Author: Beeta B. Lashkari

OSHA’s Emergency Response Rulemaking Covers Private Employers With Designated Emergency Responders – Join CMC’s Employers Rulemaking Coalition

Beeta B. Lashkari Leave a comment

By Eric J. Conn, Kate M. McMahon, and Beeta B. Lashkari

OSHA is sure not letting the regulated community ease into the new year.  Indeed, right as we were shutting down for the holidays, OSHA slid a little gift under the tree in the form of yet another proposed regulation.  Specifically, on December 21, 2023, OSHA revealed a pre-publication proposed “Emergency Response” Rule, which it will publish any day now.  The rulemaking is designed to update OSHA’s existing “Fire Brigades” standard and to expand safety and health requirements related to emergency responders – both public and private.

We are writing to gauge your organization’s interest in participating in a coalition of employers and trade associations to work on this OSHA rulemaking.

Background About OSHA’s Emergency Response Rulemaking

So you would not have to, we have poured through the 600+ page pre-publication Notice of Proposed Rulemaking (NPRM) package.  Per OSHA, the soon-to-be-proposed “Emergency Response” Rule will update safety and health protections in line with national consensus standards for a broad range of workers exposed to hazards that arise during and after fires and other emergencies.  Particularly, the standard will apply to Workplace Emergency Response Employers (“WERE”), a term that applies to private employers engaged in industries such as manufacturing, processing, and warehousing that have, or establish, a Workplace Emergency Response Team (“WERT”).  OSHA explains that employees on the WERT are those who, either as a primary or collateral duty of their regular daily work assignments, respond to emergency incidents to provide services such as firefighting, emergency medical service, and technical search and rescue.  The standard also will apply to Emergency Service Organizations (“ESOs”), like local fire departments and third-party emergency medical services (referred to as “responders”).

We have already identified at least a dozen concerning and/or potential very onerous elements in the proposal, including that it requires WEREs and ESOs to: Continue reading →

New York HERO Act: COVID-19 Designation as Highly Contagious Communicable Disease Extended Until October 31, 2021

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As we previously reported, on September 6, 2021, the New York State Commissioner of Health issued a designation determining COVID-19 to be “a highly contagious communicable disease that presents a serious risk of harm to the public health in New York State.”  Such designation triggered requirements on employers to activate their airborne infectious disease exposure prevention plans in accordance with the New York Health and Essential Rights Act (“HERO Act”).

The New York State Department of Labor (“NYDOL”) issued the HERO Act Standards and model plan, which set forth the minimum requirements employers must provide to address exposure to airborne infectious diseases in the workplace.  As explained in our prior blog post, those requirements include:

  • employee health screenings;
  • employee face coverings;
  • personal protective equipment;
  • workplace hand hygiene stations and protocols, which includes adequate break times for employees to wash their hands;
  • cleaning and disinfecting shared equipment and frequently touched surfaces and high-risk areas;
  • social distancing;
  • complying with mandatory or precautionary orders of isolation or quarantine issued to employees;
  • air flow, exhaust ventilation, or other special engineering design requirements;
  • designation of one or more supervisors with the responsibility to ensure compliance with the prevention plan and any applicable federal, state, or local laws, rules, or guidance on preventing the spread of an airborne infectious disease;
  • notice to employees; and
  • verbal review of the infectious disease standard, employer policies, and employee rights under the NY HERO Act.

Employers were required to adopt a model plan Continue reading →

Federal OSHA to Issue Another COVID-19 Emergency Temporary Standard Setting a “Soft” Vaccine-Mandate

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By Conn Maciel Carey’s COVID-19 Taskforce

Yesterday, September 9th, President Biden issued new Executive Orders requiring federal contractors and healthcare employers to implement “hard” vaccine mandates, and directed federal OSHA to issue a new Emergency Temporary Standard that would require many employers to provide paid time for employees to get vaccinated and recover from the vaccine, and to implement “soft” vaccine mandates; i.e., require employees to either be fully vaccinated or get weekly COVID-19 testing.

