Conn Maciel Carey Expands OSHA Practice by Addition of Legendary Cal/OSHA Specialist Attorney Fred Walter

Conn Maciel Carey is pleased to announce the addition to its national Workplace Safety Practice of renowned Cal/OSHA attorney Fred Walter.

Mr. Walter has spent more than 35 years working with employers to defend OSHA and Cal/OSHA citations, as well as developing and auditing safety programs to answer regulatory mandates. He also represents employers in defense of “serious and willful misconduct” claims and provides crisis management services.  Fred WalterFor the past twelve years, Mr. Walter was the Managing Partner of a premier Cal/OSHA defense firm, Walter & Prince LLP.

“Fred is a true legend of the OSHA Bar.  The opportunity to align with him and enable our young lawyers, and really all of us, to benefit from his experience, knowledge, and mentorship, will help solidify Conn Maciel Carey as the premier workplace safety law firm in the country,” said Eric J. Conn, Chair of the firm’s Workplace Safety Practice Group.  “In addition to bringing decades of experience and knowledge, it is Fred’s creative approach and focus on consensus-building, rather than bridge-burning, that make him such a great fit with our team,” Eric added.

Mr. Walter’s diverse clientele includes employers in all of the construction trades, manufacturing, warehousing, freight handling, logging, farm labor contracting, food processing, and wineries.  In his over three decades of practice, Fred has acquired a wealth of knowledge of Cal/OSHA regulations and enforcement and developed unique relationships and established credibility with the players within Cal/OSHA and among its Counsel.

“It is clear from talking with Fred that he loves the work he does and cares about the people for and with whom he does it.  And he brings such a depth of experience with Cal/OSHA defense and counseling, as well as unique relationships with the players at Cal/OSHA, that will enhance the workplace safety legal services we provide to employers across all industries,” said Andrew J. Sommer, Managing Partner of the firm’s California practice.

Fred will be based out of the firm’s San Francisco office, and will help assist the firm’s clients up and down the West Coast.

“I have admired Eric Conn for years and have been impressed with the firm that he, Kara and Bryan have built,” said Mr. Walter. “They practice with integrity and a lot of common sense. I work hard to find practical and efficient solutions to my clients’ problems, and I know they do as well. I look forward to continuing to support my clients with assistance from them and their deep bench of OSHA specialist attorneys across the country.”

Here is a link to a press release issued by the Firm about this exciting development.

Key Employment Considerations When Resuming or Increasing Business Operations

shutterstock_532208329Many states are beginning to re-open their economies, and employers are resuming or increasing business operations in some fashion.  As employers make this transition, there are several key employment considerations that employers should pay close attention to.  Below is an overview of some of the topics employers should carefully analyze when reopening or increasing business operations.

  1. Exempt and Non-Exempt Employee Classification Issues

As employers begin to ramp up business or begin plans to do so, employers should carefully evaluate whether exempt employees performing a majority of work on non-exempt tasks still meet the administrative exemption Continue reading

[Webinar] Returning to Work Strategies: Employment and Workplace Safety Implications of COVID-19

On Thursday, May 7, 2020 from 2 PM – 3:30 PM Eastern, join Conn Maciel Carey LLP’s COVID-19 Taskforce for a complimentary webinar: Returning to Work Strategies – Employment and Workplace Safety Implications of COVID-19.

May 7 Capture

As the federal government and states begin to relax shutdown and stay-at-home orders and non-essential businesses begin to resume or ramp-up operations, employers need to plan for the safe and healthy return of their employees, customers, and guests back into the workplace.  During this webinar, participants will hear from members of Conn Maciel Carey’s COVID-19 Task Force as they discuss how to develop and implement a Return-to-Work Plan.

Participants will learn about the following:

  • How to recall furloughed employees to qualify for loan forgiveness under the Paycheck Protection Program
  • New federal paid leave laws and their application to employees returning from furlough
  • Navigating the FLSA requirements for exempt employees who may be performing non-exempt work as work ramps up
  • Preventing third-party interference from labor unions and organizing attempts
  • COVID-19 Infection/Exposure Control Plans
  • Pre-shift Health Screening Protocols and best practices (e.g., temperature checks and health/symptom questionnaires)
  • Effective engineering and administrative controls to mitigate potential exposures to COVID-19 in the workplace
  • Decisions about Personal Protective Equipment, Respirators, Face Masks, and Face Coverings
  • Recording and Reporting to OSHA and workforce about confirmed employee COVID-19 infections
  • “Lessons learned” from the first wave of COVID-19 furloughs and how to prepare for the potential second wave in the Fall

Click here to register for the May 7th webinar.  This will be the 5th webinar event in Conn Maciel Carey’s 2020 Labor and Employment Webinar Series.  Click here to view our full schedule, detailed program descriptions, and individual registration pages for all of the webinars in the 2020 Labor and Employment Webinar Series.  To register for all of Conn Maciel Carey’s Labor and Employment webinars, click here to send an email request to info@connmaciel.com 2020 Employment Webinar Series Banner Standalone, and we will get you automatically registered.  If you missed any of our past webinars in our annual Labor and Employment Webinar Series, here is a link to Conn Maciel Carey’s webinar archive.

