New Laws in NJ Are a Step to Reduce Gun Violence in the Workplace

Gun violence in the workplace continues to be a significant occupational hazard. Whether it occurs on the work premises or carriers over to an off-premises location, gun violence remains a continuing risk associated with a job,

The Toxic Legacy of Ford Motor Company

The State of New Jersey is suing Ford Motor Company [FMC] for environmental pollution due to dumping its toxic waste in Ringwood, New Jersey. FMC operated a huge assembly plant in Mahwah, New Jersey, from 1955 through June 1980. 

OSHA Fines Robbinsville NJ $368K for Scissor Lift Hazard

A U.S. Department of Labor investigation into the fatal fall of a contractor at a Robbinsville NJ frozen food manufacturer identified a wide range of potentially fatal workplace hazards at CJ TMI Manufacturing America LLC, leading the department’s Occupational Safety and Health Administration to issue the employer citations for 36 violations and proposed $368,513 in penalties.

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.”

Central New Jersey facility to pay $273K, take corrective actions to resolve COVID-related respirator violations

OSHA finds employers failed to ensure safe respirator use while testing hundreds daily.

The Honorable Maria Del Valle-Koch Appointed the New Chief Judge and Director

The Honorable Maria Del Valle-Koch will be the New Chief Judge and Director effective Monday, June 6, 2022. Outgoing Chief Judge and Director Russell Wojenko, Jr. announced Friday that Robert Asaro-Angelo, Commissioner of NJ Labor and Workforce Development, had made the appointment.

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.

OSHA Fines Roofing Company $360,531

An Illinois roofing contractor – with a history of violating federal safety standards and ignoring safety citations – was cited again by the U.S. Department of Labor’s Occupational Safety and Health Administration for exposing workers to deadly fall hazards at two separate job sites in October 2021. Joshua Herion – who does business as ECS Roofing Professionals Inc. – faces proposed penalties of $360,531.

Injury Caused by Defeated Machine Guard Results in OSHA Fine of $159,522

An employee working at Crystal Finishing Systems Inc.’s aluminum extrusion facility in Weston was hospitalized with serious injuries after being struck by a puller machine while trying to unjam a piece of aluminum.

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

Amazon Settles with California Over Concealment of COVID Data From Warehouse Workers COVID-19 11/17/21

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

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.

NJ Enacts Legislation to Protect New Jersey Workers, Employers From Unlawful Misclassification

Building on his commitment to making sure that workers and employers in New Jersey are treated fairly, Governor Phil Murphy today signed a four-bill legislative package furthering state efforts to stop employee misclassification. 

U.S. Equal Employment Opportunity Commission Issues Update On Vaccinations

The following is shared from the U.S. Equal Employment Opportunity Commission eeoc.gov 

OSHA cites 6 contractors for exposing workers to falls

Six contractors constructing luxury single-family homes at the future site of Hawthorne Estates in Medford put workers at risk of serious or fatal injuries by failing to comply with federal requirements to prevent falls, the leading cause of death in the construction industry.

After multiple on-site investigations, the U.S. Department of Labor’s Occupational Safety and Health Administration cited the companies for exposing workers to falls and other dangerous safety hazards while erecting walls and sheathing roofs.

OSHA initiated three of the inspections as part of its Regional Emphasis Program on Falls in Construction. During the first on Oct. 20, 2020, the compliance officer observed workers exposed to falls and other hazards. Inspectors observed the same hazards during a second inspection two days later, prompting the third inspection on Oct. 31.

After the three inspections, OSHA proposed total penalties of $244,397 and cited the companies collectively for four willful and 35 serious violations, including exposing workers to falls greater than 6 feet and not providing personal protective equipment. The companies, citations and proposed penalties are:

Company Name	City	State	Citations	Proposed Penalty
Claudio DeSousa, operating as Lifetime Contractor Corp.	Philadelphia	PA	2 willful 14 serious	$107,279
Lezinho Sousa, operating as Lifetime Contractor Corp.	Pennsauken	NJ	2 willful 9 serious	$87,381
WSJ Construction	Asbury Park	NJ	3 serious	$16,383
Gustavo Quintomillno, operating as Lifetime Contractor Corp.	Beverly	NJ	4 serious	$12,874
LWJ Construction LLC	Long Branch	NJ	3 serious	$12,288
RMM Contractor LLC	Long Branch	NJ	2 serious	$8,192

"A fall can permanently alter or end a worker’s life in a matter of seconds," said OSHA Area Director Paula Dixon-Roderick in Marlton, New Jersey. "Contractors and subcontractors in the construction industry have a legal obligation to comply with the law and ensure their workers end their shifts safely. When employers fail to follow requirements, OSHA will hold them responsible to the fullest extent of the law.”

OSHA encourages employers to use its Stop Falls online resources, including detailed information on fall protection standards in English and Spanish. The site offers fact sheets, posters and videos that illustrate various fall hazards and appropriate preventive measures.

The companies have 15 business days from receipt of their citations and penalties to comply, request an informal conference with OSHA’s area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. 

NJ Successfully Targets Employee Misclassification

In response to a report issued by Governor Murphy’s Task Force on Employee Misclassification, the New Jersey Department of the Treasury has made significant strides to deter misclassification by organizations that do business with the State in order to help address the underlying causes that lead to ever-widening income inequality.

NJ Supreme Holds Employers Responsible for Workers' Compensation Medical Marijuana Costs

The NJ Supreme has recognized that the workers’ compensation system has a legislative mandate to provide the safest medical care to cure and relieve occupational injuries. The Court acknowledged both state and Federal trends to provide non-addictive and non-fatal pain relief in place of the dangerous opioids. 

 

The intent that embraced the creation and development of the social insurance system has given the Court a rational and logical basis, consistent with public policy, to order medical marijuana for palliative care.

OSHA cites New Jersey frozen dessert manufacturer after second amputation injury on same machine

Despite two severe amputation injuries in 2018 and 2020 on the same machine at a Lakewood ice cream manufacturing plant, a recent federal safety and health inspection found the company continues to ignore protocols designed to prevent other workers from suffering similar injuries.

OSHA fined an Ohio company following a partial arm amputation

While cleaning an auger used to rice potatoes, a 39-year-old production worker found her left arm caught in a running auger. The worker suffered multiple lacerations and the partial amputation of her arm. Co-workers had to cut the auger apart to free her arm.

Cannabis Legislation Enacted in NJ

Today the NJ Legislature approved, and Governor Phil Murphy signed sweeping legislation to legalize the sale of recreational marijuana. Today's action follows the legislative enactment of medical marijuana laws in NJ and case law approving medical marijuana for the treatment of work-related injuries.

NJDOL Investigation into Unpaid Wages Finds Contractor Owes $1.2M to Workers

Three Sons Restoration LLC of Union was assessed approximately $2.75 million in back wages, penalties, and fees following a New Jersey Department of Labor and Workforce Development (NJDOL) investigation into the contractor’s failure to pay its employees the state prevailing wage at six job sites.