Status Update: Maryland Essential Workers’ Protection Act

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. 

Employment Law Update in D.C., Maryland, Virginia, and Illinois [Webinar Recording]

On March 24th, Daniel C. Deacon and Ashley D. Mitchell presented a webinar regarding an Employment Law Update in D.C., Maryland, Virginia, and Illinois.

CaptureThe District of Columbia, Maryland, and Virginia have enacted or are considering a host of changes that employers need to keep track of in 2021, such as revisions to discrimination laws, wage and hour laws, labor laws, and workplace safety and health regulations.

Illinois employers should be aware of an already existing minimum wage increase that takes effect in 2021, and there are a host of laws that took effect at various points in 2020. Indeed, in 2020, employers were faced with an expanded Illinois Human Rights Act that applies beyond the physical workplace, covers non-employee contractors and protects against discrimination based on perceived (in addition to actual) protected status. There were also special new rules enacted that apply to restaurants, bars and coffee shops, as well as disclosure requirements that will necessitate notifying the Department of Human Rights of adverse judgments in employment discrimination or harassment matters. Finally, the Victims’ Economic Security and Safety Act was amended and the signed “trailer bill” has clarified what employers should do if they wish to prohibit the use of marijuana as part of their workplace drug and alcohol policy.

Participants in this webinar learned: Continue reading

Employment Law Update in D.C., Maryland, Virginia, and Illinois [Webinar]

On Wednesday, March 24th at 1:00 P.M. EST, join Daniel C. Deacon and Ashley D. Mitchell for a webinar regarding an Employment Law Update in D.C., Maryland, Virginia, and Illinois.

CaptureThe District of Columbia, Maryland, and Virginia have enacted or are considering a host of changes that employers need to keep track of in 2021, such as revisions to discrimination laws, wage and hour laws, labor laws, and workplace safety and health regulations.

Illinois employers should be aware of an already existing minimum wage increase that takes effect in 2021, and there are a host of laws that took effect at various points in 2020. Indeed, in 2020, employers were faced with an expanded Illinois Human Rights Act that applies beyond the physical workplace, covers non-employee contractors and protects against discrimination based on perceived (in addition to actual) protected status. There were also special new rules enacted that apply to restaurants, bars and coffee shops, as well as disclosure requirements that will necessitate notifying the Department of Human Rights of adverse judgments in employment discrimination or harassment matters. Finally, the Victims’ Economic Security and Safety Act was amended and the signed “trailer bill” has clarified what employers should do if they wish to prohibit the use of marijuana as part of their workplace drug and alcohol policy.

Participants in this webinar will learn: Continue reading

What Employers Need to Know About COVID-19 Vaccines [Webinar Recording]

On February 11th, Kara M. MacielFern Fleischer-Daves and Lindsay A. DiSalvo presented a webinar regarding What Employers Need to Know About COVID-19 Vaccine.Capture

In December 2020, two COVID-19 vaccines received emergency use authorization from the US government and several more vaccines may be approved in the coming months. In the initial phases, front-line health care workers, nursing home residents, persons over 75 years of age, and others with underlying health conditions were given first priority. Many employers want to have their “essential workers” or all of their workers vaccinated as soon as possible.

During this webinar, Conn Maciel Carey’s OSHA and Labor & Employment attorneys discussed these important questions:

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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

What Employers Need to Know About Mandatory COVID-19 Vaccines

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.

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New City Ordinance Prevents Retaliation Against Employees Who Obey COVID-19 Governmental Orders – Yet Another Reason to Ensure Your Workplace Is Following All COVID-19 Recommendations

By: Mark M. Trapp and Aaron R. Gelb

Recently, the Chicago City Council approved for immediate implementation a new ordinance prohibiting employers from taking adverse action against an employee obeying orders related to COVID-19 issued by the Mayor of Chicago, Governor of Illinois or Chicago Department of Public Health. The ordinance also encompasses employees staying at home to minimize transmission or while experiencing symptoms of the virus.Picture1

The ordinance applies to “Covered Employees,” who perform at least two hours of work in a two-week period for an employer while physically present in the geographic boundaries of the City of Chicago.

In addition to employees complying with governmental orders, the ordinance prohibits adverse action by an employer against any “covered employee” who, in compliance with the directive of a treating healthcare provider, remains at home while experiencing COVID-19 symptoms or obeys an isolation or quarantine order. The ordinance also Continue reading

COVID-19 OSHA Recordkeeping and Reporting: New OSHA Guidance Reverses Course on Work-Relatedness

By Conn Maciel Carey’s COVID-19 Task Force

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.

The Cold and Flu Exemption to OSHA Recordkeeping

By regulation, the common cold and flu are exempt from OSHA’s recordkeeping and reporting requirements (29 CFR Part 1904.5(b)(2)(viii)):

“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