The purpose of the revised rule is to clarify specifically three things:  1) the representative(s) authorized by employees may be an employee of the employer or a non-employee third-party; 2) employee’s options for third-party representation during OSHA inspections are not limited to persons with formal credentials, such as an industrial hygienist or safety engineer, as limited by the original rule; and 3) a third-party representative authorized by employees may be reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace by virtue of their knowledge, skills or experience. This can include, for example, technical knowledge or practical experience about the processes and hazards present in the workplace, or language in communication skills that facilitate the gathering of information from employees.

Under this rule, the Compliance Safety and Health Officer has the ultimate authority to determine whether good cause has been shown why a third-party representative is reasonably necessary to the conduct of an effective and thorough inspection.  The rule does not provide any specific guidance or criteria or even a defined process for compliance officers to follow in making their determination other than referring to whether the representative’s knowledge, skills, or experience, including relevant language or communication skills, would make a positive contribution to the inspection.  The third-party representative must be found to aid the inspection in a variety of ways including explaining equipment processes or operations, policies, and procedures, but may not disrupt or interfere with a fair and orderly inspection.

Minnesota has an OSHA approved state plan.  Under 29 CFR § 1953.5(a)(1), where a federal program change is a new permanent standard or more stringent amendment to an existing permanent standard, a state shall pass a state standard adopting the new standard within six months of the effective date of the new federal standard.  Minnesota will need to pass a new rule adopting, at minimum, the federal OSHA standard.

EMPLOYER RESPONSE TO NEW RULE

In anticipation of the effective date of the federal rule and the Minnesota rule to follow shortly, employers should revisit policies and procedures that instruct on how to receive OSHA inspectors who wish to gain access to the job site and how management should respond to a non-employee third-party designated as the employee representative during an inspection. For instance, employers must be prepared to analyze whether there is an argument that good cause has not been shown that an outside third-party employee representative is reasonably necessary for an effective investigation and articulate an objection to the compliance officer. Also, short of refusing to allow an objectionable third-party representative on the employer’s presence, employers should have procedures in place to ensure that any employee representatives are staying within the scope and purpose of their presence during the inspection. Employer representatives must ensure that employee representatives are not exhibiting behaviors that interfere with a fair and orderly inspection like taking unauthorized photographs or participating in union solicitation activity.  The employer needs to be prepared to lodge an objection to that activity to the compliance officer.  In addition, procedures need to be put in place to ensure that the employee representatives are not gaining access to areas containing trade secrets.

While it is concerning that the inclusion of non-employee third-party employee walkaround representatives is within the sole discretion of the compliance officer with no defined process to guide their determination, employers must be prepared to monitor the activities of the walkaround representatives to ensure that there are no disruptive behaviors that may interfere with the inspection. In anticipation of these potential problems, employers must be prepared to work with the inspector to make sure that the walkaround representative’s role is being performed, which is only to aid in the inspection.

Employers should try to “stay in loop” in the employee’s process for choosing their walkaround representative. One way to stay in the loop in this process may be through an active safety committee in which it can be encouraged that the employee walkaround representative be chosen or at the very least openly discussed within the safety committee. While employers may not have a choice or a say in the selection of a walkaround representative, there will be transparency regarding potential choices and plans may be made to respond to the walkaround choice if it becomes an issue.

BOTTOM LINE

OSHA’s new rule should not be interpreted as an invitation to unions to ramp up organizing activities under the guise of participation in OSHA inspections. Under the revised § 1903.8(c), the presence of third-party representatives during OSHA walkarounds is only for the purpose of aiding in the inspection. Specifically, the compliance officer must determine whether good cause is shown that participation by the third-party representative is reasonably necessary to aid in an effective inspection of the workplace by virtue of their knowledge, skills, or experience. The presence of a third-party representative cannot be disruptive to or interfere with a fair and orderly inspection.

While it is likely that unions may perceive this rule as an opportunity to ramp up organizing activities, the compliance officer continues to have the authority to deny the right of accompaniment if the conduct of the representative interferes with a fair and orderly inspection. In other words, if a union representative engages in behavior disruptive to the inspection, such as distribution of union literature or failing to comply with the ground rules of the inspection, the compliance officer may exclude the individual from further participation in the inspection. Before agreeing to the presence of non-employee third-party representatives, particularly non-employee union officials, it is important for employers to have an explanation as to what knowledge, skills, or experience the proposed third-party has that will aid in the inspection.

The post Let’s Go For A Walk: OSHA Revises Its Worker Walkaround Rule For Inspections appeared first on Felhaber Larson.

Remember, the OSHA ETS Rule would have required employers with 100+ employees to implement certain policies relating to COVID-19, including a requirement for employees to be vaccinated or submit to weekly COVID-19 testing.  The Supreme Court did not officially “invalidate” the OSHA ETS Rule and, instead, remanded the case back to the Sixth Circuit to reach a decision on the merits.  In the interim, Minnesota OSHA, which adopted the federal rule on January 3, announced that it would “suspend enforcement of the ETS pending future developments.”

Today, OSHA announced that it was withdrawing the OSHA ETS Rule and filed a motion to dismiss the Sixth Circuit case, arguing that the agency’s withdrawal of the proposed rule renders the case “moot.”

In its announcement, OSHA stated that the withdrawal is “effective January 26, 2022” and the agency is instead “prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.”  Notwithstanding the withdrawal, OSHA stated that it “continues to strongly encourage the vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.”  OSHA has also suggested that it will utilize its enforcement authority under the General Duty Clause, which is a “catch-all” provision of the OSH Act that requires that employers maintain a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.

Minnesota OSHA has yet to make any announcement relating to OSHA’s withdrawal of the ETS Rule, but it will likely follow federal OSHA’s lead in withdrawing the OSHA ETS Rule.

Bottom Line

The OSHA ETS Rule is officially kaput.  While we expect that OSHA will continue to pursue workplace standards related to COVID-19, the rules will likely be focused on specific industries, such as healthcare and meat processing.

Employers should also remember that state and local authorities may also promulgate more restrictive workplace safety standards.  For example, California OSHA issued its own ETS standard on November 30, 2020 and the standard remains in effect for California employers through April 14, 2022.

We will continue to monitor this issue as it develops.

The post OSHA Officially Scraps “Vaccine-or-Testing” Rule appeared first on Felhaber Larson.

In a 6-3 decision, the Court reimposed the “stay” on the OSHA ETS Rule preventing OSHA from enforcing its rule, concluding that the plaintiffs were “likely to succeed on the merits of their claim that the [OSHA] Secretary lacked authority to impose the mandate.”  According to the Court’s majority, the OSHA ETS Rule was “no everyday exercise of federal power.  It is instead a significant encroachment into the lives—and health—of a vast number of employees.”  Although it is only stayed, the majority opinion is likely the “death knell” of the OSHA ETS Rule because OSHA will be barred from enforcing its rule while the Sixth Circuit makes a decision on the merits.

In a 5-4 decision, the Court removed a lower court’s injunction preventing CMS from enforcing its vaccine mandate against healthcare employers in 25 states.  According to the Court’s majority, CMS has authority to issue the mandate: “We . . . conclude that the [CMS] Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.”

Bottom Line

OSHA ETS Rule is “stayed” and will likely be thrown out by the Sixth Circuit at some point before it expires in the next 6 months.  The CMS vaccine mandate, however, will be allowed to go into effect in all 50 states.

