Hunton Employment & Labor Perspectives

The National Labor Relations Board (NLRB) and the Occupational Safety Health Administration (OSHA) recently signed a Memorandum of Understanding (MOU) to coordinate investigations and enforcement actions between the two agencies.  The MOU is the latest step by OSHA to blur the lines between workplace safety law and labor law, and could result in more workplace citations from OSHA or unfair labor practice charges filed with the NLRB.

In September 2023, OSHA announced a proposed rule that would allow an outside third party selected by employees to accompany an OSHA compliance safety ...

The Occupational Safety and Health Administration (“OSHA”) recently announced a Notice of Proposed Rulemaking that would make it easier for non-employee representatives to participate in worksite inspections.

OSHA compliance safety and health officers (CSHOs) regularly conduct worksite inspections, colloquially known as “walk-arounds,” as part of their investigation of safety complaints or pursuant to OSHA emphasis programs.  Current regulations allow employees to select a representative of their choosing to accompany the CSHOs on such inspections, as long as ...

On May 1, 2023, the U.S. Department of Labor (“DOL”) announced that its Occupational Safety and Health Administration (“OSHA”) launched a new National Emphasis Program (“NEP”) to prevent or otherwise reduce workplace falls (the “Fall NEP”).  In its press release, OSHA claims that workplace falls are the “leading cause of fatal workplace injuries and the violation the agency cites most frequently in construction industry inspections.”  While the Fall NEP took effect on May 1, 2023, there is a 90-day outreach period, meaning that programmed inspections will first begin on or around July 30, 2023.  The Fall NEP has no expiration date, but it will be reviewed within six months of issuance to determine its effectiveness and whether it will be continued.

On May 15, 2023, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19-related technical guidance in response to the Biden administration’s termination of the COVID-19 public health emergency on May 11, 2023. The updated guidance cautions employers about their continuing obligations under the Americans With Disabilities Act (“ADA”), the Rehabilitation Act, and other equal employment opportunity laws.

The Occupational Safety and Health Administration is finally poised to implement a permanent COVID-19 safety standard for healthcare employers, nearly three years after the pandemic first began in the United States.

California COVID-19 safety rules are here to stay.

The California Occupational Safety and Health Standards Board voted on December 15 to enact a new COVID-19 prevention regulation that imposes a number of familiar workplace safety requirements on California employers.  The regulations will become effective in mid-January 2023 after a 30-day review period and remain in effect for at least two years. 

On September 15, 2022, the United States Department of Labor (“DOL”) announced an update to the Occupational Health and Safety Administration’s (“OSHA”) Severe Violator Enforcement Program (“SVEP”).

The Centers for Disease Control (“CDC”) announced major changes to its COVID-19 guidance on August 13, providing additional flexibility for employers seeking a return to normal operations after the pandemic.

The U.S. Equal Employment Commission (“EEOC”) has recently updated its Technical Assistance Questions and Answers, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” (“Q&A)  and taken the position that employers may only screen employees for COVID-19 if it is a business necessity that is justified by “current pandemic circumstances and individual workplace circumstances” because a COVID-19 viral test is a medical examination within the meaning of the ADA.

On June 8, 2022, the California Department of Public Health (CDPH) issued an Order with definitions for “close contact” and “infectious period” that conflict and abrogate the definitions for these terms within the California Division of Occupational Safety and Health’s (Cal/OSHA) current COVID-19 Emergency Temporary Standards (ETS).  Employers must comply with the new CDPH definitions, even where they differ from the text of the California ETS or federal Centers for Disease Control guidance.

Employers across numerous industries may soon face additional recordkeeping and reporting obligations based on a new rule proposed by the Occupational Safety and Health Administration.

On May 7, 2022, the California Occupational Safety and Health Standards Board (“Cal/OSHA”) released guidance, in the form of updated FAQs and fact sheets, concerning the revised COVID-19 Prevention Emergency Temporary Standards (“ETS”) that were adopted on April 21, 2022, and became effective on May 6, 2022.  This ETS applies to non-remote workers in California, except those who work alone and those covered by the Aerosol Transmissible Diseases standard, and will remain in effect until December 31, 2022. 

