By Robert S.  Whitman and Daniel I. Small

Seyfarth Synopsis: The New York State Legislature is keeping busy with new employment legislation as the local and national economies continue to recover from the COVID-19 pandemic.

On April 21, 2021, both houses of the Legislature announced passage of portions of the NY Hero Act, which requires extensive new workplace health and safety protections in response to the pandemic.  The Legislature is also advancing two additional employment-related bills: one would ban “no-rehire” clauses in employment settlement agreements, and the other would prohibit “no-poach” agreements between franchisors and franchisees.

NY Hero Act

Despite pushback from the business community, the NY Hero Act has passed both houses of the Legislature.  When signed by the Governor (as is expected), the law will provide the following:

  • Airborne Infectious Disease Workplace Safety Standard.  The law directs the Department of Labor to establish minimum requirements for preventing the spread of airborne infectious diseases in the workplace.  The standards must differentiate among industries and must address several areas, including (1) employee health screenings, (2) face coverings, (3) personal protective equipment, (4) social distancing, and (5) cleaning and disinfecting protocols.  Employers will be required either to adopt the DOL-issued standard that is relevant to their industry and workforce, or to establish their own disease prevention plan that meets or exceeds the requirements of the DOL-issued standard.  Employers will also be required to post their plan in the workplace and distribute it to their employees upon hire and/or after reopening following a closure due to an airborne infectious disease.
  • Non-Retaliation.  Employers will be barred from retaliating against employees for reporting violations of their standard, for reporting concerns of exposure to such diseases, and for refusing to work where the employee reasonably believes in good faith that the workplace exposes them to an unreasonable risk of exposure.
  • Penalties.  The law authorizes the DOL to assess penalties to a non-compliant employer of at least $50 per day for failing to adopt a relevant standard or disease prevention plan, and a fine of $1,000-$10,000 for failing to comply with the plan.
  • Private Right of Action.  The law also provides employees with the right to bring a lawsuit seeking injunctive relief against an employer for failing to comply with the above provisions of the law.  Courts may enjoin the employer’s conduct and award the plaintiff attorneys’ fees and costs and liquidated damages up to $20,000 unless the employer demonstrates good faith attempts to comply with the standard.
  • Creation of Workplace Safety Committees.  The law requires employers to permit employees to form a joint labor-management workplace safety committee with employee and employer designees.  The committee must be allowed to raise workplace health and safety concerns, review employer workplace safety policies, participate in government site visits relating to workplace health and safety standards, and attend committee meetings and trainings related to workplace health and safety standards.

The effective date of the mandate for the DOL to issue the industry-specific standards is 30 days from the Governor’s signature.  While the statute is not crystal clear on this point, it appears that employers will not be required to establish their own disease prevention plan until the DOL issues its standards.  Other aspects of the law have more immediate implications: the non-retaliation provision takes effect 30 days after the Governor’s signature, and the workplace safety committee provisions are effective 180 days after signature.

Prohibition of No-Rehire Clauses

Bill S766, which is currently pending before the full State Senate, would prohibit employers from including clauses in settlement agreements that prevent employees from applying for, accepting, or engaging in future employment with the employer, or any entity or entities related to such employer.  The bill declares that an agreement containing such a provision is unenforceable—except that the employer would still be bound by its obligations under the agreement to include full compensation/severance pay for the employee.

As proposed, this bill would take effect 60 days following the Governor’s signature.  In anticipation of passage, employers should carefully review their settlement templates for New York employees, as no-rehire clauses are common provisions in separation and settlement agreements involving terminated employees.

No-Poach Ban

Bill S562, known as the End Employer Collusion Act, prohibits agreements between franchisors and franchisees that restrict such entities from hiring the current or former employees of their franchisor or other franchisees.  Any such agreements would be deemed void as a matter of law.  Additionally, the bill provides a private right of action for any employee who was denied employment pursuant to such a no-poach agreement and authorizes compensatory damages, punitive damages, and attorneys’ fees.

As proposed, this bill would take effect immediately upon the Governor’s signature.

Next Steps for Employers

In the short-term, employers should begin working with counsel to develop compliant policies and procedures under the NY Hero Act, which is expected to be signed shortly.  Employers should also consider how the prohibitions on no-rehire clauses and no-poach agreement might impact their operations.

We will continue to monitor developments and provide updates as appropriate.

