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

Seyfarth Synopsis: OSHA recently issued additional guidance addressing whether employers need to record an employee’s adverse vaccine reaction on their 300 Log.

Earlier this year, we blogged about OSHA’s guidance that an adverse reaction to the COVID-19 vaccine is recordable if the reaction is: (1) work-related, (2) a new case, (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), and (4) the vaccine is required for employees.

As the COVID-19 vaccine initiative continues to be a top public-health priority in the United States, federal OSHA revised this guidance to say it “will not enforce 29 CFR 1904’s recording requirements to require any employers to record worker side effects from COVID-19 vaccination through May 2022.” In other words, employers now have no duty to analyze whether an adverse reaction to the vaccine is work-related and otherwise recordable. In all cases across all industries, OSHA indicates it will simply not enforce the recordkeeping standard with respect to adverse COVID-19 vaccine reactions.

Neither OSHA’s prior nor its updated guidance 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.

OSHA justified this shift in policy as part of its efforts to encourage vaccination. The guidance states, “OSHA does not wish to have any appearance of discouraging workers from receiving COVID-19 vaccination, and also does not wish to disincentivize employers’ vaccination efforts.”

This should be welcome news to employers, many of whom have also made employee vaccination a priority. Employers who might have shied away from workplace vaccine mandates given the potential recordkeeping ramifications may now move forward with less concern.

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: On Monday, May 24th at 12:30 p.m. Eastern, Seyfarth attorneys Adam Young, Scott Hecker, and Patrick Joyce will present a webinar entitled Evolving Landscape: OSHA and CDC COVID-19 Guidance.

During his first full day in office, President Biden issued an Executive Order directing OSHA to consider a COVID-19 emergency temporary standard (ETS). OSHA drafted an ETS, which is in White House review, and its imminent release has been reported for weeks. Meanwhile, since President Biden’s executive order, OSHA issued new COVID guidance and announced a COVID-19 National Emphasis Program that DOL is aggressively enforcing.  With new CDC guidance for fully vaccinated individuals announced on May 13, and OSHA playing catch up, the federal landscape is as slippery as ever.

In this mini-webinar, members of Seyfarth’s Workplace Safety & Environmental Practice Group will provide a status on the ETS and its contents. We will also discuss OSHA’s guidance, National Emphasis Program, and employer liabilities related to continued COVID precautions in the workplace. We will provide recommendations for how companies can respond to the new ETS and apply new guidance from the CDC for vaccinated employees.

Registration is free, but attendees are limited, so please Register Here.

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

Learn more about our Workplace Safety & Environmental practice.

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

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

Seyfarth Synopsis: On May 18, 2021, OSHA adopted (by reference) CDC’s May 13, 2021 guidance for fully vaccinated individuals in many non-healthcare settings. Specifically, OSHA announced that employers should “refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.”

According to the May 13, 2021 CDC “Interim Public Health Recommendations for Fully Vaccinated People,” which OSHA adopts by reference, individuals who are fully vaccinated against COVID-19 may stop wearing masks or maintaining social distance in the vast majority of indoor and outdoor settings, regardless of crowd size.

Under the Biden administration, federal OSHA has taken an aggressive position with regard to ramping up COVID-19 workplace health and safety enforcement, which often appears to conflict with CDC guidance. OSHA has not yet issued specific regulations relating to COVID-19 or infectious diseases more generally. OSHA supposedly has drafted a COVID-19 emergency temporary standard (ETS), which has not yet been released. As of May 17, 2021, we understand that the ETS is moving forward and will apply to all general industry worksites.

After the transition to the Biden administration, OSHA issued COVID-19 Guidance on January 29, 2021. With respect to vaccinated employees, OSHA explains that “workers who are vaccinated must continue to follow protective measures, such as wearing face covering and remaining physically distant, because at this time, there is not [sic] evidence that COVID-19 vaccines prevent transmission of the virus from person to person.” This prior guidance from OSHA appears to conflict with CDC’s May 13, 2021 update.

Until today, the probability of OSHA enforcement under two seemingly contradictory sets of guidance was an open question. Though the OSHA website still requires vaccinated employees continue to mask and social distance, OSHA has added a banner at the top of the webpage indicating that the CDC’s May 13, 2021 guidance will trump OSHA’s vaccinated employee guidance while OSHA reviews its own measures, and that new guidance from OSHA is forthcoming.

