COVID-19: FAQs on Federal Labor and Employment Laws

The recent spread of the novel coronavirus (COVID-19) in the United States has caused employers to be increasingly concerned and uncertain regarding the future of their workforces. Here are some answers to frequently asked questions (FAQs) about the latest developments on the virus and guidance from federal agencies.

OSHA Issues New Enforcement Guidance to Address the N95 Shortage During the Coronavirus Pandemic

Following up on its recent temporary enforcement guidance permitting suspension of N95 annual fit-testing for healthcare employers, on April 3, 2020, the Occupational Safety and Health Administration (OSHA) issued an interim Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the Coronavirus Disease 2019 (COVID-19) Pandemic.

Implementing COVID-19 Temperature Checks in Light of the CDC’s and OSHA’s Silence: What Employers Need to Know

Now that the U.S. Equal Employment Opportunity Commission (EEOC) acknowledges that employers may implement temperature screening measures in response to the current COVID-19 pandemic, many employers want to conduct them, and want to know how to conduct them. In some locations, employers may even feel compelled to conduct them based on location-specific or general community mitigation guidance from the U.S. Centers for Disease Control and Prevention (CDC).

COVID-19: FAQs on Federal Labor and Employment Laws

The recent spread of the novel coronavirus (COVID-19) in the United States has caused employers to be increasingly concerned and uncertain regarding the future of their workforces. Here are some answers to frequently asked questions (FAQs) about the latest developments on the virus and guidance from federal agencies.

OSHA Allows Healthcare Employers to Suspend N95 Annual Fit-Testing During Coronavirus “Outbreak”

On March 14, 2020, the Occupational Safety and Health Administration (OSHA) issued temporary enforcement guidance addressing the fit-testing requirements in the agency’s respiratory protection standard (29 C.F.R. § 1910.134). The guidance applies to healthcare workers using N95 respirators to protect them from the novel coronavirus 2019 (COVID-19).

OSHA Issues New Guidance on Preparing Workplaces for COVID-19

On the evening of March 9, 2020, the Occupational Safety and Health Administration (OSHA) issued a new guidance, “Guidance on Preparing Workplaces for COVID-19.” The guidance divides employers into four risk categories and provides recommendations on engineering controls, administrative controls, and personal protective equipment to protect employees from coronavirus.

OSHA’s Enforcement of the Respirable Crystalline Silica Standard for General Industry, 2018–2019: By the Numbers

For employers concerned about how the Occupational Safety and Health Administration (OSHA) has been enforcing its Respirable Crystalline Silica Standard for General Industry, the agency’s enforcement data for the standard’s first 18 months provides some insight. From July 2018 to December 31, 2019, OSHA and state plan states issued 720 violations based on 29 C.F.R. Section 1926.1053, for a collective penalty total of over $1.5 million.

OSHA Doubles Down on National Emphasis Program on Amputations in Manufacturing Industries

The Occupational Safety and Health Administration (OSHA) recently released an updated National Emphasis Program (NEP) to focus enforcement efforts on amputation hazards in manufacturing industries. It replaces the previous NEP, released in August 2015, which had expired on September 30, 2019. The new NEP will expire on December 10, 2024.

Supreme Court Keeps Auer, but Dilutes Its Power

On June 26, 2019, in Kisor v. Wilkie, the Supreme Court of the United States declined to overrule its prior decisions in Auer v. Robbins, 519 U.S. 452 (1997) and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). These cases introduced the practice of judicial deference to a federal agency’s interpretation of an ambiguous regulation. Many courts and scholars criticize Auer deference for various reasons and believed that the Supreme Court’s decision in Kisor would overrule Auer. Instead, the Court upheld the longstanding precedent, but imposed new “guidance” on when to apply Auer deference.

OSHA Proposes Amending Electronic Recordkeeping Requirements

On July 30, 2018, the Occupational Safety and Health Administration (OSHA) published a notice of proposed rulemaking (NPRM) in the Federal Register seeking comments on a proposed measure that would partially rescind the 2016 amendments to its recordkeeping rule. The 2016 amendments required establishments with at least 250 employees, or with at least 20 employees in a high-risk industry, to electronically submit their illness and injury records to OSHA annually, beginning in 2017.

