OSHA Issues Its COVID-19 Vaccination, Testing, and Face Coverings Emergency Temporary Standard

By Conn Maciel Carey LLP’s COVID-19 Task Force

At long last, OSHA has revealed its COVID-19 Vaccination and Testing emergency regulation.  The Federal Register site has updated to show the pre-publication package, which is set to run officially in the Federal Register tomorrow, November 5th.  The 490-page package includes the Preamble and economic analysis of the regulation, as well as the regulatory text.  The regulatory text begins on PDF page 473.  Also here is a Fact Sheet about the ETS issued simultaneously by the White House.

We are extremely pleased to report that the rule aligns very well with positions for which CMC’s Employers COVID-19 Prevention Coalition advocated to OSHA and OMB on the most significant topics, like the responsibility for the cost of COVID-19 testing and a delayed implementation date, as well as very narrow record-preservation requirements, grandfathering of prior vaccine-verification efforts, and other elements. OSHA and the White House clearly listened to our views and the compelling rational we put forward for these positions, making the rule a much better, more effective and less burdensome one for employers.

Conn Maciel Carey’s COVID-19 Task Force will be conducting a webinar about the ETS on Wednesday, November 10th at 1:00 PM ET.Here is a link to register for that program.

In the meantime, below is a detailed summary of the rule:

What is the stated purpose of the regulation?

The ETS is “intended to establish minimum vaccination, vaccination verification, face covering, and testing requirements to address the grave danger of COVID-19 in the workplace, and to preempt inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face covering, or testing, regardless of the number of employees.”

Who is covered?

As the president signaled in his announcement and action plan from September 9, the ETS applies only to employers with 100 or more employees, and the rule does make it explicit that the way you count those employees is on a company–wide basis, not establishment-by-establishment.

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Shift in Labor Board’s Composition Portends Likely Shift in Policy at NLRB

By Kara M. Maciel and Mark M. Trapp

Last week, National Labor Relations Board (“NLRB”) Member William Emanuel’s term expired. His Democrat replacement, David Prouty, who was confirmed by the Senate on July 28 (along with another Democrat nominee, Gwynne Wilcox), ensures a 3-2 Democrat majority at the agency for the first time in almost four years. As usually occurs when there is a change in the composition and control of the Board, this shift portends a shift in policy.

Labor,Law,Books,With,A,Judges,Gavel,On,Desk,InA recent labor and employment conference held in Big Sky, Montana and attended by many current and former government officials provided a glimpse into several issues that will undoubtedly be subject to reexamination as the new Democrat majority takes control. One interesting panel featured current (Republican) Member John Ring and former (Democrat) Chair Wilma Liebman, moderated by former (Republican) Chair Philip Miscimarra.

During her remarks, former Chair Liebman noted three cases/issues she declared “need to be reversed” by the new Democrat majority. Liebman first noted PCC Structurals, Inc., a 2017 Board decision that overruled a prior 2011 ruling by the former Democrat majority (Specialty Healthcare) and reinstated the traditional community of interest standard for determining an appropriate bargaining unit in union representation cases.

A return to the Specialty Healthcare standard would make it easier for unions to narrow the scope of proposed bargaining units, which can make a significant difference in union organizing efforts. In general, according to one recent review by Bloomberg Law, Continue reading

Don’t “Default” to the Fund’s View of Withdrawal Liability

A recent case out of the U.S. District Court for the Northern District of Illinois provides an interesting window into how opportunistic pension funds attempt, and sometimes succeed, in taking advantage of employers and perhaps recovering more than the amount to which they are entitled under the Multiemployer Pension Plan Amendments Act (“MPPAA”).

Background

In United Food and Commercial Workers International Union-Industry Pension Fund v. Gordon, Case Number 1:21-cv-01585, the UFCW pension fund declared the withdrawn employer to be in “default” and accelerated the outstanding amount of withdrawal liability it had previously assessed. In a complaint brought against the owner of a now-defunct Connecticut food distributor, the fund alleged that it had previously assessed the withdrawn employer $2,350,762.00 in withdrawal liability as a result of its shutting down in the summer of 2020. Of course, under the MPPAA’s 20-year payment cap, withdrawal liability is limited to no more than 20 annual payments, calculated pursuant to the statute. Thus, the fund prepared an installment schedule which demanded the withdrawal liability be paid in 80 quarterly installments of $11,216.00. One does not have to be very good at math to realize that this schedule limited the total withdrawal liability to $897,280.00, payable over twenty years.

The complaint further alleged that shortly after receipt of the assessment the owner requested a waiver of the assessed withdrawal liability because the company no longer existed and had no assets. This request, and the owner’s subsequent failure to make the first scheduled payment, caused the fund to declare the employer in default. Finally, the complaint alleged that the employer had failed to either request review or initiate arbitration, “foreclosing any challenge to the Fund’s assessment and fixing the amounts due.”

