Prepare for the Worst and Hope for the Best

By Kathleen Jennings (kjj@wimlaw.com)

Last week, an EF-3+ tornado touched down in the city where I live, so it is not surprising that the concept of disaster preparedness is on my mind. (Thankfully, my family and I suffered no damage).

Is your business prepared if a disaster were to strike? And is your business required by OSHA to have a written emergency action plan?

According to OSHA, an emergency action plan (EAP) is intended to facilitate and organize employer and worker actions during workplace emergencies and is recommended for all employers. Well-developed emergency plans and proper worker training (i.e., so that workers understand their roles and responsibilities within the plan) will result in fewer and less severe worker injuries and less damage to the facility during emergencies. A poorly prepared plan may lead to a disorganized evacuation or emergency response, resulting in confusion, injury, illness (due to chemical, biological and/or radiation exposure), and/or property damage.

Two OSHA standards (29 CFR 1910.38(a) and 29 CFR 1926.35) require written EAPs. Not all employers are required to establish an EAP but developing an EAP is a good way to protect workers and businesses during an emergency. Emergency preparedness is a well-known concept in protecting workers’ safety and health.

At a minimum, for businesses that are required to to have an EAP, the plan must include:

  • A preferred method and/or procedures for reporting fires and other emergencies (29 CFR 1910.38(c)(1) and 29 CFR 1926.35(b)(5));
  • Emergency escape procedures and route assignments, such as floor plans, workplace maps, and safe or refuge areas (example shown below) (29 CFR 1910.38(c)(2) and 29 CFR 1926.35(b)(1));
  • Procedures to account for all workers after an evacuation, such as designating an assembly location (e.g., a safe/refuge area) (29 CFR 1910.38(b)(4) and 29 CFR 1926.35(b)(3))
  • Names, titles, departments, and telephone numbers of individuals both within and outside the company to contact for additional information or explanation of duties and responsibilities under the emergency plan (29 CFR 1910.38(c)(6) and 29 CFR 1926.35(b)(6));
  • Procedures for workers who remain to perform or shut down critical plant operations, operate fire extinguishers, or perform other essential services that cannot be shut down for every emergency alarm before evacuating (29 CFR 1910.38(c)(3) and 29 CFR 1926.35(b)(2)); and
  • Rescue and medical duties for any workers designated to perform them (29 CFR 1910.38(c)(5) and 29 CFR 1926.35(b)(4)).
  • Names, titles, departments, and telephone numbers of individuals both within and outside the company to contact for additional information or explanation of duties and responsibilities under the emergency plan (29 CFR 1910.38(c)(6) and 29 CFR 1926.35(b)(6));
  • Procedures for workers who remain to perform or shut down critical plant operations, operate fire extinguishers, or perform other essential services that cannot be shut down for every emergency alarm before evacuating (29 CFR 1910.38(c)(3) and 29 CFR 1926.35(b)(2)); and
  • Rescue and medical duties for any workers designated to perform them (29 CFR 1910.38(c)(5) and 29 CFR 1926.35(b)(4)).

And don’t forget to perform regular evacuation drills so that employees actually know what to do and where to go in the event of an emergency.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Copyright 2022 by Kathleen Jennings

Although the OSHA ETS is Dead, OSHA Can Still Cite Employers for COVID Related Hazards

Photo by Tim Mossholder on Pexels.com

By Kathleen J. Jennings (kjj@wimlaw.com)

Today, the U.S. Department of Labor announced the final nail in the coffin of the OSHA COVID-19 Emergency Temporary Standard (ETS). Specifically, the DOL announced that it will withdraw the COVID ETS, effective January 26, 2022. This comes after the U.S. Supreme Court stayed enforcement of the OSHA ETS on January 13, 2022, which guaranteed the ETS’ demise. Rest In Peace, ETS.

OSHA also wants us to know that although it is withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard, OSHA is not withdrawing the ETS as a proposed rule. OSHA is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard. OSHA’s Healthcare ETS expired on December 21, 2021.

