Last month, Cal/OSHA issued a discussion draft of a proposed Cal/OSHA COVID-19 “permanent rule” and convened an Advisory Committee, involving hours of comment on September 23, 2021 by employer and labor advocates and public health officials. Conn Maciel Carey served on the Advisory Committee on behalf of our broad-based employer coalition. The permanent rule is not expected to take effect until the spring 2022.
In the meantime, Cal/OSHA has just issued a revised COVID-19 Emergency Temporary Standard (ETS) for readoption. If approved by the Standards Board, this second re-adoption of the ETS would be effective from January 14, 2022 through April 14, 2022. After that time the “permanent rule” presently under consideration would be expected to replace the ETS.
On September 22, 2021, California became even more labor friendly when Governor Newsom signed AB 701 which adds additional requirements to California’s existing meal and rest breaks rules for non-exempt warehouse employees. Effective January 1, 2022, employers covered by AB 701 must disclose all quotas to warehouse employees that the employee may be subject to. Employers are subject to a rebuttable presumption of retaliation against employees who are subject to an adverse employment action within 90 days of engaging in protected activity under AB 701. Employers must make the disclosure to each employee upon hire or within 30 days of the law going into effect.
Aimed at making large Amazon warehouses in the state safer, AB 701 covers employers with 100 or more employees at a single warehouse distribution center or 1,000 or more employees at one or more warehouse distribution centers in the state of California. Covered employers must provide to all non-exempt employees a written description of every quota the employee must comply with and may be subjected to discipline for failing to meet including “the quantified number of tasks to be performed or materials to be produced or handled, within the defined time period, and any potential adverse employment action that could result from failure to meet the quota.” For purposes of AB 701 a warehouse is classified by the following NAICS Codes: 493110 (for general warehouse and storage); 423 (for merchant wholesalers, durable goods); 424 (for merchant wholesalers, nondurable goods); or 454110 (for electronic shopping and mail order houses) but not 493130 (farm product warehousing and storage). If an employer fails to disclose an employee’s quota, the employer cannot take an adverse employment action against the employee for failure to meet that quota.
Quotas may not prevent: Read More
While we have been mostly focused on the September 9th directive from President Biden to fed OSHA to issue a COVID-19 vaccination / testing emergency temporary standard, that was hardly the only major move the Administration announced on the vaccine-mandate front. This update will focus on federal contractors – companies that provide services to the federal government through direct contracts with federal agencies and through subcontracts in support of federal contracts.
On the same day last month that Pres. Biden announced the OSHA “soft” vaccine mandate for private employers that serve only private customers, he also issued an executive order (EO) setting three new requirements for federal contractors at all tiers:
For months now, since January 2021, contractors and subcontractors working in-person on federal property have already been required to provide a self-certification that they were fully vaccinated OR had received a recent negative COVID-19 test. (See EO 13991 – “Protecting the Federal Workforce and Requiring Mask-Wearing”). The new EO for federal contractors eliminates the “testing-out option” and expands the mandate beyond just federal properties to also cover private workplaces, or really any place at all, where an individual is working in support of a covered federal contract.
Only those unvaccinated employees who are “legally entitled to an accommodation” for medical or religious reasons may continue to be employed to work on federal contracts. There are no exceptions for people who previously were infected and recovered. Anti-body tests are not acceptable to prove vaccination status. Under limited special circumstances involving an “urgent, mission critical need”, a federal agency may allow certain individuals who are not fully vaccinated to continue working for only up to 60 days from beginning the work on a covered contract or in a covered workplace.
Another development of this federal contractor mandate is that employers must review covered employees’ official documentation to verify vaccination status (i.e., the white card or an official record from a health department database), and self-attestation is not an acceptable substitute.
Who is covered by the various requirements of the EO? Read More
California Governor Newsom has just signed Senate Bill 606 authored by Senator Lena Gonzalez (D-Long Beach), broadly expanding Cal/OSHA’s enforcement authority and the penalty amounts employers may be assessed. This new law targets employers with multiple work sites in California, recognizing violations on an enterprise-wide basis resulting from a written policy or procedure or otherwise a pattern of violations. SB 606 also empowers Cal/OSHA to levy penalties for each violation and each employee deemed exposed to an alleged hazard where there is a finding an employer “willfully and egregiously” violated a safety order. Lastly, the California Division of Occupational Safety and Health, also known as Cal/OSHA, is empowered to seek permanent injunctions in civil court against employers who are deemed in violation of the new law. SB 606 will take effect January 1, 2022.
