COVID-19 OSHA Recordkeeping and Reporting: OSHA Reverses Course on Work-Relatedness

Eric J. Conn Leave a comment

By Conn Maciel Carey’s COVID-19 Task Force

There are myriad workplace safety and health implications of the COVID-19 pandemic, but one OSHA regulatory obligation about which we have received countless questions the past three months is the requirement to record on an OSHA 300 Log and/or pick up the phone and report to OSHA work-related cases of COVID-19.  This article explains the circumstances the OSHA recordkeeping and reporting obligations related to employee COVID-19 cases.

The Cold and Flu Exemption to OSHA Recordkeeping

By regulation, the common cold and flu are exempt from OSHA’s recordkeeping and reporting requirements (29 CFR Part 1904.5(b)(2)(viii)):

“An injury or illness occurring in the work environment that falls under one of the following exceptions is not work-related, and therefore is not recordable…. The illness is the common cold or flu.”

The rationale for the exemption is that the spread of the cold and flu is so pervasive and potential exposures are ubiquitous within and outside the workplace, so it can be nearly impossible to identify the specific source of infection.

Despite great personal sacrifice around the country in the form of mass self-quarantine, the scale of infection of COVID-19 continues to spread like the flu and common cold, with even more dire consequences.  Nevertheless, OSHA has repeatedly made clear that COVID-19 is not subject to the cold/flu recordkeeping exemption:

“While 29 CFR 1904.5(b)(2)(viii) exempts recording of the common cold and flu, COVID-19 is a recordable illness when a worker is infected on the job.”

OSHA has explained that the cold and flu recordkeeping exemption is not just an OSHA policy or enforcement philosophy.  Rather, it is a part of the regulation itself that went through APA notice-and-comment rulemaking.  And the scientific reality is, COVID-19 is not the cold or flu.  It is a different virus.  So without another rulemaking (that history suggests would take longer than it will to eradicate this illness), OSHA cannot just declare this serious illness to be exempt from recordkeeping and reporting requirements.

Indeed, over a series of guidance documents in April and May, OSHA has doubled-down on its decision that employers must spend time determining whether cases of COVID-19 are more likely than not work-related.

Determine Recordability of COVID-19 Cases

Consistent across all of OSHA’s COVID-19 guidance has been the basic structure for evaluating whether an employee’s COVID-19 case is recordable.  Employers will only be responsible for recording a case of COVID-19 if it meets the following criteria: Continue reading →

COVID-19 Exposure Control and Response Plan: What It Is and Why Every Employer Needs One

Aaron Gelb 2 Comments

By Conn Maciel Carey’s COVID-19 Task Force

As states across the country begin to loosen or lift stay-at-home and shutdown orders, many workplaces that had been idled, have just begun to or will soon resume operations.  Many states and localities are setting as a precondition for reopening, a requirement that they develop and implement a written, site-specific COVID-19 Exposure Control and Response Plan.

Regardless of any state or local requirement to develop such a plan, any business that operates without an Exposure Control Plan will be potentially exposed to a number of legal or business risks, such as an OSHA citation, being shutdown by a state or local health department, and/or becoming a target for a wrongful death action brought by families of employees, temporary workers, customers, vendors and/or guests. They should also plan to deal with a workforce that is scared and anxious about the company’s response to the COVID-19 pandemic, which may result in employees refusing to work (which would disrupt and complicate scheduling) and/or making regular and frequent complaints to OSHA about the purported unchecked hazard in your workplace.  Responding to these complaints will take time and cost money, distracting your business from its mission.  Retaliation claims under Section 11(c) of the OSH Act is another foreseeable consequence of a scared workforce.  Without an Exposure Control Plan in place, the legal vulnerabilities will be real and are potentially significant.

We focus below on five key reasons employers must develop a written COVID-19 Exposure Control and Response Plan.  But first, what is an exposure control plan?

What is an Exposure Control and Response Plan?

When OSHA identifies a serious safety or health hazard, it usually requires employers to develop a written program including the measures employers will take to counteract the hazard.  For example, OSHA requires written lockout/tagout programs to protect against hazardous energy; respiratory protection programs and process safety management programs to protect against hazardous chemical exposures; and emergency action plans to protect against the risk of fires in the workpalce.  Simply put, a COVID-19 Exposure Control Plan is a written safety plan outlining how your workplace will prevent the spread of COVID-19, covering issues such as:

  • How you will facilitate social distancing in your workplace;
  • What engineering or administrative controls you will implement when workers cannot remain at least 6′ apart;
  • The steps that you will take to ensure employees comply with personal hygiene practices;
  • What types of protective equipment you will provide for various tasks and operations;
  • What enhanced housekeeping protocols will be implemented for frequently touched surfaces, tools, and machines;
  • What you are doing to prevent/screen sick workers from entering the workplace;
  • How you will respond to confirmed or suspected cases among your workforce; and
  • How you will communicate with and train your workforce on these mitigation measures.

