Seyfarth Synopsis: The Biden Administration has gotten off to a busy start with a wide array of executive actions and policy directives. In this webinar, Seyfarth subject matter experts will discuss what employers can expect regarding the enforcement in the areas covered by these directives and how that will effect business moving forward.

Topics covered will include:

  • EEO
  • Immigration Compliance
  • OSHA
  • OFCCP
  • Wage & Hour

There is no cost to attend, but registration is required.

If you have any questions, please contact Kelly Sokolowski at ksokolowski@seyfarth.com and reference this event.

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

Seyfarth Synopsis: Now, after more than 80 million vaccine doses have been given out in the US, and having weathered a year of Zoom-only visits with fellow employees, clients, and customers, those who have been vaccinated are looking for direction. Obligingly, the CDC just issued its “Interim Public Health Recommendations for Fully Vaccinated People”.

Until the release of this guidance for fully vaccinated individuals, CDC had only indicated that “it’s important for everyone to continue using all the tools available to help stop this pandemic as we learn more about how COVID-19 vaccines work in real-world conditions. ” We previously blogged that CDC had released an update to its recommended guidance on Vaccines & Immunizations. The guidance provided updated quarantine recommendations that for fully vaccinated persons who “meet criteria will no longer be required to quarantine following an exposure to someone with COVID-19.”

CDC’s guidance for fully vaccinated individuals contains the following updates:

  • Individuals may gather in small groups in private residences without masks or distancing when:
    • all individuals are fully vaccinated; or
    • only one household is not fully vaccinated (all others are fully vaccinated), but the unvaccinated individuals are at low risk for developing severe disease if they contract the coronavirus.
    • fully vaccinated individuals (and all others) should continue to avoid larger gatherings.
  • Fully vaccinated individuals do not need to quarantine or get tested if they have a known close contact exposure with a COVID-19 positive individual, as long as they do not develop symptoms of infection. If fully vaccinated individuals who have known exposure develop symptoms, they must isolate themselves, get tested, and speak with their doctor.
  • However, fully vaccinated employees should be tested following an exposure if they work in “high-density workplaces (e.g., meat and poultry processing and manufacturing plants).”
  • In public, fully vaccinated individuals must continue to wear masks, maintain physical distance, and take other recommended precautions, such as avoiding poorly ventilated spaces, covering coughs and sneezes, washing hands often, and following any other protocols that are in place.

Image from CDC.

For now, CDC has not updated its guidance to allow fully vaccinated employees to go maskless while at work. As a result, employers will still need to make informed decisions about risk when developing workplace requirements, and employees will still need to follow requirements set forth by their employers, even if the employee is fully vaccinated.

While the CDC’s updated guidelines do not give the fully vaccinated permission to start living like it’s 1999 , the updates offer some hope that the end of total social isolation is near. But at the same time, Dr. Anthony Fauci warned last week that the US may soon be hit with a spike in COVID-19 cases — even though the country has administered more vaccine shots than any other nation. The recent plateau in cases from record-high post-holiday rates is actually a sign that Americans should mask up and brace for another potential boom in infections, Fauci said, while citing past coronavirus data trends at a White House press briefing.

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 Jennifer L. Mora, Adam R. Young, and Robert T. Szyba

Seyfarth Synopsis: New Jersey recently enacted a law permitting personal, nonmedical use of marijuana for individuals age 21 and over. Separate laws decriminalize marijuana and hashish possession and set out the penalties when individuals under age 21 use or possess marijuana or hashish. Although not immediately enforceable, New Jersey employers should immediately assess the implications of the laws on their current policies and drug testing practices.

On February 22, 2021, New Jersey Governor Phil Murphy signed A21, the “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act” (NJCREAMMA), which is enabling legislation for the amendment to the New Jersey Constitution making lawful the recreational use of marijuana in the state.  The law directly impacts employers in many ways.

  1. Employers may still prohibit marijuana and impairment in the workplace.

The law explains that employers can still maintain drug- and alcohol-free workplaces. Employers are not required to accommodate the use, possession, sale, or transfer of marijuana in the workplace and may prohibit employees from being impaired during work hours.