As we digest these decisions, we will be back with additional guidance soon.

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Background

After it was issued on November 5, the OSHA ETS Rule was immediately “stayed” by the Fifth Circuit.  Then, the Sixth Circuit “lifted” the stay on December 17, 2021.  Immediately after the decision, OSHA announced enforcement deadlines of January 10 for the bulk of the OSHA ETS Rule and February 9 for the vaccination-or-testing portion of the rule.

On January 7, the U.S. Supreme Court heard oral arguments as to whether the court should reinstate the injunction preventing OSHA from enforcing its rule.  It is unknown how or when the Court will rule.  Nevertheless, as of today, the Court has not issued any order preventing OSHA from enforcing its rule.  Thus, for the time being, nothing prevents OSHA from beginning to enforce the OSHA ETS Rule.

Who Is Covered?

First, the OSHA ETS Rule applies only to employers with 100 or more employees.  The 100-employee threshold is “enterprise wide” (and not location-by-location) and includes full-time, part-time, and seasonal employees.  But, for employers with fewer than 100 employees, the OSHA ETS Rule does not apply.

Second, in states like Minnesota with “state OSHA plans,” it is the state OSHA agency that is responsible for adopting and enforcing the safety standards.  After the “stay” was lifted, OSHA gave state agencies until January 24 to either (a) adopt the federal OSHA ETS Rule or (b) adopt alternative regulations that are “at least as” effective as the federal OSHA ETS Rule.  The states with “state OSHA plans” that apply to private-sector workers, include: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming.

As we previously reported, MN-OSHA adopted the federal OSHA ETS Rule with enforcement deadlines that mirror federal OSHA (i.e., January 10 and February 9).  Thus, covered employers in Minnesota must comply with the January 10 and February 9 deadlines.

Likewise, covered employers in states without a state-run OSHA plan, including Iowa, North Dakota, South Dakota, and Wisconsin, must comply with the OSHA ETS Rule in accordance with the January 10 and February 9 deadlines.  In these states, federal OSHA is responsible for enforcing workplace safety standards.

What Do I Need to Do?

If you are covered by the OSHA ETS Rule, then you need to take the following steps beginning today (January 10):

1. Establish a written COVID-19 vaccination policy that includes information on testing and face coverings;
2. Obtain vaccination records from employees;
3. Provide certain information to employees on COVID-19 vaccines and the requirements of the OSHA ETS Rule;
4. Provide up to 4 hours of paid time off for employees to receive the COVID-19 vaccine during working time and up to 16 hours of paid time off to recover from side effects experienced following any COVID-19 vaccine dose;
5. Require employees to promptly notify their employer of a positive COVID-19 test or COVID-19 diagnosis and promptly remove the employee from the workplace; and
6. Comply with certain notice requirements when there is a positive COVID-19 case and reporting to OSHA when there is an employee work-related COVID-19 fatality or hospitalization.

By February 9, covered employers must ensure that all unvaccinated workers provide the employer with a negative COVID-19 test within the past seven days (if they are on a worksite where they come into contact with other workers).

To assist employers with compliance, Felhaber Larson’s Labor & Employment Team has a sample COVID-19 Policy and employee communication regarding the OSHA ETS Rule.  Contact anyone from Felhaber Larson’s Labor & Employment Team if you would like to receive copies of the relevant documents.

What about the Supreme Court?

It is still possible that the Supreme Court will enjoin OSHA from enforcing the OSHA ETS Rule.  During oral arguments last week, a majority of the justices appeared to support a temporary order preventing OSHA from enforcing its rule while the Court issued its decision.  Nevertheless, as of today, the Court has not issued any such order preventing OSHA from enforcing its rule.  As a result, employers must prepare as if OSHA will begin enforcing the OSHA ETS Rule.

Bottom Line

Unless or until the Supreme Court acts, nothing prevents OSHA from enforcing the OSHA ETS Rule against employers with 100 or more employees.  As a result, covered employers should begin complying with the OSHA ETS Rule unless or until instructed otherwise by the Supreme Court.

We will continue to monitor this situation as it develops.

The post Today, MN-OSHA Will Begin Enforcing the OSHA ETS Rule, Unless Supreme Court Intervenes appeared first on Felhaber Larson.

Today, OSHA posted on its website that January 10, 2022, is the new deadline for compliance with the rule. OSHA also said, however, that it will not issue citations for noncompliance until February 9, 2022. Here’s the full statement from OSHA:

OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

The plaintiffs in the Sixth Circuit case (the state of Ohio among others) have already petitioned the United States Supreme Court to block the rule. We expect the Supreme Court to quickly rule on the petition.

Bottom Line

As we said last night, the Sixth Circuit’s ruling will not be the final word on the OSHA ETS Rule because the appeal has already been filed with the Supreme Court. But now that OSHA has weighed in with the deadline, if the Supreme Court denies the petition, employers with over 100 employees must begin to develop compliant policies which should be implemented by no later than January 10, 2022, even if employers are not able to implement the testing requirements by that date. If an employer has implemented a policy by January 10 and is able to demonstrate that they are “exercising reasonable, good faith efforts to come into compliance” with the testing requirements by Wednesday, February 9, 2022, OSHA will not issue citations for non-compliance.

The post Warning Shot! OSHA Shot-or-Testing Rules Set To Restart on January 10, 2022 appeared first on Felhaber Larson.

Background

On November 5, OSHA published its Emergency Temporary Standard relating to COVID-19 Vaccination and Testing, 86 Fed. Reg. 61,402 (Nov. 5, 2021) (“OSHA ETS Rule”).  The OSHA ETS Rule, remember, requires employers with 100 or more employees to implement COVID-19 vaccination policies that, by January 4, 2022, require employees to either: (a) be vaccinated against COVID-19 or (b) submit to weekly COVID-19 testing.

On November 12, the Fifth Circuit issued an order preventing OSHA from enforcing the OSHA ETS Rule.  As a result, OSHA published notice stating that the agency “has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”  The case was then reassigned to the Sixth Circuit.

Sixth Circuit’s Decision

In rejecting the Fifth Circuit’s decision staying the OSHA ETS Rule, two of the three Sixth Circuit judges noted that OSHA “demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces.”  The majority added: “It is not appropriate to second-guess that agency determination considering the substantial evidence, including many peer-reviewed scientific studies, on which it relied.”

The third judge dissented, arguing that OSHA “wants to issue a rule of national import, covering two-thirds of American workers, and [OSHA] wants to do it without clear congressional authorization, without even public notice and comment, and with a capacious understanding of necessity.”

Bottom Line

The Sixth Circuit’s ruling will not be the final word on the OSHA ETS Rule, as the case will invariably be headed to the Supreme Court.  The plaintiffs will also likely seek to have the three-judge decision “stayed” while it appeals, so that OSHA is prevented from enforcing its rule during the pendency of the appeal.  Such relief, however, is not guaranteed.

Absent such relief, the Sixth Circuit decision appears to give OSHA the green light to “restart” enforcement of the OSHA ETS Rule (including the January 4^th deadline).  Whether OSHA will do so, however, remains to be seen.

We will continue to monitor this situation as it continues to evolve.

The post OSHA’s “Vaccination or Testing” Rule Revived by Sixth Circuit appeared first on Felhaber Larson.

