OSHA Law Blog : Occupational Safety Lawyer & Attorney : Jackson Lewis Law Firm : Health, OSHA Compliance

Employers may order employees to take seasonal and H1N1 vaccines, the nation’s principal workplace safety and health agency has stated.  OSHA offered this opinion in a letter of interpretation, published recently on the agency’s website.

The letter is addressed to Congresswoman Marcy Kaptur (D-OH), who relayed to OSHA a letter from a constituent asking whether her employer could mandate that she accept a flu shot. According to the constituent, her employer had “threatened the employees with mandatory time off” if they did not accept the flu shots.

OSHA responded, first, by reiterating its guidance that healthcare employers should offer both the seasonal and H1N1 vaccines to employees and that employees should be informed of the vaccines’ benefits. It added, however, that employers may require employees to take the vaccines, even though OSHA has no published standard containing this requirement. OSHA also provided a cautionary note: an employee who refuses to be vaccinated because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death may be protected from job retaliation under Section 11(c) of the OSH Act, which prohibits discrimination against employees who exercise their safety and health rights.

The issue of whether employers can require employees to take flu vaccines has been controversial for both employers and employees. OSHA appears to be stepping directly into this controversy. Even though media attention over the H1N1 virus has subsided for the moment, the issue of mandatory vaccines for employees is one that likely will recur during the next flu outbreak.

While employers should be aware of OSHA’s interpretation, they also must be mindful of other laws and regulations that may be applicable to issues affecting mandatory vaccinations. Collective bargaining agreements also may be relevant. Employers should consider all of this information before adopting any vaccination policies.

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OSHA has released its long-awaited Fall Regulatory Agenda.  The Regulatory Agenda lists the major rulemaking initiatives that the agency will be pursuing over the next 12 months.  The Agenda also provides a snapshot into the agency's priorities, as we enter the second year of the administration of President Obama.

Longstanding Rulemakings Remain on the Agenda

Most of the rulemaking items that started under President Clinton or Bush remain on OSHA's regulatory agenda.  OSHA continues to push forward with a silica rulemaking, which was initiated in the 1990s.  OSHA predicts that it will publish a proposed rule comprehensively regulating exposure to silica in the workplace in July, 2010.  Other rulemakings that continue to receive OSHA's attention include rulemakings on diacetyl, hazard communication, combustible dust, and tree care operations.

OSHA does announce in this regulatory agenda that it is abandoning its regulatory efforts to update its explosives rule.  This rulemaking had engendered some controversy during the Bush Administration over its proposed provisions related to storage of ammunition.

New Rulemakings Added

OSHA is also adding some new regulatory actions that are sure to be controversial.  First, OSHA is revisiting the issue of the definition of work-related musculoskeletal disorder (WMSD) and the need to identify specifically WMSDs in a separate recordkeeping column.  When OSHA developed its revised recordkeeping rule in the late 1990s, OSHA initially required employers to identify WMSDs separately on OSHA 300 logs.  This requirement, however, was abandoned by the Bush Administration in a follow-up regulatory initiative.  OSHA is now looking once again at the issue and it may reignite some of the controversy associated with past OSHA efforts related to WMSDs and ergonomics.

Second, OSHA is seeking information from the public on the need for a federal Aerosol Infectious Diseases standard.  Specifically, "OSHA is considering the need for a standard to ensure that employers establish a comprehensive infection control program and control measures to protect employees from airborne infectious disease exposures to pathogens that can cause significant disease."  California recently adopted its own aerosol transmissible disease standard and this rulemaking initiative suggests that federal OSHA is exploring the need for such a standard nationwide.

OSHA continues to be active on both regulatory and enforcement initiatives.  We will continue to keep you apprised in this space on the latest OSHA developments.              

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Jackson Lewis and SmartPros Ltd. are pleased to announce the availability of two OSHA recordkeeping courses.  The first is Course 2215, OSHA’s Record-Keeping NEP:  What It Is and What You Need to Do to Prepare, which explains OSHA’s Recordkeeping NEP in detail.  The second is Course 2210, The OSHA Record-Keeping "Great Eight," which goes through eight key principles for OSHA recordkeeping compliance.

In addition, click here to view a recent interview on occupational safety and health issues prepared and produced by the Financial Management Network (FMN).  The interview covers H1N1, hazard communication, safety and health management systems, OSHA's Recordkeeping NEP, and other hot topics.

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Employers may be required to provide seven days of paid sick time per year under a bill introduced in Congress.  The measure, titled the Pandemic Protection for Workers, Families, and Businesses Act (H.R. 4092/S. 2790), was introduced by Representative Rosa DeLauro (D-Conn.) in the House and Senator Christopher Dodd (D-Conn.) in the Senate on the heels of another emergency paid sick leave bill proposed earlier.  If passed, the Pandemic Protection Act would be a temporary law that expires two years from enactment.

