President’s Path Out of the Pandemic Adds Hurdles for Employers | FIRST, VERIFY

September 16, 2021

By: Catherine A. Cano, Patricia Anderson Pryor, Tara K. Burke, Courtney M. Malveaux, Cressinda D. Schlag, Leslie A. Stout-Tabackman, and Katharine C. Weber


On September 9, 2021, the White House issued Path Out of the Pandemic: President Biden’s COVID-19 Action Plan. The Plan outlines a six-pronged approach, portions of which will impose new obligations on employers across the country.


Most notably for employers, the first prong of the Plan, “Vaccinating the Unvaccinated,” includes:


  • Direction to the Department of Labor’s Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) requiring all employers with 100 or more employees to ensure that all employees are fully vaccinated or able to produce a negative COVID-19 test result on at least a weekly basis;


  • A new Executive Order that requires certain government contractors to comply with guidance, to be published later this month by the Safer Federal Workforce Task Force (Task Force Guidance or Guidance), which presumably will require that employees who work on or in connection with certain government contracts be vaccinated, regardless of whether they work on a federal site;


  • A statement that the Centers for Medicare & Medicaid Services (CMS) will be taking action to require COVID-19 vaccination for workers in most health care settings that receive Medicare or Medicaid reimbursement as a condition of Medicare/Medicaid reimbursement (similar to what was previously announced by the President in August 2021 for nursing homes); and


  • Direction to OSHA to require covered employers to provide paid time off for employees to get vaccinated or recover from vaccination.


The Plan also calls on states to adopt vaccination requirements for all school employees as part of the effort to “keep schools safely open.”


The Plan indicates that the administration will increase the amount of COVID-19 testing by ramping up production of testing products, offering at-home rapid COVID-19 tests at cost through certain retailers, and expanding free testing at retail pharmacy sites, among other things.


While the Plan is far-reaching, there are still many unknowns. Employer obligations arising from OSHA’s ETS will be dictated by the timing and the specific ETS provisions and corresponding requirements. The only thing we know for certain about the forthcoming ETS is that employers will need to continue to adapt and be prepared to pivot if necessary.  It is also unclear how the new ETS will fit in with OSHA’s current COVID-19 Healthcare ETS, in 29 C.F.R. 1910 Subpart U, or impact OSHA’s current guidance for non-healthcare employers. Further, the 27 states with OSHA-approved State Plans, such as California, Washington, Oregon, and Virginia, will need to determine how to respond to the ETS, once it is issued, and if certain provisions require implementation alongside the state’s standards and regulations.


CMS also issued a press release urging Medicare and Medicaid-certified facilities to “make efforts now to get health care staff vaccinated.” However, the agency noted that it is still developing an Interim Final Rule with Comment Period that will be issued in October.


Employers who are impacted by the Plan, and who may be impacted by an ETS once issued, are advised to start thinking through how they will navigate many legal issues and operational challenges related to required vaccination and testing. These issues include policy requirements, workplace testing strategies, vaccination tracking and management, medical record collection and retention, and accommodations for religion, disability, and pregnancy, as well as wage and hour implications, bargaining obligations for unionized workplaces, employee confidentiality, and privacy issues.

Further, employers should consider the logistical impact on federal contracts and how these obligations will interplay with other state or local mandates or restrictions on vaccinations.


Article source: https://www.jacksonlewis.com/publication/president-s-path-out-pandemic-adds-hurdles-employers

You might also like

Contractor Takeover Leads to Tortious Interference with Contract and Conspiracy Claims

October 28, 2021
When a subcontractor is having trouble completing its subcontract work, it is not uncommon for a contractor to assert itself more directly into the completion process to help expedite the work. What’s the harm you might ask? A recent Loudoun County, Virginia case answered that question: It could lead to tortious interference with contract and conspiracy claims by the subcontractor. That case was Evans Construction Services (the subcontractor) versus Ox Builders (the contractor), and it also included a claim by the subcontractor against the contractor’s site superintendent, Lawler, as a co-defendant in the case individually. Evans alleged that Ox and Lawler tortuously interfered with Evan’s subcontracts by dealing directly with the subcontractors and directing the subcontractors’ work, cutting Evans out of the picture. Evans sought to recover its lost profits. Ox and Lawler argued against liability because Evans’ claims sought redress outside of Evans’ subcontracts with Ox and because Evans had no contract with Lawler at all, moving to dismiss Evans’ lawsuit as a matter of law. The court denied that motion, holding that the facts as pled by Evans were legally sufficient if ultimately proven by Evans, to support a claim for breach of legal duties separate from duties arising contractually only; and specifically for wrongful interference with Evans’ subcontracts and Evans’ related conspiracy claim against the defendants. Although the court acknowledged that Evans’ claims were interrelated with the Ox – Evans subcontracts underlying the parties’ relationship, those common facts could support both contractual and non-contractual breach claims in certain circumstances. The court further determined that such circumstances, if ultimately proven, included Evans’ claims that Ox and Lawler violated their independent common law duties to not interfere with Evans’ lower tier subcontracts and not conspire together to injure Evans in its business. The court, therefore, allowed Evans’ claims to proceed to trial on their merits. The defendants apparently did not argue to dismiss the conspiracy claim on the basis Lawler, as an employee of Ox, could not conspire with Ox, his employer (referred to as the intercorporate immunity doctrine), or at least that defense was not discussed in the court’s decision. But, regardless, this decision reflects the necessity for caution “going around” subcontractors when subcontract disputes arise. Author: Neil S. Lowenstein Source: https://vanblacklaw.com/construction/contractor-takeover-leads-to-tortious-interference-with-contract-and-conspiracy-claims/
OSHA inspection, CONSTRUCTION Management

