CDC Updates Return-to-Work Guidance Again – Reduces Quarantine Time

By Conn Maciel Carey’s COVID-19 Task Force

As we noted in a Client Alert last month, the CDC issued its new guidance for “Close Contacts” in a way that would make quarantine circumstances much more likely; i.e., CDC’s new definition of close contact makes it explicit that the 15-minute exposure period (i.e., within 6-feet of an infected individual for 15 minutes) should be assessed based on a cumulative amount of time over 24 hours, rather than just a single, continuous 15-minute interaction.

Today, the CDC issued new guidance that would reduce the duration of many quarantines from 14 days to 10 days and, in some cases to 7 days.  Specifically, CDC identified the following options as acceptable alternatives to a 14-day quarantine:

  • Quarantine can end after Day 10 without testing and if no symptoms have been reported during daily monitoring.
  • If testing is available, then quarantine can end after Day 7 if a respiratory specimen tests negative and no symptoms were reported during daily monitoring.  The specimen may be collected and tested within 48 hours before the time of planned quarantine discontinuation (e.g., in anticipation of testing delays), but quarantine cannot be discontinued earlier than after Day 7; i.e., testing should be initiated no earlier than Day 5 after the close contact exposure occurs.

In either scenario, additional criteria Continue reading

What Employers Need to Know About Mandatory COVID-19 Vaccines

By Conn Maciel Carey’s COVID-19 Task Force

With the availability of a safe, effective COVID-19 vaccine edging closer and closer, employers understandably have a number of questions regarding their role in the workplace – whether and when they can require a vaccination, what exceptions are required in a mandatory vaccination program, and whether they should require (as opposed to encourage and facilitate) the COVID-19 vaccine for employees once it becomes available.  This summer, the World Health Organization reported that nearly 200 potential vaccines were currently being developed in labs across the world, and as of mid-October, disclosed that more than 40 had advanced to clinical stage testing on humans.  Drug manufacturers estimate that a vaccine will be ready and approved for general use by the end of this year, although logistically not ready for widespread distribution until mid-2021.  Indeed, just over the past couple of weeks, Pfizer and Moderna have made promising announcements regarding the results of their clinical trials.  Namely, on Monday, November 9, 2020, Pfizer and BioNTech announced that a vaccine candidate against COVID-19 achieved success in the firm interim analysis from the Phase 3 study.  The vaccine candidate was found to be more than 90% effective in preventing COVID-19 in participants without evidence of prior SARS-CoV-2 infection in the first interim efficacy analysis.  According to the announcement, submission for Emergency Use Authorization (EUA) to the U.S. Food and Drug Administration (FDA) is planned for soon after the required safety milestone is achieved, which is currently expected to occur in the third week of November.  Additionally, as reported by the National Institutes of Health (NIH) on November 16, 2020, there have been promising interim results from a clinical trial of a NIH-Modern COVID-19 vaccine.  An independent data and safety monitoring board (DSMB) reported that the vaccine candidate was safe and well-tolerated and noted a vaccine efficacy rate of 94.5%.  Accordingly, as the reality of a vaccination nears, employers are inquiring whether they can and should mandate the vaccine for their employees.

  1. Can Employers Require Employees to Take the COVID-19 Vaccine?

As a threshold matter, it should be noted that, according to a member of the federal advisory panel on immunizations that will be making recommendations to the CDC on who should get the first doses, vaccines authorized under the FDA’s emergency use authority, as these COVID-19 vaccinations will be at the start, cannot be mandated.  Any COVID-19 vaccine brought to market under an EUA instead of the normal non-emergency approval process will, by necessity, lack long term safety data.  Once a vaccine receives an EUA from FDA, FDA has authorized the vaccine for use according to the terms of the EUA.

In general though, employers can require vaccination as a term and condition of employment, but such practice is not without limitations, nor is it always recommended.  Although the issue is only now coming to the forefront of our national conscience, mandatory vaccinations in the workplace are not new, and have been particularly prevalent among healthcare providers.  Some variability exists under federal law and among federal agencies, but for the most part, mandatory vaccination programs are permissible, as long as employers consider religious accommodation requests under Title VII of the Civil Rights Act of 1964 (Title VII) and medical accommodation requests under the Americans with Disabilities Act (ADA).

