Hunton Employment & Labor Perspectives

With 2025 around the corner and a (new) presidential administration pending, employers should be aware of the potential agency actions. Please join Hunton Andrews Kurth employment, labor, and immigration attorneys to review what is currently pending, what might change, and what to watch.

Please join Hunton Andrews Kurth’s workplace safety attorneys for a complimentary webinar on Tuesday, October 29.  Our team will provide a complimentary CLE, A Year in Occupational Safety and Health Law - Workplace Violence, Heat, Marijuana, HazCom and More.

Earlier this month, the U.S. Department of Labor's Occupational Safety and Health Administration (“OSHA”) went live with its Severe Injury Report Dashboard (“SIR Dashboard”).

On July 2, 2024, the Occupational Safety and Health Administration (OSHA) released a long-awaited proposed rule to prevent heat-related injuries and illnesses in the workplace.  OSHA initiated the rulemaking process in October 2021 as part of its ongoing heat-related illness prevention initiative.

On October 30, 2023, President Biden issued a wide-ranging Executive Order to address the development of artificial intelligence (“AI”) in the U.S.  Entitled the Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, the Order seeks to address both the “myriad benefits” as well as what it calls the “substantial risks” that AI poses to the country. It caps off a busy year for the Executive Branch in the AI space. In February the Equal Employment Opportunity Commission published its Strategic Enforcement Plan highlighting AI ...

The National Labor Relations Board (NLRB) and the Occupational Safety Health Administration (OSHA) recently signed a Memorandum of Understanding (MOU) to coordinate investigations and enforcement actions between the two agencies.  The MOU is the latest step by OSHA to blur the lines between workplace safety law and labor law, and could result in more workplace citations from OSHA or unfair labor practice charges filed with the NLRB.

In September 2023, OSHA announced a proposed rule that would allow an outside third party selected by employees to accompany an OSHA compliance safety ...

Please join Hunton Andrews Kurth LLP for a complimentary webinar:

Up In Smoke – Cannabis and the Workplace

Thursday, October 19, 2023

12:00–1:00 pm ET

11:00 am–12:00 pm CT

9:00–10:00 am PT

The Occupational Safety and Health Administration (“OSHA”) recently announced a Notice of Proposed Rulemaking that would make it easier for non-employee representatives to participate in worksite inspections.

OSHA compliance safety and health officers (CSHOs) regularly conduct worksite inspections, colloquially known as “walk-arounds,” as part of their investigation of safety complaints or pursuant to OSHA emphasis programs.  Current regulations allow employees to select a representative of their choosing to accompany the CSHOs on such inspections, as long as ...

On May 1, 2023, the U.S. Department of Labor (“DOL”) announced that its Occupational Safety and Health Administration (“OSHA”) launched a new National Emphasis Program (“NEP”) to prevent or otherwise reduce workplace falls (the “Fall NEP”).  In its press release, OSHA claims that workplace falls are the “leading cause of fatal workplace injuries and the violation the agency cites most frequently in construction industry inspections.”  While the Fall NEP took effect on May 1, 2023, there is a 90-day outreach period, meaning that programmed inspections will first begin on or around July 30, 2023.  The Fall NEP has no expiration date, but it will be reviewed within six months of issuance to determine its effectiveness and whether it will be continued.

The Occupational Safety and Health Administration is finally poised to implement a permanent COVID-19 safety standard for healthcare employers, nearly three years after the pandemic first began in the United States.

California COVID-19 safety rules are here to stay.

The California Occupational Safety and Health Standards Board voted on December 15 to enact a new COVID-19 prevention regulation that imposes a number of familiar workplace safety requirements on California employers.  The regulations will become effective in mid-January 2023 after a 30-day review period and remain in effect for at least two years. 

On September 15, 2022, the United States Department of Labor (“DOL”) announced an update to the Occupational Health and Safety Administration’s (“OSHA”) Severe Violator Enforcement Program (“SVEP”).

The Centers for Disease Control (“CDC”) announced major changes to its COVID-19 guidance on August 13, providing additional flexibility for employers seeking a return to normal operations after the pandemic.

