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Get Ready for OSHA's New Emergency Temporary Standard Mandating COVID Vaccinations

14 Oct 2021 00:00:00 -0800

As you know, on September 9, 2021, President Biden instructed the Occupational Safety and Health Administration to issue a new ETS requiring most employers to either require their employees to be vaccinated against COVID-19 or else submit weekly COVID-19 tests. This Tuesday, October 12, 2021, the U.S. Department of Labor announced that it had sent the new ETS to the White House Office of Information and Regulatory Affairs. Although the OIRA usually takes weeks to make a final review, President Biden is certain to press them to act quickly on this new ETS. Employers should get ready for it to be issued in the next couple of weeks.

Back to the Basics

08 Oct 2021 00:00:00 -0800

Some of you probably know that my father is the former head football coach of the LSU Football Tigers. My Dad used to tell me that if you take care of the basics: knowing your assignment, blocking, and tackling, the wins will usually follow. In HR, like football, there are some basic concepts that we really need to get right if we are going to be successful. (Have you ever seen a more tortured segue from football to wage and hour law?)

One of the basic concepts that I have recently seen employers neglect is that an employee can almost never qualify as exempt from overtime under the FLSA if they are not paid on a salary basis. Over time, deductions from salaries seem get implemented without anyone noticing that they are jeopardizing the exempt nature of the position.

In order to qualify as exempt under the FLSA an employee usually must meet both the salary test and one of the white-collar duties tests (Administrative, Executive, Professional…). I say “usually” because the salary test does not apply to outside salespeople, teachers, doctors, and lawyers.

In order for a compensation system to qualify as a “salary”, it must guarantee the employee set compensation of not less than $684 per week regardless of the number of hours that the employee works or the quality of that work. The fact that an employee is never paid less than $684 per week will not satisfy the salary test if the employee is actually paid by the hour.

Making deductions from an employee’s salary for anything other than one of the recognized exceptions, (FMLA leave, full-day absence for personal reasons, sick leave, jury or witness fees….) will usually result in the loss of the exemption-meaning that the employee will be entitled to overtime. Depending upon the facts and who “caught” the error, this overtime might be owed for a few weeks or a few years. This is where many employers make a mistake, believing that they can reduce an employee’s salary for working less than 40 hours as long as the employee is paid at least $684 per week.

This does not mean that an exempt employee may only be paid a salary. The FLSA allows for an employer to pay an exempt employee compensation in addition to their salary in the form of bonuses, commissions, by the hour etc. There are, however, limits on how much “additional” compensation can be paid to an exempt employee in relation to her set salary without losing the exemption.

As I have indicated in my past updates, the Department of Labor Wage and Hour Division has become much more aggressive in their enforcement of the FLSA. I would strongly encourage you to take some time and audit your compensation practices to see if they comply with the FLSA. If you have not committed each position's job duties and compensation plan to writing, I would encourage you to do so. In my experience, confusion about compensation leads to disputes and litigation. Putting the compensation plan into a written document signed by both the employee and the employer will help to reduce the chances of a misunderstanding.

Management Update Newsletter Volume 10, Issue 10

04 Oct 2021 00:00:00 -0800

Don't Violate Louisiana's Governmental Ethics Laws This Holiday Gift-Giving Season When It Comes to Public Employees

01 Oct 2021 00:00:00 -0800

It is that time of the year again – governmental ethics violations when gift giving to public employees. Louisiana’s governmental ethics laws significantly restrict – in fact, virtually eliminate – the giving of gifts to public employees from businesses in the private sector that do business with them. That innocent holiday gift is actually against the law. Simply put, when it comes to gift giving and governmental ethics, they simply do not mix.

Louisiana law prohibits a public employee from being given “anything of economic value” by anyone seeking a contractual, business, or financial relationship with the public servant’s agency or anyone who is seeking to influence the passage or defeat legislation by the public servant’s agency. This means that traditional gift baskets of Louisiana spices, pecans, wine, or any other product is a violation of the governmental ethics law if the giver has a business relationship with the public employee’s agency. And it is not only a violation of the ethics law to give a public employee such a gift; rather, the public employee’s acceptance of the gift also violates Louisiana’s governmental ethics law.

Practically, the only thing that a person or company can give to a public employee with whom they have a contractual business or financial relationship is a greeting card; or a calendar or pen that does not have any resale value. But you can give your child’s teacher a nominal gift. You can also pay for a public employee’s meal as long as its value does not exceed $65.00 and you are dining with them.

But he/she is my friend! The standard excuse for violating the governmental ethics laws during the holiday season. Louisiana’s governmental ethics laws do not recognize this excuse as a defense to a violation. Simply put, friendship – no matter how close – does not matter.

Businesses need to keep in mind that they can probably not give the gift they may want to give to a public employee. Always check with legal counsel.

