Legal Updates – March 2021


OSHA Issues New Guidance for Employers Combating COVID-19 in the Workplace

On January 29, 2021, the Occupational Safety and Health Administration (“OSHA”) published “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.”  This guidance is in accordance with President Biden’s Executive Order on Protecting Worker Health and Safety that was issued on January 21, 2021.  The guidance does not expressly create any new legal obligations for employers and is not a mandatory OSHA standard, but it is likely a preview of an emergency COVID-19 standard that is expected from OSHA in the near future.  The guidance also reminds employers that they already have enforceable obligations under existing federal regulations, including the obligation to provide a workplace free from recognized hazards such as COVID-19.

OSHA’s guidance emphasizes employee involvement, communication and training as best practices.  It encourages employers to implement a COVID-19 prevention program as the most effective way to mitigate the spread of COVID-19.  OSHA advises that a prevention program should contain the following elements:

  • Assign a workplace coordinator who will be responsible for COVID-19 issues on the employer’s behalf.
  • Identify where and how workers might be exposed to COVID-19 at work.
  • Identify a combination of measures that will limit the spread of COVID-19 in the workplace, in line with principles of the “hierarchy of controls.” Of note, OSHA recommends that all employees be provided a face covering at no cost.
  • Consider protections for workers at higher risk for severe illness (older adults and those with serious underlying medical conditions) through supportive policies and practices.
  • Establish a system for communicating effectively with workers and in a language they understand.
  • Educate and train workers on COVID-19 policies and procedures using accessible formats in a language they understand. Retain records of such trainings.
  • Instruct workers who are infected or potentially infected to stay home and isolate or quarantine.
  • Minimize the negative impact of quarantine and isolation on workers through telework or paid sick leave, when possible.
  • Isolate workers who show symptoms at work.
  • Perform enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility.
  • Provide guidance on screening and testing.
  • Record and report COVID-19 infections under existing regulations as explained in OSHA’s Revised Enforcement guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19).
  • Record and report COVID-19 deaths directly to OSHA, as explained in OSHA Reporting FAQs.
  • Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19 related hazards, consistent with Section 11(c) of the OSH Act.
  • Make a COVID-19 vaccination available at no cost to all eligible employees.
  • Do not distinguish between workers who are vaccinated and those who are not.
  • Comply with all other applicable OSHA standards relating to infection control.

While the OSHA guidance generally aligns with existing CDC guidelines and state law requirements, it also contains additional recommendations, such as improvements to building ventilation systems.  If some or all of these recommendations are incorporated into binding OSHA standards, which may be issues as soon as March 15, 2021, this could generate substantial increases in operating expenses for many businesses.  Stay tuned for updates when OSHA publishes binding standards.

President Biden’s Executive Order Prohibits LGBTQ+ Discrimination

On January 20, 2021, President Biden’s first day in office, he issued Executive Order 13988, “Preventing and Combatting Discrimination on the Basis of Gender Identity or Sexual Orientation.”  The Executive Order establishes the new administration’s policy prohibiting discrimination on the basis of gender identity and sexual orientation.  It also directs federal agencies to take affirmative steps to secure these rights.

The Order commits to enforcing the holding of Bostock v. Clayton County, the Supreme Court’s June 2020 decision in which the Court held, for the first time, that the Civil Rights Act’s prohibition against discrimination “because of sex” necessarily prohibits discrimination on the basis of gender identity or sexual orientation.

After Bostock was decided, several federal agencies, including the United States Department of Education, in interpreting Title IX of the Education Amendments Act of 1972, sought to distinguish Title VII in an effort to avoid applying Bostock to certain controversial matters.  Such matters include sex-separated bathrooms, locker rooms and athletic teams.  Under the Trump administration, the Department of Education refused to recognize the applicability of Bostock to such situations.  In addition to Title VII and Title IX, the Executive Order states that the Bostock decision applies with equal force to all “laws that prohibit sex discrimination,” including the Fair housing Act, the Affordable Care Act, and the Immigration and Nationality Act.

As a result of this Executive Order, employers across the country are likely to see an increase of discrimination claims brought by LGBTQ+ individuals under a variety of federal statutes.  The success of any lawsuits embracing this broader interpretation is far from certain, however.  The makeup of the Court has changed since delivering the Bostock decision and is now far more conservative.  Courts are also likely to see an increase in employers and other defendants seeking religious exemptions from such laws.

President Biden’s Executive Order is a return to Obama-era policies aimed at including LGBTQ+ individuals in anti-discrimination protections.  Other executive orders confirm the Biden Administration’s prioritization of civil rights protections.  For example, President Biden has also ordered the following:

  • The repeal of President Trump’s prohibition on transgender individuals serving in the military.
  • The rescission of the Trump Administration’s 1776 Commission and the removal of its report from the White House website. This report minimized America’s history of racial inequality.
  • The rescission of President Trump’s ban on diversity and racial inequality training for federal agencies and their contractors.
  • The directive that the White House Domestic Policy Council is to “coordinate efforts to embed principles, policies, and approaches across the Federal Government [including] efforts to remove systemic barriers to and provide equal access to opportunities and benefits, identify communities the Federal Government has underserved, and develop policies designed to advance equity for those communities.”

Bottom Line

The Executive Order directs all federal agencies to review and revise all existing orders, regulations, guidance documents, policies, programs, or other agency actions administered under any statute or regulation that prohibits sex discrimination for inconsistency with the Executive Order by April 30, 2021.  Educational institutions should review their policies and practices to ensure that they protect the rights of transgender students and employees and prohibit discrimination on the basis of sexual orientation.  Most significantly, schools must ensure their restroom and locker room access policies provide equal access to students and employees consistent with their gender identity.  Furthermore, any harassment prevention training should address LGBTQ+ related protections.  The Department of Education is expected to issue guidance to aid institution in complying with the Executive Order.

In addition to public schools, universities, and colleges, other employers fall under this Executive Order, including health insurers, healthcare professionals, landlords, and others subject to federal law.  All such entities should review their polices and procedures to ensure they are aligned with Bostock and the Executive Order.  Employers subject to federal law should take action to address any discrimination or harassment based on sexual orientation, gender identity, gender expression, and/or transgender status.  Such employers should also ensure their policies are applied equitably to prevent discrimination against the LGBTQ+ community.

The new Administration has shown strong policy in favor of LGBTQ+ and other civil rights protections.  Therefore, employers, even those not subject to this Executive Order should revisit employment policies and practices at this time as it is likely that the Biden Administration will push for all encompassing legislation to ensure protection for LGBTQ+ in all areas of the workforce.

Update: The EEOC Withdrew Proposed Wellness Rules

Last month we discussed the Equal Employment Opportunity Commission’s (“EEOC”) newest proposed wellness program in this post.  The EEOC had posted the proposed rules unofficially on their website, but the rules were not published in the Federal Register prior to President Biden’s inauguration.  Like most other incoming administrations, President Biden issued a regulatory freeze memo that asked that rules not yet published be withdrawn until the new administration has had time to review and approve them.  In accordance with this request, the EEOC announced that it has formally withdrawn the proposed rules and removed them from the website.

NLRB Finds Certain Cannabis Workers Are Not Protected by the NLRA

On January 25, 2021, the National Labor Relations Board’s (“NLRB”) Division of Advice released an Advice Memo regarding whether certain cannabis workers were exempt from the National Labor Relations Act as agricultural workers.

The NLRB determined that a Pennsylvania cannabis grower did not violate the NLRA when it fired two workers who attempted to organize their coworkers.  The workers, a cultivation associate and a trimmer, were agricultural workers and, as such, not protected under the NLRA.  Since the enactment of the NLRA, agricultural laborers have been excluded from the NLRA’s definition of “employee.”  When determining whether a worker is an “agricultural employee” the NLRB must look to whether the workers “perform a substantial amount of agricultural functions.”  Such agricultural functions include “cultivating, growing, harvesting, and preparing for market the raw plants, a horticultural commodity.”

The ruling is a welcome sign to employers in the cannabis industry as most states do not protect the right of agricultural workers to unionize.  Without federal protection, these cannabis industry workers may not have the ability to organize.