[Webinar Recording] Process Safety Update: The Latest with OSHA PSM & EPA RMP

On November 17, 2020, Eric J. ConnMicah Smith and Beeta Lashkari presented a complimentary webinar: Process Safety Update: The Latest with OSHA PSM & EPA RMP.

Following the 2013 West Fertilizer explosion, then-President Obama issued Exec. Orders directing OSHA, EPA and other agencies to “modernize” the chemical process safety regulatory landscape. OSHA and EPA took sweeping actions, from enforcement initiatives (like a new PSM National Emphasis Program) to rulemakings and interpretation letters.

Then President Trump took office with a de-regulatory agenda.  But rather than unwavering deregulation, Trump Admin. initiatives in this area have been splintered, with some deregulatory work proceeding (e.g., rollback of RMP amendments), others coming to a complete halt (e.g., PSM reform rulemaking), and still others moving forward like business as usual (e.g., the Chem/REF PSM NEP inspections and the CSB’s new accidental release reporting rule).  And now, with the Presidential Election behind us (sort of), and a new Biden Administration looming, we could see another significant shake-up of the regulatory landscape.

This webinar reviews the status and likely future of OSHA’s PSM Standard and EPA’s RMP Rule, CSB developments, and other process safety issues, such as the recent 10th Cir. Decision on PSM application to interconnected and co-located vessels.

We are pleased to share links to a copy of the slides and a recording of the webinar

This was the 11th regularly scheduled webinar in the 2020 OSHA Webinar Series. Click here to view our full schedule, detailed program descriptions, and individual registration pages for the remaining webinars in the 2020 OSHA Webinar Series.  To register for all of Conn Maciel Carey’s OSHA webinars, click here to send an email request, and we will get you automatically registered.

If you missed any of our past webinars in our annual OSHA Webinar Series, here is a link to Conn Maciel Carey’s webinar archive.
2020 OSHA Webinar Series Logo

If you missed any of our past webinars in our annual OSHA Webinar Series, here is a link to Conn Maciel Carey’s webinar archive.

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Like so many other aspects of our lives, our Annual Process Safety Summit in Washington, DC will look a little different in the year of COVID-19.  Rather than gathering together in person in our Nation’s Capital for two full days in October, the 3rd Annual Process Safety Summit will be a virtual event, and it will take place in shorter segments on December 8-9, 2020.

But what will not change is the Summit’s one-of-a-kind opportunity to convene safety and legal professionals from chemical manufacturing, petroleum refining, paper, and other process industries with the senior government officials responsible for regulating process safety.  Check out our working agenda and register today.

Check out the Process Safety Summit website for updates.
 
Register now!  General admission is $50.00.

[Webinar Recording] Process Safety Update: The Latest with OSHA PSM & EPA RMP

On November 17, 2020, Eric J. ConnMicah Smith and Beeta Lashkari presented a complimentary webinar: Process Safety Update: The Latest with OSHA PSM & EPA RMP.

Following the 2013 West Fertilizer explosion, then-President Obama issued Exec. Orders directing OSHA, EPA and other agencies to “modernize” the chemical process safety regulatory landscape. OSHA and EPA took sweeping actions, from enforcement initiatives (like a new PSM National Emphasis Program) to rulemakings and interpretation letters.

Then President Trump took office with a de-regulatory agenda.  But rather than unwavering deregulation, Trump Admin. initiatives in this area have been splintered, with some deregulatory work proceeding (e.g., rollback of RMP amendments), others coming to a complete halt (e.g., PSM reform rulemaking), and still others moving forward like business as usual (e.g., the Chem/REF PSM NEP inspections and the CSB’s new accidental release reporting rule).  And now, with the Presidential Election behind us (sort of), and a new Biden Administration looming, we could see another significant shake-up of the regulatory landscape.

This webinar reviewed Continue reading

What Employers Need to Know About Mandatory COVID-19 Vaccines

By Conn Maciel Carey’s COVID-19 Task Force

With the availability of a safe, effective COVID-19 vaccine edging closer and closer, employers understandably have a number of questions regarding their role in the workplace – whether and when they can require a vaccination, what exceptions are required in a mandatory vaccination program, and whether they should require (as opposed to encourage and facilitate) the COVID-19 vaccine for employees once it becomes available. 