OSHA Announces 30-Day Grace Period for Enforcement of Silica Standard for General Industry

Employers that are worried about whether their new or upgraded programs for silica protection will pass regulatory muster under the Occupational Safety and Health Administration’s (OSHA) general industry standard for respirable crsytalline silica, for which enforcement begins on Saturday, June 23, 2018, can breathe a small sigh of relief.

Government Shutdown: What It Means for OSHA

The federal government entered a partial shutdown beginning on January 20, 2018, due to a lack of appropriations. As a result, certain agencies that rely solely on government funding will not be able to provide all services. The Occupational Safety and Health Administration (OSHA), the Occupational Safety and Health Review Commission, and the Department of Labor’s Office of the Solicitor are among these agencies.

D.C. Circuit Rejects All Industry Challenges to OSHA’s New Silica Standards

On Friday, December 22, 2017, the U.S. Court of Appeals for the District of Columbia Circuit rejected all of American industry’s many challenges to the Occupational Safety and Health Administration’s (OSHA) new silica dust standard, 29 C.F.R. §§ 1910.1053 and 1926.1153—one of the key achievements of OSHA under the Obama administration. The court remanded the standard for OSHA to further explain or reconsider why it did not adopt medical removal protection.

The Latest From OSHA on Silica in Construction Enforcement

On October 19, 2017, the Occupational Safety and Health Administration (OSHA) issued Interim Enforcement Guidance for enforcing the Respirable Crystalline Silica in Construction Standard, 29 CFR 1926.1153. OSHA began enforcing the Silica in Construction Standard on September 23, but announced a 30-day “grace period” for construction employers making good faith attempts to comply with the new standard.

It’s Time Again to Post the OSHA 300A Annual Summary of Illnesses and Injuries

Covered employers must post the Occupational Safety and Health Administration’s (OSHA) Form 300A between February 1 and April 30, 2017. Form 300A is a summary of the total number of job-related injuries and illnesses that occurred during a single year at each workplace. The notice should be posted in a conspicuous location where notices to employees are usually posted. Employers will want to make sure that the posting is not changed, vandalized, or covered by other material.

Court Denies Temporary Injunction on OSHA’s Electronic Reporting Regulation

On November 28, 2016, a federal district judge rejected several industry groups’ attempt to halt certain aspects of the Occupational Safety and Health Administration’s (OSHA) Improve Tracking of Workplace Injuries and Illnesses final rule. In particular, the groups were targeting the new “anti-retaliation” provisions under 29 C.F.R. Sections 1904.35 and 1904.36, which would effectively prohibit employers from utilizing certain safety incentive programs and mandatory post-accident drug testing policies.

What Trump’s Victory Means for OSHA

Trump’s victory in Tuesday’s Presidential election has conventional wisdom predicting that his administration will defang the Occupational Safety and Health Administration (OSHA) in several ways. One, by ending or curtailing the agency’s current policy of pushing aggressive enforcement against employers and replacing it with a business-friendly objective emphasizing voluntary compliance. Two, by withdrawing or repealing costly or controversial new regulations, such as the agency’s new silica rule or its new “anti-retaliation” regulations that seek to effectively prohibit mandatory post-accident drug testing and safety incentive programs.

Lawsuit Challenges OSHA’s “Union Walk Around Rule”

On September 8, the National Federation of Independent Business (NFIB) filed a federal court complaint in Dallas, seeking to strike down what has become known as the U.S. Occupational Safety and Health Administration’s (OSHA) “union walk around rule.” The lawsuit seeks a declaratory judgment that OSHA acted “arbitrarily and capriciously” in issuing the rule and did not afford the public an opportunity to comment on the rule before its promulgation.

OSHA Settlement May Point Direction on Injury Reporting Policies

Earlier this year, the Occupational Safety and Health Administration (OSHA) signaled an intention to take employers to task for maintaining policies that required employees to immediately report workplace injuries and accidents or face discipline. OSHA considers such policies to be retaliatory and a violation of section 11(c) of the Occupational Safety and Health (OSH) Act.