Conn Maciel Carey Expands Midwest Practice with Addition of Talented L&E Attorney

Conn Maciel Carey LLP, a boutique law firm with national practices in OSHA • Workplace Safety, Labor & Employment, and Litigation, is pleased to announce that Ashley Mitchell has joined the firm as an attorney in its Chicago office.

Ms. Mitchell, an employment litigator, will represent clients in a wide range of employment litigation and counsel clients on the myriad legal issues employers face in the workplace.  She also will defend employers in inspections, investigations and enforcement actions involving federal OSHA and neighboring state plan agencies.

“Ashley brings a unique perspective to our employment litigation, counseling and training practice having started her career working with prominent plaintiff-side employment law firms here in Chicago, where she also developed experience dealing with policies, procedures and practices that directly impact workplace safety and health,” said Aaron Gelb, co-head of the firm’s Chicago office.  “Ashley is ideally suited to pivot from working on pension withdrawal matters one day to preparing for a labor arbitration the next,” said Mark Trapp, co-head of the Chicago office.

“We are committed to strategically growing our practices and geographic locations, and adding Ashley to our seasoned team in the Midwest will allow Conn Maciel Carey to continue to provide the excellent client service with a focus on practical and creative advice that our national and regional clients are looking for,” said Kara Maciel, Chair of the firm’s Labor • Employment Practice. Eric Conn, Chair of the firm’s OSHA • Workplace Safety Practice added, Continue reading

[Webinar] Technology Solutions for Complying with COVID-19 Requirements

On Tuesday, September 8th at 1 PM ET, join Eric J. Conn (Chair of Conn Maciel Carey’s national OSHA Practice) and Nick Eurek (President and Co-Founder of Maptician) for a complimentary webinar regarding “Technology Solutions for Complying with COVID-19 Requirements.” 

In July, Virginia became the first state in the nation to promulgate a mandatory rule with a set of requirements designed to protect workers from COVID-19 infections in the workplace.  For example, Virginia employers must:

  • Assess and categorize potential exposures to COVID-19 in the workplace
  • Implement a written infection control and response plan
  • Promptly notify potentially exposed co-workers, VOSH/OSHA, and/or the Department of Health about infected workers

But Virginia’s rule really just memorializes the widespread, already enforceable guidance from federal OSHA, the CDC, state and local departments of health, and governors’ offices all across the country, so the policies and controls that must be implemented in Virginia are by and large needed everywhere.

Continue reading

Update on Cal/OSHA’s Wildfire Smoke Rule

By Andrew Sommer and Fred Walter

In May of this year, Conn Maciel Carey’s OSHA Practice submitted comments to the Cal/OSH Standards Board on behalf of the Wildfire Smoke Rule Industry Coalition about the agency’s effort to make permanent what had been Emergency Temporary Standard to protect workers from the respiratory hazards of California wildfires.

Last month, the Cal/OSH Standards Board issued a 15-day Notice of Proposed Modifications to what would become the permanent wildfire smoke rule. The proposed changes are not major, mostly clarifying that one of the methods for determining the Air Quality Index for particulate matter 2.5 is the Interagency Wildland Fire Air Quality Response Program.

Another change to be expected in the final rule is a revision to the Appendix B training instructions to address cleaning and maintenance of reusable respirators, purportedly to address critical shortages of N95 respirators exacerbated by the COVID-19 pandemic. While anything that extends the supply of N95 masks is welcome, that change alone is not nearly enough to solve a massive compliance problem created by the rule. With the Wildfire Smoke Rule, DOSH requires workers exposed to wildfire smoke be supplied with N95 respirators, and it does not consider surgical masks to be acceptable substitutes. DOSH concedes that N95 respirators are generally not available to any but medical workers right now, but they have no recommended substitutes.

That was one of the primary points of emphasis in our coalition’s comments — the rule needed to include some flexibility around the requirement for employers to supply N95 respirator masks for all potentially affected workers. There were already problems with N95 shortages even before the COVID-19 pandemic, but now, the shortage is extreme, and with the CDC’s and OSHA’s recommendations that all supplies of N95s should be reserved for the healthcare industry obviously makes compliance with a a rigid N95 requirement for wildfire smoke protection impossible for most employers. Now in the midst of another wildfire season in California, employers are continuing to experience N95 shortages.