In the meantime, employers need to be aware that OSHA can–and will–still cite them for COVID-related hazards in the workplace. Rather than base citations on the ETS, OSHA will fall back on its favorite catch-all regulation: the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act (OSH Act). Even before the ETS was enacted, OSHA relied upon the General Duty Clause as the basis of COVID-related citations. In addition to the General Duty Clause, OSHA may look for violations of any of the following standards:

  • 29 CFR Part 1904, Recording and Reporting Occupational Injuries and Illness.
  • 29 CFR § 1910.132, General Requirements-Personal Protective Equipment.
  • 29 CFR § 1910.134, Respiratory Protection.
  • 29 CFR § 1910.141, Sanitation.
  • 29 CFR § 1910.145, Specification for Accident Prevention Signs and Tags.
  • 29 CFR § 1910.1020, Access to Employee Exposure and Medical Records.

Therefore, employers need to be familiar with the OSHA Guidance, Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace and other industry-specific guidance. Have a written plan of action for COVID-19 as part of your safety program.

We can expect that OSHA Area Offices (AOs) will continue to prioritize inspections of COVID-19-related fatalities, multiple hospitalizations, and other unprogrammed activities alleging potential employee exposures to COVID-19-related hazards. Enforcement of protections for workers in non-healthcare industries will focus on unvaccinated or not fully vaccinated workers, including whether such employees are working indoors or outdoors. Additionally, OSHA will implement programmed inspections targeting those non-healthcare industries where OSHA has previously identified increased enforcement activity, and/or establishments with elevated rates of respiratory illnesses.

The Takeaway: Although OSHA cannot require employers to vaccinate or test their employees, OSHA can require employers to take steps to mitigate the hazards presented by COVID-19 in the workplace. Employers should continue to follow OSHA and CDC guidance that describe how to prevent the spread of COVID-19 in the workplace.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2022 by Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

The Supreme Court Stays the OSHA ETS; CMS Vaccine Mandate for Healthcare Workers Goes Forward

By Kathleen J. Jennings (kjj@wimlaw.com)

Yesterday, we received decisions from the US Supreme Court on the status of the OSHA COVID-19 ETS and the CMS vaccine mandate for healthcare workers. As I predicted, the OSHA ETS has been stayed, and the CMS mandate has been allowed to go forward.

Why were the two vaccine mandates treated differently? Short answer: the Court found that the fact that CMS has authority to regulate the health and safety of patients gave it authority to issue the vaccine mandate, while the Court also found that OSHA’s authority to issue an ETS to address a “grave danger” in the workplace did not extend to COVID-19. This is a gross oversimplification, but you get the idea.

Many employers with more than 100 employees are breathing a sigh of relief that they are no longer required to engage in the logistically difficult task of regular COVID-19 testing of workers. Employers still need to follow OSHA and CDC guidance regarding COVID-19 precautions such as social distancing and masking. And with the highly contagious nature of the Omicron variant, employers need to take steps to minimize the spread of infection in the workplace for reasons of worker health and to minimize worker absenteeism.

As for employers of healthcare workers, you need to review recent CMS Guidance that provides detailed information on how surveyors will review facilities for compliance with the vaccine mandate.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2022 by Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Get Ready–the U.S. Supreme Court is Going to Hear Arguments on the OSHA ETS and the CMS Vaccine Mandate

Photo by Any Lane on Pexels.com

By Kathleen J. Jennings (kjj@wimlaw.com)

Yesterday, the U.S. Supreme Court announced that it will hold a special session on January 7, 2022 to hear arguments regarding whether to stay the OSHA Emergency Temporary Standard (ETS) vaccine or test rule and the Center for Medicare and Medicaid Services (CMS) vaccine mandate for healthcare workers. It is unusual for the Court to hear arguments (rather than just read briefs) on the issue of a stay, so this should be interesting. We expect the Court to rule soon after it hears arguments. Employers covered by the OSHA ETS are certainly hoping for a quick ruling; the ETS is scheduled to go into effect on January 4, 2022, though the agency has said it would not start issuing citations before January 10, 2022. Talk about cutting things close. In the meantime, prudent covered employers should continue to prepare policies and testing protocols to be ready for the implementation of the ETS.

The Court’s ruling should give us a pretty good idea as to whether the Court would find either or both vaccine mandates lawful exercises of the federal government’s powers. One of the considerations in a request for a stay or injunction is “likelihood of success on the merits.” So if the Court enters a stay, that is an indication that it believes that the challengers to the vaccine mandates are likely to succeed on the merits of their challenges.

Will the Supreme Court give employers a late Christmas present? Stay tuned for further developments.

Merry Christmas and Happy Holidays to All!

