On November 19, 2020, the California Occupational Safety and Health Standards Board voted and approved an emergency COVID-19 regulation governing employers and workplaces. That regulation is scheduled for adoption and implementation on November 30, 2020. Below are answers to some frequently asked questions that employers have expressed about the new emergency regulation.
On November 19, 2020, the California Occupational Safety and Health Standards Board, the standards-setting agency of the California Division of Occupational Safety and Health (Cal/OSHA), adopted an emergency standard regarding COVID-19 workplace prevention. The Standards Board submitted the new final rule to the Office of Administrative Law, which may approve the rule within as few as 10 days. This means employers may have to comply with the emergency standard as soon as Monday, November 30, 2020.
On November 18, 2020, Minnesota Governor Tim Walz dialed back Minnesota’s phased reopening and ongoing loosening of COVID-19–related restrictions by issuing Emergency Executive Order (EO) 20-99, “Implementing a Four Week Dial Back on Certain Activities to Slow the Spread of COVID-19.”
Michigan’s rate of COVID-19 infection seems to be increasing each day, as does the volume of orders, rules, and guidance documents applicable to Michigan businesses operating during the COVID-19 pandemic.
On November 13, 2020, Ohio Governor Mike DeWine and Interim Director of the Ohio Department of Health Lance Himes issued a new director’s order enhancing face covering requirements for Ohio retailers, adding mandatory oversight obligations for employers, and providing greater enforcement power for local health departments and law enforcement.
For several months, health officials have cautioned the public that the rate of positive cases of COVID-19 would spike as temperatures turned colder. In recent days, it has become clear that cases in Maryland have risen exponentially. Maryland’s government has responded to the rising caseload by issuing two recent directives designed to combat and slow the resurgence of the virus.
On November 1, 2020, the United States District Court for the Eastern District of New York in Palmer et al. v. Amazon.com Inc. et al., No. 20-cv-2468, 2020 WL 6388599, dismissed a lawsuit against Amazon alleging failures to comply with New York law and “New York Forward” minimum requirements for businesses.
On November 12, 2020, the California Division of Occupational Safety and Health (Cal/OSHA) announced proposed temporary COVID-19 regulations for review and a vote by the Occupational Safety and Health Standards Board on Thursday, November 19, 2020.
On November 3, 2020, Arizona voters decisively approved Proposition 207, the Smart and Safe Arizona Act, to legalize recreational marijuana. As a result of the election, both medical and recreational marijuana are officially legal in Arizona.
In an effort to combat the recent rising COVID-19 numbers in the New Jersey, Governor Phil Murphy signed Executive Order (EO) No. 192 on October 28, 2020, mandating health and safety protocols for employers with employees, customers, or other visitors on-site. While many of these protocols have been required in certain industries under prior executive orders, all employers must now adhere to the protocols effective Thursday, November 5, 2020.
On September 16, 2020, in Peeples v. Clinical Support Options, Inc., No. 3:20-cv-30144, a federal district court in Massachusetts took the unusual step of precluding an employer from discharging an employee who claimed an inability to work in the office due to a disability, and ordered the employer to allow the employee to telework for at least 60 days.
Michigan Governor Gretchen Whitmer recently signed into law four bills that encourage employers to resume business in compliance with all COVID-19 safeguards required under the various federal, state, and local statutes, rules, regulations, executive orders, and agency orders. The new laws provide a significant reward for an employer’s compliance: insulation from COVID-19–related liability—including tort claims and claims under the Michigan Occupational Safety and Health Act of 1974 (MIOSHA)—as long as the employer was implementing all safeguards legally required at the time of the incident giving rise to the claim.
The Michigan Occupational Safety and Health Administration (MIOSHA) has issued emergency health and safety rules aimed at controlling, preventing, and mitigating the spread of COVID-19. The emergency rules, which Governor Gretchen Whitmer approved, represent a further effort to fill the void left by a recent Michigan Supreme Court decision invalidating many of the governor’s COVID-19 executive orders.
On October 9, 2020, the Government of Ontario announced additional restrictions on and closures of public gatherings, specific businesses, and indoor food and drink service, in an effort to limit the spread of COVID-19. These restrictions are currently applicable within the “hotspots” of the “Ottawa, Peel, and Toronto public health unit regions.”
On September 30, 2020, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) published a new series of answers to its “COVID-19 Frequently Asked Questions” (FAQs) guidance relating to an employer’s obligation to report work-related hospitalizations and fatalities that occur as a result of COVID-19. The new FAQs clarify that the work-related “incident,” which triggers an employer’s reporting obligation, is an employee’s exposure to the coronavirus in the workplace.
The Ontario government recently amended Ontario Regulation 364/20, Rules for Areas in Stage 3, to include mandatory COVID-19 symptom screening in almost all Ontario workplaces.