The push now for a broader COVID-19 ETS applicable beyond just healthcare is a step for which we have been bracing for a while now.  In June, when OSHA issued its COVID-19 ETS that was limited only to the healthcare industry, the vast majority of employers dodged the bullet, but since the explosion of new cases because of the Delta variant, we began to see that bullet more as a boomerang, likely to come back around for the rest of industry.  Here are five signals we picked up that OSHA was likely to revisit its decision in June to limit its COVID-19 ETS to only healthcare employers:

    1. The rate of community transmission and COVID-19 deaths around the country has returned to the level we were experiencing in the Spring of this year when OSHA delivered to OMB a proposed ETS that was written to cover all industries.  To the extent the decline in cases and deaths was a major factor in OSHA’s decision to limit the ETS to just healthcare, that factor no longer cuts in favor of a healthcare-only rule.
    2. Between the time OSHA delivered the broad proposed ETS and the time it issued the narrow healthcare-only ETS, the CDC released groundbreaking guidance relaxing COVID-19 protocols for vaccinated individuals.  OSHA’s decision to limit the ETS to just healthcare only a month later had to be influenced by that seismic shift.  But since that time, in July, CDC backtracked on its guidance for vaccinated workers, causing OSHA to adjust its own guidance in that regard.
    3. Since issuing the ETS for healthcare, OSHA has been under pressure from national unions and worker advocacy groups to expand the ETS to all industries, both in the form of written comments during the ETS’s post-issuance comment period and a lawsuit filed by AFL-CIO challenging OSHA’s decision to limit the ETS to just healthcare.
    4. There has been a growing tension between the Biden Administration and certain Republican governors, particular DeSantis in Florida and Abbott in Texas, around mask and vaccine mandates.  The Biden Administration could resolve that tension by issuing a specific federal OSHA regulation setting requirements for masking and vaccinations, which would likely preempt conflicting state laws.
    5. The White House has changed its tune about strict COVID-19 protocols and vaccine mandates dramatically since the OSHA ETS was issued.  The Administration’s decision to limit the ETS to healthcare only was likely at least partially politically-motivated; i.e., a broad ETS was too unpopular due to the massive decline in COVID-19 cases and deaths.  However, we have started to see President Biden take politically risky moves around vaccinations; e.g., reinstituting mask recommendations for vaccinated individuals and setting a “soft” mandate for federal workers and contractors and encouraging industry to set similar mandates.  If the politics of aggressive COVID-19 requirements influenced OSHA’s decision to issue a narrow rule in June, it appears the Administration has changed its political calculation in the face of the spread of the Delta variant surge.

Those were the main signals we saw that kept us up at night worried OSHA would deliver to OMB a new or amended COVID-19 ETS that would apply to all industries.  But President Biden’s announcements yesterday sent the strongest signal yet that we will soon see further regulatory action from federal OSHA on the COVID-19 front.  A lot of questions remain, and we expect those to be answered in time as the new rules take effect, but we wanted to share with you what we know so far, as well as our preliminary thoughts/speculation about some of those questions.

What Happened Yesterday?

Let’s start with the President’s “Path Out of the Pandemic: POTUS COVID-19 Action Plan.” Continue reading →

Fed OSHA Updates Its COVID-19 Workplace Guidance – Realigns with CDC on Masks for Vaccinated Workers

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By Conn Maciel Carey’s COVID-19 Task Force

As we predicted a few week ago, following in CDC’s footsteps, on Friday of last week (August 13, 2021), OSHA updated its primary COVID-19 guidance for non-healthcare employers – Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace to embraces CDC’s updated mask recommendations for vaccinated individuals from July 27th.  OSHA’s updated guidance includes several links directly to CDC’s July Interim Public Health Recommendations for Fully Vaccinated People, as well as CDC’s COVID-19 Integrated County View Data Tracker, which depicts levels of county-level community transmission (low, moderate, substantial, or high).