Here’s the text on OSHA’s website:

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay [the OSHA ETS Rule]. The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

As we reported, last Friday, the Fifth Circuit issued an order staying enforcement of the OSHA ETS Rule.  The notice on OSHA’s website likely serves as the agency’s attempt (albeit half-hearted) at complying with the court’s order.  The Fifth Circuit’s order will remain in place until it is lifted or made permanent by the Sixth Circuit.  This is because, on Tuesday, the Judicial Panel on Multidistrict Litigation consolidated the legal challenges to the OSHA ETS Rule in the Sixth Circuit.

Bottom Line

OSHA’s announcement should not be construed as the agency “giving up” on the OSHA ETS Rule.  At most, it shows that the agency is serious about complying with the Fifth Circuit’s order while it pushes ahead in the litigation in the Sixth Circuit to lift the stay and allow the agency to move forward with enforcement by the December 6 and January 4 deadlines.

Needless to say, there is a significant amount of uncertainty as to whether and when employers will need to comply with the OSHA ETS Rule.  At any time, the Sixth Circuit could issue an order lifting the stay and OSHA could (in theory at least) push forward with the existing deadlines.  Therefore, we recommend that covered employers continue working on all pre-implementation steps (such as drafting policies and procedures, and potentially surveying employees on vaccination status) so that you will be able to quickly implement your policy and be compliant with the OSHA ETS Rule if and when the stay is lifted.

We will continue to monitor this situation as it develops.

The post OSHA Announces Non-Enforcement of ETS Rule, But Will Push Ahead in Litigation appeared first on Felhaber Larson.

The OSHA ETS Rule was immediately challenged by more than 26 states and employer groups in federal courts throughout the country.  On November 6, a court in the Fifth Circuit (which covers Texas, Louisiana, and Mississippi), issued a “stay” preventing OSHA from enforcing the OSHA ETS Rule “pending further action by this court.”  The request was for a “nationwide” stay, so the court’s order seemingly has application beyond the Fifth Circuit.

Stay of Enforcement Extended

Late Friday, the Fifth Circuit three-judge panel issued a 22-page order extending the “stay” of enforcement of the OSHA ETS Rule “pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.”  A copy of the decision is available here.

The thrust of the petitioners’ challenge to the OSHA ETS Rule is that the rule is constitutionally invalid and, in addition, the OSHA ETS Rule is not authorized by the Occupational Safety and Health Act, which created OSHA.  In its latest decision, the three-judge panel seemed to suggest that the petitioners had the better arguments.

Fifth Circuit Finds ETS Rule Constitutionally “Dubious” and “Fatally Flawed”

Constitutionally speaking, the Fifth Circuit questioned whether OSHA (or even Congress) has the constitutional authority to “make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.”  Even if Congress would have the authority under the Commerce Clause, the Fifth Circuit noted that the “nondelegation” doctrine would prevent Congress from delegating such sweeping authority to OSHA.

Even setting aside the constitutional concerns, the Fifth Circuit concluded that the OSHA ETS Rule was “fatally flawed” as both underinclusive, overinclusive, and likely extends beyond the power Congress gave the agency – even if it could make such a delegation.  As the Fifth Circuit explained:

On the dubious assumption that the [OSHA ETS Rule] does pass constitutional muster – which we need not decide today[] – it is nonetheless fatally flawed on its own terms. Indeed, the Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat). The Mandate’s stated impetus-a purported “emergency” that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to[]-is unavailing as well.  And its promulgation grossly exceeds OSHA’s statutory authority.

Given these constitutional and drafting concerns with the OSHA ETS Rule, the Fifth Circuit specifically found that those challenging the new rule “show a great likelihood of success on the merits.”

Next Steps

The Fifth Circuit will next likely set a briefing schedule to address the request for a “permanent injunction” which, if granted, would permanently prevent OSHA from enforcing the OSHA ETS rule.  This would certainly not be the end of any legal challenges, as there are numerous similar lawsuits in other jurisdictions and any final decision by the Fifth Circuit will undoubtedly be appealed to the U.S. Supreme Court.

Bottom Line

While it is too early to tell whether these legal challenges will be successful in invalidating the OSHA ETS Rule, Friday’s decision certainly shows that the rule will face significant legal hurdles.

For employers, though, this is not a license to ignore the OSHA ETS Rule.  Given the tight deadlines for compliance, employers should continue work diligently to be in compliance by December 6 and January 4.

We will continue to monitor this issue as it develops.

The post In Harsh Rebuke, Federal Appeals Court Extends Stay of OSHA ETS Rule appeared first on Felhaber Larson.

As it stands, the ETS is on hold pending further briefing by the parties.  The court has given the government until 5:00 p.m. on Monday, November 8 to submit their brief and the Petitioners a deadline of 5:00 p.m. on Tuesday, November 9 to reply.  Regardless of whether the Fifth Circuit lifts the stay or grants a permanent injunction, further appeals seem likely, as does the likelihood that implementation of the ETS will be delayed.

Though the ETS may be delayed, or potentially struck down entirely, large employers should still prepare to comply with the rule’s requirements.  The first deadlines are quickly approaching on December 5^th and companies should ensure they are prepared should the rule stand.

Bottom Line

Other challenges to the OSHA ETS have been filed in the Sixth, Seventh, Eighth Circuit, and Eleventh Circuits.  Ultimately, the Supreme Court may be asked to decide the fate of the ETS.  We expect the Fifth Circuit to issue its decision soon, so stay tuned.  We will continue to monitor and report further developments.

The post Not So Fast: OSHA ETS Blocked by Fifth Circuit appeared first on Felhaber Larson.

Effective Dates

The OSHA ETS Rule was published in the Federal Register today and is effective immediately.  A copy of the publication is available here.

While the ETS rule will be effective immediately, compliance with the ETS Rule is delayed 30 days (i.e., December 6, 2021) and compliance with COVID-19 testing for unvaccinated workers is delayed 60 days (i.e., January 4, 2022).

Because the ETS rule is “temporary,” it will be in effect for six months.  At that point, if it wishes for the requirements to continue, OSHA must replace the temporary standard with a permanent standard.

Employers with 100+ Employees

The ETS Rule applies only to employers with 100 or more employees – firm or company-wide – at any time the ETS Rule is in effect.  Thus, it is possible that employers with fewer than 100 employees may become covered if they hire additional workers.

In determining the number of employees, employers are instructed to count all employees company-wide, regardless of work location.  As OSHA explained in its FAQs:

2.A.1. Are employees who perform work at offsite locations, such as customer homes, counted?

Yes. In determining the number of employees, employers must include all employees across all of their U.S. workplaces, regardless of employees’ vaccination status or where they perform their work. For example, if an employer has 150 employees, and 100 of them perform maintenance work in customers’ homes, primarily working from their company vehicles (i.e., mobile workplaces), and rarely or never report to the main office, that employer would fall within the scope of the standard.

Employers are to include part-time, temporary, and seasonal workers that are employed directly by the employer.

Employers do not count true “independent contractors” or employees of other employers, such as workers employed by a staffing firm.  As OSHA explained in its FAQs:

2.A.7. How are employees from staffing agencies counted?