For more information on this or any related topics, please contact the authors, your Seyfarth attorney, or any member of Seyfarth Shaw’s Employment Law Group or the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. Clark, James L. Curtis, Adam R. Young, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: OSHA yesterday issued an additional guidance addressing whether employers need to record adverse vaccine reactions on their 300 Logs.

Consistent with the OSHA regulations, OSHA’s guidance explains that an adverse reaction to the COVID-19 vaccine is recordable if the reaction is: (1) work-related, (2) a new case, and (3) meets one or more of the general recording criteria in 29 CFR 1904.7 (e.g., days away from work, restricted work or transfer to another job, medical treatment beyond first aid).” The FAQ adds an additional requirement: (4) the vaccine is required for employees.

Accordingly, adverse reactions are only potentially recordable on the OSHA 300 log where the employer mandates the vaccine; where the vaccine is voluntary, OSHA is exercising “enforcement discretion to only require the recording of adverse effects to employer required vaccines at this time.”  Employers “do not need to record adverse effects from COVID-19 vaccines that [they] recommend, but do not require.”  For the record-keeping exception to apply, the vaccine must be voluntary in the sense that employees face no material adverse employment consequences for choosing to remain unvaccinated.

For mandatory vaccines, OSHA does not define what reactions would be considered to be “work-related,” or how employers should conduct the analysis.  Aside from anaphylaxis during the medical review period after the vaccine, employers may lack the information to know whether a vaccine contributed to the alleged symptoms, and would need to rely on the report of a physician.  Based on OSHA’s prior vaccination recordkeeping advice, we recommend further analyzing whether the vaccine was administered at work, whether the adverse reaction occurred at work, and whether the employee was required to get the vaccine because the employer reasonably expected exposure to active COVID-19 cases at work (such is in a hospital, nursing home, or correctional institution).

OSHA’s guidance also does not address reporting of serious illnesses, meaning the requirement for employers to call OSHA and report an adverse vaccine reaction that results in a death within 30 days or an in-patient hospitalization for medical treatment within 24 hours.  Presumably,  OSHA would exercise the same discretion for voluntary vaccinations, but the issue is not entirely clear.

Also, 23 OSHA state plans regulate private employers in their respective states.  Those states may offer guidance that is more restrictive on the record-keeping of adverse vaccine reactions.  If your company operates in California or another aggressive OSHA state plan, check with qualified outside OSHA counsel as to whether record-keeping of adverse vaccine reactions is required for voluntary vaccines.

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, Benjamin D. Briggs, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: A new Senate Bill that would radically increase Cal/OSHA’s enforcement powers is working its way through the California legislature. SB 606, authored by Senator Lena Gonzalez and Assemblywoman Lorena Gonzalez – both of whom have significant organized labor backgrounds –  has been approved by the Senate Judiciary Committee and referred to the Appropriations Committee, its last stop before being considered by the full chamber.

If passed there, it will move to the Assembly. The bill is sponsored by organized labor, including the California Labor Federation, United Food and Commercial Workers Union, and Worksafe.

The bill would do the following:

  • Enable Cal/OSHA to issue a citation based on evidence or documents “in lieu of or in addition to an onsite inspection”;
  • Expand Cal/OSHA citation authority to include violations of Labor Code Division 5 (relating to safety in employment), including any standard, rule, order, or regulation that is part of it, as well as the Health and Safety Code. This provision potentially flies in the face of the general principle that an agency can’t cite to a statute over an adopted regulation where the statute isn’t sufficiently specific to inform the regulated entity of what it has to do in order to comply with the law;
  • Establish a rebuttable presumption that if an employer operates multiple worksites and has a written policy or procedure that violates specific workplace safety laws, the violation is considered “enterprise-wide.” SB 606 would also allow Cal/OSHA to seek an injunction to stop work operations until the alleged enterprise-wide conditions were corrected;
  • Staying of abatement by the Appeals Board on enterprise-wide citations would be prohibited unless there are no exposed employees and the condition is not likely to cause death, serious injury or illness, or exposure. The Board would be required to issue an enterprise-wide abatement order if Cal/OSHA demonstrates an enterprise-wide violation;
  • Establish “egregious employer” provisions. Cal/OSHA would be required to cite such an employer if it  believes the employer has willfully violated a standard. Each employee exposed to that violation would be considered a separate violation for purposes of penalty, which means that the current maximum penalty for a willful, $132,765, could be multiplied across an entire workforce. Under the bill, potential violations would also attached to “related employer entities” defined as employers who have a direct business relationship with the primary employer and share at least in part reliance on their respective policies, advice, or consultation for safety and health compliance, e.g. corporate parents, subsidiaries, affiliates, labor providers, franchisees, and licensees. As many employers are already aware, Federal OSHA has long used corporate-wide abatement as part of a settlement-negotiating strategy, but AB 606 goes much farther by enabling Cal/OSHA to issue enterprise-wide citations;
  • SB 606 would establish a rebuttable presumption that an employer has engaged in retaliation against an employee if it takes adverse action within 90 days of an employee raising a potential safety violation, including COVID concerns;

A Chamber-led coalition of employer groups is vigorously opposing this attempted unprecedented expansion of Cal/OSHA authority.