This summer, the World Health Organization reported that nearly 200 potential vaccines were currently being developed in labs across the world, and as of mid-October, disclosed that more than 40 had advanced to clinical stage testing on humans.  Drug manufacturers estimate that a vaccine will be ready and approved for general use by the end of this year, although logistically not ready for widespread distribution until mid-2021.

Indeed, just over the past couple of weeks, Pfizer and Moderna have made promising announcements regarding the results of their clinical trials.  Namely, on Monday, November 9, 2020, Pfizer and BioNTech announced that a vaccine candidate against COVID-19 achieved success in the firm interim analysis from the Phase 3 study.  The vaccine candidate was found to be more than 90% effective in preventing COVID-19 in participants without evidence of prior SARS-CoV-2 infection in the first interim efficacy analysis.  According to the announcement, submission for Emergency Use Authorization (EUA) to the U.S. Food and Drug Administration (FDA) is planned for soon after the required safety milestone is achieved, which is currently expected to occur this week.  Additionally, as reported by the National Institutes of Health (NIH) on November 16, 2020, there have been promising interim results from a clinical trial of a NIH-Moderna COVID-19 vaccine.  An independent data and safety monitoring board (DSMB) reported that the vaccine candidate was safe and well-tolerated and noted a vaccine efficacy rate of 94.5%.

As the reality of a vaccination nears, employers are inquiring whether they can and should mandate the vaccine for their employees.

  1. Can Employers Require Employees to Take the COVID-19 Vaccine?

As a threshold matter, it should be noted that according to a member of the federal advisory panel on immunizations that will be making recommendations to the CDC on who should get the first doses, vaccines authorized under the FDA’s emergency use authority, as these COVID-19 vaccinations will be at the start, cannot be mandated.  Any COVID-19 vaccine brought to market under an EUA instead of the normal non-emergency approval process will, by necessity, lack long term safety data.

In general though, outside the context of EUA vaccine, employers can require vaccination as a term and condition of employment, but such practice is not without limitations, nor is it always recommended.  Although the issue is only now coming to the forefront because of COVID-19, mandatory vaccinations in the workplace are not new, and have been particularly prevalent among healthcare providers for decades.  Some variability exists under federal law and among federal agencies, but for the most part, mandatory vaccination programs are permissible, as long as employers consider religious accommodation requests under Title VII of the Civil Rights Act of 1964 (Title VII) and medical accommodation requests under the Americans with Disabilities Act (ADA). Continue reading

Fed OSHA and State OSH Plans Address Ventilation to Reduce the Workplace Spread of COVID-19

By Conn Maciel Carey’s COVID-19 Task Force

While each week seems to bring news of new COVID-19 rules imposed by a state, county or city, federal OSHA continues to offer guidance of which employers should take notice.  Earlier this month, on November 5th, OSHA issued a new publication focused on ways employers can use ventilation to reduce the transmission of COVID-19 virus droplets through the air in their workplaces.

“Ensuring adequate ventilation throughout the work environment can help to maintain a safe and healthy workplace.”

The guidance provides a window into the types of questions OSHA may ask during future COVID-related inspections, and could be referenced as support for General Duty Clause violations.  Employees, as well as lawyers representing individuals bringing wrongful death actions on behalf of deceased employees, may also question why an employer opted not to evaluate ventilation systems and take some or all of the steps recommended by OSHA.

We had been bracing for guidance or regulatory requirements related to ventilation, with concerns that it would require capital projects to overhaul existing HVAC systems.  But fortunately, this guidance does not go that far, and in fact, most of the recommended steps are not particularly burdensome.  For example, OSHA suggests working with a heating, ventilation, and air conditioning (HVAC) specialist to ensure the employer’s HVAC systems are fully functional.  OSHA also recommends that employers open windows or provide other sources of fresh air wherever possible, and leave restroom exhaust fans on continuously while operating at maximum capacity — steps that can be achieved without infrastructure changes to the workplace.