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

What Is the Status of the Federal Vaccine Mandates?

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By Kathleen J. Jennings (kjj@wimlaw.com)

Legal challenges to the Biden Administration’s COVID-19 vaccine mandates are working their way quickly through the federal court system. With new rulings being issued on days, nights and weekends, it is hard to keep with which mandates are stayed and which are not. So here is a quick overview of where we are right now:

The OSHA Emergency Temporary Standard (ETS): In Effect (Not Stayed).

The OSHA ETS applies to employers with 100 or more employees and provides that covered employers must enact a policy that requires employee vaccination or weekly COVID testing. On Friday night, December 17, 2021, the Sixth Circuit Court of Appeals in Cincinnati lifted the stay of OSHA’s ETS. A number of parties in the Sixth Circuit proceedings have already filed a joint emergency motion with the U.S. Supreme Court requesting the Court to stay the ETS.

OSHA states that “it will not issue citations for noncompliance with any requirements of the [mandate] before January 10 and will not issue citations for noncompliance with the [mandate’s] testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” Thus, it is important for covered employers to immediately start making those good faith efforts at compliance with the ETS.

The Federal Contractor Vaccine Mandate: Stayed Nationwide.

The federal government contractor vaccine mandate will become part of federal government contracts and subcontracts, either as part of a new contract or an amendment or renewal of an existing contract. On December 7, 2021, a U.S. District Judge for the Southern District of Georgia entered a nationwide stay of the federal contractor vaccine mandate. This past Friday (12/17), a three judge panel of the 11th Circuit Court of Appeals denied the government’s motion to dissolve the stay. The 11th Circuit has also set an accelerated briefing schedule on the merits, with the last brief due on January 24, 2022. The same federal judge in Georgia has scheduled a hearing for 12/21 on the government’s motion for him to lift the stay. Whether the government files an emergency appeal to the U.S. Supreme Court remains to be seen.

The CMS Vaccine Mandate for Healthcare Workers: Stayed in 24 states.

This vaccine mandate has been challenged in two separate lawsuits by a total of 24 states. Right now, enforcement of the CMS vaccine mandate is stayed in those 24 states. The government has filed a petition with the U.S. Supreme Court asking for the stays to be lifted, and the briefing schedule has a deadline of December 30, 2021, so we don’t expect a decision from the Supreme Court before that date. In the meantime, according to its website, CMS “has suspended activities related to the implementation and enforcement of [the mandate] pending future developments in the litigation.”

As you can see, this is a rapidly developing area, so it is important to know which (if any) vaccine mandates apply to your workplace, and whether immediate compliance is necessary.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

WIMBERLY LAWSON LAW FIRM SELECTED TO BRING NATIONAL LITIGATION OVER VACCINE MANDATE

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On December 7, 2021, U.S. District Judge Stan Baker of the U.S. District Court for the Southern District of Georgia, granted a nationwide injunction staying enforcement of the federal government contractor vaccine mandate. The law firm of Wimberly, Lawson, Steckel, Schneider & Stine, P.C. represented the Associated Builders and Contractors (ABC), a trade group representing employers (including Federal contractors) in the construction trades, that was granted permission to participate in the case as an intervenor. It is likely that ABC’s presence in a case brought by the State of Georgia as well as the states of Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia was the deciding factor in the Court’s decision to issue a nationwide injunction as opposed to an injunction touching only the states that are parties to the action because, as the Court noted, “not only is the geographic scope of ABC’s membership broad, their involvement in federal contracts is as well.”

Major news outlets are reporting that several prominent law firms were reluctant to represent their clients in the multitude of legal challenges to the Biden Administration’s vaccine testing mandates. These reports suggest that these big firms had clients who both supported and opposed the mandates: this raised sensitive client and public relations issues.

But, as they say, in every crisis there is opportunity. One consequence of the big firms’ decision to sit this one out is that Wimberly Lawson was tapped by the Associated Builders and Contractors (ABC), a trade group representing employers (including Federal contractors) in the construction trades, to make the case for their industry. Wimberly Lawson’s attorneys have had the kind of experience handling complex labor and employment law matters that makes the firm uniquely suited to handle these types of multifaceted constitutional issues that affect millions of employers and workers. The Wimberly Lawson team was led by Larry Stine and included Kathleen Jennings, Elizabeth Dorminey and Jim Hughes. In addition, the Firm is currently involved with the petition for review related to the OSHA Emergency Temporary Standard (ETS) in the Sixth Circuit Court of Appeals.