Broadly, OSHA’s updated COVID-19 guidance tracks CDC’s updated guidance closely.  For example, OSHA now recommends that:

  • Fully vaccinated workers in areas of substantial or high community transmission wear masks in order to protect unvaccinated workers; and
  • Fully vaccinated workers everywhere in the country who experience a close contact exposure with a COVID-19 case wear a mask for 14 days or until they receive a negative COVID test taken at least 3 days after the contact.

Additionally, the guidance clarifies OSHA’s recommendations for protecting unvaccinated workers and other at-risk workers in “workplaces with heightened risk due to workplace environmental factors,” including those in manufacturing, meat and poultry processing, seafood processing and agricultural processing.

What Changed in OSHA’s Updated COVID-19 Guidance? Continue reading →

Status Update: Maryland Essential Workers’ Protection Act

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Earlier this month, the Maryland Essential Workers’ Protection Act (“Act”) made it through both chambers by Sine Die and now awaits action by the Governor.  Above all, the bill would require the Maryland Secretary of Labor to establish COVID-19-specific safety regulations, also known as an “Emergency Temporary Standard” (“ETS”), within two weeks after the effective date of the Act.  This may take one of two forms:

  • if the federal Occupational Safety and Health Administration (“Fed OSHA”) has issued an applicable ETS related to COVID–19, that ETS must be adopted (see our previous post regarding the status of Fed OSHA’s COVID-19 ETS rulemaking); or
  • if Fed OSHA has not issued an applicable ETS related to COVID–19, a State ETS must be adopted that:
    1. meets or exceeds the guidance provided in “Guidance on Mitigating and Preventing the Spread of COVID–19 in the Workplace” published on January 29, 2021, by Fed OSHA; and
    2. complies with certain additional criteria, requiring employers to:
      • notify the Maryland Department of Health within 24 hours after the confirmation of a positive case of COVID–19;
      • notify the Maryland Department of Health within 24 hours after the confirmation of three or more employees at a workplace testing positive for COVID–19 within a 14–day period;
      • post in a location visible to employees at the work site: information regarding COVID–19 symptoms; protocols for an employee’s reaction to experiencing COVID–19 symptoms; the minimum safety standards developed under the regulations; and the process for submitting a complaint to Maryland Occupational Safety and Health; and
      • comply with the prohibitions relating to terminating or discriminating against employees.

Importantly, the bill provides that “[t]his subtitle applies only to essential employers in industries and sectors identified by the Governor or a Federal or State agency as critical to remain in operation during the emergency[,]” where “emergency” is defined as “[a] catastrophic health emergency, as defined [under a certain section of the Public Safety Article], that is the subject of an Executive Proclamation . . . and is related to a communicable disease.”  The bill also offers a two-part definition for “essential employer,” providing that an “essential employer” means a “person that employs an essential worker” and that an “essential worker” means “an individual who: (1) performs a duty or work responsibility during an emergency that cannot be performed remotely or is required to be completed at the work site; and (2) provides services that the essential employer determines to be essential or critical to its operations.”  Essential employers may not “knowingly misclassify an essential worker as an independent contractor or other classification in order to avoid paying an essential worker any benefits due during an emergency . . .”    

Key safety and health requirements for covered employers include, but are not limited to, the following:

  • Subject to availability, provide necessary amounts of safety equipment recommended for usage during the emergency at no cost to essential workers.
  • Adopt, maintain, and post written protocols to ensure an essential worker’s access to information regarding the applicable safety standards in effect during the emergency.
  • Provide or implement any other measures or requirements set by the Governor or a Federal or State agency to ensure the general health and safety of essential workers.
  • During an emergency, if an essential worker or any other workers has contracted the communicable disease that is the subject of the emergency at the work site, take proactive steps to minimize the risk of transmission, including informing essential worker that they may have been exposed.
  • Unless an essential workers is able to obtain testing free of charge, if an essential worker’s health insurance coverage or other benefits do not cover the cost of testing for the communicable disease that is the subject of the emergency, during the emergency, pay for testing for the communicable disease.
  • Report all positive test results to the Maryland Department of Health, and, when reporting, include demographic information about the essential worker and redact any personal identifying information to protect the identity of the essential worker.

