How Employers Should Respond to the 2019 Novel Coronavirus Outbreak

By Conn Maciel Carey’s COVID-19 Task Force

The 2019 Novel Coronavirus (“2019-nCoV” or “coronavirus”) is a respiratory illness that, with its spread to the United States, is raising important issues for employers.  This guide explains the outbreak, the legal implications of it, and how employers should be responding now to employees who might have the virus, are caring for affected family members, or are otherwise concerned about their health in the workplace.

The Coronavirus Outbreak

First detected in Wuhan, Hubei Province, China, 2019-nCoV is a respiratory virus reportedly linked to a large outdoor seafood and animal market, suggesting animal-to-person spread.  However, a growing number of patients reportedly have not had exposure to animal markets, indicating person-to-person spread is occurring.  At this time, it is unclear how easily the virus is spreading between people.  Symptoms of coronavirus include fever, cough, difficulty breathing, runny nose, headache, sore throat, and the general feeling of being unwell.  The incubation period is approximately 14 days, during which time an individual may see no symptoms but may still be contagious. The Centers for Disease Control and Prevention (“CDC”) reports that an ongoing investigation to determine more about this outbreak is underway, that the situation is rapidly evolving, and that more information will be provided as it becomes available.

As of January 30, 2020, there have been approximately 8,100 confirmed cases of 2019-nCoV in many countries, including in the United States.  On January 30, 2020, the International Health Regulations Emergency Committee of the World Health Organization (“WHO”) declared the outbreak a “public health emergency of international concern.”  On January 31, 2020, Health and Human Services Secretary Alex M. Azar II declared a public health emergency for the United States to aid the country’s healthcare community in responding to 2019-nCoV.  Additionally, on the same day, the President of the United States signed a presidential “Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Persons who Pose a Risk of Transmitting 2019 Novel Coronavirus.”

Legal Implications for Employers

With the presence of coronavirus in the United States, employers must be vigilant in complying with the various labor and employment laws implicated by the virus. Read More

REMINDER: February 1, 2020 Deadline to Prepare, Certify, & Post OSHA 300A Annual Summaries of Work-Related Injuries: 5 Common Mistakes Employers Make

By Lindsay A. DiSalvoDan C. Deacon, and Eric J. Conn

This is your yearly reminder about the important February 1st deadline to prepare, certify and post your OSHA 300A Annual Summary of workplace injuries and illnesses, for all U.S. employers, except those with ten or fewer employees or those whose NAICS codes are in the set of low-hazard industries exempt from OSHA’s injury and illness recordkeeping requirements, such as dental offices, advertising services, and car dealers (see the exempted industries at Appendix A to Subpart B of Part 1904).  The Form 300A is a summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the particular OSHA 300 Log.

Note that February 1st falls on a Saturday this year, but that does not affect the deadline to post.  So, if there will be noone present at your workplace to make the posting on that Saturday, be sure to get your 300A posted by Friday, January 31st.

This February 1st requirement to prepare, certify and post 300A forms should not be confused with OSHA’s Electronic Recordkeeping Rule.  The February 1st deadline is only about the internal hard copy posting of 300A data for your employees’ eyes.  The E-Recordkeeping Rule, on the other hand, requires certain employers to electronically submit data from their 300A Annual Summary forms to OSHA through OSHA’s web portal – the Injury Tracking Application. The deadline for those submissions this year (i.e., to submit 300A data from 2019) is March 2, 2020.  Click here for more information about OSHA’s E-Recordkeeping Rule.

By February 1st every year, covered employers must: Read More

REMINDER: February 1, 2020 Deadline to Prepare, Certify, & Post OSHA 300A Annual Summaries of Work-Related Injuries: 5 Common Mistakes Employers Make

By Lindsay A. DiSalvoDan C. Deacon, and Eric J. Conn

This is your yearly reminder about the important February 1st deadline to prepare, certify and post your OSHA 300A Annual Summary of workplace injuries and illnesses, for all U.S. employers, except those with ten or fewer employees or those whose NAICS codes are in the set of low-hazard industries exempt from OSHA’s injury and illness recordkeeping requirements, such as dental offices, advertising services, and car dealers (see the exempted industries at Appendix A to Subpart B of Part 1904).  The Form 300A is a summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the particular OSHA 300 Log.

Note that February 1st falls on a Saturday this year, but that does not affect the deadline to post.  So, if there will be noone present at your workplace to make the posting on that Saturday, be sure to get your 300A posted by Friday, January 31st.

This February 1st requirement to prepare, certify and post 300A forms should not be confused with OSHA’s Electronic Recordkeeping Rule.  The February 1st deadline is only about the internal hard copy posting of 300A data for your employees’ eyes.  The E-Recordkeeping Rule, on the other hand, requires certain employers to electronically submit data from their 300A Annual Summary forms to OSHA through OSHA’s web portal – the Injury Tracking Application. The deadline for those submissions this year (i.e., to submit 300A data from 2019) is March 2, 2020.  Click here for more information about OSHA’s E-Recordkeeping Rule.