Continue reading

OSHA and FDA Issue COVID-19 Checklist for Food Industry Workplaces

By Conn Maciel Carey’s COVID-19 Task Force

On August 19, 2020, the Food and Drug Administration (FDA) and the Occupational Safety and Health Administration (OSHA) released a detailed checklist for human and animal food manufacturers to consider when continuing, resuming or reevaluating operations due to the COVID-19 pandemic.

The stated purpose of the new guidance document is “for FDA-regulated human and animal food operations to use when assessing operations during the COVID-19 pandemic, especially when re-starting operations after a shut down or when reassessing operations because of changes due to the COVID-19 public health emergency caused by the virus SARS-CoV.”

The checklist is intended to guide employers who grow, harvest, pack, manufacture, process or hold human and animal food regulated by FDA, and covers nearly every (if not every) topic related to COVID-19 including:

  • Employee health screenings;
  • Operation configuration for social distancing;
  • Recommended engineering controls (e.g., physical barriers and adequate ventilation);
  • Communication and training;
  • Signage;
  • Coordination with public health officials;
  • Exposure scenarios and return-to-work criteria;
  • Hand hygiene and respiratory etiquette;
  • Flexible sick leave policies;
  • Cleaning/disinfecting; and
  • PPE and face coverings.

The checklist also includes some more topics somewhat unique to the food industry, such as:

  • Shared/communal housing;
  • Recommendations for critical infrastructure workers;
  • Social distancing configurations for harvesting and along production lines; and
  • Process Safety Management considerations for facilities with ammonia refrigeration systems that may have been shut down. 
Continue reading

CDC Revises its COVID-19 Return-to-Work Criteria, Again

By Conn Maciel Carey’s COVID-19 Task Force

On July 20, 2020, the U.S. Centers Disease Control and Prevention (“CDC”) made major revisions to its COVID-19 “discontinue home isolation” guidance, upon which employers may rely to determine when it is safe for employees to return to work.  This comes only a couple months after CDC made major revisions to the same guidance document when, on May 3, 2020, it extended the home isolation period from 7 to 10 days since symptoms first appeared for the symptom-based strategy in persons with COVID-19 who have symptoms, and from 7 to 10 days after the date of their first positive test for the time-based strategy in asymptomatic persons with laboratory-confirmed COVID-19.

In its most recent update, Picture1CDC has determined that a test-based strategy is no longer recommended to determine when to discontinue home isolation, except in certain circumstances.  It has also modified its symptom-based strategy in part by changing the number of hours that must pass since last fever without the use of fever-reducing medication from “at least 72 hours” to “at least 24 hours.”  CDC’s revisions should trigger employers to immediately revise their COVID-19 preparedness, response, and control plans to account for the latest changes.  In light of the recent COVID-19 regulation that Virginia promulgated almost at the same time that CDC decided to update its guidance, the revisions also demonstrate that COVID-19 is not the type of hazard easily subject to a regulatory standard.

Revised Guidance

To start, it is important to understand the major changes that CDC has just made.  As you know, prior to CDC’s most recent changes, CDC offered individuals with COVID-19 who had symptoms two options for discontinuing home isolation:

  1. a symptom-based strategy; and
  2. a test-based strategy.

It also offered individuals with COVID-19 who never showed symptoms two options:

  1. a time-based strategy; and
  2. a test-based strategy.

With its most recent update, CDC has essentially eliminated Continue reading

Michigan OSHA Launches COVID-19 Enforcement Emphasis Program Targeting Retail and Restaurants

By Conn Maciel Carey’s COVID-19 Task Force

Over the course of the last month, several of our retail clients have been visited by Michigan OSHA (MIOSHA) for COVID-19 enforcement inspections in circumstances without an employee complaint or any self-reported work-related COVID-19 hospitalization or death.  The reason for these inspections, it turns out, is MIOSHA has launched a State Emphasis Program (SEP) on COVID-19 in Bars, Restaurants, Gas Stations, Grocery and Convenience Stores, and Other Retail.  We got our hands on the Directive for the Emphasis Program. Here’s a summary of what Michigan employers in those industries need to know about MIOSHA’s new enforcement strategy.

The Directive lays out MIOSHA’s approach for selecting various retail and hospitality workplaces for programmed inspections about COVID-19 infection control.