Additionally, the bill provides that essential workers have the “right to refuse to perform an assigned task under [a certain section of this article and corollary regulations].” 

The bill also sets forth requirements for “public health emergency leave,” defined as “paid leave that an essential employer provides to an essential worker during an emergency as required under [a certain subsection of this section].”  The public health emergency leave section only applies, however, if the Federal or State government provides funding that can be used for public health emergency leave.  Should such funding become available, essential employers must provide an essential worker with public health emergency leave on the date the funding is made available to the essential employer.  The bill sets forth the specific conditions under which public health emergency leave may be taken, as well as the amounts of leave to which covered workers are entitles and documentation requirements. 

With respect to the conditions under which public health emergency leave may be taken, the bill provides that each essential employer must allow an essential worker to use public health emergency leave in relation to an emergency:

  • To isolate without an order to do so because the essential worker: has been diagnosed with the communicable disease that is the subject of the emergency; or is experiencing symptoms associated with the communicable disease that is the subject of the emergency and is awaiting the results of a test to confirm the diagnosis.
  • To seek or obtain a medical diagnosis, preventive care, or treatment because the essential worker is diagnosed with the communicable disease that is the subject of the emergency.
  • To care for a family member who is isolating, without an order to do so, because of a diagnosis of the communicable that is the subject of the emergency.
  • Due to a determination by a public health official or health care professional that the essential worker’s presence at the place of employment or in the community would jeopardize the heath of other individuals because of the essential worker’s exposure to, or exhibited symptoms associated with, the communicable disease that is the subject of the emergency, regardless of whether the essential worker has been diagnosed with the communicable disease.
  • To care for a family member due to a determination by a public health official or health care professional that the family member’s presence at the place of employment or in the community would jeopardize the heath of other individuals because of the family member’s exposure to, or exhibited symptoms associated with, the communicable disease that is the subject of the emergency or due to symptoms exhibited regardless of whether the family member has been diagnosed with the communicable disease.
  • To care for a child or other family member: when the care provider of the family member is unavailable due to the emergency; or if the child’s or family member’s school or place of care has been closed by a Federal, State, or Local public official or at the discretion of the school or place of care due to the emergency, including if the school or place of care is physically closed but providing instruction remotely.

The bill provides a specific definition for “family member,” which includes: biological children, adopted children, foster children, and stepchildren of the essential worker; biological parents, adoptive parents, foster parents, and stepparents of the essential worker or of the essential worker’s spouse; the spouse of the essential worker; biological grandparents, adopted grandparents, foster grandparents, and stepgrandparents of the essential worker; biological grandchildren, adopted grandchildren, foster grandchildren, and stepgrandchildren of the essential worker; biological siblings, adopted siblings, foster siblings, and stepsiblings of the essential worker; among others

If an essential worker believes that an essential employer has committed violations, the bill provides specific methods of recourse for the worker.  It also prohibits employers from discharging or otherwise discriminating against an employee because the employee is an essential worker who files a compliant or exercises a right under certain provisions of the law. 

What Employers Need to Know About Mandatory COVID-19 Vaccines

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With the availability of a safe, effective COVID-19 vaccine edging closer and closer, employers understandably have a number of questions regarding their role in the workplace – whether and when they can require a vaccination, what exceptions are required in a mandatory vaccination program, and whether they should require (as opposed to encourage and facilitate) the COVID-19 vaccine for employees once it becomes available.  This summer, the World Health Organization reported that nearly 200 potential vaccines were currently being developed in labs across the world, and as of mid-October, disclosed that more than 40 had advanced to clinical stage testing on humans.  Drug manufacturers estimate that a vaccine will be ready and approved for general use by the end of this year, although logistically not ready for widespread distribution until mid-2021.  Indeed, just over the past couple of weeks, Pfizer and Moderna have made promising announcements regarding the results of their clinical trials.  Namely, on Monday, November 9, 2020, Pfizer and BioNTech announced that a vaccine candidate against COVID-19 achieved success in the firm interim analysis from the Phase 3 study.  The vaccine candidate was found to be more than 90% effective in preventing COVID-19 in participants without evidence of prior SARS-CoV-2 infection in the first interim efficacy analysis.  According to the announcement, submission for Emergency Use Authorization (EUA) to the U.S. Food and Drug Administration (FDA) is planned for soon after the required safety milestone is achieved, which is currently expected to occur in the third week of November.  Additionally, as reported by the National Institutes of Health (NIH) on November 16, 2020, there have been promising interim results from a clinical trial of a NIH-Modern COVID-19 vaccine.  An independent data and safety monitoring board (DSMB) reported that the vaccine candidate was safe and well-tolerated and noted a vaccine efficacy rate of 94.5%.  Accordingly, as the reality of a vaccination nears, employers are inquiring whether they can and should mandate the vaccine for their employees.