Please join Hunton Andrews Kurth LLP for a complimentary webinar:

OSHA 2022 – Mid-Year Report

Thursday, June 23, 2022

3:00–4:00 pm ET

2:00–3:00 pm CT

12:00–1:00 pm PT

Please join labor and employment attorneys, Susan Wiltsie, partner, and Reilly Moore, associate, in a discussion on the current state of OSHA regulatory initiatives, enforcement efforts, agency trends and other developments, including COVID-19.

Presenters:

Susan F. Wiltsie, Partner, Hunton Andrews Kurth

Reilly C. Moore, Associate, Hunton Andrews Kurth

Additional information available ...

On January 25, 2022, OSHA withdrew the COVID-19 vaccination and testing Emergency Temporary Standard (“ETS”), ending the litigation regarding the OSHA vaccine mandate.

The Supreme Court has granted a temporary stay of the OSHA Emergency Temporary Standard (ETS), otherwise known as the OSHA vaccine mandate. The Court ruled that OSHA had exceeded the authority delegated to it by Congress under the Occupational Safety and Health Act. In making this finding, the Court held that OSHA only has the authority to issue workplace safety standards, not broad health measures. The concurring opinion focused upon the “major questions doctrine,” which requires Congress to speak clearly when delegating authority of “vast economic and political significance” to an administrative agency.

On November 10, 2021, National Labor Relations Board (“NLRB”) General Counsel Jennifer Abruzzo issued a memorandum outlining employers’ bargaining obligations with respect to compliance with OSHA’s Emergency Temporary Standard to Protect Workers from Coronavirus (“ETS”).

Employers with 100 or more employees must implement mandatory vaccination policies by early December under the Emergency Temporary Standard released by OSHA.

Federal contractors can make their own determinations on vaccination exemptions and do not need to terminate employees who refuse vaccination, according to new guidance from the Biden Administration.

Private employers with 100 or more employees will face sweeping new requirements related to COVID-19 vaccination and testing under a plan announced by President Joe Biden on September 9.

On August 13, 2021, the U.S. Department of Labor’s (“DOL”) Occupational Safety and Health Administration (“OSHA”) updated its guidance for employers in an effort to further protect workers from SARS-CoV-2, the virus that causes COVID-19 (“COVID”).  This update (the “Guidance”) reflects recent COVID developments, including the increased spread of the Delta variant and the July 27, 2021 Centers for Disease Control and Prevention’s (“CDC”) updated guidance, and is intended to help employers protect workers who are:  unvaccinated or partially vaccinated, otherwise at-risk, and/or fully vaccinated but located in areas of substantial or high community transmission.

The New York State Department of Labor released its anticipated airborne infectious disease standard and sample plan on July 6.  Employers have until August 5, 2021 to adopt or create a plan to comply with the standard.

Beginning June 15, 2021, Governor Newsom moved forward with his plan to lift public health restrictions on businesses, including capacity limitations, physical distancing, and face coverings.  In response, Cal/OSHA also has issued new workplace standards for COVID-19 prevention.

On June 10, 2021, fifteen months into the COVID-19 pandemic, the United States Labor Department’s Occupational Safety and Health Administration (“OSHA”) has issued its first ‘emergency temporary standard’ (“ETS”) governing the impact of COVID-19 on health care workers.

The ETS broadly requires healthcare employers to conduct an internal safety assessment and develop a safety plan, which must be in writing for all employers with more than 10 employees. The ETS further delineates requirements relating to patient screening and management, health precautions, masks and PPE,  aerosol-generating procedures, physical distancing, physical barriers, cleaning and disinfection, ventilation, health screening, vaccination, employee training, anti-retaliation, record-keeping, reporting occurrences of COVID-19 transmission, and paying employees for periods of quarantine. Consistent with recent CDC guidance, the ETS also contains carve outs on employee mask-wearing requirements where employees are all vaccinated or where employees are given reasonable accommodations exempting them from mask-wearing and/or vaccination requirements.

President Joseph R. Biden on April 12 nominated current Cal/OSHA Chief Doug Parker to lead federal OSHA.  If confirmed, employers should prepare for the potential that California-style enforcement may reach the federal law.

