With its new inspection initiative, the Occupational Safety and Health Administration (OSHA) is taking steps to ensure certain healthcare employers continue to protect workers against COVID-19, even as falling case numbers across the country have prompted many state and local agencies to withdraw mask mandates and other COVID-19 precautions.

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The Department of Industrial Relations’ (DIR) Labor Enforcement Task Force (LETF) has announced an initiative to inspect publicly funded construction sites to ensure employers provide worker’s compensation and follow labor laws, including workplace health and safety requirements.

With this new focus, construction employers who work on public works projects should review their workplace compliance to avoid citations.

Read the full article on Jackson Lewis’ California Workplace Law Blog.

On April 4, 2022, a merits panel of the D.C. Circuit Court of Appeals will hear oral arguments on a petition seeking to force OSHA to issue a permanent standard for healthcare occupational exposure to COVID-19 and to reinstate the Healthcare Emergency Temporary Standard on Occupational Exposure (Healthcare ETS) to COVID-19 pending the permanent standard. The D.C. Circuit Court of Appeals’ referral of this matter to a merits panel was initiated by the Court’s own motion.

On December 27, 2021, OSHA announced the withdrawal of the Healthcare ETS and confirmed its intent to issue a permanent infectious disease standard. Less than two weeks later, on January 5, 2022, National Nurses United and several other labor unions filed an Emergency Petition for a Writ of Mandamus and Request for Expedited Briefing and Disposition with the D.C. Circuit Court of Appeals. In re: National Nurses United, et al., No. 22-1002 (D.C. Cir. Jan. 5, 2022).

The unions argue that OSHA has failed to adequately protect nurses and other healthcare workers from COVID-19. OSHA filed its opposition to the petition on January 21, 2022, arguing, among other things, that OSHA was unable to finalize a permanent healthcare standard because it focused the agency’s resources on its COVID-19 Vaccination and Testing Emergency Temporary Standard (which was also withdrawn). OSHA indicated it expects to complete rulemaking for a permanent healthcare standard within six-to-nine months.

The Healthcare ETS applied in settings where COVID-19 patients are treated, and it required healthcare employers with more than 10 employees to develop and implement written COVID-19 plans that included the following elements:

  • Assigning a designated safety coordinator;
  • Patient screening and management;
  • Policies and procedures to comply with CDC guidelines;
  • Facemask and PPE requirements;
  • Protections while using aerosol-generating procedures on persons with suspected or confirmed COVID-19;
  • Physical distancing;
  • Solid barriers at employee work stations;
  • Cleaning and disinfection protocols;
  • HVAC system requirements;
  • Health screening and medical management requirements;
  • Paid leave for vaccinations, vaccination recovery, and medical removal from work due to COVID-19 infection or certain COVID-19 exposures;
  • Employee training;
  • Anti-retaliation protections;
  • Employee COVID-19 logs; and
  • Reporting work-related COVID-19 fatalities and in-patient hospitalizations.

OSHA has indicated its forthcoming permanent infectious disease standard will cover all industries and address airborne, droplet, and non-bloodborne contact diseases.

While OSHA has indicated it may use the now-withdrawn Healthcare ETS to support citations against healthcare employers under the General Duty Clause of the OSH Act, only the COVID-19 log and reporting provisions formally remain in effect.

Reinstatement of the Healthcare ETS would have a significant impact on covered employers, particularly as COVID-19 cases appear to be dropping throughout the country and more jurisdictions are loosening restrictions.

Please contact a Jackson Lewis attorney with any questions.

California employers are required to post their annual summary of work-related injuries and illnesses, including COVID-19 illness, in a visible and easily accessible area at every worksite from February 1st through April 30th. Employers are required to use Cal/OSHA’s Form 300A for this posting. Read the full article on the California Workplace Law Blog by clicking here.

The Occupational Safety and Health Administration (OSHA) has withdrawn its enforcement of the Emergency Temporary Standard (ETS) requiring most employers to mandate COVID-19 vaccines or tests for employees.

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In a 6-3 ruling, the U.S. Supreme Court has granted a temporary stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS).

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The U.S. Supreme Court heard oral arguments today in the OSHA ETS case.  Of course one never knows how the Court will rule, but if the Justices’ questions are any indication, there could be a 6-3 split in favor of a stay, with Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Gorsuch, Justice Kavanaugh, and Justice Barrett voting in favor and Justice Breyer, Justice Kagan, and Justice Sotomayor dissenting.

All parties made very short opening remarks and then invited the Justices’ questions.  The common theme on which Justice after Justice questioned the parties was not whether vaccinations are helpful in the fight against COVID-19 or whether mandates are lawful generally, but who gets to decide these public health questions?  Much of the questioning and arguments focused on the major question doctrine, what factors determine when to invoke that doctrine, and whether Congress specifically delegated authority to OSHA to legislate the ETS at issue.  As the petitioners challenging the ETS argued, the OSHA ETS is a wide-sweeping workplace rule, not tailored to any particular industry and issued without consideration of specific levels of risk in different work environments.  They argued that the extraordinary power of an emergency rule requires that the rule have more precision, based on an industry-by-industry analysis.  The Solicitor General argued that Congress lawfully delegated the authority to OSHA to issue the ETS when it enacted the Occupational Safety and Health Act of 1970 (the “OSH Act”), the ETS is necessary to protect unvaccinated workers from grave danger due to COVID-19, and that given the ongoing pandemic OSHA considered and properly balanced the various competing interests.  The current surge in COVID-19 cases created a backdrop against which the Solicitor General and several of the Justices expressed concern over issuing a stay.

During the arguments, Chief Justice Roberts questioned the Solicitor General on whether the government was “working across the waterfront” with multiple federal agencies and executive branch actions to legislate #covid19 workplace rules—noting the Center of Medicare and Medicaid Services (CMS) and federal contractor executive order vaccine mandates—without giving Congress a say or acknowledging states’ police powers.  He also expressed doubt that Congress envisioned OSHA having this much power or anticipated the likes of a COVID-19 pandemic when granting OSHA authority under the OSH Act more than 50 years ago.

Justice Alito suggested that with the ETS, the government was trying to “squeeze an elephant through a mousehole,” questioned the Solicitor General about people’s personal medical decisions about vaccination, and questioned whether regular COVID-19 testing was even a viable option at this point.

Justice Breyer expressed concern about the growing number of daily cases, noting that yesterday the nation had around 750,000 new cases.  Petitioners argued however, citing Alabama Assoc. of Realtors, et al. v. HHS, 594 U.S. _____ (2021) (CDC eviction moratorium decided by the High Court August 26, 2021), that while combatting the spread of COVID-19 is a noble goal, no matter how well-intentioned, the ends cannot justify the means when those means are unlawful.

Whatever the outcome, it needs to come fast because employers need clarity.

If you have questions or need assistance on the OSHA ETS, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our Workplace Safety and Health Practice Group or our OSHA ETS Team.

The Occupational Safety and Health Administration (OSHA) has announced that it is withdrawing most of the Emergency Temporary Standard for healthcare employers (Healthcare ETS) it promulgated more than six months ago.

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