On November 19, 2020, California’s Department of Industrial Relations Occupational Safety & Health Standards Board (“Board”) adopted a general safety order that, in effect, creates an emergency temporary standard specific to potential workplace coronavirus (“COVID-19”) exposures (“COVID-19 Prevention Rule” or “Rule”). While not the first state to adopt an emergency temporary standard (see our earlier posts on new requirements in Michigan, Oregon, and Virginia), California’s COVID-19 Prevention Rule is unique in that it is performance based and adds to the host of requirements imposed by the state’s public health departments. As a result, California employers need to ensure their efforts to manage COVID-19 heed both the new COVID-19 Prevention Rule and state and local public health department orders. The state’s Division of Occupational Safety & Health (“Cal OSHA”) will administer and enforce the COVID-19 Prevention Rule, which is set to be codified in Section 3205 of California’s Code of Regulations following review by the Office of Administrative Law. Once reviewed and approved by the Office of Administrative Law, the Rule will take immediate effect and impose new requirements on employers. Many of the requirements noted in the Rule are already required by Cal OSHA guidance on COVID-19 or by state and local health department orders, while other new requirements are set to go into effect on January 1, 2021.

COVID-19 Requirements for All Workplaces

Cal OSHA’s COVID-19 Prevention Rule has provisions that apply to all workplaces and provisions that are specific to employers that provide housing and transportation or are experiencing outbreak conditions at their workplace. Covered workplaces under the Rule include all workplaces in California, except workplaces with (i) only 1 employee having no contact with others, (ii) employees who are working remotely from their homes, and (iii) employees who are covered by Cal OSHA’s Aerosol Transmissible Disease Standard. In addition, because the COVID-19 Prevention Rule does not limit, restrict, or otherwise supersede state or local health department requirements, compliance with the COVID-19 Prevention Rule alone may not satisfy all workplace COVID-19 requirements in the state. Employers with California workplaces subject to the COVID-19 Prevention Rule may, in fact, have to contend with additional or more restrictive obligations under applicable state or local health department orders on top of the Rule’s many requirements. That said, the COVID-19 Prevention Rule imposes the following minimum requirements on all covered California workplaces:

  • COVID-19 Prevention Program. Employers must establish, implement, and maintain an effective written COVID-19 Prevention Program, which includes (i) a system for communicating COVID-19 information; (ii) procedures for identifying, evaluating, and responding to possible COVID-19 hazards; (iii) procedures to investigate and respond effectively to COVID-19 cases in the workplace, including notifications for potential COVID-19 exposures; (iv) methods for correcting identified COVID-19 hazards; and (v) measures to train and instruct employees on COVID-19 hazards and corresponding controls.
  • COVID-19 Preventive Measures. Employers must implement preventive measures consisting of (i) physical distancing or separation of persons by at least six feet, unless separation is “not possible” or involves a momentary exposure while persons are in movement; (ii) requirement for employees to wear face coverings, except in limited circumstances; (iii) use of engineering and administrative preventive controls, such as physical barriers, markings, optimized ventilation, and cleaning and disinfecting procedures; (iv) provision of handwashing facilities, and (v) use of personal protective equipment (“PPE”), such as gloves, face shields, face masks, goggles, and respirators, when needed to prevent exposure to COVID-19 hazards.
  • Reporting and Recordkeeping. Employers must report information to their local health department when required or requested, report COVID-19 cases that result in a serious illness or death to Cal OSHA, maintain records relevant to COVID-19 cases, and retain COVID-19 related records in a confidential manner and consistent with Cal OSHA medical records regulations.
  • Worker Exclusions. Employers must exclude workers from the workplace who are known to have COVID-19 or who have had a COVID-19 exposure and apply set criteria for allowing workers to return. For example, employers must, without exception, exclude workers that have had an exposure to COVID-19 in the workplace for at least 14 days.
  • Management of COVID-19 Infections and Outbreaks. For workplaces identified by a health department as having an outbreak and workplaces where there are three or more COVID-19 cases within a 14-day period, employers must provide testing to employees at the workplace during working hours upon discovery of the outbreak and at least one week later. When testing is required under the Rule, employers are responsible for testing costs and may have to provide ongoing testing when considered necessary by Cal OSHA, recommended by the health department, or to manage an ongoing outbreak.
  • COVID-19 Case Investigation. Employers must immediately investigate COVID-19 cases and potential COVID-19 outbreaks to determine if workplace related factors contributed to the case or outbreak and take immediate action to address any identified COVID-19 related hazards.
  • COVID-19 Case Notifications. Employers must report COVID-19 outbreaks (three or more positive cases of COVID-19 within a 14-day period) to their local health departments within 48 hours of knowing about a COVID-19 outbreak.