Five Reasons to Develop a Written COVID-19 Exposure Control Plan

First, whether you have remained open because you are an essential business or plan to reopen soon, you may soon find yourself required to Continue reading →

California Governor Issues COVID-19 Executive Order Extending Deadlines for Cal/OSHA Citations and Appeals

Andrew J. Sommer Leave a comment

By Fred Walter and Andrew Sommer

With no fanfare, California Governor Gavin Newsom issued the latest in his series of COVID-19-related executive orders on May 7, 2020. Executive Order N-63-20 extends by 60 days the time for Cal/OSHA to issue citations and for employers to file appeals, motions and petitions for reconsideration.

As rationale for extending these statutory, jurisdictional deadlines, Governor Newsom explained:

WHEREAS the COVID-19 pandemic, as well as physical distancing and
other public health measures undertaken in response to it, have affected
governmental agencies, workers, private businesses, and California residents,
with associated impacts on adherence to certain statutory and regulatory
deadlines, as well as to workers’ efforts to vindicate their labor and employment
rights; and

WHEREAS the COVID-19 pandemic, as well as physical distancing and
other public health measures undertaken in response to it, have also had
widespread impacts on state and local governments’ ability to perform certain
functions via in-person interactions, and such functions should be performed via
other means to the extent consistent with public safety and other critical public
interests….

As to the Cal/OSHA related deadlines specifically, the Order states:

“The deadlines specified in or that apply to (Labor Code section 6317, related to the issuance of Cal/OSHA citations, and Labor Code sections 6319, 6600, 6600.5, 6601a and 6601.5) shall be extended for a period of 60 days to the limited extent that at the time to issue a citation or file a complaint, claim, or appeal would otherwise elapse in the 60-day period…” following the effective date of the Order, which was May 7, 2020.

A review of the cited Labor Code sections reveals that this Order extends Cal/OSHA’s time to issue citations and the employer’s time to file appeals, motions and petitions for reconsideration.

Labor Code section 6317 gives Cal/OSHA six months following the occurrence of a violation of a safety order to issue a citation or notice in lieu of citation. The remaining Labor Code sections cited in the Order put employers on notice that they must file an appeal within 15 working days of receipt of a citation or notice. If they do not, their right to do so would be lost.

As with most executive orders, this language is open to interpretation. Cal/OSHA Enforcement reads the Order to mean that Continue reading →

[Webinar Recording] Returning to Work Strategies: Employment and Workplace Safety Implications of COVID-19

Theresa Green Leave a comment

On May 7, 2020, Conn Maciel Carey LLP’s COVID-19 Task Force presented a complimentary webinar: Returning to Work Strategies – Employment and Workplace Safety Implications of COVID-19.

May 7 CaptureAs the federal government and states begin to relax shutdown and stay-at-home orders and non-essential businesses begin to resume or ramp-up operations, employers need to plan for the safe and healthy return of their employees, customers, and guests back into the workplace.  During this webinar, participants heard from members of Conn Maciel Carey’s COVID-19 Task Force as they discussed how to develop and implement a Return-to-Work Plan.

Participants learned about: Continue reading →

Puerto Rico Issues Executive Order Requiring Site-Specific COVID-19 Exposure Control Plans

Aaron Gelb 2 Comments

By Conn Maciel Carey’s COVID-19 Task Force

On May 1, 2020, Governor Wanda Vázquez Garced of Puerto Rico issued a COVID-related Executive Order (“EO 2020-038”), which imposes a number of requirements upon employers, included among them that every employer must develop a comprehensive, site-specific COVID-19 exposure control plan prior to reopening.  The Executive Order also makes clear that employers already open under prior exemptions to prior lockdown orders must also prepare a plan and must do so as soon as possible.

To implement the Executive Order, the Puerto Rico Secretary of Labor issued Circular Letter 2020-03 (“CL 2020-03”), setting forth the elements that must be covered in the plan, including the requirement that the plan be “exclusive to [your] particular workplace.”

There are 22 total elements that must be covered, including the requirements that the plan:

  • Be a written document, specific to the workplace and contemplates the particular tasks, the physical structure and the number of employees.
  • Include recommendations issued by local, national and international health agencies regarding controls to prevent the spread of COVID-19.
  • Detail the monitoring and/or screening process of personnel prior to entering the workplace.
  • Indicate the control measures that will be taken to achieve the physical distance between employees and clients/public.
  • Indicate how adequate ventilation will be provided to ensure adequate air flows and, in locations with air conditioning systems, effective filtering.
  • Include and detail the method that will be implemented for Continue reading →

Conn Maciel Carey Expands OSHA Practice by Addition of Legendary Cal/OSHA Specialist Attorney Fred Walter

Andrew J. Sommer Leave a comment

Conn Maciel Carey is pleased to announce the addition to its national Workplace Safety Practice of renowned Cal/OSHA attorney Fred Walter.

