Ms. Maciel works to create workplace solutions for her clients. She counsels clients on issues related to ADA accessibility requirements, wage hour compliance, prevention of harassment and discrimination, effective employment policies and procedures, and developing a compliant employee handbook. She also defends employers in litigation at both the federal and state levels. For unionized and non-unionized companies, Ms. Maciel provides advice and counsel regarding the employer’s rights under the National Labor Relations Act.
Kara is an avid traveler (pre-pandemic) and foodie, so it makes perfect sense that she focuses much of her practice on issues facing companies in the hospitality industry (including hotel owners and managers, resorts, restaurants, and country clubs); retail; grocery; food distributors; and non-profit sectors.
On January 7, 2021, President-elect Joe Biden announced his much-awaited choice for nominee to serve as Secretary of Labor, selecting Boston Mayor Marty Walsh. Mayor Walsh made his mark as a labor leader, ultimately heading the Building and Construction Trades Council from 2011 to 2013. Mr. Walsh was also a full-time legislator, serving in the Massachusetts state legislature for some 17 years before being elected mayor in 2014.
If confirmed, it is expected that Mayor Walsh’s close personal friendship with President-elect Biden will elevate the importance of the Labor Department in President Biden’s cabinet, allowing a Secretary Walsh significant influence in the Administration.
Mayor Walsh’s strong ties to organized labor and his selection follows through on President-elect Biden’s campaign promise to give unions a stronger voice in labor policy in his Administration. Mayor Walsh has a reputation as a “pragmatic dealmaker,” and he is respected in Massachusetts by both business and labor for his reasonable approach to solving labor and employment issues facing the state.
Of the many issues likely to be tackled by the Labor Department over the next few years, one of the first and most impactful will be the likely issuance of a federal COVID-19 Emergency Temporary Standard by OSHA. President-elect Biden has pledged to have OSHA quickly address this issue. If a federal ETS is promulgated, it would replace the current Administration’s approach, which has relied heavily on CDC and agency guidance, as well as existing OSHA standards, like the respiratory protection standard and recordkeeping rules, to issue citations. With respect to COVID-19, under Mayor Walsh’s leadership, the City of Boston implemented a broad array of sector-specific workplace instructions for businesses designed to limit the spread of the virus, including requirements for face coverings, social distancing, building capacity limits, staggered work shifts, and worksite ventilation improvements.
As Labor secretary, Mr. Walsh would be responsible not just for worker protection standards, but also for renewed paid family-leave benefits and expanded access to unemployment insurance, among myriad other responsibilities. Likewise, it is expected that DOL under a Biden Administration would rescind a just-finalized regulation issued over the appropriate test for classifying whether workers are independent contractors or employees.
Republicans like House Education and Labor Committee Ranking Member Rep. Virginia Foxx (R-NC) are already pushing back on President-elect Biden’s selection, warning that Mr. Walsh’s labor background signals that he will try to impose “punitive one-size-fits-all regulations” on employers. Nonetheless, based on his track record, it is expected that Mr. Walsh may make efforts to force compromise between business and labor rather than taking a more ideological, anti-business approach that would likely have been followed had President-elect Biden nominated Senator Bernie Sanders as Labor Secretary, who is said to have wanted the post.
While his selection awaits the Senate confirmation process, Mr. Walsh could be confirmed by a simple majority vote that would not require backing from a single Republican senator.
On Wednesday, July 15, 2020, Virginia’s Governor Ralph Northan announced the commonwealth’s adoption of an emergency temporary standard (“ETS”) on infectious disease prevention. With that, Virginia became the first state in the nation to promulgate a mandatory safety regulation designed to prevent and/or reduce COVID-19 infections in the workplace. The Virginia Department of Labor and Industry’s Safety and Health Codes Board voted to approve the ETS after Governor Northam directed the creation of enforceable regulations in a May Executive Order (the same EO that mandated the use of masks in public for all Virginians). Specifically, Governor Northam directed:
“The Commissioner of the Virginia Department of Labor and Industry shall promulgate emergency regulations and standards to control, prevent, and mitigate the spread of COVID-19 in the workplace. The regulations and standards … shall apply to every employer, employee, and place of employment within the jurisdiction of the Virginia Occupational Safety and Health (VOSH) program.”
Virginia state officials said they were forced to act because federal OSHA had not developed an employer safety standard to protect against infections from the Coronavirus, and thus the burden to do so has been left to the states.
The ETS, which was drafted by Virginia’s Department of Labor and Industry, took effect on July 27, 2020. The rule will remain in effect as an ETS for at least six months, but can be made permanent through the Virginia OSHA (VOSH) formal rulemaking process defined by state law. Although the Final Rule has not been published, the rulemaking process has been somewhat public, with early drafts of the rule discussed and debated in public meetings.
Effective today, July 1, 2020, eligible employees in the District of Columbia (“DC”) will be entitled to paid leave up to a designated period depending on the qualifying leave event. Here, we review and highlight important aspects of DC’s Paid Family Leave law. For additional discussion on the DC Paid Family Leave law and frequently asked questions, please also see our prior post.