Cal/OSHA’s recently issued guidance provides additional ...

On January 25, 2022, OSHA withdrew the COVID-19 vaccination and testing Emergency Temporary Standard (“ETS”), ending the litigation regarding the OSHA vaccine mandate.

SB 606, which took effect January 1, 2022, greatly increases the California Division of Occupational Safety and Health’s (“Cal/OSHA’s”) enforcement powers by creating two new violation categories – “enterprise wide” and “egregious” violations.

The Supreme Court has granted a temporary stay of the OSHA Emergency Temporary Standard (ETS), otherwise known as the OSHA vaccine mandate. The Court ruled that OSHA had exceeded the authority delegated to it by Congress under the Occupational Safety and Health Act. In making this finding, the Court held that OSHA only has the authority to issue workplace safety standards, not broad health measures. The concurring opinion focused upon the “major questions doctrine,” which requires Congress to speak clearly when delegating authority of “vast economic and political significance” to an administrative agency.

On December 16, 2021, the California Occupational Safety and Health Standards Board (“Cal/OSHA”) adopted revisions to the current COVID-19 Prevention Emergency Temporary Standards (“ETS”).  The Cal/OSHA ETS were first approved on November 30, 2020, adopted again with modifications on June 17, 2021, and recently readopted with additional revisions.  The newest version of the ETS will go into effect on January 14, 2022, and will apply to all non-remote workers in California except those covered by the Aerosol Transmissible Diseases standard, such as healthcare workers.

Employers with 100 or more employees must implement mandatory vaccination policies by early December under the Emergency Temporary Standard released by OSHA.

Federal contractors can make their own determinations on vaccination exemptions and do not need to terminate employees who refuse vaccination, according to new guidance from the Biden Administration.

On September 24, 2021, the Safer Federal Workforce Task Force (“Task Force”) issued written Guidance to implement Executive Order 14042 (“Ensuring Adequate COVID Safety Protocols for Federal Contractors”), which was signed by President Biden on September 9, 2021.  The Guidance is a key component of President Biden’s larger “Path Out of the Pandemic: COVID-19 Action Plan.”

Private employers with 100 or more employees will face sweeping new requirements related to COVID-19 vaccination and testing under a plan announced by President Joe Biden on September 9.

On August 13, 2021, the U.S. Department of Labor’s (“DOL”) Occupational Safety and Health Administration (“OSHA”) updated its guidance for employers in an effort to further protect workers from SARS-CoV-2, the virus that causes COVID-19 (“COVID”).  This update (the “Guidance”) reflects recent COVID developments, including the increased spread of the Delta variant and the July 27, 2021 Centers for Disease Control and Prevention’s (“CDC”) updated guidance, and is intended to help employers protect workers who are:  unvaccinated or partially vaccinated, otherwise at-risk, and/or fully vaccinated but located in areas of substantial or high community transmission.

The New York State Department of Labor released its anticipated airborne infectious disease standard and sample plan on July 6.  Employers have until August 5, 2021 to adopt or create a plan to comply with the standard.

On June 10, 2021, fifteen months into the COVID-19 pandemic, the United States Labor Department’s Occupational Safety and Health Administration (“OSHA”) has issued its first ‘emergency temporary standard’ (“ETS”) governing the impact of COVID-19 on health care workers.

The ETS broadly requires healthcare employers to conduct an internal safety assessment and develop a safety plan, which must be in writing for all employers with more than 10 employees. The ETS further delineates requirements relating to patient screening and management, health precautions, masks and PPE,  aerosol-generating procedures, physical distancing, physical barriers, cleaning and disinfection, ventilation, health screening, vaccination, employee training, anti-retaliation, record-keeping, reporting occurrences of COVID-19 transmission, and paying employees for periods of quarantine. Consistent with recent CDC guidance, the ETS also contains carve outs on employee mask-wearing requirements where employees are all vaccinated or where employees are given reasonable accommodations exempting them from mask-wearing and/or vaccination requirements.

President Joseph R. Biden on April 12 nominated current Cal/OSHA Chief Doug Parker to lead federal OSHA.  If confirmed, employers should prepare for the potential that California-style enforcement may reach the federal law.

