On November 18, 2021, Germany’s lower house of parliament, the Bundestag, approved a renewed amendment to the Infection Protection Act that has important implications for employers and employees. The following day, the Bundesrat, Germany’s upper house of parliament, gave its approval to the legislation. The amendment and related measures will come into force on November 24, 2021.
When the U.S. Occupational Safety and Health Administration (OSHA) issued a new emergency temporary standard (ETS) on November 4, 2021, Oregon OSHA had only 30 days to adopt its own standards, until December 4, 2021. However, in light of a federal court order staying the federal ETS, Oregon OSHA recently updated its website to state that it does not anticipate adopting a rule by December 4, 2021, although it is “continuing discussions with stakeholders.”
On November 18, 2021, Governor Ron DeSantis signed into law measures that immediately prohibit workplace COVID-19 vaccine mandates for private and public employers and begin the process for Florida establishing a state occupational safety and health plan.
A new California law, Assembly Bill (AB) No. 701, provides new regulatory scrutiny of job performance quotas at warehouse distribution centers. The stated purpose of the law is to ensure that the use of production quotas do not penalize workers for taking meal and rest breaks, using the restroom, and complying with other health and safety standards.
On November 12, 2021, the White House announced the nomination of Christopher Williamson to become the assistant secretary of Mine Safety and Health. If confirmed by the U.S. Senate, Williamson will become the top leader of the Mine Safety and Health Administration (MSHA), filling the position that has remained vacant since David Zatezalo resigned at the end of the Trump administration.
On November 12, 2021, a three-member panel of the United States Court of Appeals for the Fifth Circuit issued a sweeping order continuing its initial November 6, 2021, stay of the emergency temporary standard (ETS) that the U.S. Occupational Safety and Health Administration (OSHA) issued on November 4, 2021.
On November 10, 2021, Tennessee Governor Bill Lee announced that he would sign legislation that addresses various COVID-19–related issues, including vaccine mandates and mask mandates. The law is effective immediately. There are several major issues for employers regarding COVID-19 prevention measures addressed in the new law.
On November 6, 2021, the United States Court of Appeals for the Fifth Circuit granted a stay of the Emergency Temporary Standard issued this week by the Occupational Safety and Health Administration. The ETS would require employers with 100 or more employees to implement policies mandating that employees be vaccinated or provide documentation of a negative COVID-19 test at least every seven days.
Many hospitals and other healthcare organizations started mandating COVID-19 vaccinations for some or all of their workers over the last six months. Now all of the specified Medicare and Medicaid-certified provider and supplier types that are regulated under the Medicare health and safety standards must get all of their workers fully-vaccinated by January 4, 2022, pursuant to the Center for Medicare & Medicaid Services’s Omnibus COVID-19 Health Care Staff Vaccination interim final rule.
On November 4, 2021, the U.S. Occupational Safety and Health Administration (OSHA) issued a new emergency temporary standard (ETS) that requires employers with 100 or more employees to ensure that their employees are either fully vaccinated or subject to COVID-19 testing at least once per week. The ETS will be published in the Federal Register on November 5, 2021, and goes into effect on December 5, 2021. The ETS will cover approximately 84 million employees.
On October 28, 2021, New York Governor Kathy Hochul signed into law Senate Bill S4394A, which amends section 740 of the New York Labor Law (NYLL) to enhance protections for private-sector employees who allege retaliation for reporting violations of and “law, rule or regulation.” While cases alleging whistleblowing and the reporting of unsafe working conditions have been on the rise since March 2020, Governor Hochul indicated a need to ensure employees’ ability to speak out, stating that “protecting workers must be part of our overall economic recovery efforts.”
On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) to minimize the risk of COVID-19 transmission in the workplace. The California Division of Occupational Safety and Health (Cal/OSHA) was planning to update and adopt new language for the California COVID-19 ETS that would take effect in January 2022. However, California’s proposed language for the revised ETS does not match the language of OSHA’s ETS, leaving many wondering if California will now revise the proposed language to bring the California ETS into alignment with the federal standard and proceed with the “Horcher” adoption process to quickly adopt the federal OSHA requirements.
On October 25, 2021, the U.S. Senate voted 50-41 to confirm Douglas Parker to lead the Occupational Safety and Health Administration (OSHA). He takes on a role that has been vacant since January 2017.
On October 22, 2021, Senator Dianne Feinstein, Senator Robert Menendez, and Senator Brian Schatz joined Representative Andy Levin of Michigan to introduce legislation to require the publication of alleged workplace safety violations. The Keeping Workers Safe Act would direct the Occupational Safety and Health Administration (OSHA) to announce major violations by employers and distribute them to local media and related labor and trade organizations, a practice that they believe will enhance workplace safety.
On October 20, 2021, California’s Division of Occupational Safety and Health (known as Cal/OSHA) issued proposed language for the second readoption of Emergency Temporary Standards (ETS) for COVID-19 Prevention.
On September 30, 2021, California Governor Gavin Newsom signed into law Assembly Bill (AB) No. 1578, which amends Government Code section 11425.20(a) to provide that administrative hearings shall be open to the public, including by live audio or video.