  1. Can Employers Require Employees to Take the COVID-19 Vaccine?

As a threshold matter, it should be noted that, according to a member of the federal advisory panel on immunizations that will be making recommendations to the CDC on who should get the first doses, vaccines authorized under the FDA’s emergency use authority, as these COVID-19 vaccinations will be at the start, cannot be mandated.  Any COVID-19 vaccine brought to market under an EUA instead of the normal non-emergency approval process will, by necessity, lack long term safety data.  Once a vaccine receives an EUA from FDA, FDA has authorized the vaccine for use according to the terms of the EUA.

In general though, employers can require vaccination as a term and condition of employment, but such practice is not without limitations, nor is it always recommended.  Although the issue is only now coming to the forefront of our national conscience, mandatory vaccinations in the workplace are not new, and have been particularly prevalent among healthcare providers.  Some variability exists under federal law and among federal agencies, but for the most part, mandatory vaccination programs are permissible, as long as employers consider religious accommodation requests under Title VII of the Civil Rights Act of 1964 (Title VII) and medical accommodation requests under the Americans with Disabilities Act (ADA).

OSHA has long taken the position that employers can require employees to take flu and other vaccines, but emphasizes that employees “need to be properly informed of the benefits of vaccinations.”  In the healthcare industry, for example, mandatory vaccination programs for employees are common.  Indeed, several states have laws that require healthcare employers to offer the vaccine or to ensure that employees receive it (with certain exceptions).  The CDC has long recommended that all healthcare workers get vaccinated, including all workers having direct and indirect patient care involvement and exposure.

Continue reading →

D.C. Expands Sick Leave With COVID-19 Response Supplement Emergency Amendment Act

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By Conn Maciel Carey’s COVID-19 Task Force

On April 10, 2020, the District of Columbia passed the COVID-19 Response Supplemental Emergency Amendment Act of 2020 (“the Act”).  Among other things, the Act amends the D.C. Accrued Sick and Safe Leave Act of 2008 by creating a new category of paid leave called “Declared Emergency Leave.” shutterstock_Washington DCThis is in addition to the March 17, 2020, amendment of the D.C. Family and Medical Leave Act (“D.C. FMLA”) that created “Declaration of Emergency” leave.  Under the Act, employers must now provide paid leave to employees for any covered reason provided by the Families First Coronavirus Response Act (“FFCRA”).  Notably, this leave appears to be in addition to: (1) leave provided by FFCRA; (2) leave provided by D.C. FMLA; and (3) leave provided by the employer’s policies.  The new law is currently in effect and will remain in effect for no longer than 90 days, until July 9, 2020.

With respect to coverage, companies employing between 50 and 499 people must provide Declared Emergency Leave to D.C. employees.  It is unclear, however, if the 50 to 499 employees must all work in D.C. to trigger the new law’s application, or whether the new law applies to any employee who works in D.C. so long as the employer employs between 50 and 499 employees nationwide.  Subsequent regulations may be issued to further clarify.  Additionally, there is an exemption from coverage for healthcare providers.  For purposes of Declared Emergency Leave, healthcare provider is defined as any doctor’s office, hospital, healthcare center, clinic, post-secondary educational institution offering healthcare instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home healthcare provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer or entity.  This includes any permanent or temporary institution, facility, location or site where medical services are provided that are similar to such institutions.

