On April 21, 2022, Cal/OSHA’s Standards Board voted to approve the Third Readoption of the Cal/OSHA COVID-19 Emergency Temporary Standard (ETS).

The third adoption makes some changes to the ETS previously in effect. Some of the more significant changes include:

  • Elimination of the requirement that face coverings pass the “light test” (does not let light pass through when held up to a light source).
  • Removal of cleaning and disinfection requirements.
  • Addition of a new term, “returned case,” which means an individual who returns to work after testing positive for COVID-19 and did not develop any COVID-19 symptoms after a return.
  • Employers are not required to make COVID-19 testing available to returned cases.
  • Removal of some of the cleaning and disinfection requirements previously required.
  • Deferment to California Department of Public Health guidance for exclusion and return to work criteria.

The amended ETS will take effect on May 6, 2022. Per the Governor’s prior Executive Order this version of the ETS will remain in effect until December 31, 2022.

Cal/OSHA intends to post new Frequently Asked Questions to support the revised ETS shortly.

If you have questions about the Cal/OSHA emergency temporary standards or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

When a district court judge in Florida lifted the Centers for Disease Control and Prevention (CDC) federal COVID-19 mask mandate on April 19, 2022, the Transportation Safety Administration stopped enforcing it. However, the judge’s ruling left it up to airlines and local transit agencies to decide how to respond.

Many airlines immediately lifted the mandate – making masking optional, but the same cannot be said for local transit authorities. There is a patchwork of regulations with masks still required at certain airports, bus terminals, subway stations, and ferries. If traveling, even those who are opposed to masking should probably keep a mask on hand.

About a week before the ruling, on April 13, 2022, the CDC had extended the federal mask mandate until May 3, 2022, due to the surge in the COVID-19 Omicron BA.2 variant. The purpose was to have additional time “to assess the potential impact the rise of cases has on severe disease, including hospitalizations and deaths, and health care system capacity ….”

The Department of Justice (DOJ) has decided to appeal the judge’s ruling to preserve the mask mandate and, according to White House press secretary Jen Psaki, “to ensure the CDC’s authority and ability to put in mandates in the future remains intact.” Although the appeal has been filed, the DOJ has yet to request an injunction. The Florida ruling remains in effect for now.

In the meantime, the Biden Administration continues to urge Americans to wear masks on public transportation based upon current CDC guidance.

Though California has mostly lifted COVID-19 requirements statewide, the Cal/OSHA Standards Board is not planning to let the COVID-19 Emergency Temporary Standard (ETS) expire. Per Governor Newsom’s executive order, the expiration of the second readoption of the ETS was extended to May 6, 2022, but the Cal/OSHA’s Standards Board has posted a notice that it plans to readopt a third version of the ETS at its upcoming meeting on April 21, 2022.

The proposed third adoption makes some changes to the ETS previously in effect. Some of the more significant changes include:

  • Elimination of the requirement that face coverings pass the “light test” (e., does not let light pass through when held up to a light source).
  • Addition of a new term, “returned case,” which means an individual who returns to work after testing positive for COVID-19 and did not develop any COVID-19 symptoms after a return.
  • Employers are not required to make COVID-19 testing available to returned cases.
  • Removal of some of the cleaning and disinfection requirements previously required.
  • Deferment to California Department of Public Health guidance for exclusion and return to work criteria.

If passed, the third readoption would be the final version of the ETS and per the Governor’s Executive Order may not remain in effect beyond December 31, 2022.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA emergency temporary standards or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

OSHA has just announced it is partially reopening the record on the rulemaking for the permanent healthcare COVID-19 standard known as the rule on Occupational Exposure to COVID-19 in Healthcare Settings. Comments are due by April 22, 2022. The docket number is OSHA-2020-0004. Following the written comments, there will also be a hearing held online on April 27, 2022. Individuals interested in testifying must submit their notice of intention to appear no later than 14 days after publication in the Federal Register, which will occur on March 23, 2022.

