Effective November 5, 2021, OSHA released the new emergency temporary standard (“ETS”) in response to President Biden’s September directive that employers with 100+ employees, develop, implement, and enforce a mandatory COVID-19 vaccination policy with an exception that employers may instead develop, implement, and enforce a policy allowing employees who have not been vaccinated to elect to undergo weekly COVID-19 testing and order a face covering at the work place.

What this means for employers:

Applies to:                                                   

“Covered employers” – Private employers with 100 or more employees (firm or corporate wide).

Does NOT apply to:

Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and subcontractors.

Settings where employee provides healthcare services/support services and subject to requirements of Healthcare ETS.

Some employees of “covered employers” are not subject to the requirements if they are:

  • Employees who do not report to a workplace where other individuals are present
  • Employees while working from home
  • Employees who work exclusively outdoors

Key Requirements of OSHA’s ETS:

  • Develop-Implement-Enforce Employer policy on mandatory vaccination
    • The ETS takes effect immediately and the deadline for workers to complete the vaccine process is January 4, 2022.
    • EXCEPTION – Applies to employers that instead adopt a policy requiring employees to elect to whether to get vaccinated -or- to undergo weekly COVID-19 testing -and- wear a face covering while at work.
      • ETS does not specifically require employers to pay for any associated costs with testing—BUT there may be other laws/regulations for payment of testing by the employer
      • Covered employers must be in compliance by requiring a mask for any unvaccinated worker by December 5, 2021. Weekly testing is to begin on January 4, 2022.
  • Determine vaccination status of each employee
    • Obtain proof of vaccination
    • Maintain records of each employees vaccination status, AND
    • Maintain roster of each employee’s vaccination status
  • Support vaccinations by providing employees reasonable time, including up to 4 hours of paid time, to receive each dose of the vaccine AND reasonable time and paid sick leave to recover from possible side effects of vaccine after each dose.
    • Covered employers must be in compliance with the ETS’ paid time off standard by December 5, 2021.
  • Employee notification to employer | The ETS requires employers to:
    • Require employees to immediately notify them when they have tested positive or have been diagnosed with COVID-19;
    • Immediately remove any employee from the workplace who has tested positive or has been diagnosed with COVID-19 by a licensed healthcare provider; AND
    • Keep the employees out of the workplace until they have met the criteria to return to work safely.
  • Inform employees, in a language they can understand, about the following by December 5, 2021:
    • The requirements of the ETS and the workplace policy adopted by the employer;
    • The CDC document “Key Things To Know About COVID-19 Vaccines;”
    • Information about protections against retaliation and discrimination; AND
    • Information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
  • Report any COVID-19 fatality and hospitalization to OSHA.
    • Fatalities to be reported to OSHA within 8 hours of learning about it
    • Work-related COVID-19 in-patient hospitalizations within 24 hours of learning about it.
  • Make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee – and to anyone with written authorized consent of that employee. Employer is also required to make available to an employee the aggregate number of fully vaccinated employees at the workplace along with total number of employees at that workplace.

Potential Penalties:

OSHA may fine a covered employer that does not comply with the ETS up to $13,653 for each violation of the standard. Employers that willfully or repeatedly violate the standard can be fined up to $136,532. However, the Build Back Better Act, if enacted, would raise the maximum fine to $700,000.

RECENT DEVELOPMENTS:

On November 6th, the 5th U.S. Circuit Court of Appeals granted an emergency stay of OSHA’s ETS requiring that those workers be vaccinated by January 4 or face mask requirements and weekly tests.

It is anticipated that the 6th U.S. Circuit Court of Appeals, which includes the State of Ohio, along with other U.S. Circuit Courts of Appeal will be issuing similar emergency stays. The pending lawsuits filed Friday concerning the ETS (along with any additional suits filed by Nov. 15, 2021) are expected to be consolidated before a single federal circuit court. That Court is expected to rule on whether previous grants or denials of temporary stays will stand and to weigh in on the constitutionality of and other challenges to the ETS mandate, subject to potential Supreme Court review.

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s ETS. The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” OSHA has therefore suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

If you have any questions, please feel free to contact us.

WORKERS’ COMPENSATION LEGISLATIVE CHANGES 2017

The General Assembly passed Substitute House Bill 27 and it was signed into law by Governor Kasich. The new law goes into effect September 29, 2017. There are a number of significant changes in the statute that could impact the business community. Some of the changes are as follows:

  • Statute of limitations for filing injury or death claims. Section 4123.84 was revised to decrease the amount of time a person has to file a workers’ compensation claim to one year from the date of injury or the date of death. In the past, claimants have had two years.
  • Handicap charge-offs are applicable to state fund settlements. Section 4123.343 has been changed so that settlements receive the benefit of the handicap charge-off. In the past state fund employers were often reluctant to settle since the full settlement would be charged to the employer without the benefit of a handicap charge-off. Under the new law, the handicap charge-off will be applied to the settlement by the BWC.
  • Waiver of the 90-day Exam. Section 4123.53 is amended to allow the Administrator of the Bureau of Workers’ Compensation to waive the 90-day exam for good cause. The employer may object to the Administrator’s waiver. If the employer objects the Bureau Medical Section shall schedule the 90-day medical exam.
  • Time to file an appeal to court may be extended. Section 4123.512 provides that either party has 60 days to file an appeal to the Court of Common Pleas from the final decision of the Industrial Commission allowing or disallowing the claim. Effective September 29, the law will change to provide that either the claimant or the employer may file a notice of an intent to settle the claim within 30 days of the final order of the Industrial Commission. If the opposing party does not object within 14 days, the time to file an appeal to court is extended to 150 days. It is hoped that this will encourage settlements and save court costs.
  • Drug testing changes. Section 4123.54 will be modified to include all controlled substances and the threshold limits are changed to comply with the Code of Federal Regulations.
  • An incarcerated dependent cannot receive compensation. Section 4123.54 is modified to provide that not only are compensation benefits not payable to a claimant during a period of incarceration, but such benefits are also not payable to a dependent during the dependents period of confinement to any state or federal correctional institution.
  • Calculations of full weekly wage. Revised code Section 4123.56 is amended to provide that if an employee’s full weekly wage cannot be determined, then the BWC may set the FWW at thirty-three and one third percent of the statewide average weekly wage. When the correct information is received the FWW may be adjusted accordingly.
  • Dismissal of C-92 applications when the claimant fails to attend a medical examination scheduled by the BWC. In the past, if a claimant failed to appear for a medical examination, the claim would be held in abeyance. Section 4123.57 is changed to provide that if a claimant does not explain his failure to appear for an examination, then the C-92 application shall be dismissed without prejudice. This will allow the statute of continuing jurisdiction to run, so that claims do not remain open for a long period of time. The law has also changed to allow the Administrator to deal with more than 20,000 C-92 applications that have been pending for many years.

If you have any questions or would like to discuss the legislative changes please call one of the attorneys at Garvin & Hickey, LLC.