In Western Growers Association, et al, v. Occupational Safety and Health Standards Board, et al, the California appellate court recently affirmed the lower court’s decision denying a challenge to Cal/OSHA’s COVID-19 Emergency Temporary Standard (ETS). This decision has far-reaching implications, affording considerable deference to the California Occupational Safety and Health Standards Board’s (Board) rulemaking process and authority to bypass regular rulemaking with emergency temporary standards supported by its own “declaration of emergency.” The Board – which is tasked with promulgating workplace safety rules – has had an oversized role during the COVID-19 pandemic.
As background, the Board’s COVID-19 ETS was approved, effective November 30, 2020, over the recommendation of Board staff finding that “Cal/OSHA’s limited resources should continue to be focused on enforcement and consultation outreach specifically targeted at employers and sectors of the economy with deficient COVID-19 protections,” as this is likely to be more effective than new rulemaking. Since then Cal/OSHA’s ETS has undergone numerous revisions, being “re-adopted” effective June 17, 2021 and then again on January 14, 2022. The regulation has been a moving target for employers, with the Board each time adopting modified text followed by updated FAQs. Read More
Since our blog post only a week ago concerning the California Department of Public Health’s (CDPH) guidance on isolation and quarantine periods and its implications for the Cal/OSHA COVID-19 Emergency Temporary Standard (ETS), the CDPH has revised this guidance (January 6, 2022) – this time clarifying quarantine requirements for fully vaccinated employees who are booster eligible, but have not yet received their booster dose. The updated guidance is otherwise unclear on how the other recommended actions apply to a workplace setting.
Then, late yesterday, the Division of Occupational Safety and Health (DOSH) issued answers to Frequently Asked Questions (FAQs) on isolation and quarantine periods under Cal/OSHA’s COVID-19 ETS in light of CDPH’s January 6, 2022 recommendations. First, for the reasons we explained in our prior blog post, DOSH has recognized that the “new isolation and quarantine recommendations from CDPH replace the exclusion periods and return to work criteria in sections 3205(c)(9) and 3205(c)(10) of the ETS.”
Second, the FAQs note that the quarantine rules for fully vaccinated workers Read More
A full year into the Biden Administration, the senior leadership team at federal OSHA is set, the agency’s new regulatory agenda has been revealed, and the enforcement landscape has begun to take shape, revealing a dramatic shift in priorities, including stronger enforcement, higher budgets and more robust policies protecting workers, and a renewed focus on new rulemaking. Following an Administration that never installed an Assistant Secretary of Labor for OSHA, relied almost exclusively on the General Duty Clause to enforce COVID-19 safety measures, drastically curtailed rulemaking, and declined to issue an emergency COVID-19 standard, the pendulum swing at OSHA has already been more pronounced than during past transitions. Accordingly, it is more important now than ever before for employers to stay attuned to developments at OSHA.
Conn Maciel Carey LLP’s complimentary 2022 OSHA Webinar Series, which includes monthly programs (sometimes more often, if events warrant) put on by the OSHA-focused attorneys in the firm’s national OSHA Practice Group, is designed to give employers insight into developments at OSHA during this period of unpredictability and significant change.
To register for an individual webinar in the series, click on the link in the program description below, or to register for the entire 2022 series, click here to send us an email request so we can get you registered. If you missed any of our programs over the past seven years of our annual OSHA Webinar Series, here is a link to a library of webinar recordings. If your organization or association would benefit from an exclusive program presented by our team on any of the subjects in this year’s webinar series or any other important OSHA-related topic, please do not hesitate to contact us.
CDC recently updated and shortened its recommended isolation and quarantine periods for the general population. To be precise, CDC issued a media statement laying out its new guidance, but CDC’s actual Isolation Guidance webpage has not yet been updated. CDC explained in a statement that “[b]oth updates [to the isolation and quarantine periods] come as the Omicron variant continues to spread throughout the U.S. and reflects the current science on when and for how long a person is maximally infectious.”
Then just yesterday, California issued public health guidance that effectively aligns the Cal/OSHA COVID-19 Emergency Temporary Standard’s (ETS) return-to-work criteria with this CDC guidance.
How Does CDC’s New Guidance Impact Isolation and Quarantine Periods?