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 Jeryl L. Olson, Rebecca A. Davis, Patrick D. Joyce, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Environmental Protection Agency (EPA) issued the 2021 Multi-Sector General Permit (“MSGP”) for industrial stormwater discharges on January 15, 2021. The 2021 MSGP became effective on March 1, 2021 and replaces the 2015 MSGP for facilities in states with EPA-managed NPDES Programs. 

The 2021 MSGP replaces the 2015 MSGP, which expired and was administratively continued on June 4, 2020. Beginning March 1, 2021, operators in affected jurisdictions  must submit a new Notice of Intent (“NOI”) to obtain authorization to discharge in accordance with the deadlines set forth in Part 1.3.3. of the 2021 MSGP. Table 1-2 of the 2021 MSGP lists NOI deadlines. For example, facilities with existing coverage under the 2015 MSGP must submit their NOI by May 30, 2021. Affected jurisdictions include:

  • New Hampshire, New Mexico, Puerto Rico, Massachusetts, and Washington, D.C.;
  • Idaho, until July 1, 2021, when NPDES permit management will transition to the Idaho Department of Environmental Quality;
  • S. territories except the Virgin Islands;
  • Federally operated facilities in Colorado, Delaware, Vermont, and Washington;
  • Most Indian country lands; and
  • Other designated activities in specific states (e.g., oil and gas activities in Texas and Oklahoma).

While limited to the referenced affected jurisdictions for now, the changes incorporated in the 2021 MSGP will affect all state programs eventually, when states renew their industrial stormwater permits; several states will upgrade to the new MSGP before the end of 2021.

The 2021 MSGP requires industrial facilities in 29 different industrial sectors to implement control measures and develop and make available to the public site-specific Stormwater Pollution Prevention Plans (“SWPPP”) to comply with NPDES requirements specific for each sector.  New provisions in the 2021 MSGP include the following substantive technical, quasi-technical and administrative changes which include the following and eventually will impact all permittees:

  1. The 2021 MSGP includes new or updated technical provisions:
  • changes in frequency and reporting obligations for both indicator monitoring and benchmark monitoring;
  • adds monitoring of polynuclear aromatic hydrocarbons (PAHs) for certain facilities;
  • requires monitoring in the fourth year of the permit, even where benchmark monitoring has been allowed to be discontinued;
  • requires increased monitoring for discharges to impaired waters;
  • requires corrective actions in accordance with certain steps (“tiering”), first evaluating and implementing controls based on the SWPPP, then escalating to include additional control measures, and finally imposing permanent structural controls, and even treatment controls; and
  • requires enhanced stormwater control measures in areas known to be impacted by weather conditions including flooding, hurricanes, storm surges, in advance of weather events. Measures might include reducing inventory of materials stored outside, or elevation of outside storage of materials.
  1. There are also new quasi-administrative changes to the MSGP including:
  • filing of and public disclosure of the facility SWPPP (it must now be uploaded with the NOI);
  • site signage to alert the public that the site is subject to the 2021 MSGP and to alert the public of the existence of the SWPPP; and
  • public disclosure of additional implantation measures (AIM), as may be required by an AIM triggering event, such as an exceedance of a benchmark threshold for four consecutive quarters.
  1. Finally, there are administrative changes to the MSGP:
  • the process, and the terms and conditions of the general permit, have been made more “user friendly”;
  • the directions and permit have been updated to use “plain language” so that the requirements of the permit are clear to users, enforcement authorities, and the pubic;
  • EPA has reportedly improved the security of the NPDES e-Reporting Tool (“NeT”) to “ensure organizations only have access to their permit forms and information.” NeT users will now “own,” or have access to specific NPDES identification information (“ID”), to prepare or submit: Changes to NOIs, Notices of Terminations, or Annual Reports associated with that NPDES ID.