More burdensome than leaving a bathroom fan running or a window open, however, OSHA also advises installing air filters with a Minimum Efficiency Reporting Value (MERV) rating of 13 or higher, where feasible (i.e., where the system can handle it), and using portable high-efficiency particulate air (HEPA) fan/filtration systems to increase clean air, especially in higher-risk areas.

When working with an HVAC specialist, the guidance recommends that employers also should confirm that Continue reading

Oregon OSHA Issues Final COVID-19 Temporary Standard (Compliance Deadlines in Early December)

By Conn Maciel Carey’s COVID-19 Task Force

Earlier this week, on Monday, November 9, 2020, Oregon OSHA released its final COVID-19 Emergency Temporary Standard (the “OR ETS”) after several delays.  Employers will have to act quickly to come into compliance, as the ETS goes into effect November 16th, with a series of major deadlines coming due in early December.

The ETS includes one set of mandates for all workplaces and another set for what it defines as “workplaces of exceptional risk” — namely those that include job duties related to direct patient care, aerosol-generating or post-mortem procedures, in-home care and/or direct client service in residential care or assisted living facilities.  The OR ETS also includes an appendix with “mandatory guidance” for 19 specific industries and/or workplace activities, including:

  • restaurants and bars;
  • retail;
  • construction;
  • veterinary clinics; and
  • entertainment facilities.

Explaining the need for an emergency rule, leadership at OR OSHA said this:

“The COVID-19 emergency has highlighted the risks that any infectious disease, particularly one that is airborne, can create for a wide variety of workplaces. As a result of both the immediate and long-term risks highlighted by the current public and occupational health crisis, Oregon OSHA is responding to the request that the state adopt an enforceable workplace health rule on an emergency basis this summer, to be replaced by a permanent rule.”

Oregon OSHA has plans to release materials on its website to support work on the risk assessment, the written exposure control plan, and the training activities required in the rule.  Presently, there is a template exposure risk assessment form available. The agency also released a poster that employers must post in the workplace.

For the majority of employers, the OR ETS requires that they Continue reading

[Webinar] Process Safety Update: The Latest with OSHA PSM & EPA RMP

On Tuesday, November 17th at 1 PM Eastern, join Eric J. Conn, Micah Smith and Beeta Lashkari for a complimentary webinar: Process Safety Update: The Latest with OSHA PSM & EPA RMP.

Following the 2013 West Fertilizer explosion, then-President Obama issued Exec. Orders directing OSHA, EPA and other agencies to “modernize” the chemical process safety regulatory landscape. OSHA and EPA took sweeping actions, from enforcement initiatives (like a new PSM National Emphasis Program) to rulemakings and interpretation letters.

Then President Trump took office with a de-regulatory agenda.  But rather than unwavering deregulation, Trump Admin. initiatives in this area have been splintered, with some deregulatory work proceeding (e.g., rollback of RMP amendments), others coming to a complete halt (e.g., PSM reform rulemaking), and still others moving forward like business as usual (e.g., the Chem/REF PSM NEP inspections and the CSB’s new accidental release reporting rule).  And now, with the Presidential Election behind us (sort of), and a new Biden Administration looming, we could see another significant shake-up of the regulatory landscape.

This webinar reviews the status and likely future of OSHA’s PSM Standard and EPA’s RMP Rule, CSB developments, and other process safety issues, such as the recent 10th Cir. Decision on PSM application to interconnected and co-located vessels.

Click here to register for the November 17th webinar. Continue reading

[Webinar Recording] Michigan OSHA’s New COVID-19 Emergency Rule

On October 29, 2020, Eric J. Conn, Aaron R. Gelb and Ashley D. Mitchell presented a bonus webinar event: Michigan OSHA’s New COVID-19 Emergency Rule.

When the MI Supreme Court struck down Gov. Whitmer’s COVID-19 Executive Orders, MI OSHA responded quickly to fill the void, and last week issued a series of COVID-19 Emergency Regulations. When Gov. Whitmer signed the “Emergency Rules Order,” Michigan became only the second state in the country with a set of enforceable, COVID-19 specific regulations. While many of the requirements set forth in the new rules mirror the Governor’s prior EOs, having a prescriptive rule in place makes it that much easier for MI OSHA to issue citations to employers.

