Lifestyle Round Up

Apr 04, 2021


The program also prioritizes employers that retaliate against workers for complaints about unsafe or unhealthy conditions, or for exercising other rights protected by federal law. “This deadly pandemic has taken a staggering toll on U.S. workers and their families. We have a moral obligation to do what we can to protect workers, especially for the many who have no other protection,” said Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health Jim Frederick. “This program seeks to substantially reduce or eliminate coronavirus exposure for workers in companies where risks are high, and to protect workers who raise concerns that their employer is failing to protect them from the risks of exposure.” NEP inspections will enhance the agency’s previous coronavirus enforcement efforts, and will include some follow-up inspections of worksites inspected in 2020. The program’s focused strategy ensures abatement and includes monitoring the effectiveness of OSHA’s enforcement and guidance efforts. The program will remain in effect for up to one year from its issuance date, though OSHA has the flexibility to amend or cancel the program as the pandemic subsides. “With more people being vaccinated and the number of infections trending down, we know there is light at the end of the tunnel. But until we are past this pandemic workers deserve a Labor Department that is looking out for their health,” added Frederick. OSHA state plans have adopted varying requirements to protect employees from coronavirus, and OSHA knows many of them have implemented enforcement programs similar to this NEP. While it does not require it, OSHA strongly encourages the rest to adopt this NEP. State plans must notify federal OSHA of their intention to adopt the NEP within 60 days after its issuance. In a related action, OSHA has also updated its Interim Enforcement Response Plan to prioritize the use of on-site workplace inspections where practical, or a combination of on-site and remote methods. OSHA will only use remote-only inspections if the agency determines that on-site inspections cannot be performed safely. On March 18, 2021, OSHA will rescind the May 26, 2020 memorandum on this topic and this new guidance will go into and remain in effect until further notice. OSHA will ensure that its Compliance Safety and Health Officers have every protection necessary for onsite inspections.

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Again, this is not mandatory, only suggested; however, this is among the requirements that could eventually be given the force of law given the criticality of vaccinating the American workforce and populace. In my column last month ( ), I noted that employers may require employees to get vaccinated – provided that reasonable accommodations are made for those who cannot receive a COVID-19 vaccine due to a disability or a sincerely held religious belief. Nothing in this latest OSHA guidance changes these exceptions, but employers click this over here now are all highly encouraged to vet any claimed exceptions and to vaccinate as many workers as possible within the bounds of the law. Also, OSHA recommends that COVID-19 policies not distinguish between workers who are vaccinated and those who are not. Instead, all workers should continue to follow all safety measures until further guidance from OSHA and/or the Centers for Disease Control. The OSHA guidance also recommends that employers follow state or local guidance for COVID-19 screening and viral testing and inform employees of their workplace testing requirements and options. Employers may incorporate COVID-19 testing in their COVID-19 prevention programs. Unlike the 2020 guidance from OSHA, the latest OSHA guidance explicitly states employers are prohibited from discharging or discriminating against an employee for speaking out about unsafe working conditions or reporting an infection or exposure to COVID-19 to the employer or OSHA. The OSHA guidance further recommends that employers: notify workers of their rights to a safe workplace; ensure that workers are referred to the employer’s COVID-19 coordinator; prohibit retaliation for raising workplace safety concerns; and consider setting up an anonymous process for complaints relating to the COVID-19 program. OSHA has also stated that it will update this guidance over time to reflect developments in science, best practices and standards. Timothy J. Pastore, Esq., is a Partner in the New York office of Montgomery McCracken Walker & Rhoads LLP ( ), where he is Vice-Chair of the Litigation Department. Before entering private practice, Mr. Pastore was an officer and Judge Advocate General (JAG) in the U.S. Air Force and a Special Assistant U.S. Attorney with the U.S. Department of Justice.