President Biden has pledged to make improved working conditions a central tenet of his administration, including support for changes to federal OSHA and the National Labor Relations Act.  Parker’s nomination is consistent with a trend towards increased enforcement of employers by federal regulators.

On March 22, 2021, Marty Walsh, the two-term Boston mayor, was confirmed as the Labor Secretary by the United States Senate in a 68-29 vote.  He becomes the first union leader to run the Department of Labor (the “DOL”) in over four decades.

Workplace safety will be one area that we can expect to undergo significant change under Walsh.  Recently, the Occupational Safety and Health Administration (“OSHA”) released a new National Emphasis Program (“NEP”) that permits OSHA to conduct programmed inspections of the risk of worker exposure to COVID-19.  The employers covered by the NEP are those OSHA considers as those where employees have a higher likelihood of close-contact exposure.  The NEP includes language regarding employer outreach and compliance assistance; but, it is clear the primary emphasis will be on inspection targeting.

With little forewarning to the regulated community, the California Division of Occupational Safety and Health (“Cal/OSHA”) passed a sweeping new standard requiring employers in the state to implement prescribed COVID-19 protections. On November 19, Cal/OSHA voted unanimously to pass the “Emergency COVID-19 Prevention Regulations” (the “Standard”) and on November 30, the Standard went into effect. As covered in our previous updates, the Standard obligates employers to, among other things, write and implement a COVID-19 Prevention Program, engage in contact tracing following any positive case that involved potential workplace exposure, require physical distancing and mask wearing and improve ventilation, and to report all “outbreaks” to the public health department.

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance with a new section pertaining to vaccinations.

The updated release—“What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”—discusses how employers who require vaccinations should respond to an employee who is unable or unwilling to receive a COVID-19 vaccination because of a disability or sincerely held religious belief.

California employers now have some guidance from the state in implementing the new “Emergency COVID-19 Prevention Regulations” (“CA ETS”) that went into effect on November 30.

Employers were given no lead-time to comply with these stringent new rules by the California Occupational Safety and Health Standards Board (“Cal/OSHA”).  The CA ETS does contain obligations that employers already have in place, which are largely consistent with Centers for Disease Control and Prevention (“CDC”) guidance. But, as explained in an earlier update, the regulations also include significant onerous new obligations.  Faced with the threat of civil penalties, employers will now need to implement costly new prevention measures at a time when the pandemic is already putting a huge strain on the economy and businesses in particular. These new measures may ultimately put some employers out of business.

The California Occupational Safety and Health Standards Board (“Cal/OSHA”) voted on November 19 to implement a stringent new standard for employers to follow when implementing COVID-19 protections in the state.

The state’s rulemaking agency for workplace safety voted unanimously (6 to 0) to pass the “Emergency COVID-19 Prevention Regulations” (the “Standard”), which is expected to go into effect within 10 days (assuming the State’s Office of Administrative Law adopts Cal/OSHA’s regulation).

Three bills currently pending in the California legislature aim to codify presumptions for workers compensation purposes about the work-relatedness of COVID-19. Governor Newsom first addressed this issue in his May 6, 2020 Executive Order No. N-62-20 (“EO 62-20”), which expired on July 5, 2020.  That Executive Order created a rebuttable presumption that any “COVID-19-related illness” arose out of and in the course of the employment for workers compensation purposes, as long as the positive test or diagnosis came within fourteen days of the employee having worked, at an employer’s direction, in a workplace that was not the employee’s home or residence. The “COVID-19-related illness” (which term was undefined) must have been diagnosed by a licensed California physician, and confirmed by testing within thirty days of the diagnosis. EO 62-20 was not limited to first responders, health care workers or other essential workers, but applied broadly to all employees in the state. The broad scope of EO 62-20 may have been justified by its timing; it issued during a “shelter at home” period when it was easier to identify the dates of outside-the-home work.

Virginia became the first state in the country to pass a workplace safety standard specific to COVID-19 on July 15.  It includes hazard assessment, communication and training requirements, depending on the types of tasks employees perform at work.