OSHA has long taken the position that employers can require employees to take flu and other vaccines, but emphasizes that employees “need to be properly informed of the benefits of vaccinations.”  In the healthcare industry, for example, Continue reading

[Webinar Recording] Attorney-Client Privileged Audits and Investigations and OSHA’s Self-Audit Policy

On September 22, 2020, Nick Scala, Kate McMahon, and Micah Smith of Conn Maciel Carey presented a webinar regarding Attorney-Client Privileged Audits and Investigations and OSHA’s Self-Audit Policy. Privileged-Audits-and-Investigations-Sept-2020-2 Safety and health audits and accident or near-miss investigations are invaluable tools to identify hazards at a workplace and improve safety, but what happens when a government regulator demands copies of the reports and/or recommendations from the audit or investigation? When not done carefully or under attorney-client privilege, audit and investigation reports can serve as admissions and/or a roadmap for OSHA and MSHA investigators or plaintiffs’ attorneys regarding areas of non-compliance. This in turn can create a disincentive for employers to audit their facilities. This webinar explored the benefits of conducting audits and investigations at the direction of counsel so as to improve safety and compliance while also protecting the company and management from adverse use by 3rd party litigants or regulators. We reviewed audit and investigation and report-writing strategies and best practices. We also reviewed OSHA’s policy on self-audits and the reality of OSHA’s use of voluntary self-audits during inspections. And we reviewed best practices to manage MSHA’s unlimited lookback period for enforcement. Participants in this webinar learned about: Continue reading

Conn Maciel Carey Expands Midwest Practice with Addition of Talented L&E Attorney

Conn Maciel Carey LLP, a boutique law firm with national practices in OSHA • Workplace Safety, Labor & Employment, and Litigation, is pleased to announce that Ashley Mitchell has joined the firm as an attorney in its Chicago office.

Ms. Mitchell, an employment litigator, will represent clients in a wide range of employment litigation and counsel clients on the myriad legal issues employers face in the workplace.  She also will defend employers in inspections, investigations and enforcement actions involving federal OSHA and neighboring state plan agencies.

“Ashley brings a unique perspective to our employment litigation, counseling and training practice having started her career working with prominent plaintiff-side employment law firms here in Chicago, where she also developed experience dealing with policies, procedures and practices that directly impact workplace safety and health,” said Aaron Gelb, co-head of the firm’s Chicago office.  “Ashley is ideally suited to pivot from working on pension withdrawal matters one day to preparing for a labor arbitration the next,” said Mark Trapp, co-head of the Chicago office.

“We are committed to strategically growing our practices and geographic locations, and adding Ashley to our seasoned team in the Midwest will allow Conn Maciel Carey to continue to provide the excellent client service with a focus on practical and creative advice that our national and regional clients are looking for,” said Kara Maciel, Chair of the firm’s Labor • Employment Practice. Eric Conn, Chair of the firm’s OSHA • Workplace Safety Practice added, “Our Chicago office has grown strategically since opening in January 2018, particularly on the OSHA front during the COVID-19 pandemic, and Ashley will play an integral role as we further expand our workplace safety services throughout the Midwest.”

Ms. Mitchell said, “I was drawn to Conn Maciel Carey by its collegial environment and nationally recognized Labor & Employment and OSHA practices. Leveraging my labor and employment experience, I am looking forward to working with the CMC Team to enhance my knowledge of workplace safety law so that I may be the best advocate for our clients. I am excited to join such a distinguished and dynamic group of attorneys.”

Here is a link to a press release issued by the Firm about this exciting development.

CDC Revises its COVID-19 Return-to-Work Criteria, Again

By Conn Maciel Carey’s COVID-19 Task Force

On July 20, 2020, the U.S. Centers Disease Control and Prevention (“CDC”) made major revisions to its COVID-19 “discontinue home isolation” guidance, upon which employers may rely to determine when it is safe for employees to return to work.  This comes only a couple months after CDC made major revisions to the same guidance document when, on May 3, 2020, it extended the home isolation period from 7 to 10 days since symptoms first appeared for the symptom-based strategy in persons with COVID-19 who have symptoms, and from 7 to 10 days after the date of their first positive test for the time-based strategy in asymptomatic persons with laboratory-confirmed COVID-19.

