Management Memo

As explained in greater detail by our colleague Stuart M. Gerson, the Supreme Court of the United States handed down two major, and quickly decided, rulings on January 13, 2022. After hearing oral arguments only six days earlier, the Court issued two unsigned decisions per curiam. A 5-4 decision in Biden v. Missouri dissolved a preliminary injunction against enforcement of an interim final rule (“Rule”) promulgated by the Centers for Medicare & Medicaid Services (CMS), requiring recipients of federal Medicare and Medicaid funding to ensure that their employees are vaccinated against COVID-19.

But the Biden administration’s effort to promote universal vaccination with a more sweeping rule—an Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) and directed at all U.S. employers with at least 100 employees—was blocked by the high court. A 6-3 decision reversed the action taken by U.S. Court of Appeals for the Sixth Circuit in December, and reimposed a stay of the ETS, meaning that OSHA may not enforce the mandate pending the outcome of further litigation.

Last week, as widely reported, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) to Protect Workers from the COVID-19 (see full details in our Insight). Currently the subject of much pending litigation including a Temporary Restraining Order (TRO) and thus, for the time being, in limbo, the ETS is nonetheless a set of federal regulations that, unless overturned, applies to a large proportion of U.S. employers with 100 or more workers and requires those employers to either: (a) mandate that all ...

On April 25, 2017, Dorothy Dougherty, Deputy Assistant Secretary of the Occupational Safety and Health Administration (“OSHA”) and Thomas Galassi, Director of OSHA’s Directorate of Enforcement Programs, issued a Memorandum to the agency’s Regional Administrators notifying them of the withdrawal of its previous guidance, commonly referred to as the Fairfax Memorandum, permitting “workers at a worksite without a collective bargaining agreement” to designate “a person affiliated with a union or community organization to act on their behalf as a walkaround ...

As we reported last week, the U.S. District Court refused to dismiss a challenge to OSHA’s controversial 2013 Fairfax Memorandum, which allowed for the participation of union representatives in OSHA safety inspections at workplaces where the union did not represent the workers.   We asked at the time whether the Trump Administration would continue to defend that change in policy.  This week, we saw the first concrete evidence suggesting that OSHA is at least reconsidering and may at a minimum drop its defense of the practice.

On Monday February 13^th, OSHA filed an Unopposed Motion ...

A United States District Court in Texas has refused to dismiss a law suit challenging OSHA’s practice of allowing union representatives and organizers to serve as “employee representatives” in inspections of non-union worksites. If the Court ultimately sustains the plaintiff’s claims, unions will lose another often valuable organizing tool that has provided them with visibility and access to employees in connection with organizing campaigns.

The National Federation of Independent Business (‘NFIB”) filed suit to challenge an OSHA Standard Interpretation ...

On Epstein Becker Green's OSHA Law Update blog, Eric Conn reviews an article about OSHA's web-based "Worker Safety in Hospitals" guidance. The article is entitled "Hospitals' Heavy Lifting: Understanding OSHA's New Hospital Worker and Patient Safety Guidance" and is co-authored by our colleagues Eric Conn, James Frank, and Serra Schlanger. As Management Memo readers are aware, unions frequently use OSHA complaints as a tactic in corporate campaigns and OSHA has increased its cooperation with the NLRB in their enforcement mandates.  OSHA compliance is an important part of any ...

Our colleague Eric Conn, Chair of Epstein Becker Green's OSHA Practice Group, will present a complimentary webinar on April 8, at 1:00 p.m. EDT: OSHA's Temporary Worker Initiative. Topics include enforcement issues and data related to this work relationship, and recommendations and strategies for managing safety and health issues related to a temporary workforce.

Companies are expected to employ many more temporary workers as the Affordable Care Act is implemented, particularly when the "Employer Mandate" kicks in, which will require employers with 50 or more workers to ...

By Paul H. Burmeister and Eric J. Conn

On April 5, 2013, OSHA published a formal Interpretation Letter (dated February 21, 2013) addressing whether, pursuant to OSHA’s regulation at 29 C.F.R. 1903.8(c) (Representatives of Employers and Employees), employees at a worksite without a collective bargaining agreement may authorize a person affiliated with a union or community organization to act as the employees’ representative during proceedings under the OSH Act, including compliance inspections. OSHA responded affirmatively.

29 C.F.R. 1903.8(c) provides:

"The ...