OSHA is soliciting information and feedback on these issues:

1. Alignment with the CDC’s recommendations for healthcare infection control procedures.
2. Additional flexibility for employers.
3. Removal of scope exemptions.
4. Tailoring controls to address interactions with people with suspected or confirmed COVID-19.
5. Employer support for employees who wish to be vaccinated.
6. Limited coverage of construction activities in healthcare settings.
7. COVID-19 recordkeeping and reporting provisions.
8. Triggering requirements based on community transmission levels.
9. The potential evolution of SARS-CoV-2 into a second novel strain.
10. The health effects and risk of COVID-19 since the ETS was issued.

OSHA cautions employers that until there is a permanent standard, healthcare employers should still comply with the terms of the healthcare ETS and is currently in the midst of a 3-month blitz of follow-up inspections in the healthcare industry. Employers who are following the healthcare COVID-19 ETS will have a safe harbor from citations under the general duty clause, respirator and recordkeeping standards.

If you have questions or need assistance with drafting and submitting comments for the healthcare COVID-19 rulemaking or need assistance with any other OSHA matters, please reach out to the Jackson Lewis attorney with whom you regularly work or any member of our Workplace Safety and Health Practice Group.

On March 10, 2022, Philadelphia Mayor Jim Kenney signed a new ordinance expanding COVID-19 Supplemental Paid Sick Leave (SPSL) until 2023.

The following are answers that employers need to their questions regarding the latest edition of Philadelphia’s SPSL.

When does SPSL become effective?

SPSL became effective on March 9, 2022.

How long will SPSL be in effect?

SPSL requirements will remain in effect until December 31, 2023.

Which employers are covered?

Employers with more than 25 employees must provide leave under the latest edition of SPSL.

Which employees are covered?

An employee of a covered employer who is unable to work because of covered reasons.  There is no length of service requirement.

What are the covered reasons for using SPSL?

The following are covered reasons for using SPSL:

  1. The covered employee is unable to work due to a determination by a public official or public health authority having jurisdiction, a health care provider, or an employer that the employee’s presence on the job or in the community would jeopardize the health of others because of the employee’s exposure to COVID-19 or because the employee is exhibiting symptoms that might jeopardize the health of others, regardless of whether the employee has been diagnosed with or has tested positive for COVID19.

 

  1. The covered employee must care for a family member due to a determination by a public official or health authority having jurisdiction, a health care provider, or the family member’s employer that the presence of the family member on the job or in the community would jeopardize the health of others because of the family member’s exposure to COVID-19 or a determination by the employer that the employee is a danger to the health of others because they are exhibiting symptoms that might jeopardize the health of others, regardless of whether the family member has been diagnosed or having tested positive with COVID-19.

 

  1. The covered employee must care for themselves or a family member self-isolating due to having tested positive or diagnosed with COVID-19.

 

  1. The covered employee must care for themselves or a family member self-isolating due to experiencing symptoms of COVID-19.

 

  1. The covered employee needs medical diagnosis, care, or treatment due to experiencing symptoms of an illness related to COVID-19.

 

  1. The covered employee must care for a family member who needs medical diagnosis, care, or treatment due to experiencing symptoms of an illness related to COVID-19.

 

  1. The covered employee is caring for a child, whose school or place of care has been closed, or the childcare provider of such child is unavailable, due to precautions taken in response to COVID-19.

 

  1. The covered employee is receiving a COVID-19 test, vaccine or recovering from injury, disability or illness related to vaccination.

 

How many hours of SPSL are employees entitled to take?

Covered employees who work at least 40 hours a week are entitled to up to 40 hours of leave unless the employer designates a higher limit.  Covered employees who work fewer than 40 hours in a week are entitled to an amount equal to the amount of time the employee is otherwise scheduled to work or actually works on average in a 7-day period, whichever is greater and unless the employer designates a higher limit.

