Audit, Compliance and Risk Blog

Since 2021, occupational safety and health agencies have enacted a variety of rules addressing the workplace hazards of the COVID-19 pandemic. Agencies have generally used their emergency authority, which allow more administrative leeway to speed enactment but then require automatic expiration within months (although re-enactments are possible). I’ve written about a number of these efforts, including the federal Occupational Safety and Health Administration (OSHA) “emergency temporary standard (ETS),” which was stymied by litigation (see HERE). Some states have enacted their own ETSs; California adopted its own ETS and then readopted it every 180 days in order to keep rules in force (see HERE).

The many orders and rules issued by public and occupational health agencies in response to the COVID-19 pandemic create massive disruptions to employment relationships at organizations worldwide. The Supreme Court of British Columbia recently considered a wrongful dismissal lawsuit following one employer’s response to BC provincial health orders affecting the place of employment. The court acknowledged the significant disruptions to ongoing activities, but refused to apply the doctrine of “frustration” to relieve he employer of notice and severance duties to its employees. The remainder of this blog discusses this case (Fanzone v 516400 B.C. Ltd., 2022 BCSC 2089 (CanLII)).

As public and occupational health agencies around the world continuously reevaluating their responses to the developing COVID-19 pandemic, California has again weighed in on the side of continuing formal controls. Effective May 5, 2022, California has revised and extended its COVID-19 Prevention Emergency Temporary Standard (ETS) until January 1, 2023. (I wrote about the most recent previous iteration adopted in February HERE). The ETS is presented as 5 rules, which are administered by California’s Division of Occupational Safety and Health (DOSH, but universally called Cal/OSHA). The remainder of this note summarizes these revised standards, which appear in Title 8 of the California Code of Regulations (CCR):

Although the Occupational Safety and Health Administration (OSHA) has been forced by court action to convert its would-be “emergency temporary standard (ETS)” under which large employers would have been required to protect unvaccinated employees from COVID-19 infections into a proposal (I wrote about the initial ETS HERE), some states can and are moving ahead with similar requirements. Notably, California’s Division of Occupational Safety and Health (DOSH, but universally called Cal/OSHA) recently revised and renewed its own COVID-19 ETSs. The remainder of this note summarizes these standards, which cover five sections of Title 8 of the California Code of Regulations (CCR):

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.

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.

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.

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.

The 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.

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).