In scenarios in which employees of a staffing agency are placed at a host employer location, only the staffing agency would count these jointly employed workers for purposes of the 100-employee threshold for coverage under this ETS. The host employer, however, would still be covered by this ETS if it has 100 or more employees in addition to the employees of the staffing agency. On the other hand, if a host employer has 80 permanent employees and 30 temporary employees supplied by a staffing agency, the host employer would not count the staffing agency employees for coverage purposes and therefore would not be covered. A host employer may, however, require the staffing agency to ensure that temporary employees comply with its policy (either be fully vaccinated or tested weekly and wear face coverings).

Excluded Workplaces and Employees

The new OSHA ETS Rule does not apply to certain workplaces and employees.

With respect to excluded workplaces, the OSHA ETS Rule does not apply to the following workplaces:

• • Workplaces covered by the federal contractor rules (i.e., workplaces covered under the Safer Federal Workforce Task Force); and
  • Workplaces covered by OSHA’s Healthcare ETS Rule from June 2021, 29 C.F.R § 1910.502 (i.e., settings where any employee provides healthcare services or healthcare support services).

With respect to excluded employees, certain employees of covered employers are not subject to the OSHA ETS Rule, including:

• • Employees who do not report to a workplace where other individuals (such as coworkers or customers) are present;
  • Employees while they are working from home; and
  • Employees who work exclusively outdoors.

Mandatory Vaccination Policy (with a Caveat)

The OSHA ETS Rule requires covered employers to develop a mandatory vaccination policy that “requires each employee to be fully-vaccinated.”  Recognized exceptions include:

1. 1. Employees with medical contraindications;
   2. Employees who have a medical need to delay vaccination; and
   3. Employees entitled to a reasonable accommodation because they have a disability or sincerely-held religious beliefs, practices, or observances that conflict with the vaccination requirement.

Notwithstanding the appearance of a “hard” vaccine mandate, the OSHA ETS Standard includes an exemption to the “hard” vaccine mandate if the employer implements a testing regime requiring unvaccinated workers to be tested every 7 days:

The employer is exempted from the [“hard” vaccine] requirement . . . only if the employer establishes, implements, and enforces a written policy allowing any employee not subject to a mandatory vaccination policy to choose either to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 . . . and wear a face covering . . . .

Stated differently, employers are permitted to implement a “soft” vaccine mandate as long as the employer promulgates a “written policy” giving employees the option to either: (a) get the vaccine or (b) submit to weekly COVID-19 testing and wear a mask.

Regular COVID-19 Testing (and Masking) for Unvaccinated Workers

The OSHA ETS Rule requires unvaccinated workers provide their employer with documentation showing a negative COVID-19 test within the last seven days in order to be eligible to work at a covered “workplace,” which is any location – fixed or mobile – where the employer’s work or operations are performed.  The only limitation is that “workplace” does not include an employee’s “residence.”  As a result, unvaccinated workers who work exclusively from home do not need to submit to regular COVID-19 testing.

Unvaccinated workers who have not submitted proof of a negative COVID-19 test must be removed from the workplace until the employee provides a test result.  Unvaccinated employees are also required to wear a mask “when indoors or when occupying a vehicle with another person for work purposes.”

Costs of COVID-19 Testing

The OSHA ETS Rule specifies that the rule “does not require the employer to pay for any costs associated with testing.”  However, the rule is also careful to note that “employer payment for testing may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.”

In Minnesota, for example, Minn. Stat. § 181.61 provides that “[i]t is unlawful for any employer to require any employee or applicant for employment to pay the cost of a medical examination . . .”  In December 2020, the Minnesota Department of Labor & Industry issued a “reminder” to employers stating:

The Minnesota Department of Labor and Industry (DLI) wishes to remind employers of Minn. Stat. 181.61, which requires employers to cover the costs of any medical examination or the furnishing of any records required by the employer as a condition of employment. This statute applies to mandatory coronavirus (COVID-19) testing required by the employer before employees may return to work. Employees may not have their wages reduced in any way to cover the cost of such a test.

Whether this would apply to testing mandated by OSHA or another federal agency remains to be seen, but it is a strong indication that payment for testing and testing time may be required by Minnesota law.

Even if testing time is compensable under Minnesota state law, employers could potentially avoid paying for testing time by having unvaccinated employees use FDA-approved “rapid tests” at work or the jobsite.

Paid Time Off for Vaccination and Recovery from Vaccination

The OSHA ETS Rule requires covered employers to provide paid time off in two circumstances: (1) when getting vaccinated for COVID-19 and (2) when recovering from getting vaccinated.

First, covered employers are required to provide employees with up to “4 hours of paid time, including travel time, at the employee’s regular rate of pay” for each dose of the COVID-19 vaccine.  For this time, employers are not permitted to require employees to use existing PTO, vacation, or sick time balances.

However, if an employee voluntarily chooses to get vaccinated over the weekend or during non-working hours, then the employee is not eligible for pay.  As the OSHA FAQs explain:

5.C. If an employee gets vaccinated outside of work hours, such as on a Saturday, do I have to still grant them reasonable time for vaccination?

No. If an employee chooses to receive a primary vaccination dose outside of work hours, employers are not required to grant paid time to the employee for the time spent receiving the vaccine during non-work hours. . . .

Second, employers are also required to provide “reasonable time and paid sick leave” to employees who are “recover[ing] from side effects experienced following any primary vaccination dose.”  In this circumstance, employers are permitted to require employees to use any existing PTO, vacation, or paid sick leave balances for time the employee spends recovering from side effects experienced following a vaccination dose.

No Paid Time for Employees Who Test Positive for COVID-19

The OSHA ETS Rule requires employers to mandate that all employees notify the employer of a positive COVID-19 test or receipt of a COVID-19 diagnosis.  Employers must then, in turn, immediately remove from the workplace any employee testing positive or receiving a diagnosis.

Employees may return to the workplace only if the employee meets one of the following requirements:

• • The employee receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing;
  • The employee meets the return to work criteria in CDC’s “Isolation Guidance”; or
  • The employee receives a recommendation to return to work from a licensed healthcare provider.

The OSHA ETS Rule makes clear that employees are not entitled to pay under the OSHA ETS Rule.  However, employees may be entitled to pay under other federal, state, and local laws:

This section [of the OSHA ETS Rule] does not require employers to provide paid time to any employee for removal as a result of a positive COVID-19 test or diagnosis of COVID-19; however, paid time may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.

In June 2021, OSHA issued a “Healthcare ETS Rule” that applied to hospitals and nursing homes.  As part of this rule, employers were required to provide paid leave (called “medical removal benefits”) to employees who tested positive for COVID-19.  The OSHA ETS Rule did not include a similar requirement, but, as noted above, employers should be mindful that other paid sick leave laws or collective bargaining agreements could require that employees need to be paid for time that is missed as a result of a COVID-19 diagnosis.

Recordkeeping

The OSHA ETS Rule also includes several recordkeeping requirements, including:

• • Keeping a record of each employee’s vaccination status and associated proof of vaccination from both fully and partially vaccinated employees;
  • Keeping a roster of each employee’s vaccination status;
  • Storing vaccination records and rosters as they would other employee medical records, and maintaining the confidentiality of the records to the extent required by law; and
  • Maintaining records of each COVID-19 test result an employee provides to the employer and maintaining the confidentiality of the test results as the employer would other medical records.

The OSHA ETS Rule also provides that employers must notify OSHA of “each work-related COVID-19 fatality within 8 hours of the employer learning about the fatality and each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about the in-patient hospitalization.”

