Canadian Union Challenges to Mandatory Proof of COVID-19 Vaccination Policies

John Ho Leave a comment

Today we have insights from Norm Keith [1], a management-side employment and labor lawyer for KPMG.

The COVID-19 pandemic continues with over 5.1 million deaths worldwide and over 29,000 in Canada. [2] Tens of thousands of workers have contracted the deadly virus at work and filed workers’ compensation claims, including a number of worker deaths across Canada. COVID-19 is both an Occupational Health and Safety (“OHS”) as well as a Public Health crisis. Early responses of governments included lockdown regulations, physical distancing and masking mandates, and physical changes to workplaces.

Read More
About The Author

5th Circuit Continues Stay of OSHA ETS – What Do Employers Do Now?

John Ho Leave a comment

As we reported a day after the November 5, 2021, effective date of OSHA’s ETS, the Fifth Circuit issued a temporary stay of the ETS pending further proceedings. On November 12, 2021, a three-judge panel of the Fifth Circuit continued the stay in a 22-page decision that contained numerous quotes and footnotes aggressively attacking the constitutionality of the ETS by stating, among other things, its promulgation grossly exceeds OSHA’s statutory authority. The Court further opined that the ETS is “fatally flawed” as its reach extends far beyond the Agency’s mission. The decision further noted, what many practitioners have already observed, that the ETS appears to be a “workaround” to impose a federal vaccine mandate.

Read More
About The Authors

OSHA Publishes General Industry Emergency Temporary Standard

John Ho Leave a comment

OSHA’s long-awaited general industry COVID-19 emergency temporary standard (“ETS”) was officially published today and became effective immediately for employers in those states without “state OSHA” plans. However, employers covered by federal OSHA still have until December 5, 2021, to comply with all the requirements, except the weekly testing requirements, which do not take effect until January 4, 2022. As expected, the ETS only applies to employers with 100 or more employees in the aggregate, including part-time employees. Generally speaking, covered employers will be required to do the following:

Read More
About The Authors

OSHA Publishes Its Advance Notice of Proposed Rulemaking for Heat Stress

John Ho Leave a comment

On October 27, 2021, OSHA published an Advance Notice of Proposed Rulemaking (“ANPRM”) to initiate a comment period to gather diverse perspectives and expertise on heat stress issues such as heat stress thresholds, heat acclimatization planning, and exposure monitoring. OSHA has been talking about a need for a heat stress standard, so this development is not surprising. Although OSHA has traditionally addressed heat hazards under the general duty clause, a decision by the Occupational Safety and Health Review Commission on February 28, 2019, in Secretary of Labor v. A.H. Sturgill Roofing, Inc[1]., which reversed an administrative law judge’s order affirming heat-related citations made it more difficult for OSHA to do so.  In fact, the Commission in Sturgill specifically questioned the use of the general duty clause calling it more of a “gotcha” and “catch-all” law and opined that once a hazard is identified, such as heat stress, OSHA should engage in rulemaking to allow various stakeholder participation in the process. It seems OSHA has finally taken the Commission up on that offer. 

Read More
About The Authors

More than 100 Employees? Mandatory Vaccinations or Weekly Testing Soon To Be Required Under OSHA’s Forthcoming Emergency Temporary Standard

John Ho Leave a comment

On September 9, 2021, the Department of Labor announced plans to issue an emergency temporary standard (“ETS”) requiring employers with more than 100 employees to ensure that every employee is fully vaccinated against COVID-19 or tests negative every week. Although neither the White House nor the Department of Labor has disclosed a definitive deadline, it is expected it will be issued quickly. If so, this means the ETS will most likely skip the normal public comment period from stakeholders generally required during the rulemaking process. On the contrary, the current COVID-19 ETS in health care took over six months in the regulatory process.  

Read More
About The Authors

NYS DOL Publishes Model Airborne Infectious Disease Exposure Prevention Plan under HERO

John Ho Leave a comment

On July 6, 2021, NYS DOL published its Airborne Infectious Disease Exposure Prevention Plan under the New York Health and Essential Rights Act (“HERO”), signed into law on May 5, 2021, Governor Cuomo. In addition to the general model plan, several industry-specific templates were also published, including agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail.

Read More
About The Author

In the absence of any grave danger, OSHA still issues a COVID-19 Emergency Temporary Standard but limits its coverage to healthcare and provides new guidance to all other employers

James J. Sullivan, Jr. Leave a comment

On May 26, 2021, we told our readers that we thought that although an “emergency” no longer existed about OSHA’s need to regulate employers’ handling of the COVID-19 virus, OSHA would nonetheless still issue an emergency temporary standard (ETS) due to immense political pressure on the Department of Labor (DOL) from numerous labor organizations and other “workplace safety” advocacy groups. We also stated in our earlier blog that we believe that any ETS issued would most likely address the exposure risks and hazards faced by employees and employers in the healthcare industry. Well, yesterday, that prediction came true as OSHA finally issued its “emergency” standard despite overwhelming evidence that the “grave danger” required by the Occupational Safety and Health Act to allow the DOL to issue a temporary emergency standard no longer exists.

Read More
About The Author

OSHA Issues Enforcement Guidance for Electronic Recordkeeping Rule and Promises Aggressive Enforcement

John Ho Leave a comment

As discussed in a previous blog, covered employers were required to electronically submit 300A data for the calendar year 2020 between January 2, 2021, through March 2, 2021. In a recent standard interpretation dated May 6, 2021, OSHA issued enforcement guidance stating employers who could not do so because of issues associated with the Injury Tracking Application (ITA) shall not be cited. Provided the data was submitted on a timely basis once the ITA became operational. Accordingly, employers are advised that they should keep written documentation if they experience any issues with using the ITA moving forward. 

Read More
About The Author

Are We Ever Going To See A COVID-19 ETS And, If So, What Will It Look Like? My Meeting With The White House This Week Didn’t Reveal Much

James J. Sullivan, Jr. Leave a comment

The one question on everyone’s mind is when, if ever, will employers learn whether OSHA will actually issue the COVID-19 Emergency Temporary Standard (“ETS”) that OSHA delivered to the White House’s Office of Management and Budget’s (“OMB”) Office of Information and Regulatory Affairs (“OIRA”) at some point in late April or early May to the general public. OIRA is required to engage in regulatory oversight under Executive Order 12866 and, as part of that oversight, has been conducting “listening sessions/meetings” with stakeholders. Many of us anticipated that we would have seen these meetings conducted and completed now, given this action’s “emergency” nature. 

Read More
About The Author