Conn Maciel Carey LLP with Special Guest EEOC Commissioner Keith Sonderling
On May 12, 2022, the EEOC issued a Technical Assistance (“TA”) document entitled, “The Americans with Disabilities Act (“ADA”) and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees” focused on providing “clarity to the public regarding existing requirements” under the ADA and agency policy. This is the first guidance document the EEOC has issued regarding the use of Artificial Intelligence (“AI”) in employment decision-making since announcing its Al Initiative in October 2021.
It’s no secret that more employers have turned to AI to enhance their work processes over the years. An estimated 83% of employers have Continue reading →
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.
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 →
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 →
As states across the country begin to loosen or lift stay-at-home and shutdown orders, many workplaces that had been idled, have just begun to or will soon resume operations. Many states and localities are setting as a precondition for reopening, a requirement that they develop and implement a written, site-specific COVID-19 Exposure Control and Response Plan.
Regardless of any state or local requirement to develop such a plan, any business that operates without an Exposure Control Plan will be potentially exposed to a number of legal or business risks, such as an OSHA citation, being shutdown by a state or local health department, and/or becoming a target for a wrongful death action brought by families of employees, temporary workers, customers, vendors and/or guests. They should also plan to deal with a workforce that is scared and anxious about the company’s response to the COVID-19 pandemic, which may result in employees refusing to work (which would disrupt and complicate scheduling) and/or making regular and frequent complaints to OSHA about the purported unchecked hazard in your workplace. Responding to these complaints will take time and cost money, distracting your business from its mission. Retaliation claims under Section 11(c) of the OSH Act is another foreseeable consequence of a scared workforce. Without an Exposure Control Plan in place, the legal vulnerabilities will be real and are potentially significant.
We focus below on five key reasons employers must develop a written COVID-19 Exposure Control and Response Plan. But first, what is an exposure control plan?
What is an Exposure Control and Response Plan?
When OSHA identifies a serious safety or health hazard, it usually requires employers to develop a written program including the measures employers will take to counteract the hazard. For example, OSHA requires written lockout/tagout programs to protect against hazardous energy; respiratory protection programs and process safety management programs to protect against hazardous chemical exposures; and emergency action plans to protect against the risk of fires in the workpalce. Simply put, a COVID-19 Exposure Control Plan is a written safety plan outlining how your workplace will prevent the spread of COVID-19, covering issues such as:
How you will facilitate social distancing in your workplace;
What engineering or administrative controls you will implement when workers cannot remain at least 6′ apart;
The steps that you will take to ensure employees comply with personal hygiene practices;
What types of protective equipment you will provide for various tasks and operations;
What enhanced housekeeping protocols will be implemented for frequently touched surfaces, tools, and machines;
What you are doing to prevent/screen sick workers from entering the workplace;
How you will respond to confirmed or suspected cases among your workforce; and
How you will communicate with and train your workforce on these mitigation measures.
Five Reasons to Develop a Written COVID-19 Exposure Control Plan
First, whether you have remained open because you are an essential business or plan to reopen soon, you may soon find yourself required to Continue reading →
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.” This 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.
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].”
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.
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 →
The U.S. Equal Employment Opportunity Commission (EEOC) has published guidance for employers on disability-related concerns in light of COVID-19. The EEOC enforces workplace anti-discrimination laws including the requirements for reasonable accommodations and rules about medical examinations and inquiries under the Americans with Disabilities Act (ADA). In a post What You Should Know About the ADA, the Rehabilitation Act and the Coronavirus, the EEOC has made clear that while the ADA rules continue to apply, they “do not interfere with or prevent employers from following the guidelines and suggestions made by the [Centers for Disease Control and Prevention (CDC)] about steps employers should take regarding the Coronavirus.”
Specifically, the CDC has issued Interim Guidance for Businesses and Employers, which provides various recommendations including that employers “actively encourage” sick employees to stay home, perform routine environmental cleaning, emphasize that employees use respiratory etiquette and hand hygiene, and advise employees before traveling to take certain steps.
Notably, the Interim Guidance provides the following recommendations, which Continue reading →
There are significant developments happening every day (and virtually every hour) relating to the Coronavirus (COVID-19). While we cannot predict all the effects of this virus, we can say that first and foremost, employers across all industries need to focus on the safety of their employees, customers, and guests. Thus, whether your employees are working at your company’s office or from home, employers must monitor guidance from federal, state, and local public health experts and implement recommendations or orders designed to maintain a safe work environment. To that end, please see our blog post from last week providing advice and FAQ’s regarding how employers can respond to COVID-19.
In addition to so many other issues, COVID-19 poses unique wage and hour and human resource challenges. Indeed, Since our last post, we have received dozens of wage and hour related questions from clients resulting from this virus. Although no employer could have full been prepared for the scope of this pandemic, it is important to be aware of both federal and state laws that apply to situations such as this. The best protection is to have a policies and procedures in place in advance (or if that ship has already sailed, to quickly create some policies and procedures) to ensure your employees are paid and well taken care of during this unprecedented time. Our guidance can be used by employers in navigating through the legal and business implications created by this pandemic. In addition, the information may be applicable to other future crises or disasters.
Therefore, please filed below answers to the most frequently asked questions we have received: