COVID-19 on the Brain: Neurological Symptoms Persist in Majority of Long-Haulers

A new study offers scientific evidence supporting permanent neurological disability flowing from an occupational COVID-19 condition. Researchers at University of California San Diego School of Medicine are conducting a longitudinal study to track neurological symptoms in COVID-19 “long-haulers.”

Penalties for Delay in Payment Excessive

Waiting for timely payment of a workers’ compensation award can sometimes be a frustrating experience for an injured worker. The penalties assessed for the delay in paying a workers’ compensation award were an issue of first impression reviewed by the NJ Appellate Division.

Household Contacts can sue an employer for harm caused by COVID

The longstanding principle that household contacts of an employee can sue an employer for harm has been upheld in a California claim. An employee who brought home the COVID virus and infected a household member, in this case, death, was the basis of a direct case by the deceased family member’s estate against the employer.

Parking Lot Cases to be Compensable Under Legislation Sent to the Governor

The NJ Legislature has passed and sent to the Governor legislation that expands workers’ compensation coverage to parking areas provided by an employer. 

OMG, Omicron!

A panel of infectious disease experts and public health specialists of the Veterans Administration who have been involved in the national COVID response discuss strategies to contain the spread of the Omicron variant and stay safe.

CMS Announces 2022 Workers' Compensation Recovery Threshold to Remain at $750.00

Computation of Annual Recovery Thresholds for Certain Liability Insurance, No-Fault Insurance, and Workers' Compensation Settlements, Judgments, Awards, or Other Payments for 2022 were announced this week.

In the Fog of COVID

The US Bureau of Labor Statistics (BLS) has released the 2020 summary of fatal occupational injuries. Unfortunately, it has ignored the COVID cases that are occupationally related.

OSHA Emergency Temporary COVID Standard Upheld by Federal Court of Appeals

The Sixth Circuit Court of Appeals reversed the Fifth Circuit Court of Appeals’ decision staying the Biden Administration’s Emergency Temporary Standard (ETS) of the Occupational Safety and Health Administration (OSHA). The split decision (2-1) of the three-judge panel upholds vaccine mandates against COVID infections for places of employment having 100 or more employees. 

An appeal to the US Supreme court is anticipated.

Summary

“The COVID-19 pandemic has wreaked havoc across America, leading to the loss of over 800,000 lives, shutting down workplaces and jobs across the country, and threatening our economy. Throughout, American employees have been trying to survive financially and hoping to find a way to return to their jobs. Despite access to vaccines and better testing, however, the virus rages on, mutating into different variants, and posing new risks. Recognizing that the “old normal” is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there. In need of guidance on how to protect their employees from COVID-19 transmission while reopening business, employers turned to the Occupational Safety and Health Administration (OSHA or the Agency), the federal agency tasked with assuring a safe and healthful workplace. On November 5, 2021, OSHA issued an Emergency Temporary Standard (ETS or the standard) to protect the health of employees by mitigating spread of this historically unprecedented virus in the workplace. The ETS requires that employees be vaccinated or wear a protective face covering and take weekly tests but allows employers to choose the policy implementing those requirements that is best suited to their workplace. The next day, the U.S. Court of Appeals for the Fifth Circuit stayed the ETS pending judicial review, and it renewed that decision in an opinion issued on November 12. Under 28 U.S.C. § 2112(a)(3), petitions challenging the ETS—filed in Circuits across the nation—were consolidated into this court. Pursuant to our authority under 28 U.S.C. § 2112(a)(4), we DISSOLVE the stay issued by the Fifth Circuit…”

The Emergency Temporary Standard

“The ETS does not require anyone to be vaccinated. Rather, the ETS allows covered employers—employers with 100 or more employees—to determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces….. Employers have the option to require unvaccinated workers to wear a mask on the job and test for COVID-19 weekly…. They can also require those workers to do their jobs exclusively from home, and workers who work exclusively outdoors are exempt…. The employer—not OSHA—can require that its workers get vaccinated, something that countless employers across the country have already done…. Employers must also confirm their employees' vaccination status and keep records of that status…. Consistent with other OSHA standard penalties, employers who fail to follow the standard may be fined penalties up to $13,653 for each violation and up to $136,532 for each willful violation. 29 C.F.R. § 1903.15(d). “

 Holding

1. OSHA has demonstrated the pervasive danger that COVID-19 poses to workers􀂲unvaccinated workers in particular􀂲in their workplaces

2. OSHA’s issuance of the ETS is not a transformative expansion of its regulatory power as OSHA has regulated workplace health and safety, including diseases, for decades. 

3. There is little likelihood of success for the challenges against OSHA’s bases for issuing the ETS.

4. The factors regarding irreparable injury weigh in favor of the Government and the public interest.  

In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, Nos. 21-7000, et al., 5thCir, 2021. Decided December 17, 2021.

Appeals to US Supreme Court

-BST Holding, LLC filed an Emergency Application for Relief "Whether OSHA’s private-employer mandate violates the Religious Freedom Restoration Act or the First Amendment"

-IN RE: MCP NO. 165, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, INTERIM FINAL RULE: COVID-19 VACCINATION AND TESTING; EMERGENCY TEMPORARY STANDARD 86 FED. REG. 61402, ISSUED ON NOVEMBER 4, 2021

US Supreme Court to hear oral argument on 7 Jan 2022.

Recommended Citation: Gelman, Jon L.,  OSHA Temporary Emergency COVID Standard Upheld by Federal Court of Appeals, Workers' Compensation Blog (Dec. 17, 2021), https://workers-compensation.blogspot.com/2021/12/osha-temporary-emergency-covid-standard.html

Related Articles

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OSHA issues emergency temporary standard to protect workers from coronavirus 11/04/21

Biden Administration Targets Occupational Exposure to PFAS 10/22/21

Vaccine Mandate-EEOC: Employers that demonstrate “undue hardship” are not required to accommodate an employee’s request for a religious accommodation 10/20/21

COVID Boosters: What Employees and Employers Need to Know 10/14/21

….

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (Thomson-Reuters). For over 5 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Blog: Workers ' Compensation

Twitter: jongelman

LinkedIn: JonGelman

LinkedIn Group: Injured Workers Law & Advocacy Group

Author: "Workers' Compensation Law" Thomson-Reuters

Updated 12/23/2021

Workers’ Compensation Benefits for Long COVID

Workers’ Compensation Benefits are available for those workers who have been exposed to COVID at work and contract disease and remain ill from Long COVID. 

Is the Workers' Compensation System Prepared for Omicron (Updated 12/10/21)

As this holiday season approaches, employers, insurance companies, and employees will be facing what may be the biggest COVID challenges of the year. The highly infectious disease variant Omicron detected initially in South Africa is spreading worldwide, including reported cases in the US.

Appellate Court Upholds the Biden Administration Vaccine Mandate for Florida Health Care Workers

Over the last several months, the Biden ministration has targeted over 100 million workers for mandatory vaccination or, in the alternative regular Covid testing. The three groups are Federal contractors, Health Care Workers, and companies employing 100 or more workers [OSHA Temporary Emergency Standard].

NY AG Seeks Emergency Relief to Protect Rights and Safety of Amazon Workers

New York Attorney General Letitia James today filed a motion to seek a preliminary injunction to force Amazon to immediately address health and safety concerns at its warehouses that are threatening workers. Her efforts to protect workers during the coronavirus disease 2019 (COVID-19) pandemic continue. 

CMS stopped from imposing vaccine mandate

The Centers for Medicare and Medicaid Services [CMS] has been halted from imposing a vaccine mandate on a wide range of healthcare facilities. A federal court in Missouri found in favor of a group of 11 Republican states when it issued an injunction against the proposed rule.

OSHA Sues Texas Company Over Whistleblower Firing

As the coronavirus began to spread rapidly across the nation in March 2020, an employee of one of the world’s largest manufacturers of light, medium, and heavy-duty trucks told a supervisor of their concerns about exposure to the virus at the Denton facility.

American Screening LLC issues a Voluntary Nationwide Recall of American Screening Hand Sanitizer Packaged in 8 oz Bottles Because They Resemble Beverage Containers

American Screening LLC of Shreveport, Louisiana is voluntarily recalling 153,336 units of Hand Sanitizer, containing 70% ethyl alcohol gel to the consumer level. The hand sanitizer is packaged in 8 oz. containers that resemble water bottles posing a risk of consumption.

Reorganization of the NJ Division of Workers’ Compensation Announced

The NJ Division of Workers’ Compensation announced a significant reorganization. The changes are to be effective on January 1, 2022.

Amazon Settles with California Over Concealment of COVID Data From Warehouse Workers COVID-19

Historically workers have been denied adequate occupational exposure information, which has led to epidemics of disease/death and lawsuit, including workers' compensation claims. Exposure to the SARS-CoV-2 (Coronavirus) virus has been no exception.

Senator Murray Calls for Permanent Daylight Saving Time Ahead of Clocks Falling Backward This Weekend

This week, U.S. Senator Patty Murray (D-WA) spoke on the Senate floor calling for federal action to follow the will of Washington voters and allow Washington state and the rest of the nation to move to permanent Daylight Saving Time (DST). During the speech, Senator Murray called on the Senate to pass legislation she has cosponsored, the Sunshine Protection Act, to establish permanent DST. Murray also pressed for executive action by the Biden administration to grant states like Washington, that have voted to move to permanent DST, a waiver to do so.

Across Two Separate Settlements, EPA Commits to Expedite and Strengthen Asbestos Risk Reevaluation Under TSCA

The Asbestos Disease Awareness Organization (ADAO), an independent nonprofit dedicated to preventing asbestos exposure, announced it had reached two landmark legal settlements with the Environmental Protection Agency (EPA) that strengthen and broaden its work to evaluate the health risks of asbestos under the Toxic Substances Control Act (TSCA). 

OSHA cites insurance agency for exposing workers to coronavirus

A federal workplace health investigation found that an auto insurance company ignored coronavirus safety requirements and allowed others displaying symptoms to work at the exact Denver location where an employee died with COVID-19.