The UK Government has enacted The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020, which came into force in England on 28 September 2020. Failure to comply with these regulations is a criminal offence, the penalty for which includes a fine of £1,000 for a first offence, with fines increasing up to £10,000 for subsequent breaches.
On September 21, 2020, the Occupational Safety and Health Review Commission (OSHRC) unanimously vacated a machine-guarding citation on the ground that the injured operator had deliberately bypassed the guard that the employer had installed.
We previously reported on COVID-19–related employment lawsuits that we tracked from late March 2020 through early May 2020. Since then, the number of lawsuits has steadily risen as employers have resumed operations after shelter-in-place or stay-at-home orders were lifted and students returned to school in virtual or hybrid environments. To track this litigation and to identify trends, we developed an Interactive COVID-19 Litigation Tracker that details where COVID-19–related litigation is taking place by state, the industries affected, and the types of claims asserted against employers and educational institutions.
At the end of 2019, we urged employers to keep an eye on a new recreational marijuana legalization voter initiative in Arizona: the Smart and Safe Arizona Act. Although many employers have been focused on the COVID-19 pandemic in 2020, they may want to be aware that the Arizona Secretary of State has officially certified the Smart and Safe Arizona Act as one of two voter propositions on the November 2020 ballot. In addition to approving the initiative, Secretary of State Katie Hobbs has also published arguments for and against the measure.
On September 17, 2020, the Occupational Safety and Health Standards Board of the California Division of Occupational Safety and Health (Cal/OSHA) voted unanimously to pursue the drafting and adoption of a California COVID-19 safety regulation. The emergency regulation would cover all workers in California regardless of industry segment.
On September 17, 2020, Governor Gavin Newsom signed Assembly Bill (AB) 685 into law, enacting California Labor Code Section 6409.6 and amending other state statutes. As explained further below, Section 6409.6 obligates employers to notify employees, the employees’ exclusive representative (such as a union), and subcontractors, within one business day of an employer’s receiving notice of a potential COVID-19 workplace exposure from a “qualifying individual.”
On September 14, 2020, Governor Mike DeWine signed House Bill (H.B.) 606 into law, providing employers with legal protections when it comes to their efforts to stem the spread of COVID-19 and making Ohio one of a growing number of states granting similar civil immunity. According to Governor DeWine, the new law accomplishes the dual goals of keeping people safe and rebuilding the state’s economy.
On September 14, 2020, New Jersey Governor Phil Murphy signed Senate Bill (SB) 2380 into law. SB 2380 creates a rebuttable presumption of workers’ compensation coverage for COVID-19 cases contracted by “essential employees” during a public health emergency declared by an executive order of the governor. The law is effective immediately and retroactive to March 9, 2020.
Each year we review the validity of mandatory flu vaccinations. It is usually in the context of health care organizations, as few other employers have had the same need. In the last few years, the analysis has remained the same: (1) what is the justification (often, employee and patient safety); (2) will there be medical and/or religious exemptions; and, if so, (3) what is the accommodation (it has generally been wearing a mask all times at work).
On August 10, 2020, the German Federal Ministry of Labor and Social Affairs (Bundesministerium für Arbeit und Soziales (BMAS)) published the SARS-CoV-2 Occupational Safety and Health Regulation (SARS-CoV-2 Arbeitsschutzregel). For the duration of the coronavirus pandemic, this regulation, which became effective on August 20, 2020, specifies the requirements for occupational safety to reduce the risk of infection at the workplace. In doing so, BMAS is applying the presumed period of the national epidemic situation according to Section 5 of the Protection Against Infection Act (Infektionsschutzgesetz (IfSG)).
By all accounts, the availability of a vaccine for COVID-19 is a matter of when, not if. According to the World Health Organization, as of August 25, 2020, 173 potential vaccines are currently being developed in labs across the world, 31 of which have advanced to clinical stage testing on humans. Drug manufacturers estimate that a vaccine will be ready and approved for general use by the end of this year or early 2021.
It is established that an employee’s drug addiction may qualify as a disability under the Americans with Disabilities Act (ADA), provided the employee is not currently using illicit substances. In the U.S. Equal Employment Opportunity Commission’s (EEOC) Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act, the EEOC states that “[p]ersons addicted to drugs, but who are no longer using drugs illegally and are receiving treatment for drug addiction or who have been rehabilitated successfully, are protected by the ADA from discrimination on the basis of past drug addiction.” While the EEOC’s nonregulatory pronouncements do not have the force of law, courts addressing the issue generally have adopted this position.
On May 20, 2020, worker advocates submitted a petition for an emergency COVID-19 safety standard demanding additional COVID-19 regulations for those employees not covered by the Aerosol Transmissible Diseases (ATD) standard . The ATD standard was codified in 2009 “to protect employees who are at increased risk of contracting certain airborne infections due to their work activities.” The petition included specific requests to adopt standards related to social distancing, ventilation systems, personal hygiene, personal protective equipment (PPE), employee training, and recordkeeping.