A series of recent criminal prosecutions stemming from workplace fatalities in connection with OSHA’s worker safety laws underscore the Justice Department’s willingness to charge OSH Act crimes, even in the absence of other Title 18 offenses or other criminal charges.
On August 10, 2022, major changes in Colorado law go into effect for restrictive employment covenants, i.e., covenants not to compete (non-competition covenants) and covenants not to solicit customers of an employee’s former employer (non-solicitation covenants). For many years, Colorado has limited non-competition covenants by statute, Colorado Revised Statutes §8-2-113, which prohibits non-competition covenants with specified exceptions, including when they are part of a contract for sale of a business. The most frequent and heavily litigated exception in the old law permitted an employer to require non-competition covenants for executive and management personnel, and for officers and employees who constitute professional staff to such personnel. Courts and parties frequently wrestled with the question whether an employee had been an “executive” or “management” personnel of the former employer.
On Friday June 24, 2022, the United States Supreme Court issued a decision that overrules Roe v. Wade. See Dobbs et al. v. Jackson Women’s Health Org. et al., Case No. 19-1392 (slip opinion). According to the decision, the federal constitution does not bestow the right to an abortion or protect an individual woman’s personal liberty interest concerning the same, but rather each state may fully regulate and outright ban or criminalize procedures as each state sees fit. As is discussed further below, this decision has important implications for employers that will now need to carefully review and potentially tailor their policies to accommodate individual states’ varying views on the legality and morality of abortion and individual liberty interests.
With a stated goal of increasing transparency and preventing workplace injuries and illness, employers across a wide spectrum of industries need to be aware of two separate recordkeeping and reporting efforts by OSHA. On April 5, 2022, the agency outlined a new enforcement initiative for employers failing to submit 300A annual electronic submissions as required under 29 CFR 1904.41. OSHA’s new enforcement priority comes on the heels of the agency’s March 28, 2022, proposed rule that would significantly alter the manner and methodology of workplace injury and illness reporting.
On February 10, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the “Act”) and sent the Act to President Biden for signature. President Biden is expected to sign the bill quickly this week, which will become law immediately upon signature by the President.
On January 25, 2022, the Occupational Safety and Health Administration (“OSHA”) announced that it was withdrawing the Vaccination and Testing Emergency Temporary Standard (the “ETS”). This withdrawal was made in light of the Supreme Court’s ruling on January 13th which stayed the implementation and enforcement of the ETS. We discussed the Supreme Court decision here. In its decision, the Court signaled that OSHA might be able to successfully promulgate industry-focused standards that include vaccination and testing components.
Today the United States Supreme Court issued a decision staying implementation and enforcement of the Emergency Temporary Standard (“ETS”) issued by the federal Occupational Safety and Health Administration (OSHA) requiring employers with 100 or more employees to adopt policies mandating COVID-19 vaccination and testing, at least while legal challenges to the ETS proceed through lower courts. This means that for now, employers covered by the federal ETS are not required to comply with it.
On December 27, 2021, OSHA issued a statement to address the confusion surrounding the status of the Healthcare Emergency Temporary Standard (the “Healthcare ETS”) implemented on June 21, 2021. The confusion arose because the Healthcare ETS was a temporary standard that was intended to be effective until it was replaced by a permanent standard. However, the OSH Act provides that the permanent standard should be promulgated within six (6) months from the adoption of the temporary standard. This means that OSHA needed to implement a permanent standard to replace the Healthcare ETS by December 20, 2021. This did not occur.
On Monday, December 27, 2021, the Centers for Disease Control and Prevention (CDC) provided new guidance regarding quarantine and isolation periods for those who test positive for COVID-19 and those who have been exposed to COVID-19. The guidance comes at a time when COVID-19 cases are rising across the country, likely because of the new highly-transmissible Omicron variant. The CDC’s guidance is not a “mandate” of any sort, but rather, serves as a recommendation that can be used by employers when addressing staffing shortages and determining when to safely permit or require employees who have been infected or exposed to return to work.
The Ray Baum’s Act (the “Act”) requires companies to implement additional safeguards related to dialing 911 from the companies’ phone systems, including any software programs used by computers to make phone calls. Aspects of the Act related to landlines/VOIP phones are already in effect and are less controversial. However, many companies have been caught off-guard given the Act applies to software technology and enforcement of the Act begins January 6, 2022. Many companies utilize software programs like Jabber, Webex, Teams, Zoom, and other platforms that allow for the ability to make phone calls from a computer.