On September 29, 2022, Governor Gavin Newsom signed into law Assembly Bill (AB) No. 2243, an amendment to section 6721 of the California Labor Code that will ultimately lead to changes to the California Division of Occupational Safety and Health’s (Cal/OSHA) heat illness and wildfire smoke standards (sections 3395 and 5141.1 of Title 8 of the California Code of Regulations).
On September 29, 2022, Governor Gavin Newsom signed into law Assembly Bill (AB) No. 1775, which sets workplace safety training and certification standards for companies that produce live events at publicly owned and operated venues.
On September 29 and 30, 2022, Governor Gavin Newsom signed more than one hundred new pieces of legislation, several of which directly affect California employers.
Hurricane Ian is expected to make landfall somewhere between Tampa, Florida, and the Florida panhandle this week as a Category 4 hurricane according to the National Hurricane Center.
On September 15, 2022, the Occupational Safety and Health Administration (OSHA) published Directive Number CPL 02-00-169, a new instruction to its enforcement arm, updating policies and procedures for OSHA’s Severe Violator Enforcement Program (SVEP). The instruction, which took effect immediately, aims to expand the scope of the SVEP and target additional industries.
On September 20, 2022, New York City Mayor Eric Adams announced that New York City’s private-sector vaccine mandate would become optional for businesses, beginning on November 1, 2022. The first-in-the-nation COVID-19 vaccination mandate for private-sector workers enacted by former mayor Bill de Blasio took effect on December 27, 2021.
On September 13, 2022, the California Division of Occupational Safety and Health (Cal/OSHA) issued guidance regarding protection of workers from monkeypox (MPX) under the Aerosol Transmissible Disease (ATD) Standard, California Code of Regulations, Title 8 Section 5199.
The German government’s plans and actions to address the COVID-19 pandemic in the coming months are becoming more concrete. On September 8, 2022, the German parliament passed new measures aimed at fighting the spread of COVID-19 this fall and winter. This legislative initiative included rewriting the SARS-CoV-2 Occupational Health and Safety Regulation, which is scheduled to be in effect from October 1, 2022, through April 7, 2023.
The Occupational Safety and Health Administration (OSHA) is moving forward with plans to update its standards to “clarify the requirements for the fit” of personal protective equipment (PPE) that must be provided to construction workers. On September 7, 2022, OSHA issued a notice of proposed rulemaking (NPRM) to the Office of Information and Regulatory Affairs (OIRA)—a final step before publishing the proposed rule for comment.
On August 12, 20222, the Occupational Safety and Health Administration (OSHA) issued a citation to a farm labor contractor alleging violations for exposing workers to high ambient outdoor heat following the death of a worker on a strawberry farm in Florida. The citation serves as warning for employers, particularly those in warm climates, of OSHA’s enforcement approach following the April 2022 launch of the agency’s new three-year national emphasis program (NEP) on indoor and outdoor heat-related hazards, particularly with regard to how working in the sunlight can create hazardous conditions.
The question of who provides workers’ compensation insurance in employer–staffing company relationships is handled in different ways. Frequently, the staffing company will provide workers’ compensation coverage for all individuals provided to the client company. Issues sometimes arise related to the client company’s and staffing company’s liability under a joint-employer theory for adverse employment actions involving workers provided by the staffing company to the employer. A Texas appellate court recently examined the scope of joint-employer liability in the workers’ compensation retaliation context.
On September 5, 2022, California Governor Gavin Newsom marked Labor Day 2022 by signing Assembly Bill (AB) No. 257, the Fast Food Accountability and Standards Recovery Act (FAST Recovery Act), into law. The new law creates the Fast Food Council within the California Department of Industrial Relations, which is tasked with setting minimum standards for fast-food industry workers related to wages, health and safety conditions, security in the workplace, the time off from work for protected purposes, and protections from discrimination and harassment.
On August 26, 2022, Chief U.S. District Judge Matthew Brann for the United States District Court for the Middle District of Pennsylvania dismissed a putative class action representing approximately 100 healthcare company employees brought against their employer, Geisinger Clinic. In the suit, the employees challenged their employer’s policy requiring employees to either be vaccinated for COVID-19 or agree to regular testing and quarantining. In dismissing the complaint, the court rejected the employees’ religious discrimination, constitutional, and state law claims, calling the employees’ evidence “a collection of distorted statements and anti-vaccine hocus-pocus.”
On August 29, 2022, the California Legislature passed a heavily amended version of Assembly Bill (AB) No. 257, the Fast Food Accountability and Standards Recovery Act (FAST Recovery Act), which would provide increased rights to California’s more than 500,000 fast-food workers. The bill is now headed to Governor Gavin Newsom’s desk.
On August 31, 2022, the Biden administration updated its Safer Federal Workforce Task Force guidance on the federal contractor COVID-19 vaccine mandate. According to the new guidance, “the Federal Government will take no action to implement or enforce Executive Order 14042.
