Federal agencies need to stay in their lanes

• National Labor Relations Board and Consumer Financial Protection Bureau announce new partnership to address employer surveillance, monitoring, and data collection in the workplace


• Worker advocates call on OSHA to set standard on employee surveillance


• NLRB General Counsel may seek to invalidate non-compete clauses in employee severance agreements

These are just a few of headlines I've recently read in which one federal agency or another is signaling an intent to regulate outside of its core mission. Federal agencies should stay in their lanes, period. OSHA regulates workplace safety. The NLRB regulates the relationship between unions and management, and in non-union settings the rights of employees to engage in protected concerted activity.

You won’t like OSHA when it’s angry

OSHA has proposed nearly $1.25 million in penalties against two Ohio Dollar Tree stores. 

The specific violations cited include hazards related to obstructed egress, unstable stacks, and inaccessible electrical equipment and fire extinguishers, in addition to trip and fall hazards caused by water leaking through the ceiling, carts, boxes, trash and merchandise spread throughout walking-working surfaces in the retail areas and storerooms.

These two sets of citation, however, only tell part of the story. 

Unlike ordering at Chick-Fil-A, legal compliance isn’t chosen from a menu.

"We are looking for volunteers for our new Drive Thru Express!🚘 Earn 5 free entrees per shift (1 hr) worked. Message us for details"

Anyone see anything wrong with this (since deleted) post? I sure do, as does my friend Suzanne Lucas (aka the Evil HR Lady), who correctly points out: "You cannot do this. Even if you want to declare yourself the Lord's chicken, you are still a for-profit business, and for-profit businesses cannot have volunteers. Not ever. Paying in sandwiches does not count."

To put in more succinctly, In a for-profit business, volunteer labor is illegal. Hard stop. 

Coronavirus Update 1-26-22: OSHA doesn’t need an ETS to go after your business’s Covid-safety deficiencies

With the Supreme Court effectively killing OSHA Covid-19 vax-or-test Emergency Temporary Standard, and OSHA now officially withdrawing it, employers might think that they are beyond the reach of OSHA for Covid safety-related issues. If you are one of those employers that thinks this way, you are very mistaken.

Consider Sanoh American, a Findley, Ohio, auto parts supplier. OSHA recently cited and fined it $26,527 for ignoring guidelines to limit Covid-19 exposure in its facility. While the company had social distancing and mask policies in place, it failed to follow or enforce them. As a result, 88 of the company's 270 Findley employees (nearly one-third of the local workforce) tested positive for Covid-19. Five of those positive employees were hospitalized and two unfortunately died. OSHA determined that one of those deaths was work-related.

Coronavirus Update 12-20-21: OSHA’s “vax or test" mandate is back on … for now

OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

That's what OSHA posted on the heels of the 6th Circuit's decision dissolving the 5th Circuit's stay of the agency's "vax or test" emergency temporary standard. 

BREAKING NEWS: 6th Circuit dissolves stay and re-starts OSHA’s vax-or-test emergency standard

In a 2-1 decision, the 6th Circuit has dissolved the 5th Circuit’s prior stay of the OSHA vax-or-test emergency temporary standard. The opinion is available here. 

In sum, Judge Stranch, writing with reason and common sense for the majority, concluded that the petitioners are unlikely to succeed on the merits of their claim that the ETS exceeded OSHA’s authority. 

Tragic workplace emergency safety lessons from a candle factory

Thus far, eight employees have tragically died inside the Mayfield Consumer Products candle factory from the tornado that tore through Mayfield, Kentucky, and left the factory a pile of rubble. That number, however, could have been much less.

According to NBC News, as the storm warnings came and tornado sirens blared, as many as 15 employees asked managers for permission to leave so that they could take shelter in their own homes. Instead of granting permission, managers threatened to fire anyone who left their shift early. Now at least eight employees are dead, and many more are injured. 

Coronavirus Update 11-17-2021: OSHA’s vax-or-test emergency standard is on life support

Yesterday brought two huge developments in the battle over OSHA's vaccine-or-test emergency temporary standard.  

First, the conservative 6th Circuit won the lottery to determine which circuit court of appeals will hear one consolidated challenge to OSHA's vax-or-test emergency temporary standard. 

Secondly, OSHA announced that it had suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

All in all a bad day for the pro-mandate crowd. 

I break down what it all means in this short video.

BREAKING NEWS: 5th Circuit issues new order continuing its stay of the OSHA vaccine-or-test ETS

In a 22-page opinion issued last night that I can only describe as a scathing rebuke of OSHA's vaccine-or-test emergency temporary standard, the 5th Circuit Court of Appeals formally granted a stay of the ETS pending a full review of the pending motion for permanent injunction, and further ordered that "OSHA take no steps to implement or enforce the Mandate until further court order."

BREAKING NEWS: OSHA publishes its vaccine-mandate emergency temporary standard

Write down November 4, 2021, as the Employment Lawyer Superbowl. At 8:45 am this morning, OSHA published its Covid-19 Vaccination and Testing Emergency Temporary Standard in the Federal Register. You can download and read all 490(!) pages of it here.

Most importantly, this rule takes effect immediately upon its publication in the Federal Register — i.e., today — but employers have 30 days, or until December 5, 2021, to comply with all requirements except testing for employees who are not fully vaccinated (which has a January 4, 2022, compliance date). 

This means that by no later than January 4, 2022, employers will need to ensure that their employees have received their final vaccination dose, with weekly testing required for unvaccinated employees thereafter.

