Employment Law Observer

In the spirit of the season, we are using our annual "12 Days of California Labor and Employment" blog series to address new California laws and their impact on employers. On the sixth day of the holidays, my labor and employment attorney gave to me six geese a-laying and AB 2975, AB 1976, and SB 1350.

On March 29, 2024, the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) issued a final rule (Final Rule) amending regulations for workplace investigations. It clarifies that employees may authorize both employees and a non-exhaustive list of third-party non-employees to act as their representative and accompany OSHA Compliance Safety and Health Officers (CSHO) during physical workplace inspections.

On August 30, 2023, the U.S. Occupational Safety and Health Administration (OSHA) published a notice of proposed rulemaking (NPRM) to amend its regulations regarding who employees may authorize to act as their representative and accompany the Compliance Safety and Health Officer (CSHO) during physical workplace inspections. Under the NPRM, the employees may designate an employee of the employer or a non-employee third party whose relevant experience with particular hazards or conditions or language skills are deemed reasonably necessary to conduct an effective and thorough inspection by the CSHO. Specifically, the NPRM clarifies that these non-employees may include interpreters, officials with advocacy groups or local safety counsels, and union representatives.

On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS). It required employers of 100 or more employees to institute mandates requiring employees to be fully vaccinated against COVID-19—or require weekly testing of its employees. That same day, the Centers for Medicare & Medicaid Services (CMS) similarly issued an Interim Final Rule (IFR) requiring the workforces of Medicare- and Medicaid-certified providers and suppliers to be fully vaccinated against COVID-19 in order for Medicare and Medicaid facilities to continue participation in those programs. Many employers have also instituted COVID-19 vaccination mandates for their employees separate from OSHA’s ETS and CMS’s IFR.

At a press conference on October 21, 2021, Florida Governor Ron DeSantis called on the Florida legislature to pass a law combating federal vaccine mandates. He also called on the legislature to hold a special legislative session to pass such a law, instead of waiting until the legislature resumes its normal session next year. Governor DeSantis believes legislation is necessary because an executive order against employer vaccine mandates may not be sufficient.

The Occupational Safety Health Administration (OSHA) issued updated guidance on August 13, 2021, to assist employers in protecting workers who are unvaccinated or otherwise at risk of contracting the virus. The guidance consists primarily of recommendations and seeks to align its approach with guidance issued by the Centers for Disease Control (CDC). CDC and OSHA guidance interact, but Employers have a specific legal obligation under OSHA to provide a safe and healthy workplace free from recognized hazards that are likely to cause death or serious physical harm.

On September 30, 2020, the Occupational Safety and Health Administration (OSHA) updated its answers to frequently asked questions regarding an employer's obligation to report a COVID-19-related fatality if it occurs within 30 days of the work-related incident. Notably, according to OSHA, an "incident" includes exposure to COVID-19 in the workplace. In order for a fatality to be reportable it must occur within 30 days of the exposure at work, and an employer must report the fatality to OSHA within eight hours. The time clock for the reporting obligation commences within eight hours of the employer knowing that the employee has died and that the cause of death was work-related.

With over 40 states showing a significant increase in the number of COVID-19 cases, the novel coronavirus remains top of mind for employers throughout the U.S. Numerous state and federal measures have been—and continue to be—enacted in response to the pandemic. We explore some of these recent policies and their impact on employers below.

Throughout the COVID-19 pandemic, employers have had to keep abreast of evolving or incomplete government guidance, all while trying to discern for themselves the most prudent way to handle employee leaves, pay, workload, and safety.

In a workplace safety whistleblower lawsuit recently filed in the U.S. District Court for the Middle District of Florida, an air conditioning technician claims he was fired by his employer, HT Airsystems of Florida, LLC, in retaliation for complaining about purported overtime violations and for raising concerns about a lack of personal protective equipment (PPE), which would be a violation of the Fair Labor Standards Act (FLSA), and Florida's Private Whistleblower Act (FWA).

The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) has issued a new poster—available in English or Spanish—which lists steps workplaces can take to reduce their risks of coronavirus exposure. This release is the latest effort by OSHA to educate and protect America's workers and employers during the pandemic. We outline their recommended infection prevention measures highlighted in the poster below.

It's the end of the year and while everyone is busy, employers in California should be aware of new laws and regulations that go into effect on January 1, 2020. In the spirit of the season, we are using the "12 days of the holidays" to blog daily about one of these new California laws and its impact on California employers. On the seventh day of the holidays, my labor and employment attorney gave to me: seven swans a swimming and AB 1804 and 1805.

OSHA had an active 2017. Now that we have rung in the new year, let's talk about how those changes are impacting employers in 2018.

In the ongoing series of updates on the status of OSHA's electronic reporting, we have another development. 

As reported by the Employment Law Observer in June, OSHA has formally proposed to delay the July 1, 2017 deadline for electronic injury and illness reporting to December 1, 2017. Since announcing the delay, OSHA formally launched the Injury Tracking Application (ITA), which will serve as the secure website covered employers will use to electronically report mandatory injury and illness information. This was the missing piece preventing the July 1, 2017 deadline from taking effect, as OSHA had not set up the portal in advance of the original deadline. 

With the July 1, 2017 deadline looming for OSHA's electronic reporting requirement, it came as a relief to employers when, in May. OSHA gave word that it intended to propose extending this deadline.  

OSHA’s new anti-retaliation rule went into effect on December 1, 2016. The purpose of the new rule was to clarify what OSHA considered “the existing implicit requirement” that an employer work-related injury and illness policies be reasonable and not deter or discourage employees from reporting injuries. Since that time, employers and lawyers alike have waited to see what types of policies OSHA would target under the new rule. The Department of Labor’s recent complaint filed in the Eastern District of Wisconsin sheds some light on that question.

OSHA has announced it intends to propose extending the July 1, 2017 deadline by which certain employers were scheduled to begin reporting workplace injuries and illnesses electronically, as required by OSHA's new rule.  This may not come as a surprise, as the electronic portal through which reporting is to be made has not been created.  Updates will be posted to OSHA's webpage, which you can find here, when available. 

OSHA recently announced it will no longer bring union representatives to inspections of non-unionized workplaces.  As a result, barring a designation by an employee (which I'll discuss further below), non-unionized employers no longer have reason to fear that an OSHA compliance officer will appear at the door accompanied by a union representative on an inspection or walk-around.

In the last few weeks, federal courts in Texas have been the center of attention, deciding what rules and regulations of the current administration may fall to legal challenges asserted in the jurisdiction by collections of states, business, and trade associations, among others.  Texas courts have issued preliminary injunctions impacting the persuader rule, and most recently the DOL's new overtime rule.