Audit, Compliance and Risk Blog

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

OSHA narrows procedural protections for employees exercising their rights

Posted by Jon Elliott on Wed, Sep 22, 2021

The Occupational Safety and Health Act of 1970 provides the national framework for worker protections and empowers the Occupational Safety and Health Administration (OSHA) to create and enforce worker protection standards. The OSH Act authorizes states to apply to OSHA for delegation of this authority (referred to as “state plan states”). In addition to these agency actions, however, the OSH Act also empowers the workers themselves to stand up for these rights, and to complain to agencies when they believe their rights are being violated. Beginning in 1973, OSHA has promulgated regulations formalizing employee rights to be free of adverse actions by their employers – “discrimination” in the language of the law and regulations – for exercising their rights to self-protection (codified in 29 Code of Federal Regulations (CFR) part 1977). Effective September 3, 2021, OSHA has updated these part 1977 regulations to track US Supreme Court decisions that tend to narrow employee rights somewhat. The remainder of this note summarizes OSHA’s part 1977 regulations and discusses the latest revisions.

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Tags: Health & Safety, OSHA, Safety and Health at Work, workplace safety, anti-retaliation

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

After 50 years, OSHA is reviewing its Mechanical Power Presses Standard

Posted by Jon Elliott on Wed, Aug 11, 2021

The Occupational Safety and Health Administration (OSHA) is conducting a formal public review to consider whether to update its Mechanical Power Presses Standard (29 CFR section 1910.217). OSHA issued the Standard in 1971, and adopted the only formal revision in 1988 (to recognize and guide use of sensers to protect press operators). OSHA has also included these devices in a series of “National Emphasis Programs” intended to focus on safety and compliance. OSHA published a request for public comments in the July 28, 2021 Federal Register, seeking suggestions by October 28. The remainder of this note summarizes the longstanding existing requirements, and questions raised by OSHA in this first general review in half a century.

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Tags: Health & Safety, OSHA, Safety and Health at Work

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 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

First CDC guidance to people vaccinated against COVID provides little guidance for employers

Posted by Jon Elliott on Tue, Mar 09, 2021

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.

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Tags: Health & Safety, Coronavirus, Covid-19, Vaccine, Immunization, Vaccination

Federal agency model for COVID-19 safety plans

Posted by Jon Elliott on Wed, Mar 03, 2021

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.

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Tags: Health & Safety, Coronavirus, Covid-19, OMB, EO 13991

OSHA updates COVID-19 guidance

Posted by Jon Elliott on Wed, Feb 10, 2021

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.

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

EEOC provides guidance for employer requirements for COVID-19 vaccinations

Posted by Jon Elliott on Mon, Jan 04, 2021

Now that vaccinations against COVID-19 infections are becoming available, employer responses to the pandemic will include when to recommend, support, or even require employee vaccinations. While workplace safety considerations might support all these efforts, the Equal Employment Opportunity Commission (EEOC) has just issued a reminder that the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 require employers to craft their vaccination policies in ways that won’t violate anti-discrimination provisions. The remainder of this note discusses EEOC guidance published on December 16, 2020.

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Tags: Health & Safety, EEOC, Coronavirus, CDC, Covid-19, ADA, Vaccine, Immunization, Vaccination