Mr. Walter has spent more than 35 years working with employers to defend OSHA and Cal/OSHA citations, as well as developing and auditing safety programs to answer regulatory mandates. He also represents employers in defense of “serious and willful misconduct” claims and provides crisis management services.  For the past twelve years, Mr. Walter was the Managing Partner of a premier Cal/OSHA defense firm, Walter & Prince LLP.

Fred Walter Wix Headshot

“Fred is a true legend of the OSHA Bar.  The opportunity to align with him and enable our young lawyers, and really all of us, to benefit from his experience, knowledge, and mentorship, will help solidify Conn Maciel Carey as the premier workplace safety law firm in the country,” said Eric J. Conn, Chair of the firm’s Workplace Safety Practice Group.  “In addition to bringing decades of experience and knowledge, it is Fred’s creative approach and focus on consensus-building, rather than bridge-burning, that make him such a great fit with our team,” Eric added.

Mr. Walter’s diverse clientele includes employers in all of the construction trades, manufacturing, warehousing, freight handling, logging, farm labor contracting, food processing, and wineries.  In his over three decades of practice, Fred has acquired a wealth of knowledge of Cal/OSHA regulations and enforcement and developed unique relationships and established credibility with the players within Cal/OSHA and among its Counsel.

“It is clear from talking with Fred that he loves the work he does and cares about the people for and with whom he does it.  And he brings such a depth of experience with Cal/OSHA defense and counseling, as well as unique relationships with the players at Cal/OSHA, that will enhance the workplace safety legal services we provide to employers across all industries,” said Andrew J. Sommer, Managing Partner of the firm’s California practice.

Fred will be based out of the firm’s San Francisco office, and will Continue reading →

[Webinar] Returning to Work Strategies: Employment and Workplace Safety Implications of COVID-19

Theresa Green Leave a comment

On Thursday, May 7, 2020 from 2 PM – 3:30 PM Eastern, join Conn Maciel Carey LLP’s COVID-19 Taskforce for a complimentary webinar: Returning to Work Strategies – Employment and Workplace Safety Implications of COVID-19.

May 7 CaptureAs the federal government and states begin to relax shutdown and stay-at-home orders and non-essential businesses begin to resume or ramp-up operations, employers need to plan for the safe and healthy return of their employees, customers, and guests back into the workplace.  During this webinar, participants will hear from members of Conn Maciel Carey’s COVID-19 Task Force as they discuss how to develop and implement a Return-to-Work Plan.

Participants will learn about: Continue reading →

Cal/OSHA’s Proposed Permanent Wildfire Smoke Rule – Coalition to Comment

Andrew J. Sommer Leave a comment

By Andrew J. Sommer and Eric J. Conn

Last summer, at the urging of various interest groups, the Cal/OSH Standards Board adopted an emergency regulation regarding hazards associated with wildfire smoke. The regulation took effect on a temporary emergency basis on July 29, 2019.

Recently, the Board published a request for written comments and notice of a public hearing on its proposal to revise the emergency standard and make it permanent.  The Board explained:

Current regulations are not sufficiently specific as to what employers are required to do during wildfire events. This results in confusion on behalf of both employers and employees, leaving many employees unprotected….  As wildfire seasons worsen, the proposed regulation will avoid a potential increase in debilitating and sometimes life-threatening illnesses faced by workers exposed to wildfire smoke.

The deadline for written comments is May 21, 2020, and the public hearing will be held in Rancho Cordova, CA that same day.

The Emergency Standard

The emergency standard (which is still in effect) requires California employers to take steps to protect employees who may be exposed to wildfire smoke.  Importantly, the regulation covers “workplaces” rather than employers of a particular size or scope of service. It applies in workplaces where:

  • The current Air Quality Index (AQI) for PM2.5 is 151 or greater, regardless of the AQI for other pollutants, and
  • The employer should reasonably anticipate that employees may be exposed to wildfire smoke.

The regulation specifically exempts Continue reading →

[Webinar] Returning to Work Strategies: Employment and Workplace Safety Implications of COVID-19

Theresa Green Leave a comment

On Thursday, May 7, 2020 from 2 PM – 3:30 PM Eastern, join Conn Maciel Carey LLP’s COVID-19 Taskforce for a complimentary webinar: Returning to Work Strategies – Employment and Workplace Safety Implications of COVID-19.

May 7 Capture

As the federal government and states begin to relax shutdown and stay-at-home orders and non-essential businesses begin to resume or ramp-up operations, employers need to plan for the safe and healthy return of their employees, customers, and guests back into the workplace.  During this webinar, participants will hear from members of Conn Maciel Carey’s COVID-19 Task Force as they discuss how to develop and implement a Return-to-Work Plan.