The COVID-19 pandemic has exposed employers to an influx of novel employment law issues.  Many employers already have experienced an uptick in related internal complaints or litigation. Below we identify five particular employment law liabilities employers may be exposed to once the dust settles from the pandemic.

Wage and Hour Claims

The shift to telework during the coronavirus pandemic has forced many employers to set aside traditional tracking mechanisms that are used to determine when employees take breaks and clock off. As a result, employers may be vulnerable to employee claims that employers failed to provide and/or pay for all required meal periods, rest breaks, and overtime for remote and on-site employees. To proactively minimize potential wage and hour related claims, employers should ensure to the extent possible that employees are properly compensated for all hours worked. In addition, employers can minimize minimum wage violations by complying with applicable federal, state and local laws that may require employers to reimburse employees for certain expenses incurred in order to telework, such as cell phone, high-speed internet, or other equipment costs. Moreover, employers should consider encouraging managers to execute best supervisory practices in the telework environment, including setting clear expectations with employees, conducting regular check-ins, promptly addressing issues, and making other efforts to maintain clear communication.

On May 1, 2020, the Occupational Safety and Health Administration (OSHA) released an OSHA Alert for restaurants and beverage service businesses providing curbside and takeout service during the pandemic.  This Alert is one in a series of industry-specific alerts that OSHA has published, and will continue to publish, to assist and educate businesses that will re-open (or that continued to operate), and which recommends certain measures to protect employees and patrons during the COVID-19 pandemic.

The Centers for Disease Control and Occupational Safety and Health Administration collaborated to release new guidance for employers in the meat processing industry on April 26.

OSHA and the CDC noted several unique facets of meat processing work that exposed workers to increased likelihood of COVID-19 transmission at work, including close contact, the duration of the close contact, shared tools and surfaces and the frequency of ride-sharing and community-based interactions among employees.  As a result, the organizations released additional guidance to help employers keep employees safe, even as they continue to work to keep the food supply chain running.

On Wednesday, the CDC issued interim guidance for implementing safety practices for critical infrastructure workers who may have had exposure to a person with suspected or confirmed COVID-19.  We’ve summarized the highlights below:

The Department of Labor (“DOL”) released guidance Tuesday regarding the implementation of the Families First Coronavirus Response Act, including details on how employers can determine whether they are covered by the Act.

500 Employee Threshold

One of the most common questions among employers regarding the Families First Act, which Congress passed last week to provide up to 12 weeks of paid leave for coronavirus-related reasons, involved how to count employees towards the 500 employee threshold for coverage under the law.  If an employer has 500 or more employees, then it is not covered by the law.  The DOL provided three key pieces of guidance to help employers determine whether they are covered.

The CDC has recommended temperature checks for workers in some counties.  Governors are beginning to make the same recommendation.  This step already is in place for many healthcare workers.  Now, employers in other industries are considering whether they should conduct temperature checks on employees who are reporting to work and send them home to avoid possible spread of the virus on the employer’s premises.

In response to the COVID-19 pandemic, New York state enacted a temporary emergency paid sick leave law for workers subject to a “mandatory or precautionary order of quarantine or isolation”.

Employers in the difficult position of making workplace reductions because of COVID-19-related business losses should spare a moment for consideration of layoff notice obligations under the federal Worker Adjustment Retraining Notification Act of 1988, 29 U.S.C. § 2100 et seq. (“WARN”) and its state counterparts (so-called “mini-WARN” laws). The “unforeseen business circumstances” exception in federal WARN and most analogous state laws may excuse strict compliance with notification requirements, but employers should take the time now to analyze the applicability of this exception rather than make assumptions about it.