The stated purposes of the Emphasis Program is to “increase MIOSHA’s presence in retail establishments to ensure workers are protected from SARS-CoV-2,” because “employees who come in contact with large numbers of people as a result of their employment [like in retail] are at elevated risk of infection.”

The inspections are evaluating the employer’s adherence to Governor Whitmer’s Executive Orders for COVID-19, OSHA Guidance on Preparing Workplaces for COVID-19, and applicable CDC guidance for COVID-19.

The agency has created a targeting list of retail/hospitality businesses broken down as follows:

Continue reading

Virginia OSHA Moves to Make Permanent Its New Infectious Disease Standard

By Conn Maciel Carey’s COVID-19 Task Force

As we have been updating you about here, on July 27th, the Virginia Occupational Safety and Health Administration (VOSH) adopted a COVID-19 Emergency Temporary Standard (ETS).  There are some important deadlines fast approaching under that new rule:

  1. Conduct a COVID-19 Hazard Assessment to categorize the risk exposures at the workplace (due by Aug. 26th);
  2. Deliver the first of two COVID-19 employee training events (due by Aug. 26th); and
  3. Implement a written infectious disease preparedness and response plan (due by Sept. 25th).

We have been helping our clients quickly get up to speed on the new emergency rule.  As part of that effort, we co-hosted a webinar with the head of VOSH’s Consultation Program and also prepared an FAQ document about the new rule.

But while everyone is scrambling to come into compliance with the emergency rule, we want to highlight another big development with the Virginia rule that has a fast-approaching deadline – that is, VOSH’s effort to prepare a permanent infectious disease standard.

The ETS is, of course, just a temporary standard, but by regulation, VOSH is required to commence a rulemaking to promulgate a permanent standard soon after issuing an ETS.  By publication of the ETS in July, VOSH simultaneously gave notice that the Standards Board intends to adopt a permanent infectious disease standard, and the ETS serves as the proposed rule.  Here is a link to the Proposed Permanent Standard for Infectious Disease Prevention.  The agency intends to finalize the permanent rule within six months, with an effective date no later than January 27, 2021.

Continue reading

[Webinar] OSHA and Labor & Employment Law Issues Associated with Employee Discipline

On Wednesday, August 19, 2020 at 1 PM Eastern, join Conn Maciel Carey and special guest Richard Fairfax, former Deputy Assistant Secretary at the Occupational Safety and Health Administration, for a webinar regarding “OSHA and Labor & Employment Law Issues Associated with Employee Discipline.”

Disciplining employees, a critical tool in enforcing workplace rules, has the Capture iiipotential to create problems, especially when relationships deteriorate and emotions run high. Even in situations where an employer is disciplining for the right reason, if it is handled incorrectly, a lawsuit or labor grievance could turn out to be costly. But in circumstances that warrant discipline, employers cannot just sit back. Productivity, employee morale, workplace culture, employee safety and health, and meeting goals are just some of the many considerations impacted by an effective employee discipline program. Consistent employee discipline can also benefit employers in litigation, union grievances, and inspections and investigations by the EEOC and OSHA. At the same time, employers are often confused on how to effectively and legally implement safety incentive and disincentive programs without running afoul of OSHA’s guidelines.

This webinar will give you a blueprint to lawfully discipline employee and mitigate the risk of future litigation. Participants in this webinar will learn about:
Continue reading

FAQs About Virginia OSHA’s New COVID-19 Emergency Temporary Standard

On August 3rd, Eric J. Conn (Chair of Conn Maciel Carey’s national OSHA Practice), Susan Wilcox (a CIH and CSP with Virginia-based Safety Resource Associates), and special guest Jennifer Rose (Director of Cooperative Programs at VOSH) presented a webinar: “Everything You Need to Know About Virginia OSHA’s New COVID-19 Standard.VOSH FAQs

During the webinar, we collected numerous questions from participants about VOSH’s new COVID-19 Emergency Temporary Standard.  We have compiled all of those questions from the webinar into this written Q&A document with our answers and useful links throughout.  These FAQs have also been incorporated into our broader compendium of COVID-19 FAQs on Conn Maciel Carey’s COVID-19 Task Force Resource Page.

We are also pleased to share these links to a copy of the slides and a recording of the webinar, as well as our article here on the OSHA Defense Report blog about the lay of the land around VOSH’s new rule.  And below is a brief recap of the program.