Major COVID-19 Outbreaks

Cal OSHA’s COVID-19 Prevention Rule requires that employers having a major COVID-19 outbreak take additional actions to prevent and minimize the spread of COVID-19. A major outbreak is defined in the Rule as a covered workplace that has 20 or more COVID-19 cases within a 30 day-period. If a major outbreak occurs, employers must comply with certain requirements until no new COVID-19 cases have been detected in the workplace for a 14-day period. These requirements include

  • Employer provided COVID-19 testing at least twice a week;
  • Exclusion of workers who have COVID-19 or experienced a COVID-19 exposure;
  • Ongoing COVID-19 case investigations;
  • COVID-19 hazard assessment and correction, which may require adjustments in ventilation, respiratory protection requirements, change in operations, or “other control measures deemed necessary” by Cal OSHA; and
  • Ongoing COVID-19 notification obligations.

COVID-19 Prevention in Employer-Provided Housing

Cal OSHA’s COVID-19 Prevention requires California employers take additional that provide housing or housing accommodations to their employees, with limited exceptions. At first, these employers must prioritize housing assignments to avoid having employees share a housing unit who do not usually have a common household. Employers must also implement physical distancing controls by redesigning housing spaces to maximize distance between individuals, limit capacity of common areas, and ensure separation of individuals’ beds and furniture. Employers must similarly offer residents face coverings and explain when to wear them, ensure effective cleaning and disinfecting, and implement resident screening and testing programs. Further employers must implement effective procedures for identifying when a resident develops symptoms of illness and ensure effective isolation of potentially sick individuals to prevent and minimize the potential for spread of COVID-19.

COVID-19 Prevention in Employer-Provided Transportation

Cal OSHA’s COVID-19 Prevention Rule requires that employers who are providing transportation for employees to and from work or as part of their job duties implement prescribed precautions. Employers must specifically emphasize transportation assignments that minimize workers sharing transportation with others who do not share a common household, use physical distancing if possible, and require drivers and riders to use face coverings. Employers providing employee transportation must also ensure that effective screening procedures are in place to prevent sick drivers or riders from sharing transportation. Employers must further provide for vehicles’ high contact surfaces to be cleaned and disinfected between trips and uses as well as ensure drivers and riders have access to sanitizing supplies.

The COVID-19 Prevention Rule’s Impact to California Employers

Cal OSHA’s COVID-19 Prevention Rule will upend California employers’ operations and workplace safety measures. Although California employers have been advised through Cal OSHA guidance to address COVID-19 hazards in their Injury Illness Prevention Programs since May, the COVID-19 Prevention Rule adds new programmatic and preventive requirements that go beyond Cal OSHA’s prior guidance. As a result, even those employers that have implemented COVID-19 preparedness and response plans adhering to guidance from the Centers for Disease Control and Prevention (“CDC”) and federal OSHA will need to develop new written program materials. The COVID-19 Prevention Rule also requires employers to comply strictly with preventive measures, unless they are “not possible.” For example, under the COVID-19 Prevention Rule, employers must implement physical distancing measures that ensure individuals remain at least 6 feet of separation or show why physical distancing is impossible. This burden to show that physical distancing is “not possible” also diverges from other occupational health and safety regulations and requirements where employers can show generally that compliance with a requirement is infeasible rather than impossible.

Along with the programmatic burdens, Cal OSHA’s COVID-19 Prevention Rule sets up significant compliance hurdles for employers in the form of COVID-19 case management requirements, mandatory worker exclusions, and required testing. For instance, under this Rule, employers must provide employees COVID-19 testing during working hours in some cases (i.e., COVID-19 outbreak, major COVID-19 outbreak, when recommended by a local health department). To ensure compliance with other federal and state laws, as well as protection of employees’ confidential and private health information, employers will need to coordinate testing services, maintain corresponding records as confidential medical information, and establish controls to prevent improper access, use, or disclosure of employees’ private health information. Employers may also need to make arrangements for testing services before a potential outbreak to ensure the availability of testing resources, especially if testing options are limited in the area where the worksite is located.

Although some of the requirements under Cal OSHA’s COVID-19 Prevention Rule are not set to go into immediate effect, Cal OSHA can rely on its COVID-19 related guidance to enforce against employers that have not implemented COVID-19 preparedness plans or procedures. Employers also need to be diligent in implementing the programmatic and preventive measures required by the Rule because Cal OSHA has expanded enforcement authority under this Rule and following passage of AB 685 to pursue enforcement of employers violations related to COVID-19 hazards. In fact, under the COVID-19 Prevention Rule and AB 685, Cal OSHA can issue orders compelling certain actions, such as COVID-19 testing, preventive measures, or worksite closures. Cal OSHA may also issue serious violations to employers for COVID-19 related violations without providing a pre-citation notification.

Finally, California employers will need to carefully evaluate requirements under the COVID-19 Prevention Rule along with state and local health department orders and industry guidance to determine what requirements apply to their operations. Since the COVID-19 Prevention Rule does not disturb or interfere with state and local health department requirements, California employers may need to balance different requirements in different California counties and cities. This will be a challenge for employers, particularly as there may be conflicting requirements as a result of differences in health department orders, guidance, or recommended practices. Indeed, because of significant differences in safety requirements in the COVID-19 Prevention Rule, emergency temporary standards adopted in several states, frequent changes in CDC guidance, and more stringent or additional obligations imposed by health department orders, employers may be unable to establish a consistent or uniform COVID-19 response plan and procedures across all of their operations.