Participants will learn about the following: Continue reading →

COVID-19 Recording and Reporting in the State of Washington

Daniel C. Deacon Leave a comment

By Conn Maciel Carey’s COVID-19 Task Force

As previously discussed on the OSHA Defense Report blog, on April 10, 2020, Federal OSHA issued enforcement guidance for recording cases of COVID-19, relaxing recordkeeping enforcement for employers other than those in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions.  COVID-19 Recordkeeping GuidanceUnfortunately, the guidance does not mandate that State Plan States follow suit, and not all states with approve OSH Programs have announced whether they will be following Fed OSHA’s guidance.

The state of Washington has not published any guidance on that issue one way or the other.  But here is what we have learned from the Washington Department of Labor and Industries (“DLI”) Division of Occupational Safety and Health (“DOSH”).

As a threshold matter, as we know from Fed OSHA recordkeeping, among other requirements, for an injury or illness to be recordable, it must be “work-related.”  The language of Washington DLI’s recordkeeping regulation regarding assessing work-relatedness mirrors the Fed OSHA regulation.  They both state that an employer:

“must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a preexisting injury or illness.”

Work-relatedness is presumed for injuries and illnesses resulting from events or exposures that occur in the work environment, unless an enumerated exception applies, and the work-relatedness exceptions for Fed OSHA and Washington are also the same.

Importantly, Washington DLI also has Continue reading →

[Webinar Recording] Cal/OSHA Developments that California Employers Must Track

Andrew J. Sommer Leave a comment

On April 16, 2020, Andrew Sommer, Eric J. Conn, and Megan Shaked of the law firm Conn Maciel Carey presented a complimentary webinar: Cal/OSHA Developments that California Employers Must Track.OSHA Capture

California’s Division of Occupational Safety and Health, aka Cal/OSHA, is perhaps the most aggressive and enforcement-heavy state OSH Program in the nation. California employers face a host of requirements that other employers around the country do not. Likewise, the Cal/OSHA inspection and Appeal process creates several unique landmines for California employers.

During this webinar, participants learned about:

Continue reading →

BREAKING: OSHA Issues Enforcement Policy Relaxing Regulatory Compliance During the COVID-19 Crisis

Eric J. Conn Leave a comment

By Conn Maciel Carey’s COVID-19 Task Force

The Coronavirus pandemic has created unprecedented challenges for employers that are attempting to meet OSHA regulatory obligations – such as annual training, auditing, testing, medical surveillance requirements, and the like – without creating greater risk of exposure to COVID-19 for their employees.  This evening (April 16, 2020), OSHA issued a new Enforcement Memorandum acknowledging that reality.  The enforcement memo, entitled “Discretion in Enforcement when Considering an Employer’s Good Faith Efforts During the Coronavirus Disease 2019 (COVID-19) Pandemic,” provides enforcement relief for employers who exercise good faith in the context of this extraordinary health crisis.

In explaining the need for this enforcement relief, OSHA recognized that:

“Widespread business closures, restrictions on travel, limitations on group sizes, facility visitor prohibitions, and stay-at-home or shelter-in-place requirements” have strained the “availability of employees, consultants, or contractors who normally provide training, auditing, equipment inspections, testing, and other essential safety and industrial hygiene services,” as well as the opportunity for “employee participation in training even when trainers are available.”  Similarly, “access to medical testing facilities may be limited or suspended.”

To address these very real challenges to achieving full compliance with various annual and other regulatory requirements, OSHA issued a temporary enforcement policy based on the agency’s enforcement discretion to relax enforcement of many existing regulatory obligations if complying with these obligations is not feasible or if doing so would pose an unreasonable risk of virus transmission among the employer’s workforce.  Today’s enforcement policy applies broadly to employers in all industry sectors, takes effect immediately, and will remain in effect indefinitely throughout the current public health crisis.

The heart of the new enforcement policy is this:

  • Where an employer is unable to comply with OSHA standards that require annual or recurring audits, reviews, training, assessments, inspections, or testing because of the Coronavirus pandemic, AND the employer has made good faith attempts to comply, OSHA “shall take such efforts into strong consideration in determining whether to cite a violation.”
  • But where the employer cannot demonstrate any efforts to comply or why trying to comply would be more hazardous, a citation may issue as appropriate.