However, rather than merely claim entitlement to immediate payment of the “outstanding” 80 quarterly payments pursuant to its assessed installment schedule, the fund asserted the right to collect the more than $2.3 million in (what must have been the) total unfunded vested benefits attributable to the withdrawn employer, as well as a 20% penalty, interest, and attorneys’ fees. Thereafter, the parties engaged in settlement talks, which ultimately resulted in the court signing off on a consent judgment in which the employer agreed to pay $1,454,500.00, approximately half the total amounts claimed by the fund, but well above the amount due pursuant to the 20-year schedule of payments.

This case appears to follow a trend in recent years in which funds have become more aggressive and creative in using the concept of statutory default to their advantage. In fact, as the case illustrates, some funds take the position that in a default situation they can ignore the MPPAA’s 20-year payment cap on withdrawal liability payments. A few key points (and there are others) should equip withdrawn employers to push back against this trend.

Discussion

First, withdrawal liability must be assessed and paid in level installments for a period not exceeding twenty years. The MPPAA states that a withdrawn employer must pay its withdrawal liability “over the period of years necessary to amortize the amount in level annual payments” and “[i]n any case in which the amortization period … exceeds 20 years, the employer’s liability shall be limited to the first 20 annual payments[.]”[i] The level annual payments “shall be payable in 4 equal installments due quarterly, or at other intervals specified by plan rules.”[ii] Moreover, to provide proper notice under the MPPAA, a fund’s withdrawal liability assessment must include the “schedule for liability payments” and “demand payment in accordance with the schedule.”[iii] Once assessed, an employer’s withdrawal liability “shall be payable in accordance with the schedule set forth” by the fund.[iv]

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President-Elect Biden Announces Boston Mayor Marty Walsh as his Choice for Secretary of Labor

By: Kara M. Maciel, Eric J. Conn, and Beeta B. Lashkari

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.Picture1

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. 

Announcing Conn Maciel Carey’s 2021 Labor and Employment Webinar Series

2021 Labor and Employment Webinar Series

The legal landscape facing employers seems as difficult to navigate as it has ever been.  Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or  business owner.  Change appears to be the one constant.  As President Trump’s Administration comes to an end, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC.  At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.  This complimentary webinar series will focus on a host of the most challenging and timely issues facing employers, examining past trends and looking ahead at the issues most likely to arise.

Conn Maciel Carey’s complimentary 2021 Labor and Employment Webinar Series, which includes (at least) monthly programs put on by attorneys in the firm’s national Labor and Employment Practice, is designed to give employers insight into legal labor and employment developments.

​To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2021 series, click here to send us an email request, and we will register you. If you missed any of our past programs from our annual Labor and Employment Webinar Series, click here to subscribe to our YouTube channel to access those webinars.


2021 Labor & Employment Webinar Series – Program Schedule

California Employment Law Update for 2021

Wednesday, January 20th

Marijuana, Drug Testing and Background Checks

Tuesday, July 13th

COVID-19 Vaccine: What Employers Need to Know

Thursday, February 11th

Employee Misconduct Defense & Employment Law

Wednesday, August 11th

Employment Law Update in D.C, MD, VA and Illinois

Wednesday, March 24th

Employee Handbooks, Training and Internal Audits

Tuesday, September 21st

Withdrawal Liability Pensions

Wednesday, April 14th

NLRB Update

Tuesday, October 19th

ADA Website Compliance Issues –  Best Strategies for Employers

Tuesday, May 18th

Avoiding Common Pitfalls: Non-Compete, Trade Secrets and More!

Wednesday, November 10th

What to Expect from DOL Under the Biden Admin.

Wednesday, June 16th

Recap of Year One of the Biden Administration

Tuesday, December 14th

   

See below for the full schedule with program descriptions, dates, times and links to register for each webinar event.

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[Client Alert] New California Employment Laws for 2021 Will Leave Their Mark

By Andrew SommerFred Walter, and Megan Shaked

2020 has been another banner year for California employment laws, with legislation and Cal/OSHA rulemaking associated with COVID-19 prevention and reporting taking center stage.  In our annual update of new employment laws impacting California private sector employers, we lead off with California’s COVID-19 related laws, given their far-reaching impact on the state’s workforce during the pandemic as employers continue to implement measures to prevent the spread of COVID-19 in the workplace.  We have also addressed other substantive legislative developments, particularly in the areas of wage and hour law and reporting of employee pay data.  Unless otherwise indicated, these new laws will take effect on January 1, 2021.