  1. New Prohibitions on Employment Discrimination Based on Marijuana Use Outside of Work.

The law prohibits employers from:

  • refusing to hire or employ an individual who uses marijuana, unless failing to do so would cause the employer to violate a federal contract or lose federal funding; and
  • taking any adverse employment action (e.g., refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment) against someone because they use marijuana or based solely on a positive test result for marijuana metabolites.
  1. Limitations on Drug Testing

Under the new law, employers may still conduct numerous forms of drug testing for marijuana, including:

  • Post-offer pre-employment
  • Reasonable suspicion of use at work
  • Reasonable suspicion of impairment
  • Post-accident
  • Random

However, the law limits employers’ ability to rely on these tests in making employment decisions.  The law requires that a drug test include both a “physical evaluation” and “scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva.”  The “physical evaluation” must be conducted by an individual certified to provide an opinion about an employee’s state of impairment, or lack of impairment, related to the use of marijuana. The Cannabis Regulatory Commission is tasked with adopting standards for a “Workplace Impairment Recognition Expert” (WIRE), who must be trained to detect and identify an employee’s use or impairment from marijuana or other intoxicating substances and to assist in the investigation of workplace accidents.

Consequently, the new law creates a requirement similar to reasonable suspicion of impairment to support a positive drug test result for that test to be used in making employment decisions. It is unclear whether this physical evaluation requirement can be accomplished through drug testing services.  Post-accident tests often are performed on employees receiving emergency medical care or treatment, when such an evaluation may be inappropriate.

Further, unless an employer is subject to a federal drug testing requirement, such as DOT-regulated employers, pre-employment marijuana tests in New Jersey are essentially disallowed from serving as the sole basis for revocation of a job offer.  Employers arguably could continue doing the tests, but probably can revoke offer if an employee admits that they will continue using marijuana such that they are impaired at work.

Employers who continue to drug test should also consider that if an employee or applicant tests positive, the Jake Honig Compassionate Use Medical Cannabis Act (discussed here) imposes additional requirements.  For example, the employer must provide applicants or employees who test positive for marijuana written notice of the individual’s right to explain and their right to provide a “legitimate medical explanation” for the positive test result. The employee has three working days to provide such information, which can include evidence that a health care practitioner has authorized the use of medical marijuana, proof that the applicant or employee is a registered patient, or both. Or, within that same three-day timeframe, the applicant or employee can request a confirmatory retest of the original sample at their own expense.

  1. Effective Date Still Unclear

Although these requirements are effective immediately, they do not become operative and, thus, enforceable, until the Cannabis Regulatory Commission adopts rules and regulations relating to the new law. The Cannabis Regulatory Commission must issue the new rules and regulations within 180 days of enactment of the NJCREAMMA or 45 days after appointment of five members to the Commission, whichever is later.

  1. No Private Cause of Action

The law does not include a private right of action.  But, we can expect litigation in New Jersey courts, as we have seen courts in other jurisdictions allow aggrieved individuals to sue under medical marijuana laws even without an express private right of action in the statute.

  1. Decriminalization

Employers are prohibited from inquiring about or basing any employment decision on the fact that an applicant or employee has been arrested for, charged with, or convicted of certain offenses involving marijuana or hashish. Employers that violate this particular law face civil penalties imposed by the Commissioner of the New Jersey Division of Labor and Workforce Development consisting of $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each violation after that. The law is clear that it does not provide an aggrieved individual with a private right of action in the employment context.

  1. Safety Implications for Employers

The New Jersey recreational marijuana law presents hurdles for employers and their efforts to maintain a drug-free workplace.  It appears to undermine employers’ ability to discipline and discharge employees impaired by high levels marijuana, so long as that impairment is not outwardly detectable.  For individuals in safety-sensitive positions, the National Safety Council recommends a zero-tolerance policy for marijuana.  This recommendation is based on the decline in judgment and motor skills, and increase in accidents, incidents, employee injuries, and employee fatalities.  Following workplace fatalities, a large percentage of post-mortem toxicology shows evidence of marijuana impairment.  New Jersey’s new law risks undermining good faith drug and alcohol programs and employers’ abilities to protect the health and safety of employees.

  1. Next Steps for Employers

It remains to be seen whether the Cannabis Regulatory Commission will issue regulations that clarify some of the law’s unanswered questions, most importantly how the law impacts employers with employees in safety-sensitive positions. Until those regulations are adopted, New Jersey employers should consider working with relevant stakeholders and experienced employment counsel to determine whether to modify their drug testing practices, including the possibility of eliminating marijuana testing either pre-employment or for certain types of positions, provide training to managers tasked with making reasonable suspicion determinations, and determine the best person to serve as the employer’s WIRE. We will provide an update as soon as the new regulations are adopted.

By Brent I. Clark, James L. CurtisChristopher F. Robertson, Adam R. YoungPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Department of Labor announced last week OSHA will oversee the processing of worker retaliation complaints filed under two new whistleblower statutes – the Criminal Antitrust Anti-Retaliation Act and the Anti-Money Laundering Act.

Under the Criminal Antitrust Anti-Retaliation Act, OSHA will investigate whistleblower complaints alleging retaliation for reporting antitrust violations to managers or the federal government, or for other protected activity included assisting with an investigation or proceeding related to antitrust law violations.

In Anti-Money Laundering Act cases, OSHA will investigate whistleblower retaliation complaints for reporting money laundering-related violations to managers or the federal government, or for other protected activity included assisting with an investigation or proceeding related to anti-money laundering law violations.

Until OSHA issues interim final rules, the agency will process whistleblower complaints related to these statutes using standardized procedures developed for AIR21 (the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century).

These two additions will bring the total number of OSHA-investigated whistleblower statutes to 24, including Section 11(c) of the Occupational Health and Safety Act of 1970. While most of the claims OSHA investigates are under Section 11(c) of the OSH Act, the whistleblower provisions of the Sarbanes–Oxley Act of 2002 have created many expensive, heavily litigated claims against employers, particularly in the financial services industry.  These new whistleblower statutes could create a new wave of expensive litigation for large employers.

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), White Collar Defense & Investigations, or Whistleblower & Corporate Internal Investigations Teams.

By Brent I. ClarkAdam R. Young, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: CDC yesterday released an update to its recommended guidance on Vaccines & Immunizations. The guidance provides updated quarantine recommendations for fully vaccinated persons who “meet criteria will no longer be required to quarantine following an exposure to someone with COVID-19.”

Since the introduction of vaccines, the CDC has generally maintained the same guidance for vaccinated and unvaccinated individuals.  The CDC had explained that additional research was necessary into whether vaccinated individuals could become infected with the virus and spread it to others, and maintained that these individuals should mask, social distance, and quarantine (among other precautions), consistent with the CDC’s general recommendations.

The CDC has now changed one of these recommendations: vaccinated persons with an exposure to someone with suspected or confirmed COVID-19 are not required to quarantine if they meet all of the following criteria:

  • Are fully vaccinated (e.g. two vaccine doses and the 14-day wait period)
  • Are within 3 months following receipt of the last dose in the series
  • Have remained asymptomatic since the current COVID-19 exposure

Persons who do not meet all of the criteria are required to follow current quarantine guidance after exposure to someone with suspected or confirmed COVID-19.

The CDC has not changed any other guidance for vaccinated individuals.  Vaccinated persons should continue to follow all the other current guidance to protect themselves and others, including “wearing a mask, staying at least 6 feet away from others, avoiding crowds, avoiding poorly ventilated spaces, covering coughs and sneezes, washing hands often, following CDC travel guidance, and following any applicable workplace or school guidance, including guidance related to personal protective equipment use or SARS-CoV-2 testing.”

This new guidance may reflect that the CDC has reviewed new data demonstrating that vaccinated persons pose and face less hazards.  This change may portend additional revisions to CDC guidance in which vaccinated persons are permitted to reduce or even stop some COVID-19 precautions. According to news reports in the last few days, the CDC is discussing revising its social distancing guidelines for fully vaccinated persons as well.

Employers should consider updating their quarantining procedures to take into account the vaccination status of their employees.  Employers should also closely track new CDC guidance which remains among the most authoritative sources on COVID-19 safety issues and determine whether they can change policies and procedures going forwards.  They should also consult with outside counsel on how they can lawfully inquire as to employee vaccination status.

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

By James L. CurtisAdam R. Young, A. Scott HeckerPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: Last week, President Biden directed OSHA to release clear guidance for employers to help keep workers safe from COVID-19 exposure. On January 29, 2021, OSHA issued Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.”

According to OSHA’s press release, the agency is putting forth “stronger worker safety guidance to help employers and workers implement a coronavirus protection program and better identify risks which could lead to exposure and contraction.” The updated guidance and recommendations highlight steps employers should take to ensure a safe and healthy workplace and outlines existing safety and health standards. Many employers have already implemented some, if not all, of these recommendations throughout the pandemic.

