Supreme Guts Agencies Like OSHA, DOL, FTC, EEOC, and NLRB

 You may not have been paying attention to the Supreme Court's recent decision about fishing, but it's yuuuge. They overturned a ruling from 1984 saying that courts must defer to federal agencies' reasonable interpretations of federal statutes. This is commonly referred to as "Chevron deference" or the "Chevron defense," in case you hear those terms. And on first blush, you're probably asking yourself what the heck a case about fishing regulations has to do with employment law.

The answer is: a lot.

This year, federal agencies under the Biden administration have actively taken actions that benefit workers. I've written about some of these. NLRB has said that noncompete and nonsolicitation agreements mostly violate the National Labor Relations Act, that many handbooks contain illegal provisions, and that advocating for non-employees is legally protected against retaliation. EEOC has posted updated guidelines on harassment, pregnant workers, and visual disabilities. The FTC has banned most noncompete agreements (litigation pending). OSHA has posted guidelines about wildfire smoke and other workplace safety issues. The Department of Labor has posted guidelines on which employees are independent contractors. Even the Treasury Department got into the act and issued a report blasting noncompete agreements. 

These are just a few of the many pro-employee actions taken by the Biden Administration's federal agencies.

To make things even more difficult the Supremes also gutted the 5 year statute of limitations that Congress passed for challenging agency regulations, so companies that want to challenge old rules just have to form a new entity and sue away. The courts will soon be overwhelmed with these lawsuits.

For workers, this means that every single pro-employee regulation will be challenged, no matter how old. I guess the good news is that unions can step into the fray and start challenging old anti-employee regulations. There will be no settled federal law on many important employment law issues for years to come, thanks to this ruling.

Vote well, friends.

What Rights Do Workers Have During Heavy Wildfire Smoke?

It looks like wildfire smoke is becoming a fact of life for many Americans. What rights do you have if your workplace is in one of the dangerously smoky areas? 

OSHA actually has a web page about wildfires. It says, among other things, “Each employer is responsible for the safety and health of its workers and for providing a safe and healthful workplace for its workers. Employers are required to protect workers from the anticipated hazards associated with the response and recovery operations for wildfires that workers are likely to conduct.”

They have a detailed Response page that includes links to requirements for many types of hazards. That page includes a link to a California publication on smoke.

 That publication discusses what steps can be taken by employers to protect both indoor and outdoor workers. For outdoor workers:

Options for limiting workers’ smoke exposure include postponing or shortening time spent outdoors; focusing on only performing high priority tasks; relocating workers or rescheduling work tasks to smoke-free or less smoky areas or times of the day; reducing outdoor workers’ physical activity and exertion levels; encouraging and ensuring workers take frequent breaks inside cleaner air spaces such as enclosed structures or vehicles with recirculating air; and encouraging and using air cleaners with HEPA (or other protective) filters in indoor working areas to reduce overall smoke exposure. In some cases, the use of particulate respirators should be considered to protect workers who cannot implement the exposure reduction recommendations listed above when performing outdoor work (see additional information below). Workers involved in post-fire cleanup activities clearly must be protected from exposure to ash and all other hazards (see sections pertaining to after-fire hazards) by using a range of control methods (e.g., dust suppression, personal protective equipment). When other measures are not sufficient to control a respiratory hazard, OSHA requires employers to provide respirators that are appropriate for the hazard and work situation. An OSHA-compliant respirator program names a qualified person responsible for administering the program and describes procedures for respirator selection, medical evaluation for safe respirator use, fit testing for tightfitting respirators, training on topics such as how to use and maintain respirators, and program evaluation.

But the publication also states: “The Occupational Safety and Health Administration (OSHA) is the regulatory entity for employee health and safety but, in about half of the states, a federal OSHA-approved state OSHA program regulates non-federal workplaces. There are currently no occupational standards specifically for wildfire smoke, except in California.”

For indoor workers, they state: “HVAC systems should be operated continuously while occupied in order to provide the minimum quantity of outdoor air for ventilation, as required by the standards or building codes to which the building was designed. For many office buildings, this is often in the range of 15–20 cubic feet per minute (cfm) per person, although it could be less in older buildings.” They provide details on what steps need to be taken to inspect and repair HVAC systems to protect from smoke. They provide additional information for protection of indoor workers: “In addition to assessing and if necessary modifying the function of the HVAC system, employers are encouraged to take other reasonable steps to reduce employee exposure to smoke, including alternate work assignments or relocation and telecommuting. Some buildings rely on open windows, doors, and vents for outdoor air, and some may have mechanical ventilation systems that lack a functioning filtration system to remove airborne particles. In these cases, the employees may need to be relocated to a safer location. Employees with asthma, other respiratory diseases, or cardiovascular diseases, should be advised to consult their physician for appropriate measures to minimize health risks. Respirators, such as N95s and other filtering facepiece respirators, may provide additional protection to some employees against environmental smoke. Employees whose work assignments require the use of respirators must be included in a respiratory protection program (including training, medical evaluations, and fit testing).”

New York, where wildfire smoke recently wreaked havoc, does have a Division of Safety and Health as part of their Department of Labor but I’m not finding anything specific relating to smoke hazards. They do have a website here: https://dol.ny.gov/safety-and-health

The bottom line is that it looks like New York and many other states don’t have specific safety standards on outdoor smoke, but they probably should. Employees nationwide are covered by OSHA. Here's what OSHA says generally about workplace safety:

You have the right to a safe workplace. The Occupational Safety and Health Act of 1970 (OSH Act) was passed to prevent workers from being killed or seriously harmed at work. The law requires that employers provide their employees with working conditions that are free of known dangers. OSHA sets and enforces protective workplace safety and health standards. OSHA also provides information, training and assistance to workers and employers. Workers may file a complaint to have OSHA inspect their workplace if they believe that their employer is not following OSHA standards or that there are serious hazards. Contact OSHA at 1-800-321-OSHA (6742) if you have questions or want to file a complaint. We will keep your information confidential. We are here to help you.