As part of OSHA’s assessment whether an employer engaged in good faith compliance efforts, OSHA will evaluate whether the employer Continue reading →

Cal/OSHA Guidance Regarding COVID-19 in the Workplace

Beeta B. Lashkari Leave a comment

By Andrew Sommer, Megan Shaked, and Beeta Lashkari

Last week, Cal/OSHA updated its website, providing additional guidance on how to protect Californian employee from spread of COVID-19 in the workplace.  Additionally, earlier this week, Division Chief Doug Parker sent an unpublished letter, clarifying Cal/OSHA’s recording/reporting requirements for coronavirus-related illnesses.  Below is a summary of both pieces of guidance from Cal/OSHA:

Additional Cal/OSHA Guidance on COVID-19 in the Workplace

Starting with the new guidance on its website, Cal/OSHA provided additional information on how to protect workers from COVID-19.  While Cal/OSHA previously issued guidance on requirements under its Aerosol Transmissible Diseases (“ATD”) standard specific to COVID-19, as well as general guidelines, it has now released industry-specific guidance and ATD model plans.  The industry-specific guidance includes:

The ATD model plans are fillable pages provided in Word format and include an exposure control plan, laboratory biosafety plan, and “referring employer” model written program.

Picture1As general guidance, Cal/OSHA’s website also includes interim guidelines for general industry on COVID-19.  These interim guidelines make clear that, for employers covered by the ATD standard, employers must protect employees from airborne infectious diseases such as COVID-19 and pathogens transmitted by aerosols.  The ATD standard applies to:

  1. hospitals, skilled nursing facilities, clinics, medical offices, outpatient medical facilities, home health care, long-term health care facilities, hospices, medical outreach services, medical transport and emergency medical services;
  2. certain laboratories, public health services and police services that are reasonably anticipated to expose employees to an aerosol transmissible disease;
  3. correctional facilities, homeless shelters, and drug treatment programs; and
  4. any other locations when Cal/OSHA informs employers in writing that they must comply with the ATD standard.

Additionally, for employers NOT covered by the ATD standard, Cal/OSHA advises employers to Continue reading →

Washington DLI/DOSH Issues Directive on Governor’s Stay Home-Stay Healthy Order

Aaron Gelb Leave a comment

On April 7, 2020, Washington Department of Labor and Industries’ Division of Occupational Safety and Health (“WA DLI/DOSH”) issued a Directive entitled General Coronavirus Prevention Under Stay Home – Stay Healthy Order that describes in detail what employers are expected to do in order to comply with the Order.  WA DLI DOSH Directive 3According to the Directive, there are four basic categories of prevention elements that WA DLI/DOSH will look for during any investigation, whether in response to a hazard alert letter or an on-site visit—WA employers must:

  1. Ensure social distancing practices for employees (and control customer flow, if applicable);
  2. Ensure frequent and adequate employee handwashing and surface sanitation (with focus on high-touch areas/items);
  3. Ensure sick employees stay home or go home if ill; and
  4. Provide basic workplace hazard education about coronavirus and how to prevent transmission in the language best understood by the employee.

The last element is best accomplished through posting notices and virtual modes of communication such as videos, text messages, emails or announcements during the day since in-person training meetings are discouraged.

The Directive lays out in outline format the basic/essential elements of a compliant COVID-19 prevention program, including Continue reading →

COVID-19 OSHA FAQs about Respirators, Face Masks, and Face Coverings

Eric J. Conn Leave a comment

By Conn Maciel Carey’s COVID-19 Task Force

As concerns about the spread of COVID-19 grow, many employees working in essential businesses have sought to provide or require some form of respirator, face mask, or face covering for employees.  Now, the CDC and White House are recommending that everyone wear some form of face covering any time in public to help reduce community spread of COVID-19.  So, it is important to be aware of the OSHA guidelines and obligations regarding respirators and face coverings in the workplace.  Depending on the type of face mask used, and whether it is required by the employer or permitted for voluntary use, there are certain requirements that employers must follow under OSHA’s respiratory protection standard, 29 C.F.R. 1910.134 and perhaps by other regulatory requirements.

As a starting point, let’s level-set the type of equipment we are talking about.  N95 masks, although they are called masks and look like masks, are actually considered by OSHA to be respirators.  Of course, anything more substantial than an N95 mask, such as half or full face tight-fitting face pieces with a filtering medium, are also considered by OSHA to be respirators.  That type of equipment, whether it is required by the employer or permitted for voluntary use, triggers some requirements of OSHA’s respiratory protection standard that we will discuss below.  Simple paper or cloth masks, like dental or non-N95 surgical masks, on the other hand, are not considered to be respirators, and do not trigger any requirements under 1910.134.

OSHA’s respiratory protection standard provides that a respirator shall be provided to each employee when such equipment is necessary to protect the health of such employee; i.e., if there are exposures to chemicals or other hazardous agents above permissible exposure limits.  If a respirator is necessary because of exposure levels or simply because an employer mandates employees wear respirators, the employer must establish a written respiratory protection program that includes numerous elements such as fit testing, medical evaluations, procedures for proper use, storage and cleaning, and training.

