On Monday, May 17, 2021, on the heels of the CDC relaxing mask and distancing restrictions for fully vaccinated people, OSHA revisited its previous guidance recommending face coverings in the workplace. While the agency noted that it is still evaluating the new guidelines, OSHA provisionally advised employers to refer to the CDC for workforce safety measures for fully vaccinated workers.
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On March 12, 2021, the U.S. Occupational Safety and Health Administration (OSHA) released a new National Emphasis Program (NEP) designed to “significantly reduce or eliminate worker exposures to [COVID-19]” by targeting specific “high-hazard industries or work tasks” with greater frequency of close contact between workers for on-site inspections, outreach, and compliance assistance related to COVID-19 prevention and response measures. While federal OSHA’s NEP technically does not apply to state plans, OSHA is strongly encouraging them to do so; and state plans must submit within 60 days a notice of intent indicating whether they intend to adopt same or similar initiatives.
The NEP specifically targets certain industries based on public enforcement data, such as complaints, inspections and COVID-19-related violations, where the data reflects that workers are expected to perform tasks associated with exposure to COVID-19. The NEP lists numerous “primary” targets, which are divided up as either healthcare or non-healthcare employers.
As COVID-19 vaccines become more widely accessible, and certain localities relax COVID-19 restrictions, employers hoping to ramp up on-site operations or reduce absenteeism face a new challenge: navigating employee vaccination. Employers are evaluating whether to mandate, strongly suggest or simply remain neutral regarding COVID-19 vaccinations and on-site work.
The considerations surrounding workplace vaccination programs are complex. Business justifications and accommodation issues, potential public relations and employee relations pitfalls, the impact of vaccination on workforce safety procedures, litigation risks on multiple fronts — these are just the beginning. To help piece together this business and regulatory puzzle, we have compiled a list of issues organizations should consider as they set policy and communication plans regarding on-site work and COVID-19 vaccines. We have also identified issues to consider with regard to the practical application of any such policy and the development of related communications to employees or others.
Exclusion from work, paid time off and rigorous testing requirements. These issues and more came to a head for California employers on November 30, 2020, after the California Office of Administrative Law adopted the California Department of Industrial Relations’ Division of Occupational Safety and Health’s (Cal/OSHA) emergency temporary standards. While many California employers have already implemented COVID-19 plans fulfilling previous requirements for reopening under state and local government orders, the new Cal/OSHA standards vary significantly from what businesses have likely executed to date. We examine the highlights as well as which internal policies and processes affected employers should revisit.
Plaintiffs’ attorneys are advertising for plaintiffs infected by COVID-19, and new COVID-19 personal injury lawsuits are being filed at a steady clip. In recent lawsuits, for example, employees and customers have sought to recover for financial and emotional damages caused by long-lasting COVID-19 symptoms and, in some cases, death. These developments suggest that companies will likely see increased personal injury litigation alleging the transmission of COVID-19. Below are some common questions and considerations about this new type of litigation.
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On July 27, 2020, the Virginia Department of Labor and Industry’s Safety and Health Codes Board published its Emergency Temporary Standard on Infectious Disease Prevention: SARS-CoV-2 That Causes COVID-19 (§16 VAC 25‐220) (the Standard). In doing so, Virginia became the first state to enact comprehensive COVID-19 workplace safety requirements.