After the Sixth Circuit was selected via a lottery in November to hear the consolidated challenges made against the recent OSHA emergency temporary standard (the “ETS”), there has been a flurry of activity in the case.  There are currently two main issues pending before the court, which will certainly shape the dispute: (1) several petitioners

On October 21, 2021, we published an article called “Waiting for OSHA: pending vaccine ETS and increased enforcement.” In the article, we discussed the then-pending Emergency Temporary Standard (ETS) regarding vaccinating the workforce OSHA was tasked with developing by President Biden in his “Path Out of the Pandemic” memorandum. The ETS is scheduled

Since President Joe Biden issued his “Path Out of the Pandemic” memorandum and Executive Order 14042 on September 9, 2021, employers have had to navigate piecemeal instructions on vaccine mandates.  For example, federal contractors and subcontractors received vaccine mandate guidance from the Safer Federal Workforce Task Force on September 24, 2021.  However, employers should not grow too comfortable with the current status of pandemic regulations, which continue to change in various jurisdictions and will again on a federal level soon.

OSHA’s Emergency Temporary Standard

In his “Path Out of the Pandemic” memorandum, President Biden specifically tasked the Occupational Safety and Health Administration (OSHA) with developing a rule to encourage vaccinations among the workforce – the Emergency Temporary Standard (ETS).  The ETS will require employers with over 100 employees to do the following:

  1. either (a) ensure all employees are fully vaccinated, or (b) require any employees who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work; and
  2. provide paid time off for any time to get vaccinated and/or to recover if they are ill post-vaccination.

State plans will be required to implement equally protective rules within 30 days.  Though not yet available for review, the status of the pending ETS remains under review by the White House Office of Management and Budget.

Continue Reading Waiting for OSHA: pending vaccine ETS and increased enforcement

On Friday June 11, 2021, the California Department of Occupational Safety and Health (Cal/OSHA) published new proposed text for re-adoption of the COVID-19 Emergency Temporary Standard (ETS).  After previously voting against adopting Cal/OSHA’s initial revised ETS during a highly contentious public meeting earlier this month, during which critics vehemently objected to the rule’s continuation of

Late last week, the California Occupational Safety and Health Standards Board (“Standards Board”) reconvened in a public meeting to consider the California Division of Occupational Safety and Health (Cal/OSHA) revised COVID-19 Prevention Emergency Temporary Standard (ETS).  The new proposed ETS was developed to replace the existing ETS that has been in place since December 1, 2020.

A prior draft of the ETS was initially to be considered in a May meeting, but it was tabled to allow Cal/OSHA the opportunity for revisions to align with State and the Centers for Disease Control (CDC) guidance.  Cal/OSHA made a few revisions to the prior draft of the ETS, the most important of which are detailed below:

  • The physical distancing section has been simplified.  As was the case with the prior version of the ETS, physical distancing is still only required for all employees until July 31.  From the passage date until July 31st,  employers have the option to: (1) ensure distancing; or (2) provide unvaccinated employees with respirators for voluntary use.  The distancing requirements (if that option is selected) are similar to the previous requirements.
  • There is a requirement to maintain physical distancing when a face covering is required but not worn, but only if the face covering is not worn for either of two very specific reasons, (1) where an employee cannot wear a face covering due to a medical condition or (2) where specific tasks cannot feasibly be performed with a face covering.  The other exceptions to the face covering requirements do not trigger this physical distancing requirement.
  • The requirement to evaluate the need for respiratory protection when distancing cannot be maintained prior to July 31 has been removed.
  • Cal/OSHA has added “outdoor mega events” as a defined term and has added new requirements for outdoor mega events that are similar to those for employees working indoors with a few notable exceptions.  An outdoor mega event is defined as an outdoor event with 10,000+ participants (g., theme parks, concerts, etc.).
  • The exception that previously excluded fully vaccinated individuals from becoming COVID-19 cases has been removed.  Importantly, however, the exception from excluding fully vaccinated individuals who have had close contact remains unchanged.


Continue Reading Cal Safety Standards Board approves second COVID-19 ETS

Earlier today, the California Occupational Safety and Health Standards Board held a public meeting to consider, among other items, the California Division of Occupational Safety and Health (Cal/OSHA) revised COVID-19 Prevention Emergency Temporary Standard (ETS), which was developed to replace the existing ETS that has been in place since December 1, 2020.

