New York Labor and Employment Law Report

On May 20, 2024, the Occupational Safety and Health Administration’s (OSHA) announced a final rule updating the Hazard Communication Standard (HCS). The amended rule (29 CFR 1910) better aligns with the United Nations’ Globally Harmonized System of Classification and Labelling of Chemicals (GHS).

Read More >> OSHA Issues Final Rule on HazCom Standard

On May 31, 2024, the Occupational Safety and Health Administration’s (OSHA) new “Walkaround” rule will take effect. The amended rule (29 CFR 1903.8(c)) is a sea change for employers, as it was written with the intent of allowing union representatives to participate in OSHA inspections, even in non-union workplaces.

Read More >> O.S.H.A. Stands for…the Organizing Safety And Health Administration? OSHA’s New ‘Walkaround’ Rule Provides Entry Point for Unions

A new Occupational Safety and Health Association (OSHA) rule, “Improve Tracking of Workplace Injuries and Illnesses,” recently took effect on Jan. 1, 2024. This rule requires certain high-hazard employers with 100 or more employees to electronically submit OSHA Forms 300 and 301 by March 2 of each year—starting this year. Below is a list of general questions and answers relating to the new rule.

Read More >> New Year, New OSHA Reporting Rule

The wait is over. On Jan.13, 2022, the United States Supreme Court issued a decision to stay the Occupational Health and Safety Administration’s (OSHA) vaccination or test emergency temporary standard (ETS), effectively blocking the enforcement of the ETS for the foreseeable future.

Read More >> Supreme Court Blocks Enforcement of OSHA’s Vax-or-Test Rule; What Now?

It seems that change is the only constant when it comes to OSHA’s Vax or Test Emergency Temporary Standard (ETS). Here is the current status:

The Supreme Court’s Decision is Pending

On Friday, Jan. 7, the United States Supreme Court heard oral arguments regarding the ETS at a special session of the Court.¹ Challengers to the ETS requested that the Court issue a stay to stop the ETS before Jan. 10, stating that the mandate was overly broad and was a question that should be left to Congress or to be decided at the state-specific level. Though one cannot predict how the Court will rule, based on their line of questioning, a majority of the justices appeared to be skeptical of the ETS with Justice Alito quoting the late Justice Scalia when he described OSHA’s interpretation as “squeezing an elephant into a mousehole.” At the hearing, Justice Gorsuch and Justice Kavanaugh focused on the Major Questions Doctrine.² The justices also focused on whether OSHA had the authority to mandate a vaccine that impacts not only the workplace, but also employees’ lives outside the workplace, and is, to quote Chief Justice Roberts, an “out-in-the-world issue.” Additionally, the justices floated the idea of issuing a brief administrative stay until they could make a decision. Solicitor General Prelogar, appearing for OSHA, obviously disagreed and said that the Jan. 10 deadline did not pose a major burden on businesses, except for imposing mask requirements. The Court has announced that it will be issuing “one or more opinions” on Jan. 13. It is unclear if one of these opinions will be with respect to the ETS. We are awaiting the Court’s decision and will keep you informed.

Read More >> Status Update on OSHA’s Vax or Test Mandate: Supreme Court’s Decision is Pending; First Compliance Date is Here; OSHA Clarifies Additional Questions on the Mandate

It seems that new details about the status of OSHA’s Vax or Test Emergency Temporary Standard (ETS) are emerging daily! On Dec. 22, 2021, the United States Supreme Court announced that it will expedite hearing arguments regarding the ETS at a special session of the Court on Jan. 7, 2022.¹  This announcement comes on the heels of a rapid succession of litigation and court orders. In early November 2021, the Fifth Circuit had temporarily stayed implementation of the ETS, which was later lifted by the Sixth Circuit on Dec. 17. Almost immediately, plaintiffs challenging the ETS filed several requests with the Court asking the justices to order an emergency stay of the rule. Please review Bond’s Dec. 20, 2021 blog post for additional details.

Read More >> Supreme Court to Expedite Hearing on OSHA’s Vax or Test Mandate; Prepare for OSHA’s January 10 Deadline Now

On Friday, December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit lifted the Fifth Circuit’s stay order on the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination or Test and Mask Emergency Temporary Standard (ETS). The ETS applies to employers with 100 or more workers and impacts over 80 million workers in the United States. Under the rule as issued, employers have one of two choices. The first option is to mandate and verify that all of their employees are vaccinated against COVID-19. Employers not enacting the first option would be required to test unvaccinated employees weekly for COVID-19 and ensure these employees wear masks in the workplace. OSHA has announced it will begin issuing citations for noncompliance with the ETS’ administrative requirements after January 10, 2022, and the ETS’ testing requirements after February 9, 2022. 

Read More >> Is OSHA’s Vax Or Test Mandate Here To Stay?

On Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) released an emergency temporary standard (ETS) requiring all employers with 100 or more employees, with a few exceptions, to mandate vaccination or test employees weekly for COVID-19. OSHA justified the ETS by citing a “grave danger” posed by the coronavirus. Covered employers are required to develop, implement and enforce either a mandatory COVID-19 vaccination policy or a policy requiring employees to choose to get vaccinated or to undergo regular testing and wear a face covering at work. In addition, the ETS requires employers to provide paid time off for workers to get vaccinated and paid sick leave for employees to recover from any side effects resulting from vaccination.

Read More >> OSHA's Vax or Test Emergency Temporary Standard (ETS) is Here

On Sept. 6, 2021, Gov. Kathy Hochul directed the NYS Commissioner of Health to designate COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health. The designation is official and available on the NYS Department of Health (NYSDOH) website.

Read More >> Employers Activate Your HERO Act Plans! NY Commissioner of Health Issues NY HERO Act Designation for COVID-19

In a decision of interest to New York State employers subject to federal safety regulations, the Second Circuit Court of Appeals recently answered that question in the negative. In Bey v. City of New York¹, the Court concluded that where a federal safety regulation expressly prohibits a requested medical accommodation, that regulation trumps the requirements imposed by the Americans with Disabilities Act (the ADA) and Title VII and shields the employer from liability under those statutes. 

Read More >> Must an Employer Offer a Reasonable Accommodation if a Federal Safety Regulation Prohibits Such Accommodation? 

At long last, the Occupational Safety and Health Administration (OSHA) has finally released a COVID-19 standard that it has stated was coming since January. Healthcare employers will be required to abide by the new emergency temporary standard (ETS) published by OSHA (the last time OSHA issued an emergency standard was in 1983 to address asbestos exposure). The emergency workplace safety rule was published on OSHA’s website on June 10, 2021 and is effective immediately upon publication in the Federal Register. Voluntary guidance for other industries will follow.

Read More >> OSHA Releases COVID-19 Workplace Safety Rule for Health Care Employers

On Jan. 29, 2021, the Occupational Safety and Health Administration (OSHA) released updated guidance to assist most employers and workers with implementing a coronavirus prevention program and mitigating the risk of the spread of coronavirus. The guidance titled, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” (Guidance) was prepared to comply with President Biden’s Executive Order issued on Jan. 21, 2021, directing the federal government to take “swift action to reduce the risk that workers may contract COVID-19 in the workplace.” 

Read More >> OSHA Issues Stronger Workplace COVID-19 Safety Guidance