On September 20, 2021, the Biden Administration announced a multi-agency initiative to protect employees from excessive workplace heat exposure.  The Administration acknowledged its public health concern arising from heat waves experienced this summer and what it has identified as a systemic threat to workers from exposure to high temperatures – indoors and outdoors – while doing their jobs.

The White House previewed that the Occupational Safety and Health Administration (OSHA) will publish an advanced notice of proposed rulemaking in the Federal Register next month addressing employers’ obligations to protect workers from injuries cause by heat exposure.  We expect that OSHA’s rules will  focus on employers’ duties to identify and mitigate heat risks, not only in the agriculture and construction industries, but also in industries where workers are employed indoors but not in climate-controlled environments.

Outside of OSHA’s “general duty clause”, the federal government currently does not have a federal worker safety rule in place related to extreme heat exposure in the workplace.  OSHA has, however, issued guidance on working in outdoor and indoor heat environments, available here.  Certain states and localities have also issued heat regulations.

In addition to the rulemaking, OSHA is expected to launch an initiative to conduct planned and surprise workplace inspections on days where temperatures exceed 80 degrees Fahrenheit.  Employers who fail to provide workers with adequate heat mitigation measures, such as water, breaks, proper clothing, and shade could face OSHA citations and accompanying fines.

Employers with workers who work outdoors, or do their jobs indoors where temperatures can become excessive, should take this opportunity to examine their safety rules and protocols to ensure that their workplaces provide for safe operations in the heat.  Employers should also incorporate heat mitigation and cautionary training to employees – both line workers and supervisors – about how to avoid injury and risk in high heat conditions.  In addition, employers should also watch for updates from OSHA and state and local agencies that enforce workplace safety to stay current with new rules and the likelihood of workplace inspections.  Finally, employers should have designated representatives and, in some cases, legal counsel ready to respond and interact with the inspectors when OSHA comes knocking with an inspection, whether that inspection was triggered by a complaint, a new rule, or an industry-wide government safety initiative.

On September 7, the House Ways and Means Committee released bill text that includes a new national, universal paid medical and family leave plan. This bill represents just one portion of the expected $3.5 trillion social spending bill that will advance President Biden’s legislative agenda.

The bill is extensive, but employers should be particularly aware of the following provisions:

  • Beginning in July 2023, the bill provides up to 12 weeks of federal benefits to replace lost wages due to time off for medical leave or caregiving for an ill family member. While the bill appears to follow the contours of the FMLA in terms of leave events, notably it goes beyond the FMLA by including a much broader definition of covered family members. Bereavement would also qualify, but it is limited to three work days maximum.
  • The program covers all workers including full-time and part-time workers, independent contractors, and public and private sector workers. It also applies without regard to employer size, although employers with fewer than 50 workers may be eligible for assistance grants.
  • Eligible workers can apply for benefits if they have at least 4 caregiving hours in a week.
  • Benefits will be awarded based on a sliding scale of wage replacement. Benefits would replace 85% of lost wages for the lowest-income workers and gradually decrease, replacing just 5% of wages for workers earning up to $250,000.
  • Those states that have already enacted paid family and medical leave programs may continue operating those programs, and the House proposal offers federal grants to reimburse those program costs.
  • Employers may be able to seek reimbursement for operating a plan that is as good or better than the public plan and meets a lengthy set of requirements related to the plan.

On September 15, 2021, the National Labor Relations Board (NLRB)’s General Counsel instructed regional offices to take a more aggressive stance in settlement negotiations in unfair labor practice cases, seeking broader remedies for workers.

In GC Memorandum 21-07, which builds upon GC Memorandum 21-06 issued last week, new NLRB General Counsel Jennifer Abruzzo encouraged regional offices to be creative in the remedies sought in settlement, reasoning that they may be able to obtain more for workers during settlement than in litigation before the Board.

The GC opined that backpay and lost benefits are often ineffective remedies in making a worker fully whole, and urged regions to seek compensation for “any and all damages, direct and consequential” that may be attributable to the alleged unfair labor practice, including:

  • Costs associated with obtaining comparable health insurance coverage
  • Moving expenses where an employee is required to relocate to obtain comparable employment
  • Legal expenses incurred as a result of an employer’s unlawful conduct
  • Costs associated with detrimental effects to credit ratings
  • Costs associated with liquidating a bank account to cover living expenses

GC Abruzzo also directed regional offices to again incorporate default language into settlement agreements – a practice that her predecessor had stopped.  Under the NLRB’s default language, in the event of a settlement breach, the General Counsel may file a motion for summary judgment on the Complaint and the respondent would be deemed to have admitted all allegations even though the alleged unfair labor practices had never been adjudicated.  The only issue for litigation would be whether the respondent breached the settlement agreement.