Last month, Virginia became the first state in the nation to promulgate a mandatory safety regulation designed to reduce COVID-19 infections in the workplace, when Virginia’s Governor Ralph Northam announced the commonwealth’s adoption of an Emergency Temporary Standard (“ETS”). The COVID-19 ETS, which was drafted by Virginia’s Department of Labor and Industry, requires Virginia employers to: Continue reading

Coalition for Uniformity in COVID-19 Recordkeeping Advocates for Cal/OSHA to Realign its Requirements

By Conn Maciel Carey’s COVID-19 Task Force

As we previously reported, in late May, Cal/OSHA issued a new set of COVID-19 Recordkeeping and Reporting FAQs that represented a serious departure from federal OSHA’s guidance on that same subject.  Throughout the pandemic, federal OSHA has maintained that employers need only record and report COVID-19 cases that are:

  1. Confirmed by a positive laboratory test of a respiratory specimen; and
  2. “More likely than not” the result of a workplace exposure, based on reasonably available evidence, and the absence of any alternative (non-work) explanation for the employee’s illness.

Cal/OSHA’s May 27th guidance, however, breaks from both of those key requirements for COVID-19 recordkeeping, rejecting the need for a confirmed case and flipping the burden of establishing work-relatedness on its head, Cal-OSHA RK FAQSestablishing instead a presumption of work-related if any workplace exposure can be identified, even if the cause of the illness is just as likely to be attributable to a non-work exposure.

Aside from being bad policy that will result in many illnesses being recorded on 300 Logs only in California that were not actually COVID-19 cases, and/or that were not caused by exposures in the workplace, Cal/OSHA’s unique COVID-19 recording criteria are not permitted by law.

More COVID-19 cases on your logs can create significant risk of liability.  For example, there is no doubt an avalanche of wrongful death and personal injury suits waiting around the corner, and while recording an illness is not an admission of wrong-doing, it is an admission that the illness was likely spread in your workplace.  Plaintiffs’ attorneys will make hay of that to show your exposure control efforts were insufficient, or to show that the illnesses experienced by their clients (customers, contractors, family members of employees, and others whose suits would not be barred by workers’ compensation exclusivity) likely were also contracted in your workplace or because of your workplace.  And of course, more illnesses having to be recorded also creates more potential for Cal/OSHA citations for failure to record or failure to record timely or accurately.

The Coalition for Uniformity in COVID-19 Recordkeeping

Conn Maciel Carey organized and represents the Coalition for Uniformity in COVID-19 Recordkeeping, which is composed of a broad array of California employers impacted by Cal/OSHA’s COVID-19 recordkeeping requirements. Continue reading

[Webinar] Everything You Need to Know About Virginia OSHA’s New COVID-19 Standard

On Monday, August 3rd at 1 PM ET, join Eric J. Conn (Chair of Conn Maciel Carey’s national OSHA Practice), Susan Wilcox (a CIH and CSP with Safety Resource Associates), and special guest Jennifer Rose (VOSH Cooperative Programs Director with the Virginia Dept. of Labor and Industry) for a complimentary webinar regardingEverything You Need to Know About Virginia OSHA’s New COVID-19 Standard.” 

Last week, Virginia became the first state in the nation to promulgate a mandatory safety regulation designed to reduce COVID-19 infectionsVOSH Cover Slide in the workplace, when Virginia’s Governor Ralph Northam announced the commonwealth’s adoption of an Emergency Temporary Standard (“ETS”). The COVID-19 ETS, which was drafted by Virginia’s Department of Labor and Industry, requires Virginia employers to: Continue reading

Virginia Promulgates the Nation’s First Mandatory COVID-19 Workplace Safety Regulation

By Conn Maciel Carey’s COVID-19 Task Force

On Wednesday, July 15, 2020, Virginia’s Governor Ralph Northam announced the commonwealth’s adoption of an emergency temporary standard (“ETS”) on infectious disease prevention.  With that, Virginia became the first state in the nation to promulgate a mandatory safety regulation designed to prevent and/or reduce COVID-19 infections in the workplace.  VA EOThe Virginia Department of Labor and Industry’s Safety and Health Codes Board voted to approve the ETS after Governor Northam directed the creation of enforceable regulations in a May Executive Order (the same EO that mandated the use of masks in public for all Virginians).  Specifically, Governor Northam directed:

“The Commissioner of the Virginia Department of Labor and Industry shall promulgate emergency regulations and standards to control, prevent, and mitigate the spread of COVID-19 in the workplace. The regulations and standards … shall apply to every employer, employee, and place of employment within the jurisdiction of the Virginia Occupational Safety and Health (VOSH) program.”