The essential question presented in the challenge to Executive Order 14042, the federal contractor vaccine mandate, was whether the president can use congressionally delegated authority to manage the federal procurement of goods and services to impose vaccines on the employees of federal contractors and subcontractors. U.S. District Judge Stan Baker of the Southern District of Georgia ruled that it is likely that the president cannot, and he granted a nationwide preliminary injunction of the enforcement of the vaccine mandate for federal government contractors.

Judge Baker spent a full day hearing evidence and arguments from the parties (yours truly was there). What became clear from the witnesses presented by the state—representatives of the University of Georgia, Georgia Tech, and Augusta University, was how much time and money they already had spent working to come into compliance with the federal contractor vaccine mandate, and how much they stood to lose it they were unable to reach full compliance (the three institutions’ federal contracts generated approximately $736,968,899.00 in revenue in fiscal year 2021). ABC presented evidence showing that at least two of its members “intended to bid” on specified upcoming federal construction projects, but, following EO 14042, have concluded that it is not practical for them to do so because they likely will not have sufficient employees to perform the job if they enter into a contract that requires all of the covered employees to be vaccinated.

One of the factors that has made compliance with the federal contractor mandate so difficult is the sheer breadth of the mandate; the mandate covers not only persons who are working on federal government contractors, but also persons with whom they come into contact. That factor, alone, makes it a challenge to identify all workers who are “covered” by the mandate. In addition, subcontractors at all tiers are also covered by the mandate unless the subcontract provides only for services.

Judge Baker rejected the federal government’s argument that the states and ABC lacked standing to bring the lawsuit because the Plaintiffs had not “provide[d] [any] evidence that they are (1) parties to a federal contract that already has the challenged clause; or (2) parties to an existing covered contract that is up for an option, extension, or renewal that must include the clause,” and that they have not “identif[ied] any specific, covered solicitations that they plan to bid on or contracts that they plan to enter into in the immediate future.” Judge Baker found that Plaintiff Board of Regents of the University System of Georgia has standing because it has shown that one of its institutions (Georgia Tech) is a finalist for a contract with NASA and it has been advised that, if it is awarded the contract, the at-issue clause must be included in the contract. ABC also provided evidence—using information gathered from the General Services Administration’s Website for federal contracts—that the federal government frequently and routinely issues solicitations and pre-solicitations for bids on Case 1:21-cv-00163-RSB-BKE Document 94 Filed 12/07/21 Page 14 of 28 15 construction contracts (which ABC’s members would normally bid on and be qualified to perform) that would be covered by EO 14042. Judge Baker also noted that Article III standing would exist based on the ample evidence showing that the State Plaintiffs (including many of their agencies) and members of ABC routinely enter into contracts that would be covered by EO 14042,6 have current contracts that could easily fall under the requirements of EO 14042 (if, for instance, they are renewed, modified, or have options that are exercised), and have shown that they would typically continue to seek out contract opportunities with the federal government that now will be covered by EO 14042.

Judge Baker held that the Plaintiff States and ABC were likely to succeed on the merits because the Procurement Act does not authorize the President to issue a vaccine mandate. While the authority of the President to manage the government procurement process is unquestionably broad, it is not without limitations. To that end, the Court found that Plaintiff States and ABC have a likelihood of proving that Congress, through the language it used, did not clearly authorize the President to issue the kind of mandate contained in EO 14042, as EO 14042 goes far beyond addressing administrative and management issues in order to promote efficiency and economy in procurement and contracting, and instead, in application, works as a regulation of public health, which is not clearly authorized under the Procurement Act.

The Court also distinguished a decision issued by the Eleventh Circuit Court of Appeals just the day before that denied a preliminary injunction in the State of Florida’s challenge to the vaccine mandate for healthcare workers. The Medicare and Medicaid regulatory scheme being challenged in the Florida case is significantly different from the federal contractor process. Moreover, the Court noted, “[f]or both the Medicare and Medicaid programs, Congress charged the Secretary with ensuring that participating facilities protect the health and safety of their patients,” and the at-issue interim rule issued by the Secretary “amend[ed] the infection control regulations for facilities that participate in Medicare or Medicaid . . . [to] require[] that facilities certified to participate in Medicare or Medicaid ensure their staff are fully vaccinated against COVID-19, unless an employee is exempt . . .” In other words, Congress gave the Secretary of HHS explicit authority to protect health and safety; the Procurement Act contains no such authority.