Most of the OSHA-specific standards regarding smoke involve workplace fires. But employers need to protect employees from hazardous conditions, and that includes wildfire smoke. Employers need to take sensible precautions to protect employees. For employees who have medical conditions that place them at high risk for smoke exposure, they need to consider measures such as remote work, alternate assignments, relocation, respirators, and filters. For indoor employees who aren’t particularly vulnerable, employers still need to protect indoor workers with functional HVAC systems, filtration, PPE if necessary, and relocation or remote work as necessary. For outdoor workers, employers should be providing respirators, frequent breaks into clean air spaces, and any other protective equipment necessary.

If you feel you are being put in unsafe conditions, notify OSHA and ask them to inspect the workplace. OSHA has a page about when you can refuse to perform work. It says:

If you believe working conditions are unsafe or unhealthful, we recommend that you bring the conditions to your employer's attention, if possible.

You may file a complaint with OSHA concerning a hazardous working condition at any time. However, you should not leave the worksite merely because you have filed a complaint. If the condition clearly presents a risk of death or serious physical harm, there is not sufficient time for OSHA to inspect, and, where possible, you have brought the condition to the attention of your employer, you may have a legal right to refuse to work in a situation in which you would be exposed to the hazard. (OSHA cannot enforce union contracts that give employees the right to refuse to work.)

Your right to refuse to do a task is protected if all of the following conditions are met:

§  Where possible, you have asked the employer to eliminate the danger, and the employer failed to do so; and

§  You refused to work in "good faith." This means that you must genuinely believe that an imminent danger exists; and

§  A reasonable person would agree that there is a real danger of death or serious injury; and

§  There isn't enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

You should take the following steps:

§  Ask your employer to correct the hazard, or to assign other work;

§  Tell your employer that you won't perform the work unless and until the hazard is corrected; and

§  Remain at the worksite until ordered to leave by your employer.

If your employer retaliates against you for refusing to perform the dangerous work, contact OSHA immediately. Complaints of retaliation must be made to OSHA within 30 days of the alleged reprisal. To contact OSHA call 1-800-321-OSHA (6742) and ask to be connected to your closest area office. No form is required to file a discrimination complaint, but you must call OSHA.

In a situation involving wildfire smoke, I would expect that very few situations outside the range of the actual fire rise to the level of presenting a risk of death or serious physical harm unless you have an underlying health condition, so I’d recommend that most workers follow the steps OSHA requires: Bring it to the employer’s attention. If they don’t fix it or provide appropriate protective equipment or otherwise eliminate the danger, file a complaint with OSHA and ask for an inspection. 

Only if the work is so dangerous that you are risking serious physical harm should you refuse to do the work. 

If your employer retaliates for reporting them to OSHA, report the retaliation to OSHA or contact an employee-side employment lawyer in your state.

Ian Alert: You Don't Have To Work In Dangerous Post-Hurricane Conditions

After a storm, I usually get lots of calls and emails about employers making employees work in conditions they deem unsafe so I thought I'd repost this for those affected by Ian. In general, you don't have to work in unsafe conditions. Here's what OSHA says about workplace safety:

You have the right to a safe workplace. The Occupational Safety and Health Act of 1970 (OSH Act) was passed to prevent workers from being killed or seriously harmed at work. The law requires that employers provide their employees with working conditions that are free of known dangers. OSHA sets and enforces protective workplace safety and health standards. OSHA also provides information, training and assistance to workers and employers. Workers may file a complaint to have OSHA inspect their workplace if they believe that their employer is not following OSHA standards or that there are serious hazards. Contact OSHA at 1-800-321-OSHA (6742) if you have questions or want to file a complaint. We will keep your information confidential. We are here to help you.

OSHA also has a flyer about safety during disaster cleanup here. Some basic safety rules:

• Keep an adequate amount of clean water for drinking.
• Make sure workers are trained to do any complex or hazardous tasks.
• Provide the proper equipment such as gloves, respirators, boots, lifting equipment and eye protection.

A host of other specific fact sheets are here. Some particularly useful ones for hurricanes are:

• Hand hygiene and gloves in flooded areas.
• Chart of hazards and protective measures to take.
• Working outdoors in warm climates.
• Protecting workers from the effects of heat.
• Debris removal guidelines.

Bottom line for employers is: don't be stupid. Don't have employees in business attire climbing ladders and removing debris. Make sure employees are properly dressed. Don't cheap out and try to use your clerical employees to move downed trees or work around downed power lines. The lawsuit you will face when someone is seriously injured or killed will cost you way more than hiring the correct folks for the job.

The worker's page for reporting problems and with more resources is here.

By the way, if your "exempt" employees are doing debris removal or other scut work, they probably aren't exempt from overtime for that work. But that's another issue for another day.

What To Expect In #Employment Law In 2022

 If you are a regular reader, you've probably noticed that I haven't done any predictions in the past few years. Because how could anything have possibly been predicted? But employment law is becoming more predictable now, and I think it's time to take a deep breath and do my Cassandra bit. Here are my predictions for 2022:

1.    More pro-employee NLRB: We've already seen this with some very pro-employee, pro-union decisions coming down regarding Amazon, Starbucks, and other unionization attempts. As the year progresses, we'll see NLRB cracking down on employer retaliation and union busting efforts. We'll also be back to seeing more pro-employee decisions on non-union "concerted activity" retaliation.

2.    EEOC will re-energize: They were cut to the bone in budget and staffing under the last administration, so it's taking a bit for them to bounce back. They'll also focus on issues like sexual orientation that got pushed aside under the last administration. I hope they'll fully staff the mediation divisions, because those folks are really terrific at settling cases.

3.    Supremes go anti-employee: Unfortunately, while the agencies will be more pro-employee, the courts are going to take a sharp anti-employee turn. Look for really pro-management decisions on the federal level.

4.    Paralysis on noncompetes: Even though President Biden issued an executive order asking the federal agencies to focus on noncompetes, there's little the agencies can do without legislation. Congress won't do anything. Neither will the Florida legislature. Maybe some pro-employee states will limit or ban noncompetes. Some have done it already. Will more follow?