Because of the new monitoring and control requirements, signage requirements, requirements to upload SWPPPs with the NOI,and requirements to make SWPPPs public, it is important that our clients be aware of these changes as they are implemented in their state.

Feel free to reach out to the authors, one of Seyfarth Shaw’s Environmental Compliance, Enforcement & Permitting team members, or your Seyfarth attorney with any questions on this important topic.

By Brent I. Clark, James L. Curtis, Adam R. Young, A. Scott Hecker, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The White House announced on Friday that Douglas L. Parker will be its nominee for the head of federal 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.

Most recently, he has served as the Chief of the California Division of Occupational Safety and Health since 2019. 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, far beyond the scope of his agency’s safety and health mission.

We anticipate Mr. Parker will pursue labor union priorities at federal OSHA, in conjunction with recently-confirmed 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), depending on his nomination process and the timing of any ETS’s promulgation, employers should be aware of CalOSHA’s ETS requirements, including the testing and employee benefits provisions mentioned above.

We are actively tracking whether Mr. Parker’s nomination will raise opposition in the United States Senate.

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. Curtis, Adam R. Young, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The CDC recently updated its Guidance on Domestic Travel During the COVID-19 Pandemic. The guidance also provides domestic travel recommendations for unvaccinated people.

Image from CDC.

The CDC recently issued updated guidance regarding travel. It is important to recognize that the CDC’s guidance on COVID-19 is not a law or regulation. However, various agencies and public health authorities have adopted some or all of the CDC recommendations, including recommendations regarding travel. Consequently, employers should consult actual laws and regulations regarding travel for their specific jurisdictions to understand requirements versus recommendations and guidance, especially employers who are considering their own travel policies.

As COVID-19 vaccinations in the United States continue, the CDC and other authorities will likely adjust their requirements and guidance to address the vaccinated population. Employers should be sure to closely track developments and make adjustments to their own policies as the risks associated with COVID-19 and travel change over time.

Domestic Travel Recommendations for Vaccinated People

According the CDC’s updated guidance, people who are fully vaccinated with an FDA-authorized vaccine can travel safely within the United States. People are considered fully vaccinated:

  • 2 weeks after their second dose in a 2-dose series, such as the Pfizer or Moderna vaccines, or
  • 2 weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine

Individuals who have not completed the 2-week period are not fully vaccinated, so the CDC recommends continuing to take all precautions until they are fully vaccinated. The CDC also cautions that immuno-compromised individuals may need to limit travel, even if vaccinated.

During Travel

The CDC recommends that fully vaccinated travelers still wear a mask over their nose and mouth while traveling. Masks are required by federal law on airplanes, buses, trains, and other forms of public transportation traveling into, within, or out of the United States and in U.S. transportation hubs such as airports and stations.

Fully vaccinated individuals should also avoid crowds and physically distance, staying at least 6 feet from anyone who is not traveling with them, and should continue good hygiene practices, washing hands often or using hand sanitizer (with at least 60% alcohol) according to the most recent guidance.

After Travel

The CDC advises that vaccinated travelers should self-monitor for COVID-19 symptom, and to self-isolate and get tested if they develop symptoms. They must also abide by state and local requirements, even if it differs from the CDC’s guidance.

The CDC does not advise that vaccinated individuals (and those who had COVID-19 in the past 3 months) self-quarantine after travel.

Domestic Travel Recommendations for Unvaccinated People

If individuals are not fully vaccinated and must travel, the CDC recommends:

1. Before Travel

Get tested utilizing an FDA approved viral test 1-3 days before their trip.

2. During Travel

Wear a mask over their nose and mouth. Masks are required by federal law on planes, buses, trains, and other forms of public transportation traveling into, within, or out of the United States and in U.S. transportation hubs such as airports and stations.

Avoid crowds and stay at least 6 feet from anyone who is not traveling with them.

Wash hands often or use hand sanitizer (with at least 60% alcohol).

3. After Travel

Get tested utilizing an FDA approved viral test no sooner than 3-5 days after travel AND stay home and self-quarantine for a full 7 days after travel.

  • Even if the individual tests negative, they should stay home and self-quarantine for the full 7 days.
  • If the test is positive, the individual must self-isolate to protect others from getting infected.
  • If the individual decides not to get tested, they should stay home and self-quarantine for 10 days after travel.

Regardless of whether the traveler seeks a test after travel or not, they should avoid being around people who are at increased risk for severe illness for 14 days, self-monitor for COVID-19 symptoms (isolate and get tested if symptoms develop), and follow all state and local recommendations or requirements. Some state and local requirements do not allow travelers to test-out of self-quarantine.