If you have questions, would like additional information, or need assistance, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.

On November 16, 2020, the Center for Disease Control (CDC) clarified its guidance permitting critical infrastructure workers to return to work before the end of the standard 14-day quarantine period following exposure to COVID-19.  In this updated guidance, the CDC reiterated its standard recommendation that all individuals known to be exposed to a person with suspected or confirmed COVID-19 should quarantine for 14 days, with the possible limited exception of asymptomatic critical infrastructure workers who have not tested positive for SARS-CoV-2 (“COVID-19”).

While earlier CDC guidance allowed critical infrastructure employers to consider allowing workers who were exposed but tested negative to continue to work when necessary to preserve the function of critical infrastructure workplaces; in the most recent guidance, the CDC clarifies what circumstances might warrant use of the exception stating “that reintegrating exposed critical infrastructure workers who are not experiencing any symptoms and have not tested positive back into onsite operations should be used as a last resort and only in limited circumstances, such as when cessation of operation of a facility may cause serious harm or danger to public health or safety.”

The CDC stated it issued the updated guidance to align with new scientific evidence, evolving epidemiology and the need to simplify the assessment of risk; specifically:

  • Increased evidence that infected people pose a transmission risk without symptoms or before the onset of recognized symptoms;
  • Ongoing community transmission in many parts of the country;
  • A need to communicate effectively to the general public; and
  • Continued focus on reducing transmission through social distancing and personal prevention strategies.

The CDC explains that “[r]eintegrating exposed workers who are not experiencing any symptoms and who have not tested positive back into onsite operations carries considerable risk to other workers because many people with COVID-19 are asymptomatic but can still spread disease, and tests are imperfect. Bringing exposed workers back should not be the first or most appropriate option to pursue in managing critical work tasks. Quarantine for 14 days is still the safest approach to limit the spread of COVID-19 and reduce the chance of an outbreak among the workforce.”

The new guidance also encourages all critical infrastructure employers to work with local health officials on any reintegration of exposed workers and reiterates the additional risk mitigation precautions required including pre-screening, on-site screening with temperature checks, ongoing health monitoring, cleaning and disinfecting, social distancing, and ensuring all employees wear cloth masks.

This new guidance follows a trend we have seen in some states.  Since the initial CDC critical infrastructure worker guidance was issued in April, several states have adopted rules narrowing the circumstances under which critical infrastructure employers can allow asymptomatic exposed employees to continue to work.  For example:

  • In New York, employees who are exposed to COVID-19 but remain asymptomatic can continue to work if “deemed essential and critical for the operation or safety of the workplace, upon a documented determination by their supervisor and a human resources representative in consultation with appropriate state and local health authorities.”
  • In Wisconsin, the Department of Health has not endorsed exposed, asymptomatic workers returning to work before a 14-day quarantine period, however, local health departments in Wisconsin are allowed to grant case by case exceptions.
  • In New Mexico, if an essential business would be forced to cease operations due to the quarantine of exposed, asymptomatic workers, then such workers may continue working if they test negative for COVID-19 and certain safety measures are met.

In light of the new CDC guidance, critical infrastructure employers should consider reviewing their policies and procedures for returning asymptomatic exposed employees back to work, keeping in mind that state and local orders, and guidance from state and local health departments and safety agencies, may impose different and more restrictive requirements. Among other things, employers should consider:

  • Articulating and documenting the impact on operations such as how and why business operations might cease and, if applicable, the potential impact on health and safety if exposed, asymptomatic employees are held out of work for a 14-day quarantine period.
  • Consulting with the local health departments on the reintegration of exposed workers.
  • Developing plans and protocols to implement additional safety precautions, including pre-screening, health monitoring, and preventive measures.

As always, employers must also continue to comply with all applicable federal OSHA and state equivalent workplace safety requirements.

If you have questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our COVID-19 team.

Only a week ago Governor Newsom “pulled the brake” on California’s reopening, including issuing a travel advisory. However, as the number of COVID-19 cases continues to rise, the California Department of Public Health (“the Department”) has issued a limited stay-at-home order that will go into effect Saturday, November 21, 2020, at 10:00 p.m. PST. The Department also issued a Questions and Answers page regarding the limited stay-at-home order.

The order applies to counties in California’s Purple Tier, the designation for those areas with the most widespread transmission of COVID-19.  Many of the most populous counties including Los Angeles, San Diego, and Orange are currently included in the Purple Tier.

Under the order, individuals in these counties must stay home between the hours of 10 p.m. and 5 a.m. except for those activities associated with the operation, maintenance, or usage of critical infrastructure or required by law.  Members of the same household are permitted to leave their residence, lodging, or temporary accommodation, as long as they do not interact with anyone outside their household. A business that is not deemed essential must also close between the hours of 10 p.m. and 5 a.m.

