Tag: OSHA

Despite Supreme Court Vaccine Mandate Defeat, OSHA Still has Authority to Regulate COVID-19 Workplace Safety

The major headlines about the Occupational Safety and Health Administration (OSHA) and COVID-19 over the last few weeks have all been focused on the fact that on January 13, 2022, the United States Supreme Court blocked OSHA’s vaccine mandate for employers with 100-plus employees. On January 25, 2022, OSHA officially withdrew the mandate.

But that doesn’t mean that OSHA has no role in enforcing workplace safety in connection with COVID-19. A stark reminder of OSHA’s enduring enforcement powers is a recent case in which significant fines were proposed by OSHA against an Ohio-based auto supplier because it failed to follow its own policies and federal guidance related to COVID-19 health and safety protocols.

OSHA’s Investigation and Allegations

According to a January 14, 2022, news release from OSHA, a complaint was lodged against the auto supplier alleging that it ignored guidelines to limit employee exposure to COVID-19 and that several employees became sick. OSHA then launched an investigation.

During its first inspection of the facility, OSHA found that 65 employees had tested positive for COVID-19. A few days later, 88 had tested positive. Five employees were hospitalized and two died, and OSHA determined that at least one of the deaths was work-related.

While investigators determined that the company issued a corporate-wide social distancing policy in March 2020 and trained employees in May 2020 on precautions for returning to work that included social distancing and mask wearing, OSHA found that the company did not adhere to these policies during the COVID-19 outbreak and OSHA inspection.

OSHA cited the company and proposed penalties of $26,527.

Implication for Employers

Given that we have now been dealing with the COVID-19 pandemic for two years, employers (and their employees) are understandably fatigued and finding it difficult to remain vigilant in terms of maintaining COVID-19 safety protocols. Many welcomed the Supreme Court’s ruling blocking OSHA from enforcing its large employer vaccine mandate. However, it’s important for employers to remember that OSHA—as well as other federal, state and local regulatory authorities—are still investigating violations of safety protocols, and levying penalties when appropriate.

Indeed, as demonstrated by the Ohio auto supplier case described above, OSHA still has the authority to regulate workplace safety—notwithstanding the Supreme Court’s ruling. OSHA’s authority derives from several provisions of federal law, including 29 C.F.R. § 1910.132-140 (Personal Protective Equipment), 29 C.F.R. § 1904 (Recording and Reporting Occupational Injuries and Illnesses), and 29 U.S.C.A. § 654 (General Duty Clause).

Accordingly, vigilance remains essential. If your business hasn’t audited its COVID-19 protocol compliance recently, or is uncertain of its obligations, please contact your Fraser Trebilcock attorney.

This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.

Elizabeth H. Latchana, Attorney Fraser TrebilcockElizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2019 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or elatchana@fraserlawfirm.com.

Lauren  D.  Harrington is an associate attorney at Fraser Trebilcock focusing on Employment Law. You can reach her at 517.377.0874, or email her at lharrington@fraserlawfirm.com.

Client Alert: SCOTUS Rules on Vaccine Mandate – OSHA’s Mandate Stricken; CMS Mandate Upheld

New Deadlines for Compliance Have Been Announced

On Thursday, January 13, 2022, the Supreme Court of the United States released opinions on the much anticipated vaccine mandate litigation. As discussed in our previous blog posts, late last year the Occupational Safety and Health Administration (OSHA) and the Center for Medicaid and Medicare Services (CMS) published two different vaccine mandates to respond to everlasting Covid-19 pandemic. OSHA’s mandate required all private employers of 100+ to enforce Covid-19 vaccinations on employees OR require them to wear a mask and test weekly. (OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard.) CMS’ mandate subjected virtually all health care workers who work for providers and suppliers that participate in the Medicaid and Medicare programs to a Covid-19 vaccination requirement, allowing for religious and medical exemptions. (CMS Interim Final Rule: Omnibus COVID-19 Health Care Staff Vaccination.) Both mandates were challenged by conservative states resulting in a rollercoaster of litigation prohibiting and then again permitting enforcement. Just before SCOTUS heard the cases on January 7, 2022, the OSHA mandate had been validated by the Sixth Circuit Court of Appeals and OSHA had set new dates for enforcement to begin just a few days later. The CMS mandate, however, had been prohibited in 25 states and ordered eligible for enforcement in the other 25, District of Columbia, and US territories with deadlines for compliance of Phase 1 implementation set for January 27, 2022 and of Phase 2 implementation for February 28, 2022. Nonetheless, the Supreme Court released its decisions, and here is what you should know:

In the case of National Federation of Independent Business v. Department of Labor, the Supreme Court issued a stay on OSHA’s vaccine mandate, putting an indefinite hold on implementation and enforcement of the rule while its validity is challenged at the Sixth Circuit Court of Appeals. In the per curiam opinion, the court held: “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.” While this is not necessarily a final rule, it is almost impossible to foresee any difference in an outcome. The Supreme Court’s stay is a temporary halt as the merits are decided by the Sixth Circuit. However, even if the Sixth Circuit determines that the rule is valid, it will be appealed to the Supreme Court who has just expressed where it stands. Unless Congress takes any action, it will fall on states and employers to develop their own vaccine mandates and safety measures to combat Covid-19 in private workspaces.

