Audit, Compliance and Risk Blog

Since the 1980s, the Occupational Safety and Health Administration (OSHA) has required most employers to protect their workers from workplace chemical hazards, and to train workers to protect themselves.  Most employers are subject to OSHA’s Hazard Communication Standard (HCS; 29 CFR 1910.1200), or to variants imposed by states delegated OSHA’s authority. OSHA revises its HCS from time to time; by far the biggest revisions were adopted in March 2012, when OSHA recast HCS to align it with the United Nations-sponsored Globally Harmonized System of Classification and Labeling of Chemicals (GHS).  OSHA’s 2012 revisions conformed the US to GHS Revision 3, which was issued internationally in 2002.  The most obvious change was the adoption of Safety Data Sheets (SDSs) to replace longstanding Material Safety Data Sheets (MSDSs), but employers faced a series of deadlines during 2013-2016.

Many of President Biden’s immediate priorities relate to the federal government’s response to the COVID-19 pandemic. These include worker protection measures, which generally fall within the purview of the Occupational Safety and Health Administration (OSHA). Executive Order (EO) 13999 of January 21, 2021 (Executive Order on Protecting Worker Health and Safety) directs OSHA to rapidly enhance COVID-19 protection activities. The EO directed OSHA to update worker protection guidance to employers within two weeks, which OSHA met by publishing “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” which I discussed HERE.

Regulators often rely on whistleblowers to reveal ongoing violations, and prosecutors rely on whistleblowers and informants from time to time to “make their cases.” Recognizing this value, many federal and state laws provide explicit protections for employees who report actual or potential violations to their employers or to the agencies that administer and enforce those laws.

The Occupational Safety and Health Administration (OSHA) has administered such a provision for workers disclosing violations of the Occupational Safety and Health Act for more than 40 years. In the intervening decades, a wide variety of federal statutes have expanded OSHA’s whistleblower protection activities, assigning OSHA to enforce whistleblower protection provisions of other laws; as of 2021 this authority covers 24 distinct federal laws. The best known and most litigated of these non-worker laws probably is the Sarbanes-Oxley Act of 2002 (SOx) – Section 806 of that law protects whistleblowers who report activities that may violate anti-fraud provisions of the federal Securities Acts. The rest of this posting identifies these laws, and summarizes how OSHA administers them.

After a year of the COVID-19 pandemic, vaccines are finally in distribution and beginning to affect health and safety measures underway by agencies, employers and the public. On March 8, 2021, the Centers for Disease Control and Prevention (CDC) issued “Interim Public Health Recommendations for Fully Vaccinated People.” These new guidelines are directed to individuals, but employers should consider their implications when deciding what to tell their individual employees and customers how to approach the business. The short version: organizations shouldn’t ease up on protective measures undertaken in compliance with guidance from CDC, the Occupational Safety and Health Administration (OSHA) and other agencies. I provide more detailed discussion in the remainder of this note.

Among President Biden’s flurry of first-week executive orders (EOs) is one entitled “Protecting the Federal Workplace and Requiring Mask-Wearing” (EO 13991). This EO states the administration’s policy “It is the policy of my Administration to halt the spread of … COVID–19 by relying on the best available data and science-based public health measures. Such measures include wearing masks when around others, physical distancing, and other related precautions recommended by the Centers for Disease Control and Prevention (CDC).” The EO, and guidance to agencies issued by the Office of Management and Budget (OMB), provide directions to federal agencies. They can also provide useful guidance to non-federal organizations in which most employees work in office settings. The rest of this note discusses a January 24, 2021 OMB memorandum to agency heads entitled “COVID-19 Safe Federal Workplace: Agency Model Safety Principles,” which incorporates CDC guidance.

President Biden is moving quickly to review and revise many of former President Trump’s administrative actions. As I discussed HERE, the fastest mechanisms for these reversals are executive orders (EOs) and slightly less formal executive memoranda from the President or his agency heads. One of the EOs signed on president Biden’s first day of office starts immediate action to review all Trump administrative actions. EO 13990 of January 20, 2021, “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis”, applies to all federal agencies but focuses on President Trump’s environmental actions. The remainder of this note discusses this particular EO. 

President Biden and the Democratic majorities in Congress have announced sweeping plans to reverse most of the Trump Administration’s environmental policies. The timing and practicality of these reversals depends very much on each of the targeted policy’s legal status – laws, regulations, Executive Orders, or guidance documents. The remainder of this note comments on each of these sets of situations, highlighting examples of each. I’ll discuss them in order ranging from quickest/easiest to most time consuming/difficult.

For nearly a year now, the Occupational Safety and Health Administration (OSHA) and other agencies have been issuing guidance to employers regarding COIVD-19, including identification, protection, and back-to-work procedures. One of incoming President Biden’s first Executive Orders (EO 13999 of January 21, 2021) directs OSHA to issue updated worker protection guidance to employers within two weeks. On January 29, OSHA met this requirement by publishing “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” which it explains is intended for employers and workers to use to identify risks and plan responses. The remainder of this note summarizes OSHA’s new guidance.

The Canadian employment standards acts generally specify a minimum notice period before such terminations (the statutory notice period), and generally allow the employer to pay compensation to the employee instead of giving the employee notice (e.g., Ontario Employment Standards Act (OESA) s. 54-67). This compensation is usually called severance pay; it replaces advance notice of termination (OESA s. 61). In general, the severance pay must equal the salary and benefits that the employee would have earned if permitted to work until the end of the notice period. Courts interpret and defend prohibitions against employment agreements that reduce – “contract out” – termination benefits below these thresholds. 

The Clean Air Act (CAA) authorizes the Environmental Protection Agency (EPA) to set emission standards for motor vehicles and engines. Although the primary focus is on Corporate Average Fuel Economy (CAFÉ) standards for new vehicles, set jointly by EPA and the Department of Transportation’s (DOT’s) National Highway Traffic Safety Administration (NHTSA) (I’ve discussed ongoing disputes about the latest CAFÉ standards several times, including HERE), EPA and states also have authority over post-sale “aftermarket” equipment and modifications to vehicles.