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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Odds Increase On OSHA Issuing COVID-19 Emergency Temporary Standards

Shortly after President Biden took office, he signed an Executive Order directing OSHA to, among other things, determine whether emergency temporary standards (ETS) on COVID-19 are necessary; and if so, to issue them by March 15, 2021. Former Secretary of Labor Eugene Scalia repeatedly stated an ETS was not necessary and OSHA’s general duty clause provided OSHA with the necessary enforcement tool to address COVID-19 in the workplace.

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OSHA’s Return to Public Shaming

Prior to the Trump administration, OSHA commonly engaged in the practice of “public shaming.” In other words, if an OSHA investigation found a relatively serious safety violation, it would issue a press release identifying the business, exposing their failings, and detailing the hazards discovered in the inspection. Often, these press releases would be picked up by other media sources and more widely circulated. The objective was that such media attention would serve an educational and deterrent purpose to other entities in the same industry and/or geographic area. During this time, OSHA also had a general policy of providing information about alleged violations upon request from media sources quickly. Critics of the policy argued that OSHA should not publicize enforcement cases until the citations have been fully resolved as a matter of due process. 

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Be Wary of OSHA “Approved” PPE

OSHA’s long-standing position is that it does not approve or endorse particular products.  Moreover, the determination of compliance with OSHA’s standards cannot be based on an evaluation of the equipment or devices alone. Rather, this determination must consider factors related to the use of such devices at a worksite and should include an evaluation, through direct observation, of employee work practices and conditions of use in the workplace. See OSHA Standard Interpretation dated September 15, 1993, which can be found here.

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