Covered Events and Applicable Leave Periods
The DC Paid Family Leave law provides leave benefits to eligible employees for three types of leave: (1) parental leave; (2) family leave; and (3) medical leave. Continue reading →
There are myriad workplace safety and health implications of the COVID-19 pandemic, but one OSHA regulatory obligation about which we have received countless questions the past three months is the requirement to record on an OSHA 300 Log and/or pick up the phone and report to OSHA work-related cases of COVID-19. This article explains the circumstances the OSHA recordkeeping and reporting obligations related to employee COVID-19 cases.
“An injury or illness occurring in the work environment that falls under one of the following exceptions is not work-related, and therefore is not recordable…. The illness is the common cold or flu.”
The rationale for the exemption is that the spread of the cold and flu is so pervasive and potential exposures are ubiquitous within and outside the workplace, so it can be nearly impossible to identify the specific source of infection.
Despite great personal sacrifice around the country in the form of mass self-quarantine, the scale of infection of COVID-19 continues to spread like the flu and common cold, with even more dire consequences. Nevertheless, OSHA has repeatedly made clear that COVID-19 is not subject to the cold/flu recordkeeping exemption:
“While 29 CFR 1904.5(b)(2)(viii) exempts recording of the common cold and flu, COVID-19 is a recordable illness when a worker is infected on the job.”
OSHA has explained that the cold and flu recordkeeping exemption is not just an OSHA policy or enforcement philosophy. Rather, it is a part of the regulation itself that went through APA notice-and-comment rulemaking. And the scientific reality is, COVID-19 is not the cold or flu. It is a different virus. So without another rulemaking (that history suggests would take longer than it will to eradicate this illness), OSHA cannot just declare this serious illness to be exempt from recordkeeping and reporting requirements.
Indeed, over a series of guidance documents in April and May, OSHA has doubled-down on its decision that employers must spend time determining whether cases of COVID-19 are more likely than not work-related.
Determine Recordability of COVID-19 Cases
Consistent across all of OSHA’s COVID-19 guidance has been the basic structure for evaluating whether an employee’s COVID-19 case is recordable. Employers will only be responsible for recording a case of COVID-19 if it meets the following criteria: Continue reading →
In explaining the need for this enforcement relief, OSHA recognized that:
“Widespread business closures, restrictions on travel, limitations on group sizes, facility visitor prohibitions, and stay-at-home or shelter-in-place requirements” have strained the “availability of employees, consultants, or contractors who normally provide training, auditing, equipment inspections, testing, and other essential safety and industrial hygiene services,” as well as the opportunity for “employee participation in training even when trainers are available.” Similarly, “access to medical testing facilities may be limited or suspended.”
To address these very real challenges to achieving full compliance with various annual and other regulatory requirements, OSHA issued a temporary enforcement policy based on the agency’s enforcement discretion to relax enforcement of many existing regulatory obligations if complying with these obligations is not feasible or if doing so would pose an unreasonable risk of virus transmission among the employer’s workforce. Today’s enforcement policy applies broadly to employers in all industry sectors, takes effect immediately, and will remain in effect indefinitely throughout the current public health crisis.
The heart of the new enforcement policy is this:
Where an employer is unable to comply with OSHA standards that require annual or recurring audits, reviews, training, assessments, inspections, or testing because of the Coronavirus pandemic, AND the employer has made good faith attempts to comply, OSHA “shall take such efforts into strong consideration in determining whether to cite a violation.”
But where the employer cannot demonstrate any efforts to comply or why trying to comply would be more hazardous, a citation may issue as appropriate.
As part of OSHA’s assessment whether an employer engaged in good faith compliance efforts, OSHA will evaluate whether the employer Continue reading →
As concerns about the spread of COVID-19 grow, many employees working in essential businesses have sought to provide or require some form of respirator, face mask, or face covering for employees. Now, the CDC and White House are recommending that everyone wear some form of face covering any time in public to help reduce community spread of COVID-19. So, it is important to be aware of the OSHA guidelines and obligations regarding respirators and face coverings in the workplace. Depending on the type of face mask used, and whether it is required by the employer or permitted for voluntary use, there are certain requirements that employers must follow under OSHA’s respiratory protection standard, 29 C.F.R. 1910.134 and perhaps by other regulatory requirements.
As a starting point, let’s level-set the type of equipment we are talking about. N95 masks, although they are called masks and look like masks, are actually considered by OSHA to be respirators. Of course, anything more substantial than an N95 mask, such as half or full face tight-fitting face pieces with a filtering medium, are also considered by OSHA to be respirators. That type of equipment, whether it is required by the employer or permitted for voluntary use, triggers some requirements of OSHA’s respiratory protection standard that we will discuss below. Simple paper or cloth masks, like dental or non-N95 surgical masks, on the other hand, are not considered to be respirators, and do not trigger any requirements under 1910.134.
OSHA’s respiratory protection standard provides that a respirator shall be provided to each employee when such equipment is necessary to protect the health of such employee; i.e., if there are exposures to chemicals or other hazardous agents above permissible exposure limits. If a respirator is necessary because of exposure levels or simply because an employer mandates employees wear respirators, the employer must establish a written respiratory protection program that includes numerous elements such as fit testing, medical evaluations, procedures for proper use, storage and cleaning, and training.