With respect to enforcement, OSHA looks to its guidance to determine whether hazards are “recognized” and whether employers’ health precautions are sufficient to abate the hazards. Due to OSHA’s adoption by reference of CDC’s May 13, 2021 update, we do not anticipate OSHA to try to establish liability based on alleged exposures from vaccinated, asymptotic employees.

As we previously blogged, the CDC’s May 13, 2021 guidance cautions that fully-vaccinated individuals must continue to abide by existing state, local, or tribal laws and regulations, and applicable workplace guidance. Further, they must follow rules put in place by businesses. CDC indicates that 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

Non-safety considerations employers may want to take into account include how to internally enforce the requirement that only fully vaccinated individuals can go mask-less, whether employers’ policies may lead to disparate treatment or negatively impact morale, and maintained uniform corporate protocols.

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. CurtisAdam R. YoungA. Scott HeckerPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: On May 13, 2021, the CDC announced further updated recommendations for fully vaccinated people in non-healthcare settings.

In an unexpected turnabout from previous guidance, the CDC updated its “Interim Public Health Recommendations for Fully Vaccinated People” to recognize that individuals who are fully vaccinated against COVID-19 may stop wearing masks or maintaining social distance in the vast majority of indoor and outdoor settings, regardless of crowd size.

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

In deference to local authorities, fully vaccinated individuals must continue to abide by existing state, local, or tribal laws and regulations, and applicable workplace guidance. Further, they must follow rules put in place by businesses. Many state and local jurisdictions currently have mandatory rules requiring masking and social distancing, mostly while indoors. Given this updated guidance, it is likely that state, local, and tribal governments, as well as businesses, will update mask requirements and guidance in the near future. We had previously blogged on the CDC’s updates allowing fully vaccinated individuals to remove masks outdoors, with certain restrictions.

The CDC new position can be summed up as follows: if you are fully vaccinated, you are protected, and you can start doing the things that you stopped doing because of the pandemic. But the new guidance comes with caveats. Even vaccinated individuals must cover their faces and physically distance when going to doctors, hospitals, or long-term care facilities like nursing homes; when traveling by bus, plane, train or other modes of public transportation, or while in transportation hubs like airports and bus stations; and when in prisons, jails or homeless shelters.

Specific updates in the new guidance include:

  • Fully vaccinated people no longer need to wear a mask or physically distance in most settings, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.
  • Fully vaccinated people can refrain from quarantine and testing following a known COVID-19 exposure unless they are residents or employees of a correctional or detention facility or a homeless shelter, or unless they start showing COVID-19 symptoms after exposure.

For now, if you’ve been fully vaccinated:

  • You will still need to follow guidance at your workplace and requirements put in place by businesses.
  • If you travel, you should still take steps to protect yourself and others. You will still be required to wear a mask 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. Fully vaccinated international travelers arriving in the United States are still required to get tested within 3 days of their flight (or show documentation of recovery from COVID-19 in the past 3 months) and should still get tested 3-5 days after their trip.
  • You should still watch out for symptoms of COVID-19, especially if you’ve been around someone who is sick. If you have symptoms of COVID-19, you should get tested and stay home and away from others.

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. ClarkBenjamin D. BriggsCoby TurnerAdam R. YoungIlana Morady, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: On May 20, 2021, the California Occupational Safety & Health Standards Board (OSHSB) will consider changes to the COVID-19 Emergency Temporary Standard (ETS) Rules, and it just posted the changes it will consider. These potential changes are broad-ranging and affect employers’ requirements related to masking, social distancing, testing, exclusion, and more, especially with respect to vaccinated and unvaccinated employees.

Background

Last November, Cal/OSHA’s ETS went into effect. Now, amidst significant improvements to the state of the COVID-19 pandemic and increased scientific knowledge, the risk-benefit aspect of the current ETS has made compliance particularly burdensome and at times nonsensical, as subtly noted by California’s Governor and repeatedly adjusted in FAQs. Thankfully, however, Cal/OSHA has now published its proposed revisions to the ETS, which the OSHSB will consider at its May 20, 2021 meeting.

The proposed revisions are in many instances a significant move in the right direction, and would offer some much-needed relief to employers in certain areas. But of course, it wouldn’t be Cal/OSHA without at least some confusion and issues of practicality.