In accordance with the New York Health and Essential Rights Act (NY HERO Act), on July 6, 2021, the New York State Department of Labor (NYS DOL), in consultation with the New York State Department of Health, published the Airborne Infectious Disease Exposure Prevention Standard and Model Airborne Infectious Disease Exposure Prevention Plan. Although the NYS DOL initially published the standard and model plan only in English, the NYS DOL has since furnished the standard and the model plan in Spanish. In addition to the non-industry specific model plan, the NYS DOL has created 11 industry-specific templates, which are available only in English.
In a September 28, 2021 Mine Safety and Health Administration (MSHA) stakeholder meeting, Deputy Assistant Secretary for Policy Jeannette J. Galanis stated that MSHA does not intend to issue an emergency temporary standard (ETS) requiring COVID-19 vaccinations or testing of miners. Instead, MSHA will continue to rely on its COVID-19 guidance to mine operators and existing statutory and regulatory enforcement capabilities.
On September 8, 2021, the U.S. Department of Labor’s Mine Safety and Health Administration (MSHA) announced its proposed powered haulage rule for surface mines and surface areas of underground mines. The proposed rule, which is open to public comment through November 8, 2021, will be set out at a new 30 C.F.R. §§ 56.23000–23004; §§ 57.23000–23004; and §§ 77.2100–2104 (surface coal). The proposed rule would require mine operators with six or more miners to develop and implement a written powered haulage safety program.
The California Legislature will soon send Senate Bill (SB) No. 606 to Governor Gavin Newsom, who is likely to sign the bill into law. The bill would make substantial changes to the California Division of Occupational Safety and Health’s (Cal/OSHA) citation structure by creating two new categories of violations: “enterprise-wide” and “egregious.” The bill would also provide Cal/OSHA with additional subpoena power during investigations.
On September 9, 2021, the Biden administration announced a new plan to combat the ongoing coronavirus pandemic in the United States. A critical component of that plan calls on the U.S. Occupational Safety and Health Administration (OSHA) to develop and implement a new emergency temporary standard (ETS) to require employers with more than 100 employees to require that their employees are either fully vaccinated or subject to COVID-19 testing at least once per week.
On September 6, 2021, New York State Commissioner of Health Howard A. Zucker designated COVID-19 as “a highly contagious communicable disease that presents a serious risk of harm to the public health in New York State.” As a result of the commissioner’s designation, employers are required to activate their airborne infectious disease exposure prevention plans in accordance with the New York Health and Essential Rights Act (NY HERO Act).
The Government of Ontario announced that starting September 22, 2021, individuals will be required to show proof of fully vaccinated status in order to gain access to certain businesses. While the regulations have not yet been published, the government has released key details concerning the plans.
On August 5, 2021, the Oregon Health Authority (OHA) adopted a temporary rule on an emergency basis requiring healthcare providers and healthcare staff who work in healthcare settings to either be vaccinated against COVID-19 or face periodic COVID-19 testing by September 30, 2021.
On August 23, 2021, the U.S. Food and Drug Administration (FDA) granted full approval to Pfizer’s COVID-19 vaccine. Moderna’s expedited application for full approval is still pending, and Johnson & Johnson plans to submit its application for full approval sometime later this year.
On August 18, 2021, President Joe Biden announced from the White House that his administration would require nursing homes to vaccinate their staffs against COVID-19 or risk losing Medicaid and Medicare funding. He said that this step was designed to keep people safe amid the rising number of COVID-19 cases across the country caused by the highly transmissible Delta variant. He stated: “With this announcement, I’m using the power of the federal government, as a payer of healthcare costs, to ensure we reduce those risks to our most vulnerable seniors.”
As the number of new cases of the Delta variant of COVID-19 continues to grow nationwide, Maryland Governor Larry Hogan announced, on August 18, 2021, measures to prioritize patient safety in nursing homes and hospitals. Effective August 18, 2021, Maryland is requiring employees in the state’s nursing homes and hospitals to provide proof of vaccination or to adhere to a regular COVID-19 screening and testing protocol. This protocol includes mandatory weekly COVID-19 testing on-site for individuals who fail to show proof of full vaccination status and the required wearing of personal protective equipment (PPE) provided by the facility.
The number of U.S. workers choosing to be vaccinated plateaued earlier this summer. As a result, employers, many of which hoped to return employees to the workplace in early fall, were left to debate whether to require employees to get vaccinated or to merely “strongly encourage” vaccination. Although many mandatory vaccination policies may pass legal scrutiny, they may nonetheless raise cultural tensions and raise the risk of losing employees in an already tight labor market.
With transmission of the Delta variant on the rise, many employers are revisiting plans to implement COVID-19 vaccination policies. As we have previously explained, employers may encourage and mandate vaccination against COVID-19, subject to exceptions for covered disabilities under the Americans with Disabilities Act and sincerely held religious beliefs under Title VII of the Civil Rights Act of 1964. Guidance that the U.S. Equal Employment Opportunity Commission (EEOC) recently issued has been consistent with this position and federal courts have recently affirmed the same.