With respect to isolation (which relates to behavior after a confirmed infection), CDC states: “[g]iven what we currently know about COVID-19 and the Omicron variant, CDC is shortening the recommended time for isolation from 10 days for people with COVID-19 to 5 days, if asymptomatic, followed by 5 days of wearing a mask when around others.” Explaining the change, CDC maintains that it is “motivated by science demonstrating that the majority of SARS-CoV-2 transmission occurs early in the course of illness, generally in the 1-2 days prior to onset of symptoms and 2-3 days after. Therefore, people who test positive should isolate for 5 days, and if asymptomatic at that time, they may leave isolation if they mask for 5 days to minimize the risk of infecting others.”Read More
By Conn Maciel Carey LLP’s COVID-19 Task Force
As we shared over the weekend, at 6:50 PM on Friday night (December 17th), a three-judge panel at the US Court of Appeals for the Sixth Circuit dissolved the nationwide stay of OSHA’s Vaccinate-or-Test ETS that had been issued in early November by the Fifth Circuit. That same night, several of the petitioners in the legal challenges to the ETS appealed the Sixth Circuit’s decision to the Supreme Court.
As we have been discussing for a while, the decision about the Stay of the ETS (and ultimately the legality of the ETS) was destined for the Supreme Court, and the Court, at least on the issue of the TRO/Stay, could choose to address the question either by:
Each of the nine Justices on the US Supreme Court is assigned to oversee one or more of the regional US courts of appeals. Justice Kavanaugh is the justice assigned to the Sixth Circuit, to oversee requests for emergency review or shadow docket consideration from cases before the Sixth Circuit. Justice Kavanaugh is part of what is becoming something of a triad of swing voters on the Court, along with justice Coney Barrett and Chief justice Roberts.
On Monday, Justice Kavanaugh issued an Order to the Department of Labor to submit briefing in response to the emergency petitions with a deadline of 4 PM on Thursday, December 30th. The Order does not provide for any additional briefing by petitioners or friends of the court. Then, just a few hours ago, the Court issued another Order setting the case for oral argument a week later, on January 7, 2022.
We now have a clearer picture of Read More
By Conn Maciel Carey’s COVID-19 Task Force
In a Friday night surprise (December 17th), the US Court of Appeals for the Sixth Circuit dissolved the nationwide stay of OSHA’s Vaccination, Testing, and Face Coverings ETS, so the ETS is alive and well (unless the U.S. Supreme Court puts it back on ice). Accordingly, it is time for employers to take the steps necessary to come into compliance with the ETS. To help our clients and friends in industry, Conn Maciel Carey LLP’s national OSHA Practice has created this extensive set of Q&As about OSHA’s COVID-19 Vaccinate-or-Test ETS.
The Q&A document addresses the current status of the ETS and the legal challenges to it, who is covered and who is exempted from the rule, the core elements of the ETS (i.e., what is required and prohibited by the ETS, when the requirements kick-in), and other issues around enforcement and compliance strategy.
In addition to this FAQ resource, we have also been working with dozens of companies to help them develop custom, compliant written COVID-19 Vaccination, Testing, and Face Coverings Policies, along with the necessary ancillary forms, as required by the ETS. We have a questionnaire that we can work through with you to understand and make the best policy choices for your organization (e.g., what cap you will set for paid recovery time; whether to supply test kits to employees or require them to take tests offsite; how you will communicate to employees the information required to be shared; etc.), and with those answers, we develop a customized written program including: Read More
By Conn Maciel Carey’s COVID-19 Task Force
We apologize for interrupting what we hoped be a quiet, pre-holiday weekend for everyone, but we have very important and time sensitive news to share about the status of OSHA’s Vaccination, Testing, and Face Coverings Emergency Temporary Standard (ETS). It was a very busy Friday night for everyone in the OSHA world. In a remarkable turn of events, at 6:50 PM yesterday evening (December 17th), the US Court of Appeals for the Sixth Circuit dissolved the nationwide stay of OSHA’s Vaccination ETS that had been issued by the Fifth Circuit in November.
The Department of Labor and OSHA then immediately issued a statement that OSHA was moving forward with implementation and enforcement of the ETS, but also provided some enforcement relief for companies able to demonstrate good faith efforts to comply. Then, within an hour of the Sixth Circuit decision being released, numerous parties filed an emergency application and motion with the US Supreme Court requesting the Supreme Court reissue a stay of the ETS. And then, finally, shortly after midnight (approximately 1 AM last night), South Carolina along with 26 other State Attorneys General and a host of private entities also filed an emergency application for a stay. What a night.
We briefly summarize the Sixth Circuit’s decision below and explain the lay of the land as it stands at this moment, what might occur next and, most importantly, what this means for employers across the nation. Bottom line is that events are moving fast, but as we said a few weeks ago, do not put a fork in the ETS, and continue to prepare to come into compliance with it. It is alive and well, at least until we hear from the Supreme Court.