If a county moves to the Purple Tier after November 21, 2020, the order will apply to that county at 10:00 p.m. PST of the second day following such move.  The order is set to expire December 21, 2020, but may be extended as deemed necessary.

Jackson Lewis is monitoring COVID-19 developments that affect employers. If you have questions about this or other COVID-19 related orders, contact a Jackson Lewis attorney to discuss.

As previously reported, on October 2, 2020, the Michigan Supreme Court invalidated post-April 30, 2020 Executive Orders that Governor Whitmer issued related to the COVID-19 pandemic. The opinion can be found here. As a result, a patchwork of laws and agency orders have stepped in to cover the gaps left by the invalidated Michigan COVID-19 Executive Orders.

For example, on October 21, 2020, Governor Whitmer signed a bipartisan law that prohibits employees from reporting to work until all prescribed legal conditions have been met. The Jackson Lewis article on that law can be found here.

As another example, on October 14, 2020, the Michigan Occupational Safety and Health Administration (MIOSHA) issued COVID-19 Emergency Rules that are in effect for six months, which can be found here. These rules largely follow prior executive orders in requiring all employers to: (a) categorize job tasks into risk categories, (b) create a written preparedness and response plan with detailed measures to prevent employee exposure based on the risk categories, (c) follow certain basic infection prevention and screening measures, (d) follow notification requirements when a visitor/employee has a known case of COVID-19, (e) provide employee training, and (f) maintain records of training, screening, and notifications. MIOSHA’s Emergency Rules Fact Sheet can be found here.

Included within the “basic infection prevention measures” (MIOSHA Emergency Rule 5) was the preexisting requirement that employers have a policy “prohibiting work for employees to the extent that their work activities can feasible be completed remotely.”  However, on November 12, MIOSHA issued guidance making it clear that the employer must show the infeasibility of remote work, the requisite policy needs to be in writing in the preparedness and response plan, and the policy should state:

  • Which positions/classifications report for in-person work and why they must be physically present in the workplace;
  • Reasons that this work cannot be performed remotely, this must include enough specificity to show this analysis has been performed.

Separately, the Michigan Department of Health and Human Services (MDHHS) and local health departments have continued to issue orders. Most recently, on November 18, MDHHS issued an epidemic order that:

  • Prohibits indoor gatherings at non-residences with certain exceptions, such as preschool through 8th grade in-person learning, manufacturing work that is impossible to do remotely, and restaurant takeout;
  • Limits gatherings at residences to 10 people or less (with no more than 2 households gathered);
  • Limits outdoor gatherings to 25 people or less (with no more than 3 households gathered);
  • Reiterates the face mask requirement at gatherings, with certain exceptions;
  • Reiterates the requirement that businesses keep accurate records of any visitors to aid with contact tracing.

This recent order by MDHHS goes into effect today and is scheduled to remain in effect until December 8. The MDHHS infographic on what is open and not open is linked here and below.

As part of the agency’s ongoing efforts to address the COVID-19 pandemic in workplaces, OSHA continues to issue alerts and guidance designed to keep workers safe.  The most recent guidance issued by OSHA deals with ventilation in the workplace to help maintain a safe and healthy work environment.

Under the guidance, OSHA recommends that employers work with heating, ventilation, and air conditioning (HVAC) professionals to look at ways to improve building ventilation as a way to address the potential hazard of exposure to COVID-19.  Enclosed spaces with poor ventilation and air flow can make it more likely for employees to be exposed to potential infection.  Studies have also shown that infected droplets can travel farther in areas that are not well ventilated.

To that end, OSHA offers the following tips to reduce the risk of exposure to the coronavirus:

  • Encourage workers to stay home if they are sick.
  • Ensure all HVAC systems are fully functional, especially those shut down or operating at reduced capacity during the pandemic.
  • Remove or redirect personal fans to prevent blowing air from one worker to another.
  • Use HVAC system filters with a Minimum Efficiency Reporting Value (MERV) rating of 13 or higher, where feasible.
  • Increase the HVAC system’s outdoor air intake. Open windows or other sources of fresh air where possible.
  • Be sure exhaust air is not pulled back into the building from HVAC air intakes or open windows.
  • Consider using portable high-efficiency particulate air (HEPA) fan/filtration systems to increase clean air, especially in higher-risk areas.
  • When changing filters, wear appropriate personal protective equipment.  ASHRAE recommends N95 respirators, eye protection (safety glasses, goggles, or face shields), and disposable gloves.
  • Make sure exhaust fans in restrooms are fully functional, operating at maximum capacity, and are set to remain on.
  • Encourage workers to report any safety and health concerns.

OSHA continues to issue new alerts and guidance on COVID-19 and the agency is likely to make changes with how it approaches the pandemic next year with the new Biden Administration.

If you have questions, would like additional information, or need assistance, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.