In its most recent update, Picture1CDC has determined that a test-based strategy is no longer recommended to determine when to discontinue home isolation, except in certain circumstances.  It has also modified its symptom-based strategy in part by changing the number of hours that must pass since last fever without the use of fever-reducing medication from “at least 72 hours” to “at least 24 hours.”  CDC’s revisions should trigger employers to immediately revise their COVID-19 preparedness, response, and control plans to account for the latest changes.  In light of the recent COVID-19 regulation that Virginia promulgated almost at the same time that CDC decided to update its guidance, the revisions also demonstrate that COVID-19 is not the type of hazard easily subject to a regulatory standard.

Revised Guidance

To start, it is important to understand the major changes that CDC has just made.  As you know, prior to CDC’s most recent changes, CDC offered individuals with COVID-19 who had symptoms two options for discontinuing home isolation:

  1. a symptom-based strategy; and
  2. a test-based strategy.

It also offered individuals with COVID-19 who never showed symptoms two options:

  1. a time-based strategy; and
  2. a test-based strategy.

With its most recent update, CDC has essentially eliminated Continue reading

Virginia OSHA Moves to Make Permanent Its New Infectious Disease Standard

By Conn Maciel Carey’s COVID-19 Task Force

As we have been updating you about here, on July 27th, the Virginia Occupational Safety and Health Administration (VOSH) adopted a COVID-19 Emergency Temporary Standard (ETS).  There are some important deadlines fast approaching under that new rule:

  1. Conduct a COVID-19 Hazard Assessment to categorize the risk exposures at the workplace (due by Aug. 26th);
  2. Deliver the first of two COVID-19 employee training events (due by Aug. 26th); and
  3. Implement a written infectious disease preparedness and response plan (due by Sept. 25th).

We have been helping our clients quickly get up to speed on the new emergency rule.  As part of that effort, we co-hosted a webinar with the head of VOSH’s Consultation Program and also prepared an FAQ document about the new rule.

But while everyone is scrambling to come into compliance with the emergency rule, we want to highlight another big development with the Virginia rule that has a fast-approaching deadline – that is, VOSH’s effort to prepare a permanent infectious disease standard.

The ETS is, of course, just a temporary standard, but by regulation, VOSH is required to commence a rulemaking to promulgate a permanent standard soon after issuing an ETS.  By publication of the ETS in July, VOSH simultaneously gave notice that the Standards Board intends to adopt a permanent infectious disease standard, and the ETS serves as the proposed rule.  Here is a link to the Proposed Permanent Standard for Infectious Disease Prevention.  The agency intends to finalize the permanent rule within six months, with an effective date no later than January 27, 2021. Continue reading

[Webinar] Everything You Need to Know About Virginia OSHA’s New COVID-19 Standard

On Monday, August 3rd at 1 PM ET, join Eric J. Conn (Chair of Conn Maciel Carey’s national OSHA Practice), Susan Wilcox (a CIH and CSP with Safety Resource Associates), and special guest Jennifer Rose (VOSH Cooperative Programs Director with the Virginia Dept. of Labor and Industry) for a complimentary webinar regarding “Everything You Need to Know About Virginia OSHA’s New COVID-19 Standard.

Last week, Virginia became the first state in the nation to promulgate a mandatory safety regulation designed to reduce COVID-19 infectionsVOSH Cover Slide in the workplace, when Virginia’s Governor Ralph Northam announced the commonwealth’s adoption of an Emergency Temporary Standard (“ETS”). The COVID-19 ETS, which was drafted by Virginia’s Department of Labor and Industry, requires Virginia employers to: Continue reading

Virginia Promulgates the Nation’s First Mandatory COVID-19 Workplace Safety Regulation

By Conn Maciel Carey’s COVID-19 Task Force

On Wednesday, July 15, 2020, Virginia’s Governor Ralph Northan announced the commonwealth’s adoption of an emergency temporary standard (“ETS”) on infectious disease prevention.  With that, Virginia became the first state in the nation to promulgate a mandatory safety regulation designed to prevent and/or reduce COVID-19 infections in the workplace.  VA EOThe Virginia Department of Labor and Industry’s Safety and Health Codes Board voted to approve the ETS after Governor Northam directed the creation of enforceable regulations in a May Executive Order (the same EO that mandated the use of masks in public for all Virginians).  Specifically, Governor Northan directed:

“The Commissioner of the Virginia Department of Labor and Industry shall promulgate emergency regulations and standards to control, prevent, and mitigate the spread of COVID-19 in the workplace. The regulations and standards … shall apply to every employer, employee, and place of employment within the jurisdiction of the Virginia Occupational Safety and Health (VOSH) program.”