During an OSHA inspection: Know your rights

October 13, 2021
During an Occupational Safety and Health Administration (OSHA) inspection, the OSHA official, escorted by management, will tour the facility or construction site to observe working conditions, identify violations, and so on.

OSHA’s new initiative to protect workers from hazards of extreme heat | FIRST, VERIFY

October 4, 2021
As part of the Biden-Harris administration's interagency effort and commitment to workplace safety, climate resilience, and environmental justice, the department's Occupational Safety and Health Administration is initiating enhanced measures to protect workers better in hot environments and reduce the dangers of exposure to ambient heat. To combat the hazards associated with extreme heat exposure – both indoors and outdoors – the White House, on September 22 nd announced an enhanced and expanded efforts the U.S. Department of Labor is taking to address heat-related illnesses. While heat illness is largely preventable and commonly under-reported, thousands of workers are sickened each year by workplace heat exposure. Despite widespread under-reporting, 43 workers died from heat illness in 2019, and at least 2,410 others suffered serious injuries and illnesses. The Atlantic Council's Adrienne Arsht-Rockefeller Foundation Resilience Center estimates the economic loss from heat to be at least $100 billion annually – a number that could double by 2030 and quintuple by 2050 under a higher emissions scenario. What is the initiative? To highlight its concern and take necessary steps, OSHA is implementing an enforcement initiative on heat-related hazards, developing a National Emphasis Program on heat inspections, and launching a rulemaking process to develop a workplace heat standard. In addition, the agency is forming a National Advisory Committee on Occupational Safety and Health Heat Injury and Illness Prevention Work Group to provide a better understanding of challenges and to identify and share best practices to protect workers. OSHA implemented an intervention and enforcement initiative recently to prevent and protect workers from heat-related illnesses and deaths while they are working in hazardous hot environments. The newly established initiative prioritizes heat-related interventions and inspections of work activities on days when the heat index exceeds 80 degrees Fahrenheit. Scope of the initiative: The initiative applies to both indoor and outdoor worksites. Indoor worksites that may be impacted by extreme heat include foundries, brick-firing, and ceramic plants, glass production facilities, rubber products factories, electrical utilities (particularly boiler rooms), bakeries, confectioneries, commercial kitchens, laundries, food canneries, warehouses without adequate climate control, chemical plants, and smelters. Outdoor work activities that may cause exposure to extreme heat include agriculture, landscaping, construction operations, refining gas/oil and well operations, asbestos and lead removal, waste collection activities, package and mail delivery, and any other activities that require moderate to high physical exertions or the wearing of heavy or bulky clothing or equipment on a hot day. According to Jim Frederick, Acting Assistant Secretary for Occupational Safety and Health, usually agricultural and construction workers often come to mind first when thinking about workers most exposed to heat hazards. However, without proper safety actions, sun protection, and climate control, intense heat can be injurious to various workers indoors or outdoors and during any season. Heat-related directives: OSHA Area Directors across the nation will institute the following: Prioritize inspections of heat-related complaints, referrals, and employer-reported illnesses and initiate an onsite investigation where possible. Instruct compliance safety and health officers, during their travels to job sites, to conduct an intervention (providing the agency's heat poster/wallet card, discuss the importance of easy access to cool water, cooling areas, and acclimatization) or opening an inspection when they observe employees performing strenuous work in hot conditions. Expand the scope of other inspections to address heat-related hazards where worksite conditions or other evidence indicates these hazards may be present. In October 2021, OSHA will take an important step toward a federal heat standard to safeguard protections in workplaces across the country by issuing an Advance Notice of Proposed Rulemaking (ANPRM) on heat injury and illness prevention in outdoor and indoor work settings. The advance notice will initiate a comment period allowing OSHA to gather diverse perspectives and technical expertise on topics including heat stress thresholds, heat acclimatization planning, exposure monitoring, and strategies to protect workers. How should employers prepare? Employers should be aware of potential citations relating to heat illness and should prepare for inspections by reviewing their procedures and developing a manner to monitor outdoor (and, in certain industries, indoor) temperatures, ensuring employees have access to shade and water. They also need to educate employees on signs of heat illness and provide access to ventilation or cooling areas in their workplace. Once OSHA’s ANPRM is released, employers need to be ready with data and information to identify complexities with compliance. Source : https://www.osha.gov/news/newsreleases/national/09202021
More Posts

Book a Service Today

Share by: