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.

By Brent I. ClarkJames L. CurtisBenjamin D. BriggsMark A. Lies, IIAdam R. YoungA. Scott HeckerIlana MoradyPatrick D. JoyceDaniel R. BirnbaumMatthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis: Today the FDA approved Comirnaty (COVID-19 Vaccine, mRNA), previously known as Pfizer-BioNTech COVID-19 Vaccine, to prevent COVID-19 disease in individuals 16 and older.  This could be big news for those on the fence about getting vaccinated, and for employers contemplating their COVID-19 vaccine programs.

The Pfizer vaccine has been administered under Emergency Use Authorization for more than nine months, but now has been fully approved by the FDA. Some vaccine-hesitant individuals may now change their opinions about whether to get vaccinated based on the FDA’s full approval of Comirnaty. And for employers refraining from mandating vaccination, reduced employee resistance to and improved employee confidence in a fully-vetted vaccine may remove one barrier to requiring vaccination.

Of course, how vaccines can best be deployed remains a shifting conversation, with the Biden Administration now pushing for boosters. Those who have been defined by federal, state, and local government requirements and guidance as “fully vaccinated” may no longer meet that definition should it change to require the proposed booster. The OSHA COVID-19 Healthcare Emergency Temporary Standard (“ETS”) defines fully vaccinated as “two weeks or more following the final dose of a COVID-19 vaccine.” But will the ETS definition be modified to require three doses? Which definition might carry over to any permanent COVID-19 or infectious disease standard promulgated by the Biden Administration? Employers will need to stay on top of these and other COVID-19 vaccine concerns as science and society continue to adjust to the ongoing pandemic.

Please refer to our analyses of other COVID-19 vaccine issues in prior blog entries, including: President Biden to Require Federal Workers, Contractors to Provide Vaccine Attestation or Mask, Distance, and Test Multiple Times Per Week, Employers Do Not Need To Record Adverse COVID-19 Vaccine Reactions on their OSHA Form 300 Log, and OSHA Issues Updated Protecting Workers Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.

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. ClarkJames L. CurtisBenjamin D. BriggsMark A. Lies, IIAdam R. YoungA. Scott HeckerIlana MoradyPatrick D. JoyceDaniel R. BirnbaumMatthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis: Today OSHA updated its Protecting Workers Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace to adopt recommendations “analogous” to the July 27, 2021 Centers for Disease Control and Prevention (CDC) mask and testing recommendations for fully vaccinated people.

OSHA designed its guidance to assist employers in protecting workers who are unvaccinated (including people who are not fully vaccinated) or otherwise at-risk, and to implement new guidance for workers who are fully vaccinated but located in areas of substantial or high community transmission.

The guidance contains recommendations as well as descriptions of OSHA’s mandatory safety and health standards. OSHA notes that the recommendations are advisory in nature and informational in content and are “intended to assist employers in providing a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.” The most significant recommendation is that employers follow the CDC’s recent updated recommendations for fully vaccinated people including by:

  • wearing a mask in public indoor settings in areas of substantial or high transmission;
  • choosing to wear a mask regardless of level of transmission, particularly if individuals are at risk or have someone in their household who is at increased risk of severe disease or not fully vaccinated; and
  • getting tested 3-5 days following a known exposure to someone with suspected or confirmed COVID-19 and wearing a mask in public indoor settings for 14 days after exposure or until a negative test result.

In the guidance, OSHA emphasizes that vaccination is the most effective way to protect against severe illness or death from COVID-19. OSHA “strongly encourages” employers to provide paid time off to workers for the time it takes for them to get vaccinated and recover from any side effects. OSHA also suggests that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.

OSHA reiterates that while the guidance addresses most workplaces, many healthcare workplace settings will be covered by the mandatory OSHA COVID-19 Emergency Temporary Standard. Pursuant to the Occupational Safety and Health Act, employers in those settings must comply with that standard. All employers must comply with any other applicable mandatory safety and health standards and regulations issued and enforced either by OSHA or by an OSHA-approved state plan. In addition, the Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their workers with a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm. Employers who are not covered by the OSH Act (like public sector employers in some states) will also find useful control measures in this guidance to help reduce the risk of COVID-19 in their workplaces.

