OSHA Issues Long-Awaited COVID-19 Vaccine-or-Test Order

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There’s just no end to the COVID news over the last few days!

 This morning, the Occupational Safety and Health Administration (“OSHA”) released its long-awaited COVID-19 Emergency Temporary Standard (“ETS”). This ETS is in response to President Biden’s call for employers with 100 or more employees to require their employees to be vaccinated against COVID-19 or wear a mask and submit to COVID-19 testing at least weekly.

 In addition, the White House announced the following:

  • All unvaccinated workers must begin wearing masks by December 5, 2021, and provide proof of a negative COVID-19 test at least weekly beginning January 4, 2022.
  • The deadline for federal contractors to comply with similar provisions of the President’s Executive Order (“EO”) 14042 has been pushed out to January 4, 2022.
  • Employers are not required to pay for or provide COVID-19 tests for their employees unless required under state or local laws or as part of a collective bargaining agreement.

With this announcement, my team and I recommend that covered employers review their COVID-19 workplace policies – i.e., NY employers’ NYS HERO Act, Section 1, workplace safety plans – and make the appropriate updates by the deadlines set forth in the ETS. Further, we recommend employers check with their health insurance plan providers to determine if the cost of mandated weekly testing is covered or if it will be an out-of-pocket expense for employees. Lastly, employers should prepare to have difficult conversations with employees about this often heated and emotional topic.   

Of course, there will be legal challenges to this federal mandate. However, as with so many other laws, rules, and regulations, employers should plan for full compliance and adjust those plans as necessary along the way.

This is a complex mandate with countless questions – many not yet thought of – and intersections with state and local laws and regulations. We’ll be doing our research over the coming days and weeks and will keep you updated along the way. So, buckle up and get ready for another bumpy ride!


If you have questions about compliance with state and federal regulations and mandates, or any of the services HR Compliance Experts offers, contact us at theexperts@hrcexperts.com, or call 585-565-3900.

Did you enjoyed Frankly Speaking? Then let us know at theexperts@hrcexperts.com! Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at theexperts@hrcexperts.com, or call 585-565-3900.

Posted by Frank Cania, president of HR Compliance Experts LLC.

© 2021 HR Compliance Experts LLC

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.


CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

Frankly Speaking – NYS HERO Act has Employers Asking Again, WTH?

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In my July 13, 2021 post, “NYS HERO Act has Employers Asking, WTH?” (I said it then, and I’ll say it again, there’s no “O” word, you need an “O” word if the acronym is HERO!), I wrote about Section 1 of the Act. At that time, most employers were aware of the requirement to adopt a safety and health plan by August 5, 2021, and distribute their plan to all employees within 30 days. Then, on September 6, 2021, COVID-19 was designated a serious public health risk under the HERO Act. As a result, employers were ordered to implement their plans (if this post gets any drier, the words will blow off the screen) and keep them in effect until at least October 31, 2021. BTW, the state has not indicated whether that designation will be extended.  UPDATE: The NYS Commissioner of Health has extended the the designation of COVID-19 as a serious health threat until December 15, 2021. Therefore, employer safety and health plans must remain in effect through at least December 15, 2021.  

That brings us to November 1, 2021, when Section 2 of the HERO Act goes into effect. Section 2 requires employers with 10 or more employees to allow employees to create a joint labor-management workplace safety committee (that sounds very union-like to me). Although similar committees are typical in a unionized environment, Section 2 applies to all employers covered by the HERO Act.

Like a toddler promising to pick up their toys before dinnertime, the NYS Department of Labor (“NYS DOL”) committed to providing updated employer guidance on Section 2 before Monday, November 1, 2021. Unfortunately, once again, it appears the toddler’s promise is more likely to be honored. (Come on, be fair, they still have one more day – Sunday – to release the guidance.) So, for now, I can at least explain some of the basics:

  • At the request of one or more of its employees, an employer of 10 or more must allow employees to establish and administer a joint labor-management workplace safety committee.
  • The term “employees,” as it relates to Section 2, is defined as all employees in the state of New York, except employees of the state, any political subdivision of the state, a public authority, or any other governmental agency (of course NYS doesn’t include itself in these things!).
  • The committee must include both employer and employee representatives, with at least two-thirds being non-supervisory employees.
  • The employee members of the committee must be chosen by and from the employer’s non-supervisory employees. The employer is prohibited from interfering with the selection of non-supervisory employees to serve on the committee.
  • Further, the committee must be co-chaired by a representative of the non-supervisory employees and an employer representative.
  • Section 2 also authorizes the creation of multiple committees representing geographically distinct worksites.

Under Section 2 of the HERO Act, workplace safety committees have authorization to:

  1. Raise health and safety concerns, hazards, complaints, and violations to the employer, to which the employer must respond;
  2. Review and provide feedback on any workplace health and safety policy required by the HERO Act or the workers’ compensation law; 
  3. Review the adoption of any workplace policy in response to any health or safety law, ordinance, rule, regulation, executive order, or other related directives; 
  4. Participate in any site visit by any governmental entity responsible for enforcing safety and health standards; 
  5. Review any report filed by the employer related to the health and safety of the workplace; and 
  6. Hold a scheduled meeting during work hours, at least once per quarter.

The employer must also permit and pay safety committee designees to attend training on the function of worker safety committees, rights established under Section 2 of the HERO Act, and an introduction to occupational safety and health.

Unionized employers should note that different requirements apply if a collective bargaining agreement (“CBA”) is in place. Under a CBA, the collective bargaining representative will be responsible for selecting employees to serve as members of the committee. In addition, provisions of Section 2 may be waived by a CBA that explicitly references the section.

Like Section 1 of the HERO Act, Section 2 contains anti-retaliation provisions. These include, among other points, prohibiting the employer from retaliating against any employee who participates in the establishment or activities of a workplace safety committee. Violations of the anti-retaliation provision may result in penalties, including:

  1. Assessment of civil penalties of $1,000 to $10,000;
  2. Injunctive (legal) relief; 
  3. Liquidated damages of up to $20,000; 
  4. Payment of costs and reasonable attorneys’ fees to the employee; 
  5. An order to rehire or reinstate the employee to their former position, with the restoration of seniority, or an award of lost compensation, damages, and front pay in place of reinstatement.

Finally, one bright spot, an employer with an existing safety committee that meets the HERO Act’s requirements is not required to create an additional committee (wow, you really stretched to find that “bright spot!”).

Based on my experience working with small and mid-sized businesses, most are likely unfamiliar with joint employee/employer workplace committees of any type. Given that unfamiliarity, the complexity of the rules, and the significant financial penalties associated with noncompliance, preparation is critical to correctly responding when employees request to establish a workplace safety committee. Therefore, employers should work with an HR compliance expert (I’m sure any subliminal reference to your consulting firm, HR Compliance Experts, was purely coincidental and not a shameless plug) or their employment attorney when faced with employee requests to establish a workplace safety committee.      


If you have questions about compliance with state and federal regulations and mandates, or any of the services HR Compliance Experts offers, contact us at theexperts@hrcexperts.com, or call 585-565-3900.

Did you enjoyed Frankly Speaking? Then let us know at theexperts@hrcexperts.com! Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at theexperts@hrcexperts.com, or call 585-565-3900.

Posted by Frank Cania, president of HR Compliance Experts LLC.

© 2021 HR Compliance Experts LLC

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.


CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.