Labor & Employment Law Update

OSHA has been particularly busy and aggressive lately, making good on Biden Administration promises and talking points—hiring more inspectors, appointing new administrators, conducting more inspections, aggressively issuing citations, adopting and expanding emphasis programs, reviving old rules, and expanding existing rules.

The U.S. Department of Labor has announced a notice of proposed rulemaking to clarify the personal protective equipment (PPE) standard for the construction industry. In its press release, the Department argued that the current standard does not state clearly that PPE must fit each affected employee properly. The proposed change would clarify that PPE must fit each employee properly to protect them from occupational hazards. The Department went on to state that there have long been safety concerns regarding the failure of standard-sized PPE to protect physically smaller construction workers (especially women) properly.

Resurrecting a rule that it attempted—but failed—to implement years ago, the Department of Labor has announced a new rule that will require certain employers in high-hazard industries to electronically submit injury and illness information. The rule applies to establishments with 100 or more employees in certain high-hazard industries including construction, manufacturing, agriculture, transportation, warehousing, and utilities.

OSHA is launching a new three-year initiative it claims is intended to prevent workplace hazards in warehouses, processing facilities, distribution centers, and high-risk retail establishments.  High-risk retail establishments covered by the program include:

To strengthen enforcement and improve compliance with workplace safety standards and reduce worker injuries and illnesses, the U.S. Department of Labor is expanding the criteria for placement in the Occupational Safety and Health Administration’s Severe Violator Enforcement Program (“SVEP”).

A 2019 study conducted by the U.S. Department of labor found that food production workers in Illinois and Ohio had significantly higher injury rates than the overall rates for manufacturers in the private sector. To try and correct this trend, OSHA started the Local Emphasis Program focused on more than 1,400 manufacturing facilities in both Illinois and Ohio.

In a 6-3 decision just released, the Supreme Court blocked OSHA’s Emergency COVID-19 Vaccination and Testing Standard (“ETS”) from taking effect, which required employers with one hundred or more employees to conduct weekly testing of all unvaccinated employees, amongst other things. 

While procedurally, the ruling merely reinstituted the stay of the ETS, the ruling signaled the final outcome for the ETS, finding more broadly that the ETS went beyond OSHA’s authority. The Court stated: “[a]lthough Congress has indisputably given OSHA the power to regulate ...

In September, the Biden Administration directed OSHA to issue an Emergency Temporary Standard (“ETS”) requiring employers with one hundred or more employees to ensure their employees are either fully vaccinated or tested for COVID-19 on a weekly basis.  That promised ETS was published on November 5, 2021, and linked here are OSHA’s summary of the ETS and the FAQ’s relating to the ETS.   

One week later, on November 12, 2021, the 5^th Circuit Court of Appeals issuing a scathing opinion staying the enforcement of the ETS.  In the week that followed, legal challenges were ...

In an aggressive effort to pressure employers into complying with the Biden Administration’s promised vaccine mandate, House Democrats buried an approximate five-fold increase to OSHA fines in their $3.5 trillion budget reconciliation bill, seeking to increase the maximum fines for a “serious” citations from $13,653 to $70,000 and for “repeat” and “willful” citations from $136,530 to $700,000. The incredible fine increase stems from OSHA’s concern that employers are ignoring its COVID-19 guidance and standards because the risk of non-compliance is ...

On June 10, OSHA issued its long-promised COVID-19 Emergency Temporary Standard (ETS).  Surprisingly, the ETS relates only to the health care industry, but updated guidance has been issued for all other industries, as outlined below:
 
Non-Health Care Industries: For non-health care industries, including manufacturing and construction, OSHA only intends to continue issue guidance relating to COVID-19, including updated guidance on complying with the CDC’s latest recommendations. Notably, the updated guidance exempts fully vaccinated workers from wearing ...

In response to an executive order signed by President Biden, OSHA recently issued updated COVID-19 guidance recommending that all employers adopt a formal COVID-19 prevention plan, incorporating the following activities and elements:

• Conducting a hazard assessment relating to COVID-19 exposure;
• Identifying control measures to limit the spread of COVID-19 (such as distancing, masks, barriers, work-from-home, staggered shifts, etc.);
• Adopting policies that encourage sick workers to stay home and not come into work;
• Communicating and training employees on the ...