The newly-issued guidance focuses on a workplace COVID-19 prevention program, which OSHA opines “is the most effective way to mitigate the spread of COVID-19 at work.” OSHA lists 16 elements that effective plans should include:

  1. Assignment of a workplace coordinator;
  2. Identification of where and how workers might be exposed to COVID-19 at work;
  3. Identification of a combination of measure that will limit the spread of COVID-19 in the workplace, in line with the principles of the hierarchy of controls;
  4. Consideration of protections for workers at higher risk for severe illness through supportive policies and practices;
  5. Establishment of a system for communicating effectively with workers and in a language they understand;
  6. Educate and train workers on your COVID-19 policies and procedures using accessible formats and in a language they understand;
  7. Instruct workers who are infected or potentially infected to stay home and isolate or quarantine;
  8. Minimize the negative impact of quarantine and isolation on workers;
  9. Isolating workers who show symptoms at work;
  10. Performing enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility;
  11. Providing guidance on screening and testing;
  12. Recording and reporting COVID-19 infections and deaths;
  13. Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards;
  14. Making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees;
  15. Not distinguishing between workers who are vaccinated and those who are not; and
  16. Other applicable OSHA standards.

Though OSHA does not currently have COVID-19 regulations, the OSH Act’s General Duty Clause requires employers to provide a workplace free from any recognized hazard. OSHA’s guidance is an indication of the means of abatement the agency believes are “feasible” to address COVID hazards.

Further, we expect that if OSHA determines a COVID-19 emergency temporary standard (ETS) is necessary and issues it by President Biden’s March 15, 2021 deadline, a number of these provisions will be part of the regulations. Consequently, employers should evaluate their compliance with these guidelines now to prepare for any forthcoming 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.

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

Seyfarth Synopsis: Frederick will take over as the No. 2 official at OSHA, after having already spent 25 years as the top investigator at the United Steelworkers union’s health, safety, and environment department. In that job Frederick pressed for new safety standards on a number of issues, including workplace violence, according to a union news release.

According to a United Steelworkers news release, James Frederick will serve as Deputy Assistant Secretary of Labor for Occupational Safety and Health (OSHA), purportedly following three decades of occupational safety experience, including 25 years in the USW’s health, safety, and environment department.

Also selected is Joseph T. Hughes Jr., who will serve as Deputy Assistant Secretary for Pandemic and Emergency Response for OSHA. Hughes was previously the director of the National Institute of Environmental Health Sciences Worker Education and Training Program, which provided grants to unions, companies and nonprofits to train rank-and-file workers on occupational health and safety.

Given Frederick’s union background, we anticipate that he will pursue the traditional labor priorities in occupational safety and health law, as we had previously predicted the Biden Administration would adopt.

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, Jeryl L. OlsonAdam R. Young, A. Scott HeckerPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The DOL and U.S. EPA have published their 2021 increases to civil penalties.

We have blogged previously about the annual adjustments to the maximum civil penalty dollar amounts for OSHA and EPA violations. They have now finalized the 2021 inflation adjustments, which increase the penalties again.

Under the 2021 rule, the new maximum OSHA civil penalties will be:

2020 Penalties 2021 Penalties
Other than Serious Violations: $13,494 $13,653
Serious Violations: $13,494 $13,653
Repeat Violations: $134,937 $136,532
Willful Violations: $134,937 $136,532
Failure to Abate (Per Day): $13,494 $13,653

The new OSHA penalty amounts are applicable to OSHA citations issued after January 15, 2021, for violations occurring after July 15, 2020.

Readers familiar with EPA’s penalty structure know that environmental statutes typically set out a “per day” penalty, as well as a maximum statutory penalty. However, certain statutes allow for civil judicial enforcement that does not carry a maximum statutory penalty.

Under the 2021 rule, the new maximum EPA civil penalties will be:

2020 Penalties 2021 Penalties

Clean Air Act                        Daily:

Maximum (per violation):

$48,192 – $101,439

$385,535

$48,762 –  $102,638

$390,092

Clean Water Act                   Daily:

Maximum (per violation):

$22,320 – $55,800

$278,995

$22,584 – $56,460

$282,293

RCRA                                    Daily: $61,098 – $101,439 $61,820 -$102,638
CERCLA                               Daily:
(including EPCRA)
Maximum (per violation):

$58,328

$174,985

$59,017

$177,053

EPA’s 2021 penalties are effective for violations that occurred after November 2, 2015, where the penalty was assessed on or after December 23, 2020. EPA and DOL are required to continue to adjust maximum penalties for inflation by January 15 of each new year.