Under the proposal, employees would be entitled to paid sick time off due to a contagious illness or to care for a child with a contagious illness.  It seeks to contain the spread of H1N1 and other influenza strains by ensuring sick employees can stay home from work without financial sacrifice from loss of work.

The Pandemic Protection Act would require most employers with 15 or more employees to provide full-time employees with seven days of paid sick time to be used for the following reasons:

• The employee or his or her child is experiencing symptoms of a contagious illness, such as the 2009 H1N1 virus or other influenza-like illness, including time off for medical and preventive care;
• A health authority or health care provider has determined that the employee’s presence at work or the child’s presence in the community would expose others to a contagious illness; or
• The employee’s worksite or the child’s school, child care or early childhood program has been closed due to a contagious influenza-like illness.

Part-time employees would be entitled to a pro-rata share of paid sick days.  Employees must have worked for their employer for 30 days before they are covered under the bill.

If the Act becomes law, employers’ existing paid time off (PTO) policies may need to be modified.  According to the bill, employers who already provide seven days of paid sick leave that “may be used for the same purposes and under the same conditions as the purposes and conditions [covered in the legislation] shall not be required to provide additional paid sick time…”  It is unclear what effect the legislation would have on PTO plans that allot a certain amount of time off without specifying the permitted purposes of use.  The proposal also leaves unanswered the question whether an employee who has exhausted his or her PTO allotment would be entitled to paid leave for the reasons in the bill.

Regardless of the outcome of this paid sick leave measure, employers should develop and implement contingency plans to address widespread absences due to pandemic illness in the workplace.

Carrie Jabinsky drafted this blog post.

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As concern over H1N1 and influenza-related illnesses continues to spread, legislation that would require employers to provide up to five days of paid sick leave per year to workers afflicted with influenza or other, similar contagious illness has been introduced in the U.S. House of Representatives. The bill applies to employers with 15 or more employees where workers comply with the employer’s directive to go home or stay home from work because of a contagious illness. The proposed legislation, titled the Emergency Influenza Containment Act (H.R. 3991), was introduced by House Education and Labor Committee leader Rep. George Miller (D-Cal.) and Workforce Protections Subcommittee leader Rep. Lynn Woolsey (D-Cal.).

If passed, the bill would apply to both full time and part time employees who are “directed” or “advised” to leave work or not come in “because the employer believes the employee has symptoms of a contagious illness, or has been in close contact with an individual who has symptoms of a contagious illness.” Contagious illness is defined in the legislation and includes “influenza-like-illnesses,” such as H1N1.

Covered employees would be entitled to an amount of paid sick leave calculated based on the employee's regular rate of pay and scheduled hours of work. Small employers and companies that already provide five or more paid sick days per year would be exempt from the bill’s requirements.  The measure also would prohibit employers from firing, disciplining, or retaliating against workers who comply with the employer’s directive to stay home or not come to work.

The Emergency Influenza Containment Act may move quickly as a result of mounting concerns regarding influenza-related illnesses. The House Education and Labor Committee is expected to hold a hearing on the legislation during the week of November 16. The Emergency Influenza Containment Act would expire two years from enactment.

Carrie Jabinsky drafted this post.

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Marking the federal government’s first move from a “recommendation” to a “requirement” posture in dealing with H1N1, the Occupational Safety and Health Administration (OSHA) has announced that it will issue a compliance directive to enforce the Centers for Disease Control and Prevention’s Interim Guidance on Infection Control Measures for 2009 H1N1 Influenza in Healthcare Settings, Including Protection of Healthcare Personnel.

The OSHA Directive will prescribe uniform procedures governing OSHA inspections of healthcare institutions for occupational exposure to H1N1 flu.  Covered healthcare settings include acute care hospitals, nursing homes, skilled nursing facilities, physicians’ offices, urgent care centers, outpatient clinics, and home healthcare agencies.  OSHA will conduct inspections based upon employee complaints.

While it is unclear how much of the CDC Guidance will be incorporated into OSHA’s Directive and what level of compliance will be required, healthcare employers should make reasonable efforts to ensure their policies, procedures, forms, and postings conform with the CDC’s recommendations, including:

• Hierarchy of Controls:  The CDC recommends that healthcare facilities use a “hierarchy of controls” to prevent H1N1 exposure and transmission including, in descending order of preference:  (1) elimination of potential exposures, such as minimizing outpatient visits for patients with mild influenza-like symptoms, and denying access to visitors with suspected or confirmed influenza; (2) engineering controls, including partitions for triage areas and other public spaces; (3) administrative controls, including providing vaccinations for employees, ensuring that ill employees stay home, and enforcing respiratory hygiene and cough etiquette; and (4) personal protective equipment (PPE), such as gloves and respirators.
   