What Are The Most Notable Revisions?

  • Exemptions: Creating broad exemptions for workers who have been fully vaccinated with an FDA- approved or emergency use authorized (EUA) vaccine, and/or workers who have tested positive for COVID-19 within the past 90 days (i.e. naturally immunized workers).
    • Fully vaccinated or naturally immune workers would not need to be excluded from work after a close contact so long as they remain symptom-free.
    • Individuals who are actual COVID-19 cases, but were fully vaccinated before they become COVID-cases would not need to be excluded, so long as they remain symptom free and local public health rules permit them to remain at work.
    • Fully vaccinated workers would be exempt from maskingif everyone in the same room is fully vaccinated and asymptomatic, or if the fully vaccinated employees are working outside and asymptomatic.
    • Other exemptions, related to physical distancing, testing, and engineering controls specific to fully vaccinated persons and/or naturally immunized individuals are noted below in more detail.
  • Physical Distancing Requirement Changes
    • A July 31, 2021, sunset of the physical distancing requirements.
    • An immediate modification of the physical distancing requirement to require six feet of separation unless it is infeasible(as opposed to the current standard of impossible).
    • The physical distancing requirement would not applyto employees wearing respirators under a respiratory protection program, and locations where all employees are fully vaccinated (Note that if any employees in a location require a reasonable accommodation or exception to vaccination based under other legal protections, such as FEHA or the ADA, then the exemption from social distancing can still apply, but the employer must provide respirators for voluntary use to the unvaccinated workers, and test those employees for COVID-19 at least once per week during paid time and at no cost to the employees).
  • Employer Provided Testing: Requiring that employers make COVID-19 testing available at no cost during paid time to employees with COVID-19 symptoms who are not fully vaccinated, as of July 31, 2021.
    • The provision of testing requirement would apply regardless of whether the unvaccinated worker had close contact with a COVID-19 case.
    • On the flip side, employers would no longer need to offer COVID-19 testing to workplace close contacts if the potentially exposed employees were fully vaccinated or had natural immunity (previously infected within the prior 90 days).
  • Face Coverings: Refining the definition of “face covering” to exclude “a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric,” and specifying it must be a medical, surgical, or two fabric layer mask, or respirator—meaning many of the fancy masks that employees may have personally purchased and been using will no longer be sufficient to meet the safety standard.
  • Outbreak Testing: With respect to the highly controversial “outbreak testing” provision, eliminating the “exposed workplace” concept and shifting to an “exposed group” concept.
    • This would encompass all persons at a work location, working area, or a common area at work, where a COVID-19 case was present (except for short passing through while masked) at any time during the high-risk exposure period, including bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas.
    • Outbreak testing would kick in when there are three or more COVID-19 cases in an exposed group. Significantly, the proposed draft removes as a trigger for “outbreak testing” when the local public health department identifies the workplace as the location of an outbreak—which could eliminate the challenge many employers have faced with inconsistency in how local public health departments identify outbreaks.
  • Training Requirements: Adding as required training topics information on COVID-19 vaccinations, COVID-19 testing accessibility, and for employers who provide respirators for voluntary use, training on how to properly wear the respirator and how to perform a seal check. Additionally, employers would need to train employees that N95s and other respirators protect users from airborne diseases like COVID-19, as opposed to face coverings which primarily protect people around the user.
  • Close Contacts: Incorporating a “close contact” definition for purposes such as testing, exclusion, and contact tracing, and exempting from that definition employees who are wearing a respirator under a Cal/OSHA-compliant respiratory protection program.
  • Notifications: Changing and clarifying several of the requirements around COVID-19 notifications to align with AB 685, including, but not limited to, a requirement that COVID-19 notifications include the employer’s disinfection plan.
    • Notably, the revision would also provide an allowance for verbal notice of a COVID-19 case in the workplace if the employer has reason to know that an employee has not received the written notice. This is an important change for the many employers who have had difficulty complying with existing written notification requirements.
    • It also requires employers to notify the employee verbally in a language understandable by the employee, if the employer has reason to believe the employee has limited literacy in the language of the written notice.
  • Engineering Controls: Creating a July 31, 2021, sunset on the “cleanable solid partitions” requirement that currently applies when employees are assigned to work at work stations such as cash registers, desks, production lines, and other locations where physical distancing is not maintained at all times. Prior to the sunset, the requirement also would not apply if employees are wearing respirators under a respiratory protection program, fully vaccinated, or, for workers who require a reasonable accommodation or exception to vaccination, are provided respirators for voluntary use and tested for COVID-19 at least once per week.