Employers should be wary of OSHA’s labeling this guidance as “advisory,” particularly where the Agency points specifically to enforcement avenues, including the General Duty Clause. Implementing these recommendations, and following CDC guidance, should provide employers some peace of mind in addressing enforcement exposure.

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. ClarkJames L. CurtisBenjamin D. BriggsMark A. Lies, IIAdam R. YoungA. Scott HeckerIlana MoradyPatrick D. JoyceDaniel R. BirnbaumMatthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis: In light of rising cases of COVID-19, the CDC has recently reversed its prior facemask guidance, and has now required that both vaccinated and unvaccinated individuals wear masks indoors in public spaces in areas where there is significant transmission of COVID-19. Certain local jurisdictions have adopted similar rules that renew requirements for facemasks. In a significant move, OSHA has announced on its website that it has reviewed the latest guidance, science and data on COVID-19, and is not otherwise amending its COVID-19 Emergency Temporary Standard for Healthcare at this time.

OSHA’s June 2021 COVID-19 Emergency Temporary Standard for Healthcare employers provides a clear exception to general mask rules for (1) vaccinated employees (2) in well-defined areas, (3) where there is no reasonable expectation that any person with suspected or confirmed COVID–19 will be present. Accordingly, compliant with the ETS, health care employers are lawfully permitting employees to unmask in office settings where all employees are vaccinated and no COVID+ patients will be present. While the ETS was published at a time when COVID-19 seemed to be receding, data from recent weeks shows that cases are rising in certain parts of the country. The CDC has issued a new facemask recommendation, which advises that individuals wear masks when indoors in public spaces  if they are in a county with substantial or high COVID-19 transmission. Accordingly, a healthcare employer who complies with the ETS and allows vaccinated employee to unmask in public spaces, in a county with substantial or high COVID-19 transmission, would potentially run afoul of the CDC’s updated guidance.

Healthcare employers were unclear whether continued adherence to the ETS, and its facemask exceptions, would be permissible given the new CDC Guidance and OSHA’s General Duty Clause, which requires employers to keep a workplace free from any recognized hazard. In terms of the impact the new CDC guidance has on ETS compliance, OSHA has published the following disclaimer on its website:

OSHA has reviewed the latest guidance, science and data on COVID-19 and has consulted with the Centers for Disease Control and Prevention (through the National Institute for Occupational  Safety and Health). DOL has determined that neither CDC’s guidance on healthcare settings nor the underlying science and data on COVID-19 in healthcare settings has materially changed in a way to necessitate changes in the health and safety requirements contained in the ETS released on June 10, 2021. OSHA has determined that no changes to the ETS are necessary at this time, but the agency will continue to monitor and assess the need for changes each month.

Accordingly, OSHA has made it clear that permitting mask exceptions for vaccinated employees will still be permissible for employers, despite the new CDC guidance. It seems that OSHA understands that the data from the pandemic is constantly in flux and will take its time in revisiting the ETS or any requirements for employers, rather than react in a knee-jerk fashion. For employers this is an encouraging sign and indicates that OSHA’s enforcement priorities are not subject to sudden reversals as may have been the case with the CDC’s guidance.

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. ClarkJames L. CurtisBenjamin D. BriggsMark A. Lies, IIAdam R. YoungA. Scott HeckerIlana MoradyPatrick D. JoyceDaniel R. BirnbaumMatthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis: President Biden recently laid out his administration’s next steps in efforts to get more Americans vaccinated.

On July 29, 2021, the White House released “Remarks by President Biden Laying Out the Next Steps in Our Effort to Get More Americans Vaccinated and Combat the Spread of the Delta Variant.” In his remarks, the President has stated that every federal government employee will be asked to attest to their vaccination status. “Anyone who does not attest or is not vaccinated will be required to mask no matter where they work; test one or two times a week to see if they have a — they have acquired COVID; socially distance; and generally will not be allowed to travel for work.” In addition, the President extended the new vaccination requirements to all federal contractors as well.

The President’s remarks follow the Department of Veterans Affairs requirement issued earlier in the week that doctors, nurses and other healthcare workers who provide medical care to veterans must get vaccinated for COVID-19. The President also called on all states and local governments to consider ways to encourage vaccination among employees, including potentially giving $100 to anyone who gets fully vaccinated.