Given MI OSHA’s aggressive use of the General Duty Clause to support a series of citations after an inspection blitz over the summer, Michigan employers should expect enforcement to continue in a similar manner, making compliance with these rules all the more important.  Participants in this webinar learned about the requirements of MIOSHA’s COVID-19 emergency rules and steps to take to avoid citations, including:

Continue reading

New Jersey Joins States with Mandatory Workplace COVID-19 Protective Measures

By the Conn Maciel Carey COVID-19 Task Force

Following in the wake of Virginia OSHA and Michigan OSHA issuing enforceable COVID-19 emergency temporary standards, and as Oregon OSHA and Cal/OSHA ready their own COVID-19 emergency standards this month, New Jersey’s governor, Phil Murphy, issued Executive Order No. 192 (“EO 192”) on October 28, 2020, imposing a series of requirements on Garden State employers.

Whereas Virginia, Michigan, California, and Oregon are all State OSH Plan States, meaning they have state agencies that enforce workplace safety and health standards, New Jersey employers fall within the jurisdiction of federal OSHA, and as a result, enforcement of EO 192 will fall to New Jersey state agencies that do not normally focus on occupational safety and health issues.  In a press release announcing EO 192, Governor Murphy explained why he issued the Order despite federal OSHA’s primary jurisdiction over workplace safety in New Jersey.  Governor Murphy explained:

“A more significant portion of the State’s workforce has returned to in-person work, and as [New Jersey’s] economy continues to gradually reopen, it is necessary to ensure broad application of relevant health and safety standards to protect workers across all industries.”

Governor Murphy also pointed to the absence of a federal COVID-19 standard as another reason for the need for the EO in New Jersey:

“the federal government has failed to provide all workers the proper standards and protections that they deserve. Today’s executive order closes that gap to help ensure the health and safety of our workforce during this unprecedented time….  Today’s executive order lays out the enforceable standards we need, ensuring the safety of our workers, employers and customers. I will continue to fight for a federal OSHA emergency temporary standard, but where the Trump Administration and Mitch McConnell have dropped the ball, our state has stepped up.”

In order to comply with EO 192, New Jersey employers must:

  • Continue to focus on ensuring 6 feet of distance between workers whenever feasible. Where the nature of an employee’s work or the work area does not allow for 6 feet of distance to be maintained at all times, employers must ensure that each such employee wears a mask and install physical barriers between workstations wherever possible.
  • Require employees, customers, visitors, and other individuals entering the worksite to wear cloth or disposable face masks while on the premises. Masks must be provided to employees at no cost.   Employees may remove their masks when at their workstations if they are at least 6 feet from anyone else, or when alone in a walled office.  Notably, EO 192 provides that employers may deny entry to customers who refuse to wear a mask but does not mandate denial of service as states such as Michigan and Oregon have required.
  • Facilitate and ensure Continue reading

Coalition to Comment on Cal/OSHA’s Emergency COVID-19 Rulemaking

By Conn Maciel Carey’s COVID-19 Task Force

On September 17, 2020, the Standards Board voted to grant a Petition filed by the worker advocacy group WorkSafe to promulgate a general industry emergency COVID-19 regulation.  This emergency temporary standard will almost certainly be followed by the development of a permanent infectious disease standard.  The intent of the rulemaking is to set specific, enforceable requirements and prohibitions for California employers, whose employees may be exposed to COVID-19 in the workplace, but who are not covered by Cal/OSHA’s existing Aerosol Transmissible Diseases (ATD) standard (generally applicable to healthcare operations).

Serious Concerns About the Likely Proposed Emergency Regulation

Although Cal/OSHA has not yet published a proposed standard, the WorkSafe petition included a proposed rule that sets specific requirements for identifying and evaluating COVID-19 workplace hazards, responding to COVID-19 exposures, and conducting employee training, among numerous other requirements.  The scuttlebutt we are hearing suggests the Standards Board is likely to follow the WorkSafe’s proposed model for both this emergency rule and a follow-up permanent infectious disease standard.