What Else Do I Need to Know?

Remember that Cal/OSHA continues to update its interpretive guidance on the ETS via its Frequently Asked Questions page. One of the most significant recent developments is that as of May 5, 2021, Cal/OSHA has aligned itself with CDPH’s Public Health Recommendations for Fully Vaccinated People. Accordingly, fully vaccinated employees exposed to a COVID-19 case who remain asymptomatic need not be quarantined.

The full text of the proposed revision to the ETS can be found here. Trade associations and labor groups will have an opportunity to offer public comment at the Cal/OSHA Standards Board meeting on May 20, 2021. It’s likely the Standard Board will vote on the revisions on the same day. The revised standard would become effective as soon as approved by the State Office of Administrative Law.

Workplace Solutions

Remember to check in with your Seyfarth counselors regularly, as this is a rapidly developing area of law. If you need any assistance with your workplace safety planning, or have questions about requirements related to testing, quarantine, or how to pay workers that are out sick with COVID-19, please feel free to reach out to the authors of this post. Seyfarth can also assist with compliance counseling if you are considering implementing mandatory vaccination programs or creating incentives for your employees to be vaccinated.

By Brent I. ClarkJames L. Curtis, Adam R. YoungPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The Interim Enforcement Guidance for the 2020 Final Beryllium Standards applies to all types of beryllium inspections.

We have previously blogged about OSHA’s beryllium standards, and the Trump Administration’s delay in enforcement of these standards. See, for instance, OSHA Delays Enforcement of Beryllium Standard Until May, Update from the 2019 ABA Occupational Safety and Health Law Committee Midwinter Meeting, and What to Expect From OSHA in a President-Elect Trump Administration. Now, in the Biden Administration, OSHA is providing guidance to its personnel on how to enforce these standards, perhaps foreshadowing forthcoming aggressive enforcement.

OSHA’s guidance will apply to OSHA inspections of manufacturers using beryllium, as well as shipyards and construction sites where trace amounts of beryllium are used in sand-blasting materials. While the guidance primarily functions as guidance for OSHA compliance officers on how to conduct beryllium inspections, the guidance also provides employers with insights of what inspectors will likely be looking for during site inspections. In addition, the guidance outlines how to cite employers for alleged violations.

Note also the CDC-NIOSH site on beryllium, and the OSHA page the substance.

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 Patrick D. Joyce, Brent I. ClarkJames L. CurtisAdam R. Young, Ilana R. Morady, A. Scott Hecker, and Craig B. Simonsen

Seyfarth Synopsis: This week, the State of Oregon issued a final COVID-19 worker protection standard, replacing its temporary rule adopted six months ago. The final rule, effective on May 4th with certain provisions phasing in over time, is slated to stay in effect until state officials declare the COVID-19 emergency over.

The Oregon Occupational Safety and Health Administration (Oregon OSHA) drafted the updated rule following the process required for non-emergency rules, including holding public hearings and receiving and addressing written comments. The new rule mirrors the state’s temporary standard with minor changes. Employers with ten or more employees must have a written infection control plan in place that meets the core requirements. But employers that already assessed the COVID-19 risks their workers face, developed an infection control plan, and conducted training to comply with the earlier measure do not need to repeat those efforts. In short, workplace precautions put in place under the temporary rule to prevent transmission of COVID-19 at work need to be maintained.

Despite considerable public comment, the final rule continues to ignore the significant impact that COVID-19 vaccinations play in reducing potential workplace COVID-19 risks. In fact, despite the overwhelming evidence that vaccines are extremely effective against death and serious illness requiring hospitalization, as well effective at reducing the risk of transmission of COVID-19, Oregon OSHA states that it is following Federal OSHA’s January 29, 2021 guidance that employers should not distinguish among workers who are vaccinated and those that are not.  This plainly contradicts CDC guidance regarding the effectiveness of the vaccines and their impact on the need to quarantine vaccinated workers after a known COVID-19 exposure. (The CDC says such a worker need not quarantine unless they develop symptoms). Further, with Federal OSHA potentially on the verge of issuing its own ETS, Oregon OSHA chose to rely on months-old guidance, as opposed to CDC’s more recent recommendations. It is unclear how these contradictions will be resolved, but the reduction in workplace risks that result from increasing numbers of vaccinated workers is not in dispute.

