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

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

By Conn Maciel Carey’s COVID-19 Task Force

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

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

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

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

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

By Conn Maciel Carey’s COVID-19 Task Force

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

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

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

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

Reefer Sadness?  Illinois Employers Prepare to Grapple with Marijuana Legalization

By Aaron R. Gelb

As Illinois prepares to join the growing ranks of states that have legalized recreational use of marijuana, employers in the Land of Lincoln may find it difficult—if not impossible—to legally maintain a drug-free workplace.

Signed into law on June 25, 2019 by Governor J.B. Pritzker, the Illinois Cannabis Regulation and Tax Act (“CRTA”) goes into effect on January 1, 2020.  If you employ workers in Illinois, you now have less than six months to decide whether and how you will continue testing for marijuana.  You will also need to lay the groundwork so that you can reduce the risks associated with disciplining and/or discharging employees who appear to be impaired—due to cannabis consumption/use—while at work.  While the CRTA lists a number of indicia of impairment that may be used to determine if someone is under the influence, proving that an employee is impaired will likely be easier said than done.  Even then, the CRTA requires that you give the allegedly impaired employee an opportunity to respond.  When and how you do that, though, remains to be seen.

What the Law Does and Does Not Require

Beginning January 1, 2020, Illinois residents over the age of 21 can legally buy (in licensed stores), possess or use cannabis and cannabis products.  Possession is limited to: (1) 30 grams of raw cannabis; (2) cannabis-infused products containing no more than 500 mg of THC; or (3) 5 grams of cannabis product in concentrated form. Non-residents may purchase half those amounts (i.e., 15 grams of cannabis, 250 mg of THC in a cannabis-infused product, or 2.5 grams of concentrated cannabis product).

Continue reading