Regardless of the approach the Standards Board follows, it will be imperative for the employer community to have its voice heard in the rulemaking process, with a set of robust comments and other advocacy.  But if the agency does try to run with a proposal like the one WorkSafe designed, we have already identified numerous potential concerns for employers, including: Continue reading

Oregon to Issue COVID-19 Temporary Standard in Early November (Compliance Deadlines in Early December)

By Conn Maciel Carey’s COVID-19 Task Force

On Friday, October 23, 2020, Oregon OSHA released the latest version of its proposed COVID-19 Emergency Temporary Standard (the “OR ETS”).  Already delayed several times, it now appears that the OR ETS will go into effect the week of November 2nd, and include one set of mandates for all workplaces and another set for what it defines as “workplaces of exceptional risk” — namely those that include job duties related to direct patient care, aerosol-generating or post-mortem procedures, in-home care and/or direct client service in residential care or assisted living facilities.  The October 23rd draft also includes an appendix with “mandatory guidance” for 19 specific industries and/or workplace activities, including restaurants and bars, retail, construction, veterinary clinics and entertainment facilities.

Employers seeking to have input in the final rule have little time as Oregon OSHA presently plans to only accept written comments through Friday, October 30.  Depending on how extensive the feedback is submitted, Oregon OSHA will finalize the rule and adjust the various effective dates included in it depending upon its adoption date.

About the need for an emergency rule, leadership at OR OSHA said this:

“The COVID-19 emergency has highlighted the risks that any infectious disease, particularly one that is airborne, can create for a wide variety of workplaces. As a result of both the immediate and long-term risks highlighted by the current public and occupational health crisis, Oregon OSHA is responding to the request that the state adopt an enforceable workplace health rule on an emergency basis this summer, to be replaced by a permanent rule.”

Oregon OSHA plans to develop and release materials to support work on the risk assessment, the written exposure control plan, and the training activities required in the rule.  The agency is also still revising an OSHA Hazards Poster that employers will be required to post in the workplace.

For the majority of employers, the OR ETS will require them to take steps and adopt measures that are similar, if not identical, to those we discussed in our blog posts regarding Virginia OSHA’s COVID-19 ETS and Michigan OSHA’s new COVID-19 emergency rules.  At its core, the emergency standard will require employers to develop and implement:

  1. COVID-19 Exposure Risk Assessments
  2. A Written COVID-19 Exposure Control Plan
  3. COVID-19 and Exposure Control Training
  4. Specific Engineering and Administrative Controls

We detail those 4 core requirements below. Continue reading

Important COVID-19 Update: “Close Contact” Redefined to Mean 15 Cumulative Minutes

By Conn Maciel Carey’s COVID-19 Task Force

We want to alert you to a significant COVID-19 development out of the CDC yesterday.  Specifically, the CDC just announced a material revision to its definition of “Close Contact.”  The new definition makes it explicit that the 15-minute exposure period (i.e., within 6-feet of an infected individual for 15 minutes) should be assessed based on a cumulative amount of time over 24 hours, not just a single, continuous 15-minute interaction.

Here is the new definition included on the CDC’s website:

Close Contact – Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period* starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.

* Individual exposures added together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 minutes). Data are limited, making it difficult to precisely define “close contact;” however, 15 cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation. Factors to consider when defining close contact include proximity (closer distance likely increases exposure risk), the duration of exposure (longer exposure time likely increases exposure risk), whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding), if the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting), and other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors). Because the general public has not received training on proper selection and use of respiratory PPE, such as an N95, the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE.  At this time, differential determination of close contact for those using fabric face coverings is not recommended.​

CDC’s revised view of what constitutes a Close Contact is based on an exposure study at a correctional facility.  Here is the CDC’s public notice about the correctional facility analysis.  The analysis apparently revealed that virus was spread to a 20-year-old prison employee who interacted with individuals who later tested positive for the virus, after 22 interactions that took place over 17 minutes during an eight-hour shift.  

An important consequence of this revision is the impact it will have on employers’ ability to maintain staffing because it establishes a much lower threshold trigger for required quarantine.  Recall that

Continue reading

[Bonus Webinar] Michigan OSHA’s New COVID-19 Emergency Rule

On Thursday, October 29, 2020 at 11 AM Eastern / 10 AM Central, join Eric J. Conn and Aaron R. Gelb for a bonus webinar event: Michigan OSHA’s New COVID-19 Emergency Rule.