Virginia state officials said they were forced to act because federal OSHA had not developed an employer safety standard to protect against infections from the Coronavirus, and thus the burden to do so has been left to the states.

The ETS, which was drafted by Virginia’s Department of Labor and Industry, will go into effect after it is published in a newspaper in Richmond, VA, which is expected to occur the week of July 27th.  The rule will remain in effect as an ETS for at least six months, but can be made permanent through the Virginia OSHA (VOSH) formal rulemaking process defined by state law.  Although the Final Rule has not been published, the rulemaking process has been somewhat public, with early drafts of the rule discussed and debated in public meetings, and what appears to be the final rule published today.

While some requirements apply to all employers of any size and in any industry, the Rule requires employers to conduct a risk assessment to identify potential exposures to COVID-19 in the workplace, and to categorize employees’ job tasks as “very high,” “high,” “medium,” or “lower” (as defined in the Rule).  The hazard assessment has to be verified by a written certification that identifies the workplace evaluated, the person certifying that the evaluated was completed, the dates of the assessment, and the document as a certification.

Each category has a separate list of precautions employers are required to take Continue reading

OSHA Releases COVID-19 Guidance for the Oil and Gas Industry

By Conn Maciel Carey’s COVID-19 Task Force

Continuing its effort to issue numerous industry-specific COVID-19 guidance documents, last week OSHA released guidance for the Oil and Gas Industry to help employers manage the COVID-19 hazard in oil and gas workplaces.  Picture1The  new guidance builds on existing CDC and/or OSHA guidance that we have seen for all employers or from other industry-specific guidance, and adds in a few oil and gas specific recommendations.

To start, OSHA makes clear that the guidance is geared towards oil and gas industry workers and employers, including those in sub-industries and tasks that make up the broader oil and gas sector.  In that regard, OSHA provides a table that describes oil and gas work tasks associated with the exposure risk levels in OSHA’s occupational exposure risk pyramid, which divides tasks into four risk exposure categories – very high, high, medium, and lower (caution).  Specifically, OSHA groups most oil and gas work tasks in the lower (caution) and medium exposure risk levels.

For the medium exposure risk level category, OSHA includes:

  1. oil and gas drilling, servicing, production, distribution, and/or processing tasks that require frequent close contact (within 6 feet) with coworkers, contractors, customers, or the general public; and
  2. traveling within facilities or between facilities when workers must share vehicles.

For the first group of tasks, OSHA notes that control rooms, trailers and doghouses are frequent high-traffic areas.  The Agency also includes a general note that working and living together in close quarters where social distancing is not always feasible may increase exposure risk compared to other activities in the medium exposure risk category. Continue reading

8 Conn Maciel Carey Attorneys Recognized as Super Lawyers and Rising Stars

Conn Maciel Carey LLP is excited to share that eight of its attorneys have been recognized by Super Lawyers and Rising Stars in 2020 in the fields of Labor & Employment and Workplace Safety Law.  Super Lawyers is a research-driven and peer-influenced rating service featuring exceptional attorneys out of select legal Super Lawyers 2020practice areas.  The attorneys selected are acknowledged for acquiring extraordinary professional achievement and peer recognition in their discrete areas of practice.

Eric J. Conn (Super Lawyer) is a founding partner of Conn Maciel Carey and Chair of the firm’s national OSHA • Workplace Safety Practice Group. His practice focuses exclusively on issues involving occupational safety and health law.  Before launching his own OSHA Practice, Mr. Conn practiced for more than a decade alongside the former first General Counsel of the OSH Review Commission.  Mr. Conn and his OSHA Team at Conn Maciel Carey develop safety and health regulatory strategies for employers across all industries.

Prior to founding Conn Maciel Carey, Mr. Conn was Head of an OSHA practice group that was honored as the “Occupational Health & Safety Law Firm of the Year” by Corporate INTL Magazine in its 2014 Global Awards. In 2013 and 2014, he was named a “Rising Star” by Washington, DC Super Lawyers, and as a Super Lawyer every year since.  He has also been selected for inclusion in the Washington Post’s Top-Rated Lawyers list in Washington, DC.