Will the OSHA ETS Rule Be Challenged?

Yes, after the announcement today, several states have announced that they intend to challenge the OSHA ETS Rule in court.  These legal challenges will need to be addressed by the courts, so employers should not assume that the ETS Rule will be struck down.

Bottom Line

The OSHA ETS Rule imposes strict requirements on employers with over 100 employees. Employers subject to this rule must promptly begin working to ensure their workplace policies meet the ETS requirements.

If you need assistance, you can contact anyone on Felhaber Larson’s Labor & Employment team.

The post OSHA’s COVID-19 ETS Rule Requires Employers with 100+ Employees to Require Vaccination or Testing by January 4, 2022 appeared first on Felhaber Larson.

Recommendations for Protection of Unvaccinated and At-Risk Workers

The Guidance recommends that employers have unvaccinated and at-risk workers (i.e., people with conditions that may affect their ability to have a full immune response to vaccination) take the following precautions:

• • Get vaccinated because vaccination is the key in a multi-layered approach to protect workers;
  • Wear face coverings;
  • Socially distance from others;
  • Participate in workplace training about safety protocols; and
  • Practice good personal hygiene.

The Guidance acknowledges that workers with disabilities may be legally entitled to a reasonable accommodation that protects them from the risk of COVID-19 if they cannot be protected through vaccination, cannot get vaccinated, or cannot use face coverings.  Employers should consider taking steps to protect these workers in the same manner as they would unvaccinated workers, regardless of their vaccination status.

In addition, the Guidance recommends that employers engage with workers to implement a comprehensive plan to protect unvaccinated and at-risk workers, which utilizes the following:

• • Granting paid time off for employees to get vaccinated;
  • Ensuring that infected workers, people with COVID-19 symptoms, and unvaccinated people who have been in close contact with someone with COVID-19 are excluded from the workplace;
  • Implementing physical distancing for unvaccinated and at-risk workers in all communal work areas, including keeping people six feet apart or constructing barriers;
  • Providing unvaccinated and at-risk workers masks, facial coverings, or use of respirator or other PPE, keeping in mind anti-discrimination laws and potential reasonable accommodations;
  • Educating and training workers on COVID-19 policies and procedures using accessible formats and in an understandable vernacular;
  • Suggesting unvaccinated customers and visitors wear face coverings;
  • Maintaining ventilation systems to maximize indoor air circulation;
  • Performing routine cleaning and disinfection;
  • Recording and reporting COVID-19 infections, in-patient hospitalizations, and deaths in accordance with 29 CFR 1904; and
  • Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards.

In addition, the Guidance reminds employers of their continuing obligation to follow mandatory OSHA standards related to PPE, respiratory protection, sanitation, protection from bloodborne pathogens, along with their eternal obligation under the General Duty Clause to provide a safe and healthful workplace free from recognized hazards.

Recommendations for Higher Risk Workplaces

Not to be ignored in the Guidance are the so-called higher risk workplaces, which include manufacturing, meat, poultry, seafood processing, high-volume retail, and other places where unvaccinated and at-risk workers are in close or prolonged contact with others, or where workers may be exposed to respiratory droplets in the air or on contaminated surfaces, or are in contact with or live with unvaccinated or at-risk individuals.  In these circumstances, the Guidance recommends that employers stagger break times and arrival/departure times to avoid congregations of unvaccinated and at-risk workers and to provide temporary break areas and restrooms to minimize interaction.

For workplaces with assembly or processing lines, the Guidance recommends proper spacing or use of barriers.  Retail workplaces are encouraged to provide masks for unvaccinated customers, ensure social distancing among clients, and to shift stocking activities to off-peak or after hours.  All work groups, not just high-risk, should maintain cleaning and sanitation protocols at all times.

Bottom Line

As with previous guidance, OSHA is not creating new standards or imposing new legal obligations on employers.  Instead, the Guidance aims to provide concrete recommendations for employers to ensure that all workers, particularly those that are unvaccinated or at-risk, are protected from COVID-19.  If employers, especially those in high risk workplaces, take good faith steps to heed these recommendations, an expansion of the Emergency Temporary Standard to other employment groups may not be necessary.  We will continue to monitor and report further developments.

The post On the Heels of the Emergency Standard for Healthcare, OSHA Provides Updated Guidance for the Rest of Us appeared first on Felhaber Larson.

Nuts and Bolts

The Standard requires healthcare employers to implement safeguards to reduce transmission of COVID-19 and to protect workers from contracting the virus, including:

1. 1. Employers must develop and implement a COVID-19 plan, which must be in writing if the employer has more than ten employees.  The plan must include a designated safety coordinator with authority to ensure compliance, a workplace-specific hazard assessment, and involvement of non-managerial employees in its creation.  The plan must be designed to promulgate policies and procedures to minimize the risk of transmission;
   2. Employers must limit and monitor points of entry to settings where direct patient care is provided, including screening and triaging of patients, clients, and other visitors entering the setting.  Employers are encouraged to use telehealth services where feasible;
   3. Employers must provide and ensure each employee wears a facemask when indoors and when occupying a vehicle with other people for work purposes.  Exceptions to the facemask requirement include:
      1. When the employee is alone in a room;
      2. When the employee is eating or drinking at the workplace, provided there is six feet of distance or a physical barrier separating the employee from others;
      3. When the employee is wearing respiratory protection;
      4. When it is important to see the employee’s mouth (such as when communicating with a deaf person);
      5. When the employee cannot wear a facemask due to medical necessity, a medical condition or disability, or due to a religious belief;
      6. When the employer can demonstrate that the use of a facemask presents a hazard to the employee or serious injury or death.
   4. Employers must provide and ensure employees use respirators and other PPE when exposed to people suspected or confirmed to have COVID-19;
   5. In cases where an aerosol-generating procedure is performed on a person suspected or confirmed to have COVID-19, the employer must limit the number of employees present to those essential for patient care and support and ensure the procedure is performed in an airborne infection isolation room, if available, and that all areas are cleaned and disinfected after the procedure is complete;
   6. Employers must ensure that each employee is separated from all other individuals by at least six feet when indoors, unless it is demonstrated that distancing is not feasible (e.g., during hands-on medical care).  In such a case, the employer must ensure that the employee is as far from other individuals as feasible;
   7. Employers must install cleanable or disposable solid barriers at each fixed work location in non-patient care areas where each employee is not separated from others by at least six feet;
   8. Employers must ensure that cleaning and disinfection of surfaces and equipment is performed in accordance with CDC guidelines in all patient care areas, resident rooms, equipment, and high-touch surface areas;
   9. Employers must ensure that existing HVAC systems are used in accordance with manufacturer’s instructions and design specifications;
   10. Employer’s must have a system for health screening and medical management, including:
       1. Screening employees before each shift;
       2. Requiring employees to promptly notify the employer if they are COVID-19 positive, suspected of having COVID-19, or experiencing certain symptoms;
       3. Following requirements for removing employees from the workplace; and
       4. For employers with ten or more employees, providing medical removal benefits
   11. Employers must support COVID-19 vaccination for employees by providing reasonable time and paid leave for obtaining the vaccination and any side effects experienced after vaccination;
   12. Employers must ensure that all employees are trained regarding all relevant policies and procedures so they understand COVID-19 transmission, tasks and situations in the workplace that could result in infection;
   13. Employers must inform employees of their rights under the Standard and that they cannot be discharged or discriminated against for exercising their rights;
   14. Standard requirements must be implemented at no cost to employees.