By February 1st every year, covered employers must:

  • Review their OSHA 300 Log(s);
  • Verify the entries on the 300 Logs are complete and accurate;
  • Correct any deficiencies identified on the 300 Logs;
  • Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses, and input those calculations into the 300A Annual Summary Form; and
  • Have a “Company Executive” certify the accuracy of the 300 Log and the 300A Summary Form.

Five Common 300A Mistakes that Employers Make

We frequently see employers make the following five mistakes related to this annual duty to prepare, post and certify the injury and illness recordkeeping summary: Read More

Announcing Conn Maciel Carey’s 2020 OSHA Webinar Series

We are three years into the Trump Administration, and we have seen a mixed bag of change and business as usual at OSHA in enforcement and rulemaking. We watched late Obama-era OSHA rules get repealed, delayed, or amended and a modest boost in compliance assistance—the sort of policy shifts you expect to see in a transition from a Democratic to a Republican Administration. However, we have seen plenty of the unexpected, such as increases in virtually every enforcement metric, including record numbers of $100K+ enforcement actions. And most surprising of all, OSHA still does not have an Assistant Secretary—the longest ever vacancy for the top job at OSHA—and it seems highly likely the Agency will remain without a Senate-approved leader for the entirety of this presidential term. As we move into an election year, the final year of President Trump’s current term, we expect more reshuffling of OSHA enforcement policies and rulemaking priorities, and surely more surprises, so it is critical to stay abreast of OSHA developments.

Conn Maciel Carey’s complimentary 2020 OSHA Webinar Series includes monthly webinars presented by OSHA-specialist attorneys in the firm’s national OSHA Practice designed to give employers insight into developments at OSHA during this remarkable time in OSHA’s history.

To register for an individual webinar, use the registration links in the program descriptions below. To register for the entire 2020 Series, click here to send an email request, and we will register you. If you miss a program this year or missed any in prior years, click here for our webinar archive.

We are exploring CLE approval for this series.  If you are interested in CLE or other forms of Continuing Education credits, click here to complete a survey.

OSHA’s 2019 in Review
and 2020 Forecast

Thursday, January 23rd

All You Need to Know About
OSHA’s General Duty Clause

Thursday, July 23rd

OSHA Settlement
Tips And Strategies

Tuesday, February 25th

Employee Discipline – OSHA
and Labor & Employment Issues

Wednesday, August 19th

Strategies for Responding to Whistleblower Complaints

Wednesday, March 25th

Privileged Audits and Investigations and OSHA’s Self-Audit Policy

Tuesday, September 22nd

Annual Cal/OSHA Update

Thursday, April 16th

Impact of the Election on OSHA

Thursday, October 22nd

E-Recordkeeping and
Injury Reporting Update

Wednesday, May 20th

Updates about OSHA’s PSM
Standard and EPA’s RMP Rule

Tuesday, November 17th

OSHA’s PPE Standards –
Top 5 Risks and Mistakes

Tuesday, June 16th

Impact of America’s Aging Workforce on OSHA and Employment Law

Wednesday, December 16th

See below for the full schedule with program descriptions,
dates, times and links to register for each webinar event.

Read More

2020 Legislative Update for California Employers

shutterstock_San Francisco 4847-6656-4719 v12019 has produced a long list of new employment laws on a myriad of topics that will bring significant changes for California employers in 2020.  Workplace safety laws range from a revamped reporting requirement to a new wildfire smoke regulation.  Additional laws affecting employers include a new test for determining independent contractor status, a ban on no rehire agreements and many more.  Though many of these laws will add items to the employer to-do list, employers have at least secured a one-year reprieve for completing mandatory harassment prevention training introduced last year.

Key changes affecting private sector employers are summarized below.  Unless otherwise indicated, these new laws take effect January 1, 2020.

Cal/OSHA Workplace Safety Laws

Cal/OSHA Revamps Reporting Requirements for Serious Injuries or Illnesses

As we reported in a prior blog, California has enacted major changes to the definition of “serious injury or illness” for purposes of California employers’ duty to report certain serious workplace injuries to Cal/OSHA.  Pursuant to Cal. Labor Code Sec. 6409.1(b), in every case involving a work related death or a serious injury or illness, the employer must Read More

2020 Legislative Update for California Employers

2019 has produced a long list of new employment laws on a myriad of topics that will bring significant changes for California employers in 2020.  Workplace safety laws range from a revamped reporting requirement to a new wildfire smoke regulation.  Additional laws affecting employers include a new test for determining independent contractor status, a ban on no rehire agreements and many more.  Though many of these laws will add items to the employer to-do list, employers have at least secured a one-year reprieve for completing mandatory harassment prevention training introduced last year.

Key changes affecting private sector employers are summarized below.  Unless otherwise indicated, these new laws take effect January 1, 2020. Read More

BREAKING: Cal/OSHA Overhauls Reporting Requirements for Serious Injuries

By Andrew Sommer and Megan Shaked

The California Division of Occupational Safety and Health (Cal/OSHA) just announced major changes to the definition of “serious injury or illness” for purposes of California employers’ duty to report certain serious workplace injuries to Cal/OSHA.  Pursuant to Cal. Labor Code Sec. 6409.1(b)in every case involving a work related death or a serious injury or illness, the employer must “immediately” make a report to Cal/OSHA.  Employers may be cited and subject to penalties for failure to make such reports, and reporting such incidents almost always leads to a site inspection by Cal/OSHA, which in turn most often results in Serious or Serious Accident-Related citations.