Kara M. Maciel (Super Lawyer) is a founding partner of Conn Maciel Carey and Chair of the firm’s national Labor • Employment Practice Group. She focuses her practice on representing employers in all aspects of the employment relationship.  Continue reading

California Governor Deploys COVID-19 “Strike Force” Over Holiday Weekend to Enforce Workplace Restrictions

By Conn Maciel Carey’s COVID-19 Task Force 

California increased its efforts to combat COVID-19 over the July 4th holiday weekend by deploying multi-agency strike teams to visit or otherwise make contact with businesses to evaluate and enforce compliance with and/or educate them about the State’s numerous COVID-19 orders, directives, and guidance.

The “Strike Force” includes representatives from at least ten different state agencies.  Approximately 100 agents are from the Alcohol Beverage Control agency and the rest from the Division of Occupational Safety and Health (Cal/OSHA), the California Highway Patrol, the Board of Barbering & Cosmetology, Consumer Affairs, Food and Agriculture, Labor Commissioner’s Office, the Governor’s Office of Business and Economic Development, and other state licensing entities.

Ahead of the July 4th holiday, Governor Newsom ordered bars, indoor restaurants, movie theaters and more to close in a number of counties on a state watch list.  The state monitoring list is ever changing and represents counties with a need for more support and/or enforcement.

Over the holiday, hundreds of state inspectors fanned out across California to enforce health orders related to Coronavirus.

The State’s actions are likely authorized by Executive Order N-33-20, which generally directs all residents immediately to heed current State public health directives to stay home, Calif EOexcept as needed to maintain continuity of operations of essential critical infrastructure sectors and additional sectors as the State Public Health Officer “may designate” as critical to protect health and well-being of all Californians.  As for the crackdown, the actions taken are likely be based on recent Continue reading

Oregon OSHA Initiates Rulemaking for Emergency Temporary COVID-19 Standards

By Conn Maciel Carey’s COVID-19 Task Force

On June 26, 2020, Oregon OSHA announced that in consultation with the Oregon Health Authority (OHA)/Public Health and other technical advisors, as well as affected stakeholders, it had begun to develop a pair of temporary COVID-19 workplace rules — one for healthcare and closely-related industries, and another for general workplaces.  Picture1The target effective date for those temporary rules is September 1, 2020, with the rules to remain in effect through at least February 2021. In parallel, Oregon will also begin work on permanent rules addressing airborne infectious disease control through the state’s normal rulemaking process.

The technical advisory group meetings and external stakeholder meetings are already taking place and are expected to be completed over the next two weeks.

Even though the emergency temporary standards will not go through the typical, more formal rulemaking process, there are still opportunities for employers to influence:

  • the scope of the rules;
  • the substantive requirements of the rules; and/or
  • how their workplaces will be characterized (i.e., as healthcare or general industry).

Participation in the stakeholder meetings and the submission of comments could make

a significant impact on the nature of the burdens placed on Oregon employers through the remainder of the pandemic.

Continue reading

With Pressure Mounting on MSHA for COVID-19 Standard, Agency Issues Guidance with CDC

By Conn Maciel Carey’s COVID-19 Task Force

MSHA is facing political and now legal pressure to take additional action in response to the COVID-19 pandemic. For the most part, and most certainly when compared to its sister agency OSHA, MSHA has taken an wait and see approach to responding to COVID-19 in the workplace, offering limited guidance and resources to the mining community.

While there were some developments in late March and early April, granting mine operators a bit of relief on training requirements during social distancing, while the President’s national emergency declaration remains in effect, MSHA has otherwise encouraged mine operators to implement their own best practices to combat the spread of COVID-19 in the workplace and adhere to Centers for Disease Control and Prevention (CDC) guidance.

COVID-19 miner protection act snip

In May, a group of senators, led by Senator Manchin of West Virginia, introduced a bill that if passed would force MSHA’s hand to enact a emergency temporary standard with respect to COVID-19. No further action has taken place since the bill was introduced on May 13, 2020, but if passed, the COVID-19 Mine Worker Protection Act would require MSHA to issue an emergency temporary standard within seven days with respect to COVID-19 and require MSHA to prepare a “permanent and comprehensive infectious disease standard within two years.” In addition, the bill would require:

  • Mine operators to provide personal protective equipment to miners;
  • MSHA to forbid employers from retaliating against miners for reporting infection control problems to their employer, or to local, State, or Federal government agencies; and
  • MSHA, in coordination with CDC and NIOSH, to track, analyze, and investigate mine-related COVID-19 infections data to make recommendations and guidance to protect miners from the virus.