[Webinar] Returning to Work Strategies: Employment and Workplace Safety Implications of COVID-19

On Thursday, May 7, 2020 from 2 PM – 3:30 PM Eastern, join Conn Maciel Carey LLP’s COVID-19 Taskforce for a complimentary webinar: Returning to Work Strategies – Employment and Workplace Safety Implications of COVID-19.

May 7 Capture

As the federal government and states begin to relax shutdown and stay-at-home orders and non-essential businesses begin to resume or ramp-up operations, employers need to plan for the safe and healthy return of their employees, customers, and guests back into the workplace.  During this webinar, participants will hear from members of Conn Maciel Carey’s COVID-19 Task Force as they discuss how to develop and implement a Return-to-Work Plan.

Participants will learn about the following: Continue reading

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

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

[Webinar] Impact of the #MeToo Movement: Changes in Enforcement and State Law

On Wednesday, April 22, 2020 at 1:00 PM Eastern, Kara M. Maciel and Lindsay A. DiSalvo will present a complimentary webinar regarding “Impact of the #MeToo Movement: Changes in Enforcement and State Law.”

Over the past three years, we have seen the continued momentum of the #MeToo shutterstock_metooMovement and its impacts – beyond the immediate and direct effects of the specific allegations – have taken shape. Back in 2017, the #MeToo Movement was invigorated by a slew of high-profile allegations of sexual harassment and assault and tens of thousands of people, largely women, voicing their own experiences on social media using the hashtag “Metoo.” In the wake of the prominence of the Movement and its influence on the discourse surrounding issues of harassment, the states and the federal government have taken action to tackle what they see as the underlying issues that foster harassment. And one of the main areas of focus has been preventing and addressing sexual harassment in the work environment.

Indeed, several states, such as New York and Illinois, have passed laws requiring employers to implement such things as sexual harassment prevention policies and training at their facilities – some of the laws even specifically describe what those policies and/or training’s must contain. Other states have also implemented such restrictions as bans on including sexual harassment claims in mandatory arbitration agreements. Simultaneously, we have seen an uptick in the number of sexual harassment charges filed and pursued by the Equal Employment Opportunity Commission (“EEOC”). Thus, it is essential for employers to understand the legal requirements and restrictions surrounding this issue to ensure compliance with federal and state law.

Participants will learn about the following: Continue reading

BREAKING: OSHA Issues Enforcement Policy Relaxing Regulatory Compliance During the COVID-19 Crisis

By Conn Maciel Carey’s COVID-19 Task Force

The Coronavirus pandemic has created unprecedented challenges for employers that are attempting to meet OSHA regulatory obligations – such as annual training, auditing, testing, medical surveillance requirements, and the like – without creating greater risk of exposure to COVID-19 for their employees.  This evening (April 16, 2020), OSHA issued a new Enforcement Memorandum acknowledging that reality.  The enforcement memo, entitled “Discretion in Enforcement when Considering an Employer’s Good Faith Efforts During the Coronavirus Disease 2019 (COVID-19) Pandemic,” provides enforcement relief for employers who exercise good faith in the context of this extraordinary health crisis.

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

COVID-19 OSHA FAQs about Respirators, Face Masks, and Face Coverings

By Conn Maciel Carey’s COVID-19 Task Force

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].”

The voluntary use of N95 masks by employees does not require 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

COVID-19 FAQs for Employers – Answers to Frequently Asked Employment Law and OSHA Regulatory Questions

As employers around the country grapple with the employment law and workplace safety regulatory implications of the 2019 Novel Coronavirus – now called “COVID-19,” the Labor & Employment Law and OSHA specialist attorneys at Conn Maciel Carey LLP have been fielding countless questions and helping our clients and friends in industry manage this pandemic.

To aid employers, we have created an extensive index of frequently asked questions with our answers about HR, employment law, and OSHA regulatory related developments and guidance.  Here are the categories addressed in the FAQs tool:

COVID FAQs Image

As this situation continues to evolve, we will Continue reading