Although we all acknowledge the value of vaccines, the issuance of the federal COVID-19 vaccine mandates appears to be an attempt by the current administration to take a controversial action “for the greater good.” If anything, the wide ranging mandates provided some cover to employers that were seeking to vaccinate a larger proportion of their workforces but were hesitant to mandate vaccination themselves for fear of losing valuable employees. And perhaps that was the actual intent of these measures—to promote more employee vaccinations for as long as the mandates could withstand judicial challenges. However, as the Supreme Court said in Alabama Ass’n of Realtors, “[i]t is indisputable that the public has a strong interest in combating the spread of the COVID–19[;]” however, “our system does not permit agencies to act unlawfully even in pursuit of desirable ends.” Ala. Ass’n of Realtors v. Dept. of Health and Human Servs., 141 S. Ct. 2485 at 2490 (2021).

Update on the COVID ETS: It Has Been Stayed. But for How Long?

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By Kathleen J. Jennings (kjj@wimlaw.com)

As noted in my blog post last week, it was expected that there would be many challenges to the COVID Emergency Temporary Standard (ETS). Those challenges were filed very quickly, and on Saturday, the Fifth Circuit Court of Appeals stayed enforcement of the ETS based on “grave statutory and constitutional issues.”

Multiple lawsuits have been filed in multiple federal Circuits challenging the ETS. The federal rules for multi-circuit litigation provide for the cases to be consolidated and heard by one court that is initially chosen by a lottery. The Court selected to hear the cases can decide whether to keep the stay in place or lift it. [Update–the lottery is scheduled to be held on November 16].

Where does this leave us? With a great deal of uncertainty, at least until we find out which Court will handle this issue. In the meantime, companies subject to the ETS should continue their preparations to comply with its provisions.

And of course, I’ll keep you posted on further developments.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

The OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard is Here. What You need to Know.

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By Kathleen J. Jennings (kjj@wimlaw.com)

The Biden Administration promised us a COVID-19 vaccine mandate, and today it arrived for private employers of 100 or more employees. [There is also a mandate for federal contractors and another for healthcare workers, but we are not going to talk about those in this post.]

The Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) that purports to minimize the risk of COVID-19 transmission in the workplace. This ETS applies to private employers with 100 or more employees firm- or corporate-wide.

The ETS requires covered employers to do the following:

  • Develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace.
  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
  • Support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose.
  • Ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer). Boosters are not currently required.
  • Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.
  • Immediately remove from the workplace any employee, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider, and keep the employee out of the workplace until return to work criteria are met.
  • Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
  • Provide each employee with information, in a language and at a literacy level the employee understands, about the requirements of the ETS and workplace policies and procedures established to implement the ETS; vaccine efficacy, safety, and the benefits of being vaccinated (by providing the CDC document “Key Things to Know About COVID-19 Vaccines”); protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.
  • Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.

Deadlines:

December 5, 2021: Employers must have their compliance program in place, offer paid time off for vaccinations, and require unvaccinated workers to wear masks.

January 4, 2022: The deadline for workers to be vaccinated or start being tested.

Penalties for non-compliance:

This ETS is enforced by OSHA. Each “serious” violation of the standard could result in a maximum fine of $13,653. The cap for willful or repeat violations is $136,532. However, the Build Back Better Act, if it becomes law, would raise maximum fines for all OSHA rules to $70,000 for serious violations and $700,000 for willful or repeat violations.

Other items of interest:

Note that where an employee chooses to remain unvaccinated, the ETS does not require employers to pay for the costs associated with regular COVID-19 testing or the use of face coverings. In some cases, employers may be required to pay testing and/or face covering costs under other federal or state laws or collective bargaining obligations, and some may choose to do so even without such a mandate, but otherwise employees will be required to bear the costs if they choose to be regularly tested and wear a face covering in lieu of vaccination.

The ETS states that it preempts state and local laws governing COVID vaccinations and precautions.

This is a temporary standard (it will expire in 6 months), and it may be subject to change. Furthermore, we expect many challenges to the standard and OSHA’s authority to issue it. Stay tuned for further developments.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

What Are the Top Ten Cited Violations By OSHA?