An employee is eligible to take Declared Emergency Leave if Continue reading →

DOL Releases Final Rule for Determining Joint Employer Status

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Department of LaborEarlier this week, on January 12, 2020, the U.S. Department of Labor (DOL) announced the release of its final rule revising and updating its regulations interpreting joint employer status under the Fair Labor Standards Act (FLSA).  According to DOL, “The final rule provides updated guidance for determining joint employer status when an employee performs work for his or her employer that simultaneously benefits another individual or entity, including guidance on the identification of certain factors that are not relevant when determining joint employer status.”  The DOL published its Notice of Proposed Rulemaking (NPRM) on April 9, 2019, and received over 12,000 comments within the 30-day comment period.  The final rule becomes effective on March 16, 2020, 60 days after publication in the Federal Register today, January 16, 2020.

As a threshold matter, under the FLSA, an employee working for one company may be found to be the joint employee of a second, independent company, depending on the nature and extent of control over the employee’s work.  Joint employer status is important for numerous reasons, including the fact that a joint employer can be held joint and severally liable for FLSA wage and hour obligations.  In 1958, DOL published an interpretive regulation, 29 C.F.R. § 791, explaining that joint employer status depends on whether multiple persons are “not completely disassociated” or “acting entirely independently of each other” with respect to the employee’s employment. 

Specifically, the regulation provided three situations where two or more employers are generally considered joint employers: (1) where there is an arrangement between the employers to share the employee’s services (e.g., to interchange employees); (2) where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer.  The DOL issued its NPRM out of concern that Continue reading →

Supreme Court Invites DOJ to Weigh In on Scope of Title VII

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shutterstock_litigationOn October 15, 2019, the U.S. Supreme Court asked the U.S. Solicitor General of the Department of Justice (DOJ) to weigh in on a petition to revive the discrimination case of Peterson v. Linear Controls Inc.  David Peterson, a former offshore electrician at Linear Controls, petitioned for a writ of certiorari on May 7, 2019, asking the Supreme Court to overturn the Fifth Circuit’s holding that more difficult working conditions alone are not enough to be considered an “adverse employment action” under Title VII of the Civil Rights Act of 1964.  The petition is currently pending, with the most recent action being the Supreme Court’s invitation to the DOJ’s Solicitor General to file a brief in the case to express the views of the United States.  So what is the case about, and what might the implications be for employers? 

Under Section 703(a)(1) of Title VII of the Civil Rights Act of 1964, it is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual” with respect to “compensation, terms, conditions, or privileges of employment” because of the individual’s race, religion, sex, or other protected status.  In this case, Peterson alleged Continue reading →

Waitress Fired for Failing to Serve Transphobic Customers

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shutterstock_transgenderLast month, a waitress, Brittany Spencer, was fired after refusing to serve transphobic customers at a Fat Joe’s Bar and Grill in Fond du Lac, Wisconsin, raising questions as to whether the restaurant engaged in impermissible discrimination by doing so.  During her shift, Spencer was asked by a couple of patrons sitting at one of her tables what she thought of a transgender customer sitting at the bar.  According to Spencer, the couple asked her if she thought it was “disgusting and wrong,” and asked why the restaurant would “let someone like that into the establishment,” to which Spencer answered that she did not agree and walked away.  When Spencer asked her manager if another employee could serve the table because she was uncomfortable, her manager said no, and Spencer decided to leave.  That night, Spencer shared what had happened on Facebook, stating that she was sent home for refusing to serve the customers, and the following day, Spencer was alerted by restaurant management that she had been fired.  The restaurant claims that it fired Spencer for “refusing to do the duty [it] hired her for.”  Spencer has filed a complaint with the Equal Employment Opportunity Commission (EEOC).

Before diving into the analysis of Spencer’s potential discrimination claim, it is important to understand what she would be required to show.  As we have previously posted, as with almost all claims of discrimination, Spencer will likely seek to prove her case through the use of indirect evidence under the McDonnell Douglas burden-shifting framework, requiring her to show that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gave rise to an inference of discrimination.  The question, however, will likely turn on Continue reading →