President Biden has pledged to make improved working conditions a central tenet of his administration, including support for changes to federal OSHA and the National Labor Relations Act.  Parker’s nomination is consistent with a trend towards increased enforcement of employers by federal regulators.

On March 22, 2021, Marty Walsh, the two-term Boston mayor, was confirmed as the Labor Secretary by the United States Senate in a 68-29 vote.  He becomes the first union leader to run the Department of Labor (the “DOL”) in over four decades.

Workplace safety will be one area that we can expect to undergo significant change under Walsh.  Recently, the Occupational Safety and Health Administration (“OSHA”) released a new National Emphasis Program (“NEP”) that permits OSHA to conduct programmed inspections of the risk of worker exposure to COVID-19.  The employers covered by the NEP are those OSHA considers as those where employees have a higher likelihood of close-contact exposure.  The NEP includes language regarding employer outreach and compliance assistance; but, it is clear the primary emphasis will be on inspection targeting.

In response to the ongoing spread of COVID-19 in California, Governor Gavin Newsom signed AB 685.  In short, AB 685 imposes uniform notice requirements on California employers dealing with a potential COVID-19 exposure or outbreak, requires employers to maintain records of COVID-19 notices, and empowers the Division of Occupational Health and Safety (“Cal OSHA”) to close down worksites where the risk of exposure to COVID-19 constitutes an imminent hazard to employees.

Virginia became the first state in the country to pass a workplace safety standard specific to COVID-19 on July 15.  It includes hazard assessment, communication and training requirements, depending on the types of tasks employees perform at work.

An interdisclipinary effort navigating all aspects of workplace hazards, safety and compliance through all phases of the global health pandemic.

Since the beginning of the pandemic, Hunton Andrews Kurth LLP has been advising some of the largest companies in the country regarding COVID-19 in the workplace, including assisting companies in developing workplace policies and procedures, advising on compliance with agency guidance and shutdown orders, assessing future claims risk and developing mitigation strategies to reduce risk. As the inevitable first wave of COVID-19 ...

On May 1, 2020, the Occupational Safety and Health Administration (OSHA) released an OSHA Alert for restaurants and beverage service businesses providing curbside and takeout service during the pandemic.  This Alert is one in a series of industry-specific alerts that OSHA has published, and will continue to publish, to assist and educate businesses that will re-open (or that continued to operate), and which recommends certain measures to protect employees and patrons during the COVID-19 pandemic.

The Centers for Disease Control and Occupational Safety and Health Administration collaborated to release new guidance for employers in the meat processing industry on April 26.

OSHA and the CDC noted several unique facets of meat processing work that exposed workers to increased likelihood of COVID-19 transmission at work, including close contact, the duration of the close contact, shared tools and surfaces and the frequency of ride-sharing and community-based interactions among employees.  As a result, the organizations released additional guidance to help employers keep employees safe, even as they continue to work to keep the food supply chain running.

Although the World Health Organization (“WHO”) has declared the coronavirus outbreak a “public health emergency of international concern,” WHO has not yet declared the outbreak as a pandemic. Nevertheless, the emergence of the latest coronavirus is an opportunity for employers, as it reminds them to consider policies and procedures related to pandemic planning.  The following are a few of the key considerations for employers when planning for or responding to an outbreak.

California Labor Code §2802 requires employers to reimburse employees for all “necessary expenditures” incurred by an employee in the discharge of his or her duties. Business travel expenses fall into this category, as do uniforms, and even the portion of personal cell phone costs that can be attributed to business use. Thus, theme-based businesses that clothe employees in specialized uniforms or costumes (like the sailor outfits in Season 3 of Stranger Things) must provide those specialized outfits or reimburse employees for the expenses incurred in buying and maintaining them.

As California braces for wildfire season, the California Division of Occupational Safety and Health (“CalOSHA”) approved an emergency regulation on July 30, 2019, that requires California employers to monitor air quality for particle pollution, and reduce workers exposure to the potential harmful pollutants from wildfire smoke.