Visit your state, territorial, tribal or local health department’s website to look for the latest information on where to get tested.

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, Adam R. Young, Patrick D. Joyce, 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 reviewing their own safety programs. 

As in years past, the National Safety Council (NSC) updated its top ten list of most-cited OSHA regulations for 2020. As usual, the top ten list identifies fall protection, hazard communication, scaffolding, lockout/tagout (LOTO), and respiratory protection as major sources of citations. Because these top ten cited regulations remain consistent over the years, with only minor shifts among the various regulations, OSHA often focuses on hazards associated with the top ten during on-site inspections.

NSC combed through OSHA citations through 2020 and found the following to be the most-cited for Serious classifications, in Construction or General Industry:

From NSC.

NSC also analyzed at the top ten standards for willful violations:

From NSC.

Employers should use the top ten list as a reminder to emphasize these areas during new employee orientation and existing employee refresher training. Employers should also realize that OSHA will be looking for violations in these areas when they visit your worksite.

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 Jeryl L. Olson, Rebecca A. Davis, Patrick D. Joyce, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: The ASTM is in the process of updating its Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.

A Phase I Environmental Site Assessment is a report, following ASTM Standards, that identifies recognized environmental conditions (RECs) on real property to evaluate environmental risks and liabilities associated with the property. It is often referred to as a “Phase I ESA” or simply a “Phase I,” and is an important part of the real estate due diligence process. Completing the Phase I process is necessary if a landowner or purchaser wants to claim the “innocent landowner, ” bona fide prospective purchaser, or other third party defenses available under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for purchasers, and to a lesser extent tenants, of real property.

The current (E1527-13) version of the ASTM Phase I standard, used by EPA and the states to determine whether sufficient environmental due diligence has been conducted for a purchaser to utilize CERCLA defenses, is scheduled to be updated this year. While the revised standard has not been finalized, several possible changes of potential significance have been proposed.

The key areas of the ASTM standard where we anticipate significant revision include:

  1. Addition of a new “non-scope” section. Non-scope provisions are those areas of environmental inquiry that, while potentially helpful to a prospective purchaser, are not explicitly required in order for the purchaser to use the CERCLA defenses. The new non-scope section will focus on “emerging chemicals of concern,” including Perfluoroalkyl Substances (PFAS). Considering the EPA’s increasing focus on PFAS, and the likelihood of more regulations respecting PFAS, having a section to discuss potential PFAS contamination at a Site would provide pertinent information to potential buyers and creditors.
  2. Modifications to the protocol for historic searches. Currently, the standard requires a historic search of the subject property itself. The revisions suggest that this should be expanded to include not only the subject property, but also surrounding properties. While broadening the area of inquiry may be helpful to purchasers in terms of providing them more information about nearby properties, for sellers, expanding inquiries to adjacent properties it is problematic because it very provides an opportunity for consultants to identify offsite concerns that need further testing or evaluation. Expanding concerns to offsite properties also impacts purchasers who are financing the transaction, because heightened inquiry into offsite properties raises issues of concern for lenders that the purchaser may need to investigate further through Phase II testing.
  3. The new standard may require an analysis of how data gaps may affect the ability to identify RECs, and may require a discussion of how data gaps may be addressed through other resources. Currently, data gaps are routinely ignored unless flagged as significant.
  4. Standards for identifying RECs at service (gas) stations or dry cleaners may change. For historic cleaners and service stations, this includes a recognition that contamination is reasonably likely to be present, despite lack of any spill or release documentation. This will most certainly result in recommendations by consultants that all properties formerly associated with dry cleaning operations or service stations on site (or off-site) undergo Phase II testing.

Feel free to reach out to the author, one of Seyfarth Shaw’s Environmental Compliance, Enforcement & Permitting team members, or your Seyfarth attorney with any questions on this important topic.

By Brent I. Clark, James L. Curtis, Adam R. Young, A. Scott Hecker, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: On March 12, 2021, OSHA published its COVID-19 National Emphasis Program – Coronavirus Disease 2019 (COVID-19), DIR 2021-01(CPL-03) (3-12-21).  The Directive lays-out OSHA’s policies and procedures implementing a National Emphasis Program (NEP) for ensuring that employees in perceived “high-hazard industries” or work tasks are protected from the hazard of contracting COVID-19.

Days before President Biden’s deadline for OSHA to issue a COVID-19 emergency temporary standard (“ETS”), the Agency instead announced an NEP allegedly designed to protect employees from the spread of COVID-19.

