The U.S. Secretary of Labor’s approval of a State Plan depends on whether that State Plan “provides for the development and enforcement of safety and health standards relating to one or more safety or health issues, which standards (and the enforcement of which standards) are or will be at least as effective in providing safe and healthful employment and places of employment as the standards promulgated.” 29 U.S.C. §667(18)(c)(2) (emphasis added). This “at least as effective” standard has never been defined in the courts.

The California Division of Occupational Safety and Health (Cal/OSHA) maintains an occupational safety and health plan that is approved and monitored by the federal Occupational Safety and Health Administration (federal OSHA). As a “state plan state,” California is required to adopt occupational safety and health standards “at least as effective” as federal OSHA’s, in accordance with Section 18 of the federal Occupational Safety and Health Act of 1970 (29 USC § 667(c)(2)).On November 5, 2021, federal OSHA published in the Federal Register an emergency temporary standard (OSHA ETS) to protect workers’ safety by reducing the spread of COVID-19 in workplaces.

However, in states with OSHA-approved occupational safety and health programs (State Plans), state and local government employers with 100 or more employees will be covered by state occupational safety and health requirements, and State Plans must adopt requirements for state and local employers that are at least as effective as federal OSHA’s requirements in this ETS. State Plans may also choose to adopt more protective occupational safety and health requirements (29 USC 667(c)).Federal Contractor employees already covered by the Safer Federal workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors.

12 Neither the paid time required to receive any vaccine dose(s) nor the paid sick leave required to recover from side effects experienced following any vaccination dose are retroactive requirements for vaccine dose(s) received prior to the promulgation of this ETS.13 In its guidance, OSHA cites to Gade v. National Solid Wastes Management Ass’n, 505 U.S. 88 (1992) and 29 U.S.C. 667, in support of preemption.14 Of the 28 states with OSHA-approved occupational safety and health plans, 22 apply to both private and public sector employees. The states are Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming.

However, in states with OSHA-approved occupational safety and health programs (“State Plans”), state and local government employers with 100 or more employees will be covered by State occupational safety and health requirements, and State Plans must adopt requirements for state and local employers that are at least as effective as federal OSHA’s requirements in this ETS. State Plans may also choose to adopt more protective occupational safety and health requirements (29 USC 667(c)).Are employees working abroad to be counted?Yes. Employees of an employer who are currently working abroad for that employer are counted for purposes of determining whether the 100 employee threshold has been met. But the requirements of the ETS would not apply to most employees working abroad.

ker Health and Safety. The EO specifically orders the Occupational Safety and Health Administration (“OSHA”) of the Department of Labor to:issue, within two weeks of the date of the EO, revised guidance to employers on workplace safety during the COVID-19 pandemic;consider whether any emergency temporary standards on COVID-19, including with respect to masks in the workplace, are necessary, and if such standards are determined to be needed, issue them by March 15, 2021;review the enforcement efforts of OSHA related to COVID-19 and identify any short-, medium-, and long-term changes that could be made to better protect workers and ensure equity in enforcement;launch a national program to focus COVID-19- related OSHA enforcement efforts on violations that put the largest number of workers at serious risk or are contrary to anti-retaliation principles;coordinate with states that have occupational safety and health plans approved under section 18 ofthe Occupational Safety and Health Act (29U.S.C. 667) (“Act”) to help ensure that workers covered by such plans are adequately protected from COVID-19, consistent with any revised guidance or emergency temporary standards issued by OSHA; andteam with the U.S. Department of Labor’s public affairs office and OSHA’s regional offices nationwide to create and implement a multilingual outreach campaign to inform workers and their representatives of their legal rights, which will include “engagement with labor unions, community organizations, and industries, and place a special emphasis on communities hit hardest by the pandemic.”Although the EO does not direct OSHA to issue emergency temporary standards, the agency is generally expected to do so.

In other words, an employer’s failure to provide reasonable accommodations to a person more susceptible to COVID-19 will likely not give rise to a violation of the ADA.In addition to the ADA, employers in general are subject to the federal Occupational Safety and Health Act of 1970 (OSHA), 29 USC 651 et seq., which sets forth health and safety standards to protect workers from workplace hazards. Under 29 USC 667(b), each state may develop an occupational safety and health plan that is at least as effective as the federal plan. Michigan’s plan is the Michigan Occupational Safety and Health Act (MIOSHA), MCL 408.1001 et seq.

The increases apply to penalties assessed after January 23, 2019 under the Occupational Safety and Health Act (OSH Act), which the DOL is responsible for enforcing. The rule amends the OSH Act's penalty structure as follows:Violation TypePrior Minimum PenaltyCurrent Minimum PenaltyPrior Maximum PenaltyCurrent Maximum Penalty Serious - - $12,934 $13,260 Other-than-Serious - - $12,934 $13,260 Repeat - - $129,336 $132,598 Willful $9,239 $9,472 $129,336 $132,598 Failure to Abate (per day) - - $12,934 $13,260 Posting Requirement - - $12,934 $13,260Effect on State OSHA Plans Section 18 of the OSH Act (29 U.S.C. 667, et seq.) requires OSHA-approved State Plans to have standards and enforcement programs that are, at a minimum, as effective as the federal OSH Act's standards and enforcement program. As a result, OSHA-approved State Plans are required to have maximum and minimum penalty levels that are at least as effective as their federal counterpart's.