In addition to the requirements listed above, the Standard requires that employers with ten or more employees retain all versions of its COVID-19 plan while the Standard remains in effect.  With regard to recordkeeping, employers must establish and maintain a COVID-19 log to record each instance in which an employee is COVID-19 positive, regardless of whether the instance is connected to exposure at work.  The Standard reiterates that the employer must report each work-related COVID-19 fatality within eight hours of the employer learning about the fatality and work-related in-patient hospitalizations within 24 hours.

Applicability of the Standard

The Standard applies to all settings where employees provide healthcare services or healthcare support services.  In situations where a healthcare setting is embedded within a non-healthcare setting, the Standard applies only to the embedded healthcare setting and not to the remainder of the physical location.  The Standard also applies to situations where emergency responders or other licensed healthcare workers enter a non-healthcare setting during the provision of healthcare services.

The Standard exempts fully vaccinated workers from masking, distancing, and barrier requirements in “well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.”  In order for fully vaccinated workers to be exempt from these requirements, however, an employer’s COVID-19 plan must “include policies and procedures to determine employees’ vaccination status.”

The Standard does not apply to the provision of first aid by an employee not licensed as a healthcare provider, the dispensing of prescriptions by a pharmacist in retail settings, non-hospital ambulatory care settings where all non-employees are screened prior to entry and people suspected or confirmed to have COVID-19 are not permitted to enter, healthcare support services not performed in a healthcare setting, and telehealth services performed outside of a setting where direct patient care occurs.

Bottom Line

It appears that in lieu of an all encompassing COVID-19 safety standard, OSHA elected to limit its safety measure to healthcare facilities such as hospitals, nursing homes, and assisted living facilities, along with emergency responders and home healthcare workers, in an attempt to target an industry that has been hard hit by the pandemic in terms of exposure and transmission of the virus.

While the Standard is estimated to cover and protect nearly 10 million healthcare workers, many employees in other industries – such as grocery and meatpacking– have criticized the narrow scope of the Standard and advocated for a broader range of coverage.

It will be interesting to see if OSHA decides to make this Standard permanent and/or to expand the scope of the Standard to other industries.  We will monitor this issue for further developments.

The post OSHA Enacts COVID-19 Safety Standard Covering Healthcare Employees appeared first on Felhaber Larson.

This statement effectively reverses and abandons previous guidance issued on April 20, 2021 in which OSHA stated that if an employer adopts a mandatory COVID-19 vaccination policy, an adverse reaction to the vaccine was recordable on its OSHA 300 log if the reaction was work related, a new case, and met one or more of the general recording criteria in 29 C.F.R. 1904.7.  The April 20 guidance told employers that mandate vaccinations that any adverse reaction to the vaccination was considered work-related and needed to be recorded.

OSHA is now saying that it will not enforce the recording requirement as applied to COVID-19 vaccinations through May 2022 as OSHA is concerned that requiring employers to list adverse reactions was hurting vaccination efforts.  Specifically, OSHA does not want to have any appearance of discouraging workers from receiving the COVID-19 vaccination and does not want to disincentivize employers’ vaccination efforts.

Bottom Line

In issuing the latest policy statement eliminating recording adverse vaccine reactions, OSHA is ensuring that it is in line with the Department of Labor and other federal agencies in encouraging vaccination for the COVID-19 virus.  OSHA does not want to give the appearance that it is encouraging workers to refuse vaccinations or to discourage employer vaccination efforts.  By abandoning its recording requirement for adverse vaccination reactions until May 2022, OSHA is seeking to ensure that it is not a hinderance to employer efforts to vaccinate workers either through mandatory vaccination programs or through strong recommendation.

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OSHA’s Duty of Care

Although the mention of OSHA conjures images of construction workers and heavy machinery, it is important to reiterate that portions of the Act apply to most private employers, regardless of industry. Indeed, even if a company has employees who work in a cubicle all day those workers are still covered by OSHA.

Although there is nothing in OSHA itself nor any implementing regulations which expressly apply to COVID-19, under the Act’s General Duty Clause an employer is required to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm. As this relates to COVID-19, OSHA has issued citations to employers who fail to take steps to prevent the exposure of spread of the virus at work, for example, through failing to require social distancing or other infection control practices like masking.

New Guidance Provides Example Steps for Employers to Take

In the newly issued guidance, OSHA has noted that the implementation of a “COVID-19 prevention program” is the most effective way to mitigate the spread of the virus at work. Although the guidance does not create any mandatory requirements which employers must follow, it does list several steps for employers to take as best practices to ensure that they are providing a safe workplace, including:

1. Assigning a workplace coordinator to oversee COVID-19 issues;
2. Conducting a hazard assessment to identify where and how workers might be exposed at work;
3. Identify measures to take to limit the spread of COVID-19 in the workplace;
4. Consider additional protections needed for workers at higher risk of severe illness;
5. Establishing a system for communicating with employees regarding COVID-19 issues in the workplace;
6. Educating workers regarding COVID-19 policies and procedures;
7. Instructing workers who are infected or potentially infected to stay home;
8. Minimizing the impact for quarantine and isolation on workers, for example, considering paid sick leave policies or remote work arrangements;
9. Isolating workers who show symptoms at work;
10. Performing deep cleans after persons suspected or confirmed to have OCVID were in the workplace;
11. Providing guidance to employees on COVID-19 screening and testing;
12. Recording and reporting COVID-19 infections and deaths;
13. Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards;
14. Making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees;
15. Not distinguishing between workers who are vaccinated and those who are not, i.e. continuing to require vaccinated workers to continue following COVID-19 infection control measures, “such as wearing a face covering and remaining physically distant.”

The New Guidance Signals Increased COVID-19 Enforcement to Come

Again, while this guidance does not create any additional mandatory requirements to follow, it does provide some insight into how OSHA views the General Duty Clause with respect to preventing COVID-19 infection at work, including the recommendation that COVID-19 vaccination be available at no cost to all employees and that employers should consider providing paid sick leave. This is noteworthy in light of the aforementioned Executive Order’s directive that OSHA “launch a national program to focus OSHA enforcement efforts related to COVID-19,” indicating that increased scrutiny is on its way.

Finally, the guidance reminds us that it is currently unknown whether vaccinated individuals can still spread the disease, and therefore, infection control practices such as masking and social distancing must continue to be maintained for the foreseeable future for an employer to meet its duty to reduce the hazards associated with COVID-19, even as more employees begin (hopefully soon) to receive the vaccine.

Bottom Line

For many employers, especially those in Minnesota, implementing and maintaining a COVID-19 prevention plan has been the standard practice for months now. However, given the increased focus on COVID-19 safety by OSHA, employers are well advised to again take stock of their workplace to ensure that all reasonable steps are currently being taken to protect workers as the pandemic continues.

The post OSHA Issues Further Guidance Regarding COVID-19 appeared first on Felhaber Larson.

In 2016, OSHA imposed a new rule designed to encourage employees to report work place illnesses and injuries without fear of employer retaliation. The rule required employers to:

– inform employees that they have the right to accurately report work-related injuries and illnesses without employer retaliation or discrimination;

– make employee reporting procedures “reasonable” for work-related injuries and illnesses by not deterring or discouraging reports; an

– refrain from retaliating against employees for making reports of work-related injuries and illnesses.

