘corporate’ employees.”  Despite OSHA’s suggestion that staffing agencies and host clients share some level of joint responsibility over staffing agency workers “only the staffing agency would count these jointly employed workers for purposes of the 100-employee threshold for coverage under this ETS” because “the staffing agency would typically handle administrative matters for these workers.”  At multi-employer worksites, “such as a construction site, each company represented – the host employer, the general contractor, and each subcontractor – would only need to count its own employees.”

2. Compliance Dates and Vaccination Requirement.

Covered employers must ensure that employees have received both shots of a two-dose vaccination regimen, or one dose for single-dose vaccines by January 4, 2022, or they must undergo at least weekly testing as of that date.  (Although employees are not considered “fully vaccinated” under the ETS until they are two weeks beyond the final shot, the ETS does not mandate weekly testing for those who are in their final two-week waiting period as of January 4th.)   Employers must be in compliance with the rest of the ETS’ requirements — such as masking, recordkeeping, removal of COVID-positive employees — by December 5, 2021.

To avoid the testing obligation for unvaccinated employees, the last day on which an employee may receive a one-dose vaccine (such as Johnson & Johnson) is January 4, 2022.  The ETS prescribes that employees pursuing a two-dose vaccination may not receive a second dose within fewer than 17 days of the first dose, which means the latest date for the first dose in a two-dose regimen would have to be December 18, 2021.   For employees who follow the recommended time between doses (28 days between shots for Moderna, and 21 days between shots for Pfizer-BioNTech), employees should receive the first dose of Moderna by December 7, 2021, or the first dose of Pfizer-BioNTech by December 14, 2021.

The ETS requires employers to obtain written documentation of employee vaccination, which would include an attestation stating that more formal forms of proof are unavailable.  Employers then must maintain the records and written roster of employee vaccination status.

3. Vaccination Status and Weekly Surveillance Testing

Employees who have not received their full vaccine course by the January 4, 2022 deadline must start producing verified negative tests to their employer on at least a weekly basis.  Employers must exclude from their workplaces any employee who receives a positive test result or a positive COVID-19 diagnosis.  Any unvaccinated employee must mask in the workplace, with certain designated exceptions.  Again, while employee testing need not begin until on and after January 4th, masking, leave, recordkeeping and other obligations under the ETS go into effect on December 5, 2021.

Employers must determine employees’ vaccination status, including requiring delineated types of documentation.  If an employee cannot provide one of the designated documents, an attestation meeting defined criteria is allowable.  Employers must maintain records of vaccination, including a “roster of each employee’s vaccination status,” which are subject to subject to OSHA’s medical records requirements at 29 CFR 1910.1020; however, the ETS excepts them from 1910.1020’s typical retention requirements, advising the vaccination records “must be maintained and preserved while this section remains in effect.”  29 CFR 1910.501(d)(4).  There are similar maintenance and retention requirements for employee test results.  See id. at 1910.501(g)(4).

Employers can, but are not required to allow for vaccination or testing options.  Acceptable tests under the ETS include those that are:

Cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the FDA to detect current infection with the SARSCoV-2 virus (e.g., a viral test);

Administered in accordance with the authorized instructions; and

Not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Examples of tests that satisfy this requirement include tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer.

29 CFR 1910.501(c).

4. Employers Must Pay for the Costs of Vaccination

The ETS requires employers to give employees (a) reasonable paid time for each primary vaccination dose (i.e., up to four hours for each dose) and (b) paid sick leave for employees’ reasonable recovery time due to side effects from each primary vaccination dose.  29 CFR 1910.501(f).  Neither paid time off mandate is retroactive prior to the promulgation of the ETS.

