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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NYS DOL Publishes Model Airborne Infectious Disease Exposure Prevention Plan under HERO

On July 6, 2021, NYS DOL published its Airborne Infectious Disease Exposure Prevention Plan under the New York Health and Essential Rights Act (“HERO”), signed into law on May 5, 2021, Governor Cuomo. In addition to the general model plan, several industry-specific templates were also published, including agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail.

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OSHA Issues Enforcement Guidance for Electronic Recordkeeping Rule and Promises Aggressive Enforcement

As discussed in a previous blog, covered employers were required to electronically submit 300A data for the calendar year 2020 between January 2, 2021, through March 2, 2021. In a recent standard interpretation dated May 6, 2021, OSHA issued enforcement guidance stating employers who could not do so because of issues associated with the Injury Tracking Application (ITA) shall not be cited. Provided the data was submitted on a timely basis once the ITA became operational. Accordingly, employers are advised that they should keep written documentation if they experience any issues with using the ITA moving forward. 

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To Mask or Unmask; that is the Question

Every business in the United States has been asking itself these past few days whether to drop any requirements it may have for visitors or employees to wear face masks since the CDC changed its COVID-19 guidance related to masks and physical distancing for individuals who are fully vaccinated on May 13. It seems that national retailers are announcing every hour the past few days that “fully vaccinated” individuals, including their employees, will no longer be required to wear a mask before entering their stores. 

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An Infectious Disease Prevention Plan and Workplace Safety Committee: Two New Significant Requirements Under New York’s HERO Act

On May 5, 2021, Governor Cuomo of New York signed the New York Health and Essential Rights Act (the “Act”) into law which amends the New York Labor Law. The Act creates occupational safety and health standards in the private sector for all airborne infectious diseases, including but not limited to COVID-19. While some of the Act’s obligations on New York employers are responsive to general concerns surrounding return-to-work during the COVID-19 pandemic, there are significant additional obligations. Such as developing an airborne infectious disease exposure prevention plan and creating a joint employer-employee workplace health and safety committee.

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OSHA’s COVID-19 ETS Expected Soon – Too Little, Too Late?

On April 26, OSHA sent its COVID-19 emergency temporary standard (ETS) to the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) for review. OIRA is the regulatory “gatekeeper” that is required, under various executive orders, to review proposed rules from agencies before their release. Based on this action, it is expected the ETS’s could take effect within the next two weeks and there is speculation that it includes separate requirements for higher risk industries such as health care and other requirements for non-health industries.  

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Adverse Vaccine Reaction: An OSHA Recordable Event or Not?

As more businesses reopen without restrictions and increased availability of vaccine supplies, many employers contemplate a mandatory vaccine policy. The decision turns on individualized facts to each organization, such as the employer’s size, the industry, the nature of the employee’s duties, and the administrative burden and similar considerations that follow a mandatory policy. Many employers are reportedly also considering or offering “incentives” to employees to persuade them to receive the vaccine, even if not requiring them to do so.

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OSHA Clarifies No Need for “Double” Reporting of Related Injuries/Illnesses

Under OSHA’s Recording and Reporting Occupational Injuries and Illnesses regulation, employers are required to affirmatively notify OSHA when an employee suffers a work-related hospitalization, amputation, or loss of an eye or an employee fatality. A fatality must be reported within eight hours and any in-patient hospitalization, amputation, or eye loss must be reported within twenty-four hours. Please see OSHA’s FAQs found here for additional information on what information must be reported and how to report it. See OSHA’s FAQ’s found here.

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