By: Conn Maciel Carey’s National Labor and Employment Practice Group

The 2023-2024 Term of the United States Supreme Court will undoubtedly have far-reaching implications in a number of areas, but perhaps most significantly—at least for regular readers of the Employer Defense Report blog—with respect to the ability of federal agencies to promulgate and enforce regulations.  In a trio of recent decisions addressing federally mandated monitors in fishing vessels (Loper Bright v. Raimondo), civil fines imposed by the Securities and Exchange Commission (SEC v. Jarkesy) and payment network processing fees incurred by a truck stop (Corner Post, Inc. v. Board of Governors of the Federal Reserve System), the High Court sent shockwaves that will likely reverberate through all federal agencies and the regulated community alike for years to come.

The familiar framework in which these agencies have long operated, dating back to the mid-1980s when Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. was decided, appears to have been upended, or at least is now resting on shaky ground. And while these three decisions do not, by themselves, dismantle the administrative state, they have the potential to significantly reorder the familiar foundations upon which the Department of Labor (“DOL”) and dozens of other administrative agencies have operated.

Perhaps most importantly, these decisions appear to open the door wide for future challenges to vast swaths of the Code of Federal Regulations that currently govern how businesses and other regulated entities operate today and the venue where regulatory disputes are resolved. This article examines the implications of these cases and offers some educated speculation about the sea change that may occur at DOL and elsewhere over the next few years. Continue reading →

By Eric Conn, Mark Trapp, and Darius Rohani-Shukla

Like a bad April Fool’s joke, to advance the Biden Administration’s promise to be “the most labor friendly administration in history,” on April 1, 2024, OSHA published in the Federal Register its Final Worker Walkaround Representative Designation Process Rule (the “Worker Walkaround Rule”). The new Final Rule amends OSHA’s regulation at 29 CFR 1903.8(c) – Representatives of Employees and Employers – and will profoundly affect employers’ legal risk in future OSHA inspections when it goes into effect on May 31, 2024.

This Client Alert covers the controversial history of this rulemaking, from an Obama Era Letter of Interpretation and related legal challenges, through the flawed rulemaking process that OSHA followed to promulgate the new rule, to a detailed review of what the final rule says and means, along with analysis about the implications for employers, expected legal challenges to the Rule, and tips and strategies for managing OSHA inspections in this new world order.

Background

OSHA’s regulation governing participation in OSHA inspection by employee representatives, 29 C.F.R. 1903.8(c), was established in 1993, and it granted employees and their representatives the right to accompany OSHA compliance officers during the physical walkaround phase of workplace inspections.  In February 2013, the Obama-Biden Administration sought to give union representatives authority to participate in OSHA inspections at non-union workplaces by way of a formal Letter of Interpretation.  The interpretation letter responded to an inquiry by a labor union about inspection rights:

“May workers at a worksite without a collective bargaining agreement designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative?”

That question had to be considered within the context of the existing regulatory text of 29 C.F.R. 1903.8(c) at that time:

“The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.”

Notwithstanding pretty clear regulatorylimitations to third party inspection participation rights, including an expectation that any third party participant must have some type of technical credential (e.g., professional safety engineer or certified industrial hygiene), OSHA responded to the union’s interpretation request in the affirmative, explaining: Continue reading →

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 →

On November 7, 2023, Ohio voters passed a measure to legalize recreational marijuana. The state now joins 23 other states, two territories and the District of Columbia that have legalized marijuana for recreational use.

The approved ballot measure, commonly referred to as “Issue 2,” will allow adults over the age of 21 to buy, possess and grow marijuana as of December 7, 2023.  It is important to note that Issue 2 was a citizen-led initiative, which means lawmakers have the authority to change some of the language in the coming months.  Once finalized, the law will be captured in a new chapter of the Ohio Revised Code, Chapter 3780.

Ohio’s longstanding medical marijuana program will remain in effect.

What does this mean for the Ohio Employer?

The new law is not expected to significantly impact the workplace. Ohio employers are not required to permit or accommodate an employee’s use, possession, or distribution of recreational marijuana. Employers may still refuse to hire, discharge, discipline or otherwise take an adverse employment action against an individual because of that individual’s use, possession, or distribution of recreational marijuana. Employers may continue to establish and enforce drug testing policies, drug-free workplace policies, or zero-tolerance policies. Furthermore, if an employer terminates an employee because of that individual’s recreational marijuana use in violation of the employer’s policy, the employee will be considered to have been discharged for just cause. Continue reading →

By Eric J. Conn and Mark Trapp

We wanted to reach out to notify you about OSHA’s latest gift to organized labor.  Consistent with the Biden Administration’s promise to be “the most labor-friendly administration in history,” last week, OSHA revealed its Notice of Proposed Rulemaking about the “Worker Walkaround Representative Designation Process.”  Specifically, OSHA proposes to amend 29 CFR 1903.8(c), which is the regulation governing the rights of third parties to participate as employee representatives in OSHA inspections. The NPRM for OSHA’s Inspection Walkaround Rule would greatly expand when non-employees can accompany OSHA inspectors during physical inspections at your workplaces.  Specifically, the proposed rule would open the door to third parties, including specifically union representatives even at non-union workplaces, if the OSHA compliance officer determines the third party would positively impact the inspection.

History of Union Access to Workplaces During OSHA Inspections

As a reminder, The Obama/Biden Administration tried to contort the meaning of the Inspection Walkaround regulation by granting union representatives the ability to participate in OSHA inspections at non-union workplaces by way of a formal letter of interpretation in February 2013.  The interpretation letter responded to this inquiry by a labor union: “May workers at a worksite without a collective bargaining agreement designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative?”

OSHA has an existing regulation at 29 C.F.R. § 1903.8(c) that speaks to this issue, and it sets a strong bias against third party participation in OSHA inspections, unless the third party has some special skill (such as industrial hygienist or a language translator) that OSHA is lacking.  Here is the existing regulatory text: Continue reading →

By Kara M. Maciel and Ashley D. Mitchell

As COVID-19 infections continue to climb, the EEOC rolled back its guidance that COVID-19 viral screening tests conducted by employers is always permissive under the Americans with Disabilities Act (“ADA”). The updated guidance requires employers to weigh a host of factors and determine whether COVID-19 viral screening is “job-related and consistent with business necessity,” the traditional standard for determining compliance with the ADA.

The Factors Employers Should Consider:

Under the EEOC’s updated FAQs, an employer may, as a mandatory screening measure, administer a COVID-19 viral test, if the employer can show it is “job-related and consistent with business necessity.” In making this determination, employers should assess these factors:

• The level of community transmission
• The vaccination status of employees
• The accuracy and speed of processing different types of COVID-19 viral tests
• The degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations
• The ease of transmissibility of the current variant(s)
• The possible severity of illness from the current variant
• What types of contact employees may have with others in the workplace or elsewhere that they are required to work
• The potential effect on operations of an employee enters the workplace with COVID-19

It is worth noting, that employers still cannot require antibody testing before permitting employees to re-enter the workplace.

The State of the Pandemic:

Continue reading →