Abruzzo’s additional instructions to the regions include:

  • Seek apology letters from employers to harmed employees
  • Seek no less than 100% of all damages owed. This may indicate a departure from the historically-accepted understanding that the GC will accept 80% of damages owed as full settlement of an unfair labor practice charge.
  • Seek front pay for employees who voluntarily waive reinstatement
  • Obtain outplacement services for employees waiving reinstatement.
  • Require employers to sponsor work authorizations for immigrant employees if the unfair labor practice caused the loss of an employee’s work authorization.

Employers should be prepared for far more difficult settlement discussions at the NLRB, and the possibility of more aggressive litigation as a result.

On September 7, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit claiming an employer discriminated against disabled employees by failing to provide workplace accommodations related to COVID-19. Specifically, the EEOC has accused ISS Facility Services Inc. a Denmark-based facilities management company, of unlawfully denying its employee’s reasonable request for an accommodation for her disability under the Americans with Disabilities Act (“ADA”), and then firing her for making the request. This is the first lawsuit the EEOC has filed of this kind in the wake of the COVID-19 pandemic, and may provide a hint for what is to come.

According to the EEOC’s complaint, Ms. Ronisha Moncrief worked for ISS as a health safety and environmental quality manager in Covington, Georgia. When the COVID-19 pandemic first hit, from March 2020 until June 2020, ISS required Ms. Moncrief to work remotely. Then, when the facility reopened, she asked to continue to work remotely for two days a week. She also requested to take frequent breaks when she was working on site due to her pulmonary condition, which made it difficult for her to breathe, and put her at a higher risk for contracting COVID-19. Notably, although ISS allowed other employees in Ms. Moncrief’s position to work remotely, ISS denied Ms. Moncrief’s request and then fired her.

In a statement about the case, a regional attorney for the EEOC’s Atlanta district office stated “The ADA requires employers to provide reasonable accommodations to employees with disabilities to ensure those with disabilities have an equal opportunity to work to their full ability. In light of the additional risks to health and safety created by COVID-19, it is particularly concerning that an employer would take this action several months into a global pandemic.”

The White House has announced that OSHA will develop a new temporary emergency standard requiring private employers of 100 or more employees to mandate full vaccination or weekly testing for employees.  In addition, the President reportedly will sign an Executive Order expanding the requirements for federal contractors to vaccinate their employees which may reach contractors whose employees are not at government facilities.  According to Press Secretary Jen Psaki, there will be limited exceptions to the new mandates, including for religious objections or for those with disabilities.  The White House expects the new OSHA standard to apply to more than 80 million private-sector workers.  The rule, as an emergency temporary standard, would undergo expedited review with no public comment period.  The rule is expected to be published in the coming weeks and take effect shortly after publication.  A fact sheet provided by the White House said workers must be given paid time off to get vaccinated and to recover from any side-effects.

Senior officials said OSHA would have the ability to fine noncomplying businesses up to $14,000 per violation.  Workers at companies subject to the regulation who still refuse to get vaccinated would need to show proof of a negative virus test at least once per week before reporting to their worksite.

The President is expected to give a speech today announcing these moves.  We will post additional details as they become available.

Several new developments have come from the Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) this week.

In a notice published to the Federal Register on September 2, 2021, the OFCCP announced that it is revisiting its current position on Component 2 pay data, collection of which was suspended during the Trump administration.

At the end of 2019, the OFCCP had decided that it would not request, accept or use employers’ Component 2 pay data, but now “[t]he agency has determined that it was premature to issue a notice stating [the] OFCCP did not expect to find significant utility in the data.”  Instead, according to the OFCCP, “there are substantial reasons to believe that the Component 2 data could be useful to [the] OFCCP’s enforcement.”  The OFCCP intends to study the utility of the data and may revise its previous stance based on its findings.