When the MI Supreme Court struck down Gov. Whitmer’s COVID-19 Executive Orders, MI OSHA responded quickly to fill the void, and last week issued a series of COVID-19 Emergency Regulations. When Gov. Whitmer signed the “Emergency Rules Order,” Michigan became only the second state in the country with a set of enforceable, COVID-19 specific regulations. While many of the requirements set forth in the new rules mirror the Governor’s prior EOs, having a prescriptive rule in place makes it that much easier for MI OSHA to issue citations to employers.

Given MI OSHA’s aggressive use of the General Duty Clause to support a series of citations after an inspection blitz over the summer, Michigan employers should expect enforcement to continue in a similar manner, making compliance with these rules all the more important.  Participants in this webinar will learn about the requirements of MIOSHA’s COVID-19 emergency rules and steps to take to avoid citations, including:

Continue reading

MI OSHA is the 2nd State OSH Plan to Adopt a COVID-19 Emergency Rule: How to Comply in 5 (Not-So-Easy) Steps

By Conn Maciel Carey’s COVID-19 Task Force

Reacting quickly to the Michigan Supreme Court’s decision striking down a series of Governor Gretchen Whitmer’s COVID-19 Executive Orders, Michigan OSHA issued a series of COVID-19 emergency rules on October 14 to fill the void—many of which mirror the requirements imposed on employers by the Governor’s prior Executive Orders.  When Gov Whitmer signed the Emergency Rules Order, Michigan became only the second state in the country with a set of enforceable, COVID-19 specific regulation.

MIOSHA’s new COVID-19 emergency rules, which became effective immediately and which will remain in effect for 6 months, require employers to:

  • conduct workplace risk assessments for COVID-19 exposures;
  • develop a written exposure control plan; and
  • adopt a series of workplace protections.

“While most Michigan job providers are doing their part to slow the spread of COVID-19, these rules provide them with clarity regarding the necessary requirements to keep their workplaces safe and their employees healthy,” said Gov. Whitmer. “I will continue to work around the clock with my partners in labor and business to ensure protections for every Michigan worker.”

Because MIOSHA’s rule uses pretty vague language and is lean on detail, the agency has already begun to issue FAQs explaining what some of the provisions of the rule mean.  Here is the first batch of FAQs:

While MIOSHA had already been aggressively citing employers under the General Duty Clause over the past few months, most of those citation directly referenced Gov. Whitmer’s now-invalidated COVID-19 Executive Orders. Michigan employers can now be cited for violating these specific regulations.  At the same time, however, Republican legislators have sent a series of bills to Governor Whitmer that include liability protections for employers that comply with MI OSHA guidelines, making compliance with these rules all the more important.

Employers with operations in Michigan wishing to avoid citations should take the following 5 steps  as soon as practically possible: (1) Assess; (2) Plan; (3) Protect; (4) train; and (5) document.

STEP 1:  Conduct Workplace Assessment & Make Exposure Determinations (ASSESS)

Employers must evaluate Continue reading

[Webinar] Election Special – What to Expect from OSHA After the Upcoming Presidential Election Under Either Outcome

On Thursday, October 22, 2020 at 1 PM Eastern, join Kate M. McMahon and Amanda R. Strainis-Walker for a webinar event: “Election Special – What to Expect from OSHA After the Upcoming Presidential Election Under Either Outcome.”

Next month, Americans will cast ballots to elect the next President of the United States – either a second term for President Trump or a new Democratic Administration under former Vice President Biden. As always, the platforms and proposed polices of the candidates are quite divergent, so we will project how the government’s actions on workplace safety will differ under the two candidates. In particular, we will discuss how the OSHA enforcement and rulemaking landscape is likely to change in a second Trump term and what to expect in those areas if Biden takes the reins. This webinar will discuss the public positions taken by both candidates about safety and health enforcement and rulemaking, and the likely impacts depending on which candidate takes control of the Executive Branch in 2021, as well as which party control of the House and Senate.