As the NCAA Men’s Basketball 2020-2021 regular season schedule is about to begin in the midst of escalating coronavirus pandemic spikes and increasing hospitalizations around the country, the NCAA Division I Men’s Basketball Committee announced today the relocation of 13 predetermined preliminary round sites for the 2021 Division I Men’s Basketball Championship to one geographic area. The NCAA Division I Women’s Basketball Committee has also stated that they currently are considering their tournament options, with the potential relocation of that tournament to one site as well.

Seeking to create the most effective way to plan for its March Madness tournament to determine the 2021 National Champion, the NCAA’s Committee concluded that the conducting of the preliminary rounds of the championship at 13 different locations throughout the United States would be extremely difficult to safely conduct as the COVID-19 pandemic continues to surge. Despite cities like Boise, Dallas, Lexington and San Jose already scheduled to host first and second round games from March 18th through the 21st and Denver, Minneapolis, Brooklyn an Memphis on tap to host the Regional contests from March 25th through the 28th, the Committee concluded that all of the games in the championship should be held in a single geographic area to enhance the safe operation for all of the student-athlete participants. Mitch Barnhart, chair of the Division I Men’s Basketball Committee and University of Kentucky athletics director, commented on the decision,

My committee colleagues and I did not come lightly to the difficult decision to relocate the preliminary rounds of the 2021 tournament, as we understand the disappointment 13 communities will feel to miss out on being part of March Madness.

The NCAA announced that since Indianapolis was already slated to host the Men’s Final Four from April 3 through the 5th, it has already begun preliminary talks with the State of Indiana and the city of Indianapolis to host the entire 68 team tournament in multiple venues in and around the metropolitan area during the same previously scheduled dates for the event.

The Committee emphasized the importance of holding the championship in a “manageable geographic area” in order to limit travel and provide a safe competition environment which has the ability to provide adequate practice venues, medical resources and hotel accommodations for all teams and officials within close proximity to one another.

“We have learned so much from monitoring other successful sporting events in the last several months, and it became clear it’s not feasible to manage this complex championship in so many different states with the challenges presented by the pandemic,” said Dan Gavitt, NCAA Senior Vice President of Basketball. “However, we are developing a solid plan to present a safe, responsible and fantastic March Madness tournament unlike any other we’ve experienced.”

In a public statement on behalf of the NCAA, NCAA President concluded, “The Board of Governors and my top priorities are to protect the health and well-being of college athletes while also maintaining their opportunity to compete at the highest level. These principles have guided the decision-making process as we continue to assess how to have a fair and safe championship experience.”

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to the COVID-19 pandemic and its impact on collegiate and professional sports. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

As we enter flu season (in the midst of a national spike in COVID-19 cases), and it now appears that a COVID-19 vaccine is on the horizon, employers are struggling with whether they should require employees to be vaccinated for seasonal influenza and/or COVID-19 infection.  After the year that many have had, there is a natural reaction to jump at the idea of mandating vaccinations.  But for employers, there are many considerations that should be taken into account.

Can Employers Mandate?

The first question employers must consider is: Can they mandate vaccinations of their employees?  In many jurisdictions, possibly, subject to reasonable accommodation obligations under federal, state or local laws protecting employees who are disabled, pregnant or have conflicting and sincerely held religious beliefs.  However, some jurisdictions prohibit or limit employers from mandating employee vaccinations and we suspect that additional jurisdictions may follow.  Therefore, employers should assess and monitor closely local legislation and/or executive orders on this issue.  If the employer’s employees are unionized, it needs to also consider whether the collective bargaining agreement allows it to mandate vaccines or whether it must bargain about the issue with the union.  Public sector employers, and private sector employers in jurisdictions such as California, must also consider whether mandating vaccinations raises additional privacy-related concerns.

Should Employers Mandate?

Even if a company can mandate vaccinations, the more important question is should it?  Companies inevitably will answer this question in different ways and for different reasons.  Among other things, employers likely will want to consider their work environment, whether they are providing care for others who may not be able to vaccinate, the risk of harm to others if they don’t vaccinate, the culture in the environment and the disruption in the workplace if they mandate.  Mandating vaccinations is a hot topic right now.  Some individuals and companies likely will be concerned with mandating vaccinations when the vaccine is new.  Many companies may face resistance from employees, which could lead to employee morale issues, dissension, union organizing or even litigation.  Employers should also consider the potential workers’ compensation or other liability exposure for injuries or illnesses resulting from adverse reactions or side effects from vaccinations it mandates. Employers should first consider whether there is a need for the company to mandate the vaccination (as opposed to the state).  A starting point may be to consider how the company fared during the height of the pandemic when there was no vaccine.  If the company was able to reduce or eliminate the spread with other administrative controls, it may not need to incur the legal and operational risks that come with mandating vaccinations.  Many employees, particularly those who are concerned, or at risk, will seek out the vaccine, regardless of any mandate, which raises the question: Do employers need to mandate, if employees (and customers) can choose to get vaccinated to protect themselves?