In other news, the White House has cleared the OFCCP’s initiative that would require federal contractors to certify that they have affirmative action plans in place.  Currently, federal contractors are required to create affirmative action plans within 120 days of beginning a contract.  But the OFCCP only reviews the plans after a company is selected for audit.  Under the new verification interface, companies would be required to certify affirmatively that the plans are in place.  The OFCCP would then verify that contractors are annually certifying compliance with federal contracting obligations and schedule more targeted reviews for those contractors who have not provided certifications.   The OFCCP solicited comments on the verification interface beginning in September 2020, and the Office of Information and Regulatory Affairs concluded its review on August 31st.

Employers subject to the OFCCP’s rulemaking should stay tuned to see what conclusions come from these developments, and be ready to adjust their practices to maintain compliance with any new rules in the coming months.

As we previously posted, the City of Philadelphia announced that vaccines will be mandatory for healthcare workers and those at colleges and universities in the city, absent a religious or medical exemption, beginning on October 15, 2021. On August 16, the Board of Health adopted the Emergency Regulation Governing the Control and Prevention of COIVD-19 Mandating Vaccines for Healthcare Workers and in Higher Education, Healthcare and Related Settings (“Emergency Regulation”). The Emergency Regulation provides additional detail about the vaccine mandate, exemptions, and accommodations.

Covered Individuals

Healthcare:  All employees, contractors, students, volunteers, or healthcare workers affiliated with a healthcare institution who perform duties in a building where patients, clients, or their visitors are present are covered by the Emergency Regulation – even if their duties do not include direct contact with others.  Healthcare institutions include any person or entity that employs, coordinates, or otherwise engages in any inpatient or outpatient medical or behavioral health, dental, nursing, medical first responder, pharmacological, personal care home, assisted living residence, intermediate care, adult daycare, long term care facility, acupuncture, audiology, hearing aid, chiropractic care, naturopathic care, occupational therapy, physical therapy, athletic training, optometry, ophthalmology, or speech language pathology services.

Higher Education:  Anyone who works, volunteers, or attends one or more classes or other activities on campus in connection with a college, junior college, or university and has in-person contact with others is covered by the Emergency Regulation.

Requirements Effective October 15, 2021

Healthcare institutions may not employ, contract with, or otherwise utilize the services of a covered individual that has not been fully vaccinated or exempted from vaccination. Similarly, a higher education institution may not employ, contract with, or allow on campus for classes, any individual who has not been fully vaccinated or obtained an exemption and complies with one or more of the offered accommodations.

Exemptions

Healthcare and higher education institutions must grant an exemption to individuals who cannot take the vaccine for medical or religious reasons and agree in writing to abide by the required accommodations.

Medical exemption: A covered individual must request a medical exemption by submitting a certification from a licensed healthcare provider, certifying that the exemption applies and stating the specific reason that the vaccine is contraindicated for the individual. The certification must be signed by both a healthcare provider and the covered individual subject to the certification penalties of the Philadelphia Code.

Religious exemption: A covered individual must request a religious exemption by certifying in writing that their sincerely held religious belief precludes them from receiving the vaccine. The certification must be signed by the individual subject to the certification penalties of the Philadelphia Code.

The City’s requirements establish a “floor” for determining whether an exemption applies.  Employers are free to adopt accommodation processes, including verification or certification steps, that comply with the ADA and Title VII.

Accommodations

If a covered individual properly requests an exemption, the institution must adopt one or more of the following required accommodations:

  1. Routine Testing.   For healthcare, PCR or Antigen testing twice per week; for higher education, PCR testing once per week, or Antigen testing twice per week.
  2. Masking and Distancing.   Only for higher education institutions with 90% or more of covered individuals fully vaccinated, exempt individuals must double mask indoors and remain at least six feet from others at all times, whether on campus or off-campus engaged in an activity affiliated with the higher education institution.
  3. Virtual Accommodations.  If feasible, a covered individual may engage with either a higher education or healthcare institution through wholly remote means or in another manner such that the individual no longer qualifies as a covered individual.

In addition, all individuals must continue to wear face masks or other face coverings consistent with the City’s June 15, 2021 Emergency Order Establishing Safety Measures for Full Reopening to Prevent the Spread of COVID-19.

As with the exemption criteria, the City’s requirements establish a “floor” for what an employee who is being accommodated as a result of an exemption must do.  Employers are free to determine that these accommodations are not sufficient to maintain a safe working environment and to impose additional restrictions consistent with the ADA and Title VII.

Documentation

Healthcare and higher education institutions must maintain documentation of the vaccination status of each covered individual, any requested exemptions, whether each exemption request was granted or denied and why, and the accommodation(s) granted to each exempt individual.