Otherwise, for each gift you give in violation of the governmental ethics laws you face a $10,000.00 fine and possible criminal charges. As for the recipient, the penalty can be all of those penalties and forfeiture of the gift. For both, the giver and receiver, the penalty always includes a public sanction – which could affect the giver’s ability to do business in the future in the State of Louisiana and, for the recipient, could be detrimental to their future success.

Safer Federal Workforce Task Force Issues Covid-19 Guidance

27 Sep 2021 00:00:00 -0800

Last Friday the Safer Federal Workforce Task Force issued a new Guidance related to President Biden’s September 9, 2021, Executive Order 14042 “Ensuring Adequate COVID Safety Protocols for Federal Contractors.”

Both the Guidance and E.O. 14042 apply to companies with a Federal contract or “contract-like instrument” of $250,000 or more. Contractors and subcontractors of all tiers are covered unless the contract or subcontract is solely for the manufacture or provision of products. Contracts for services and leaseholds are covered, and there is no small business exception. The Guidance applies to new contracts awarded on or after November 14, 2021, and to extensions of existing contracts.

The Guidance requires thousands of businesses to verify that their employees have received the COVID vaccine. It also imposes certain masking and social distancing requirements.

Significantly, the Guidance is in addition to any applicable OSHA standard, and it supersedes any conflicting state or local laws. However, compliance with the Guidance does not excuse failure to comply with applicable state or local laws that are more stringent.

You can find the Guidance here: https://www.saferfederalworkforce.gov/downloads/Draft%20contractor%20guidance%20doc_20210922.pdf

· Generally, the Guidance requires covered contractors to:

· Require all employees who are not legally entitled to an accommodation to be fully vaccinated by December 8, 2021.

· Require employees to provide documentation proving their vaccination status, including those who work remotely. Employers cannot merely accept an employee’s word that they have been vaccinated.

· Ensure that all persons on a covered site, employees, visitors, and vendors alike, comply with CDC guidance regarding masking and physical distancing. This will require fully vaccinated employees to wear masks in areas of high or substantial community transmission in indoor settings.

· Check the CDC COVID-19 Data Tracker County View website (https://covid.cdc.gov/covid-data-tracker/#county-view) at least weekly and implement additional protective measures where required.

· Identify one or more Coordinators who will be responsible to coordinate and document the implementation of their compliance with the Guidance. If you don’t document it, you did not do it.

The Task Force may issue binding revisions to the Guidance in the future, so federal contractors should keep their eyes open.

Democrats Propose Bill to Increase Maximum Penalty for OSHA "Willful" Violations to $700,000 as Part of $3.5 Trillion Budget Reconciliation Package

21 Sep 2021 00:00:00 -0800

The proposed penalty increase is part of a $707 million OSHA budget increase through 2026 that is contained in President Biden’s $3.5 trillion budget reconciliation package. President Biden has repeatedly expressed his intent to ramp up staffing levels at OSHA to facility increased inspections and investigations. This budget increase will allow OSHA to do just that.

Most significantly for employers, if passed the bill will raise the maximum fine for Willful and Repeat violations from $136,532 to $700,000.

The maximum fines for failure-to-abate would increase from $13,653 to $70,000.

Considering the staggering increase in the potential fines and the likelihood of increased inspections if the bill passes, it is more important than ever that employers ensure that their workplace safety polices, procedures and training activities are up to date and current. It is also critical that employers have a plan to respond when an OSHA investigator knocks on the door.

Mr. Stovall has assisted many employers throughout the United States in the creating of OSHA response plans and in the defense of OSHA Citations. Do not hesitate to call on him should you need assistance.

OSHA is Tripling Down on Heat-Related Hazards

21 Sep 2021 00:00:00 -0800

Today the Occupational Safety and Health Administration issued a Press Release announcing OSHA’s intention to take aggressive action to “combat the hazards associated with extreme heat exposure…” Given our climate, these actions will necessarily impact a great many of us.

OSHA is going to take a multi-prong approach to this issue.

First, on September 1, 2021 OSHA implemented an Enforcement Initiative regarding heat-related illness and injuries. Under the Initiative, OSHA prioritized heat-related inspections on days that the temperature exceeds 80 degrees. The Initiative focuses primarily on General Industry, Construction, Agriculture and Maritime.

Second, in October of this year OSHA will issue an Advance Notice of Proposed Rulemaking on heat-related illnesses and injuries. This is the first step in developing a Standard on heat-related hazards. This means that OSHA may issue a new, detailed heat-hazard Standard some time next year.

Third, in 2022 OSHA will announce a new National Emphasis Program on heat-hazards. This will target certain industries and allocate OSHA staff on heat-related inspections. (This will be in addition to the existing Regional Emphasis Program for Heat Illnesses in effect covering Arkansas, Louisiana, New Mexico, Oklahoma, and Texas.)

Employer take-away. Employers will need to keep their eyes out for a new heat-related Standard in 2022, while at the same time ensuring that their current heat-related safety policies and practices are up to speed and well documented. The first thing OSHA is going to ask for in an audit or inspection is the written heat illness prevention program. If you don’t have one, now is the time to create it.

Biden's Path Out of the Pandemic: Employers Aren't Out of the Woods Yet

16 Sep 2021 00:00:00 -0800

Late last week, President Biden released his updated “Path Out of the Pandemic” plan, which mandates COVID-19 vaccinations for certain employees of covered federal government contractors/subcontractors, Medicare/Medicaid-participating healthcare employers, and federal agencies. The plan also requires the U.S. Occupational Safety and Health Administration (OSHA) to develop a rule requiring employees of all employers with 100 or more workers to be vaccinated or provide a negative COVID-19 test result on at least a weekly basis before coming to work. Although the mandates are not yet in effect, employers can begin to prepare by familiarizing themselves with the new requirements, considering how their businesses might be affected, and planning next steps.

Employers with 100 or More Employees: Vaccination Requirement or Negative Test Result In lieu of Vaccination

President Biden’s Path Out of the Pandemic plan states that OSHA is developing an emergency rule to require all employers with 100 or more employees to (1) require their employees to be fully vaccinated or provide a negative COVID-19 test result at least once per week before coming to work; and (2) provide paid time off for employees to get vaccinated or recover from post-vaccination side effects.

Although the federal government has not yet announced when OSHA might issue the emergency temporary standard for employers with 100 or more employees, it is expected to occur in the coming weeks.

Certain Federal Contractors & Subcontractors: Vaccination Requirement

As part of the “Path Out of the Pandemic” plan, President Biden also issued a new Executive Order that requires some—but not all—federal government contractors and subcontractors to comply with the Safer Federal Workforce Task Force Guidance, which Guidance is to be issued by September 24, 2021. It is expected that all employees working on or in connection with a covered federal government contract/subcontract will be required to receive the COVID-19 vaccination. Unlike the OSHA rule for employers with 100+ employees, the Order does not allow covered employees to provide a negative COVID-19 test result on a weekly basis in lieu of receiving the vaccination.

Generally, the Order covers contracts (or contract-like instruments) that exceed the current simplified acquisition threshold of $250,000, and which are entered into, extended, renewed, or under which an option is exercised, on or after October 15, 2021, for any of the following:

the procurement of services, construction, or a leasehold interest in real property;
services covered by the Service Contract Act;
concessions; and
services offered to federal employees, their dependents, and the general public in connection with federal property or lands.

“Subcontractors (at any tier)” to executive-agency contracts for services, construction, or a leasehold interest in real property are also covered.

The Order does not cover:

grants;
contracts or contract-like instruments with Indian Tribes;
contracts with a value equal to or less than the FAR simplified acquisition threshold of $250,000;
agreements involving employees performing work outside the U.S.; and
subcontracts solely for the provision of products.

Further, it appears that the Order does not apply to federal contractors/subcontractors with manufacturing contracts (Walsh-Healey Act contracts) or financial institutions that serve as a depository of federal funds.

Although the Order is effective immediately, its requirements (and the requirements of future Guidance to be issued under the Order) will apply to contracts or contract-like instruments entered into, extended, renewed, or under which an option is exercised, on or after October 15, 2021. The Order states that federal contractors with existing contracts or pending solicitations are “strongly encouraged, to the extent permitted by law” to follow the new rules.

It appears that only certain employees—those working on/in connection with a covered contract—may be subject to the Order’s vaccine mandate, as the Order does not appear to necessarily cover all employees of covered federal contractors/subcontractors. However, if a contractor has 100+ employees, it appears that those employees not covered by the Order would still be subject to the OSHA rule requiring them to get the COVID-19 vaccination or provide a negative COVID-19 test result on at least a weekly basis.

Health Care Workers at Medicare and Medicaid-Participating Hospitals and Other Facilities: Vaccination Requirement

In addition, the Centers for Medicare & Medicaid Services will require COVID-19 vaccinations for employees in most health care settings that receive federal Medicare or Medicaid reimbursement, including hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. The requirement is expected to cover nursing home and hospital staff, as well as other CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care.

Many Questions for Employers Remain

In light of the new rules, employers will need to consider many issues, with a tailored approach for each employer that depends on numerous factors, including employer location and industry. Such issues and unanswered questions include:

handling employee requests for exemptions for protected legal activities or characteristics (such as religious and/or medical accommodations);
whether there will be other exceptions to the vaccine/testing requirements, and how employers should address such exceptions;
whether employers can ask job applicants if they have been vaccinated and/or if they are willing to be tested frequently;
whether employers must pay for the cost of vaccination, to the extent the cost is not otherwise covered by group health insurance or the government;
whether employers must pay for time spent by employees to be vaccinated or tested;
whether employers will pay employees who become ill as a side effect of the vaccine;
what process should employers use to ensure compliance by both employees and non-employees who want to enter company property—including customers, clients, vendors, and suppliers—and whether businesses can require temporary employees and employees of third parties to provide proof of compliance;
what records must employers maintain to prove compliance, including issues related to confidentiality of personnel records; and
what should employers do now before the new rules go into effect.

Although some employers will welcome the new requirements, the rules will pose numerous challenges for others. Please contact our Firm if you want to discuss this further.

HHS Proposed Rule Implements New Air Ambulance Reporting Requirements

16 Sep 2021 00:00:00 -0800

Due to the air ambulance market that frequently results in surprise bills, the U.S. Department of Health and Human Services (HHS) announced a proposed rule that requires plans, issuers of individual health insurance coverage, and providers of air ambulance services to submit detailed data regarding air ambulance services specified in the reporting requirements of the “No Surprises Act.” The proposed rule also allows HHS to collect data related to market trends and costs in an effort to address air ambulance expenses.

Currently, air ambulance providers are prohibited from sending surprise bills to Medicaid and Medicare beneficiaries. This prohibition typically does not apply to those with private insurance, as air ambulance trips are typically out-of-network. The No Surprises Act addresses this and bans surprise bills for patients who use out-of-network air ambulance services and limits the amount they pay out of pocket, starting next year.

More details available at: https://www.cms.gov/newsroom/fact-sheets/air-ambulance-nprm-fact-sheet

Back to the Future!!

14 Sep 2021 00:00:00 -0800

The scope of regulatory jurisdiction over navigable waters and wetlands has again come into question under the Biden Administration. Over the course of four administrations, this jurisdiction has been explained, expanded, enjoined, restricted, and remanded to the point where the public has little confidence in continuity over time. Now, to determine jurisdiction over waters and wetlands, we go back to prior guidance while the future of regulatory jurisdiction is determined through yet another rulemaking.

The Clean Water Act regulates discharges of pollutants from point sources to navigable waters, defined in the Act as “waters of the United States” or WOTUS. The regulatory definition of WOTUS has expanded over the years, increasing regulatory jurisdiction over an ever-expanding amount of waters and wetlands. In 2006, the Supreme Court muddied the waters in the Rapanos case, in which Justice Scalia and Justice Kennedy both wrote opinions regarding the scope of authority to regulate WOTUS.

Justice Scalia took a narrow view, concluding that WOTUS includes relatively permanent, standing, or continuously flowing bodies of water and wetlands with a continuous surface connection to those waters. Justice Kennedy found that wetlands are jurisdictional if there is a significant nexus between the wetlands and traditionally navigable waters such that the wetlands significantly affect the chemical, physical, and biological integrity of those waters.

In 2015, the Obama Administration adopted the Clean Water Rule, which significantly expanded the jurisdictional reach of the agencies by, among other things, expanding the definition of tributaries. In 2017, President Trump issued an executive order directing the agencies to review and replace the Clean Water Rule with a regulation adopting the reasoning of Justice Scalia's opinion in Rapanos. In 2020, the agencies issued the Navigable Water Protection Rule, or NWPR, which defined WOTUS in accordance with Justice Scalia’s narrower view.

On January 20, 2021, President Biden issued Executive Order 13990 in which he ordered all federal agencies to review “all existing regulations, orders, guidance documents, policies, and any other similar agency actions” taken during the Trump Administration to determine if those actions conflicted with the “national objectives” set forth in the EO 13990. EPA and the Corps have determined that the NWPR must be replaced.

EPA then filed a motion in federal court to remand the NWPR. The district court granted the motion, remanding the rule back to EPA and vacating it as well. In response, the EPA and the Corps halted implementation of the NWPR and are interpreting WOTUS consistent with the pre-2015 regulatory regime.

As a result, the EPA and the Corps interpret WOTUS in accordance with a guidance document issued in the wake of the Rapanos decision. The guidance builds on Justice Scalia’s narrower view, but also asserts jurisdiction over all waters with a significant nexus to traditional navigable waters, including non-navigable tributaries that are not relatively permanent and wetlands adjacent to those waters. To determine if a significant nexus exists, the agencies will assess the flow characteristics and functions of the tributary itself and the functions performed by all wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical and biological integrity of downstream traditional navigable waters.

To their credit, the agencies claim to want a durable and long-lasting definition that finds a common ground between an overly expansive or restrictive definition. Hopefully, they can do so and future administrations will avoid revising the rule every four or eight years.