COVID-19 Related Rulemaking and Legislation

Temporary Emergency COVID-19 Prevention Rule Not to be outdone by Virginia OSHA, Oregon OSHA or Michigan OSHA, Cal/OSHA adopted an onerous COVID-19 specific temporary emergency regulation effective November 30, 2020.  Below is a detailed summary of how we got here, as well as an outline of what the rule requires.

On November 19, 2020, the California’s Occupational Safety and Health Standards Board (Standards Board) voted unanimously to adopt an Emergency COVID-19 Prevention Rule following a contentious public hearing with over 500 participants in attendance (albeit virtually).  The Emergency Rule was then presented to California’s Office of Administrative Law for approval and publication.  The Rule brings with it a combination of requirements overlapping with and duplicative of already-existing state and county requirements applicable to employers, as well as a number of new and, in some cases, very burdensome compliance obligations.

The Standards Board’s emergency rulemaking was triggered last May with the submission of a Petition for an emergency rulemaking filed by worker advocacy group WorkSafe and National Lawyers’ Guild, Labor & Employment Committee.  The Petition requested the Board amend Title 8 standards to create two new regulations Continue reading

Senate Confirms Two to NLRB, Ensuring Balance and Stability for Foreseeable Future

After passing out of committee earlier this summer, two nominees to the National Labor Relations Board – one Republican, one Democrat – were recently confirmed by the full Senate.gavel

Even though both nominees have Board experience, the confirmation votes reflected the ongoing partisan contention that has in recent years surrounded the labor agency, with Republican nominee Marvin Kaplan confirmed by a vote of 52-46 without a single Democrat voting in support, while just seven Republicans crossed over to confirm Lauren McFerran, who was confirmed 53-42. Kaplan is currently serving on the Board, while McFerran was previously confirmed in 2014 and served until last December, when her five-year term expired.

Traditionally, three board seats are held by members of the president’s political party while two are set aside for the opposition party. Thus, last week’s confirmations Continue reading

Bargaining in a Time of Crisis

The COVID-19 pandemic, and the unprecedented response thereto by various layers of government has caused many, if not most businesses to rearrange their hours or operations, lay off employees or even to cease doing business altogether. Given this seemingly unprecedented situation, many unionized employers may wonder what duty they have to bargain over specific changes to their ways of doing business.NLRB Memo

General Counsel Peter Robb recently provided some helpful guidance summarizing prior NLRB case law on this timely topic. The first portion of Robb’s memo (GC Memo 20-04) summarizes various Board decisions touching on an employer’s duty to bargain during public emergency situations, such as hurricanes, 9/11 and other emergencies.

By way of background, because an employer’s decision to lay off bargaining unit employees is a mandatory subject of bargaining, an employer is generally obligated to bargain with an incumbent union with respect to both the decision to lay off and the effects of that decision. However, an exception to that rule exists if an employer can demonstrate that economic exigencies compel prompt action. Although the Board has consistently maintained a narrow view of this exception, unforeseen extraordinary events which have a major economic effect may fit within it.

For example, in Port Printing & Specialties, 351 NLRB 1269 (2007), the Board ruled Continue reading

NLRB Finalizes Joint Employer Rule

Joint EmployerOn February 26, 2020, the National Labor Relations Board (“NLRB”) published its final joint employer rule in the Federal Register, which tightens the test used to analyze whether workers are jointly employed by affiliated businesses. The final rule is intended to roll-back the stricter Obama-era standard that business interests have longed to overturn.

History of Joint Employer Rule

Under longstanding NLRB precedent, two employers could be joint employers if they shared or codetermined matters governing the employees’ essential terms and conditions of employment. Until 2015, to be a joint employer, a business had to exercise “direct and immediate” control over these employment matters

Then, the Obama-era NLRB overruled the old standard in its decision in Browning-Ferris, and substantially relaxed the standards for proving joint Continue reading

NLRB General Counsel’s Comment Indicates Expected Restoration of Pro-Employer Precedent

During a recent conference at New York University, NLRB General Counsel, Peter Robb, hinted at the forthcoming restoration of more than fifty years of precedent allowing employers to cease withholding union dues after the expiration of the collective bargaining agreement containing the so-called “dues check-off” provision.

shutterstock_gavel.jpgAs reported by Law360, Robb referred to the 2015 Obama-era decision overturning that precedent as “misguided,” and stated further: “I think unless there’s clear language that the dues check-off should continue, it shouldn’t.” Prior to that 2015 decision, the Board had, since 1962, consistently held that dues check-off provisions, which implement union security provisions by providing for the automatic deduction of union dues, could be cancelled by employers upon contract expiration. See Bethlehem Steel Co., 136 NLRB 1500 (1962).

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