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By Kathleen J. Jennings (kjj@wimlaw.com)

Everybody likes a good Top Ten list, and those of us who follow OSHA like to know what types of violations make it to OSHA’s Top Ten list.

So here we go–the following are the Top Ten Most Cited Violations by OSHA in 2021:

1) Fall Protection: 5,295 violations

2) Respiratory Protection: 2,527

3) Ladders: 2,026

4) Scaffolding: 1,948

5) Hazard Communication: 1,947

6) Lockout/Tagout: 1,698

7) Fall Protection – Training Requirements: 1,666

8) Personal Protective and Lifesaving Equipment – Eye and Face Protection: 1,452

9) Powered Industrial Trucks : 1,420

10) Machine Guarding: 1,113

Note that fall protection has held the top spot on the list for eleven straight years. The violation that moved up the charts this year was respiratory protection, possibly driven by COVID related issues. Hazard communication (Hazcom) fell from second to fifth.

Employers need to regularly check their worksites to make sure that workers are protected from fall hazards. OSHA requires that fall protection be provided at elevations of four feet in general industry workplaces, five feet in shipyards, six feet in the construction industry and eight feet in longshoring operations. In addition, OSHA requires that fall protection be provided when working over dangerous equipment and machinery, regardless of the fall distance.

Furthermore, to prevent employees from being injured from falls, employers must:

  • Guard every floor hole into which a worker can accidentally walk (using a railing and toe-board or a floor hole cover).
  • Provide a guard rail and toe-board around every elevated open sided platform, floor or runway.
  • Regardless of height, if a worker can fall into or onto dangerous machines or equipment (such as a vat of acid or a conveyor belt) employers must provide guardrails and toe-boards to prevent workers from falling and getting injured.
  • Other means of fall protection that may be required on certain jobs include safety harness and line, safety nets, stair railings and hand rails.

And make sure that employees are trained in the use of any safety harnesses and actually utilize them. I have visited a site where a worker fell 15 feet onto a concrete floor (and survived). His employer had provided a safety harness, but he never bothered to put it on. A supervisor or manager should conduct regular checks of workers to verify that they are using fall protection when necessary.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

How To Handle The Employee Who Refuses To Get Vaccinated for COVID-19

Photo by Gustavo Fring on Pexels.com

By Kathleen J. Jennings (kjj@wimlaw.com)

Yesterday, the Biden administration announced that the Labor Department will issue a regulation requiring companies with 100 or more employees to ensure their workforces are either “fully vaccinated” or test negative for Covid-19 at least once a week. The regulation will be issued by OSHA, most likely in the form of an Emergency Temporary Standard (ETS). When enforcing the ETS, OSHA could fine noncomplying businesses up to $14,000 per violation. We anticipate that OSHA will issue the ETS in the next few weeks. We also anticipate that there will be challenges made to the ETS and the authority of the federal government to mandate vaccines.

This is in addition to the expansion of the emergency regulations requiring vaccinations for nursing home workers to include hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, among others, as a condition for participating in the Medicare and Medicaid programs.

The bottom line is that over 80 million private sector workers are expected to be covered by a COVID-19 vaccine mandate. And some of those workers are going to refuse to get vaccinated, mandate or not. How does an employer deal with the employee who refuses to be vaccinated?

First, find out if the employee has a legitimate reason to refuse to be vaccinated. Legitimate reasons are generally limited to medical (supported by documentation) or a sincerely held religious belief. “I don’t believe in vaccines” is not enough to qualify as a sincerely held religious belief.

Second, if there is no legitimate reason for the employee to refuse a vaccine, the employer should clearly communicate the consequences of not becoming fully vaccinated by a specific date. Can that consequence be termination? Absolutely. Can you require the employee to pay for weekly COVID testing? Possibly. Or require unvaccinated employees to pay a surcharge on their health insurance? Yes–at least one major employer is already doing it.

As with any workplace rule, an employer needs to be consistent in its enforcement of the vaccine mandate or risk claims of discrimination.

What complicates the situation is the current labor shortage in a number of industries. Many businesses cannot afford to terminate all vaccine refusers because they already do not have enough workers. But will there be enough COVID-19 testing facilities to meet the needs of employers who need to test unvaccinated employees weekly? That remains to be seen.

This is a very fluid situation, and I will continue to provide updates.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.