What Is Particle Pollution or Particle Matter?

The Air Quality Index (“AQI”) is calculated for four major air pollutants regulated by the Clean Air Act: ground level ozone, particle pollution, carbon monoxide and sulfur dioxide. The new regulation is aimed at protecting workers from certain particle pollution, also called particulate matter or PM. There are two types of PM – fine particles (2.5 micrometers or less in diameter, referred to as PM2.5) and course particles (particles between 2.5 and 10 micrometers in diameter, referred to as PM10). The new regulation is directed only at the fine particles, or PM2.5, which are produced from all types of combustion, including wildfires. 

Each year, the California Chamber of Commerce (“Chamber”) identifies proposed state legislation that the Chamber believes “will decimate economic and job growth in California.”  The Chamber refers to these bills as “Job Killers.” In March, the Chamber identified the first two Job Killers of 2019: AB 51 and SB 1. Both bills would negatively impact retailers in California. You can view the Chamber’s Job Killer site here.

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Last August, we reported on OSHA’s proposed rulemaking regarding electronic submissions of workplace injuries and illnesses in our blog entitled, “OSHA Issues Proposed Rule Regarding Electronic Submission Requirements.” OSHA has since issued a final rule which became effective on February 25, 2019.

The new rule rescinds the requirement that employers with 250 or more employees, or employers in certain high-hazard industries, electronically submit information from OSHA Form 300 (Log of Work-Related Injuries or Illnesses) and OSHA Form 301 (Injury and Illness Incident Report).  Affected employers must still maintain Forms 300 and 301 on-site and make them available for OSHA inspection, if requested.  Employers covered by the rule now only are obligated to submit Form 300A (Summary of Work-Related Injuries and Illnesses) annually.

A memorandum recently released by the Occupational Safety and Health Administration (OSHA) has clarified the agency’s position on whether safety incentive programs and post-accident drug testing would be considered retaliatory pursuant to its controversial recordkeeping rule published on May 12, 2016.  This rule prohibits employers from retaliating against employees who report work-related injuries or instituting procedures that could chill employees from reporting work-related injuries. In the accompanying interpretative documents, OSHA specifically identified workplace safety incentive programs and post-accident drug testing policies as procedures that were likely to deter employee reporting, and therefore would be subject to increased scrutiny by the agency.

In May 2016, the Occupational Safety and Health Administration (“OSHA”) issued a final rule to “Improve Tracking of Workplace Injuries and Illnesses, “ which requires employers to electronically submit their injury and illness records to OSHA.  Specifically, establishments with 250 or more employees must annually submit their Forms 300, 300A, and 301.  And, establishments with 20 to 249 employees must annually submit their Form 300A.  Prior to this rule, most employers had no obligation to submit their illness/injury logs to OSHA.  This rule has been controversial, as OSHA intends to post the records, subjecting employers to increased scrutiny by investors, business partners, regulators, and the public at large.  Moreover, many employers are skeptical that OSHA will appropriately safeguard individualized confidential information from public disclosure.

The effects of the regulatory reform initiatives of the Trump Administration are beginning to be felt at the Occupational Safety and Health Administration (OSHA) with the formal action by OSHA to finalize withdrawal of the “Volks Rule” regulation. On May 3, 2017, in response to a CRA resolution of disapproval, OSHA published a final rule removing amendments to OSHA’s recordkeeping regulations from the Code of Federal Regulations.

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On March 25, 2016, OSHA published a final rule which significantly reduces the permissible limits of silica dust to which workers can be exposed.  The rule will take effect 90 days after publication, and will be codified at 29 CFR Parts 1910, 1915, and 1926.

More and more employers are faced with the following question -- can a transgender employee use the restroom associated with his or her gender identity? According to federal governmental agencies, the answer seems to be yes.

In a departure from its previous guidance, the Occupational Safety and Health Administration (“OSHA”) recently released an interpretation letter that could potentially open the door to union organizing activity on employer property during OSHA inspections.  The new guidance authorizes non-unionized employees to select union agents as representatives and has been widely interpreted by unions to facilitate the use of OSHA inspections as an organizing tool.