5.    Sexual harassment crackdown: With President Biden's order criminalizing sexual harassment in the military, the issue will get more attention. Where the military goes, usually goes the rest of the nation, so we should see some more crackdown on sexual harassers.

6.    COVID, COVID, COVID: The virus will continue to be an issue. OSHA will continue to try to get employers to maintain safe workplaces. The Supremes and the right wing will continue to fight. Florida will continue to be the Wild West. 

7.    More unions: As NLRB becomes more employee-friendly, we'll see more unionization attempts. Once Amazon is forced to allow a union (and it will happen this year), employees of other workplaces previously thought impossible will begin efforts to unionize. Some will succeed. The Great Resignation has made employees more conscious of working conditions. They'll continue to fight to be treated fairly. Union busters will make a fortune this year as employers try to fight back.

8.    Disability discrimination: Now that employees realize that it's easy to work remotely, and now that employers want employees back in the office, we'll see more disability discrimination cases. Employees who seek remote work as a reasonable accommodation will face resistance, but employers will lose the argument that granting the accommodation is a hardship. After all, they had a year or more of remote work very successfully. 

9.    Zoom: I don't know about you, but I love Zoom. Having to do a 2 - 3 hour round trip for a 5 minute hearing is a huge waste of resources. Judges like it because they have more control. For non-evidentiary hearings, Zoom will remain in many courtrooms. We'll also continue to see more Zoom depositions and mediations, which work very well on that platform. This will make attendance by employees much less onerous. They won't miss as much work, for one. In employment law, it will be a huge benefit. I find that employees are way more likely to settle in a Zoom mediation where they feel comfortable and more relaxed. Employers will also continue to utlize Zoom or similar platforms for meetings rather than having employees commute from remote locations. 

10.    Anti-employee laws: We'll see some extreme anti-employee laws in red states as the right wing pushes to be more and more extreme. Expect some laws attacking LGBT folks, abortion, marijuana, protests, and free speech. Some of these laws will give employers extra protection against lawsuits for terminating employees for their activities outside of work.

Well, that's about all I think I can predict for now. Let's see how I do. It's still crazy out there, but hopefully things will get a bit more normal as 2022 progresses.

Florida and Feds in Vaccine Mandate War - So Far Florida Wins

 I posted previously about OSHA's vaccine mandate. Now, OSHA has temporarily suspended enforcement, due to the 5th Circuit Court of Appeals' entry of a temporary injunction against enforcement. OSHA will appeal, but in the meantime, states like Florida are hurrying to implement let's-kill-our-constituents laws to ban vaccine mandates.

Florida has passed a law banning private corporations from mandating vaccines in the workplace unless they allow exceptions for religion and disability, mask-wearing, having immunity, periodic testing, and pregnancy (federal law already has exemptions for religion, disability and pregnancy):

 A private employer may not impose a COVID-19 96 vaccination mandate for any full-time, part-time, or contract employee without providing individual exemptions that allow an employee to opt out of such requirement on the basis of medical reasons, including, but not limited to, pregnancy or anticipated pregnancy; religious reasons; COVID-19 immunity; periodic testing; and the use of employer-provided personal protective equipment. 

The law details how to claim each exemption, and imposes fines on employers for noncompliance.

In the meantime, there is also the issue of mandates for healthcare workers. So far, the Administration has continued to enforce such mandates. The Supreme Court refused to enjoin enforcement. However, the 5th Circuit, which does not include Florida, did enjoin enforcement in 10 states, and another court which enjoined enforcement in Kansas. If resisting vaccine mandates for healthcare workers isn't the most idiotic and dangerous thing I've ever heard of, it's close. I certainly don't, as a consumer/patient, want any healthcare worker who isn't vaccinated anywhere near me.

Then there's the mandate for federal contractors. One court has enjoined enforcement in Ohio, Kentucky, and Tennessee.

So, there's a mishmash of state laws, and there are a bunch of folks challenging every single vaccine mandate. Vaccines save lives, so the folks pushing these challenges are going to get people killed. But right now, it looks like the mandates are losing. 

Hopefully the Supremes will decide that the federal government does indeed have the right and duty to protect its citizens. Otherwise, anti-vaxers will start challenging other vaccines. Welcome back polio, smallpox, and other diseases we thought were gone. 

Let sanity commonsense prevail.

OSHA Requires Vaccines or Testing For Employees of Large Employers

 OSHA has issued an emergency temporary standard to address COVID in the workplace. This standard is in addition to the previously-issued guidelines on mitigating COVID. The emergency standard applies only to workplaces with 100 or more employees, whereas the guidelines apply to all employers. However, the standard is mandatory and the guidlines are just recommendations for best practices. A summary of the standard is here.

When does it start: I keep seeing articles saying the standard doesn't start until January 4, but I believe this is only partially correct. It says this about when it starts:

The ETS is effective immediately upon publication in Federal Register [this will be November 5]. To comply, employers must ensure provisions are addressed in the workplace by the following dates: 

• 30 days after publication: All requirements other than testing for employees who have not completed their entire primary vaccination dose(s)
• 60 days after publication: Testing for employees who have not received all doses required for a primary vaccination 

So, as I read this, all requirements other than the testing kick in on December 5, and the testing requirement starts January 4.

Preemption: This standard preempts state and local laws to the contrary. So it should immunize employers from Florida and other states' penalties for demanding proof of vaccines.

No retaliation or discrimination: Employers are prohibited from discharging or in any manner discriminating against any employee for reporting a work-related injury or illness; from discriminating against employees for exercising rights under, or as a result of actions required by, the ETS; and from retaliation for filing an occupational safety or health complaint, reporting a work-related injury or illness, or otherwise exercising any rights afforded by the OSH Act.

Here's what the standard requires no later than December 5:

Vaccine policy: Employers must have a mandatory vaccine policy that allows employees to opt out, but requiring employees opting out to be tested weekly and to mask.