Opposite to this defeat, the Biden administration received a victory with CMS’ health care worker vaccine mandate. In Biden v. Missouri, the Supreme Court by a 5-4 decision stayed the preliminary injunctions from the Eastern District of Missouri and the Western District of Louisiana, allowing the implementation and enforcement of the mandate in all jurisdictions except for Texas. Texas initiated its own litigation separate from the injunctions protecting the other 24 states and the Supreme Court’s ruling did not affect its current status. Considering the overwhelming support from health care workers and public health organizations, the court stated that “their support suggests that a vaccination requirement under these circumstances is a straightforward and predictable example of the health and safety regulations that Congress has authorized the Secretary to impose. We accordingly conclude that the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.” As with the OSHA decision, this decision too is not a final rule but is unlikely to change once litigation on the merits proceeds through court channels.

As has been announced by several news articles quoting CMS officials today, the deadline to come into compliance (where employees are fully vaccinated) remains the same for the 24 states and D.C.  not protected by the Missouri and Louisiana injunctions  (including Michigan), which is February 28, 2022. As for the other 24 states (Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kentucky, Kansas, Louisiana, Missouri, Mississippi, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming), health care facilities are required to have their staff fully vaccinated by March 15, 2022.

As deadlines approach, health care employers should consult with counsel as quickly as possible to establish the policies and procedures necessary to meet the rule’s requirements. Vaccinations are the pinnacle of the mandate, but there is work needed to facilitate reaching that goal.

This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.

Employer Actions to Comply With Michigan “Stay-at-Home” Executive Order 2020-21

Employer Actions to Comply with Michigan “Stay-at-Home” Executive Order 2020-21

Effective Tuesday March 24, 12:01 am, Employers are with certain exceptions, ordered by Governor Whitmer to cease all operations that cannot be performed by employees working remotely from their homes. “Individuals” residing in Michigan, including employees, are similarly ordered to “stay at … their residence,” again with certain exceptions. To emphasize the importance of the order and to give it the most broad effect, it is to “be construed broadly to prohibit in-person work that is not necessary to sustain or protect life.“[1] EO 2020-21 §1 (referred to as the “EO”). This article focuses on the obligations of Employers employing workers in Michigan. The Order is available here.

EMPLOYER OBLIGATIONS

Fundamental Prohibition on In-Person Work

The specific prohibition on in-person work in EO Section 4 states in its entirety:

“No person or entity shall operate a business or conduct operations that require workers to leave their homes or places of residence except to the extent that those workers are necessary to sustain or protect life or to conduct minimum basic operations.”

Thus, all in-person work must be:

  • Necessary to sustain or protect life, or
  • Necessary to conduct the minimum basic operations of the Employer.

Workers expected to perform “minimum basic operations” as permitted under Section 4 are those “whose in-person presence is strictly necessary to allow the business or operation to maintain the value of inventory and equipment, care for animals, ensure security, process transactions (including payroll and employee benefits), or facilitate the ability of other workers to work remotely.” EO §4.b.

Critical Infrastructure Workers are Permitted to Perform In-Person Work

Employees permitted to engage in in-person work are referred to as “critical infrastructure workers,” adopting the terms used in federal Coronavirus enactments. EO §4.a. Critical infrastructure workers include workers so designated under federal guidance issued March 19, 2020, available here. Federal guidance adopted in the EO limits critical infrastructure workers to those “who conduct a range of operations and services that are essential to continued critical infrastructure.” Id p. 1. This federal guidance includes an industry-specific discussion, “Identifying Essential Critical Infrastructure Workers.” Id., pp. 4 et seq. Thus, workers in the identified sectors may or may not be allowed to engage in in-person work, and it remains the responsibility of the Employer to determine that each “critical infrastructure worker” is properly so categorized. The Michigan EO adopts the following sectors as identified in the federal guidance:

  1. Health care and public health.
  2. Law enforcement, public safety, and first responders.
  3. Food and agriculture.
  4. Energy.
  5. Water and wastewater.
  6. Transportation and logistics.
  7. Public works.
  8. Communications and information technology, including news media.
  9. Other community-based government operations and essential functions.
  10. Critical manufacturing.
  11. Hazardous materials.
  12. Financial services.
  13. Chemical supply chains and safety.
  14. Defense industrial base.

The Michigan EO adds to the above list the following sectors:

  1. Child care workers serving dependents of critical infrastructure workers.
  2. Workers in designated supply and distribution centers, including workers needed to supply or distribute to other such centers. There are specific criteria for this category and “[b]usinesses … that abuse their [supplier/distributor] designation authority shall be subject to sanctions to the fullest extent of the law.” EO 9.b.6.
  3. Insurance industry.
  4. the provision of “food, shelter, and [life] necessities” to persons who are (a) economically disadvantaged, (b) otherwise needy, (c) disabled, or who (d) need assistance due to the Coronavirus emergency. The Governor, in guidance issued after the EO, clarified that hotels and places of lodging provide critical infrastructure to the extent that the customers of those businesses are providing mitigation or containment efforts or are themselves critical infrastructure workers of other employers.
  5. Labor union officials including benefit fund administrators.