Participants in this webinar will learn what to expect from OSHA under a 2nd term for Trump vs. a new Biden Administration in terms of: Continue reading

Eric J. Conn to Speak at Safeopedia’s First Ever Safety Connect Virtual Conference and Expo

On October 20 – 22, 2020, join Conn Maciel Carey’s OSHA Chair, Eric J. Conn, for Safeopedia’s Safety Connect Global Virtual Environmental, Health & Safety Conference & EXPO where he will present the OSHA Implications of COVID-19 in the Workplace.

OSHA has been thrust into the spotlight and is leading the charge to assess measures employers are taking to protect their workforces from a global pandemic. With each passing week, the agency is expanding its efforts and ratcheting up enforcement; unprepared employers not only risk receiving fines and citations for failing to adopt adequate protective measures relative to COVID-19, but may face scrutiny with respect to a host of other aspects of their workplace safety and health programs. Now, more than ever before, everyone needs to keep OSHA on its radar.

In this session, Eric Conn will provide insight and advice on the OSHA / workplace safety and health implications of COVID-19, such as: Continue reading

The Intersection of COVID-19, Americans with Disabilities Act, and Age Discrimination in Employment Act

By Ashley D. Mitchell

As the U.S. enters month seven of the COVID-19 pandemic, employers continue to grapple with how to keep employees safe without violating the rights of employees protected by the Americans with Disability Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”). The Centers for Disease Control and Prevention (“CDC”) has issued guidance to slow the spread of COVID-19 in the workplace encouraging employers to: (1) actively encourage sick employees to stay home; (2) conduct daily in person health checks such as temperature and symptom screenings; and (3) ensure that workers are able to follow social distancing guidelines as much as practicable and encouraging employees to wear face masks where social distancing is not possible. Employers should remain vigilant against enacting policies meant to keep employees safe but have a disparate impact on employees in a protected class.

The Americans with Disability Act

The Americans with Disability Act (“ADA”) prohibits employers with 15 or more employees from discriminating against job applicants and/or employees with disabilities. If a job applicant or employee has a disability and requests an accommodation, employers must engage in an interactive process and are required to provide a reasonable accommodation to the extent it does not cause the employer undue hardship.

In the context of COVID-19, employers may screen employees entering the workplace for COVID-19 symptoms consistent with CDC guidance. For example, an employer may: (1) ask questions about COVID-19 diagnosis or testing, COVID-19 symptoms, and exposure to anyone with COVID-19 (but employers should be sure the question is broad and does not ask employees about specific family members so as not to run afoul of the Genetic Information Nondiscrimination Act (“GINA”)); (2) take an employee’s temperature; and (3) administer COVID-19 viral tests (but not anti-body tests). If an employee is screened and has symptoms that the CDC has identified as consistent with COVID-19, the employer may – and indeed, should – exclude the employee from the workplace. It is also okay – and again, advisable – for an employer to send an employee home who reports feeling ill during the workday. Continue reading

OSHA Publishes Employer Injury and Illness Data Collected Under the E-Recordkeeping Rule

By Eric J. Conn, Dan C. Deacon, and Beeta B. Lashkari

As the world continues to focus its attention on all things COVID-19 related – especially as the Centers for Disease Control and Prevention learns more and more about the virus and updates its guidelines — earlier this month, OSHA quietly published a treasure trove of employer injury and illness data as part of its Tracking of Workplace Injuries and Illnesses Rule (aka the “E-Recordkeeping Rule”).  The move comes after numerous attempts by OSHA under the Trump Administration to delay and narrow the requirements set forth in the original E-Recordkeeping Rule promulgated by OSHA in May 2016 during the final year of the Obama Administration, and also attempts by Trump’s OSHA to withhold from disclosure, even pursuant to FOIA requests, the injury and illness data collected pursuant to the Rule since 2016.

History of E-Recordkeeping Rule

The current version of the E-Recordkeeping Rule has undergone some changes and revisions, and indeed, as we previously posted here on the OSHA Defense Report, the Rule has had a long and tortured history.  Before promulgation of the E-Recordkeeping Rule, unless OSHA opened an enforcement inspection at an employer’s workplace or the Bureau of Labor Statistics requested an employer’s participation in its annual injury data survey, employer injury and illness recordkeeping data was maintained internally by employers.  In a major policy shift, on May 11, 2016, President Obama’s OSHA enacted the E-Recordkeeping Rule, requiring hundreds of thousands of workplaces to submit injury and illness data through OSHA’s Injury Tracking Application (“ITA”).  At that time, the Rule also included a provision in which employer injury and illness data would be made available to the public on a searchable online database without scrubbing employer names or location details.

More specifically, the 2016 E-Recordkeeping Rule required:

  1. All establishments with 250 or more employees in industries covered by the recordkeeping regulation to submit to OSHA annually their injury and illness data and information from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries;
  2. Establishments with 20-249 employees in select “high hazard industries” to annually submit information from their 300A Annual Summaries only;
  3. All submissions to be done electronically, via a purportedly secure OSHA website portal; and
  4. Employer’s injury data to be publicized in a “user-friendly” database for all the world to see.

There were numerous legal challenges to the Rule, some of which are still being litigated.  Continue reading

[Webinar Recording] Attorney-Client Privileged Audits and Investigations and OSHA’s Self-Audit Policy

In September 2020, Kate McMahonMicah Smith and Nick Scala of Conn Maciel Carey presented a webinar regarding Attorney-Client Privileged Audits and Investigations and OSHA’s Self-Audit Policy.

Safety and health audits and accident or near-miss investigations are invaluable tools to identify hazards at a workplace and improve safety, but what happens when a government regulator demands copies of the reports and/or recommendations from the audit or investigation? When not done carefully or under attorney-client privilege, audit and investigation reports can serve as admissions and/or a roadmap for OSHA and MSHA investigators or plaintiffs’ attorneys regarding areas of non-compliance. This in turn can create a disincentive for employers to audit their facilities.

This webinar explored the benefits of conducting audits and investigations at the direction of counsel so as to improve safety and compliance while also protecting the company and management from adverse use by 3rd party litigants or regulators. We reviewed audit and investigation and report-writing strategies and best practices. We also reviewed OSHA’s policy on self-audits and the reality of OSHA’s use of voluntary self-audits during inspections. And we reviewed best practices to manage MSHA’s unlimited lookback period for enforcement.

Participants in this webinar learned about:

Continue reading

CDC Guidance for Retail and Service Industries on Workplace Violence Associated with COVID-19 Policies

By Conn Maciel Carey’s COVID-19 Task Force

In recent months, we have heard too many stories and seen too many viral videos about retail clerks and restaurant employees facing violent attacks and threats from belligerent anti-mask customers who have been refused service or otherwise asked to adhere to the mask mandates issued by the Governors or Health Departments in their states.  This includes the tragic tale of the store security guard who was shot and killed in Michigan after telling a customer at a discount store to wear a state-mandated face mask.

Responding to the surge in workplace violence faced by retailers and others in the service industries, on September 1, 2020, the CDC issued guidance on Limiting Workplace Violence Associated with COVID-19 Prevention Policies in Retail and Services Businesses.  The new guidance covers how to manage the threat of violence from customers or others who are asked to comply with Governors’ or Health Department mandates or the businesses’ own infection control policies, such as requiring masks to be worn by customers, asking customers to follow social distancing rules, and setting limits on the number of customers allowed inside at one time.  Specifically, the guidance discourages retailers from becoming the enforcer in these situations, and includes recommendations like calling 911 and not arguing with a customer who refuses to comply with the rules. 

This guidance is vital as we have seen the opposite instruction from such governmental agencies as Michigan OSHA (“MIOSHA”), Oregon OSHA (“OR OSHA”), and the New Mexico Occupational Health and Safety Bureau (“NMOHSB”).  Indeed, those state OSH Programs have been issuing citations and shutdown orders for retailers and restaurants who do not refuse service to customers unwilling to wear a face covering onsite.  CDC’s guidance will hopefully force these agencies to be sensible about the terrible dilemma they are forcing on businesses and their front line employees who feel the brunt of these enforcement policies that would turn them into law enforcement. Continue reading

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.

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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.

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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. 
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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:

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