Then:  Post-Accident Drug Testing is Retaliatory

At the time, OSHA cautioned all of us that in furtherance of these requirements, they viewed post-incident blanket drug testing (testing regardless of suspicion of impairment) of employees to be retaliatory because it would have a chilling effect on accident-reporting. It appeared that the only post-accident testing that might pass muster in OSHA’s eyes was when there was a reasonable possibility (i.e., a high likelihood) that drug use contributed to the reporting employee’s incident, and the drug test would accurately identify the impairment caused by the drug.

This new standard was problematic because (a) drug testing is good at identifying the presence of drugs in a person’s system but there is no uniform standard for detecting actual impairment; and (b) this conflicted with the more expansive post accident testing rights that employer’s enjoy under Minnesota’s drug testing statute.

Now:  Post-Accident Drug Testing is Just Fine

No worries – OSHA just issued a memorandum on October 11, 2018, that basically reverses all of that. The memorandum says that for the most part, drug testing is not retaliatory, and it sets forth the specific types of testing that are now permissible under the rule.  They are:

– Random drug testing.

– Drug testing unrelated to the reporting of a work-related injury or illness.

– Drug testing under a state workers’ compensation law.

– Drug testing under other federal law, such as a U.S. Department of Transportation rule.

– “Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.”

Bottom Line

If you decided to hold off on revising your drug testing  policy to see how this shook out, your skepticism paid off.  If you did change your policies to conform to OSHA’s rigid view of testing, at least you can now return to what had worked for you for many years.

The post OSHA Reverses 2016 View That Post-Accident Drug Testing is Retaliatory appeared first on Felhaber Larson.

Often the citations arise because the employer failed to develop a written policy, or more likely, failed to regularly update the policy and train employees. These deficiencies can have very serious consequences for both the workers and the employer.

Top 10 List

The following is a list of the top 10 most frequently cited standards for all industries in the State of Minnesota (and the number of citations issued).

• Hazard communication*
• Machinery and machine guarding – general requirements
• The control of hazardous energy (lockout/tagout)
• Fall protection in construction
• Respiratory protection*
• A Workplace Accident and Injury Reduction (AWAIR) program*
• Powered industrial trucks
• Electrical wiring methods, components and equipment in general industry
• Carbon monoxide monitoring
• Employee right-to-know training*

Those marked with an asterisk (*) – Hazard Communication, Respiratory Protection, AWAIR, and Right-To-Know – specifically require that covered employers develop and regularly update written programs, and provide regular training to employees on those programs.  With some variations related to subject matter, the programs must describe workplace hazards, and the worksite specific safety procedures and equipment employees must utilize to limit the risk of work-related illness or injury. Citations in these areas account for roughly one half of all citations issued in the list.

Cost of Non-Compliance

For smaller employers, the cost of developing, updating, and training on these programs (and others not appearing on this list) may seem daunting.  However, the cost of ignoring obligations imposed by State and Federal safety standards may be far greater.  For one thing, workplace injuries can present significant monetary liability and administrative nightmares under the Minnesota workers compensation law.

In addition, OSHA citations cost money – penalties can run up to a maximum of $7,000 for each violation deemed “serious,” and up to $70,000 for each violation deemed “willful” or “repeated.”  A record of receiving OSHA citations could also limit businesses when competing for contracts, thereby injecting even greater costs into a business’s noncompliance.

Bottom Line

Take the time to learn and understand the state and federal safety and health standards that may apply to your business.  If written programs and employee training are required, make sure you commit the time and resources necessary to develop or update a safety program that will help deter workplace accidents and subsequent OSHA scrutiny.

Developing effective workplace safety programs just makes good sense. You can make dramatically reduce the likelihood of an OSHA citation while optimizing good will with OSHA in the event that an investigator visits your workplace.  This could be the deciding factor in whether OSHA issues a citation, or if it does, may result in a reduction of the classification and penalty of any such citation.

The post Lack of Training Dominates OSHA’s “Most Cited” List appeared first on Felhaber Larson.

What the Rule is All About

As we reported in New Persuader Rule Hampers Employers, the DOL angered many employers, their legal counsel, and the American Bar Association in early 2016 when they sought to expand reporting requirements imposed on “persuader activities” under Section 203(a) of the Labor-Management Reporting and Disclosure Act.  Persuader activities include those services performed by consultants and attorneys the object of which “is to persuade employees to exercise or not to exercise, or persuade employees as to the manner of exercising, the right to organize and bargain collectively through representatives of their own choosing.”

Under the “old” rule, reports to the DOL were required on an employer’s arrangement with the “persuader” and the cost/fees incurred for those services but only if the provider was engaged in direct persuasion with the employees.  The rule exempted attorneys providing legal advice and excluded any reporting by legal counsel working indirectly with an employer to manage strategy and communications related to union avoidance.

The DOL’s proposed change expanded the scope of the rule to cover indirect activities such as planning, directing or coordinating with employers engaged in a union election campaign, and/or providing scripts and campaign materials to employers for use in such a campaign.  Lawyers are often called-upon to provide this guidance to make sure that the employer stays on the correct side of the complex and ever-changing legal framework for union election campaigns.  Thus, the rule intruded extensively into the privilege of confidentiality that exists between lawyers and their clients.

What Happens Next?

In November, 2016, as we wrote  at the time, a federal judge in Texas granted a permanent injunction staying enforcement of the new persuader rule. An appeal of that decision by the DOL is pending before the 5^th Circuit Court of Appeals, and the DOL under the new administration has been evaluating their options regarding the rule and the pending appeal.

With their evaluation apparently completed, the DOL will start by publishing a Notice of Proposed Rulemaking to rescind the rule.  The public will now have the opportunity to comment on the proposed revocation of the rule, and you can be sure the employer community and their legal advisors will not be shy in expressing their desire to see the rule revoked.

Bottom Line

Our prediction is that the new persuader rule manufactured during the Obama presidency is dead in the water and that the more traditional interpretation of persuader activities – which does not include legal advice offered by attorneys – will remain in place.

The post Labor Department Seeks to Revoke Controversial “Persuader” Rule for Union Elections appeared first on Felhaber Larson.

This leaves just a small window of opportunity for employers to complete their review and assessment of whether their workplace injury reporting procedures and other policies comply with the final rule.

Are Safety Incentive Plans Permissible?

The final rule addresses two key issues for employers, the first being workplace safety incentive plans that may discourage employees from reporting injuries.  Safety incentive plans can take many forms (e.g. monetary bonuses, raffle drawings for prizes, or other incentives) with the goal of rewarding employees for having an injury-free workplace.  However, OSHA believes that these types of programs may actually discourage employees from reporting work-related injuries in order to remain eligible for the incentives.

The final rule does not expressly prohibit safety incentive programs, but requires any such programs to be structured to encourage safety in the workplace without discouraging the reporting of workplace injuries.  The question for employers is whether a particular program constitutes a material benefit and whether the disqualification from any such program would dissuade an employee from reporting an injury.

What About Post-Injury Drug Tests?