Paid time for receiving the vaccination must be paid at an employee’s regular rate of pay.[1]  Importantly, the paid time of up to four hours for each primary vaccination dose must be provided as a standalone benefit to employees.  It cannot be offset by any other leave that an employee has accrued (e.g., paid sick leave, vacation time, PTO, etc.).  If an employee needs more than four hours to receive a primary vaccination dose, the additional time would be deemed unpaid, protected leave as long as it is reasonable.  The employee can use other leave time that they have available (e.g., sick leave or vacation time) to receive pay in these situations.

Paid sick leave for vaccination side effects also contains several unique components.  Notably, there is an offset option for employers, depending on the circumstances. If an employer offers separate buckets of paid leave to employees (e.g., paid sick leave, vacation, etc.), the employer can require the employee to use any available, accrued paid sick leave when recovering from side effects.  The employer cannot force use of vacation or personal time in these situations.   However, if the employer offers a single bucket of PTO, the employer may require employees to use that leave when recovering from vaccination side effects.

If an employee does not have available paid sick leave or PTO at the time they are experiencing vaccine side effects, the employer must provide the employee with additional paid sick leave.  In other words, the employer cannot require that the employee use advanced paid sick leave, borrow against future accruals or “go into the negative.”  The ETS indicates that the amount of paid sick leave must be “reasonable,” and OSHA presumes that if an employer makes available up to two days of paid sick leave per primary vaccination dose for side effects, the employer’s setup would be considered “reasonable.”

Other federal, state or local laws, as well as collective bargaining agreements, may mandate that employers provide additional paid time off to employees for vaccination or recovery from vaccination side effects.  Employers should examine COVID-19 paid leave mandates, non-COVID-19 general paid sick leave mandates, and other state and local time off laws when assessing their paid time off obligations related to vaccinations.

5. Employers Need Not Pay for the Costs of Testing

Generally, the ETS does not require employers to pay for the cost of COVID testing (including time spent testing), though employers are not prohibited from doing so.  While this may first read as a “win” for employers, unfortunately it does little to clarify the confusing state law matrix or collective bargaining obligations regarding employer responsibility for paying for testing costs or associated testing time.

The ETS and associated FAQs acknowledge that there may be circumstances under which employers must pay, e.g., based on “other laws, regulations, or collective bargaining agreements or other collective negotiated agreements.”  See 29 CFR 1910.501(g).  Regarding CBAs, the very first section of the ETS, 29 CFR 1910.501(a), reads that “[n]othing in this section prevents employers from agreeing with workers and their representatives to additional measures not required by this section and this section does not supplant collective bargaining agreements or other collectively negotiated agreements in effect that may have negotiated terms that exceed the requirements herein.”

Regarding potentially competing state laws, about a half-dozen jurisdictions generally require employers to reimburse employees for reasonable and necessary expenses (such as California, Illinois, Seattle), but since testing is an alternative to vaccination and arguably not “necessary,” it is just unclear how these laws may be applied.  About 22 states require employers to pay for the cost of “medical examinations,” but these are generally older laws not passed specifically in connection with COVID or COVID testing, and it is not entirely settled whether each and every type of potential COVID test would be considered a “medical examination” pursuant to these laws.  Ultimately, as the FAQs point out, the subject of payment for costs associated with testing “pursuant to other laws or regulations not associated with the OSH Act is beyond OSHA’s authority and jurisdiction.”

With regard to the time spent to get tested, while the ETS supports the notion that employers should not have to pay for time spent testing, other laws may well bear upon the compensability of such time, particularly depending on when during a work shift testing is conducted.  Whether an employer must pay non-exempt employees for time spent on testing remains unclear and often subject to the state in which it takes place and the details of the employer’s testing program.

6. OSHA Record-keeping of COVID-19 Illnesses

The ETS reminds employers of existing record-keeping obligations as they apply to COVID-19 illnesses.  Employers must report work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.  See id. at 1910.501(h). The ETS does not require employers to provide paid leave to employees missing work time due to a COVID-19 diagnosis, though other laws may mandate such leave.  See id. at 1910.501(h).