For covered employees with changing schedules, SPSL time is calculated as the average number of hours in a 7-day period the employee was scheduled to work over the past 90 days multiplied by 7.

Covered employees who are exempt from overtime requirements under the FLSA will be assumed to have worked 40 hours a week for purposes of SPSL entitlement unless their normal work week is less than 40 hours, in which case SPSL will be based upon that normal work week.

Employers may not require, as a condition of providing SPSL for an employee, that the employee search for or find a replacement to cover the hours during which the employee is using SPSL.

Are employers permitted to request documentation of an employee taking SPSL?

An employer is permitted only to request that an employee submit a self-certified statement asserting that leave was used for SPSL purposes.

What type of notice do employers need to provide to employees regarding SPSL and vice versa?

Employers must notify employees of their entitlement to SPSL.  The City has posted a model notice poster to its website with the SPSL information employers must post or provide to employees.  For employees who do not maintain a physical workplace, or who telework or perform work through a web-based platform, an employer can fulfill SPSL notification requirements by sending the information via electronic communication or conspicuously posting it a in the web-based platform.

Covered employees must provide notice to their employer of the need for SPSL as practicable and as soon as feasible, but only when the need for leave is foreseeable.

What is the rate of pay that an employee is compensated for SPSL?

Covered employees shall be compensated in the same manner as the regular rate of pay, including benefits if applicable, for the workweek in which the employee uses SPSL, provided that the hourly rate may not be less than the full state minimum wage.

What prohibitions are in place regarding SPSL?

Employers are prohibited from retaliating against employees for utilizing SPSL, and aggrieved employees have the right to file a civil action against an employer for an alleged violation of the ordinance without first filing an administrative complaint.

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Jackson Lewis will continue to track COVID-19-related statutes and ordinances around the Commonwealth of Pennsylvania and the entire United States. 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.

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.

To read this article in its entirety, please click here.

More than 500 lawsuits have been filed challenging vaccine mandates in some fashion. These are likely just the tip of the iceberg, however, as there are thousands of such complaints lurking “beneath the surface,” in the form of agency charges and alternative avenues for resolving disputes.

Equal Employment Opportunity Commission

One of the ways that employees are challenging employer-imposed vaccine mandates is to allege that the employer has failed to accommodate a disability or religious belief that they claim conflicts with a vaccination requirement. These complaints against private employers generally arise under Title VII of the Civil Right Act of 1964 (Title VII), the Americans with Disabilities Act (ADA) and/or attendant state laws. Both Title VII and the ADA require that such complaints first be filed with the Equal Employment Opportunity Commission (EEOC) or state agency counterparts. Only after exhausting their administrative remedies, are employees supposed to file suit in court.

Many claimants are seeking emergency injunctive relief to bar enforcement of the mandate and have gone directly to federal or state court. Many more, however, are filing EEOC charges. According to EEOC data provided to Bloomberg BNA, more than 2,700 vaccine-related charges already have been filed with the agency.

National Labor Relations Board

Labor unions have filed a number of lawsuits challenging employer vaccine mandates, mostly against public employers. Unions also have filed charges against private employers with the NLRB and initiated arbitration against employers of all types to challenge implementation of vaccination mandates and other COVID-related policies.

Union challenges to private employers’ vaccine mandates (and to discipline or discharge arising from employees’ failure to comply) are filed as grievances that may be heard by arbitrators or pursued as unfair labor practice charges with the National Labor Relations Board (NLRB). Claims may allege, for example, unlawful implementation of COVID-related policies and/or challenge discipline issued under those policies as unlawful.

It is difficult to know how many such complaints have been asserted and how they will fare. A clearer picture will emerge as unresolved complaints are decided by arbitrators and administrative law judges of the NLRB, who will issue decisions that a Board panel may adopt, reject or modify on review. It will be some time before we see a precedential NLRB decision issued in a vaccine mandate case.