OSHA’s initial Guidance for COVID-19 in the Workplace described four exposure risk categories (lower, medium, high, and very high) that workplaces and job tasks fall into, and the safety precautions that should be considered for each risk level, including what personal protective equipment (“PPE”) may be appropriate.  The majority of workplaces, other than healthcare workers and those with regular close contact with known or suspected COVID-19 patients, fall into the lower or medium risk category.  As of today, neither OSHA nor the CDC has issued guidance indicating that N95 respirators, or any other device considered to be a respirator, is required in lower- and medium-risk workplaces to protect employees from exposures to COVID-19.

However, that does not answer the question about what, if any, regulatory requirements there are if employers permit employees to voluntarily use N95s or other negative pressure filtering facepieces.  OSHA most succinctly addressed which parts of 1910.134 apply to the voluntary use of N95 masks in a 2009 Interpretation Letter with this statement:

“If respiratory protection is not required and the employer did not advise the employee to use [an N95 dust mask], but the employee requested to use a dust mask, it would be considered voluntary use. Under these conditions, there would be no requirement to develop a written respiratory protection program; however, the employer would be responsible for providing the employee with a copy of Appendix D of 1910.134[, which outlines information for employees using respirators when not required under the standard].”

The voluntary use of N95 masks by employees does not require Continue reading →

[Webinar] Cal/OSHA Developments that California Employers Must Track

Theresa Green Leave a comment

On Thursday, April 16, 2020 at 1 PM Pacific / 4 PM Eastern, join Andrew Sommer, Eric J. Conn, and Megan Shaked of the law firm Conn Maciel Carey for a complimentary webinar: Cal/OSHA Developments that California Employers Must Track.OSHA Capture

California’s Division of Occupational Safety and Health, aka Cal/OSHA, is perhaps the most aggressive and enforcement-heavy state OSH Program in the nation. California employers face a host of requirements that other employers around the country do not. Likewise, the Cal/OSHA inspection and Appeal process creates several unique landmines for California employers.

During this webinar, participants will learn about:

Continue reading →

COVID-19 FAQs for Employers – Answers to Frequently Asked Employment Law and OSHA Regulatory Questions

Theresa Green Leave a comment

As employers around the country grapple with the employment law and workplace safety regulatory implications of the 2019 Novel Coronavirus – now called “COVID-19,” the Labor & Employment Law and OSHA specialist attorneys at Conn Maciel Carey LLP have been fielding countless questions and helping our clients and friends in industry manage this pandemic.

To aid employers, we have created an extensive index of frequently asked questions with our answers about HR, employment law, and OSHA regulatory related developments and guidance.  Here are the categories addressed in the FAQs tool:

COVID FAQs Image

As this situation continues to evolve, we will Continue reading →

[BONUS WEBINAR] Employment Law and Workplace Safety Implications of COVID-19 for Brewers, Distillers, and Winemakers

Daniel C. Deacon Leave a comment

On Monday, March 30, 2020 at 1 PM Eastern, join Eric J. Conn, Kara M. Maciel, and Daniel C. Deacon of the law firm Conn Maciel Carey for a complimentary webinar: “HR and Workplace Safety Implications of COVID-19 for Brewers, Distillers, and Winemakers.”

There have been a number of significant developments related to the 2019 Novel Coronavirus – now officially called “COVID-19.” The World Health Organization declared a global pandemic, President Trump initiated a National Emergency Order, and state and local officials have been ordering shutdowns of non-essential businesses and mandatory shelter-in-place orders. Furthermore, Congress passed emergency legislation that temporarily requires employers to provide paid sick and family leave and the Department of Labor has issued guidance on how employers should comply with employment and workplace safety laws.

Local craft breweries, distilleries, and wineries have been deemed essential businesses under current federal and state directives, such as the Virginia and Maryland governors March 23, 2020 orders, but the traditional way of doing business has changed considerably. These changes have raised numerous questions regarding how small businesses can successfully operate while complying with these new requirements.

During this webinar, participants will learn about Continue reading →

COVID-19 Pandemic FAQs – What Do Stay-At-Home / Shelter-In-Place Orders Mean For Employers?

Megan Shaked Leave a comment

By Conn Maciel Carey’s COVID-19 Task Force

Governors across the nation have signed various “stay-at-home” or “shelter-in-place” orders in an increased effort to slow the spread of COVID-19.  Many cities and counties have also signed such orders as well, including in states with no statewide order in place. COVID These orders vary in their scope in the restricted activities and affected industries but they typically address: (1) the continued operations of critical businesses; (2) restrictions on non-essential businesses; (3) the activities individuals may continue to perform; and (4) other limitations on gatherings.

