Tag Archives: OSHA

OSHA ETS: What Health Care Providers Need to Know

Contributed By John R. Hayes, June 18, 2021

On June 10, 2021 OSHA issued its COVID-19 Emergency Temporary Standard (ETS) for the health care industry, along with general guidance for all other employers, which we already touched on in a previous post. However, there remains a lot to unpack, as there are many unanswered questions, especially for the health care field.  Below we dig a bit deeper into the ETS and its practical implications for health care providers.

Are you covered? The first question—and it is not as clear cut as it may seem—is whether the ETS applies to your business. OSHA has issued a flowchart to attempt to answer this question. However, it still remains murky for some. Generally, the ETS applies to settings where coronavirus patients are treated (including hospitals, nursing homes and assisted living facilities) and covers “all settings where any employee provides health care services or health care support services.” These are defined as:

  • Health care services are services that are provided to individuals by professional health care practitioners (doctors, nurses, emergency medical personnel, oral health professionals) for the purpose of promoting, maintaining, monitoring, or restoring health, and are delivered through various means including hospitalization, long-term care, ambulatory care, home health and hospice care, emergency medical response, and patient transport.
  • Health care support services are services that facilitate the provision of health care services, which include patient intake/admission, patient food services, equipment and facility maintenance, housekeeping services, health care laundry services, medical waste handling services, and medical equipment cleaning/reprocessing.

The ETS contains several exemptions to its coverage, and it does not apply to:

(1) the dispensing of prescriptions by pharmacists in retail settings;

(2) non-hospital ambulatory care settings (outpatient settings such as doctor’s offices) where all non-employees are screened before entering and people with suspected or confirmed COVID-19 are not allowed to enter;

(3) well-defined hospital ambulatory care settings and home health care settings where all employees are fully vaccinated, all non-employees are screened prior to entry, and people with suspected or confirmed COVID-19 are not permitted to enter those settings or are not present;

(4) health care support services not performed in a health care setting (off-site services); and

(5) telehealth services performed outside of a setting where direct patient care occurs. 

Moreover, in certain situations, such as where a health care setting is embedded with a non-health care provider (such as a medical clinic in a manufacturing facility), the ETS applies only to the embedded health care setting and not the other parts of the facility. 

Also, in well-defined areas in a health care setting where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present the ETS provisions for PPE, physical distancing, and physical barriers do not apply to fully vaccinated employees. To meet this exception, the COVID-19 plan for the employer must include policies and procedures to determine employee vaccination status.

ETS Mandates. If you are an entity covered by the ETS, then what exactly does it require of you? The main requirements are what you have likely had in place throughout the pandemic:

  • Development of a COVID-19 plan. This applies to all covered employers with 10 or more employees.
  • Provide PPE and ensure employees properly wear facemasks that meet OSHA standards when physical distancing is not possible.
  • Cleaning, disinfecting, installing barriers and maintaining social distancing. 
  • Follow general screening and management practices for COVID-19. 
  • Record Keeping/Reporting. Employers must retain all versions of their COVID-19 plan, log and record each instance an employee is COVID-19 positive whether or not the infection was at work, report each work-related COVID-19 fatality and in-patient hospitalization within 24 hours.
  • Vaccination PTO. Employers must provide reasonable time and paid leave for employees to receive COVID-19 vaccinations and recover from any side effects. OSHA defines “reasonable time” as four hours of paid leave for each dose, and 8 hours of leave for any side effects of the dose.
  • Training on the basics of COVID-19 and employer and workplace specific policies on all other ETS requirements, such as screening, cleaning, and sick leave policies.

Medical Removal Protection (MRP) Benefits. Employers with more than 10 employees must provide paid leave to employees if the employee is removed from the workplace under the ETS – basically if the employee is unable to work due to COVID-19 or COVID-19 exposure, regardless of whether the employee was exposed at work or outside the workplace.

