California Governor Newsom has just signed Senate Bill 606 authored by Senator Lorena 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.
On June 18, 2021, Andrew J. Sommer and Eric J. Conn presented a webinar regarding Cal/OSHA’s Revised COVID-19 Emergency Temporary Standard.
The saga around Cal/OSHA’s COVID-19 Emergency Temporary Standard (ETS) has taken several bizarre twists and turns. After hurriedly adopting the ETS over Thanksgiving weekend 2020, Cal/OSHA set about this spring to fix some problems with the initial ETS regulatory text. The agency proposed a revised version of the ETS to be considered by the Cal/OSHA Standards Board in late May 2021, but on the eve of that Standards Board meeting, Cal/OSHA pulled it back, purportedly to address the CDC’s updated guidance about masks and distancing for vaccinated workers. Inexplicably, however, Cal/OSHA produced an updated proposed amended ETS that was more onerous, not less.
On June 3, 2021, the Cal/OSHA Standards Board convened a special meeting to consider the revisions to the ETS. The public meeting was long and contentious, with 100+ stakeholders testifying lasting late into the evening. Initially, the Board voted to reject the proposed revisions because the updated ETS ignored the CDC’s science-based guidance on masking and physical distancing for vaccinated individuals and required employers to indefinitely provide scarce N95 respirators to every unvaccinated worker in the state of California. However, a little later that evening, the Board voted to convene a Subcommittee to make the standard “better” and, in an about-face, reconsidered its earlier vote and adopted the proposed revisions in the interim.Read More
After the back and forth with the last revised ETS that was voted down, then approved minutes later, the clawed back a few days later to make way for another revised ETS, late last week, Cal/OSHA released the new revised text for its COVID-19 ETS.
The text of what appears now to become the official updated version of Cal/OSHA COVID-19 ETS is available here, and a redline comparison with the presently effective text is here. Additionally, DOSH has just issued these FAQs clarifying the intent of the proposed revised COVID-19 ETS.
Below is our summary of the major substantive changes coming to the ETS, as compared to the prior proposed revisions (subsequently withdrawn), as well as highlighted guidance that interprets or expands on these anticipated new regulatory requirements.
Substantive Revisions to the ETS Text
As expected, these latest changes were limited given the short window for issuing revisions following the Standards Board’s special meeting earlier this week. We understood Read More
Because the Cal/OSHA Standards Board has just pulled back the revisions to the Cal/OSHA COVID-19 Emergency Temporary Standard (ETS) and will consider other revisions at its June 17th meeting, we have rescheduled our webinar “Cal/OSHA’s Revised COVID-19 Emergency Temporary Standard” for June 18, 2021, at 10 a.m. PT.
As background, the Standards Board voted to withdraw the recently approved revised version of the ETS. The Division is going to introduce by Friday June 11th a new proposed revised ETS that better aligns with Centers for Disease Control and Prevention and California Department of Public Health guidance (i.e., no masking for fully vaccinated workers even if there are some unvaccinated people present). The new revised ETS that is expected to issue will be voted on at the Board’s next scheduled meeting on June 17th and, if approved, go into effect on June 28th. Between now and June 28th, the original ETS remains in effect.
Check out the updated description and register below. Read More