Spotlight: California

On March 19, 2020, California Governor Gavin Newsom signed an emergency order requiring all individuals living in California “stay home or at their places of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors.”  Californians may continue working for such critical infrastructure sectors and any other industries the governor designates as critical.  The emergency order cites to federal guidance on the federal critical infrastructure sectors, which identifies the 16 critical infrastructure sectors including critical manufacturing, food and agriculture, transportation, energy, healthcare and emergency services.

The emergency order references a March 19, 2020 Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response issued by the U.S. Department of Homeland Security, which includes more detailed descriptions of categories of workers falling under each of the identified critical infrastructure sectors.  Some of the other state orders also rely on this federal guidance on “essential critical infrastructure workers” in defining the critical business that may continue to operate under the orders.

Californians may Continue reading →

COVID-19 Pandemic FAQs – OSHA Injury and Illness Recordkeeping and Reporting (Updated 4/10/20)

Lindsay A. DiSalvo Leave a comment

By Eric J. Conn and Lindsay A. Disalvo

There are myriad workplace safety and health implications of the COVID-19 pandemic, but one OSHA regulatory obligation about which we have received countless questions in recent days is the requirement to record and/or report work-related cases of COVID-19.  Below are two FAQs that describe the relevant analysis in more detail.

  • Do I have to record a case of COVID-19 of an employee on my OSHA 300 Log?

By regulation, the common cold and flu are exempt from OSHA’s recordkeeping and reporting requirements (29 CFR Part 1904.5(b)(2)(viii)):CV19

“The illness is the common cold or flu (Note: contagious diseases such as tuberculosis, brucellosis, hepatitis A, or plague are considered work-related if the employee is infected at work).”

The rationale for the exemption is that the spread of the cold and flu are so pervasive that it is typically near impossible to identify the source of infection; i.e., there would be no reasonable way to determine whether it was more likely than not that the illness was caused by an exposure in the workplace.

Despite great sacrifice around the country, the scale of infection of COVID-19 is expected to soon spread like the flu and common cold, but OSHA has already expressed in guidance that COVID-19 is not subject to the cold/flu recordkeeping exemption:

“While 29 CFR 1904.5(b)(2)(viii) exempts recording of the common cold and flu, COVID-19 is a recordable illness when a worker is infected on the job.”

Industry has been advocating to OSHA to have the agency reconsider that initial declaration, but it does not appear OSHA will be exempting this novel strain of Coronavirus from the recordkeeping and reporting requirements any time soon.  OSHA has been maintaining a Safety and Health Topics page for COVID-19 and separate Guidance on Preparing Workplaces for COVID-19 that it updates periodically as more information becomes available.  In its most recent update to guidance, OSHA appeared to Continue reading →

[Webinar Recording] How Employers Can Respond to COVID-19 and Frequently Asked Questions

Theresa Green 4 Comments

On Tuesday, March 17, 2020 at 2:30 PM Eastern, Eric J. Conn, Kara M. Maciel, Amanda R. Strainis-Walker, and Lindsay A. DiSalvo presented a complimentary webinar regardingOSHA Employment Crossover Webinar (Dec. 2019) “How Employers Can Respond to COVID-19 and Frequently Asked Questions.”
There have been a number of significant developments related to the 2019 Novel Coronavirus – now officially called “COVID-19.”  Today, the world health organization declared a global pandemic and there are over 1000 confirmed cases in the United States.

Participants in this webinar learned about recent developments and federal legal guidance including: Continue reading →

[Bonus Webinar] How Employers Can Respond to COVID-19 and Frequently Asked Questions

Theresa Green Leave a comment

On Tuesday, March 17, 2020 at 2:30 PM Eastern, Eric J. Conn, Kara M. Maciel, Amanda R. Strainis-Walker, and Lindsay A. DiSalvo will present a complimentary webinar regardingOSHA Employment Crossover Webinar (Dec. 2019) “How Employers Can Respond to COVID-19 and Frequently Asked Questions.”
There have been a number of significant developments related to the 2019 Novel Coronavirus – now officially called “COVID-19.”  Today, the world health organization declared a global pandemic and there are over 1000 confirmed cases in the United States.

Participants in this webinar will learn Continue reading →

March Update on How Employers Can Respond to COVID-19 with FAQs

Eric J. Conn 3 Comments

By:  Kara M. Maciel, Eric J. Conn, and Beeta B. Lashkari

COVID

 

Since publishing our previous post last month, there have been a number of significant developments related to the 2019 Novel Coronavirus – now officially called “COVID-19.”  Notably, during the week of February 23, 2020, the U.S. Centers for Disease Control and Prevention (“CDC”) reported community spread of the virus that causes COVID-19 in California, Oregon, and Washington.  Community spread in Washington resulted in the first death in the U.S. from COVID-19, as well as the first reported case of COVID-19 in a health care worker, and the first potential outbreak in a long-term care facility.