Can Employees Refuse?

Even if an employer mandates that its employees receive a vaccine, it can expect to receive push back from some of its employees.  Some push back may be for political reasons, some may be out of fear, and some may be due to religious or medical concerns.  Employees who collectively object to a term or condition of employment may have protection, at least for their objection, under the National Labor Relations Act.   Employees who object for safety reasons may be protected under the Occupational Safety and Health Act and other state laws.  If employees object due to a disability/medical condition or a sincerely held religious belief, employers will need to consider reasonable accommodations.  There is plenty of guidance on the internet instructing employees how to raise these concerns, which can sometimes lead to the exceptions swallowing the rule.

What’s An Employer To Do?

This is potentially a divisive issue for employers.  The distraction, dissension, and litigation risks posed by mandating may outweigh the potential benefits.  As an alternative, employers may consider offering the vaccine to employees at no cost, rather than mandating it.  Neither the EEOC or OSHA has published guidance (yet) on the issue of COVID-19 vaccines in the workplace, however, currently, both the EEOC and OSHA recommend encouraging, not necessarily requiring, flu vaccines.  For many companies, particularly those outside the healthcare industry, this may be the best option with respect to COVID-19 vaccines as well.

Employers who choose to offer or mandate vaccinations should consult with counsel.   Stay tuned, as we expect the states, the EEOC and OSHA to inject their own views as the COVID-19 vaccine becomes available.  The attorneys at Jackson Lewis and our COVID-19 Taskforce are available to assist you as you assess the right approach for your workforce.

Once again, the Ivy League has sent a loud and clear COVID-19 message to the collegiate sports community. After initially delaying the start of the winter sports schedule until January 2021, the Ivy League Counsel of Presidents has voted unanimously to cancel all intercollegiate sports until at least March, becoming the first Division I conference to officially suspend its winter sports schedule in the midst of escalating coronavirus pandemic spikes and increasing hospitalizations in the Northeast and around the country.

In addition, to the postponement of all sports until at least March 1st,  the conference also announced that it will no longer hold in abeyance its previous delay in deciding to allow fall sports to play in the spring by formally canceling fall sports competition during the 2021 spring semester.

The Ivy League announcement regarding winter sports follows its ongoing precautionary pattern of having been the first conference in the country to act in response to the pandemic by canceling its men’s and women’s conference basketball tournaments last March and its fall sports schedule in early July.

Despite broad criticism for overreacting from multiple professional leagues and other college conferences for its preemptive decision in March, within days the Ivy League and its Executive Director Harris were ultimately lauded for their decision to exercise extreme caution to protect their student-athletes. Approximately two days after the Ivy League’s decision, all professional sports leagues were shut down following the COVID-19 diagnosis of NBA player Rudy Gobert and the NCAA was forced to cancel the men’s and women’s NCAA basketball tournaments.

In response to the announcement of the cancellation of the league’s winter sports schedule,

Executive Director Harris commented, “We are heartbroken to be here again. This is definitely not a decision we want to make, but I know it’s the right decision for the Ivy League.”

Harris acknowledged that Ivy League coaches and athletic directors offered various options for conducting a season, including the elimination of overnight road trips and modification to travel meals. Unfortunately, the proposed alternatives were not deemed to be sufficient to diminish to potential risk of COVID-19 exposure to the athletes.

The Ivy Council of Presidents concluded that the risk of transmission of the virus far exceeded the goal of for the Ivy League athletes to compete. In a prepared statement, the Ivy Council of Presidents acknowledged the sacrifice of the League’s student-athletes, their families and coaches for public health purposes and stated, “While these decisions come with great disappointment and frustration, our commitment to the safety and lasting health of our student-athletes and wider communities must remain our highest priority.”

The league also announced that training opportunities and practices for enrolled student-athletes will be permitted, provided they are structured in accordance with each institution’s procedures and applicable state and local regulations. This approach is consistent with the plan implemented by the Ivy League for all sports in the fall 2020 term.

While this announcement may not be followed by similar announcements from other basketball dominant conferences, it will be interesting to see if other conferences once again follow the Ivy League’s lead as the Coronavirus continues to spike across the country.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to the COVID-19 pandemic and its impact on collegiate and professional sports. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

Stepping in line behind Virginia and Michigan, the Oregon Occupational Safety and Health Administration (“Oregon OSHA”) issued a Temporary Rule Addressing COVID-19 Workplace Risks (“Temporary Rule”) requiring Oregon employers to take certain actions in response to potential workplace exposures to coronavirus (“COVID-19”). Some provisions of Oregon OSHA’s temporary rule go into effect on November 16, 2020 and will remain in effect until May 4, 2021, unless revised, repealed, or extended, while others come later in the year or beginning of 2021. While some requirements in Oregon OSHA’s Temporary Rule will apply to all workplaces in Oregon, the Temporary Rule also has additional requirements specific to employers with more than 10 employees and “workplaces at exceptional risk.”