The second key issue is OSHA’s contention that all-encompassing post-injury drug testing policies dissuade employees from self-reporting and therefore violate the new anti-retaliation provisions.  OSHA does not outright ban post-accident drug testing when an employee self-reports, but instead states that such testing should be limited to situations “in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

As an example, an employee with carpel tunnel syndrome would not necessitate a drug test for reporting hand or wrist pain on the job, but the worker who drives a fork lift into a wall would certainly warrant testing.  Employers need not specifically suspect drug use, but there needs to be a reasonable possibility that drug use was a contributing factor to the workplace injury.

The final rule arguably only applies to situations where an employee self-reports an injury or illness, and does not apply when the employer initiates the test due to a reasonable basis to believe the employee is under the influence of drugs or alcohol.  Also, the final rule does not prohibit employers from mandatory drug testing if required under federal or state law, such as DOT regulations.

Minnesota employers who utilize drug tests must also make sure their policies comply with the Minnesota Drug and Alcohol Testing the in the Workplace Act (“DATWA”), which also establishes very specific situations where an employee can be required to submit to a drug and alcohol test.  Extreme care must be applied here because OSHA’s new rule appears to require that drug tests under these circumstances demonstrate that the tested employee was impaired by drug use.  The Minnesota statute, on the other hand, requires only that the test determine the presence of the drug.  This conflict could cause a Minnesota employer to violate OSHA’s new rule even though the drug test conforms entirely with the state law.

Bottom Line

If you have not done so already, you still have a little time to review your accident reporting policies and post-injury policies to determine if they comply with the new OSHA rule.  Given the complexity and fact-intensive nature of these issues, employers who drug test or have safety incentive plans should consult legal counsel to determine whether any such policies comply or run afoul of these new rules.

The post OSHA Delays Anti-Retaliation Enforcement Until Dec. 1 appeared first on Felhaber Larson.

The final rule imposes new public disclosure policies and anti-retaliation provisions on employers.  This expands OSHA’s publication of data related to workplace injuries and illnesses, and opens the door to public scrutiny and anti-retaliatory risk for employers.

Employers Required to Make Electronic Disclosures

The final rule requires certain employers to make electronic disclosures to OSHA, who in turn will scrub the data for personally identifiable information.  OSHA will then publish the data on its website in a searchable format that the public can view.

Under the final rule, employers with 250 or more employees must electronically disclose information from the following recordkeeping forms annually:

(1)  Form 300A (Summary of Work-Related Injuries and Illnesses);

(2) Form 300 (Log of Work-Related Injuries and Illnesses); and

(3) Form 301 (Injury and Illness Incident Report).

All other employers will be required to electronically submit information only if they receive a request from OSHA.  The only exception is for  employers with 20 to 249 employees in designated hazardous industries  – they must also disclose information from Form 300A annually.

The new electronic disclosure requirements are being phased in.  In the first year, all affected employers will need to submit only Form 300A by July 1, 2017. In the second year, all affected employers will need to submit all required information by July 1, 2018. In every year thereafter, all affected employers will need to submit all required information by March 2.

Anti-Retaliation Provisions

In the interest of encouraging employees to report work place illnesses and injuries, the new rule imposes additional anti-retaliation provisions on employers that take effect on August 10, 2016.  At that time employers must:

–  inform employees that they have the right to accurately report work-related injuries and illnesses without employer retaliation or discrimination;

–  make employee reporting procedures “reasonable” for work-related injuries and illnesses by not deterring or discouraging reports; and

–  refrain from retaliating against employees for making reports of work-related injuries and illnesses.

These obligations are broad so employers must proceed cautiously regarding post-incident activities. For example, OSHA indicates that post-incident blanket drug testing (testing regardless of suspicion of impairment) of employees is retaliatory and is thus prohibited. Though this does not mean that employers can never drug test an employee after an incident, it would appear that such tests are permitted only after an incident when there is a reasonable possibility (i.e., a high likelihood) that drug use contributed to the reporting employee’s incident, and the drug test will accurately identify the impairment caused by the drug.  This would seem to restrict the post-injury testing rights that employers have enjoyed for many years under Minnesota’s drug testing law.

The Bottom Line

The final rule imposes additional burdens on employers with its disclosure and anti-retaliation requirements. While OSHA has always required that this data be recorded, the electronic disclosure and the public posting of the data raises serious concerns.  Besides the problem of  insuring that the data is properly and thoroughly scrubbed, employers now face increased public scrutiny of matters that could be subject to misinterpretation and perhaps improper manipulation.

The phased-in implementation gives employers some time to bring their businesses into compliance. However, given the nuances of these new obligations, employers should begin evaluating their incident reporting procedures, post-incident follow-up procedures, drug testing policies, and anti-retaliation policy right away to be sure that they will pass muster when the rule becomes effective.

The post OSHA Electronic Records Rule Expands Liability Risk appeared first on Felhaber Larson.

How the Rules Changed

The new standards require a fatality is the only event that needs to be reported within eight (8) hours.  Otherwise, each in-patient hospitalization, each amputation and each loss of an eye resulting from a work-related incident must be reported within twenty-four (24) hours. Reports must be made to Minnesota OSHA during ordinary business hours, and to the federal OSHA during evenings and weekends.

Once OSHA receives a report, they will contact the employer by phone or send the employer a questionnaire asking for more information concerning the incident. the employer’s safety practices and history of similar incidents, and any actions taken by the employer in response to the incident. Based upon this information, OSHA will categorize the incident to determine whether to conduct an on-site inspection or merely require additional information in order to determine the appropriate agency response.

What Information to Provide

Employers required to make a report should proceed with caution when responding to OSHA inquiries. Be sure to thoroughly review the underlying circumstances of the event according to the applicable safety and health standards.  In addition, make sure that you avoid damaging admissions in case there are statutory or common law claim waiting in the weeds.

Similarly, consider not completing OSHA’s form questionnaire, choosing instead to put in your own letter or position statement that generally covers the topics addressed in the questionnaire.  This allows you to control the narrative and tell the story you want to tell.  This could also help avoid disclosing unhelpful information or providing bait for an OSHA fishing expedition.

Bottom Line

Know your deadlines for submitting injury-related information to OSHA and be cautious in what you say.  Give OSHA what they need but don’t make it easy for them, or anyone else, to find fault with what you did.

The post OSHA Slipped in New Injury Report Rules Last Fall appeared first on Felhaber Larson.

Increases on the Horizon?

The law gives OSHA discretion to adjust penalty amounts to something less than the maximum authorized by Congress, and officials at the agency have not determined just how significantly maximum penalty amounts will increase from the current caps of $7,000 for a “serious” violation and $70,000 for a “willful” or “repeat” violation. Congress has authorized increases tied to the increase in the Consumer Price Index since penalties were last raised (i.e., up to 82% times current penalty amounts based on current CPI). Thus, based on the present calculus, the penalty amount for a “serious” violation could increase to approximately $12,740, and the penalty for “willful” and “repeat” violations could increase to approximately $125,740. Based on the amount of penalties assessed in fiscal year 2014, increasing penalties to the maximum would have generated nearly $120 million of additional revenue to finance government operations, including OSHA’s operations.

Before raising penalty amounts, the law requires the White House Office of Management and Budget (“OMB”) to issue guidance by January 31, 2016 detailing the procedures for implementing the law’s provisions, and OSHA must publish an interim final rule by July 1, 2016.

Bottom Line

The cost of an unsafe workplace may keep going up. We will continue tracking developments in this area.

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