During the initial portion of the meeting, the Standards Board heard comments from the public and various stakeholders, who, as during previous public meetings, advocated for and against continued restrictions in the workplace. Following the public comment portion, Eric Berg on behalf of Cal/OSHA described the timeline of the agency developing the rule and finalizing its draft revised ETS.  In particular Berg noted that, after the rule was developed, the Centers for Disease Control and Prevention (CDC) issued new guidance that vaccinated individuals could go without masks indoors, followed by the California Department of Public Health (CDPH) announcement that it would implement the same guidance on June 15, 2021.  This caused Cal/OSHA last night to send a memorandum to the Standards Board requesting that the Board not adopt the revised ETS because the agency wanted to have the opportunity to revisit the proposed rule in light of the updated CDC guidance, and re-submit a proposed rule at a future date.  Berg reiterated this request during the meeting, indicating that Cal/OSHA would like to target implementing a revised draft of the ETS on June 15, to coincide with the governor’s lifting of mask requirements.

Continue Reading Cal Safety Standards Board defers voting on second COVID-19 ETS until June

With vaccination rates on a rise, the California Department of Occupational Safety and Health (“Cal-OSHA”) have proposed revisions to the COVID-19 Emergency Temporary Standards (“ETS”).  On May 20, 2021, the California Occupational Safety and Health Standards Board is expected to decide on whether to send the draft revisions to the Office of Administrative Law (“OAL”). 

California continues to move forward with new proposals for regulation and enforcement of workplace hazards associated with COVID-19.  As the Division of Occupational Safety and Health (“Cal/OSHA”) continues to develop a draft permanent standard to address COVID-19 hazards in cooperation with an advisory committee of various stakeholder groups, state legislators have proposed a senate bill to increase enforcement of “willful” violations on a per-employee basis.

Emergency temporary standard and permanent rule

Earlier this month, Cal/OSHA convened an advisory committee to provide input on possible changes to the COVID-19 Emergency Temporary Standard (“ETS”).  Over the course of three days of public meetings, the advisory committee discussed and debated potential clarifications as well as broadening or narrowing the scope of certain requirements.  Although no decisions were made during the meetings, the following were areas of focus where we can expect to see some changes to the ETS:

Continue Reading Cal/OSHA moves forward with development of permanent COVID-19 standard while legislature considers bill to increase enforcement

As the transition in presidential administration draws closer and COVID-19 cases continue to increase in certain parts of the country, it appears increasingly likely that the Occupational Safety and Health Administration (“OSHA”) will undertake a rulemaking relating to COVID-19.  Additionally, state plan OSHA agencies continue to revise and issue guidance relating to their own rules,

Just one week after the California Division of Occupational Safety and Health (“Cal/OSHA”) made its proposed COVID-19 Emergency Regulation (“COVID-19 Rule”) available, the Occupational Safety and Health Standards Board (“OSHSB”) responsible for approving such regulations unanimously passed it without revisions.  Cal/OSHA is the fourth state OSHA plan to promulgate a rule to address COVID-19, following Virginia, Oregon, and Michigan.  The Washington Department of Labor & Industries has made violations of emergency proclamations subject to workplace safety citations.

In response to OSHSB’s September granting of a labor advocacy group’s petition seeking COVID-19 regulation of employers, on November 11, 2020 Cal/OSHA issued a 21-page draft COVID-19 Rule along with a notice of emergency.  Although employers and workers in California were not provided the ordinary months of time usually associated with rulemakings to review and digest the draft COVID-19 Rule, participation in the OSHSB November 19, 2020 public meeting was significant.  With over 500 virtual participants, not including those on the phone or live streaming, and 150 verbal commenters, the public meeting lasted over ten (10) hours.  The Board Chair estimated that the meeting had four times the usual number of attendees, and technical challenges occurred throughout the discussion.  Commentary was wide ranging with employee and industry interests equally represented.  Individual workers and labor groups generally urged OSHSB to adopt the ETS immediately and to consider the addition of future anti-retaliation provisions, while employer and industry representatives expressed frustration with the lack of stakeholder input or engagement, questioned whether Cal/OSHA has the authority to regulate wage and leave issues, pointed to the effectiveness of existing orders, and identified implementation challenges and inconsistencies with other California laws regulating COVID-19 response that have yet to become effective (i.e., AB 685).

Continue Reading California rapidly approves sweeping Cal/OSHA emergency COVID-19 regulation