February 2021 Volume 3

OPERATIONS & MANAGEMENT

employers provide a safe and healthy workplace environment. Employees working in high-risk environments could allege that employers are putting them at risk by not requiring a vaccine or addressing it properly. Although OSHA does not, at this point, require employers to offer the vaccine, employer should be prepared and monitor OSHA guidelines and regulations. Employers who are considering mandatory vaccination for COVID-19 should be prepared for the legal landscape discussed above. For many employers, strongly encouraging vaccination may be the approach that best balances legal and practical concerns. Those that do require vaccinations should stay abreast of the ever changing legal and scientific landscape and be prepared to adjust their approach accordingly. ■

Corey Clay represents and counsels employers in a broad range of employment and labor relations matters. His litigation experience ranges from single plaintiff discrimination cases to large class actions brought under state and federal law, including the Fair Labor Standards Act (FLSA), the Employee Retirement Income Security Act (ERISA), the Labor Management Relations Act (LMRA), and Americans with Disabilities Act (ADA). He has also represented employers in collective bargaining negotiations and grievance arbitrations. Brad Wenclewicz is an associate in the Benesch’s Labor & Employment Practice Group. Brad has represented employers before state administrative agencies and before federal and state courts. Brad has experience in the Americans with Disabilities Act (ADA), the Fair Labor Standards Act (FLSA), Title VII of the Civil Rights Act, and workers’ compensation.

Johanna Fabrizio Parker is a partner in Benesch's labor and employment group. Her practice involves representing and counseling management clients in a wide range of complex employment matters, including claims of discrimination, harassment, and retaliation brought under federal and state law, as well as wage and hour claims, and matters involving noncompetition agreements and trade secrets. She can be reached at jparker@beneschlaw.com.

Late Breaking News on COVID-19: Biden orders OSHA action on COVID-19

On January 21, President Joe Biden issued an Executive Order (EO) directing the Occupational Safety and Health Administration (OSHA) to issue updated employer guidance within 2 weeks on protecting workers from COVID-19. The EO also instructed the agency to consider establishing a COVID-19 emergency temporary standard (ETS) by March 15. It also ordered the Mine Safety and Health Administration to consider establishing an ETS for coal and metal or nonmetal mines.The EOaccompanied a 200-pageNational Strategy for the COVID-19 Response and Pandemic Preparedness. A separate EO regarding the public health supply chain invoked the Defense Production Act for acquiring stockpiles of pandemic supplies, including personal protective equipment (PPE). In addition, the EO on protecting worker safety and health instructed OSHA to review its enforcement activities related to workplace COVID-19 exposures and launch a national enforcement effort focused on violations that place the highest numbers of workers at risk for COVID-19 infection.

The order further instructed OSHA to coordinate with states with and without state occupational safety and health programs and federal agencies to ensure public sector workers are protected from COVID-19 exposures. Federal OSHA’s purview only includes private sector workers. For more information visit the White House Briefing Room Webpage at: www.whitehouse.gov/briefing-room/presidential actions/2021/01/21/executive-order-protecting-worker-health-and safety/. Source: EHS Daily Advisor: ehsdailyadvisor.blr.com/2021/01/ president-biden-orders-osha-to-take-action-on-covid-19/

FIA MAGAZINE | FEBRUARY 2021 58