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COVID-19 Laws and Regulations: A Midyear Update

As employers navigate evolving COVID-19 state and federal rules, workplaces will have to stay vigilant about changes throughout the second half of 2021. These include changes to mask mandates, the Occupational Safety and Health Administration’s Emergency Temporary Standard and the New York Health and Essential Rights (HERO) Act.

Recent US Equal Employment Opportunity Commission guidance, for example, confirmed what employment lawyers had already been counseling businesses to do, according to McDermott partner Carole A. Spink in a recent Law360 article.

“The guidance was important because it did clarify that employers can provide incentives for voluntary programs. [There] was a big open question about, ‘Am I going to get into trouble because I’m trying to incentivize people to be vaccinated?'”

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OSHA Releases Guidance for Employers Considering Vaccine Requirements

Recently, the Occupational Safety and Health Administration (OSHA) released three new FAQs for employers who recommend or require employees to receive COVID-19 vaccines. OSHA is responsible for enforcing workplace safety standards across the US.

McDermott previously reported that employers can require employees to be vaccinated as a condition of employment, though employers should consider several factors before making the decision to require employee vaccinations. The new OSHA guidance highlights additional considerations when requiring employee vaccinations.

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COVID-19 Safety Plans: What Employers Need to Know

COVID-19 safety plans are a way for employers to demonstrate to their employees, the public and, in certain cases, state governments that they have considered the risks associated with COVID-19 in their workplaces and have developed a response to these concerns. The plans establish and explain the policies, practices and conditions necessary to meet the Centers for Disease Control and Prevention (CDC) and Occupational Safety and Health Administration (OSHA) standards relating to worker and customer exposure to COVID-19. These plans may also incorporate guidance from the state department of health and industry specific guidelines issued via state executive orders.

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Preparing Your Workplace: How to Navigate Safety Mandates and Recommendations

Several months into the COVID-19 pandemic, businesses are thinking about returning to work and what this will look like in practice. While it will not be business as usual, this article highlights how employers can prepare their workplaces and navigate safety mandates and recommendations.

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Can Companies Be Held Liable When Their Employees Fall Ill with Coronavirus?

While the Occupational Safety and Health Administration (OSHA) has not released specific standards covering COVID-19, Michelle Strowhiro, a partner in the Los Angeles office of McDermott Will & Emery, is quoted in a recent ABA Journal article saying that employers could face risks under Occupational Safety and Health Act’s general duty clause if they don’t take steps to protect their workplace and ensure it is not exposed to individuals who may have contracted the virus.

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Open for Business: How ‘Essential’ Businesses Can Keep Their Workplace Healthy and Safe

Most states have issued some form of ‘shelter in place’ or ‘stay at home’ order to flatten the curve of COVID-19. As a result, many business operations have been temporarily suspended, unless the business is engaged in essential or critical infrastructure functions or supports businesses engaged in such functions.

For businesses that are considered ‘essential’ and have employees still reporting to work, what steps can employers take to keep their workplace healthy and safe?

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Affordable Care Act Whistleblower Complaint Procedures

On October 11, 2016, the Occupational Safety and Health Administration published a final rule that establishes procedures and time frames for handling whistleblower complaints under the Affordable Care Act (ACA); for hearings before US Department of Labor (DOL) administrative law judges in ACA retaliation cases; review of those decisions by the DOL Administrative Review Board; and judicial review of final decisions.

Read the full article here.

OSHA and MSHA Increase Penalties for Workplace Safety Violations

On July 1, 2016, Occupational Safety and Health Administration (OSHA) increased the maximum penalties under the Occupational Safety and Health Act by about 78 percent to account for inflation. Acting under authority conferred by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Pub. L. 114-74, 701 (part of the Bipartisan Budget Act of 2015), OSHA published an interim final rule that will on August 1, 2016, increase penalties for OSHA violations as follows:

Other-than-serious violations: From $7,000 to $12,471
Serious violations: From $7,000 to $12,471
Repeated violations: From $70,000 to $124,709
Willful violations
minimum: From $5,000 to $8,908
maximum: From $70,000 to $124,709
Failure to abate: From $7,000 per day to $12,471 per day

Penalties under the Federal Mine Safety and Health Act of 1977 were also changed to account for inflation, as follows:

The maximum penalty for most violations will now be $68,300.
The minimum penalty for unwarrantable failure violations under Section 104(d)(1) of the Mine Act will now be $2,277.
The minimum penalty for unwarrantable failure violations under Section 104(d)(2) of the Mine Act will now be $4,553.
The minimum and maximum penalties for failure to provide timely notification under Section 103(j) of the Mine Act will now be $5,692 and $68,300, respectively.
The maximum penalty for failure to abate will now be $7,399 per day.
The maximum penalty for flagrant violations will now be $250,433.

Questions about these changes should be directed to Art Sapper at +1 202 756 8246.

Workplace Violence

by Heather Egan Sussman, Arthur G. Sapper and Bethany K. Hatef

During the holiday season, stress can run high.  Holidays can bring less sleep, increased pressures and even family tension.  This can affect the workplace and increase the risk of confrontation or even violence.  The Occupational Safety and Health Administration (OSHA) recently issued its first guidance directive regarding how OSHA will enforce the Occupational Safety and Health Act against workplace violence hazards. 

Over the past 15 years, OSHA notes, workplace violence has remained among the top four causes of occupational death.  According to the Bureau of Labor Statistics, workplace homicide was responsible for more than 3,000 occupational deaths between 2006-2010.

The directive defines “workplace violence” as “violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty.”  OSHA states that it will inspect workplaces based on whether there are known risk factors for workplace violence.  OSHA will focus on industries with high rates of workplace violence, particularly the healthcare and social services industries and late-night retail establishments.

Although OSHA has no regulations on workplace violence, OSHA may cite employers for workplace violence hazards under the general duty clause [Section 5(a)(1) of the Occupational Safety and Health Act], and will require employers to consider workplace violence when complying with OSHA regulations governing the availability of medical services and first aid, and in writing emergency action plans.

As a result, employers, particularly those in high-risk industries, should ensure that they have a strong written workplace violence prevention program that includes training on violence prevention, and periodic auditing of measures designed to detect and prevent workplace violence.

To mitigate the risk of violence in your workplace, consider these tips:

  • Find ways to help employees manage stress during the holiday season.
  • Remind employees of Employee Assistance Program (EAP) benefits.
  • Have procedures in place to quickly respond to and defuse incidents. 
  • Ensure employees feel comfortable reporting workplace violence incidents.