Recent Developments and Federal Guidance

  • CDC has published an Interim Guidance for Businesses and Employers, cautioning employers to use the guidance to determine the risk of the Coronavirus, and not to use race or country of origin to make a determination. The guidance covers recommended strategies for employers to use, including: (1) actively encouraging sick employees to stay home; (2) separating sick employees; (3) emphasizing staying home when sick, respiratory etiquette and hand hygiene by all employees; (4) performing routine environmental cleaning; and (5) advising employees before traveling to consult CDC’s Traveler’s Health Notices and other CDC guidance.  Additionally, the guidance states that if an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace, but maintain confidentiality as required by the Americans with Disabilities Act (“ADA”).

Continue reading →

Pres. Trump’s Latest Effort to Limit Federal Agency Guidance – Two New Executive Orders

Beeta B. Lashkari Leave a comment

By Eric J. Conn and Beeta B. Lashkari

Late last year, on October 9, 2019, President Trump issued two Executive Orders (“EOs”) that could have a dramatic impact on the way OSHA and other executive agencies operate:

  1. Executive Order 13891, the Executive Order on Promoting the Rule of Law Through Improved Agency Guidance Documents (Guidance Documents EO); and
  2. Executive Order 13892, the Executive Order on Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication (Transparency EO).

These EOs were designed to, according to the President:

“protect Americans from out-of-control bureaucracy and stop regulators from imposing secret rules and hidden penalties on the American people. . .”

In a nutshell, the Guidance Documents EO mandates that the public be provided with an opportunity to comment on proposed guidance and interpretive documents (similar to what is required under the Administrative Procedures Act for rulemaking).  It requires notice and publication of guidance, and the creation of a comprehensive online database where all such guidance must be housed and easily searched.

The Transparency EO focuses on agency enforcement actions.  Most significantly, it requires agencies to provide all parties potentially subject to an enforcement action the opportunity to engage with the agency over the merits of the action prior to commencement of the enforcement action. It also:

  1. prevents agencies from enforcing standards that are not public and that would cause unfair surprise to the regulated entity (i.e., no enforcement relying on guidance documents that are not created and maintained pursuant to the Guidance Documents EO);
  2. requires the publication of any potential new or expanded jurisdiction in the Federal Register;
  3. mandates the development of procedures for encouraging voluntary self-reporting in exchange for penalty reductions; and
  4. requires that agencies adhere to standards in the Paperwork Reduction Act when asking regulated parties for information without a formal subpoena or investigative demand.

The two new Executive Orders align with the President’s business-friendly agenda, making it more difficult for regulators to engage in backdoor rulemaking (i.e., supplementing or changing regulations via the issuance of guidance documents developed without public input), and easier for businesses to keep track of the regulatory requirements with which they must comply, and to head off enforcement actions before they begin.

How will the Executive Orders change the OSH regulatory landscape, and what should employers expect next? Continue reading →

BREAKING – CSB Issues Final Accidental Release Reporting Rule

Beeta B. Lashkari Leave a comment

By Eric J. Conn and Beeta Lashkari

Last week, on the day of a federal district court-mandated deadline — Wednesday, February 5, 2020 — the Chemical Safety and Hazard Investigation Board (the CSB) announced its Final Rule on Accidental Release Reporting. The CSB posted a prepublication version of the Final Rule last week, on February 5th.  The official version should be published in the Federal Register within the next few days.

As we previously reported, on December 12, 2019, the CSB issued a Notice of Proposed Rulemaking for its new reporting rule, which set out the circumstances when facility owners and operators are required to file reports with the CSB about certain accidental chemical releases and what must be communicated in the reports.Picture1

As stated in the NPRM, the purpose of the rule is “to ensure that the CSB receives rapid, accurate reports of any accidental release that meets established statutory criteria.”

The rule requires owners and operators of stationary sources to report accidental releases that result in a fatality, a serious injury, or substantial property damage to the CSB within eight hours.  The specific information required to be provided in the accidental release report includes:

  1. A brief description of the accidental release;
  2. Whether the release resulted in a fire, explosion, death, serious injury, or property damage;
  3. The number of fatalities and/or serious injuries, and the estimated property damage at or outside the stationary source;
  4. The name of the material involved;
  5. The amount of the release; and
  6. Whether the accidental release resulted in an evacuation order impacting members of the general public and other details associated with the evacuation.

Issuance of the CSB’s reporting rule has been a long time coming.  Although the CSB did not become operational until 1998, its enabling legislation – the Clean Air Act Amendments – was enacted in 1990.  That statute, from nearly thirty years ago, expressly required the agency to issue a rule governing the reporting of accidental releases to the CSB.  Although the CSB submitted an Advanced Notice of Proposed Rulemaking for Chemical Release Reporting in 2009, that effort died on the vine.  Accordingly, the CSB has never had its own reporting rule, relying instead on other sources to receive incident information.  In February 2019, however, Continue reading →