SB 606 leaves little room for California employers to make an honest mistake or to be presumed by Cal/OSHA as acting in good faith. The new law is likely to foster a radical change in the way Cal/OSHA interacts with employers and weaken employers’ appeal rights. It is certain that the penalties assessed for citations will increase as will the number of appeals filed with the Cal/OSHA Appeals Board. It is therefore crucial that employers, large and small, understand these regulatory changes and take steps now to strengthen their safety programs to be as bulletproof as possible. To that end, we have broken our discussion of the law into two key parts. Read More
By Conn Maciel Carey’s COVID-19 Task Force
We have an unfortunate update to share out of the CDC yesterday, July 27, 2021. Short story, do not throw away your “Masks Required” signs.
What Did the CDC Change About Mask Recommendations?
In the afternoon of Tuesday, July 27th, the CDC updated its “Interim Public Health Recommendations for Fully Vaccinated People,” in which the CDC recommends:
Although the guidance speaks in absolutes, we think that the general limitations that have applied to all prior mask mandates throughout the pandemic continue to inform this updated guidance; i.e., “public indoor settings” is intended to cover locations where there is the potential for exposure to another individual, and not where an employee is “alone in a room” or “alone in a vehicle.”
Is Your County Experiencing Substantial or High Levels of Transmission?
By Conn Maciel Carey’s COVID-19 Task Force
Earlier this week, on August 23, 2021, the U.S. Food and Drug Administration fully approved the Pfizer-BioNTech COVID-19 vaccine. Earlier this year, many employers were hesitant to issue vaccine mandates and expressed concerns about potential legal risks associated with such a mandate since the COVID-19 vaccines were only approved for emergency use. While the full approval designation may not change the legal landscape as it relates to vaccine mandates, many employers may feel more comfortable imposing such mandates.
As explained in our prior blog, employers can mandate employee vaccinations under federal law. The U.S. Equal Employment Opportunity Commission (EEOC) issued guidance several months ago stating that employers generally can mandate COVID-19 vaccinations for employees who physically enter the workplace without running afoul of the federal anti-discrimination laws it enforces. The U.S. Department of Justice (DOJ) also issued a slip opinion on July 6, 2021, regarding vaccination mandates and the emergency use authorization status of the vaccines:
We conclude that section 564(e)(1)(A)(ii)(III) concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to EUAs. Read More
Last Thursday, September 9th, President Biden announced that he is directing OSHA to issue a new Emergency Temporary Standard (ETS) that would require many employers to provide paid time for employees to get and recover from getting vaccinated and to implement “soft” vaccine mandates; i.e., require employees either to be fully vaccinated or get weekly COVID-19 testing, as well as issuing new Executive Orders requiring federal contractors to implement “hard” vaccine mandates.
While we anticipated OSHA would reconsider the need for a broader COVID-19 ETS applicable beyond just the healthcare sector in light of the impact of the Delta variant, President Biden’s decision to use a new ETS focused on vaccinations and testing as a central element of his newly unveiled Path Out of the Pandemic – COVID-19 Action Plan raises a host of challenges for employers across the country. To help our clients and friends in industry prepare for and navigate this emergency rulemaking, we have prepared an extensive list of Q&As about OSHA’s Emergency Rulemaking for a COVID-19 Vaccine-Mandate ETS. Also, here are links to an article we prepared summarizing OSHA’s new emergency rulemaking, a recording of the webinar about the ETS we conducted last week, and the slides we used.
We understand from our contacts at OSHA that the agency will move much more quickly to prepare and send this ETS to the White House, so it is imperative that the employer community come together now to identify shared concerns and considerations and begin advocating to OSHA and OMB so that this new ETS is one with which industry can reasonably manage. To that end, Conn Maciel Carey LLP is organizing a coalition of employers and trade groups to advocate for the most reasonable fed OSHA COVID-19 emergency rule focused on vaccination and testing possible.
For several reasons, we believe this emergency rulemaking may be the OSHA rulemaking that has the most opportunity for industry influence that we can recall. First, Read More
On September 9, 2021, President Biden charged federal OSHA with developing a second emergency temporary standard (ETS) requiring all but small employers in all industries but healthcare to implement “soft” vaccine mandates, i.e., to require employees to either be fully vaccinated or get weekly COVID-19 testing. The President directed OSHA to include in this new ETS a requirement that these employers provide paid time for employees to get vaccinated and recover from the vaccine. The President also issued executive orders mandating federal contractors and healthcare employers implement “hard” vaccine mandates.