The US Occupational Safety and Health Administration (“OSHA”) recently published Guidance for Preparing Workplaces for COVID-19 (“Guidance”), outlining steps employers can take to help protect their workforce. The Guidance focuses on the need for employers to implement engineering, administrative, work practice controls and personal protective equipment (“PPE”), as well as considerations for doing so. While there is no specific OSHA standard covering infectious disease or COVID-19 in particular, some OSHA requirements may apply to preventing occupational exposure to the virus including OSHA’s Bloodborne Pathogens standard (29 C.F.R. § 1910.20) Personal Protective Equipment (29 CFR 1910 Subpart I) Hazard Communication (29 C.F.R. § 1910.1200) and Recording and Reporting Occupational Injuries and Illnesses (29 C.F.R. § 1904). Also, the General Duty Clause of OSHA which requires employers to provide a “place of employment . . . free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

Workers’ compensation provides the exclusive remedy for injuries and illness that employees suffer arising out of and within the course of their employment.  In the early stages of this pandemic, work-related travel to high impact countries or work-related exposure in a case that was being tracked by public health authorities provided support for work-related exposure.  In healthcare settings, work-related exposure will likely be established when exposure to infected patients occurs.  But in other settings and as the diseases spreads in the United States, the analysis about whether an illness is covered by workers’ compensation will be more difficult.

Workers’ Compensation and “Ordinary Diseases of Life”:  Many states do not authorize workers’ compensation coverage for “ordinary diseases of life.”  Employers should review their own state workers’ compensation laws closely, but an ordinary disease of life is generally defined as an illness to which the general public is equally exposed, and is not a result of the peculiar or unique nature of an employee’s job.  At this stage of the pandemic within the United States, it is possible that state workers’ compensation commissions may view COVID-19 as an ordinary disease of life because untraced community infection is widespread.  In that case, an employee would not qualify for workers’ compensation, and the employer’s workers’ compensation insurance might not apply.

The Universal Paid Leave Amendment Act of 2016 (the “Act”), which implements the District of Columbia’s new Paid Family Leave (“PFL”) program, kicks-in for employees on July 1, 2020.  However, employers must post a PFL notice in the workplace no later than February 1, 2020.

Although the World Health Organization (“WHO”) has declared the coronavirus outbreak a “public health emergency of international concern,” WHO has not yet declared the outbreak as a pandemic. Nevertheless, the emergence of the latest coronavirus is an opportunity for employers, as it reminds them to consider policies and procedures related to pandemic planning.  The following are a few of the key considerations for employers when planning for or responding to an outbreak.

As California braces for wildfire season, the California Division of Occupational Safety and Health (“CalOSHA”) approved an emergency regulation on July 30, 2019, that requires California employers to monitor air quality for particle pollution, and reduce workers exposure to the potential harmful pollutants from wildfire smoke.

What Is Particle Pollution or Particle Matter?

The Air Quality Index (“AQI”) is calculated for four major air pollutants regulated by the Clean Air Act: ground level ozone, particle pollution, carbon monoxide and sulfur dioxide. The new regulation is aimed at protecting workers from certain particle pollution, also called particulate matter or PM. There are two types of PM – fine particles (2.5 micrometers or less in diameter, referred to as PM2.5) and course particles (particles between 2.5 and 10 micrometers in diameter, referred to as PM10). The new regulation is directed only at the fine particles, or PM2.5, which are produced from all types of combustion, including wildfires. 

Last August, we reported on OSHA’s proposed rulemaking regarding electronic submissions of workplace injuries and illnesses in our blog entitled, “OSHA Issues Proposed Rule Regarding Electronic Submission Requirements.” OSHA has since issued a final rule which became effective on February 25, 2019.

The new rule rescinds the requirement that employers with 250 or more employees, or employers in certain high-hazard industries, electronically submit information from OSHA Form 300 (Log of Work-Related Injuries or Illnesses) and OSHA Form 301 (Injury and Illness Incident Report).  Affected employers must still maintain Forms 300 and 301 on-site and make them available for OSHA inspection, if requested.  Employers covered by the rule now only are obligated to submit Form 300A (Summary of Work-Related Injuries and Illnesses) annually.

The Federal government has entered its 12^th day of partial shutdown, making it the fourth longest in American history to date.   But, not all government departments are affected, and the Department of Labor is one that is not.  The DOL is already fully funded for 2019, so the current stalemate between Congress and the President does not affect its resources.

A memorandum recently released by the Occupational Safety and Health Administration (OSHA) has clarified the agency’s position on whether safety incentive programs and post-accident drug testing would be considered retaliatory pursuant to its controversial recordkeeping rule published on May 12, 2016.  This rule prohibits employers from retaliating against employees who report work-related injuries or instituting procedures that could chill employees from reporting work-related injuries. In the accompanying interpretative documents, OSHA specifically identified workplace safety incentive programs and post-accident drug testing policies as procedures that were likely to deter employee reporting, and therefore would be subject to increased scrutiny by the agency.

