Can an employer prevent a Section 11(c) whistleblower from getting double damages in a settlement agreement and release of a related claim? Maybe.

In a recent decision in the Eastern District of New York, Walsh v. Community Health Center of Richmond, Inc., et al., 21-CV-3094 (ARR)(TAM), the court held that OSHA has the right to pursue individual damages for a Complainant under Section 11(c) even though a prior federal action brought by the Complainant against her employer raising the same whistleblower allegations under New York Labor Law (“NYLL”) § 740, which protects employee-whistleblower, was dismissed with prejudice. The Complainant sued her employer directly in the prior federal lawsuit alleging, among other things, that her termination violated OSHA’s General Duty Clause. During the course of the litigation, the Complainant filed a voluntary stipulation dismissing her NYLL § 740 claims with prejudice. It should be noted that the court there recognized that Section 11(c) of OSHA does not have a private right of action.

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National Institute for Occupational Safety and Health Issues Guidebook on Protecting Temporary Workers

The use of “leased” employees continues to skyrocket. Between 1992 and 2017, it is estimated that the number of people working for employee leasing firms increased 682%, from 341,884 to 2.7 million. There are a variety of reasons companies use leased employees. However, host businesses should be aware that even though they are not the “employer” of record, they still have safety and health obligations under OSHA. Under OSHA’s Multi-Employer Citation Policy, CPL 2-0.124 (the “Multi-Employer Policy”), more than one employer may be citable for a hazardous condition that violates an OSHA standard in certain circumstances, including an employer that exposes an employee to the hazard. This is an important reminder because, under normal circumstances, leased employees may not be provided the same level of training as a host company’s employees.

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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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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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More than 100 Employees? Mandatory Vaccinations or Weekly Testing Soon To Be Required Under OSHA’s Forthcoming Emergency Temporary Standard

On September 9, 2021, the Department of Labor announced plans to issue an emergency temporary standard (“ETS”) requiring employers with more than 100 employees to ensure that every employee is fully vaccinated against COVID-19 or tests negative every week. Although neither the White House nor the Department of Labor has disclosed a definitive deadline, it is expected it will be issued quickly. If so, this means the ETS will most likely skip the normal public comment period from stakeholders generally required during the rulemaking process. On the contrary, the current COVID-19 ETS in health care took over six months in the regulatory process.  

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In the absence of any grave danger, OSHA still issues a COVID-19 Emergency Temporary Standard but limits its coverage to healthcare and provides new guidance to all other employers

On May 26, 2021, we told our readers that we thought that although an “emergency” no longer existed about OSHA’s need to regulate employers’ handling of the COVID-19 virus, OSHA would nonetheless still issue an emergency temporary standard (ETS) due to immense political pressure on the Department of Labor (DOL) from numerous labor organizations and other “workplace safety” advocacy groups. We also stated in our earlier blog that we believe that any ETS issued would most likely address the exposure risks and hazards faced by employees and employers in the healthcare industry. Well, yesterday, that prediction came true as OSHA finally issued its “emergency” standard despite overwhelming evidence that the “grave danger” required by the Occupational Safety and Health Act to allow the DOL to issue a temporary emergency standard no longer exists.

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Are We Ever Going To See A COVID-19 ETS And, If So, What Will It Look Like? My Meeting With The White House This Week Didn’t Reveal Much

The one question on everyone’s mind is when, if ever, will employers learn whether OSHA will actually issue the COVID-19 Emergency Temporary Standard (“ETS”) that OSHA delivered to the White House’s Office of Management and Budget’s (“OMB”) Office of Information and Regulatory Affairs (“OIRA”) at some point in late April or early May to the general public. OIRA is required to engage in regulatory oversight under Executive Order 12866 and, as part of that oversight, has been conducting “listening sessions/meetings” with stakeholders. Many of us anticipated that we would have seen these meetings conducted and completed now, given this action’s “emergency” nature. 

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