The push now for a broader COVID-19 ETS applicable beyond just healthcare is a step for which we have been bracing for a while now. In June, when OSHA issued its COVID-19 ETS that was limited only to the healthcare industry, the vast majority of employers dodged the bullet, but since the explosion of new cases because of the Delta variant, we began to see that bullet more as a boomerang, likely to come back around for the rest of industry. Here are five signals we picked up that OSHA was likely to revisit its decision in June to limit its COVID-19 ETS to only healthcare employers:
Those were the main signals we saw that kept us up at night worried OSHA would deliver to OMB a new or amended COVID-19 ETS that would apply to all industries. But President Biden’s announcements yesterday sent the strongest signal yet that we will soon see further regulatory action from federal OSHA on the COVID-19 front. A lot of questions remain, and we expect those to be answered in time as the new rules take effect, but we wanted to share with you what we know so far, as well as our preliminary thoughts/speculation about some of those questions.
What Happened Yesterday?
Let’s start with the President’s “Path Out of the Pandemic: POTUS COVID-19 Action Plan.” Read More
Cal/OSHA has just convened an Advisory Committee to consider a proposed permanent Cal/OSHA COVID-19 prevention permanent rule, scheduled to meet on September 23, 2021. Conn Maciel Carey has been invited to serve on the Advisory Committee, on behalf of the California Employers COVID-19 Prevention Coalition – composed of a broad array of California and national employers substantially impacted by Cal/OSHA’s COVID-19 standards.
Last Friday, the Division of Occupational Safety and Health (DOSH) posted the attached discussion draft for the proposed permanent rule. If adopted, the permanent rule would expire in 2 years (subject to renewal/amendment) and replace the existing Cal/OSHA COVID-19 Emergency Temporary Standard (ETS). We expect that upon the permanent rule sunsetting, the Cal/OSHA Standards Board might take up a permanent general infectious disease standard – which would be another battle to be waged. There is a broad consensus among the employer community that a general infectious disease standard is unnecessary and ill advised, in light of the existing Injury and Illness Prevention Program (IIPP) and Aerosol Transmissible Diseases standards and the inability to prescribe specific measures to address pandemics that have yet to arise.
As many may recall, the ETS was hurriedly adopted around Thanksgiving last year and then amended in June 2021 following bizarre twists and turns, with the Standards Board reconsidering proposed text and votes faced with concerns the draft amendment was not aligned with CDC guidance and was otherwise unwieldy. Ultimately, the Standards Board formed a subcommittee to consider the future of the ETS that has met regularly since June.
Big picture, the draft permanent rule is largely a significant improvement over the ETS but there are some areas of concern that we hope are addressed through the Advisory Committee process. We have summarized how the draft permanent rule materially departs from the ETS: Read More
By Conn Maciel Carey’s COVID-19 Task Force
Yesterday, July 16th, 2021, the LA County Department of Public Health released and posted on its website a revised version of its COVID-19 Health Officer Order (“Order”), requiring masks to be worn by everyone, regardless of vaccination status, in all indoor public settings, venues, gatherings, and businesses. Businesses that are open to the public must also require patrons to wear masks in indoor settings, regardless of their vaccination status, and post a clearly visible sign regarding the mask requirement at all entry points. Additionally, if a business knows of three or more cases amongst its employees within a span of 14 days at a particular site, the business must report the outbreak to the Department of Public Health at (888) 397-3993 or (213) 240-7821, or online at www.redcap.link/covidreport. The Order also encourages employers to follow the LACDPH Best Practice Guidance as well as the California Department of Public Health Interim Guidance for Ventilation, Filtration and Air Quality in Indoor Environments.
Note that the Order states that it may be revised in the future, if needed, to reflect any requirements under Cal/OSHA’s COVID-19 Emergency Temporary Standard (“ETS”). However, the Order explains that the ETS allows local health jurisdictions to require more protective mandates, and this Order is just that as related to face covering requirements. In other words, the Order overrides the more permissive obligations in Cal/OSHA’s ETS regarding employee masking. The Order takes effect today, July 17th, 2021, at 11:59 PM.