Audit, Compliance and Risk Blog

Parts of Ontario employer vaccine policy found unreasonable in arbitration

Posted by BLG’s Labour and Employment Group on Mon, Dec 06, 2021

While BLG’s recent article highlighted an employer’s successful defence of its COVID-19 vaccine policy in UFCW v. Paragon Protection, the outcome was different in Power Workers’ Union v. Electrical Safety Authority.

On November 11, 2021, Arbitrator John Stout found that the mandatory vaccination policy of the Electrical Safety Authority (ESA) was unreasonable to the extent that employees may be disciplined, discharged, or placed on unpaid leave for failing to get fully vaccinated; however, Arbitrator Stout emphasized that context is everything. As detailed below, his conclusion rested on a few factors specific to this workplace. He emphasized that the outcome may be different elsewhere or at another time.

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Tags: Business & Legal, Employee Rights, Covid-19, Employment Law, Labour & Employment, ESA, Vaccine, Immunization

OSHA emergency temporary standard for COVID vaccination and testing – issued but stayed by litigation

Posted by Jon Elliott on Tue, Nov 23, 2021

On November 5, the Occupational Safety and Health Administration (OSHA) published an “emergency temporary standard (ETS)” specifying steps that employers with 100 or more employees must take “to protect unvaccinated employees” from COVID-19 infections in their workplaces. The ETS requires targeted employers to comply with most provisions by December 6, and with requirements for testing of unvaccinated employees by January 4, 2022; it remains in place for 6 months.

However, at least a dozen major lawsuits have been filed against the rules, the effectiveness of which are stayed as of this writing by an order issued by a panel of judges in the Fifth Circuit Court of Appeals. On November 16, the Judicial Panel on Multidistrict Litigation resolved the overlaps by assigning the Sixth Circuit (based in Ohio) to hear the consolidated cases. Depending on the outcome of the litigation, the ETS may or may not ever become effective … but it does illuminate OSHA’s thinking about appropriate employer responses to the ongoing COVID pandemic.

The remainder of this note describes OSHA’s ETS requirements, and the scope of the special authority OSHA is using to adopt it.

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Tags: Health & Safety, OSHA, Safety and Health at Work, Covid-19, workplace safety, Vaccination, Healthcare

WorkSafeBC – COVID-19 safety plans shift to communicable disease prevention

Posted by BLG’s Labour and Employment Group on Tue, Sep 14, 2021

British Columbia moved into Step 3 of the BC Restart Plan on July 1, 2021, and one of the main implications for employers is a shift from COVID-19 safety plans to general communicable disease prevention. WorkSafeBC has released its guidance on communicable disease prevention, and employers should be adapting their COVID-19 safety plans to communicable disease prevention with this guidance in mind.

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Tags: Business & Legal, Employee Rights, Covid-19, Employment Law, Labour & Employment, British Columbia, BC Restart Plan, Communicable Disease Prevention

OSHA recommends masks for fully vaccinated workers in high COVID-19 transmission areas

Posted by Jon Elliott on Tue, Aug 24, 2021

As the COVID-19 pandemic has progressed, public health and worker safety agencies have issued and re-issued directions to employers. On August 13, 2021, the Occupational Safety and Health Administration (OSHA) revised its benchmark guidance for workplace COVID-19 risk management. The remainder of this note summarizes OSHA’s newly-revised “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” (I wrote about the initial January 2021 version HERE and the June 2021 revisions HERE). This revision responds to “breakthrough” infections among vaccinated people by incorporating the latest the Centers for Disease Prevention and Control (CDC) recommendations for masking of employees who are fully vaccinated but work in “areas of substantial or high community transmission” – which as of this writing covers nearly 95% of US counties.
The remainder of this note summarizes the guidance (including unchanged elements) and then highlights the new masking guidance.

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Tags: Health & Safety, OSHA, Safety and Health at Work, Covid-19, workplace safety, Vaccination, Healthcare

COVID-19 Impacts to Your SPPC Plans: Are Your Plans Up-to-Date?