Continue reading

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

By Conn Maciel Carey’s COVID-19 Task Force

As COVID Spring transitions to COVID Summer, wearing some form of face covering has become the new norm, especially in workplaces all across the country.  Many employers operating essential businesses, as well as non-essential business that have begun to reopen, have sought to provide or require some form of respirator, face mask, or face covering for employees.  Given OSHA’s particular emphasis on respiratory protection throughout the pandemic and for the foreseeable future, it is important for employers 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 mandated by the employer or merely 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  other regulations.  Last week, OSHA issued a series of Frequently Asked Questions (FAQs) about face coverings to help employers navigate obligations amidst the COVID-19 pandemic.Face Covering FAQs

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.  Use of that type of equipment in the workplace, whether it is required by the employer or permitted for voluntary use, triggers numerous duties under OSHA’s respiratory protection standard that we will discuss below.  On the other hand, simple paper or cloth masks, like dental or surgical masks, are not considered to be respirators, and do not trigger any requirements under 1910.134.

Let’s start this discussion with the more ubiquitous face coverings that are NOT considered to be respirators, and also are not considered to be personal protective equipment (PPE).

Paper or Cloth Face Masks

Setting aside respirators for the moment, if your workplace is permitting or even requiring use of some form of a loose-fitting paper or cloth mask, or even a generic face covering like a bandana or one of the DIY masks that CDC has been promoting for general use by the public, none of those is considered to be a respirator, AND none of those is even considered to be a form of PPE.

As a general rule, Continue reading

National Forklift Safety Day: OSHA Enforcement of Powered Industrial Truck Requirements

By Eric J. Conn and Nick W. Scala

Forklifts, or powered industrial trucks, continue to be one of the most essential and most heavily cited pieces of equipment within material handling, which makes today – National Forklift Safety Day – sponsored by the Industrial Truck Association, an opportune time to review some of the most common areas of OSHA enforcement for powered industrial trucks (“PIT”).Capture

Recent data from OSHA indicates that in FY2019 there were over 2500 citations issued under §1910.178, which contains OSHA’s standard on PIT. This was the seventh most frequently cited standard by OSHA that year and according to OSHA, and specifically at the sub-sections of enforcement under §1910.178, the most commonly cited elements of the standard in FY2019 were:

  • 178(l)(1)(i) – operator training: ensuring that operators are competent to safely operate a powered industrial truck as demonstrated by completion of training and evaluation;
  • 178(l)(4)(iii) – refresher training and evaluation: evaluation of operator’s performance must be conducted at least once every three years;
  • 178(l)(6) – certification of operator training and evaluation;
  • 178(p)(1) – taking powered industrial trucks out of service when in need of repair, defective, or unsafe; and
  • 178(l)(1)(ii) – operator training: ensuring completion of training prior to permitting employee to operate powered industrial truck.

It is imperative that employers utilizing PIT remain consistent when implementing training programs for material handling, and also know when to retrain. Not only must a recertification take place at least once every three years, as outlined in §1910.178(I)(4(iii), but refresher training must also be provided to operators if: Continue reading

Cal/OSHA Establishes a Presumption of Work Relatedness in new COVID-19 Recording and Reporting Guidance

By Conn Maciel Carey’s COVID-19 Task Force

As we previously reported, in early April, the Head of Cal/OSHA, Division Chief Doug Parker, provided feedback about Cal/OSHA’s COVID-19 Recordkeeping and Reporting expectations.  The signal to employers back then was that Cal/OSHA would be following Federal OSHA’s guidance on when employers must record COVID-19 cases on their 300 Logs, and that is not very often.

Just last week, however, Cal/OSHA issued a new set of COVID-19 Recordkeeping and Reporting FAQs, indicating that it has changed course from Division Chief Parker’s April letter.  This move comes only a few days after Fed OSHA reversed course with respect to its own COVID-19 Recordkeeping and Reporting guidance.Cal-OSHA RK FAQS

To be clear, while Fed OSHA’s latest COVID-19 Recordkeeping guidance does retreat from some of the early relief OSHA had offered employers, in substance, it merely changes the landscape around the edges — requiring more employers to analyze work-relatedness for COVID-19 cases.  Still fed OSHA only requires recording or reporting COVID-19 cases where it is “more likely than not” that a COVID-19 case resulted from workplace exposure, based on reasonably available evidence, and the absence of any alternative (non-work) explanation for the employee’s illness.