Executive Orders and Federal Rulemaking

In addition to challenges to individual employer-imposed mandates, a wave of lawsuits have sought to invalidate Biden Administration efforts to increase the nation’s vaccination rate. These include President Biden’s executive orders for federal contractors (EO 14042) and U.S. government employees (EO 14043), Department of Defense (DOD) vaccine mandates for military and civilian employees, the Occupational Safety and Health Administration’s Emergency Temporary Standard (OSHA ETS) “vaccine or test” rule for employers with at least 100 employees or more, the Centers for Medicare and Medicaid Services (CMS) mandate for covered providers who participate in the Medicare and Medicaid programs and others covered by the CMS mandate, and a mandate for federally funded Head Start programs.

With few exceptions, courts have been unwilling to enjoin private employers’ vaccination requirements. In contrast, courts have been far more inclined to bar enforcement of government-issued mandates, at least while the ongoing legal challenges are pending. The DOD vaccination requirements are on hold pursuant to an injunction issued by the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit also suspended enforcement of the OSHA ETS, but the Sixth Circuit dissolved the stay. The U.S. Supreme Court reversed the Sixth Circuit’s decision and granted a temporary stay. The Biden Administration has since withdrawn the OSHA ETS.

However, the Supreme Court overturned the Fifth Circuit’s decision to stay the interim CMS vaccine mandate pending deliberations on the merits of the legal challenge, allowing the CMS rule to take effect in the 24 states where enforcement had been enjoined. (Challenges to the CMS mandate are pending in the Eighth and Eleventh Circuits as well.)

Meanwhile, a Georgia federal district court has issued a preliminary nationwide injunction halting enforcement of EO 14042, and the U.S. Court of Appeals for the Eleventh Circuit has denied the federal government’s motion to stay a preliminary injunction pending appeal. Federal courts also have enjoined enforcement of a federal vaccination mandate for Head Start teachers and blocked a vaccine mandate for federal workers.

State and Local Mandates

Many state and local governments also have enacted mandatory vaccination requirements. Some measures apply solely to government employees or specifically to healthcare industry employees (public and private). State and local governments have adopted vaccine mandates for their own employees and, acting as regulators, have implemented vaccination requirements for healthcare workers (both public and private), for students, faculty and staff of universities and K-12 schools, and for patrons of restaurants, gyms, and other public establishments. As with federal government mandates, vaccination requirements imposed by state and local governments likewise are facing a wave of legal challenges.

In one case, the U.S. Court of Appeals for the First Circuit affirmed a district court’s order denying a preliminary injunction to bar the State of Maine from enforcing its emergency vaccination requirement for healthcare workers on religious grounds. Also, the Second Circuit Court of Appeals has affirmed a district court’s decision to deny a preliminary injunction in a case challenging the New York City Department of Education’s COVID-19 vaccine mandate. The U.S. Supreme Court has denied review in both cases.

A number of states have passed laws curtailing employers and others from requiring COVID-19 vaccines or providing for a variety of exemptions that may limit the effectiveness of any mandate, including statutory protections from discharge based on vaccination status.

As COVID-19 restrictions loosen around the state, California’s legislature continues its consideration of legislation pertaining to the pandemic.

Assembly Bill (AB) 1993 which was introduced in February proposes that employers require employees and independent contractors who are eligible to receive the COVID-19 vaccine to show proof of vaccination. Current employees and independent contractors would need to confirm their vaccination status on January 1, 2023, and new employees and independent contractors would need to show proof at the time of hiring and contracting. As with vaccine mandates the state passed last year for healthcare and direct care workers, the legislation would allow for exemptions for individuals who have a medical condition or disability or because of a sincerely held religious belief.

The law would be administered by the Department of Fair Employment and Housing (DFEH) and would allow for the DFEH to impose penalties on employers who fail to comply.

Jackson Lewis continues to track legislation pertaining to employers in California. If you have questions about vaccine mandates or related issues, contact a Jackson Lewis attorney to discuss.