The NEP “augments OSHA’s efforts addressing unprogrammed COVID-19-related activities, e.g., complaints, referrals, and severe incident reports, by adding a component to target specific high-hazard industries or activities where this hazard is prevalent.” The NEP purportedly targets establishments that have workers with increased potential exposure to contracting COVID-19 and that put the largest number of workers at serious risk. But with vaccination numbers increasing, one might question the targeted industries in OSHA’s NEP.

For example, with many frontline workers in the healthcare industry already vaccinated and therefore at lower risk of contracting COVID-19, how does increasing inspections in this arena keep workers safe or reduce transmission of the virus?  OSHA does not appear to have incorporated the efficacy of  vaccinations into its analysis of worker safety and health, especially as new data show the efficacy of the vaccines on asymptomatic COVID-19 and transmission.

As part of the NEP, OSHA stated it will emphasize anti-retaliation by distributing anti-retaliation information during inspections and taking advantage of outreach opportunities, as well as promptly referring allegations of retaliation to the Whistleblower Protection Program. The Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health, Jim Frederick, explained this dual purpose, stating that the “program seeks to substantially reduce or eliminate coronavirus exposure for workers in companies where risks are high, and to protect workers who raise concerns that their employer is failing to protect them from the risks of exposure.”

In a related action, OSHA updated its Interim Enforcement Response Plan to prioritize the use of on-site workplace inspections where practical, or a combination of on-site and remote methods. OSHA will only use remote-only inspections if the agency determines that on-site inspections cannot be performed safely.

While we all wait to see whether OSHA will issue an ETS, employers in target industries should be acutely aware that OSHA plans to use its current tools to address perceived COVID-related violations. To this point, OSHA has cited employers primarily under its respiratory, reporting/recordkeeping, and PPE standards. While President Trump’s OSHA referenced the OSH Act’s “General Duty Clause” as another enforcement avenue, OSHA’s COVID-19 citation tracker suggests that there have been few citations issued pursuant to that provision. It is possible that the Biden Administration could turn to the General Duty Clause more often under its NEP.

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 A. Scott Hecker, Ilana R. Morady, and Brent I. Clark

Seyfarth Synopsis: On January 21, 2021, President Biden directed MSHA to consider whether COVID-19 emergency temporary standards (“ETS”) are necessary for coal and metal/non-metal mines, and if so, to issue them “as soon as practicable.”  While MSHA has not announced an ETS, it recently published new guidance regarding COVID-19 worker safety in mines, “Protecting Miners: MSHA Guidance on Mitigating and Preventing the Spread of COVID-19.”

MSHA’s materials echo (i.e., basically restate) OSHA’s January 29, 2021 revised guidance “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” which we blogged about here.  MSHA’s guidance highlights steps operators and miners should take to ensure safe and healthy workplaces, and recommends that operators implement COVID-19 prevention programs, which MSHA – like OSHA – opines “are the most effective way to mitigate the spread of COVID-19 at work.”  MSHA lists 15 elements that effective plans should include:

  1. Assign a mine coordinator;
  2. Identify where and how workers might be exposed to COVID-19 at work;
  3. Identify measures that will limit the spread of COVID-19 in the workplace, including hazard removal, engineering controls, administrative controls, PPE, and other measures;
  4. Consider protections for miners at higher risk for severe illnessthrough supportive policies and practices;
  5. Educate and train miners on COVID-19 policies and procedures using accessible formats and in a language they understand;
  6. Instruct miners who are infected or potentially infected to stay home and isolate or quarantine;
  7. Minimize negative impacts of quarantine and isolation on workers;
  8. Isolate miners who show symptoms at work;
  9. Perform enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the mine environment;
  10. Provide guidance on screening and testing;
  11. Record and report COVID-19 infections and deaths;
  12. Implement protections from retaliation and an anonymous process for miners to voice concerns about COVID-19-related hazards;
  13. To the extent possible, make a COVID-19 vaccineor vaccination series available at no cost to all eligible employees;
  14. Treat vaccinated workers the same as those who are not; and
  15. Consider other applicable MSHA standards.

Though MSHA does not currently have COVID-19 regulations, we understand the agency is still considering whether an ETS is necessary.  If MSHA decides to promulgate an ETS, a number of these guidance provisions will likely be part of that standard.  Consequently, operators should evaluate their compliance with these guidelines now to prepare for any forthcoming MSHA ETS.

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.