Vaccine status: Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.

Paid time off: Employers must give 4 hours paid time off to obtain the vaccine and "reasonable" paid time off/sick leave to recover from side effects of the vaccine.

Notification of positive test: Employers must: (1) require employees to promptly provide notice when they receive a positive COVID19 test or diagnosis; (2) immediately remove any employee with COVID from the workplace, regardless of vaccination status; (3) keep removed employees out of the workplace until they meet criteria for returning to work.

Masks for unvaccinated: Employers must require unvaccinated employees to wear masks that cover both nose and mouth when indoors or when occupying a vehicle with another person for work purposes. A face shield can be worn in addition to a mask, but not instead of. The employee can wear a respirator instead of a mask.

No mask prevention: Employers must allow any employee, customer, or visitor, vaccinated or not, to wear a mask unless a mask would create a serious workplace hazard such as interfering with the functioning of equipment.

Information to employees: Employers must provide employees, in a language and at a literacy level the employees understand: (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document “Key Things to Know AboutCOVID-19 Vaccines”; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

Records available to employees: Employers must make available to the employee or a representative the employee's vaccine documentation and test results. Even more interesting, employers have to make available to employees or representatives the aggregate number of fully vaccinated employees at the workplace along with the total number of employees at that workplace.

Here's what the standard requires no later than January 4:

Weekly testing for unvaccinated: Employers must mandate employees who aren't vaccinated to have weekly COVID testing. Employers do not have to pay for this testing. 

This means that low income employees will have few options, even if they qualify for a disability or religious exemption. The vaccine is free, but testing is not. Employers can voluntarily assume the costs, but don't have to, with exceptions. 

Employment agreements could require employers to pay for testing. Unions may have collective bargaining agreements that require employers to pay, which is another great argument for unionizing. 

There could also be state and local laws requiring employers to pay. Not in Florida, of course, because the Florida legislature and governor aren't about to help employees anytime soon.

For information on what exemptions apply and whether you can be fired for refusing to be vaccinated, see my post Can My Employer Make Me Get Vaccinated?

OSHA Guidance For Workplaces With Unvaccinated Workers

 OSHA has issued its guidance for workplaces that still have unvaccinated workers. Among other things, they want employers to grant paid time off for workers to get vaccinated. Here's what they say on this:

Except for workplace settings covered by OSHA's ETS and mask requirements for public transportation, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated. Employers should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces. 2

Employers should engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated or otherwise at-risk workers and mitigate the spread of COVID-19, including:

1. Grant paid time off for employees to get vaccinated. The Department of Labor and OSHA, as well as other federal agencies, are working diligently to ensure access to COVID-19 vaccinations. CDC provides information on the benefits and safety of vaccinations. Businesses with fewer than 500 employees may be eligible for tax credits under the American Rescue Plan if they provide paid time off for employees who decide to receive the vaccine and to recover from any potential side effects from the vaccine.

2. Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work to prevent or reduce the risk of transmission of the virus that causes COVID-19. Ensure that absence policies are non-punitive. Eliminate or revise policies that encourage workers to come to work sick or when unvaccinated workers have been exposed to COVID-19. Businesses with fewer than 500 employees may be eligible for refundable tax credits under the American Rescue Plan if they provide paid time off for sick and family leave to their employees due to COVID-19 related reasons. The ARP tax credits are available to eligible employers that pay sick and family leave for qualified leave from April 1, 2021, through September 30, 2021. More information is available from the IRS.

3. Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas. A key way to protect unvaccinated or otherwise at-risk workers is to physically distance them from other unvaccinated or otherwise at-risk people (workers or customers) – generally at least 6 feet of distance is recommended, although this is not a guarantee of safety, especially in enclosed or poorly ventilated spaces.

   Employers could also limit the number of unvaccinated or otherwise at-risk workers in one place at any given time, for example by implementing flexible worksites (e.g., telework); implementing flexible work hours (e.g., rotate or stagger shifts to limit the number of such workers in the workplace at the same time); delivering services remotely (e.g., phone, video, or web); or implementing flexible meeting and travel options, all for such workers.

   At fixed workstations where unvaccinated or otherwise at-risk workers are not able to remain at least 6 feet away from other people, transparent shields or other solid barriers (e.g., fire resistant plastic sheeting or flexible strip curtains) can separate these workers from other people. Barriers should block face-to-face pathways between individuals in order to prevent direct transmission of respiratory droplets, and any openings should be placed at the bottom and made as small as possible. The posture (sitting or standing) of users and the safety of the work environment should be considered when designing and installing barriers, as should the need for enhanced ventilation.

4. Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE. Such workers should wear a face covering that covers the nose and mouth to contain the wearer's respiratory droplets and help protect others and potentially themselves. Face coverings should be made of at least two layers of a tightly woven breathable fabric, such as cotton, and should not have exhalation valves or vents. They should fit snugly over the nose, mouth, and chin with no large gaps on the outside of the face. CDC provides general guidance on masks.

   Employers should provide face coverings to unvaccinated and otherwise at-risk workers at no cost. Under federal anti-discrimination laws, employers may need to provide reasonable accommodation for any workers who are unable to wear or have difficulty wearing certain types of face coverings due to a disability or who need a religious accommodation under Title VII. In workplaces with employees who are deaf or hard of hearing, employers should consider acquiring masks with clear coverings over the mouth for unvaccinated and otherwise at-risk workers to facilitate lip-reading.

   Unless otherwise provided by federal, state, or local requirements, unvaccinated workers who are outdoors may opt not to wear face coverings unless they are at-risk, for example, if they are immunocompromised. Regardless, all workers should be supported in continuing face covering use if they choose, especially in order to safely work closely with other people.