On August 26, 2022, the U.S. Court of Appeals for the Eleventh Circuit narrowed the scope of a nationwide injunction that had barred enforcement of President Joe Biden’s COVID-19 federal contractor vaccine mandate. In December 2021, the U.S. District Court for the Southern District of Georgia had issued a nationwide injunction, finding that President Biden had likely exceeded his authority under the Federal Property and Administrative Services Act when he issued Executive Order 14042.
The federal Occupational Safety and Health Administration (OSHA) is holding off on deciding whether to revoke final approval of Arizona’s occupational safety and health (OSH) plan. On August 10, 2022, OSHA said it is extending the comment period on a proposed rule to revoke the state’s approval for another 60 days and postponed a public hearing tentatively scheduled for August 16, 2022.
The Colorado General Assembly was busy drafting and passing numerous employment laws during its 2022 legislative session, creating a wave of change for employers in the Centennial State.
On August 4, 2022, the Biden administration declared the monkeypox outbreak a public health emergency. The declaration follows the World Health Organization’s (WHO) declaration last month of monkeypox as a public health emergency of international concern.
On September 15, 2022, the California Occupational Safety and Health Standards Board will continue the long and arduous journey to establish COVID-19 safety measures in the workplace. Since the California Division of Occupational Safety and Health’s (Cal/OSHA) initial ETS took effect in November 2020, the Standards Board has addressed the evolving workplace safety challenges with a series of updates.
The 2022 Louisiana legislative session included two bills focusing on workplace violence in the healthcare industry—Act No. 461 and Act No. 129—that Governor John Bel Edwards signed into law earlier this summer.
On April 21, 2022, the federal Occupational Safety and Health Administration (OSHA) issued a a proposed rule to revoke Arizona’s occupational safety and health (OSH) plan’s final approval under Section 18(e) of the Occupational Safety and Health Act of 1970. In its notice, OSHA proposed revoking its affirmative determination granting final approval to Arizona’s state OSH plan, which, if implemented, would return Arizona’s plan to “initial approval” status resulting in discretionary concurrent enforcement jurisdiction between OSHA and the Arizona Division of Occupational Safety and Health (ADOSH).
On January 11, 2021, the federal government published a decree in the Official Gazette of the Federation, amending the Federal Labor Law (FLL) to regulate the terms and conditions, employer and employee obligations, and safety and health measures related to telework. Telework is regulated by a special chapter of FLL and the telework designation is applicable whenever work is performed more than 40 percent of the time at an employee’s home or at a domicile that the employee has chosen and on which the employee has agreed.
At the outset of the COVID-19 pandemic, the U.S. Equal Employment Opportunity Commission (EEOC) took the position that the Americans with Disabilities Act (ADA) standard for conducting medical examinations (job-related and consistent with business necessity) was always met for COVID-19 viral screening testing. On July 12, 2022, the EEOC updated its position in light of the evolving nature of the COVID-19 pandemic.
On May 6, 2022, the State of California Office of Administrative Law (OAL) adopted the third revision of the California Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 emergency temporary standards (ETS), which is effective through December 31, 2022. On June 16, 2022, the Cal/OSHA Standards Board released its COVID-19 draft regulation, which is scheduled to take effect on January 1, 2023.
Recent social and political controversies, such as rulings from the Supreme Court of the United States, international conflicts, and mass shootings, are likely to cause more employees to voice their opinions and frustrations both in and outside the workplace, whether through conversations, social media, or participation in marches, protests, and similar events.
On June 20, 2022, the California Department of Public Health (CDPH) issued COVID-19 guidance, titled “Isolation and Quarantine Q&A,” that offers insight into the recent change to the definition of “close contact.” On June 8, 2022, the CDPH issued a revised order with new definitions of “close contact” and “infectious period.” Because the June 8 order was an “order of the CDPH,” these revised definitions were immediately incorporated into the California Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 Emergency Temporary Standards (ETS) requirements for exclusion of close contacts, which in turn impacted employers’ obligations under the ETS.
On June 15, 2022, the United States Court of Appeals for the Eleventh Circuit issued a decision limiting the reach of the emergency response provisions of 29 C.F.R. § 1910.120, the Occupational Safety and Health Administration’s (OSHA) Hazardous Waste Operations and Emergency Response Standard—the so-called “HazWoper” (or “HAZWOPER”) standard.
High temperatures in the Southwestern United States have and continue to break records. In Arkansas, Louisiana, Oklahoma, and Texas, the heat index could reach triple digits and in some cases exceed 110°F. These elevated temperatures pose a serious risk to employees exposed to heat due to the nature of their jobs. As a result, the Occupational Safety and Health Administration (OSHA) is aggressively enforcing its national and regional programs aimed at preventing heat-related illnesses and fatalities.
Currently, the California Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 Emergency Temporary Standards (ETS) requires employers to review and use current California Department of Public Health (CDPH) guidance for persons who had close contact to an individual with COVID-19, including any guidance regarding quarantine or other measures after a close contact to reduce COVID-19 transmission. On June 8, 2022, the CDPH issued a revised order with new definitions. These revised definitions are therefore immediately incorporated in to the Cal/OSHA ETS requirements for exclusion of close contacts, which in turn impact employers’ obligations under the ETS.