Posted by Antea Group on Wed, Aug 11, 2021

Tanks-2-1The COVID-19 pandemic has impacted all industries to some degree over the past year. With offices shut down, and some workforces working remotely, many offices have been left vacant. At the beginning of the pandemic, food and beverage and consumer goods manufacturing facilities were temporarily shut down or production was significantly reduced. Restaurants and retail facilities were closed or transitioned to online ordering and pick-up. Only critically essential services and operations managed to stay open. 

At many of these facilities, Aboveground Storage Tanks (ASTs) and/or Portable Containers (drums/totes) are used for oil or fuel storage critical to operations. If these facilities meet the criteria indicated below, then the facility must prepare and implement a Spill Prevention, Control, and Countermeasure (SPCC) Plan according to the Federal Oil Pollution Prevention regulation 40 CFR part 112.

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Tags: spcc, Covid-19

OSHA issues COVID protection standard for healthcare employers

Posted by Jon Elliott on Wed, Jul 21, 2021

Public health and worker safety agencies have issued and re-issued directions to employers for coping with the evolving COVID-19 pandemic. Most of these directives have been non-binding recommendations, although the Occupational Safety and Health Administration (OSHA) and state OSH agencies have reminded employers that their “General Duty Clause(s)” requires protective responses to recognized hazards. (most recently, in June OSHA revised its generally-applicable guidelines “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”; I wrote about these HERE). Several states have taken the additional step and issued COVID regulations, beginning with Virginia in July 2020 (I wrote about it HERE).

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Tags: Health & Safety, OSHA, Safety and Health at Work, Covid-19, workplace safety, Healthcare

OSHA revises COVID-19 guidance to reflect vaccinations

Posted by Jon Elliott on Tue, Jul 06, 2021

As the COVID-19 pandemic has progressed, public health and worker safety agencies have issued and re-issued directions to employers for copying with evolving situations. On June 10, 2021, the Occupational Safety and Health Administration (OSHA) revised its benchmark guidance for management of workplace COVID-19 risks. The remainder of this note summarizes OSHA’s newly-revised “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” (I wrote about the initial January 2021 version HERE).

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Tags: OSHA, Covid-19, Vaccine, Vaccination

Do you check for mold when reopening after COVID lockouts?

Posted by Jon Elliott on Wed, Apr 14, 2021

As vaccinations begin to bring the COVID-19 pandemic under control, more employers are moving to reoccupy and reopen workplace areas, many of which have been closed for months. During those times, residual moisture from reduced space conditioning or under-maintained facilities may have increased the possibility of mold infestations, which might endanger people returning to your workplace. This risk makes it a good time to review basic approaches to mold remediation. The remainder of this note reviews guidance from the US Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), and Environmental Protection Agency (EPA).

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Tags: EPA, mold, Coronavirus, CDC, Covid-19

The right to bare arms: Considerations for COVID-19 vaccines in the workplace

Posted by BLG’s Labour and Employment Group on Tue, Apr 06, 2021

One of the most talked about topics when it comes to the scheduled roll out of the COVID-19 vaccine this year is whether an employer is entitled to require its employees to receive the vaccine in order to remain at or return to the workplace.

It’s a multifaceted issue, and it deserves fulsome consideration when discussing the important role employers could play in the national vaccination campaign, which is a key component of the fight against the spread of COVID-19 within an employer’s workplace and more broadly. However, that is not the only interest at play. An employer’s obligation to provide a safe workplace must be balanced with employees’ potentially competing interests, such as the fundamental freedom to make inherently personal choices about one’s own body. This can include competing rights relate to health or religious beliefs and trigger protection under human rights legislation.

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Tags: Business & Legal, Employee Rights, Covid-19, Employment Law, Labour & Employment, Vaccine, Immunization

OSHA increases emphasis on COVID-19 enforcement

Posted by Jon Elliott on Tue, Mar 23, 2021

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.

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Tags: Health & Safety, OSHA, Coronavirus, CDC, Covid-19, NEP, NAICS