Among other stark differences, Cal/OSHA’s new guidance flips the burden of establishing work-relatedness on its head.  Now, according to Cal/OSHA, a COVID-19 case in California will be presumed to be work-related if any workplace exposure is identified, even if the cause of the illness is more likely attributable to a non-workplace exposure.

Confirmed Case

Unlike Fed OSHA’s previous and current recordkeeping guidance, Cal/OSHA’s FAQs now make clear that Cal/OSHA does NOT require a positive test for COVID-19 to be necessary to trigger recording requirements.  Cal/OSHA states: Continue reading

Wildfire Smoke Rule Coalition Comments on Cal/OSHA’s Proposed Permanent Wildfire Smoke Standard

By Andrew J. Sommer and Eric J. Conn

On behalf of a diverse coalition of employers, Conn Maciel Carey submitted written comments and presented key comments at the Cal/OSH Standards Board’s May 21, 2020 meeting concerning the proposed permanent rule on protection from wildfire smoke.  The coalition raised a host of concerns about the rule, from the potentially broad application of the rule to the inflexible respiratory protection and hierarchy of controls requirements.

As background,  the Cal/OSH Standards Board adopted an emergency regulation regarding hazards associated with wildfire smoke last summer at the urging of various interest groups.  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 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

Conn Maciel Carey’s Multi-Disciplinary COVID-19 Task Force Resources

By Conn Maciel Carey’s COVID-19 Task Force

As employers around the country grapple with the employment law and workplace safety implications of the 2019 Novel Coronavirus (“COVID-19”), COVID-19 Task Force PageConn Maciel Carey formed a national, multi-disciplinary legal and regulatory task force dedicated to helping our clients across all industries manage the multitude of pandemic-related issues employers are facing and preparing them for the tidal wave of litigation that is waiting around the corner.

As part of our COVID-19 Task Force, the firm’s dedicated Workplace Safety, Labor and Employment, and Litigation attorneys have produced a comprehensive set of resources to guide employers through this uncharted territory and the unique workplace challenges presented by the presence of a new health hazard in our nation’s workplaces.

We have now pulled those resources together in a single location — Conn Maciel Carey’s COVID-19 Task Force Page, where employers can find:

Our COVID-19 Task Force has spent the last few months working with our clients to: Continue reading

OSHA Issues COVID-19 Guidance for the Construction Industry

By Conn Maciel Carey’s COVID-19 Task Force

Federal OSHA just issued new COVID-19 guidance focused on the construction industry.  It does not tread a lot of new ground, but here is a summary of it.

Most construction projects and tasks will be in the Lower or Medium risk exposure category in OSHA’s COVID-19 risk matrix (those categories require much less in the way of engineering and administrative controls than healthcare and manufacturing facilities. Social distancing and physical barriers continue to be the principal method to control infection recommended by OSHA. With respect to separating employees at construction sites, OSHA recommends:Construction Guidance

  • Using closed doors and walls, whenever feasible, as physical barriers to separate workers from any individuals experiencing signs and/or symptoms consistent with COVID-19; and/or
  • Erecting plastic sheeting barriers when workers need to occupy specific areas of an indoor work site where they are in close contact (less than 6 feet) with someone suspected of having or known to have COVID-19.

OSHA also recommends gathering certain information (and provides sample questions) about projects before sending workers to perform construction activities in an indoor environment that may be occupied by a homeowner, customer, worker, or another occupant.

The new guidance includes a large section on “Face Coverings in Construction,” consistent with OSHA’s general movement towards a consistent expectation that employers will provide and require face coverings in workplaces whenever and wherever social distancing cannot be assured.  The Face Covering section in this construction guidance explains that:

  • CDC recommends wearing cloth face coverings as a protective measure in addition to social distancing (i.e., staying at least 6’ away from others).
  • Cloth face coverings are especially important when social distancing is not feasible based on working conditions.
  • A cloth face covering may

    Continue reading

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

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

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