After the Workers’ Compensation Commission withdrew its proposed Emergency Rule declaring that any employee in an “essential industry” contracting COVID-19 will be rebuttably presumed to have contracted COVID-19 at work, the legislature and business groups met and worked through a proposed amendment to the Workers’ Compensation Act addressing the issue.

Under the proposed amendment, which appears set to pass, first responders, frontline workers, and most “essential employees” will be rebuttably presumed to have contracted COVID-19 at work, if they ...

Previously, OSHA issued guidance indicating that most employers only had to record or report confirmed COVID-19 cases when provided with objective evidence that an employee contracted COVID-19 at work.  In practice, this put the burden on employees to submit evidence to employers establishing that their COVID-19 cases were contracted at work.

OSHA recently issued revised guidance on this issue, which goes into effect on May 26, 2020. Under the revised guidance, OSHA puts the burden on the employer to make a “reasonable determination” as to whether a confirmed ...

OSHA has released an interim enforcement plan explaining how it will prioritize and conduct COVID-related inspections. Given the high volume of COVID-related reports and complaints, OSHA intends to conduct onsite inspections for COVID-related fatalities that occur at “high risk” jobs only, such as first responders and those working in health care facilities, nursing homes, hospices, laboratories, and morgues.  For virtually all other COVID-related illnesses and reports, including those working medium risk jobs (interact with the public) and low risk jobs (no ...

Our clients continue asking us the same two questions about COVID-19 as it pertains to their obligations under OSHA. We include those questions and our answers below:

1. What does OSHA expect me to do to prevent the spread of COVID-19 to my employees?

Answer:  OSHA has provided guidance on steps employers can take to prevent the spread of COVID-19 in the workplace. This guidance appears to relate largely to employers outside of the health care industry. Industry associations have also put out their own guidance, including the AGC. The AGC guidance provides practical ...

On October 11, 2018, OSHA issued an additional memorandum to further clarify its position on incentive programs and drug testing. While the memorandum does not set out drastic changes to OSHA’s earlier rule and guidance, it does indicate that OSHA will take a more practical approach to incentive programs and drug testing than previously indicated.

With regard to incentive programs, it indicates that traditional incentive programs based on a lack of injuries during a particular time period will not be deemed violative of OSHA if the employer has measures in place to ...

BREAKING NEWS: In follow up to our blog from yesterday, OSHA issued a press release this morning extending the deadline to electronically report from 12/1 to 12/15. All other information in the blog remains unchanged.
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On June 27, 2017, OSHA issued a press release announcing that it would be delaying the compliance date for its Rule requiring most employers to electronically submit their injury and illness data to OSHA. The press release pushed back the compliance date four months, from July 1, 2017 to December 1, 2017, so OSHA could review the Rule closely.

On June 27, 2017, OSHA issued a press release announcing that it would be delaying the compliance date for its Rule requiring most employers to electronically submit their injury and illness data to OSHA. The press release proposed pushing the compliance date back four months, from July 1, 2017 to December 1, 2017, so OSHA could review the Rule closely.

Just over two weeks later, OSHA issued another press release announcing that it would be launching its website allowing employers to submit their injury and illness data on August 1, 2017. On August 1, 2017, OSHA made good on that ...

This morning OSHA issued a press release announcing that it would be delaying the compliance date for its rule requiring most employers to electronically submit their injury and illness data to OSHA. The press release proposes pushing the compliance date back four months, from July 1, 2017 to December 1, 2017. We previously reported on the rule, its requirements, and its significant impact last year.

In the press release, OSHA echoes the Trump administration’s earlier promise to review and reconsider any recently enacted administrative rules and ...

On July 22, 2015, OSHA issued an underground construction company in Texas six willful and nine serious citations with fines totaling $423,900, stemming from a trench collapse in February of 2015. While the citations and fine amount are not unusual under the new regime, the press release issued by OSHA following the issuance of the citations goes to great lengths to embarrass and harass the company, even identifying the company’s workers compensation insurer by name—presumably, in an attempt to try and prevent the company from obtaining insurance in the future. See the press ...

Numerous employers can verify first hand that OSHA is actively fulfilling the promise it made a few years ago, “to get back in the enforcement business.”  In recent years, we have seen increased enforcement activity, including a significant increase in OSHA site inspections.  There is no indication OSHA’s ramped up inspection activity will slow down any time soon.  In fact, last month, the Department of Labor (DOL) announced its current rulemaking activity and OSHA topped the list with the most rulemaking activity within the DOL.  This, coupled with OSHA’s new reporting ...