7. Employers Must Train Employees on the ETS

Employers must communicate the requirements of the ETS to their employees, in language they can understand, along with providing the document “Key Things to Know About COVID-19 Vaccines,” information on anti-retaliation, and OSH Act prohibitions against supplying false information or documentation.  See 29 CFR 1910.501(i).

8. Competing Federal Vaccine Mandates

The ETS and FAQs explains that the ETS does not apply to workplaces covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors.  Nor does it apply to worksites covered by the existing healthcare ETS (29 C.F.R. 1910.502). Accordingly, the same employer could have some worksites that involve federal contracts that are covered by the federal contractor EO, and others covered by the ETS.  A health care employer similarly could operate an ambulatory care facility covered by the new ETS, and a hospital covered by the health care ETS.

The White House Fact Sheet, “Biden Administration Announces Details of Two Major Vaccination Policies,” acknowledges the competing federal COVID-19 vaccine mandates and – helpfully – tries to harmonize them:

Streamlining Implementation and Setting One Deadline Across Different Vaccination Requirements: The rules released today ensure employers know which requirements apply to which workplaces. Federal contractors may have some workplaces subject to requirements for federal contractors and other workplaces subject to the newly-released COVID-19 Vaccination and Testing ETS. To make it easy for all employers to comply with the requirements, the deadline for the federal contractor vaccination requirement will be aligned with those for the CMS rule and the ETS. Employees falling under the ETS, CMS, or federal contractor rules will need to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by January 4, 2022. This will make it easier for employers to ensure their workforce is vaccinated, safe, and healthy, and ensure that federal contractors implement their requirements on the same timeline as other employers in their industries. And, the newly-released ETS will not be applied to workplaces subject to the federal contractor requirement or CMS rule, so employers will not have to track multiple vaccination requirements for the same employees.

This officially pushes the federal contractor deadline back from December 8, 2021, and indicates that federal contractors who have already started implementing protocols under the Safer Federal Workforce Task Force Guidance do not have to implement the OSHA (or CMS) mandate at their covered contractor workplaces.  That is, covered contractors who already developed protocols under the “show or provide” vaccination documentation directive in the Guidance should not be subject to new OSHA recordkeeping requirements at their covered contractor workplaces.

In addition to not covering those under the umbrellas of the Task Force Guidance or CMS regulations, see 29 CFR 1910.501(b)(2), OSHA’s ETS excludes employees “[w]ho do not report to a workplace where other individuals such as coworkers or customers are present; . . . While working from home; or . . . Who work exclusively outdoors,” 29 CFR 1910.501(b)(3).

9. Challenges to Come

The Task Force Guidance clearly stated its position on preemption:

Q19: Does this clause apply in States or localities that seek to prohibit compliance with any of the workplace safety protocols set forth in this Guidance?

A: Yes. These requirements are promulgated pursuant to Federal law and supersede any contrary State or local law or ordinance. Additionally, nothing in this Guidance shall excuse noncompliance with any applicable State law or municipal ordinance establishing more protective workplace safety protocols than those established under this Guidance.

Aligned with the Task Force’s position, OSHA’s FAQs accompanying today’s ETS indicate that the:

ETS preempts States, and political subdivisions of States, from adopting and enforcing workplace requirements relating to the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19, except under the authority of a Federally-approved State Plan. In particular, OSHA intends for the ETS to preempt and invalidate any State or local requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing . . . .

OSHA’s authority to preempt such State and local requirements comes from section 18 of OSH Act, and from general principles of conflict preemption . . . .  [O]nce OSHA promulgates federal standards addressing an occupational safety and health issue, States may no longer regulate that issue except with OSHA’s approval and the authority of a Federally-approved State Plan.

However, we have already seen States and others challenge President Biden’s federal contractor COVID-19 vaccine mandate, and we anticipate prompt litigation over the ETS once it is officially published in the Federal Register and, therefore, in effect.  Indeed, 24 State attorneys general foreshadowed their legal arguments in a September 16, 2021 letter to President Biden.

To navigate your various obligations under the multiple federal vaccine mandates and to assist in understanding the impacts of these anticipated legal challenges, we recommend that you reach out to your Seyfarth attorney.  As you know, analyzing the nuances of and interactions among your myriad requirements is complicated, and we are here to help.  Reach out to your Seyfarth attorney with any questions.

 

[1] By comparison, the ETS does not include a specific rate of pay that employers must use for vaccine side effect paid sick leave.

Register Here

Tuesday, November 9, 2021
1:00 p.m. to 2:00 p.m. Eastern
12:00 p.m. to 1:00 p.m. Central
11:00 a.m. to 12:00 p.m. Mountain
10:00 a.m. to 11:00 a.m. Pacific

With only a month to go before its December 8, 2021 compliance deadline, Seyfarth subject matter experts will highlight issues concerning the federal contractor COVID-19 vaccine mandate.

Additional topics will include:

  • Update for employers on the status of the new OSHA Emergency Temporary Standard, and how it applies to contractors and employers generally;
  • Disability and religious accommodation issues with “hard” vaccine mandates; and
  • The status of litigation challenging vaccine mandates.

Speakers

Adam R. Young, Partner, Seyfarth Shaw LLP
Kristin G. McGurn, Partner, Seyfarth Shaw LLP
A. Scott Hecker, Senior Counsel, Seyfarth Shaw LLP


If you have any questions, please contact Kate Avery at kavery@seyfarth.com and reference this event.

Learn more about our Workplace Safety & Environmental  practice.

This webinar is accredited for CLE in CA, IL, NJ, and NY. Credit will be applied for as requested for TX, GA, WA, NC, FL and VA. The following jurisdictions accept reciprocal credit with these accredited states, and individuals can use the certificate they receive to gain CLE credit therein: AZ, CT, NH. The following jurisdictions do not require CLE, but attendees will receive general certificates of attendance: DC, MA, MD, MI, SD. For all other jurisdictions, a general certificate of attendance and the necessary materials will be issued that can be used in other jurisdictions for self-application. If you have questions about jurisdictions, please email CLE@seyfarth.com.

By Adam R. YoungMelissa A. Ortega, and Craig B. Simonsen

Seyfarth Synopsis: On October 28, 2021, an amendment to the Illinois Health Care Right of Conscience Act passed the Illinois General Assembly and made its way to Governor Pritzker’s desk. The amendment creates a COVID-19 carve-out, but it will not go into effect until June 1, 2022. The amendment shields employers from liability for enforcing COVID-19 health requirements, including vaccines and tests. Employers may terminate employees who refuse to provide COVID-19 health care treatment. 

Under the 1977 Illinois Health Care Right of Conscience Act (the “Act”), health care providers are shielded from civil and criminal liability for refusing to participate in health care which is “contrary” to their conscience.  Health care employers are further prohibited from discriminating against their employees and applicants who refuse to accept “any forms of health care services contrary to [their] conscience.”

During the COVID-19 pandemic, a minority of health care workers have refused to accept or provide COVID-19 vaccination and treatments, citing a range of religious, moral, political, and conscience objections.  Under Title VII, employees can seek accommodations from compliance with employment terms that violate their sincerely held religious beliefs, but an employer need not accommodate a religious belief where it imposes more than a de minimis cost.

On October 28, 2021, the amendment passed the General Assembly and went to Governor Pritzker to sign into law. The amendment, which will become effective on June 1, 2022, creates a COVID-19 carve-out, making clear that employers can impose COVID-19 vaccination requirements and COVID-19 treatment as a condition of employment and terminate those who refuse to comply, regardless of “conscience” objections.  Under federal law, employees still must evaluate reasonable accommodations for a disability and bona fide religious beliefs. The amendment should undermine discrimination claims based on the Act, though plaintiffs could still go forward with claims under Title VII and the Illinois Human Rights Act.