Sixth Circuit Decision
In a 2-1 opinion written by Obama-appointee Judge Jane Stranch and, notably, joined by Bush appointee Judge Julia Gibbons, the Sixth Circuit rescinded the nationwide stay of OSHA’s ETS that had been issued by the Fifth Circuit first an administrative stay on November 6th and then as a TRO on November 12th. The three-judge panel that heard the case consisted of one Obama appointee, one Bush (W.) appointee, and one Trump appointee. Judge Gibbons (the Bush appointee) joined Judge Stranch, but she also wrote a separate concurring opinion. Trump-appointee Judge Joan Larsen, who had purportedly been on a Trump’s short-list of potential nominees to the Supreme Court, dissented.
In a nutshell, the Court’s rationale for lifting the stay is that Read More
On December 16, 2021, the Cal/OSHA Standards Board approved the revised COVID-19 Emergency Temporary Standard (ETS) – the second re-adoption. The vote was 6-1 with management representative Kate Crawford dissenting.
The California Division of Occupational Safety and Health (Division) was tasked with drafting the revised ETS text, which the Standards Board approved with no meaningful discussion by members, in spite of compelling substantive concerns repeatedly raised in comments by the employer community. To the dismay of many, the Board has continued to rubber stamp workplace safety rules drafted by the Division, thus effectively turning the enforcement agency into a rulemaking body.
The second re-adopted ETS will next be sent to California’s Office of Administrative Law (OAL) for approval and publication. OAL has 10 days to approve the rule. If approved, the second re-adoption will be in effect from January 14, 2022 to April 14, 2022. Also, as the Standards Board meeting was underway, Governor Newsom signed an executive order authorizing an extension of the COVID-19 safety requirements in the COVID-19 ETS. The governor’s executive order enables a subsequent third re-adoption of the COVID-19 ETS through December 31, 2022.
It remains to be seen whether the ETS will be extended through the end of 2022, discarded, or replaced by the proposed “permanent” COVID-19 rule (with a two-year term). At the request of certain Board members, there was a lively panel discussion at the last Board meeting on the future of COVID-19 rulemaking, with labor representatives lining up in favor of continuing the hardwired, prescriptive COVID-19 ETS and management representatives supporting a fluid performance-based standard like the Injury and Illness Prevention Program.
The revised ETS includes language creating unclear and unmanageable regulatory requirements, as discussed in our prior blog post. When the revised ETS takes effect, the Division will publish updated FAQs that, while not having the force of law, will hopefully clarify the agency’s interpretation of these new requirements.
The Cal/OSHA Standards Board has issued a revised draft of the COVID-19 Emergency Temporary Standard (ETS) for a second re-adoption. This draft shows in underlined text the latest proposed changes from the current emergency regulation (not the October draft text discussed in our prior blog post). The second re-adoption of the ETS, if adopted, will be effective from January 14, 2022 to April 14, 2022, and then could be replaced by a “permanent” COVID-19 rule.
At its December 16, 2021 meeting, the Standards Board will consider this proposed revised ETS, as well as discuss the proposed “permanent” COVID-19 rule being considered to replace the ETS once the emergency rule expires.
Below are the areas where the ETS text proposed for a second re-adoption materially departs from the current rule: Read More
By Conn Maciel Carey LLP’s COVID-19 Task Force
At long last, OSHA has revealed its COVID-19 Vaccination and Testing emergency regulation. The Federal Register site has updated to show the pre-publication package, which is set to run officially in the Federal Register tomorrow, November 5th. The 490-page package includes the Preamble and economic analysis of the regulation, as well as the regulatory text. The regulatory text begins on PDF page 473. Also here is a Fact Sheet about the ETS issued simultaneously by the White House.
We are extremely pleased to report that the rule aligns very well with positions for which CMC’s Employers COVID-19 Prevention Coalition advocated to OSHA and OMB on the most significant topics, like the responsibility for the cost of COVID-19 testing and a delayed implementation date, as well as very narrow record-preservation requirements, grandfathering of prior vaccine-verification efforts, and other elements. OSHA and the White House clearly listened to our views and the compelling rational we put forward for these positions, making the rule a much better, more effective and less burdensome one for employers.
Conn Maciel Carey’s COVID-19 Task Force will be conducting a webinar about the ETS on Wednesday, November 10th at 1:00 PM ET. Here is a link to register for that program.
In the meantime, below is a detailed summary of the rule:
What is the stated purpose of the regulation?
The ETS is “intended to establish minimum vaccination, vaccination verification, face covering, and testing requirements to address the grave danger of COVID-19 in the workplace, and to preempt inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face covering, or testing, regardless of the number of employees.”
Who is covered?
As the president signaled in his announcement and action plan from September 9, the ETS applies only to employers with 100 or more employees, and the rule does make it explicit that the way you count those employees is on a company–wide basis, not establishment-by-establishment. Read More