• N95 Respirators/Facemasks:  The CDC recommends use of respiratory protection “at least as protective as a fit-tested disposable N95 respirator for healthcare personnel who are in close contact with patients with suspected or confirmed 2009 H1N1 influenza.”  Close contact is defined as working within six feet of an infected patient.  Acknowledging that some facilities face a supply shortage of this equipment, the CDC advises that “special care … be taken to ensure that respirators are available for situations where respiratory protection is most important, such as performance of aerosol-generating procedures on patients with suspected or confirmed 2009 H1N1 influenza or provision of care to patients with other infections for which respiratory protection is strongly indicated (e.g., tuberculosis).”  This may require prioritizing resources.  The CDC recommends that facemasks be chosen over no protection.

For its part, OSHA suggests that if employers make a good faith effort to obtain N95 respirators, but are unable to do so for supply reasons, they will not be cited, so long as they are taking other appropriate protective measures.  What level of compliance OSHA will require with respect to these other recommended protective measures — such as screening for respiratory illnesses — is not clear at this time.

Beyond efforts to implement policies and procedures that comply with the CDC Guidance, healthcare employers must consider how the recommendations interact with their legal obligations under federal and state disability, leave, privacy and other laws.  The Equal Employment Opportunity Commission, for example, has published technical guidance detailing employers’ obligations under the Americans with Disabilities Act with respect to H1N1.

Mei Fung So prepared this blog post.

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Acting Assistant Secretary of OSHA Jordan Barab issued a statement today announcing a soon-to-be-issued compliance directive to guide agency inspections for H1N1 in healthcare facilities.  Click here to view the statement.

We will keep you posted in this space as the compliance directive is developed.  

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With Labor Day behind us and schools back in session, concerns about the H1N1 influenza virus and seasonal flu are resurfacing.  The Centers for Disease Control recently released Guidance for Businesses and Employers to Plan and Respond to the 2009-2010 Flu Season, including a helpful “toolkit” to aid in such planning.  OSHA also has published important guidance that employers should review.

Employers are finding that the workplace issues arising under H1N1 are numerous, varied, and complex.  Many have questions about the legal and practical impact H1N1 will have on their businesses.  More and more are seeking assistance in developing written H1N1 policies and creating business continuity plans during a time when they could experience substantial absenteeism.  To help employers deal with these issues, Jackson Lewis has developed the following free resources:
 

• A webinar recorded in May 2009 providing an overview of the legal issues that must be considered in preparing for an H1N1 pandemic. In this webinar, we consider the potential OSHA, ADA, FMLA, FLSA, HIPAA and state law issues that may arise as employers respond to H1N1.
• A sample handbook policy discussing some of the critical points employers may want to consider communicating to employees.
• An article discussing the CDC’s recent Guidance for Businesses and Employers to Plan and Respond to the 2009-2010 Flu Season, including a link to the Guidance and the “toolkit” prepared by the CDC.

We will continue to keep you apprised of developments with respect to H1N1 and seasonal flu and pass along any additional information to aid in your preparedness plans.

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The Centers for Disease Control and Prevention, anticipating a spread of the H1N1 flu, has released new guidelines to help businesses and employers prepare now for the impact seasonal and H1N1 flu could have on employers, employees, and operations.

The guidelines urge employers to work with employees to develop and implement plans that can reduce the spread of flu.  They push for the preparation of plans that address such points as encouraging employees with flu-like symptoms to stay home, operating with reduced staffing and, where feasible, having employees who are at higher risk of serious medical complications from infection work from home.

Employers also might cancel non-essential face-to-face meetings and travel, and space employees farther apart in the workplace, the guidelines say.

The guidelines provide a list of “Actions Employers Should Take Now,” including:

• Review or establish a flexible influenza pandemic plan and involve employees in developing and reviewing the plan;
• Conduct a focused discussion or exercise using the plan, to find out ahead of time whether the plan has gaps or problems that need to be corrected before flu season;
• Have an understanding of normal seasonal absenteeism rates and know how to monitor personnel for any unusual increases in absenteeism through the fall and winter;
• Allow sick workers to stay home without fear of losing their jobs;
• Develop other flexible leave policies to allow workers to stay home to care for sick family members or for children if schools dismiss students or child care programs close; and
• Share your influenza pandemic plan with employees and explain what human resources policies, workplace and leave flexibilities, and pay and benefits will be available to them.

We will keep you apprised of other developments as the fall flu season approaches.

A special thanks to Mei Fung So of Jackson Lewis who prepared this blog post.

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