Ballard Spahr’s labor and employment team is ready to assist any employers seeking to roll out a mandatory vaccination program that complies with the City’s Emergency Regulation.

On August 13, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued detailed updated guidance on appropriate measures for protecting employees in workplaces staffed with both vaccinated and unvaccinated workers.  Importantly, OSHA is now recommending that employers in geographical areas of substantial or high community transmission with mixed-vaccination status employees should require all employees, including fully vaccinated workers, to wear masks “whenever possible,” which OSHA did not define.

The new OSHA guidance also identifies higher-risk workplaces as those where unvaccinated and otherwise at-risk workers are working close to one another, particularly for prolonged periods or without adequate ventilation, or where employees share employer-provided transportation.  In such settings, OSHA prescribes that:

  • All workers, including fully vaccinated workers, should maintain six feet of distance at all times;
  • Fully vaccinated workers who have close contacts with people with coronavirus should wear masks for up to 14 days unless they have a negative coronavirus test at least 3-5 days after such contact;
  • Employers should consider whether to require masks for customers and other visitors, especially in areas of substantial or high community transmission.

The new OSHA guidelines also provide specific guidance for employers with high-volume retail workplaces, employer-provided transportation, meat, poultry, and seafood processing settings, manufacturing facilities and assembly line operations involving unvaccinated and otherwise at-risk workers.

OSHA’s new recommendations are in addition to its already existing guidance.  OSHA continues to emphasize that vaccination is the optimal step to protect workers.  The full text of OSHA’s updated guidance is available here.

Employers should recognize that OSHA’s new guidance represents a shift towards requiring employers to implement measures protecting their unvaccinated workers from potential risks posed by vaccinated employees.  Employers’ safety analyses should be sure to incorporate protective procedures for all workers, including unvaccinated and otherwise at-risk workers, from COVID-19.

This week, the City of Philadelphia announced a number of new COVID restrictions and mandates in an effort to curb the spread of the Delta variant, and warns that further action may be necessary if case counts continue to increase.

 Masks or Proof of Vaccination Required for Indoor Businesses

On August 11, the City announced new masking restrictions for indoor business and institutions. As of August 12, indoor businesses and institutions in Philadelphia must either require masks for employees and customers or verify that everyone is fully vaccinated. Certain essential businesses like grocery stores, pharmacies, doctors’ offices, and urgent cares will not be allowed to utilize the vaccinated only exception to the mask mandate, and must require masks for all staff and patrons, in order to support parents of children too young to be vaccinated.

The Amendment to the Emergency Order specifies that “indoor” means a location enclosed by three or more non-permeable barriers and an overhead covering, such as a tent or rooftop. Tents with one side open are considered indoor spaces, while a space that is fully open on two or more sides is considered an outdoor space. Under this definition, many of the enclosed streeteries in the city will be considered indoor spaces for purposes of the masking or proof of vaccination requirement. Indoor dining may continue, but restaurants that do not require proof of vaccination must require masking when patrons are not seated and eating or drinking.

For large outdoor events of 1,000 or more people, attendees must be masked unless (1) the event is exclusively seated; (2) the business requires everyone onsite to be fully vaccinated and institutes a reasonable procedure for verifying vaccination status; or (3) the Department of Public Health approves a safety plan for the event.

For businesses that do not require proof of vaccination, all customers and employees must wear masks, regardless of vaccination status.

Employers and businesses should continue to closely monitor changes in state and local guidance and restrictions in response to the uptick in Delta variant cases.

Vaccine Mandate or Double Masking for City Employees

Also on August 11, the City announced that, as of September 1:

  • All City employees must provide proof that they are fully vaccinated.
  • New hires must be fully vaccinated as a condition of employment.
  • Employees who are not fully vaccinated by September 1 must wear two masks (a cloth mask over a disposable or surgical mask) at all times while working on-site.

The City will continue to provide four hours of compensatory time to non-uniform City employees who provide proof of full vaccination.

Vaccine Mandate for Healthcare Workers and Those at Philly Colleges and Universities

On August 13, the city of Philadelphia announced a vaccine mandate for healthcare workers and colleges and universities in the city. Beginning October 15, all healthcare workers in the city must be vaccinated absent a religious or medical exemption. This includes hospital gift shop workers, cafeteria staff, and similar positions who may be in contact with a patient, but who are not strictly healthcare workers. Workers with an exemption must undergo PCR or Antigen testing twice per week.

Also on October 15, all college staff, students, and faculty in the city must be vaccinated absent a religious or medical exemption. Colleges and universities must offer one or more of the following accommodations to those with an exemption:

  1. Submit to PCR testing once per week, or Antigen testing twice per week;
  2. Colleges and universities with 90% or more of their population vaccinated may choose to offer the option of double masking and maintaining social distance in indoor public spaces; or
  3. If feasible, colleges and universities may choose to offer virtual learning.

The vaccine mandate for colleges and universities also requires that contractors be vaccinated, although the contracting agencies are to be responsible for maintaining vaccination and testing records.

Healthcare settings, colleges, and universities should ensure they have administrative processes in place to confirm proof of vaccination, identify employees and students with an exception, and conduct regular testing for those with an exemption. Ballard Spahr’s labor and employment team is ready to assist any employers seeking to roll out a mandatory vaccination program or a COVID-19 testing program.

On August 12, 2021, the new General Counsel of the National Labor Relations Board (NLRB or Board), Jennifer Abruzzo, announced her intention to target certain legal decisions issued in the last four years that she described as “doctrinal shifts” away from settled law, and a set of older decisions that she would like to “carefully examine.”  The memo, GC 21-04, identified nearly 40 decisions by the majority Trump-appointed NLRB that she described as shifting the balance of workplace power into the hands of employers, and which she views as ripe for “reexamination.”

Among the recent cases and subjects the memo identified for closer examination by the Division of Advice are:

  • Boeing Co., 365 NLRB No. 154 (2017), in which the Board imposed a new framework for evaluating workplace rules and policies such as confidentiality, non-disparagement, social media, communication with the media, and civility rules.
  • Valley Hospital Medical Center, 368 NLRB No. 139 (2019), in which the Board found it lawful for employers to cease dues deductions upon contract expiration.
  • MV Transportation, 368 NLRB No. 66 (2019), in which the Board did away with the “clear and unmistakable waiver” standard and replaced it with the “contract coverage standard” under which unilateral action is permitted if it falls within the compass or scope of certain contractual language.
  • Baylor University Medical Center, 369 NLRB No. 43 (2020), in which the Board permitted severance agreements requiring terminated workers to refrain from disparaging or suing the employer.
  • Apogee Retail LLC, d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), in which the Board held that employers may require confidentiality during the duration of a workplace investigation.
  • Alstate Maintenance LLC, 367 NLRB No. 68 (2019), in which the Board narrowed the scope of protected concerted activity.
  • SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019), in which the Board adopted “entrepreneurial opportunity” as a central pillar of independent contractor status.
  • Bethany College, 369 NLRB No. 98 (2020), in which the Board ceded jurisdiction over many religious educational institutions.
  • UPMC, 365 NLRB No. 153 (2017), which allowed the Board to approve a settlement agreement even over the objection of the General Counsel or charging party.

Abruzzo’s agenda is not limited to Trump-era decisions.  She also has her sights set on certain older pro-business decisions:

  • Whether non-union employees should have the right to representation in investigatory meetings. IBM Corp., 341 NLRB 1288 (2004).
  • Whether employers may tell employees that their access to management will be limited if they opt for union representation. Tri Cast, 274 NLRB 377 (1985).
  • Whether independent contractor misclassification is, in and of itself, a violation of the Act. See Velox Express, Inc., 368 NLRB No. 61 (2017).
  • Whether employers should be permitted to withdraw recognition after the third year of a contract of longer duration. Shaw’s Supermarkets, Inc., 350 NLRB 585 (2007).
  • Whether “salts” (planted union organizers) in the construction industry are entitled to a make-whole remedy. Oil Capitol Sheet Metal, Inc., 349 NLRB 1348 (2007).

The General Counsel is independent from the Board and is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of cases.  Abruzzo previously served as NLRB Acting General Counsel and Deputy General Counsel under President Obama.  Most recently, she served as Special Counsel for Strategic Initiatives for Communications Workers of America (CWA).

The memo comes as no surprise given the changing political winds at the NLRB and the General Counsel’s background.  Employers should soon expect a more pro-union, pro-employee stance by regional directors around the country.  With the coming Democratic majority on the five-member Board, employer conduct that is now lawful may soon be unlawful.  Employers should act carefully in areas identified by the memo as the General Counsel’s office will be looking for cases which it can use as vehicles to have the Board overrule the decisions targeted for review.