Employers who do business with the federal government must update their COVID-19 policies to comply with vaccination and attestation requirements. Additionally, local or state governments may follow the lead of the federal government and adopt similar policies. Moreover, more private companies could voluntarily adopt mandatory vaccine requirement policies, as Google and Facebook have already done. Accordingly, all employers should evaluate their COVID-19 policies to prepare for mandatory vaccination or attestation requirements.

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. ClarkJames L. CurtisBenjamin D. BriggsMark A. Lies, IIAdam R. YoungA. Scott HeckerIlana MoradyPatrick D. JoyceDaniel R. BirnbaumMatthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis: On July 27, 2021, the CDC revised its mask guidance in response to the burgeoning threat of the COVID-19 Delta variant, recommending that all individuals — including those who are vaccinated — wear masks indoors in public in areas of “high” or “substantial” transmission.

Once considered a watershed moment in the nation’s fight against the COVID-19 pandemic, the CDC announced in May 2021 that fully vaccinated individuals were no longer required to wear a mask in most outdoor and indoor settings. Unfortunately, as the COVID-19 Delta variant spreads among the unvaccinated, and even some vaccinated populations, the CDC changed course and now recommends that “to maximize protection from the Delta variant and prevent possibly spreading it to others, wear a mask indoors in public if you are in an area of substantial or high transmission.”  According to the CDC, substantial or high transmission includes any county where there are more than 50 cases per 100,000 people in the area, over a seven-day period, or that the COVID-19 test positivity rate is higher than 5%.

Individuals and employers can track here whether their county is deemed an area of “high” or “substantial” transmission.  A considerable swath of the US is currently seeing “high” (red) or “substantial” (orange) rates of transmission, where masks are now advised indoors in public for all individuals, regardless of vaccination status.  In the remaining pockets of “moderate” (yellow) and “low” (blue) transmission, the CDC’s recommendation does not currently apply to fully vaccinated individuals.

While this presents a frustrating reversal for vaccinated individuals and employers who have adjusted their protocols in recent weeks, the revised guidance is ultimately limited to “indoors in public.”  The CDC does not define a “public” place, which appears to give employers in non-public facing environments continued discretion in enforcing mask requirements for vaccinated employees.  Nonetheless, employers should prepare for the possibility that many state and local governments will act on the CDC’s guidance and reinstate recently-lifted indoor masking requirements for vaccinated individuals.

For instance, just this week, California state officials announced that it will require all state employees to prove they’ve been vaccinated, or otherwise will wear a mask in the office and get tested for the coronavirus at least once a week. New York City will begin requiring COVID vaccinations or weekly testing of all workers in its public hospitals and clinics in an attempt to slow an increase in cases.

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. Young, Mark A. Lies, II, Daniel R. Birnbaum and Craig B. Simonsen

Seyfarth Synopsis: By ignoring the terms of a settlement agreement it had with the Occupational Safety and Health Administration (“OSHA”), a New Jersey roofing contractor now faces more than $600,000 in penalties after numerous citations for allegedly failing to abate 2020 OSHA citations.

Employers often receive OSHA citations. Any citation the employer receives must be “abated,” meaning that the violation must be corrected to comply with the law, within 20 days of a settlement, unless a longer abatement term is prescribed by the settlement agreement.  OSHA regularly conducts follow-up inspections to ensure abatement. Failure to abate can be fined with huge penalties — $13,653 per violation, per day beyond the abatement date. For example, just 60 days after the abatement date, four citations could result in a fine of more than $3,000,000.

OSHA’s Hasbrouck Heights, New Jersey Area Office recently penalized a construction employer following a series of inspections at multiple worksites. In December 2020, OSHA allegedly observed the contractor’s employees working on a residential roof project without required fall protection, the most commonly cited occupational safety issue. In January 2021, OSHA visited another work site where “inspectors identified unsafe use of ladders and failures to ensure that workers used head, eye and fall protection.” These two inspections resulted in two willful, four repeat, and three serious citations and $420,521 in penalties.  According to OSHA, the “contractor … agreed to make safety improvements after federal safety inspections in 2019 identified nine violations with proposed penalties of $121,687.” The employer then “violated its settlement agreement with the U.S. Department of Labor. Following inspections in 2020 and 2021, the company now faces $600,741 in penalties for 10 more violations.” The new citations include a $180,220 citation for failure to abate one Serious violation.