   When an employer determines that PPE is necessary to protect unvaccinated and otherwise at-risk workers, the employer must provide PPE in accordance with relevant mandatory OSHA standards and should consider providing PPE in accordance with other industry-specific guidance. Respirators, if necessary, must be provided and used in compliance with 29 CFR 1910.134 (e.g., medical determination, fit testing, training on its correct use), including certain provisions for voluntary use when workers supply their own respirators, and other PPE must be provided and used in accordance with the applicable standards in 29 CFR 1910, Subpart I (e.g., 1910.132 and 133). There are times when PPE is not called for by OSHA standards or other industry-specific guidance, but some workers may have a legal right to PPE as a reasonable accommodation under the ADA. Employers are encouraged to proactively inform employees who have a legal right to PPE as a reasonable accommodation for their disability about how to make such a request. Other workers may want to use PPE if they are still concerned about their personal safety (e.g., if a family member is at higher-risk for severe illness, they may want to wear a face shield in addition to a face covering as an added layer of protection). Encourage and support voluntary use of PPE in these circumstances and ensure the equipment is adequate to protect the worker.

   For operations where the face covering can become wet and soiled, provide unvaccinated and otherwise at-risk workers with replacements daily or more frequently, as needed. Face shields may be provided for use with face coverings to protect them from getting wet and soiled, but they do not provide protection by themselves. See CDC's Guide to Masks.

   Employers with workers in a setting where face coverings may increase the risk of heat-related illness indoors or outdoors or cause safety concerns due to introduction of a hazard (for instance, straps getting caught in machinery) may wish to consult with an occupational safety and health professional to help determine the appropriate face covering/respirator use for their setting.

5. Educate and train workers on your COVID-19 policies and procedures using accessible formats and in language they understand. Train managers on how to implement COVID-19 policies. Communicate supportive workplace policies clearly, frequently, and via multiple methods to promote a safe and healthy workplace. Communications should be in plain language that unvaccinated and otherwise at-risk workers understand (including non-English languages, and American Sign Language or other accessible communication methods, if applicable) and in a manner accessible to individuals with disabilities. Training should be directed at employees, contractors, and any other individuals on site, as appropriate, and should include:
   1. Basic facts about COVID-19, including how it is spread and the importance of physical distancing (including remote work), ventilation, vaccination, use of face coverings, and hand hygiene.

   2. Workplace policies and procedures implemented to protect workers from COVID-19 hazards.

   For basic facts, see About COVID-19 and What Workers Need to Know About COVID-19, above and see more on vaccinations, improving ventilation, physical distancing (including remote work), PPE, and face coverings, respectively, elsewhere in this document. Some means of tracking which workers have received this information, and when, could be utilized, by the employer, as appropriate.

   In addition, ensure that workers understand their rights to a safe and healthful work environment, whom to contact with questions or concerns about workplace safety and health, and their right to raise workplace safety and health concerns free from retaliation. This information should also be provided in a language that workers understand. (See Implementing Protections from Retaliation, below.) Ensure supervisors are familiar with workplace flexibilities and other human resources policies and procedures.

6. Suggest that unvaccinated customers, visitors, or guests wear face coverings, especially in public-facing workplaces such as retail establishments, if there are unvaccinated or otherwise at-risk workers in the workplace who are likely to interact with these customers, visitors, or guests. This could include posting a notice or otherwise suggesting unvaccinated people wear face coverings, even if no longer required by your jurisdiction. Individuals who are under the age of 2 or are actively consuming food or beverages on site need not wear face coverings.

7. Maintain Ventilation Systems. The virus that causes COVID-19 spreads between people more readily indoors than outdoors. Improving ventilation is a key engineering control that can be used as part of a layered strategy to reduce the concentration of viral particles in indoor air and the risk of virus transmission to unvaccinated workers in particular. Some measures to improve ventilation are discussed in CDC's Ventilation in Buildings and in the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace. These recommendations are based on ASHRAE Guidance for Building Operations During the COVID-19 Pandemic. Adequate ventilation will protect all people in a closed space. Key measures include ensuring the HVAC system(s) is operating in accordance with the manufacturer's instructions and design specifications, conducting all regularly scheduled inspections and maintenance procedures, maximizing the amount of outside air supplied, installing air filters with a Minimum Efficiency Reporting Value (MERV) 13 or higher where feasible, maximizing natural ventilation in buildings without HVAC systems by opening windows or doors, when conditions allow (if that does not pose a safety risk), and considering the use of portable air cleaners with High Efficiency Particulate Air (HEPA) filters in spaces with high occupancy or limited ventilation.

8. Perform routine cleaning and disinfection. If someone who has been in the facility within 24 hours is suspected of having or confirmed to have COVID-19, follow the CDC cleaning and disinfection recommendations. Follow requirements in mandatory OSHA standards 29 CFR 1910.1200 and 1910.132, 133, and 138 for hazard communication and PPE appropriate for exposure to cleaning chemicals.

9. Record and report COVID-19 infections and deaths: Under mandatory OSHA rules in 29 CFR 1904, employers are responsible for recording work-related cases of COVID-19 illness on OSHA's Form 300 logs if the following requirements are met: (1) the case is a confirmed case of COVID-19; (2) the case is work-related (as defined by 29 CFR 1904.5); and (3) the case involves one or more relevant recording criteria (set forth in 29 CFR 1904.7) (e.g., medical treatment, days away from work). Employers must follow the requirements in 29 CFR 1904 when reporting COVID-19 fatalities and hospitalizations to OSHA. More information is available on OSHA's website. Employers should also report outbreaks to health departments as required and support their contact tracing efforts.

   In addition, employers should be aware that Section 11(c) of the Act prohibits reprisal or discrimination against an employee for speaking out about unsafe working conditions or reporting an infection or exposure to COVID-19 to an employer. In addition, mandatory OSHA standard 29 CFR 1904.35(b) also prohibits discrimination against an employee for reporting a work-related illness.

   Note on recording adverse reactions to vaccines: DOL and OSHA, as well as other federal agencies, are working diligently to encourage COVID-19 vaccinations. OSHA does not want to give any suggestion of discouraging workers from receiving COVID-19 vaccination or to disincentivize employers' vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904's recording requirements to require any employers to record worker side effects from COVID-19 vaccination through May 2022. OSHA will reevaluate the agency's position at that time to determine the best course of action moving forward. Individuals may choose to submit adverse reactions to the federal Vaccine Adverse Event Reporting System.

10. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards: Section 11(c) of the OSH Act prohibits discharging or in any other way discriminating against an employee for engaging in various occupational safety and health activities. Examples of violations of Section 11(c) could include discriminating against employees for raising a reasonable concern about infection control related to COVID-19 to the employer, the employer's agent, other employees, a government agency, or to the public, such as through print, online, social, or any other media; or against an employee for voluntarily providing and safely wearing their own PPE, such as a respirator, face shield, gloves, or surgical mask.

    In addition to notifying workers of their rights to a safe and healthful work environment, ensure that workers know whom to contact with questions or concerns about workplace safety and health, and that there are prohibitions against retaliation for raising workplace safety and health concerns or engaging in other protected occupational safety and health activities (see educating and training workers about COVID-19 policies and procedures, above); also consider using a hotline or other method for workers to voice concerns anonymously.

11. Follow other applicable mandatory OSHA standards: All of OSHA's standards that apply to protecting workers from infection remain in place. These mandatory OSHA standards include: requirements for PPE (29 CFR 1910, Subpart I (e.g., 1910.132 and 133)), respiratory protection (29 CFR 1910.134), sanitation (29 CFR 1910.141), protection from bloodborne pathogens: (29 CFR 1910.1030), and OSHA's requirements for employee access to medical and exposure records (29 CFR 1910.1020). Many healthcare workplaces will be covered by the mandatory OSHA COVID-19 Emergency Temporary Standard. More information on that standard is available on the OSHA website at [link]. Where the ETS does not apply, employers are required under the General Duty Clause, Section 5(a)(1) of the OSH Act, to provide a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm .

The full guidance, which includes other requirements for workplaces during COVID, is here. 

You Don't Have To Work In Dangerous Post-Hurricane Conditions

After a storm, I usually get lots of calls and emails about employers making employees work in conditions they deem unsafe so I thought I'd repost this for those affected by Dorian. In general, you don't have to work in unsafe conditions. Here's what OSHA says about workplace safety:

You have the right to a safe workplace. The Occupational Safety and Health Act of 1970 (OSH Act) was passed to prevent workers from being killed or seriously harmed at work. The law requires that employers provide their employees with working conditions that are free of known dangers. OSHA sets and enforces protective workplace safety and health standards. OSHA also provides information, training and assistance to workers and employers. Workers may file a complaint to have OSHA inspect their workplace if they believe that their employer is not following OSHA standards or that there are serious hazards. Contact OSHA at 1-800-321-OSHA (6742) if you have questions or want to file a complaint. We will keep your information confidential. We are here to help you.

OSHA also has a flyer about safety during disaster cleanup here. Some basic safety rules:

• Keep an adequate amount of clean water for drinking.
• Make sure workers are trained to do any complex or hazardous tasks.
• Provide the proper equipment such as gloves, respirators, boots, lifting equipment and eye protection.

A host of other specific fact sheets are here. Some particularly useful ones for hurricanes are:

• Hand hygiene and gloves in flooded areas.
• Chart of hazards and protective measures to take.
• Working outdoors in warm climates.
• Protecting workers from the effects of heat.
• Debris removal guidelines.

Bottom line for employers is: don't be stupid. Don't have employees in business attire climbing ladders and removing debris. Make sure employees are properly dressed. Don't cheap out and try to use your clerical employees to move downed trees or work around downed power lines. The lawsuit you will face when someone is seriously injured or killed will cost you way more than hiring the correct folks for the job.

The worker's page for reporting problems and with more resources is here.

By the way, if your "exempt" employees are doing debris removal or other scut work, they probably aren't exempt from overtime for that work. But that's another issue for another day.

You Don't Have To Work In Dangerous Post-Hurricane Conditions

After a storm, I usually get lots of calls and emails about employers making employees work in conditions they deem unsafe. In general, you don't have to work in unsafe conditions, so I'm re-posting this for those affected by Florence. Here's what OSHA says about workplace safety:

You have the right to a safe workplace. The Occupational Safety and Health Act of 1970 (OSH Act) was passed to prevent workers from being killed or seriously harmed at work. The law requires that employers provide their employees with working conditions that are free of known dangers. OSHA sets and enforces protective workplace safety and health standards. OSHA also provides information, training and assistance to workers and employers. Workers may file a complaint to have OSHA inspect their workplace if they believe that their employer is not following OSHA standards or that there are serious hazards. Contact OSHA at 1-800-321-OSHA (6742) if you have questions or want to file a complaint. We will keep your information confidential. We are here to help you.

OSHA also has a flyer about safety during disaster cleanup here. Some basic safety rules:

• Keep an adequate amount of clean water for drinking.
• Make sure workers are trained to do any complex or hazardous tasks.
• Provide the proper equipment such as gloves, respirators, boots, lifting equipment and eye protection.

A host of other specific fact sheets are here. Some particularly useful ones for hurricanes are:

• Hand hygiene and gloves in flooded areas.
• Chart of hazards and protective measures to take.
• Working outdoors in warm climates.
• Protecting workers from the effects of heat.
• Debris removal guidelines.

Bottom line for employers is: don't be stupid. Don't have employees in business attire climbing ladders and removing debris. Make sure employees are properly dressed. Don't cheap out and try to use your clerical employees to move downed trees or work around downed power lines. The lawsuit you will face when someone is seriously injured or killed will cost you way more than hiring the correct folks for the job.

The worker's page for reporting problems and with more resources is here.

By the way, if your "exempt" employees are doing debris removal or other scut work, they probably aren't exempt from overtime for that work. But that's another issue for another day.