COVID-19 Requirements for All Workplaces

To meet the requirements of Oregon OSHA’s Temporary Rule all workplaces must implement certain preventive measures to help prevent and minimize the potential for COVID-19 exposures and spread of the disease. These measures include:

  • Physical distancing, which entails designing work activities and workflow in a way that “eliminate[s] the need for any employee” to be within 6 feet of another unless physical distancing is not feasible.
  • Mask, face covering, or face shield requirements, which obligate employers to ensure employees and others at the workplace (e.g., vendors, patrons, contractors) wear a mask, face covering or face shield to provide source control consistent with the Oregon Health Authority’s Statewide Mask, Face Covering, and Face Shield Guidance.
  • Cleaning and sanitation efforts of all areas of the workplace under the employer’s control, with defined frequencies such as daily cleaning of the workplace when occupied for less than 12 hours or at least every 8 hours while in use if occupied for more than 12 hours a day.
  • Posting of Oregon OSHA’s “COVID-19 Hazard Poster” in a prominent location where employees will be expected to see it (e.g., safety board or employee notice board).
  • Optimization of ventilation systems no later than January 6, 2021, which requires employers evaluate existing heating, ventilation, and air conditioning (“HVAC”) systems and ensure they are designed and able to provide ventilation consistent with applicable provisions from the American National Standards (ANSI)/American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) Standards 62.1 and 62.2 (SHRAE 2019a, 2019b).
  • Completion of an exposure risk assessment by December 7, 2020, with consideration of employee feedback, site-specific concerns, and key employee exposure controls such as ability for employees to work remotely, anticipated physical distancing, impact of non-routine work activities on exposure risk, potential risks hazards created by requirement for employees to wear masks, communication of COVID-19 exposure risks and controls, effectiveness of preventive controls to prevent or minimize the spread of disease, and policies and procedures for identifying potentially sick individuals and removing them from the workplace. Employers with more than 10 employees in the state must record their COVID-19 exposure risk assessment.
  • Implementation of an Infection Control Plan by December 7, 2020, which details the required preventive controls identified in Oregon OSHA’s Temporary Rule and addresses site-specific risks determined during the exposure risk assessment. Employers with more than 10 employees in the state must ensure their Infection Control Plan is in writing.
  • Communication and training of employees on COVID-19 matters, including the employer’s compliance with Oregon OSHA’s Temporary Rule, exposure risk assessment, Infection Control Plan, and applicable COVID-19 policies and procedures.

Oregon OSHA’s Temporary Rule notably departs from guidance from the Centers for Disease Control and Prevention (“CDC”) and federal OSHA in several ways, so employers will need to be aware of the differences in preventive measure requirements. For example, Oregon OSHA allows employers to require use of face shields as a form of source control, which is contrary to current CDC guidance finding that use of face shields alone is not recommended because of ongoing concerns about their effectiveness. Oregon OSHA’s requirement on exposure risk assessments, which contemplates consideration of certain key questions and factors, will also likely be different to what is used for federal OSHA compliance. This is because federal OSHA’s concept of an exposure risk assessment focuses on pre-established levels of risk of exposure (e.g., low, moderate, high or very high), which federal OSHA has identified by whether an employee is expected to have direct or close contact with an individual who is known or suspected of having COVID-19.

Apart from prescribed preventive measures, Oregon OSHA’s Temporary Rule also requires employers establish a process for notifying employees, which contemplates notifications to (i) exposed employees who had a work-related contact with an individual who is known to have COVID-19, and (ii) affected employees who worked in the same facility or in the same “well-defined portion of the facility.” Notifications to both exposed and affected employees must also occur within 24 hours of the employer having knowledge that an individual with COVID-19 was present in the workplace. Oregon OSHA’s Temporary Rule even more directs employers to cooperate with the Oregon Health Authority with respect to COVID-19 diagnostic testing for workers and medical removals of an employee because of COVID-19 quarantine or isolation orders.

Additional COVID-19 Considerations by Industry, Workplaces With More Than 10 Employees, and Workplaces with Exceptional Risks

Along with the requirements noted above for all workplaces, Oregon OSHA’s Temporary Rule also prescribes requirements for employers in certain industries, workplaces with more than 10 employees, and workplaces with exceptional risks. If an employer is covered by one of the Temporary Rule’s industry-specific and activity-specific appendices (e.g., Retail Stores, Fitness-Related Organizations, Restaurants, and Law Enforcement) the employer must also implement the preventive measures and requirements noted in the applicable industry specific appendix. Similarly employers with more than 10 employees in the state must have written exposure risk assessments and infection control plans.

