OSHA Vaccine Mandate Struck Down. CMS Mandate Survives.

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The United States Supreme Court struck down OSHA’s COVID-19 vaccine mandate, but upheld CMS’s mandate.

This afternoon, the United States Supreme Court released two opinions dealing with the Biden Administration’s COVID-19 vaccine mandates.  In the first, the Court dealt a death blow to the OSHA mandate, which required vaccines and/or testing for all employers with 100 or more employees.  In the second, the Court found that the vaccine mandate for health care facilities was a valid exercise of power.

OSHA Mandate: National Federation of Independent Businesses v. Department of Labor

You can read the Supreme Court’s OSHA opinion here:  OSHA Opinion.  You may recall that the Sixth Circuit Court of Appeals issued an opinion in December upholding OSHA’s vaccine-or-test requirements.  Here’s the blog post that I wrote on that decision: Sixth Circuit Upholds Mandate.  Numerous States, businesses and nonprofit organizations asked the Supreme Court for emergency relief “staying,” or halting, the OSHA rule.  The Court granted that relief and the OSHA mandate is now on hold.

In short, the Court found that the United States Secretary of Labor lacked authority to impose the OSHA mandate.  The mandate “operates as a blunt instrument” that “draws no distinctions based on industry or risk of exposure to COVID-19.”  Moreover, the Court called the rule a “broad public health measure” which went beyond OSHA’s authority to “set workplace safety standards.”

Although COVID– 19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.

And, in concluding its opinion, the Court issued this declaration:  “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

Before this opinion was issued, some commentators thought that the Supreme Court might strike down the mandate because it exceeded the Secretary of Labor’s power to issue an emergency rule.  But, this opinion largely ignores the emergency nature of the rule and broadly says that the Secretary of Labor does not have Congressional authority to issue this type of broad health program.

The opinion leaves open the possibility that OSHA might be able to impose mandates in specific types of workplaces — if there is an “occupation-specific risk related to COVID-19.”

We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly  crowded or cramped environments. But the danger present in such workplaces differs in both  degree and kind from the everyday risk of contracting COVID–19 that all face.

So, we might see OSHA attempt more-narrow vaccine mandates in the future.  But, for now, the broad-based requirement for employers with 100 or more employees seems finished.

CMS Mandate: Biden v. Missouri

The CMS vaccine mandate was developed by the United States Secretary of Health and Human Services.  It applies to most medical facilities that receive Medicare or Medicaid funding.  For example, if a hospital wants to be paid for treating Medicare or Medicaid patients, it must ensure that its employees and medical staff are vaccinated, or have a valid religious or medical exemption.

In contrast to its OSHA opinion, the Supreme Court held that the Secretary of Health and Human Services acted within his authority when he implemented the CMS mandate.  The ultimate conclusion was that “there can be no doubt that addressing infections problems in Medicare and Medicaid facilities is what [the Secretary] does.”  Thus, the Court drew a stark contrast between the OSHA and CMS:

The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.

The opinion can be found here:  Supreme Court CMS Opinion

What About Federal Contractors?

Many of my clients are government contractors and are anxiously awaiting the fate of the Biden Administration’s mandate for federal contractors.  Right now, the federal contractor requirement is stayed nationwide.  Here’s the blog post I wrote about the stay:  Federal Contractor Mandate Halted.

The federal contractor requirement has not yet made it to the Supreme Court.  Do today’s opinions give us any clue how the Supreme Court might rule when it reviews the federal contractor mandate?  Maybe.

If I was forced to bet, I would guess that today’s opinions don’t bode well for the federal contractor mandate.  Essentially, the Supreme Court said:  “OSHA is not in the public health business, but CMS is.  So, we’ll let CMS regulate public health in medical facilities, but we won’t let OSHA regulate public health in the workplace.” The federal contractor mandate is the result of President Biden’s Executive Order 14042.  So, is the President in the public health business when he (or an executive agency) enters into contracts?

My gut says: “No.”  For that reason, I think the federal contractor mandate might get overturned.  Nevertheless, there are parts of the CMS opinion that support President Biden’s authority.  For example, the Court noted that “healthcare facilities have always been obligated to satisfy a host of conditions that address the safety and effectiveness of healthcare, no simply sound accounting.”  Also, the Secretary of Health and Human Services “routinely imposes condition of participation that relate to the qualifications and duties of healthcare workers themselves.”

Those findings can also apply to federal contractors.  For example, “[federal contractors] have always been obligated to satisfy a host of conditions that address the safety and effectiveness of [government services].” Also, federal agencies “routinely impose conditions of participation that relate to the qualifications and duties of [government contractor employees].”


As always, stay tuned.  When new developments occur, I will discuss them as soon as possible.

Sixth Circuit Reinstates OSHA Vaccine Mandate: What Do I Do Now?

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The Sixth Circuit Court of Appeals reinstated OSHA’s vaccine mandate for employers with 100 or more employees.

On Friday, the United States Court of Appeals for the Sixth Circuit entered an order and opinion reinstating OSHA’s vaccine mandate for employers with 100 or more employees.  Here’s a link to that opinion:  Sixth Circuit Vaccine Mandate Opinion.

It’s too early to say what the ultimate outcome of this legal battle will be.  At least ten interested parties have filed applications with the United States Supreme Court asking for an emergency stay of the OSHA mandate.  Justice Brett Kavanaugh is responsible for ruling on those motions.  He can stay the mandate on his own or refer the stay request to the Supreme Court as a whole.  The Court has asked the Biden Administration to respond to the applications by December 30, 2021.  Appellate experts expect a decision in January.

In the interim, OSHA took a quick victory-lap with an important Press Release on Friday.  It stressed two important dates:

“OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.  OSHA will work closely with the regulated community to provide compliance assistance.”

So, if the Supreme Court takes no action in the near future, we know that these dates are important.

  1.  January 10, 2022:  This is the day OSHA will being enforcing all aspects of the vaccine mandate.  Not sure what all of those requirements are?  Here’s my original article discussing the general requirements of the OSHA mandate:  OSHA Issues Vaccine Mandate for Private Employers.  Employers who are making “reasonable, good faith efforts to come into compliance” will get a grace period for the testing requirement.
  2. February 9, 2022: The grace period expires.  Presumably, OSHA will begin citing covered employers for noncompliance with the mandate.

I strongly recommend that employers prepare for the possibility that the OSHA mandate will survive the Supreme Court’s scrutiny.  Most lawyers still think the odds are stacked against the mandate.  But, you don’t want to be caught unprepared.  At a bare minimum:

  1.  Decide if you want to mandate vaccines for your employees — with no “test out” option.  If that’s your course of action, download OSHA’s sample policy and start taking steps to implement.  Here’s a link to that policy: OSHA Sample Policy Mandating Vaccination
  2. In the alternative, you can implement a policy allowing employees to mask and take weekly testing — instead of vaccinating.  If that’s your plan, download OSHA’s sample policy and start taking steps to implement.  Here’s a link to that policy:  OSHA “Test Out” Policy

As always, stay tuned.  More details are sure to come.


OSHA Issues Vaccine Mandate for Private Employers

OSHA vaccine mandate ETS Alabama Employment Law
OSHA’s Emergency Temporary Standard imposes a vaccine mandate on employers with 100 or more employees.

Private employers with 100 or more employees are required to implement a new vaccine mandate.  This morning, the United States Occupational Safety and Health Administration issued its Emergency Temporary Standard requiring those employers to adopt policies addressing COVID-19 testing, masking and vaccines.  While the Standard itself is only 17 pages long, OSHA devoted an additional 473 pages of Preamble to explaining it.  Here is a link to the Standard and its Preamble:  OSHA Vaccine Mandate.  In addition to that daunting document, OSHA created a “Frequently Asked Questions” web page that can be found here:  OSHA Vaccine FAQs.  OSHA also simultaneously released a webinar with an overview of the mandate, here:  OSHA Vaccine Webinar

Here are my big takeaways:

1. Who’s NOT covered?

OSHA’s rule does not apply to federal contractors who are already subject the vaccine mandate originating with President Biden’s Executive Order 14042.  I’ve written extensively about obligations under that Order: Federal Contractor Vaccine Mandate

Healthcare workers are not covered by the new OSHA rule if they are already subject to a prior ETS that was released for healthcare workers in June.  Details on the healthcare ETS can be found here:  Healthcare ETS

Three types of employees are not covered:  (1) Employees who do not report to a workplace where other individuals such as co-workers or customers are present; (2) employees who are working at home; and, (3) employees who work exclusively outdoors.

2. How do I determine if I have 100 or more employees?

Employers must count all employees across all United States locations.

Part-time employees DO count.  Independent contractors do not.  Here’s an old blog post that I wrote about the dangers of calling employees independent contractors:  How Independent are Your Independent Contractors?

“[T]wo or more related entities may be regarded as a single employer for OSHA purposes if they handle safety matters as one company ….”

Franchisors and franchisee will usually be separate entities with separate employees.  Employees referred by a staffing agency will probably be counted as employees of the staffing agency rather than the client-company.

Fluctuations in employee count are biased in favor of vaccination.  The effective date of the ETS is tomorrow, November 5, 2021.  If you don’t have 100 employees tomorrow, you don’t have to comply with the mandate.  But, once you hit 100 at a later date, you have to comply.  And, if you have 100 employees tomorrow, you must comply with the mandate throughout the duration of the ETS — even if your employee count dips below 100.

To determine overall coverage, you MUST count all employees — even if they fall within the three categories of “solitary” employees who aren’t covered.  In other words, if you have 105 employees, and 10 of them work exclusively outdoors, you still have to comply with the mandate for the 95 employees who do not work exclusively outdoors.

3. Covered employers must adopt a mandatory vaccination policy.

The ETS requires that covered employees adopt a “mandatory vaccination policy.”  Fortunately, OSHA has done most of the heavy-lifting by issuing sample policy with a vaccine mandate:  Sample Vaccination Policy

4. Employers CAN avoid the vaccine mandate by mandating testing and face coverings.

The ETS creates a “limited exception” to the vaccination policy.  Employers can avoid the mandate by establishing, implementing and enforcing a written policy allowing any employee not subject to mandatory policy to choose either to: (1) be fully vaccinated against COVID-19; or, (2) provide proof of weekly testing for COVID-19 AND wear a face covering.  Such employees must wear the face covering while in the workplace or in a car with a co-worker.  Employers are not required to pay the costs for such employees’ weekly testing.  OSHA also provided a sample policy for those employers that want to permit employee choice:  Employee Choice Vaccination Policy

5. Paid Time Off for getting the vaccine and its adverse effects.

Employees must provide employees with up to four (4) hours of Paid Time Off for each dose of the vaccine.  If an employee takes more than four hours, the additional time is protected, but unpaid.  In other words, you can’t fire an employee for taking more than four hours to get a dose of the vaccine.

This is a new and mandatory benefit.  Employers cannot require employees to use pre-accrued PTO to pay for getting the vaccine dose itself.

If an employee misses work because of adverse effects from the vaccine, they must receives some paid leave.  An employer can require use of accrued PTO to deal with adverse effects.  But, if an employer differentiates between vacation and sick leave, the employer cannot require an employee to use accrued vacation for adverse effects.  Employees cannot be forced “into the negative” if they do not have accrued PTO/sick leave.  The ETS allows employers to set a “reasonable” cap on paid leave to deal with adverse effects.  Generally, OSHA presumes that two days is reasonable.

This is not a retroactive benefit.  So, employees who are already vaccinated do not get additional PTO.

6. Record keeping requirements.

The ETS’s record-keeping requirements are extensive.  And, all information about employee vaccination status must be kept confidential.  The standard requires employers to
determine the vaccination status of each employee, and also to maintain records of each employee’s vaccination status, preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated, and maintain a roster of each employee’s vaccination status.

7. What’s the deadline for compliance?

The compliance date is “30 days from the effective date.”  In other words, employers must have their policies in place by December 5, 2021.

Employers are required to mandate testing of unvaccinated employees within 60 days of the effective date — or January 4, 2022.  Employees who complete their vaccine series by that date do not have to be tested, even if they have not completed the standard two-week waiting period.

8. Fraud issues.

OSHA is not requiring employers to monitor for or detect fraud.  But, the ETS preamble makes sure to remind employers and employees that they face 5 years imprisonment if they engage in fraud.  Moreover, “[i]f an employer knows that proof submitted by an employee is fraudulent, and even with this knowledge, accepts and maintains the fraudulent proof as a record of compliance with the ETC, it may be subject to the penalties ….”

9. What are the fines if I don’t comply?

The answer:  at least $14,000.00.  That’s the amount of fines imposed by OSHA for serious safety violations.  Last night, the White House arranged a telephone conference between the press and “Senior Administration Officials” but directed the press not to release details until today.  A transcript of that call can be found here:  Background Press Call on Vaccinations.

When asked about fines, one official said: “So $14,000 per item that would be cited.  So if there were multiple items out of the standard that we cited, there would be, you know, multiple penalties that could be issued along with that.”

Some accomplished lawyers think the fine could be $14,000 per unvaccinated employee.

10.  Conclusion

Stay tuned.  The Centers for Medicare and Medicaid Services also released a vaccine mandate affecting Medicare and Medicaid health workers today.  It can be found here:  CMS Vaccine Mandate  I hope to have a summary of that rule soon.

President Biden Implements Vaccine Mandate



Biden President Vaccine Mandate COVID-19
The Biden administration is requiring COVID-19 vaccines for government contractors and employers with 100 or more employees.

On Thursday evening, President Joe Biden addressed the nation and announced his plan for a “Path Out of the Pandemic.”  A broad outline of President Biden’s plan can be found on the White House web site here:  Biden COVID Plan.  That outline includes a vaccine mandate for all government contractors and private employers with 100 or more employees.  After the President’s address, the White House released two Executive Orders.  Here’s what we know:


After President Biden’s press conference, the White House posted a copy of an “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors.”  Here’s a link to that order:  Exec. Order Vaccine Protocols/Contractors.  Highlights of the order include:

  • Significantly, the Executive Order does not explicitly implement a vaccine mandate.  Instead, the Order defers to guidance from the Safer Federal Workforce Task Force.  Nevertheless, given the tone of President Biden’s comments, it is safe to assume that the Task Force will mandate vaccines for federal government contractors.
  • Federal agencies must include clauses in their contracts requiring  contractors to comply with guidance issued by the Task Force.  The requirements in those clauses must also be flowed-down to subcontractors.
  •   Here’s a link to the Task Force’s current discussion of vaccines:  Task Force Vaccine Discussion.  You should regularly check that link because it will almost certainly change in the coming days and weeks.
  • The Task Force shall issue guidance by September 24, 2021 which will essentially provide details for the requirements of the Executive Order.
  • The Federal Acquisition Regulation (“FAR”) will be amended to implement the Executive Order.
  • The new clause will be included in all new contracts, extensions, renewals or options of contracts on or after October 15, 2021.


President Biden’s second Executive Order explicitly mandates COVID-19 vaccines for federal employees.  That order can be found here:  Federal Employee Vaccine Mandate.  Here are the highlights:

  • The order repeatedly finds that the “best way” to combat COVID-19 is to “be vaccinated.”
  • Based on that finding, the order finds “it is necessary to require COVID-19 vaccination for all Federal employees, subject to such exceptions as required by law.”  I anticipate that those exceptions will be narrow and focus on people with disabilities and sincerely-held religious beliefs.
  • Once again, the Safer Federal Workforce Task Force will lead the way.  “The Task Force shall issue guidance within 7 days of the date of this order on agency implementation of this requirement for all agencies covered by this order.”  So, we should have additional guidance by September 16, 2021.

3.  PRIVATE EMPLOYER MANDATE???? Employers with 100+ Employees

The Executive Orders do not address a vaccine mandate for private employers.  Nevertheless, the White House’s broad outline says that OSHA will be issuing an emergency standard mandating vaccines and/or testing for private employers with 100 or more employees:

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.

The process for issuing an Emergency Temporary Standard (“ETS”) is governed by 29 U.S.C. § 655(c).  Under that statute an ETS will become effective immediately when it’s published in the Federal Register.  Prior to publication, however, the ETS will likely identify compliance dates and deadlines for when certain actions must occur. The ETS will also allow for a public comment period prior to publication.


In large part, today’s news is:  “Hurry up and wait!”  We know that the federal government is going to implement a vaccine mandate.  But, we don’t know the exact contours of that mandate.  We should have more guidance from the Task Force in the near future.

I plan to provide regular updates on this issue.  I also maintain an e-mail distribution list for clients, friends and generally anybody interested in employment law issues.  If you would like for me to include you on that list, please send me an e-mail at:  rlockwood@wilmerlee.com



OSHA Requires Employers to Determine if COVID-19 is Work-Related

COVID-19 work-related OSHA Alabama Employment Law
OSHA is requiring employers to determine if COVID-19 cases are work-related.

Are you an employer?  Did one of your employees contract COVID-19?  If so, you are required to determine if that COVID-19 is work-related.  That’s the new rule announced by the United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”).  Here’s a link to OSHA’s announcement:  OSHA COVID-19 Recording Guidance

This is a significant reversal of policy by OSHA.  Under the Occupational Safety and Health Act, employers are required to record and maintain records of occupational injuries and occupational illnesses.  By definition, an “occupational illness” is one that is work-related.  Earlier in the pandemic, many employers were concerned that they might be required to record the existence of all COVID-19 cases in their work force.  OSHA calmed many of those fears with guidance that it issued on April 10, 2020.  Here’s a link that guidance:  OSHA’s April Guidance

The April 10 guidance essentially adopted the common-sense position that employers aren’t epidemiologists and shouldn’t be required to determine if a COVID-19 case is work-related. Thus, OSHA said that it would not enforce its recording requirements and would not require employers to determine if COVID-19 was work-related, unless:

  1. There was objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
  2. The evidence was reasonably available to the employer. Reasonably available evidence included information given to the employer by employees, as well as information that an employer learned regarding its employees’ health and safety in the ordinary course of managing its business and employees.

Under the new guidance, effective May 26, 2020, employers will be required to act as amateur epidemiologists and determine whether COVID-19 cases in the work force are work-related.  Employers are required to record a COVID-19 case as an occupational illness if:

  • The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
  • The case is work-related as defined by 29 CFR § 1904.5; and
  • The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.  [If an employee misses days of work or receives medical treatment beyond first aid, this requirement is met.]

In determining whether a COVID-19 case is work-related, an employer is required to consider all “reasonably available evidence.”  While admitting that this determination cannot be reduced to a “ready formula,” OSHA provided the following-guidance:

  • COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
  • An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.
  • Certified Safety and Health Officers should give due weight to any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee herself.

There is one small glimmer of hope for employers.  OSHA gave a favorable burden of proof for making the work-relatedness determination and recording requirements:  “If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.”  Also, employers with 10 or fewer employees and certain employers in low hazard industries have no recording obligations.

OSHA requires employers to create and maintain records of occupational illnesses.  But, typically employers are only required to report to OSHA instances that result in death, hospitalization or loss of an eye.  The new guidance does not change those reporting requirements, but the recording requirement could be substantial for many employers.




Coronavirus: What Employers Need To Know.

coronavirus ada fmla osha Alabama employment law
Employers have fears about the spread of coronavirus in the workplace.

I’ve gotten a few calls this week from clients concerned about coronavirus.  My clients have employees returning from travel to China/Korea/Japan and want advice on protecting the employee, their customers and co-employees.  From a practical perspective, the Centers for Disease Control have issued guidance for business owners on responding to coronavirus in the workplace:  CDC Coronavirus Guidance.

I.  Legal Issues

From a legal perspective, employers have two primary statutes that relate to their employees and coronavirus:  (1) the Occupational Safety and Health Act (“OSHA”); and, (2) the Americans with Disabilities Act.

OSHA has a “General Duty Clause” that requires employers to furnish “a place of employment which [is] free from recognized hazards that are causing or likely to cause the death or serious physical harm to … employees.” In short, employers have a general duty to protect employees from hazards. That’s great, in concept, but how does it apply to coronavirus?

At this stage, employers should take common-sense steps to prevent the spread of contagious illnesses in the workplace. Most employers already have these steps in place. Provide hand sanitizer at multiple locations. Regularly clean and disinfect public areas. Make sick employees stay home. If the cornavirus threat spreads in the United States, there may be increased duties under OSHA for employers to provide personal protective equipment and/or take other measures. But, those are not necessary at this stage.

Generally, the ADA prohibits employers from taking an adverse job action against an employee  who is disabled or “regarded as” disabled.  So, would the ADA prevent an employer from suspending or terminating an employee who is infected with coronavirus or suspected of infection?  I have strong doubts that the ADA would apply.  But, I will give my lawyerly disclaimer:  Only a judge and/or jury can make a final determination on legal liability.  In particular, the transitory nature of any virus is unlikely to amount to a disability under the ADA.  Moreover, the Eleventh Circuit has expressly found that an employer’s fear an employee might develop Ebola in the future does not amount to “regarding” the employee as disabled.  Here’s a link to a blog post that I wrote about that case:Fear of Future Infection and the ADA.  That analysis would seem to apply equally to fear of contraction of coronavirus.

Employers may also want to require their employees to undergo a medical examination.  Even though coronavirus might not be a disability, the ADA generally imposes restrictions on medical examinations regardless of an employee’s status as disabled.  The EEOC previously issued guidance on steps that an employer can properly take under the ADA relating to a pandemic.  Here’s a link to that guidance:  EEOC/ADA Pandemic Guidance.  In general, employers can ask employees about potential exposure to coronavirus; ask employees how they are feeling; and, require symptomatic employees to stay home.

II.  Practical Advice

If one of my Alabama clients has a genuine fear about coronavirus, I have advised them that they should allow asymptomatic employees returning from “hot spots” to work from home, if possible.  If work-from-home is not an option, then consider requiring the employee to stay home — and pay the employee at the employer’s expense.  If overhead makes gratis leave infeasible, consider requiring the employee to use accumulated paid leave.  Employers should consult with counsel before requiring an asymptomatic employee to take unpaid leave.

OSHA: Contractors Liable for Conditions in Client’s Facility

OSHA Alabama Employment Law work conditions contractors
OSHA can hold contractors liable for defects in facilities that they do not own.

A recent decision from the Eleventh Circuit Court of Appeals demonstrates that independent contractors should actively communicate with their clients about dangerous work conditions.  See Packers Sanitation Services, Inc. v. Occupational Safety and Health Rev. Comm., No. 19-11537, 2020 WL 115472 (11th Cir. Jan. 10, 2020).  Packers Sanitation Services, Inc. (“Packers”) provides sanitation services to poultry processing facilities.  When a facility closes for the night, Packers employees enter the facility and clean the equipment.  A Packers employee was cleaning a piece of equipment at a Pilgrims Pride facility and suffered a partial amputation of a finger.

OSHA commenced an investigation and investigators met Packers representatives at the Pilgrims Pride facility.  Those representatives agreed that investigators could view the machine that caused the injury.  While walking to the machine, an investigator noticed a series of drains in the floor that lacked adequate covers.  A Packers manager told the investigator “that the drains had been in that condition for at least a year.”  OSHA added an additional citation against Packers for failure to maintain safe walking-working surfaces.

After losing its case before an Administrative Law Judge, Packers appealed to the Eleventh Circuit.  Among other things, it argued that it could not be liable for failure to repair the drains because the drains were owned by Pilgrims Pride.  The Eleventh Circuit rejected that argument, finding that “[t]he fact that Packers does not itself own the drains does not eliminate its responsibility to provide its employees with a safe working place.”

There are two primary lessons for Alabama employers to learn from the Packers decision.  First, take OSHA investigations extremely seriously and vigorously prepare for them.  OSHA investigators are not entitled to engage in a random tour of a workplace.  But, if an employer gives access to any part of a facility, investigators can issue citations for any violations that are in “plain view.”  Additionally, anything that an employees says to an OSHA investigator can be used against the employer.  Hindsight is 20/20.  But, in this case, Packers would have been well-advised to ensure (if possible) that all parts of the facility that an investigator might enter would be in good condition.  Moreover, employees accompanying the inspector should have been instructed to limit all communications.

The second lesson to be learned focuses on the need for communication between contractors and their clients.  Potentially, Packers may have been reluctant to point out safety violations to its client, Pilgrims Pride.  Nevertheless, the Eleventh Circuit’s decision makes clear that a contractor can be liable for unsafe work conditions — even if the contractor does not own the facility where the conditions occur.  Again, in hindsight, Packers should have communicated with Pilgrims Pride about rectifying the defective drains.

OSHA’s Inspection Powers Have Limits

OSHA inspection Alabama employment law
OSHA inspections have limits.

The United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”) has become more aggressive in recent years.  OSHA inspectors frequently seek to push the limits of their right to inspect employer premises.  A recent case from the Eleventh Circuit Court of Appeals imposes some limits on those inspection rights.  See USA v. Mar-Jac Poultry, Inc., No. 16-17745, 2018 WL 4896339 (11th Cir. Oct. 9, 2018).

A Mar-Jac employee was severely burned on February 3, 2016 when he attempted to repair an electrical panel using a non-insulated screwdriver.  Mar-Jac reported that accident to OSHA, and inspectors arrived at Mar-Jac’s facility on February 8, 2016.  The inspectors asked to inspect not only the hazards involved in the accident, but also to conduct a comprehensive inspection of the entire facility.  When Mar-Jac refused that comprehensive inspection, OSHA asked a federal court to issue a warrant permitting inspection of the facility.  When Mar-Jac received the warrant, it filed an emergency motion to quash (or stop) the warrant and inspection.  The court reviewing the motion to quash agreed with Mar-Jac and prevented the expanded inspection.  OSHA appealed to the Eleventh Circuit.

Importantly, the Mar-Jac case involved an “unprogrammed” inspection by OSHA.  OSHA has created “emphasis programs” in industries that pose a high risk to workers, and randomly inspects facilities under those programs.  If Mar-Jac involved a random, programmed inspection, the result would probably have been different.

“The scope of an unprogrammed inspection must bear an appropriate relationship to the violation alleged by the evidence.”  Mar-Jac, 2018 WL 4896339 at * 4.  “When nothing more is offered than a specific complaint relating to a localized condition, probable cause exists for a search to determine only whether the complaint is valid.”  Id.

Nevertheless, the Eleventh Circuit recognized that an expanded, full-facility inspection may be warranted in some circumstances:  “it is conceivable that a specific violation plus a past pattern of violations may be probable cause for a full scope inspection.  In addition, a specific complaint may allege a violation which permeates the workplace so that a full scope inspection is reasonably related to the complaint.”

OSHA tried to argue that a pattern of violations existed which supported its request for a full-facility inspection.  In particular, it relied upon Mar-Jac’s OSHA 300 logs to argue that the facility had a pattern of OSHA violations.  But, OSHA 300 logs do not necessarily record OSHA “violations.”  Instead, they merely contain a listing of work-related injuries and illnesses.   And, the Eleventh Circuit stressed that the mere existence of workplace hazards would not support a warrant:  “The existence of a ‘hazard’ does not necessarily establish the existence of a ‘violation,’ and it is a ‘violation’ which must must be established by reasonable suspicion in the application [for a full-facility inspection warrant].”

Ultimately, the Eleventh Circuit concluded that OSHA did not provide enough evidence of OSHA violatoins to justify a full scope inspection of the facility.  And, that is really the lesson of Mar-Jac.  If an employer operates a facility that is generally free of OSHA violations, it may be possible for that employer to resist a request by OSHA for an unprogrammed full-facility inspection.

Post-Accident Drug Testing: OSHA “Clarifies” Its Position

OSHA drug testing Alabama Employment Law
OSHA has “clarified” its position, and recognized the importance of post-accident drug testing policies.

Two years ago, I discussed difficulties that could be caused by new OSHA regulations on post-accident drug testing.  Here’s a link to that article:  Conflicts Between Alabama Law and OSHA Drug Testing Rules.  In that article, I noted that OSHA took the position that policies requiring “blanket post-injury drug testing policies deter proper reporting,” and are unreasonable.  Last week, OSHA issued a “clarification” of its position, and alleviated many of the concerns noted in my original article.  Here’s a link to the clarification:  OSHA Clarification on Post-Incident Drug Testing.  In contrast to 2016, OSHA now recognizes the importance of blanket post-injury drug testing:

The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.

So, if an employer drug tests in order to penalize an employee, then the drug test is questionable and might result in sanctions from OSHA.  Otherwise, post-accident drug testing policies are permissible.  Indeed, OSHA specifically found that the following are “permissible”:

  • Random drug testing.
  • Drug testing unrelated to the reporting of a work-related injury or illness.
  • Drug testing under a state workers’ compensation law.
  • Drug testing under other federal law, such as a U.S. Department of Transportation rule.
  • Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.  If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

OSHA’s clarification is very helpful for Alabama employers.  OSHA’s position in 2016 conflicted with the Alabama Drug Free Workplace Act, which incentivizes employers to adopt post-accident testing policies.  Now OSHA has changed course, and there is little danger to employers who adopt such policies.

Boom & Bust: OSHA Requires Workers in an Aerial Lift to Tie-Off

OSHA aerial lift tie off Alabama Employment Law
Employees who merely ride in an aerial lift are still required to tie-off.

Despite a creative argument from an employer, the Eleventh Circuit has found that employees are required to tie-off for fall protection when they are in an aerial lift.  Empire Roofing Co. v. Occupational Safety and Health Review Comm., No. 16-17309, 2017 WL 4708162 (11th Cir. Oct. 19, 2017).  In April 2013, an OSHA compliance officer inspected a work site where Empire Roofing was installing metal sheeting on the roof.  The officer saw Empire’s foreman standing in the basket of an aerial lift without being tied off to the boom or basket.  The foreman later admitted that he previously used the aerial lift to transport two employees to the roof.   OSHA fined Empire Roofing for a violation of the OSHA act, and Empire Roofing challenged that fine.

An OSHA regulation required that “[a] body belt shall be worn and a lanyard attached to the boom or basket when working from an aerial lift.”  29 C.F.R. § 1926.453(b)(2)(v).  Despite the fairly clear language of that regulation, Empire Roofing argued that its employees were not actually “working” from the lift.  Instead, they were merely “riding” in the lift.  Nevertheless, OSHA’s established interpretation of the term “working” found “[i]t is well established that employees are considered to be working any time they are performing work or work-related activities.  Moving from one work location to another is considered work-related activity.”  The Eleventh Circuit found that OSHA’s interpretation of that regulation was reasonable, and therefore deferred to OSHA.

Empire Roofing also tried to claim that it could not be responsible for the foreman’s “rogue conduct” in allowing the employees to ride in the aerial lift without tying off.  The Eleventh Circuit found that Empire Roofing would not have been liable if the foreman was the sole person riding in the lift without tying off.  But, because Empire Roofing gave the foreman control over other employees, and the foreman exposed those employees to danger, Empire Roofing was liable for transporting those employees in violation of the regulation.