OSHA Protects You From Dangerous Working Conditions Post-Hurricane

I'm getting lots of calls and emails about employers making employees work in conditions they deem unsafe. Here's what OSHA says about workplace safety:

You have the right to a safe workplace. The Occupational Safety and Health Act of 1970 (OSH Act) was passed to prevent workers from being killed or seriously harmed at work. The law requires that employers provide their employees with working conditions that are free of known dangers. OSHA sets and enforces protective workplace safety and health standards. OSHA also provides information, training and assistance to workers and employers. Workers may file a complaint to have OSHA inspect their workplace if they believe that their employer is not following OSHA standards or that there are serious hazards. Contact OSHA at 1-800-321-OSHA (6742) if you have questions or want to file a complaint. We will keep your information confidential. We are here to help you.

OSHA also has a flyer about safety during disaster cleanup here. Some basic safety rules:

• Keep an adequate amount of clean water for drinking.
• Make sure workers are trained to do any complex or hazardous tasks.
• Provide the proper equipment such as gloves, respirators, boots, lifting equipment and eye protection.

A host of other specific fact sheets are here. Some particularly useful ones for hurricanes are:

• Hand hygiene and gloves in flooded areas.
• Chart of hazards and protective measures to take.
• Working outdoors in warm climates.
• Protecting workers from the effects of heat.
• Debris removal guidelines.

Bottom line for employers is don't be stupid. Don't have employees in business attire climbing ladders and removing debris. Make sure employees are properly dressed. Don't cheap out and try to use your clerical employees to move downed trees or work around downed power lines. The lawsuit you will face when someone is seriously injured or killed will cost you way more than hiring the correct folks for the job.

The worker's page for reporting problems and with more resources is here.

By the way, if your "exempt" employees are doing debris removal or other scut work, they probably aren't exempt from overtime for that work. But that's another issue for another day.

What #Employmentlaw Regulations Will Trump Scrub?

As the inauguration gets closer, the new Trump Administration is making lots of promises about what they intend to do. Apparently number one on the list is undoing as many of the Obama Administration's Regulations and Executive Orders as they can. I already talked about some Executive Orders that benefit employees of federal contractors that are at risk. So what else may disappear or change soon?

Here are some employment-related regulations to keep an eye on:

• OSHA retaliation procedures: OSHA has issued new procedures for handling retaliation complaints under various laws, such as Procedures for the Handling of Retaliation Complaints Under Section 1558 of the Affordable Care Act. 
• Federal unemployment rules: DOL implements rules on federal unemployment compensation, which provides extra compensation to the unemployed during periods of high unemployment. The latest, Federal-State Unemployment Compensation Program; Implementing the Total Unemployment Rate as an Extended Benefits Indicator and Amending for Technical Corrections; Final Rule, could be in for a change. Other rule changes on unemployment to watch for will be those relating to drug testing of applicants.
• Overtime regulations: DOL regulates minimum wage and overtime rules. The latest rule changes could be overturned. Watch for changes to, for example, Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees.
• Safety regulations: OSHA has tightened safety standards on many industries. These include the very recent Occupational Exposure to Respirable Crystalline Silica; Correction and Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems).
• Social Security disability: Whether you qualify for disability benefits can be determined by very specific rules. Some recent ones at risk include Unsuccessful Work Attempts and Expedited Reinstatement Eligibility, Revised Medical Criteria for Evaluating Mental Disorders, and Revised Medical Criteria for Evaluating Neurological Disorders.
• EEOC: The Equal Employment Opportunity Commission issues regulations and guidance for determining whether various types of illegal discrimination have occurred. Some recent changes include Regulations Under the Americans With Disabilities Act and Genetic Information Nondiscrimination Act.
• Federal Employee ethics rules: We just saw the attempt to limit ethics requirements in Congress. Some ethics rules to watch include Standards of Ethical Conduct for Employees of the Executive Branch; Amendment to the Standards Governing Solicitation and Acceptance of Gifts from Outside Sources and Interpretation, Exemptions and Waiver Guidance Concerning the Federal Criminal Conflict of Interest Statute Prohibiting Acts Affecting a Personal Financial Interest; Amendment to Definition of “Employee”.

These are just some examples of the many, many executive branch regulations that could change soon. The truth is that nobody has any idea what the new administration will actually do. Both employers and employees are justifiably nervous about what may happen in the next four years. Stay tuned.

President Obama Orders Contractors To Disclose Labor Violations, Stop Mandatory Arbitration

In a gutsy and controversial move, President Obama signed an executive order placing new tough restrictions on federal contractors. If your employer contracts with the federal government it may have to disclose all labor violations in order to bid, and also have to stop mandating arbitration of employment disputes.

The pre-bid disclosure language is tough. It requires anyone bidding for a contract of $500,000 or greater to disclose:

[A]ny administrative merits determination, arbitral award or decision, or civil judgment, as defined in guidance issued by the Department of Labor, rendered against the offeror within the preceding 3-year period for violations of any of the following labor laws and
Executive Orders (labor laws):
(A) the Fair Labor Standards Act;
(B) the Occupational Safety and Health Act of
1970;
(C) the Migrant and Seasonal Agricultural Worker
Protection Act;
(D) the National Labor Relations Act;
(E) 40 U.S.C. chapter 31, subchapter IV, also known as the Davis-Bacon Act;
(F) 41 U.S.C. chapter 67, also known as the Service Contract Act;
(G) Executive Order 11246 of September 24, 1965
(Equal Employment Opportunity);
(H) section 503 of the Rehabilitation Act of
1973;
(I) 38 U.S.C. 3696, 3698, 3699, 4214, 4301-4306, also known as the Vietnam Era Veterans' Readjustment Assistance Act of 1974;
(J) the Family and Medical Leave Act;
(K) title VII of the Civil Rights Act of 1964;
(L) the Americans with Disabilities Act of 1990;
(M) the Age Discrimination in Employment Act of
1967;
(N) Executive Order 13658 of February 12, 2014
(Establishing a Minimum Wage for Contractors); or
(O) equivalent State laws, as defined in guidance issued by the Department of Labor.