In May 2016, the Occupational Safety and Health Administration (“OSHA”) issued a final rule to “Improve Tracking of Workplace Injuries and Illnesses, “ which requires employers to electronically submit their injury and illness records to OSHA.  Specifically, establishments with 250 or more employees must annually submit their Forms 300, 300A, and 301.  And, establishments with 20 to 249 employees must annually submit their Form 300A.  Prior to this rule, most employers had no obligation to submit their illness/injury logs to OSHA.  This rule has been controversial, as OSHA intends to post the records, subjecting employers to increased scrutiny by investors, business partners, regulators, and the public at large.  Moreover, many employers are skeptical that OSHA will appropriately safeguard individualized confidential information from public disclosure.

The United States Supreme Court recently resolved a Circuit Court split on the appropriate standard of review of a District Court’s decision whether to enforce a subpoena issued by the Equal Employment Opportunity Commission (“EEOC”).  In McLane Co., Inc. v. Equal Employment Opportunity Commission, No. 15-1248, 581 U.S. __ (April 3, 2017), the Court held that such a decision should be reviewed only to determine whether the District Court abused its discretion – a deferential standard of review.  This conclusion was fairly uncontroversial.  Indeed, the abuse of discretion standard has long been used for review of decisions whether to enforce administrative subpoenas (such as those issued by the National Labor Relations Board). Historically, however, the Ninth Circuit alone has used a de novo standard of review in these circumstances, while the seven other U.S. Courts of Appeal to have addressed this issue all applied the more deferential standard.  The Ninth Circuit panel itself questioned why de novo review applied, in light of the substantial authority to the contrary, and the Supreme Court took the case to resolve this circuit split.

On Monday, September 19, 2016, the Seattle City Council approved an ordinance (C.B. 118765) designed to bring more stability to the schedules of retail and food service industry workers, who often experience last-minute scheduling changes, loss of paid hours, and back-to-back shifts. The law, which was developed during a series of meetings between the City, business owners and worker advocates, will be codified in Chapter 14.22 of the Seattle Municipal Code and will take effect on July 1, 2017.

Several new and expanded paid family leave programs signed into law this month present employers with administrative challenges and concerns about business productivity.

California

California’s Paid Family Leave (“PFL”) program, which took effect in 2004, was the first of its kind in the nation. Funded by employee contributions to the State Disability Insurance program, and administered through that program, PFL in California provides employees with partial wage replacement (currently 55%, up to a weekly maximum of $1,104 in 2015) for a period of up to six (6) weeks in order to bond with a new child, or to care for a parent, child, spouse or domestic partner with a serious health condition. This wage-replacement program does not guarantee job protection, so normally it is taken concurrently with job-protected leave under the federal Family and Medical Leave Act (“FMLA”) or its California analog, the California Family Rights Act.

On March 25, 2016, OSHA published a final rule which significantly reduces the permissible limits of silica dust to which workers can be exposed.  The rule will take effect 90 days after publication, and will be codified at 29 CFR Parts 1910, 1915, and 1926.

The Equal Employment Opportunity Commission (“EEOC”) has implemented nationwide procedures which require all EEOC offices to release copies of an Employer's entire position statement, together with all non-confidential documents submitted in support of the position statement, to an Employee who has filed a discrimination charge, or his or her representative (including attorneys). These procedures apply to all position statements requested after January 1, 2016. Previously, such disclosures were made in the discretion of the particular field offices or investigators, and practices were inconsistent. As often as not, EEOC investigators might summarize the Employer’s evidence and arguments for the Employee, in order to solicit the latter’s response.

On November 3, 2015, Houston voters rejected Proposition 1, a broadly-worded human rights ordinance that would have made it illegal to discriminate on the basis of, among other things, gender identity. Opposition to that ordinance coalesced around the issue of restrooms, with many citizens expressing fear that the law would allow men to use women’s restrooms.