The huge citation was coupled with a public relations disaster when OSHA released a damaging press release: OSHA Area Director Lisa Levy excoriated the contractor’s alleged “failure to honor its agreement with OSHA and knowingly put workers at risk of serious injuries or worse is inexcusable.”

Any allegedly non-compliant conditions that OSHA raises during an inspection should be promptly abated during the inspection (if possible) to reduce the probability of citations and to secure a Quick Fix penalty deduction. If OSHA issues citations, employers would be wise to carefully consider what citations they accept, and how those citations can be abated. Abatements can be explicitly detailed in settlement agreements, to ensure that all parties have the same views of abatement. Citations must be abated within 20 days of the settlement agreement becoming a final order, and additional “enhanced” abatements — that do not correspond to specific citations — should also be addressed promptly. If OSHA raises concerns about abatements that were submitted, employers should be responsive and prompt to get any issues addressed. Employers should consult with outside counsel on how to structure settlement agreements and avoid large Failure to Abate citations like the one received here.

By Brent I. ClarkJames L. CurtisAdam R. YoungDaniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: On June 28, 2021, OSHA published a Compliance Directive, DIR 2021-02 (CPL 02), covering inspection procedures and enforcement policies for the Emergency Temporary Standard for COVID-19. The new directive sheds light on OSHA’s thought process in enforcing new provisions of the ETS, including the controversial medical removal payment provision. OSHA’s intent is to aggressively enforce the regulation, giving consideration to potential punitive damages or referral to OSHA’s Whistleblower Protection Program for certain infractions.

As we blogged about here, OSHA previously issued its COVID-19 ETS which went into effect on June 21. On June 28, 2021, OSHA issued Compliance Directive 2021-02 that covers inspection procedures for Compliance Safety and Health Officers in enforcing the ETS. The Directive establishes OSHA’s field inspection and enforcement procedures designed to “ensure uniformity in enforcing the ETS when addressing workplace exposures to SARS-CoV-2.”

The new inspection procedures shed some light on how OSHA plans to enforce the ETS, including the controversial medical removal requirements regarding maintenance of pay and provision of paid leave. Namely, OSHA has been directed to issue “Serious” citations as a matter of course if an employer does not pay an employee their regular rate of pay when working remotely or in insolation as part of a medical removal. As such, this could mean that subsequent infractions of employers not providing appropriate benefits to employees could be cited as a “Repeat” citation subject to a $136,532. The Compliance Directive also considers punitive damages as a possible remedy under OSHA’s whistleblower statue, Section 11(c). Compliance Officers are encouraged to refer cases to the Whistleblower Protection Program if they suspect retaliation.

In terms of determining compensation, the Compliance Directive permits some leeway to Compliance Officers. Namely CSHOs are directed to “determine whether the employer is appropriately compensating employees who are medically removed due to COVID-19. The determination regarding compensation for medical removal may depend on various factors including the size of the company, other sources of compensation to the employee, and payroll records.”  As such, it may be that an employer’s careful consideration of distributing existing benefit programs may “offset” the pay provisions.

In issuing citations, Compliance Officers are directed that costs accrue until payment, including back wages, insurance premiums and the like and, as an example, encourage Compliance Officers to draft citations that indicate the employee’s regular rate of pay, time worked per week, and dates when payment should be made, less customary deductions when the employee was required to work remotely due to COVID-19 exposure.

The Compliance Directive further directs Compliance Officers to be cognizant of the shift in employees’ incomes due to the pandemic and urging that Compliance Officers “take extra care to determine current wages.” OSHA directs its CSHOs to interview employees with similar job titles and seniority to determine the proper wages to be paid and consult an OSHA whistleblower protection investigator to determine how to calculate the amount owed to employees. Employers should be careful to analyze employee payment, to ensure no retaliatory intent could be inferred from benefits provided during medical removal. The Compliance Directive also notes that another factor in determining pay should be whether the employees would receive a bonus during the time period or medical plan.

The Compliance Directive makes clear that OSHA intends to aggressively enforce the new paid leave provisions of the new ETS, including issuing Serious citations, considering potential for punitive damages and referral to OSHA’s whistleblower protection program. Employers should consult experienced counsel to understand their compliance obligations with regard to these new provisions in order to minimize their liability.

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.