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 Bernard Olshansky, Ilana Morady, Elizabeth M. Levy, and Coby Turner

Seyfarth Synopsis: The California Department of Industrial Relations’ Office of Administrative Law (OAL) approved an Emergency Temporary Standard regarding COVID-19, effective November 30, 2020. After holding a stakeholders meeting in December, the Division released its second iteration of frequently asked questions, which included nearly 40 new FAQs.

As we reported, on November 30, 2020, the California Office of Administrative Law (OAL) approved Cal/OSHA’s COVID-19 Emergency Temporary Standard (ETS). Soon after, Cal/OSHA published its first set of FAQs, which left many crucial questions unanswered, leaving employers struggling to understand a complex new set of safety standards (some of which contradicted the California Department of Health), COVID-19 testing, reporting, and employee pay continuation requirements.

In the wake of a mid-December stakeholders meeting designed to address questions surrounding the new ETS, Cal/OSHA promised to update the FAQs. Governor Newsom also stepped in and issued an Executive Order on December 14, 2020, requiring Cal/OSHA to follow the state Department of Health guidance and to date any updates to the ETS or FAQs, so that employers would understand when, and what, the Division was changing. Weeks after the regulated community had been anticipating the update, Cal/OSHA finally posted additional FAQs on January 8, 2021. The newest slew of FAQs provide a number of clarifications and updates. We highlight some of the notable issues below.

What’s New?

  • Earnings Continuation For “Able and Available” Employees. The FAQs confirm that the earnings continuation obligation is designed for “available and able” employees who have been removed from the workplace due to transmission related concerns (as opposed to those who are sick, who are not eligible). Along these lines, the FAQs explain that if someone cannot return after the normal quarantine period has run, the person is likely not available and able to work due to illness (which would render them ineligible for the earnings continuation).
  • Workers’ Compensation Eliminates Earnings Continuation. Employees who are receiving temporary disability benefits under workers’ compensation are not entitled to also receive earnings continuation, because Cal/OSHA deems those eligible for disability as not “able and available” to work.
  • Other Earnings Continuation Exceptions. The FAQs explain that the same framework an employer would use to rebut the presumption an employee contracted COVID in the workplace under SB 1159 would apply to determine if the “exposure” was work related, such that an employee would be eligible for earnings continuation. Under this framework, for employers to demonstrate exposure is not work related, they should conduct “comparable investigations” to show it is more likely than not that the exposure didn’t occur in the workplace.
  • ATD Standard. As we previously blogged, the ETS does not apply to (1) employees who are already covered under the Cal/OSHA Aerosol Transmissible Diseases (“ATD”) standard, (2) employees who are working from home, and (3) single-employee employers who do not have contact with others. Importantly for the healthcare industry and other employers covered by the ATD standard, the FAQs clarify that an employee in a single-person workplace cannot be subject to both the ETS and the ATD standard. This means, for example, that an employee covered by her employer’s ATD plan due to occupational exposure to aerosol transmissible diseases (including but not limited to COVID-19) is still covered by the ATD plan even if she’s in an area of the hospital that serves a purely administrative function.
  • Many employers may already be familiar with the ETS provision that requires solid partitions (e.g. Plexiglas) to be installed at fixed work locations where it is not possible to keep six feet of separation. Cal/OSHA’s guidance now clarifies that unless they are complete barriers (presumably meaning floor to ceiling), employers need to consider workers within six feet of each other as close contacts for purposes of contact tracing, testing, and quarantine.
  • Location and Testing Requirements. Cal/OSHA clarifies that when testing must be provided, it does not need to be provided at the employee’s work location. Companies can refer employees to a free testing site, clinic, or their own physician, so long as the employees incur no cost for the testing, including reimbursement for any testing-related costs such as mileage or parking fees. Cal/OSHA also clarified that employers do not have to mandate or require that employees be tested in an outbreak setting—they are only required to offer testing.
  • Length of Quarantine. Although a 14-day quarantine period is recommended, “an exposed employee who does not develop symptoms of COVID-19 may return to work after 10 days have passed since the date of last known exposure.” Health care, emergency response, and social services workers may return to work after 7 days with a negative PCR test result collected after day 5 when there is a critical staffing shortage. (This update was mandated by the Governor’s Executive Order that Cal/OSHA align with the California Department of Public Health’s updated quarantine guidance.)
  • Potential Waivers For Staffing Shortages. As many employers may already know, the ETS permits companies to seek a waiver from Cal/OSHA’s return to work criteria for employees who have COVID-19 or who have been exposed to COVID-19, but the details of the waiver process have been unclear. While the waiver submission process remains unclear, Cal/OSHA clarified that “an operation must provide goods or services, the interruption of which would cause an undue risk to a community’s health and safety in order to qualify.” Cal/OSHA noted that this is intended to be narrower than the definition of “critical infrastructure” industries, and to receive such an exemption, an employer must provide specific information, including describing their operations and the effect of the quarantine on such operations.
  • How To Calculate An Outbreak. The FAQs address a number of questions related to outbreak testing. A common question from employers has been how to measure the 14-day period to determine if an outbreak under the ETS has occurred. Cal/OSHA now confirms that employers “should look to the testing date of the cases and review any cases for which the tests occurred within a 14-day period to evaluate whether the other criteria for an outbreak have been met.”
  • Considering Shifts in Determining Outbreaks. Employers were also uncertain about whether or how to consider shifts when evaluating whether there have been three or more COVID-19 cases in a single exposed workplace. For example, if an employer had three COVID-19 positive employees in the breakroom on Monday, but each one of them was on a different shift and they didn’t cross paths, would that trigger outbreak testing? Cal/OSHA now says no, employers can consider each shift as a separate “exposed workplace” if the facility is well ventilated and the cleaning and disinfection requirements of the ETS are met between or before shift changes.