Cal/OSHA’s prior, longstanding reporting rule defined “serious injury or illness” as any injury or illness occurring in a place of employment or in connection with any employment that requires in-patient hospitalization for a period in excess of 24 hours for treatment other than medical observation, or in which an employee suffers a loss of any member of the body or suffers any serious degree of permanent disfigurement.  The old definition excluded injuries or deaths caused by the commission of a Penal Code violation (e.g., an intentional assault and battery), or an auto accident on a public street or highway.

On August 30, 2019, California passed Assembly Bill (AB) 1805 to revise the definition of a “serious injury or illness” for reporting purposes. The changes appear to be Read More

BREAKING: Cal/OSHA Overhauls Reporting Requirements for Serious Injuries

By Andrew Sommer and Megan Shaked

The California Division of Occupational Safety and Health (Cal/OSHA) just announced major changes to the definition of “serious injury or illness” for purposes of California employers’ duty to report certain serious workplace injuries to Cal/OSHA.  Pursuant to Cal. Labor Code Sec. 6409.1(b)in every case involving a work related death or a serious injury or illness, the employer must “immediately” make a report to Cal/OSHA.  Employers may be cited and subject to penalties for failure to make such reports, and reporting such incidents almost always leads to a site inspection by Cal/OSHA, which in turn most often results in Serious or Serious Accident-Related citations.

Cal/OSHA’s prior, longstanding reporting rule defined “serious injury or illness” as any injury or illness occurring in a place of employment or in connection with any employment that requires in-patient hospitalization for a period in excess of 24 hours for treatment other than medical observation, or in which an employee suffers a loss of any member of the body or suffers any serious degree of permanent disfigurement.  The old definition excluded injuries or deaths caused by the commission of a Penal Code violation (e.g., an intentional assault and battery), or an auto accident on a public street or highway.

On August 30, 2019, California passed Assembly Bill (AB) 1805 to revise the definition of a “serious injury or illness” for reporting purposes. The changes appear to be designed to bring Cal/OSHA’s reporting requirement more (but not entirely) in line with fed OSHA’s hospitalization and amputation reporting rule.  Specifically, Cal/OSHA’s new reporting requirements: Read More

Calif. Employers Are Not Required To Reimburse Restaurant Workers For the Cost of Slip-Resistant Shoes

By Megan Shaked and Andrew J. Sommer

A recent California Court of Appeals decision in Townley v. BJ’s Restaurants, Inc., has further defined the scope of reimbursable business expenses under California Labor Code section 2802, this time in the context of slip-resistant shoes for restaurant workers.

A former server filed an action under the California Labor Code Private Attorneys General Act of 2004 (PAGA), seeking civil penalties on behalf of herself and other “aggrieved employees” for California Labor Code violations, including the failure to reimburse the cost of slip-resistant shoes.  Plaintiff alleged a violation of Labor Code section 2802, which requires an employer to reimburse employees for all necessary expenditures incurred by the employee in direct consequence of the discharge of their duties.

Plaintiff argued that, because the restaurant required employees to wear slip-resistant, black, closed-toes shoes for safety reasons, such shoes should be provided free of cost or employees should be reimbursed for their cost.

The Court of Appeal, persuaded by the reasoning in an unpublished Ninth Circuit Court of Appeals decision, Lemus v. Denny’s, Inc., and guidance from the California’s Division of Labor Standards Enforcement (DLSE), held that Read More

Calif. Employers Are Not Required To Reimburse Restaurant Workers For the Cost of Slip-Resistant Shoes

By Megan Shaked and Andrew J. Sommer

A recent California Court of Appeals decision in Townley v. BJ’s Restaurants, Inc., has further defined the scope of reimbursable business expenses under California Labor Code section 2802, this time in the context of slip-resistant shoes for restaurant workers.

A former server filed an action under the California Labor Code Private Attorneys General Act of 2004 (PAGA), seeking civil penalties on behalf of herself and other “aggrieved employees” for California Labor Code violations, including the failure to reimburse the cost of slip-resistant shoes.  Plaintiff alleged a violation of Labor Code section 2802, which requires an employer to reimburse employees for all necessary expenditures incurred by the employee in direct consequence of the discharge of their duties.

Plaintiff argued that, because the restaurant required employees to wear slip-resistant, black, closed-toes shoes for safety reasons, such shoes should be provided free of cost or employees should be reimbursed for their cost.

The Court of Appeal, persuaded by the reasoning in an unpublished Ninth Circuit Court of Appeals decision, Lemus v. Denny’s, Inc., and guidance from the California’s Division of Labor Standards Enforcement (DLSE), held that section 2802 did not require the restaurant employer to reimburse its employees for the cost of slip-resistant shoes.  Specifically, the Court held that the cost of shoes does not qualify as a “necessary expenditure” under section 2802.

In reaching its decision, the Court Read More

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