OSHA’s initial Guidance for COVID-19 in the Workplace described four exposure risk categories (lower, medium, high, and very high) that workplaces and job tasks fall into, and the safety precautions that should be considered for each risk level, including what personal protective equipment (“PPE”) may be appropriate. The majority of workplaces, other than healthcare workers and those with regular close contact with known or suspected COVID-19 patients, fall into the lower or medium risk category. As of today, neither OSHA nor the CDC has issued guidance indicating that N95 respirators, or any other device considered to be a respirator, is required in lower- and medium-risk workplaces to protect employees from exposures to COVID-19.
However, that does not answer the question about what, if any, regulatory requirements there are if employers permit employees to voluntarily use N95s or other negative pressure filtering facepieces. OSHA most succinctly addressed which parts of 1910.134 apply to the voluntary use of N95 masks in a 2009 Interpretation Letter with this statement:
“If respiratory protection is not required and the employer did not advise the employee to use [an N95 dust mask], but the employee requested to use a dust mask, it would be considered voluntary use. Under these conditions, there would be no requirement to develop a written respiratory protection program; however, the employer would be responsible for providing the employee with a copy of Appendix D of 1910.134[, which outlines information for employees using respirators when not required under the standard].”
There are myriad workplace safety and health implications of the COVID-19 pandemic, but one OSHA regulatory obligation about which we have received countless questions in recent days is the requirement to record and/or report work-related cases COVID-19. Below are two FAQs that describe the relevant analysis in more detail.
Do I have to record a case of COVID-19 of an employee on my OSHA 300 Log?
“The illness is the common cold or flu (Note: contagious diseases such as tuberculosis, brucellosis, hepatitis A, or plague are considered work-related if the employee is infected at work).”
The rationale for the exemption is that the spread of the cold and flu are so pervasive that it is typically near impossible to identify the source of infection; i.e., there would be no reasonable way to determine whether it was more likely than not that the illness was caused by an exposure in the workplace.
Despite great sacrifice around the country, the scale of infection of COVID-19 is expected to soon spread like the flu and common cold, but OSHA has already expressed in guidance that COVID-19 is not subject to the cold/flu recordkeeping exemption:
“While 29 CFR 1904.5(b)(2)(viii) exempts recording of the common cold and flu, COVID-19 is a recordable illness when a worker is infected on the job.”
Industry has been advocating to OSHA to have the agency reconsider that initial declaration, but it does not appear OSHA will be exempting this novel strain of Coronavirus from the recordkeeping and reporting requirements any time soon. OSHA has been maintaining a Safety and Health Topics page for COVID-19 and separate Guidance on Preparing Workplaces for COVID-19 that it updates periodically as more information becomes available. In its most recent update to that page, OSHA appeared to double down on its decision that employers must spend time determining whether cases of COVID-19 are work-related. The guidance has been updated to be more explicit, with OSHA explaining that COVID-19 can be a recordable illness if the worker becomes infected while performing his or her work-related duties. Continue reading →
Since publishing our previous post last month, there have been a number of significant developments related to the 2019 Novel Coronavirus – now officially called “COVID-19.” Notably, during the week of February 23, 2020, the U.S. Centers for Disease Control and Prevention (“CDC”) reported community spread of the virus that causes COVID-19 in California, Oregon, and Washington. Community spread in Washington resulted in the first death in the U.S. from COVID-19, as well as the first reported case of COVID-19 in a health care worker, and the first potential outbreak in a long-term care facility.
Recent Developments and Federal Guidance
CDC has published an Interim Guidance for Businesses and Employers, cautioning employers to use the guidance to determine the risk of the Coronavirus, and not to use race or country of origin to make a determination. The guidance covers recommended strategies for employers to use, including: (1) actively encouraging sick employees to stay home; (2) separating sick employees; (3) emphasizing staying home when sick, respiratory etiquette and hand hygiene by all employees; (4) performing routine environmental cleaning; and (5) advising employees before traveling to consult CDC’s Traveler’s Health Notices and other CDC guidance. Additionally, the guidance states that if an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace, but maintain confidentiality as required by the Americans with Disabilities Act (“ADA”).
The 2019 Novel Coronavirus (“2019-nCoV” or “coronavirus”) is a respiratory illness that, with its spread to the United States, is raising important issues for employers. This guide explains the outbreak, the legal implications of it, and how employers should be responding now to employees who might have the virus, are caring for affected family members, or are otherwise concerned about their health in the workplace.
The Coronavirus Outbreak
First detected in Wuhan, Hubei Province, China, 2019-nCoV is a respiratory virus reportedly linked to a large outdoor seafood and animal market, suggesting animal-to-person spread. However, a growing number of patients reportedly have not had exposure to animal markets, indicating person-to-person spread is occurring. At this time, it is unclear how easily the virus is spreading between people. Symptoms of coronavirus include fever, cough, difficulty breathing, runny nose, headache, sore throat, and the general feeling of being unwell. The incubation period is approximately 14 days, during which time an individual may see no symptoms but may still be contagious. Continue reading →