The new rule creates mandates requiring respiratory protection for healthcare workers providing direct patient care, that take effect May 17, 2021. There are also new requirements, effective June 3, 2021, for creation of a crisis management plan, as well as requirements related to ventilation, employer-provided transportation, employee notification, and creation of a personal protective equipment supply management plan for healthcare employers.

See the Agency’s Summary of Key Issues Revision and Extension of Oregon COVID-19 Workplace Rules for more detailed discussion and the Agency’s explanation of the rules.

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. CurtisAdam R. YoungA. Scott Hecker, and Craig B. Simonsen

Seyfarth Synopsis: On April 27, 2021, CDC announced updated recommendations for fully vaccinated people in non-healthcare settings (note that on the same day the CDC also posted Updated Healthcare Infection Prevention and Control Recommendations in Response to COVID-19 Vaccination).

Image from CDC.

Among other updates, the CDC: provided “guiding principles” for fully vaccinated individuals; explained that fully vaccinated people no longer need to wear masks outdoors (except in certain “crowded” settings and venues); and clarified that fully vaccinated folks, without symptoms, generally are not restricted from work following exposure to a known or suspected COVID-19 case.

Under the updated guidance, fully vaccinated people can:

  • Visit with other fully vaccinated people indoors without wearing masks or physical distancing.
  • Visit with unvaccinated people (including children) from a single household who are at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing.
  • Participate in outdoor activities and recreation without a mask, except in certain crowded settings and venues.
  • Resume domestic travel and refrain from testing before or after travel or self-quarantine after travel.
  • Refrain from testing before leaving the United States for international travel (unless required by the destination) and refrain from self-quarantine after arriving back in the United States.
  • Refrain from testing following a known exposure, if asymptomatic, with some exceptions for specific settings
  • Refrain from quarantine following a known exposure if asymptomatic
  • Refrain from routine screening testing if asymptomatic and feasible

For now, according to the CDC, fully vaccinated people should continue to:

  • Take precautions in indoor public settings like wearing a well-fitted mask
  • Wear masks that fit snuggly when visiting indoors with unvaccinated people who are at increased risk for severe COVID-19disease or who have an unvaccinated household member who is at increased risk for severe COVID-19 disease
  • Wear well-fitted masks when visiting indoors with unvaccinated people from multiple households
  • Avoid indoor large-sized in-person gatherings
  • Get tested if experiencing COVID-19 symptoms
  • Follow guidance issued by individual employers
  • Follow CDC and health department travel requirements and recommendations

Recognizing that fully vaccinated persons have a minimal risk of contracting or transmitting COVID-19 to others, the CDC states that the “level of precautions taken should be determined by the characteristics of the unvaccinated people present, who remain unprotected against COVID-19.” In other words the CDC is focusing on the risks to unvaccinated persons which the CDC assumes “remain unprotected against COVID-19.” An obvious gap in the CDC guidance is the role that natural immunity plays for persons who are unvaccinated. However, the CDC is silent on this issue. In other parts of its own guidance the CDC recognizes that natural immunity is sufficient to warrant modified quarantine and exclusion from work treatment, just like for vaccinated persons. Once the guidance is based on the risk to those who are “unvaccinated” it seems clear that all forms of immunity to COVID-19 possessed by those persons should be considered when evaluating the overall risk and therefore the appropriate precautions.

In indoor public spaces, the guidance states that fully vaccinated people should continue to protect themselves and others by wearing a well-fitted mask, covering coughs and sneezes, washing hands often, and following any applicable workplace or school guidance. Fully vaccinated people should still watch for symptoms of COVID-19, especially following an exposure to someone with suspected or confirmed COVID-19. If symptoms develop, all people – regardless of vaccination status – should isolate and be clinically evaluated for COVID-19, including SARS-CoV-2 testing, if indicated.