The amendment did not receive 60% of the vote in either house as required by the Illinois Constitution and thus, will go into effect on June 1, 2022 once signed by the Governor. The amendment will apply to “all actions commenced or pending on or after the effective date.”

In late August 2021, Governor Pritzker issued an Executive Order (COVID-19 Executive Order No. 87), later amended on September 5, 2021, mandating COVID-19 vaccinations for health care workers, school personnel,  higher education, and state-owned or operated congregate facilities. The Executive Order was issued in response to the significant concerns raised by the Delta variant and its impact on those seeking healthcare and treating patients in Illinois. It embodies the public policy of this state to maximize vaccination in healthcare. The Order specifically states that nothing contained therein prohibits any entity from implementing vaccination or testing requirements that exceed the requirements of the Order.

At the federal level, President Biden announced in September that private employers with 100 or more employees would be required to vaccinate or test their workers pursuant to an Emergency Temporary Standard ETS) to be issued by the Occupational Safety and Health Administration. The ETS is expected any day. At the same time, the President announced that employees of federal government contractors would be required to be vaccinated, without a testing option.

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) Team.

By Adam R. YoungMark A. Lies, II, A. Scott Hecker, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: OSHA is initiating a rulemaking to develop a heat illness standard.

For decades, federal OSHA has enforced occupational heat illness hazards through the Occupational Safety and Health Act’s General Duty Clause. OSHA has recently updated its Heat Illness Prevention Campaign materials to recognize both indoor and outdoor heat hazards, as well as the importance of protecting new and returning workers from hazardous heat. As OSHA continues to shift its enforcement focus to heat, it has begun the process to issue a heat illness standard. On October 27, 2021, OSHA issued an advance notice of proposed rulemaking (ANPRM) for the proposed standard. The ANPRM provides OSHA’s overview of the issues concerning heat stress in the workplace and of measures that have been taken to prevent it, and seeks input from stakeholders on a number of questions during a designated notice-and-comment period.

According to the Agency, heat is the leading cause of death for all weather-related phenomena. Excessive heat exacerbates existing health problems like asthma, kidney failure, and heart disease, and can cause heat stroke and death if not treated. OSHA cites to the Bureau of Labor Statistics (BLS) Census of Fatal Occupational Injuries, declaring that exposure to excessive environmental heat, that has killed 907 U.S. workers from 1992–2019, with an average of 32 fatalities per year during that period. In 2019, there were 43 work-related deaths due to environmental heat exposure. The BLS Annual Survey of Occupational Injuries and Illnesses estimates that 31,560 work-related heat injuries and illnesses involving days away from work have occurred from 2011–2019, with an average of 3,507 injuries and illnesses of this severity occurring per year during this period.

The ANPRM examines the four state plans with heat illness regulations (California, Minnesota, Oregon, and Washington), clearly showing an intent to model federal regulations on those deemed to be successful. Notably, none of the four pre-existing heat regulations agree on the appropriate threshold for determining what constitutes “hazardous” levels of heat. The ANPRM uniquely targets (1) the effects of climate change on occupational health, and (2) the inequitable effects of heat illness on disadvantaged demographic groups. OSHA provides data addressing disproportionate heat illness affecting minority employees, foreign-born employees, low-wage-earners, and pregnant employees.

OSHA also notes that a large percentage of heat illness incidents occur in very small businesses with 10 or fewer employees. A hurdle OSHA faces in developing a standard is that small businesses will have difficulty implementing both new engineering controls (air conditioning, providing shade) and administrative controls (closely monitoring the heat exposure of employees, cooling breaks because of limited employees, lengthy periods of acclimatizing to heat prior to beginning work).

Public comments on the ANPRM are requested on or before December 27, 2021. A heat illness standard could be the final outcome of this process, and interested parties should consider submitting comments to make sure their voices are heard during this rulemaking.

We have previously blogged on heat stress in the workplace. See “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.