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.
Read MoreCategory: COVID-19
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.
Read MoreAdverse 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.
Read MoreWhy was OSHA’s COVID-19 Emergency Temporary Standard Placed in “Limbo” by Secretary of Labor Walsh?
On January 21, 2021, President Biden signed an executive order directing OSHA to consider issuing an Emergency Temporary Standard (“ETS”) related to COVID-19. If the ETS is deemed necessary, the executive order instructed OSHA to issue it by March 15, 2021. Now, nearly three and a half weeks past that date, the ETS has just been placed on “hold” by Secretary of Labor Marty Walsh.
Read MoreOdds 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.
Read MoreOSHA: Recordkeeping Reminder, Higher Penalties and 2021 Predictions
Happy New Year! A New Year means increased maximum penalties for OSHA citations. As of January 16, 2021, the maximum penalties for serious, other-than-serious and posting requirements is now $13,653 per violation; $13,653 per day for failure to abate; and $136,532 for willful or repeat violations.
Read MoreOSHA’s Most Frequently Cited Standards in COVID-19 Investigations
With a new administration on the horizon, it seems likely OSHA may revisit whether it will issue emergency COVID-19 regulations, something Secretary of Labor Scalia has repeatedly stated is not necessary despite heavy criticism by worker advocate groups. Indeed, many states have or will be implementing such emergency regulations such as Virginia, California, Oregon, and Michigan. Currently, OSHA relies on the general duty clause to ensure employers are taking necessary measures to protect employees from COVID-19 in the workplace. However, OSHA has made clear that other existing standards may be applicable in COVID-19 related investigations. Recently, OSHA published a list of the most frequently cited standards in COVID-19 investigations which can be found here.
Read MoreThe Interplay Between OSHA and Wrongful Death, Tort, and Gross Negligence Claims in the COVID-19 Era
OSHA practitioners who have handled citations involving fatalities or severe injuries are most likely no strangers to considering how these citations including the alleged violation description might affect collateral litigation such as wrongful death actions or tort claims. Indeed, collateral litigation almost always presents significantly more liability for businesses than the OSHA penalty. Although state workers’ compensation laws may differ, it is usually difficult for an employee to evade the exclusive remedy of workers’ compensation in a more traditional injury on the job. Of course, there may be other facts such as a fatality on a multi-employer worksite that might complicate workers’ compensation coverage. In such cases, the business may decide it is more advantageous to take the position that the injured employee of another entity is also its statutory employee to trigger workers’ compensation coverage. These considerations will often drive OSHA settlements including timing and settlement agreement language. For example, businesses should insist on language that states the settlement cannot be used for any other purpose except OSHA enforcement. Of course, notwithstanding such language, a court may still permit the settlement as evidence in collateral litigation.
Read MoreOSHA Issues New FAQs Regarding Face Coverings Amidst Employees’ Return to the Workplace
On June 10, 2020, the Occupational Safety and Health Administration (OSHA) published a series of frequently asked questions and answers (FAQs) regarding the recommended use of surgical masks, cloth face coverings, and respirators in the workplace in the wake of ongoing health concerns arising from the continued spread of COVID-19. The new guidelines recognize that as many workers begin to return to their places of employment throughout the United States, some may be wearing masks in the workplace for the first time. The FAQs embody the most recent guidance from OSHA addressing protective measures for the workplace during the coronavirus pandemic.
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