Supreme Court Reinstates Stay of OSHA’s ETS

Not surprisingly, particularly after a recent oral argument on January 7, 2022, the Supreme Court reinstated the national stay of OSHA’s ETS today. In doing so, the Court found that the petitioners were “likely to succeed on the merits.” As also expected, Justices Kagan, Sotomayor, and Breyer dissented from the decision. Many practitioners, including the co-authors of this blog, questioned OSHA’s authority to issue the ETS for reasons discussed in prior blogs.  

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March 2nd Deadline to Electronically Submit 300A

The start of the New Year serves as a good reminder to covered employers that they must electronically submit 300A data on or before March 2, 2022, for the calendar year 2021. Covered employers include those with 250 or more employees. They are currently required to keep OSHA injury and illness records and those with 20 to 249 employees and classified in specific industries with historically high rates of occupational injuries and illness. A list of these industries can be found here.

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OSHA Withdraws COVID ETS for Healthcare

On December 27, OSHA announced it is allowing its ETS for healthcare facilities to sunset but that it would continue to work expeditiously to promulgate a permanent standard for coronavirus-related hazards.  In its statement, OSHA formally withdrew the non-recordkeeping portions of the ETS, however, stated that the recordkeeping requirements for employers covered under that separate rule which require them to maintain logs of all employee COVID cases regardless of whether they are considered work-related or not would remain in effect.  In addition, healthcare facilities must continue to affirmatively report COVID work-related inpatient hospitalizations within 24 hours and fatalities within 8 hours. 

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Sixth Circuit Lifts OSHA ETS Stay

Last night, the Sixth Circuit lifted the Fifth Circuit’s national stay on OSHA’s general duty COVID ETS. Shortly thereafter, OSHA issued information to employers stating it would exercise enforcement discretion and not issue citations for noncompliance with any ETS requirement before January 10, 2022 and would not issue citations for noncompliance with the testing requirements before February 9, 2022 provided employers are exercising reasonable, good faith efforts to come into compliance.

Not surprisingly, a petition has now also been filed with the U.S. Supreme Court.

The roller coaster ride continues.

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A Glimpse Into OSHA Today and Tomorrow

To state the obvious, the pandemic has resulted in completely unexpected change across the country in so many ways. OSHA’s visibility and role are probably one of the most significant changes to any federal agency. Prior to the pandemic, most businesses outside of specific industries like construction and manufacturing most likely had minimum, if any, interaction with OSHA unless it had a serious injury or fatality. Since then, OSHA has become a household name for any business, large or small, in its efforts to keep workers safe from COVID.

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Canadian Union Challenges to Mandatory Proof of COVID-19 Vaccination Policies

Today we have insights from Norm Keith [1], a management-side employment and labor lawyer for KPMG.

The COVID-19 pandemic continues with over 5.1 million deaths worldwide and over 29,000 in Canada. [2] Tens of thousands of workers have contracted the deadly virus at work and filed workers’ compensation claims, including a number of worker deaths across Canada. COVID-19 is both an Occupational Health and Safety (“OHS”) as well as a Public Health crisis. Early responses of governments included lockdown regulations, physical distancing and masking mandates, and physical changes to workplaces.

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5th Circuit Continues Stay of OSHA ETS – What Do Employers Do Now?

As we reported a day after the November 5, 2021, effective date of OSHA’s ETS, the Fifth Circuit issued a temporary stay of the ETS pending further proceedings. On November 12, 2021, a three-judge panel of the Fifth Circuit continued the stay in a 22-page decision that contained numerous quotes and footnotes aggressively attacking the constitutionality of the ETS by stating, among other things, its promulgation grossly exceeds OSHA’s statutory authority. The Court further opined that the ETS is “fatally flawed” as its reach extends far beyond the Agency’s mission. The decision further noted, what many practitioners have already observed, that the ETS appears to be a “workaround” to impose a federal vaccine mandate.

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OSHA Publishes General Industry Emergency Temporary Standard

OSHA’s long-awaited general industry COVID-19 emergency temporary standard (“ETS”) was officially published today and became effective immediately for employers in those states without “state OSHA” plans. However, employers covered by federal OSHA still have until December 5, 2021, to comply with all the requirements, except the weekly testing requirements, which do not take effect until January 4, 2022. As expected, the ETS only applies to employers with 100 or more employees in the aggregate, including part-time employees. Generally speaking, covered employers will be required to do the following:

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OSHA Publishes Its Advance Notice of Proposed Rulemaking for Heat Stress

On October 27, 2021, OSHA published an Advance Notice of Proposed Rulemaking (“ANPRM”) to initiate a comment period to gather diverse perspectives and expertise on heat stress issues such as heat stress thresholds, heat acclimatization planning, and exposure monitoring. OSHA has been talking about a need for a heat stress standard, so this development is not surprising. Although OSHA has traditionally addressed heat hazards under the general duty clause, a decision by the Occupational Safety and Health Review Commission on February 28, 2019, in Secretary of Labor v. A.H. Sturgill Roofing, Inc[1]., which reversed an administrative law judge’s order affirming heat-related citations made it more difficult for OSHA to do so.  In fact, the Commission in Sturgill specifically questioned the use of the general duty clause calling it more of a “gotcha” and “catch-all” law and opined that once a hazard is identified, such as heat stress, OSHA should engage in rulemaking to allow various stakeholder participation in the process. It seems OSHA has finally taken the Commission up on that offer. 

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