Employers operating “workplaces with exceptional risks” are identified in the Temporary Rule as those employers that require workers to perform job duties related to direct patient care, environmental decontamination in a healthcare setting, aerosol generating healthcare or postmortem procedures, direct client service in a residential care or assisted living facility, emergency response activities, personal care activities, or handle COVID-19 infected specimens or materials. These employers must provide infection control training to employees by December 21, 2020 covering these topics:

  • an explanation of Oregon OSHA’s Temporary Rule,
  • information on COVID-19 with details on mode of transmission, occupational risks of exposures, and personal risks of developing serious illness following exposure to COVID-19,
  • details on the employers exposure risk assessment,
  • explanation on requirements under the employer’s Infection Control Plan and implemented preventive measures (e.g., required use of masks, cleaning and sanitation protocols),
  • required use of masks, face shields, and personal protective equipment (“PPE”) where applicable, and
  • COVID-19 exposure control measures.

This training must be provided by someone knowledgeable in COVID-19 matters and employees’ job duties, in a manner that employees can understand and allow for discussion of questions and answers. Employers operating exceptional risk workplaces must also build additional components into their Infection Control Plan related to program responsibility and administration, with ongoing evaluation of the plan’s effectiveness and regular updates to address changes in operations or potential exposures to a hazard. Finally, Oregon OSHA’s Temporary Rule imposes additional preventive control requirements for some workplaces, including screening of all individuals entering a healthcare setting for symptoms of COVID-19, required use of barriers, partitions, and airborne infection isolation rooms where needed to protect against exposures to individuals known or suspected to be infected with COVID-19, and heightened risk ventilation requirements.

To help employers understand their obligations under the Temporary Rule, Oregon OSHA has published a chart showing the Temporary Rule’s application to different workplaces here. Oregon OSHA has also published several workplace advisory memos discussing COVID-19 requirements and is often updating its website with frequently addressed questions and answers.

Following Oregon OSHA’s issuance of the Temporary Rule, employers operating in Oregon will need to assess carefully which requirements apply to them and, at a minimum, ensure implementation of the preventive measures required for all workplaces by November 16, 2020. Employers should also know that because of slight differences between Oregon OSHA’s Temporary Rule and CDC and federal OSHA guidance, safety measures implemented in response to COVID-19 may not be uniform for all geographical locations that the employer operates in.

If you have questions, would like additional information, or need assistance, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.

The Department of Homeland Security (DHS) has announced the arrest of 15 individuals who claimed to work on Optional Practical Training (OPT) for nonexistent companies.  In addition, USCIS notified 700 OPT recipients suspected of being complicit in similar activities that it would revoke their employment authorization.  Further, USCIS notified an additional 400 OPT recipients that they would not be allowed to renew their work authorization because they are allegedly working in positions unrelated to their fields of study.

Approximately 223,000 students participate in OPT programs.  Until relatively recently, the United States always has been a popular destination for foreign students.  However, the Administration has enacted restrictions and scrutinized key programs that have done just the opposite.  As a result, the United States’ share of foreign students is dropping.

Since 2017, in addition to increased scrutiny of immigrant and nonimmigrant filings across the board, the Administration has instituted targeted policies and proposed rules that have created much uncertainty and anxiety among both current and potential foreign students. This includes restrictions such as the 2017 Travel Bans, enacting policies making it more difficult for students to travel, preventing new students from coming to study at universities that have gone fully remote due to COVID-19, and the proposed new rule that would make it more costly and more difficult for students to remain in the United States throughout the duration of their academic programs.

Beyond these rules and proposals, the Administration has continuously expressed skepticism and concerns about the OPT program, which allows students to remain for a limited period of time to train by working in their field of study.  Most analysts have seen OPT as a plus, as international students contribute over $40 billion to the economy yearly.  However, while OPT has been a big draw for foreign students who wish to train in the United States to pursue their professions, the Administration has viewed the program in a negative light, claiming it potentially enables employers to hire lower wage foreign workers at the expense of U.S. talent.

As a result, in 2019, DHS announced it would perform OPT requirement compliance checks by increasing inspections at worksites of companies employing students using STEM OPT.  Then, in January 2020, the Counterterrorism and Criminal Exploitation Unit of DHS commenced Operation OPTical Illusion (OOI), which targeted nonimmigrant students potentially involved in fraud with regard to OPT.  This came to a head on October 21, 2020 with the arrest of 15 individuals.

At the time, the Acting Director of DHS, Ken Cuccinelli, warned that this was only a first step and that DHS will also target Designated Student Officials (DSOs) at universities who enable such activities through the Office of the Inspector General (OIG).  DSOs advise foreign students and communicate their status, work authorization, and other information to U.S. Immigration and Customs Enforcement (ICE) primarily through SEVIS (Student Exchange Visitor Information System), the database program that manages and tracks foreign students while they are in the United States.  Esther D. Brimmer, the Executive Director and CEO of NAFSA: Association of International Educators, noted that it is “reckless” to threaten and scapegoat DSOs for economic problems that are not even related to OPT particularly, because “[i]t is not the responsibility of DSOs to investigate international students’ OPT employers.”

If you have any questions about Operation OPTical Illusion or any other foreign student-related matters, Jackson Lewis attorneys are available to assist you.