Virginia state officials said they were forced to act because federal OSHA had not developed an employer safety standard to protect against infections from the Coronavirus, and thus the burden to do so has been left to the states.

The ETS, which was drafted by Virginia’s Department of Labor and Industry, will go into effect after it is published in a newspaper in Richmond, VA, which is expected to occur the week of July 27th.  The rule will remain in effect as an ETS for at least six months, but can be made permanent through the Virginia OSHA (VOS) formal rulemaking process defined by state law.  Although the Final Rule has not been published, the rulemaking process has been somewhat public, with early drafts of the rule discussed and debated in public meetings.

Generally, the ETS requires Virginia employers to: Continue reading

EPA’s New WOTUS Definition Applies as Navigable Waters Protection Rule In Effect

By: Nicholas W. Scala and Beeta Lashkari

On Monday, June 22, 2020, the U.S. Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“the Army Corps”) revised “Navigable Waters Protection Rule” (“NWPR”) took effect in most parts of the country, commonly referred to as the WOTUS rule.  The rule repeals and replaces an Obama Administration regulation further defining what constitute jurisdictional “waters of the United States” (“WOTUS”) and codifies a new and more narrow definition of the regulated areas.

The WOTUS rule has had a long and tortured history, starting with the EPA’s significant expansion of the definition of WOTUS under the Obama Administration in June 2015.  See our previous blog post for more details on the history of the WOTUS rule.  Under that version of the rule, nearly all bodies of water could be construed to constitute a WOTUS for jurisdictional purposes under the Clean Water Act, even if a temporary puddle following a heavy rain. This significantly impacted the ability of mining companies to obtain and maintain compliance with environmental permits. WOTUS The current NWPR pulls back on those expansions, offering a more streamlined approach to determining whether a body of water is a WOTUS.  After years of litigation and lobbying by numerous industry groups and organizations, the revised NWRP is much less burdensome to the mining industry and is a major win in challenging regulators’ sometime unfettered authority.

Specifically, the NWPR redefines WOTUS to categorically regulate four main types of waters:

(1) the territorial seas, and waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including waters that are subject to the ebb and flow of the tide (collectively, referred to as “traditional navigable waters”);

(2) tributaries;

(3) lakes, ponds, and impoundments of other jurisdictional waters; and

(4) wetlands adjacent to other waters of the United States.

The new NWPR also expressly excludes twelve types of waters from regulation.  Importantly, among those exclusions is ephemeral waters, which are defined as water features that only flow in response to precipitation events such as rain and snowmelt.  The NWPR eliminates these features from regulation.

This exclusion is particularly significant given the nature of the mining and how active quarries or pits handle the accumulation of water, such as when parts of quarries will inevitably fill with water and/or flood during/after rain and snow. It is important to note, however, Continue reading

With Pressure Mounting on MSHA for COVID-19 Standard, Agency Issues Guidance with CDC

By Conn Maciel Carey’s COVID-19 Task Force

MSHA is facing political and now legal pressure to take additional action in response to the COVID-19 pandemic. For the most part, and most certainly when compared to its sister agency OSHA, MSHA has taken an wait and see approach to responding to COVID-19 in the workplace, offering limited guidance and resources to the mining community.

While there were some developments in late March and early April, granting mine operators a bit of relief on training requirements during social distancing, while the President’s national emergency declaration remains in effect, MSHA has otherwise encouraged mine operators to implement their own best practices to combat the spread of COVID-19 in the workplace and adhere to Centers for Disease Control and Prevention (CDC) guidance. COVID-19 miner protection act snip

In May, a group of senators, led by Senator Manchin of West Virginia, introduced a bill that if passed would force MSHA’s hand to enact a emergency temporary standard with respect to COVID-19. No further action has taken place since the bill was introduced on May 13, 2020, but if passed, the COVID-19 Mine Worker Protection Act would require MSHA to issue an emergency temporary standard within seven days with respect to COVID-19 and require MSHA to prepare a “permanent and comprehensive infectious disease standard within two years.” In addition, the bill would require:

    • Mine operators to provide personal protective equipment to miners;
    • MSHA to forbid employers from retaliating against miners for reporting infection control problems to their employer, or to local, State, or Federal government agencies; and
    • MSHA, in coordination with CDC and NIOSH, to track, analyze, and investigate mine-related COVID-19 infections data to make recommendations and guidance to protect miners from the virus.

Continue reading