  • For employers with more than 10 but fewer than 500 employees, the employee is entitled to their regular rate of pay, up to $1,400 per week for the first two weeks.  Beginning in the third week, if the removal continues that long, then the employee shall receive two-thirds the rate of their regular pay, up to $200 a day. 
  • For employers with 500 or more employees, the employer must pay up to the $1400 cap each week during the entire period of removal, until the employee meets the return to work criteria, which must be made in accordance with guidance from a licensed health care provider or applicable guidance from the CDC.
  • For all employers with more than 10 employees they must continue to provide the benefits to which the employee is normally entitled.
  • The employer is not required to provide overtime pay, even if the employee had regularly worked overtime hours in recent weeks.
  • The employer may reduce the amount paid to the removed employee by compensation the employee receives for lost earnings from any other source, such as employer-paid sick leave or other PTO.
  • For employers with fewer than 500 employees, tax credits are available under the American Rescue Plan for voluntarily provided COVID-19 sick leave through September 30, 2021.

Implementation Timeline. Covered employers must comply with most provisions of the standard within 14 days of publishing, and with the provisions regarding physical barriers, ventilation, and training within 30 days. OSHA states it will use its enforcement discretion to avoid citing employers who are making a good faith effort to comply with the ETS. However, OSHA has made no secret it is overall increasing its enforcement, and is encouraging more in-person inspections. Employers who believe they may be subject to the ETS should review it carefully and consult with experienced employment counsel regarding their obligations under the ETS.

OSHA Issues its Emergency COVID-19 Standard

Contributed By Matthew Horn, June 10, 2021

On June 10, OSHA issued its long-promised COVID-19 Emergency Temporary Standard (ETS).  Surprisingly, the ETS relates only to the healthcare industry, but updated guidance has been issued for all other industries, as outlined below:
 
Non-Healthcare Industries: For non-healthcare industries, including manufacturing and construction, OSHA only intends to continue issue guidance relating to COVID-19, including updated guidance on complying with the CDC’s latest recommendations. Notably, the updated guidance exempts fully vaccinated workers from wearing masks, distancing, and barrier requirements when in areas where there is no reasonable expectation that any person will be present with suspected or confirmed cases of COVID-19.
 
Healthcare Industry: The ETS applies strictly to the healthcare industry, and focuses on healthcare workers most likely to have contact with someone infected with the virus, including employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in ambulatory care settings—where suspected or confirmed COVID-19 patients are treated.
 
The ETS largely requires these facilities to continue to comply with precautions already in place, codifying well-known requirements such as conducting a hazard assessment, adopting a written COVID-19 plan, providing employees with PPE and respirators as appropriate, distancing, erecting barriers, screening entrants for COVID-19, disinfecting and sanitizing exposed areas, and others. The ETS does add a few new requirements, however, requiring employers to prepare a “COVID-19 log” listing all employee cases of COVID-19 and provide workers with paid time off to get vaccinated and recover from any side effects. Covered employees who have COVID-19 or who may be contagious must also be required to work remotely or quarantine, being provided paid time off, up to $1,400 per week. For most employers with fewer than 500 employees, these costs may be reimbursed through the provisions of the American Rescue Plan.
 
Notably, we expect OSHA to use the ETS – and the pandemic itself – as part of its on-going effort to unionize more employers in the healthcare industry. 

UPDATED: I Don’t Want to Wear a Mask…Part 4: OSHA Weighs In!

Contributed By Michael Wong, May 17, 2021

Blue medical face masks isolated on white

***On May 17, 2021, OSHA updated its web page regarding “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” to state the following:

“The Centers for Disease Control and Prevention (CDC) has issued new guidance relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of healthcare and a few other environments. OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.”

The CDC’s May 13, 2021 guidance “Interim Public Health Recommendations for Fully Vaccinated People” states that fully vaccinated people can “Resume activities without wearing masks or physically distancing, EXCEPT where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance. Fully vaccinated people should also continue to wear a well-fitted mask in correctional facilities and homeless shelters. Prevention measures are still recommended for unvaccinated people.”

However, the CDC has not made any changes to its workplace guidance regarding the use of masks. In particular, the CDC still advises employers to “encourage employees to wear face coverings in the workplace, if appropriate”, and does not differentiate between those who have been vaccinated and those who have not. 

Finally, even though the CDC and OSHA have issued this guidance, a patchwork of state and local policies or rules are popping up making it clear that an “across the board” mask-free workplace is not without legal risk for employers.

What does this mean for the workplace?

OSHA’s updated reference to the CDC’s guidance has essentially made this issue a little more clear. In doing so though, OSHA and the CDC has opened the door to employers and businesses allowing employees to be in the workplace without a mask, if they are fully vaccinated, but has not provided any guidance or direction on how to do so. The risk of OSHA issuing a fine or penalty on this issue has been reduced as long as the company is taking common sense steps to protect its employees, which could include (i) requiring verification or confirmation by employees that they have been fully vaccinated before allowing them to be mask free in the workplace; and (ii) modifying guidance to allow employees who have been vaccinated to not wear a mask in the workplace, unless interacting with or in a part of the business where there are customers, clients or the public.

In considering revised policies, employers should remember that there is still risk from workers’ compensation claims. While being vaccinated reduces the possibility of getting COVID-19, if an employee is not wearing a mask in the workplace and gets COVID-19, the employer could still face a workers’ compensation claim that the employee got COVID-19 at work. 

With respect to customers or clients coming into the business, the issue is even muddier, as the CDC and OSHA guidelines are unclear on what is expected of businesses and employers at this point. For example, if a business allows customers or clients into the business without a mask, do they have to verify that they have been vaccinated? Moreover, there is no guidance on what questions a business could ask a customer or client to confirm if he or she has been vaccinated. 

As such, this still means that training, education and communicating with employees and customers will be vital within the next few weeks and months. Many employees and customers will hear about the federal “unmasking,” but will not understand that it does not apply to employers or businesses based on state or local requirements or guidelines.

Training for employees should include methods on addressing, managing and de-escalating conflicts with customers and between employees. In particular, re-emphasizing and educating employees on how to communicate the business’ policies and more importantly the reason why the business’ policies may not have changed.

Finally, don’t forget that employer and business obligations regarding reasonable accommodation of disabilities and religious beliefs under the ADA and Title VII are still in place.

Due to the complexity and interplay of federal, state, local, tribal or territorial laws, rules and regulations, including CDC, OSHA and state and local health departments and governments, it is important to use legal counsel experienced and knowledgeable in labor and employment law to help you navigate these waters.

For further information on this matter, keep an eye out for our timely webcast, “Mask Mandate Mayhem! A Briefing for Confused Employers” on Monday, May 24th at Noon CT.  

I Don’t Want to Wear a Mask…Part 3: Land of the Mask Free and Home of the Brave

Contributed By Michael Wong, May 14, 2021

Blue medical face masks isolated on white

On May 13, 2021, the CDC issued new guidance stating that those who are fully vaccinated can resume activities without wearing a mask or social distancing. Following the CDC’s announcement, President Biden lifted the mask mandate that was required by staff and visitors of the White House.  

While the CDC has issued this guidance, a patchwork of state and local policies or rules are popping up making clear that we are not going to be mask free quite yet. More importantly, the CDC’s announcement contained a big “EXCEPTION” by stating “except where required by federal, state, local, tribal or territorial laws, rules and regulations, including local businesses and workplace guidance.”

To be clear, the CDC has not made any changes to its workplace guidance regarding the use of masks. The CDC guidance still advises employers to “encourage employees to wear face coverings in the workplace, if appropriate.” More importantly though for employers, OSHA still states that employers and businesses should require the use of face masks and emphasizes that “employers are responsible for providing a safe and healthy workplace free from recognized hazards likely to cause death or serious harm. In fact, President Biden’s “lifting of the mask mandate” for staff and visitors could potentially be considered a violation of CDC and OSHA guidance regarding workplaces.

Employer and business compliance with CDC and OSHA Guidelines is still very important, especially with the potential for fines. Recently, OSHA issued a $136,532 penalty and citation to a Massachusetts company for prohibiting employees and customers from wearing face coverings in the workplace and requiring employees to work within six feet of each other and customers for multiple hours while not wearing face coverings, finding that the company’s actions put its employees safety at risk of recognized hazards that are causing or likely to cause death or serious physical harm.

The issue gets even more complicated at the state and local level. Some states, including New York, New Jersey, North Carolina, and Maine, have advised that they will not be modifying their mask mandates at this time. Many other states, including Illinois, Kentucky, Minnesota, Nevada, Oregon, Pennsylvania, Connecticut, and California have begun adjusting their mask mandates and guidance (including setting dates for them to tentatively end).  While other states, including Alabama, Arkansas, Iowa, Mississippi, Montana, New Hampshire, and Texas, have already rescinded their statewide mask mandates. To make things even more confusing, even in the states that have rescinded the state wide mask mandates, some local governments have maintained mask mandates including those for employees and/or customers. Then to make it even more unclear, Indiana just passed a law stating that the decision regarding masks is now controlled by city councils and mayors/elected officials and not local health officers. At least one county in Indiana, Marion County, which covers Indianapolis and its surrounding suburbs, has already had its City Council vote to continue its mask mandate.

What does this mean For Businesses?
This means that businesses must still require employees to wear masks in the workplace and must still require customers coming into the business to wear masks unless otherwise allowed by state or local guidelines, and even then you are still required to comply with OSHA requirements.

This also means that training, education and communicating with employees and customers will be vital within the next few weeks and months. Many employees and customers will hear about the federal “unmasking,” but will not understand that it does not apply to employers or businesses based on state or local requirements or guidelines. Moreover, as OSHA has now made clear by fining businesses, there are repercussions for employers and businesses violating the face mask requirements and guidance. 

Training for employees should include methods on addressing, managing and de-escalating conflicts with customers and between employees. In particular, re-emphasizing and educating employees on how to communicate the business’ policies and more importantly the reason why the business’ policies have not changed. This is vitally important to avoid “viral videos” of confrontations as businesses will no longer be able to point to a presidential mandate or executive order to validate mask policies. Rather, businesses will have to educate employees and customers on federal, state and local requirements and guidelines for businesses and make clear that the “mask free” announcement for those with vaccinations are limited to public and social activities and not so much the workplace, business interactions and shopping. 

Finally, don’t forget that employer and business obligations regarding reasonable accommodation of disabilities and religious beliefs under the ADA and Title VII are still in place. 

Due to the complexity and interplay of federal, state, local, tribal or territorial laws, rules and regulations, including CDC, OSHA and state and local health departments and governments, it is important to use legal counsel experienced and knowledgeable in labor and employment law to help you navigate these waters.

Why You Need to Pay Attention to How the Feds Are Approaching the Meat and Poultry Processing Industry

Contributed by Beverly Alfon, April 28, 2020

While most employers do not take issue with CDC and OSHA recommendations related to hand washing, sanitizing, personal protective equipment (PPE), or even employee screening – the  social distancing aspect of these guidelines often provoke the greatest resistance from manufacturing employers:  “We’re just not set up to operate that way.”

Over the last few weeks, we have all seen the headlines regarding Smithfield, JBS, and Tyson.  The meat processing plants have become alleged hot beds for COVID-19, leading to plant closures.  Last week, Smithfield workers sued the company alleging that the company “in direct contravention of CDC guidelines,” provides insufficient personal protective equipment, forces workers to work shoulder to shoulder, and schedules their working time and breaks in a manner that forces workers to be crowded into cramped hallways and restrooms. Last week, Tyson Foods also closed its Waterloo plant in the face of a significant COVID-19 outbreak among its workers and an OSHA complaint filed by Iowa lawmakers. According to a USA Today article  published a week ago, the outbreaks have caused the closure of 17 U.S. facilities, including a Smithfield pork plant in South Dakota that handles 5% of U.S pork production. 

In response, the CDC and OSHA issued joint agency guidance for Meat and Poultry Processing Workers and Employers on April 26.  The agencies identified “distinctive” factors that increase workers’ risk for exposure to COVID-19 in these workplaces:

  • Distance between workers – workers often work close to one another on processing lines. Workers may also be near one another at other times, such as when clocking in or out, during breaks, or in locker/changing rooms.
  • Duration of contact – workers often have prolonged closeness to coworkers (e.g., for 10-12 hours per shift). Continued contact with potentially infectious individuals increases the risk of SARS-CoV-2 transmission.
  • Type of contact –workers may be exposed to the infectious virus through respiratory droplets in the air – for example, when workers in the plant who have the virus cough or sneeze. It is also possible that exposure could occur from contact with contaminated surfaces or objects, such as tools, workstations, or break room tables. Shared spaces such as break rooms, locker rooms, and entrances/exits to the facility may contribute to their risk.
  • A common practice at some workplaces of sharing transportation such as ride-share vans or shuttle vehicles, car-pools, and public transportation
  • Frequent contact with fellow workers in community settings in areas where there is ongoing community transmission.

However, these factors do not appear to be so distinct to the meat and poultry processing industry. Some or many of these conditions likely exist in any number of manufacturing  operations. Notably, these factors are all focused on a lack of physical distance between workers.

The events occurring within the meat and poultry processing industry should be a cautionary tale to all manufacturing employers who recognize any of the above factors within their operations and workforce. While some of these recommendations may require herculean efforts during this time of overstretched resources, some consideration should be given to the potential costs of a COVID-19 outbreak among employees, OSHA investigation, production shutdown, and litigation aimed a enforcing these non-mandatory guidelines. 

Breaking news:  Just hours ago, President Trump indicated that he intends to use the Defense Production Act issue to order meat and poultry (and likely other types of food) processing plants to remain open as the country is starting to see food-supply disruptions from the COVID-19 outbreak. This comes on the heels of the declaration from Tyson Foods Chairman John Tyson that the U.S food supply chain “is breaking.”  President Trump has indicated that the executive order will “solve any liability problems,” so as to shield meat plants from legal liability if they are sued by employees who contract COVID-19 while on the job.  Media reports also indicate that the executive order will include provisions for additional protective gear for employees, guidance, and virus testing capacity. This is a developing matter and we will continue to monitor it. 

OSHA & COVID-19

Contributed by guest author Matt Horn, March 24, 2020

Our clients continue asking us the same two questions about COVID-19 as it pertains to their obligations under OSHA. We include those questions and our answers below:

1. What does OSHA expect me to do to prevent the spread of COVID-19 to my employees?

Answer:  OSHA has provided guidance on steps employers can take to prevent the spread of COVID-19 in the workplace. This guidance appears to relate largely to employers outside of the healthcare industry. Industry associations have also put out their own guidance, including the AGC. The AGC guidance provides practical, common-sense advice, including: 1) ensure people who are sick are kept from the site; 2) provide employees with clean, accessible facilities to go to the bathroom and wash their hands (with soap); 3) keep employees spread out; 4) do not require people to meet in large groups; 5) do not maintain a common water cooler or coffee station; and 6) clean and sanitize whenever and to the extent possible.

For those employers in the healthcare industry and others heavily impacted COVID-19, OSHA has also compiled a list of Standards that apply to COVID-19. The most obvious and important Standard relates to providing employees with the PPE necessary to protect them from exposure, including gloves, face and eye protection, and respiratory protection.

2. If one of my employees gets COVID-19, do I need to record or report it to OSHA?

Answer: OSHA has indicated that it will require employers to record and report employee COVID-19 cases in certain circumstances. Three factors must be met in order for an employee case of COVID-19 to apply: 1) an employee has a confirmed case of COVID-19; 2) the case is work-related; and 3) the case involves one or more of the general recording or reporting criteria (i.e. medical treatment beyond first aid, days away from work, hospitalization, death, etc.). As to the second prong, in order for a case to be work-related, the employee has to actually be infected at work—it is not enough that he/she contracts the disease outside of work and displays symptoms at work. 

Clearly, this obligation impacts the healthcare industry the most, since its employees are most likely to contract a confirmed case of COVID-19 at work; however, it has the ability to impact all employers. For those employers in the healthcare industry, it would seem that the best way to avoid this recording or reporting obligation is to provide employees with the necessary PPE as mandated by OSHA, and for those employers outside of the healthcare industry, it would seem that the best way to avoid this obligation is to ensure that employees who have COVID-19 are not allowed to work and infect others.

UPDATED 11/22/2017: Deadline to Electronically Submit OSHA Data

Contributed by Matthew Horn, November 21, 2017

BREAKING NEWS: In follow up to our blog from yesterday, OSHA issued a press release this morning extending the deadline to electronically report from 12/1 to 12/15. All other information in the blog remains unchanged.
___________________

On June 27, 2017, OSHA issued a press release announcing that it would be delaying the compliance date for its Rule requiring most employers to electronically submit their injury and illness data to OSHA. The press release pushed back the compliance date four months, from July 1, 2017 to December 1, 2017, so OSHA could review the Rule closely.

Dec1Just over two weeks later, OSHA issued another press release announcing that it would be launching its website allowing employers to submit their injury and illness data on August 1, 2017. On August 1, 2017, OSHA made good on that promise and launched its website, which is linked here. To date, despite OSHA’s promise to review the Rule closely, it has taken no action to roll back or delay the electronic reporting requirements, so the December 1st deadline remains.

Under the Rule, virtually all employers with twenty or more employees are required to submit their completed Form 300A for 2016 by December 1, 2017. In 2018, employers with twenty or more employees must submit their completed Form 300A for 2017 by July 1, 2018, and those employers with more than 250 employees must submit their Form 300 and 301s by that deadline, as well.

While we were hoping OSHA would roll back or delay the Rule, it appears that is not going to happen. Accordingly, all applicable employers would be well-served submitting their data online no later than December 1st.

OSHA Charges Ahead With Electronic Report Rule

Contributed by Matthew Horn, August 2, 2017

Electronic Reporting File_2On June 27, 2017, OSHA issued a press release announcing that it would be delaying the compliance date for its Rule requiring most employers to electronically submit their injury and illness data to OSHA. The press release proposed pushing the compliance date back four months, from July 1, 2017 to December 1, 2017, so OSHA could review the Rule closely.

Just over two weeks later, OSHA issued another press release announcing that it would be launching its website allowing employers to submit their injury and illness data on August 1, 2017. On August 1, 2017, OSHA made good on that promise and launched its website, which is linked here.

Under the Rule, virtually all employers with twenty or more employees are required to submit their completed Form 300A for 2016 by December 1, 2017. In 2018, employers with twenty or more employees must submit their completed Form 300A for 2017 by July 1, 2018, and those employers with more than 250 employees must submit their Form 300 and 301s by that deadline, as well.

Notably, despite moving forward with the launch of its injury tracking website, OSHA has yet to address the “review” of the Rule it promised in its June 27, 2017 press release. Accordingly, employers would be well-served to wait to submit their 300A data until shortly before the December 1, 2017 deadline to see if OSHA changes course on the Rule before that deadline. Mark your calendars.

Three Needless Deaths: Recognize Confined Space Dangers on Your Job Sites

Contributed by Patrick M. Sanders, July 24, 2017

Construction Site

Supervisor using walkie-talkie at construction site

On July 14, 2017, the U.S. Department of Labor’s Occupational Safety and Health Administration cited a contractor for 10 serious violations after the deaths of three workers who succumbed to toxic gases in a manhole on January 16, 2017.

Preventable safety failures led to the deaths of Elway Gray, a 34-year-old pipe layer, who entered the manhole – a confined space – and quickly became unresponsive; Louis O’Keefe, a 49-year-old laborer, who entered the hole in an attempt to rescue Gray; and Robert Wilson, a 24-year-old equipment operator, who followed to rescue his two fallen coworkers. Two other employees and a firefighter were also exposed to the toxic gases during rescue attempts but survived.

Post-incident atmospheric testing of the confined space revealed lethal levels of carbon monoxide and hydrogen sulfide. OSHA investigators issued Douglas N. Higgins, Inc. and its related contracting company, serious citations, totaling $119,507, in penalties.

The incident-related serious violations included failure to:

  • Purge or ventilate the confined space before entry;
  • Prevent workers from exposure to an asphyxiation hazard;
  • Provide necessary rescue and emergency equipment for employees that were overcome inside a permit-required confined space;
  • Develop and implement a written hazard communication program for a worksite on which employees were exposed to dangerous chemicals and gases;
  • Use a calibrated direct-reading device to test for toxic gases, creating an asphyxiation hazard;
  • Create and document the confined space entry permit;
  • Provide training to employees in the safe performance of their assigned duties in permit-required confined spaces; and
  • Provide a guardra­­­il around the manhole opening, exposing employees to a fall hazard.

Full citations may be found here.

OSHA Area Director Condell Eastmond’s comments were all too familiar: “Three employees needlessly lost their lives and others were injured due to their employer’s failure to follow safe work practices.”

This case should remind all employers that confined spaces within the workplace often present difficult and involved identification, training, written program management and compliance documentation retention issues.

What responsibility do companies have to ensure that their contractors protect their workers?

Those organizations that have a record of previous “serious” violations must be aware OSHA will rigorously enforce employee training, workplace safety information requirements, toxic workplace condition testing and all related rescue and emergency safety equipment regulations and will issue repeat, willful and, in extreme cases, criminal violations, should subsequent violations be documented by OSHA.

UPDATE: OSHA DELAYS ENFORCEMENT OF ITS CONTROVERSIAL POST-ACCIDENT DRUG TESTING RULE UNTIL DECEMBER 1, 2016

Contributed by Jonathan Hoag, October 18, 2016

As we previously reported, OSHA postponed enforcement of its controversial post-accident drug testing rule from August 10, 2016 to November 1, 2016.  Now, with the November 1, 2016 deadline approaching, OSHA has extended its stay on enforcing the post-drug testing rule until December 1, 2016.

OSHA initially delayed enforcement of the rule until November 1, 2016 because a lawsuit was filed in July 2016 by numerous parties seeking injunctive relief to prevent enforcement of the rule. OSHA agreed to postpone enforcement of the rule to allow the parties to brief the legal issues presented in the lawsuit. The legal briefing was completed in September 2016.  While the Judge was reviewing the case to determine if OSHA should be enjoined from enforcing its rule, OSHA claimed that the plaintiffs were only seeking injunctive relief on behalf of the parties to the lawsuit and not on a national basis.

On October 14, 2016, the Judge determined that the parties should further brief the issue as to whether the injunction sought was only on behalf of the parties to the lawsuit or if it would apply nationwide. The Judge requested that OSHA delay enforcement of the rule until December 1, 2016 to allow time for a decision on the pending lawsuit. Today, OSHA informed the court that it has agreed to a further delay and it has advised all regions of the decision to delay enforcement until December 1, 2016. The court intends to make a determination on the request for an injunction prior to the December 1, 2016 deadline. If an injunction is entered, the court will also decide if it prohibits enforcement nationwide or only with respect to the parties.

Employers should continue with preparations to comply with OSHA’s new rule. For more in depth coverage, join us for a webinar on this topic on October 19, 2016 from 10:30 a.m. – 12:00 p.m. or for an in-person seminar in Effingham, Illinois on October 20, 2016.