Will There Be More Guidance?

The FAQs state that they will be updated on an ongoing basis to help stakeholders understand the ETS.  In addition, the Consultation Branch will be available to answer employer questions.

What Happens If Our Company Has Issues Complying With the ETS?

We previously covered some of the penalties that could result from non-compliance with the new ETS. Cal/OSHA states that it will consider employer good-faith efforts to comply with the ETS before issuing citations. Additionally, the FAQs state that Cal/OSHA will not assess monetary penalties for any alleged violations until February 1, 2021, if those alleged violations would not have been considered a violation of a pre-existing Cal/OSHA standard such as the respiratory protection standard, or the “IIPP standard.”

So, employers have been given a bit of good news that the new provisions under the ETS won’t result in monetary penalties from Cal/OSHA for a few more weeks.

How Do Our Company’s Obligations Change Once Our Employees Are Vaccinated?

In short, they don’t. Cal/OSHA’s guidance clarifies that once an employee is vaccinated, all prevention measures must continue to be implemented. Cal/OSHA says that the impact of vaccines will likely be addressed in a future revision to the ETS.

What Else Is Cal/OSHA Going To Do?

Cal/OSHA’s statement that the impact of vaccines will probably be addressed in a future revision to the current ETS indicates that Cal/OSHA plans to release a new version of the ETS in the near future. As always, we closely track Cal/OSHA’s news releases and pending legal challenges to the ETS.

Workplace Solutions

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 COVID-19 Task Force Team.

By Benjamin D. BriggsBrent I. Clark, James L. CurtisAdam R. Young, Ilana R. Morady, A. Scott HeckerPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: If confirmed as Labor Secretary, past union leader, Mayor Marty Walsh, would succeed former corporate employment attorney, Eugene Scalia. Secretary Scalia has been criticized by organized labor and other groups for issuing joint employer and worker classification policies perceived as business-friendly and for declining to adopt an emergency COVID-19 rule requiring employers to take action to protect their workers from the virus.

Known as a personal friend of President-elect Biden, Mayor Walsh may have more of a voice in the Administration than the average Secretary of Labor. Before becoming a big-city mayor with all the responsibilities that entails, Walsh was a member of Laborers Local 223 in Boston and then head of the Boston Building and Construction Trades Council from 2011 to 2013. He worked with business and community leaders to “promote high-quality development, and he created a program called Building Pathways that has become a model for increasing diversity in the workplace and providing good career opportunities for women and people of color.” In the Massachusetts House of Representatives, Mayor Walsh led on issues like job creation and worker protection, skills that align with the challenges he would face as Secretary of Labor.

Given his union and worker protection background, we expect Mayor Walsh to pursue the enhanced enforcement course we previously predicted a President Biden OSHA would adopt.

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.