Obligations of Employers Intending to Continue Operations

  1. Duty to Designate Critical Infrastructure Workers

Most employers that continue to conduct in-person operations under the EO must designate and inform those workers. Designations must be in an ordinary or electronic writing after March 31, until that date, designations may be oral. EO §5.a.

Employer operations involving the following situations are exempt from required designations:

  • “health care and public health” services;
  • “necessary government activities;” and,
  • community shelter, food and life necessities operations as described above.
  1. Duty to Suspend Other Operations

An Employer that continues to operate with permitted in-person workers must suspend all other operations. EO § 5.b.[2] As an example, a hotel providing lodging to persons who are themselves critical infrastructure workers of other employers must suspend all non-lodging services and amenities such as in-service restaurant and gym access.

Since compliance with EO § 5.b. is a requirement of permissibly performing any in-person work, the improper continuation of “other operations” would appear to put at risk the permissibility of otherwise-allowed in-person work performed by critical infrastructure workers.

  1. Adoption of Workplace Social Distancing Practices

The operating Employer must adopt social distancing procedures including adoption of the most restrictive practices on workplace access, promoting remote work “to the fullest extent possible,” screening and requiring symptomatic workers and workers with possible exposure to COVID-19 to remain away from the workplace, and engaging in robust workplace hygiene and disinfectant practices. Stringent and aggressive fulfillment of this duty may predictably be expected under the General Duty clause of the Occupational Safety and Health Administration Act (OSHA) in later review actions.

We recommend in addition to the EO requirements that the Employer immediately (1) adopt these required social distancing policies in writing, (2) where workers have public contact, adopt policies that apply social distancing requirements to the public persons coming in contact with workers, including pre-access screening for travel, exposure and other risk factors, and (3) post, publicize, and train all workers of all such policies and requirements.

  1. Additional Workplace Safety Guidance and Advice

The Centers for Disease Control and Prevention (CDC) are maintaining and updating a useful website, Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease. Topics include “Maintaining Healthy Business Operations” and “Maintaining a Health Work Environment.”

PENALTIES AND DURATION

The stated penalty for violation is minor, specifically, a “willful violation” is designated as a misdemeanor – criminal – violation.

The Order as presently issued expires April 13, 2020 at 11:59 pm.

[1] All italicized language when quoting the Executive Order is added as assistance to the reader.

[2] Note while EO § 5.b. literally references, and thus permits, only activities “to sustain or protect life,” we interpret this provision, which applies to employment of critical infrastructure workers, also to include and permit the employment of workers designated as necessary to conduct minimum basic operations of the Employer.

Fraser Trebilcock Shareholder Dave Houston has over 40 years of experience representing employers in planning, counseling, and litigating virtually all employment claims and disputes including labor relations (NLRB and MERC), wage and overtime, and employment discrimination, and negotiation of union contracts. He has authored numerous publications regarding employment issues. You can reach him at 517.377.0855 or dhouston@fraserlawfirm.com.

Addressing Coronavirus (COVID-19) in the Workplace

Addressing Coronavirus (COVID-19) in the Workplace

Experts and commentators now predict that the coronavirus will spread throughout our state and nation. Employers stand at the forefront of efforts to contain the illness.

The United States Department of Labor has issued several alerts and advisories to guide Employers.  These can be found at:

A few key points in connection with the above authorities include:

  • The OSHA “general duty” clause, as a reminder, requires the employer to provide a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
  • Consider limiting the opportunities for at-work contacts involving large groups of workers or where “social distancing” is not feasible.
  • Workers who contract coronavirus or must remain at home to care for a covered family member who is incapacitated are FMLA eligible provided they meet normal eligibility criteria.
  • Workers are not entitled to FMLA leave to avoid exposure.
  • Educate your workers about personal hygiene, safe work practices and other safety measures.
  • Consider issuance of personal protective equipment.
  • Provide sanitizers and supplies near all work stations.
  • Encourage use of sick leave and isolate and send home workers who exhibit symptoms while at work.
  • Be cautious not to violate other anti-discrimination provisions in selecting workers for lay-off or similar work reductions.

Fraser Trebilcock expects that given the unprecedented scope of the challenge, employers who seek to limit situations where the virus may be spread will be less likely to have those proactive decisions second-guessed than employers where modest or no action is taken.

Due to the scope of the impact of the health and employment issues, and individual workplace circumstances, we urge you to consult your Fraser Trebilcock Law Firm Employment Lawyer for specific advice.

Fraser Trebilcock Shareholder Dave Houston has over 40 years of experience representing employers in planning, counseling, and litigating virtually all employment claims and disputes including labor relations (NLRB and MERC), wage and overtime, and employment discrimination, and negotiation of union contracts. He has authored numerous publications regarding employment issues. You can reach him at 517.377.0855 or dhouston@fraserlawfirm.com.