This means employers won't be able to hide under the confidentiality of arbitrations any longer. They'll have to disclose safety violations, unpaid wages and discrimination/retaliation violations. Employers won't have to disclose settlements, so this will be an extra incentive for them to resolve claims quickly.

The arbitration language will be pretty easy for employers to get around. It only applies if the bid is for a contract of $1 million or more, and it doesn't apply if the employee has an arbitration agreement in place before the bid is made. You can expect employers to start racing around demanding employees sign arbitration agreements right before the bid goes out. However, employers whose contracts say they can change the terms of the contract (which most of them say) will still be out of luck on mandatory arbitration, so you may still be able to force them into court.

There are some other nice provisions of this order, like paycheck transparency and providing guidance to contractors to help them improve, so if you want to see the whole order, it's here.

This order comes on the heels of orders requiring contractors to pay a minimum of $10.10/hour, stop discriminating based on sexual orientation, and stop retaliating against employees who compare and discuss pay.

The message is clear: the United States is going to stop wasting taxpayer dollars on companies that don't comply with U.S. laws. It's about time.

9 Things Every Teen Should Know About Workplace Rights

If you're in high school or college, odds are you're looking for a summer job or internship. Maybe you're even working during the school year. Of course, your school gave you detailed preparation on what your legal rights are when you work. Right? Ha. Not a chance. Schools do roughly zip to prepare teens for the real world workplace. You have to figure this stuff out on your own.

Well, I'm here to help. I wrote last week about sexual harassment, but there's more you need to know. If you're new to the workplace or getting ready to apply for an internship, this is the article for you.

If you are the parent, relative, guardian or friend of a teen who is about to enter the workforce, do them a favor and print, tweet, email (do teens email?), text, Instagram or Pinterest this to them. (You can probably forget about Facebooking it to them since they all fled when their parents got on Facebook.)

Read my article 9 Things Every Teen Should Know About Workplace Rights to find out what your high school or college probably didn't teach you about workplace rights.

Are You One Cold (Or Super Bowl Flu) Away From Being Fired?

It's cold and flu season, so you may be sick right now. It's likely you'll be sick at some point this year. Maybe you'll suffer from Super Bowl flu on Monday after too much partying on Sunday (or your boss will assume you partied too much if you call in sick Monday).

So what are your rights? Can you be fired for being out sick? What if you have a doctor's note? Connecticut and six cities (Jersey City, NJ; New York City; Portland, OR; San Francisco, CA; Seattle, WA; and Washington, DC) have paid sick leave laws. Nebraska and California legislators recently introduced bills to require employers to give paid sick leave. If you don't live in any of these places, you could possibly be out of luck.

My latest article at AOL Jobs discusses the legal rights you have if you call in sick, and what to do if you are told you'll be fired if you miss work. Don't forget those flu shots!

A Brief Introduction To Labor Law Poster Requirements In The U.S.

I’m taking a small breather this week and have a guest blogger, talking about the important but little-discussed issue of mandatory posters in the workplace. Please welcome my guest, Ivy Liu of Easy Business Posters. This company provides posters to employers that will fulfill state and federal requirements. While you can definitely comb through the various federal and state requirements to do it yourself, companies like Easy Business Posters can make compliance really simple. Here’s the scoop on poster requirements, from an expert.

By: Ivy Liu, Easy Business Posters

For every business operating in the U.S., it is mandatory to display posters related to labor law. Even companies with only one employee must display current federal and state law posters in the work area. Special regulations have been outlined by federal and state governments on the display of required employment posters. It is essential for a company to know about posters required to keep employees well informed about their rights and laws.

Not all companies are required to display each poster. The type of posters that are required to be posted can vary according to the industry, business type and total employees. The regulations pertaining to the posting of posters can also depend on the state, as every state has its own posting requirements. If, during inspection, a company is found not adhering to state and federal regulations, then it might result in fines and penalties for non-compliance.

Place of display: The posters should be displayed in a location where they are easily accessible to the employees and it is possible for all to see them. Some of the most common places where posters are displayed include lobby areas, bulletin boards and break rooms.

Language: Another important consideration that businesses have to keep in mind is that labor law posters should have information, not only in English, but also in languages that all the employees understand. State vs. federal requirements: Labor law posters of states are different from federal posters, as each state has different laws. Information about specific laws of the state is present on these posters and they have to be displayed along with posters of federal law. The U.S. Department of Labor offers an online advisor to small and new businesses and compliance assistance, about requirements related to workplace posters. The posters that are required to be displayed in every workplace include topics like discrimination or harassment, health and safety, insurance benefits for unemployed, minimum wage, along with other emergency information.

OSHA: Posters of OSHA or the Occupational Safety and Health Administration have information related to the safety and health of the employees.

Department of Labor: Posters issued by DOL have detailed content about minimum wage, family leave, disability rights and other such information about legal topics. Apart from the ones mentioned above there are other posters as well that a business might be required to display, according to its type and location.

Keeping current: Businesses are required to not only display the posters, but they should keep them updated as well. Posters that are required to be displayed in employee work areas should be updated from time to time, as the laws concerning safety and health requirements, labor laws and minimum wage are revised every once in a while. Thus it is essential for business owners to keep themselves updated about the latest changes and display the mentioned posters accordingly. To get the latest information about the labor laws and keep oneself updated, it is advised to check government and industry websites regularly. For state posters, you will need to check the requirements in each state where you have a worksite. For instance, New York and Pennsylvania have websites listing their poster requirements.

Not only can you be fined for not complying with poster requirements, but failing to have required posters could be used as evidence in a discrimination, minimum wage, or workpace safety case to prove violations were intentional. While poster requirements don’t seem like they’re a huge deal to employers, failing to comply can have huge consequences.

Author Bio:

As an employee herself, Ivy Liu pays primary attention to her employment rights and studies the employment laws whenever possible. Ivy Liu likes to share her findings and help those who are concerned about employment issues through writing articles on employment posters, minimum wage, workplace security and other topics. For more labor law information, please follow her on twitter: https://twitter.com/MandatoryPoster