I recently wrote an article for New Hampshire Business Review on “What To Do if an OSHA Violation Arrives.”

Accidents happen.  It can happen to even the most safety-minded employers.  An employee falls from a ladder and breaks a bone.  A worker is injured on a piece of machinery.  Someone becomes ill after inhaling chemical fumes.  Any of these situations, and countless others, can lead to an OSHA inspector visiting your workplace.  Most often, when such an inspection follows a workplace injury, OSHA will most likely find at least one violation of one or more safety standards.  When that happens, OSHA will issue a Citation and Notification of Penalty.

The Citation will identify the specific violations found, with references to the particular OSHA standards at issue, along with a deadline for abating the violation, and the proposed penalty.

The first thing that employers must do when they receive an OSHA citation is to post a copy of the citation at or near the place where each violation occurred.  The posting requirement is meant to make employees aware that they may be exposed to hazards in the workplace.  OSHA regulations require that the Citation remain posted for three working days or until the violation is corrected, whichever is longer.

To read the rest of the article, click here.

The Internal Revenue Service announced last week that it was piloting a pre-examination retirement plan compliance program beginning this month. This program involves the IRS notifying an employer by letter in advance that the employer’s retirement plan was selected for an upcoming examination.

The letter gives the employer a 90-day window to review its retirement plan’s document and operations to determine if they meet all current tax law requirements. If the employer does not respond within 90 days, the IRS will contact the employer to schedule an examination.

Continue Reading IRS Announces New Retirement Plan Pre-Examination Program

The Massachusetts Wage Act, G.L. c. 149, §148 (the “Wage Act”) requires employers to pay employees discharged from employment all wages owed on the date of discharge.  Employees who resign from their employment must be paid all wages on the next regular payday following the end of their employment.  This requirement to pay all wages owed to an employee upon separation of employment includes an obligation to pay all regular wages, as well as an obligation to pay the employee for any accrued, unused vacation and certain commission payments.  Failure to comply with the Wage Act’s strict time deadlines will result in mandatory awards against the employer of treble damages and attorneys’ fees.  Certain officers and agents having management of the company may also face individual liability for violations.

Continue Reading Massachusetts Employers Beware! Treble Damages Are Available When Employers Are Even One Day Late with Final Wage Payment to Employee

The Massachusetts law providing up to forty hours of paid sick leave to employees for COVID-related absences will expire on March 15, 2022 according to a notice issued by Executive Office for Administration and Finance on Monday.  The law, which was enacted in May 2021, was meant to be effective until April 1, 2022, or the exhaustion of a fund established by the legislature to reimburse employers for the paid leave, whichever occurred first.

Continue Reading Massachusetts Emergency Paid Sick Leave Will End March 15, 2022

Earlier this month, Congress passed a bill that will effectively end mandatory arbitration in workplace sexual assault and harassment cases, providing employees with a choice of proceeding with their claims in either court or via arbitration.  The legislation, Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“Act”) was passed by a bi-partisan majority in the House and Senate and is expected to be signed into law by President Biden.  This law is significant as there are an estimated 60,000,000 workers in the United States who are subject to arbitration clauses, many of whom do not even realize it.

Continue Reading Congress Ends Mandatory Arbitration of Sexual Assault and Sexual Harassment Claims

On January 25, the Occupational Safety and Health Administration (“OSHA”) formally withdrew its Emergency Temporary Standard (“ETS”) on vaccinations, testing, and face coverings for large employers.  This decision follows the Supreme Court’s January 13 order blocking enforcement of the ETS.  While the Supreme Court’s action technically only stayed enforcement of the ETS pending further proceedings in the lower courts, the Court’s written opinion made clear that a majority of the Justices believe that OSHA had exceeded its Congressionally-granted authority to promulgate regulations to promote workplace safety.  This was widely viewed as a death knell for the ETS.

Continue Reading OSHA Withdraws Vaccine-or-Test Emergency Temporary Standard

On Thursday, the U.S. Supreme Court handed down a pair of anxiously-awaited decisions affecting tens of millions of American workers.

In the first decision, the Court stayed implementation of an Emergency Temporary Standard (“ETS”) issued by OSHA that would have required employers with 100 or more employees to adopt and enforce policies either (a) mandating COVID-19 vaccines for most workers, or (b) requiring unvaccinated workers to wear masks at work and get weekly tests for COVID-19.

Continue Reading Supreme Court Blocks Large-Employer Vaccine Rule and Allows Healthcare Vaccine Rule to Proceed

On January 6, 2022, the Tax Exempt and Government Entities (“TEGE”) division of the Internal Revenue Service released its Fiscal Year 2021 Accomplishments Letter (the “Letter”). Among other responsibilities, TEGE through its Employee Plans division has jurisdiction over tax issues involving retirement plans.  The United States Department of Labor shares jurisdiction and focuses on enforcement of the ERISA, the other primary law impacting benefit plans.  As the name suggests, the Letter described the accomplishments and results of various IRS compliance initiatives during the period October 1, 2020 to September 30, 2021.

Continue Reading IRS 2021 Accomplishments Letter Shows Retirement Plan Audit Activity Continues

On January 7, 2022, the U.S. Supreme Court will hear arguments on the federal vaccine mandates for employers with 100 or more employees and for healthcare facilities receiving federal funds.  The Court has ordered additional briefing on the issues and has set one hour for oral argument.

The Occupational Safety and Health Administration (“OSHA”) released its “COVID-19 Vaccination and Testing: Emergency Temporary Standard,” 86 Fed. Reg. 61,402 (the “ETS”) on November 5, 2021. The ETS mandates private employers with 100 or more employees to adopt a policy that requires employees to be fully vaccinated against COVID-19 or submit to weekly testing and mask wearing requirements.  With the litigation challenges and the timing of recent court decisions, employers now must comply with most of the ETS requirements by January 10, 2022 and the testing requirements by February 9, 2022.  McLane Middleton’s webinar on the ETS shortly after it was issued is found here.

Legal challenges to the ETS and OSHA’s authority to issue such emergency rules followed.  The Fifth Circuit Court of Appeals had originally stayed the enforcement of the ETS on an emergency basis on November 6, 2021 and then reaffirmed its decision on November 12, 2021 in a 22-page decision.  The federal court’s stay effectively blocked OSHA’s rule on a temporary basis.  My colleague’s blog post on the stay issued by the Fifth Circuit is found here.

In light of the multiple legal challenges to the ETS being brought across the country, a federal Judicial Panel on Multidistrict Litigation designated the Sixth Circuit Court of Appeals to hear the consolidated cases. OSHA filed a motion to dissolve the Fifth Circuit’s stay.  On December 17, 2021, the Sixth Circuit lifted the temporary stay and granted the government’s motion to dissolve the stay of the ETS.

The Sixth Circuit’s decision was directly appealed to the U.S. Supreme Court.  An application for stay was presented to Justice Kavanaugh and referred by him to the Court for oral argument.  At issue on appeal is OSHA’s authority to command a vaccine-and-testing regime on large, private employers.  According to information provided by the Court, an application is usually addressed to a single Justice assigned to the specific circuit or circuits, and the Justice may then decide the application or refer it to the full Court for consideration.  Five Justices must agree on an application if it is before the full Court.

In addition to OSHA issuing the ETS, the Centers for Medicare & Medicaid Services (“CMS”) issued a COVID-19 vaccination mandate for eligible staff at health care facilities that participate in the Medicare and Medicaid programs.  Following legal challenges, an application for stay was presented to Justice Alito of the U.S. Supreme Court and referred by him to the Court for oral argument.  Authority of the Secretary of Health and Human Services to mandate a vaccination requirement is at issue on appeal.

The Court consolidated the above applications and a total of one hour has been allotted for oral argument on Friday, January 7, 2022.  Additional briefing on the applications is due to the Court by 4:00 P.M. on December 30, 2021 and replies by January 3, 2022.

After the Sixth Circuit’s lifting of the stay, OSHA reported that it will “once again implement” the ETS and advised that it “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.”

Accordingly, with the stay lifted on the ETS requirements, private employers who had started preparing for the ETS may want to consider taking steps to continue their planning processes to meet those mandates.   Even with the emergency applications and the expedited hearing schedule, the Court will not hear oral arguments by the parties until January 7, 2022, only three days before OSHA indicated it will begin to take enforcement action.  As noted above, OSHA will look for “reasonable, good faith efforts” at compliance by employers.

On December 14, 2021, the EEOC updated its guidance entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws to include a section on how the definition of disability applies to COVID-19.  The section includes helpful Q and A addressing when COVID-19 becomes an actual disability.

Continue Reading EEOC Updates Guidance To Address Whether COVID-19 Is a Disability