Coronavirus Update 10-27-2021: No, employers, you can’t fire employees who complain about Covid health and safety issues

An employee sends this email to all of his coworkers: "It has come to my attention that an employee has tested positive for COVID-19. I feel it is important to inform all employees of the current situation."

An hour later management fires that employee. Their reason? His job was to fix cars, not police positive Covid tests in the workplace. 

That's exactly what the Department of Labor alleges happened at an Austin, Texas, car dealership in December 2020. Earlier this month, the agency filed suit under section 11(c) of the Occupational Safety & Health Act, which protects employees from retaliation for exercising their rights under the Act.

Coronavirus Update 10-14-2021: We still don’t know what OSHA’s vaccine standard says … but we’re getting closer

Late Tuesday, news broke that OSHA had submitted in vaccine mandate Emergency Temporary Standard to the White House’s Office of Information and Regulatory Affairs for its review. What does this mean? It means that OSHA has taken the first important step towards publishing the ETS and implementing its vaccine mandate for employers with 100 or more employees.

But that's it.

Coronavirus Update 6-11-2021: OSHA’s long-awaited COVID-19 safety rule is a big bowl of … meh

Today is the 15-month anniversary of the COVID-19 pandemic. All that employers have asked of OSHA during the past year and a quarter is some clear guidance on the rules and expectations to keep employees healthy and safe. Yesterday, OSHA finally complied … sort of. 

The agency issued an emergency rule that sets workplace safety parameters for employers for the remainder of the pandemic. Critically, however, it only applies to health-care employers. (Does this apply to you? OSHA published this not-so-handy flowchart to help you out.) With a few exceptions for workplaces in which all employees are fully vaccinated and which bar anyone who may have COVID-19, health-care employers must maintain social distancing protocols, provide and ensure that workers wear appropriate face masks while at work, and give workers paid time off to get vaccinated and recover from vaccine side effects, among other provisions. OHSA even published this handy screening questionnaire, which I drafted for my clients 15 month ago.

For all other employers, OSHA updated its voluntary guidelines to focus primarily on protections for unvaccinated and otherwise at-risk workers. These updates largely track the CDC's updated guidelines for the fully vaccinated. 

Coronavirus Update 6-8-2021: OSHA updates employers of N95 use

OSHA recently provided employers an update on the proper use of N95 masks, including a new video, poster (in English and Spanish), and FAQ (which makes is clear that "an N95 respirator is effective in protecting workers from the virus that causes COVID-19).

What employers can expect from Biden’s presidency: A temporary emergency OSHA standard for COVID-19

Today marks the one-year anniversary of the identification of the first COVID-19 case in the United States. On January 20, 2020, the State of Washington and the CDC confirmed that someone in Washington State had contracted the virus. Since then, 24,809,840 additional Americans have contracted Covid, and 411,520 have died from it. 

All the while, OSHA, the federal agency charged with protecting health and safety in the workplace, has done very little to address the pandemic, and we still lack a national safety standard on keeping Covid-safe at work.

President Biden's OSHA will fix this glaring omission. He has called on Congress "to authorize the Occupational Safety and Health Administration to issue a COVID-19 Protection Standard that covers a broad set of workers."

Coronavirus Update 11-5-2020: OSHA levies $2 million in COVID-related citations and penalties

Are you tired of the endless din of vote counts and election news? Let's get back to the uplifting topic of the ongoing COVID-19 pandemic.

OSHA recently announced a spate of COVID-related citations totaling $2,025,431 in fines. 

Coronavirus Update 8-19-2020: Government watchdog says OSHA whistleblower claims up, investigations down during pandemic

According to a report released yesterday by the Office of Inspector General, since the start of the COVID-19 pandemic, OSHA has been flooded with complaints by employees that their employers retaliated against them for making virus-related complaints. Yet, because of staffing shortages within OSHA's whistleblower protection program, the agency has been severely hampered in its ability to promptly investigate claims, resulting in significant investigatory delays.

Does the ADA protect employees who travel to areas that potentially expose them to coronavirus?

Coronavirus is 2020’s pandemic du jour. It’s a serious, and potentially deadly, respiratory virus that (likely) started in Wuhan, China, and has now made its way into the U.S. with five confirmed cases.

Suppose you fire an employee who you fear might have been exposed to the virus. She exhibits no symptoms, but because she had recently traveled to an area in which she could have been exposed, you think it’s better safe than sorry not to have her work for you anymore. She sues for disability discrimination, claiming that you “regarded her” as disabled. Does she win her case? The outcome might surprise you.

OSHA publishes new guidance on distracted driving

The reaction time of someone texting while driving is 35 percent worse than someone driving without any distractions. Compare that figure to the 12 percent deficit a drunk driver faces, and you begin to understand why distracted driving is so dangerous. Indeed, in 2018 alone, 4,637 people died in car crashes related to cell phone use.

OSHA understands this danger as well. Thus, in conjunction with Drive Safely Work Week (which occurred earlier this month), OSHA announced an educational campaign calling on employers to prevent work-related distracted driving, with a special focus on prohibiting texting while driving.

When workplace training goes very, very wrong

A few months ago I participated in active-shooter training. I presented harassment training for a local manufacturer, and, at its conclusion, the company played a 10-minute video explaining to its employees what to do in an active-shooter situation. Generally I'm not a fan of training videos. They tend to be boring, poorly acted, and ineffective. This one, however, was quite effective. It was not only chilling to watch, but, a few months out, I still recall the ABCs of what to do during an active shooter (Avoid, Barricade, Confront).

An Indiana school district, however, had a different idea of how to train its employees to prepare for an active shooter.

This employer had its employees shot in the back, execution style, with plastic pellets.