While the CDC’s guidance does not explicitly apply to workplaces, it mentions employers, and is moving in the right direction. We expect the CDC to continue to update its guidance, including addressing how increased vaccinations impact the risk mitigation protocols required at work. Hopefully, now that the CDC has implicitly accepted the significant immunity and protection provided by vaccination, and they are now focusing on the risk to OTHERS, the CDC will more thoroughly evaluate those risks including the role of natural immunity. Of course, other mandates from federal agencies like OSHA or those imposed by state and local governments must be followed, where applicable.

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 Scott Hecker 

On April 26, 2021, OSHA referred its COVID-19 emergency temporary standard (“ETS”) to the White House’s Office of Information and Regulatory Affairs (“OIRA”).  OIRA reviews agency standards to facilitate finalization and publication.

With President Biden’s March 15 deadline for OSHA to issue a COVID-19 ETS more than a month in the past, even those who anticipated a delayed response had started to question whether OSHA would issue a standard. Indeed, the longer the ETS takes to issue – and, to be clear, it hasn’t yet issued – the less sense it makes. For OSHA to promulgate an ETS, section 6(c) of the Occupational Safety and Health Act requires “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and . . . that such emergency standard is necessary to protect employees from such danger.” As COVID-19 vaccinations increase – and demonstrate high rates of effectiveness, particularly at preventing serious illness and death – the more OSHA delays, the harder it will be to justify that an “emergency standard is necessary to protect employees” from “grave danger.”

According to the CDC’s COVID Data Tracker as of April 26, in the United States:

  • Over 232 million vaccine doses have been administered, meaning President Biden far-exceeded his goal to administer 200 million doses in his first 100 days.
  • Over 54% of the U.S. population, 18 and older, has received at least one dose.
  • Over 81% of the U.S. population, 65 and older, has received one dose; and
  • Almost 30% of the entire U.S. population is fully vaccinated.

While the rolling average for doses administered per day may be declining, that is likely because those who raced to be front-of-line for distribution have received their vaccines. The government may need to reorient its strategy to attract more passive potential recipients, as well as individuals who are on the fence about getting the vaccine.

Beyond battling the passage of time and increasing vaccination numbers, OSHA will need to justify its change in position on the need for an ETS, as former Secretary of Labor Scalia and former Principal Deputy Assistant Secretary for OSHA Loren Swett both opined that OSHA’s toolkit already included what it needed to enforce COVID-related violations. The Biden Administration may be unwittingly confirming these assertions by increasingly issuing COVID-related citations under the General Duty Clause of the OSH Act, section 5(a)(1), to require employers to mandate, e.g., masking and social distancing.

OSHA’s issuing an ETS also implicates federalism, as it will apply in any states that follow federal OSHA regulations, including Texas and Florida, which are among the states on the forefront of rolling back COVID-related risk mitigation protocols. States with their own OSHA plans – e.g., Kentucky, Tennessee, and the Carolinas – will need to issue their own ETSs within 30 days that are “at least as effective” as OSHA’s. Then there are states like California and Virginia that have their own regulations already in effect; they’ll need to ensure what they’ve previously promulgated is at least as effective as the OSHA ETS.  A state like New York that recently passed the HERO Act to protect workers from aerosol transmissible diseases may now run into federal preemption issues because of the anticipated ETS.

OSHA has never mandated vaccinations, with its Bloodborne Pathogen standard requiring that employers offer certain employees the Hepatitis B vaccine likely coming the closest. We don’t anticipate any vaccine requirement in the ETS, but we should expect the OSHA ETS to require employers to follow CDC guidance; to incorporate OSHA’s January 29, 2021 publication, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”; and to adopt provisions from state ETSs.

We can expect litigation challenging the ETS from states and from associations like the U.S. Chamber of Commerce.  Challenges to OSHA ETSs have had mixed success, with the Congressional Research Service noting that of the nine ETSs OSHA has issued “courts have fully vacated or stayed the ETS in four cases and partially vacated the ETS in one case.”

Perhaps OIRA will introduce additional roadblocks to publishing OSHA’s ETS, but while we await the standard’s review, employers should consider the resources above to ensure they’ll be ready to comply, if needed.

For a deeper dive into the possibility of an OSHA ETS and how it could affect your business, join us on Tuesday, May 4th for Seyfarth’s Webinar: The Biden Administration: Actions on Labor and Employment in the First 100 Days. 

We will continue to monitor developments and to provide updates as appropriate. If you would like additional information please reach out to Scott HeckerBrent Clark, and Seyfarth’s Workplace Safety and Environmental team.

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.