Inspections have commenced in Illinois and Ohio under the the Local Emphasis Program (LEP) focusing on food manufacturers OSHA announced in October 2022. This LEP reflects the agency’s ongoing efforts to ramp up targeted enforcement efforts and follows Regional Emphasis Programs (REP) initiated in Region V over the past two years dealing with exposure to noise hazards (June 2021) and transportation tank cleaning operations (August 2021), as well as the National Emphasis Program (NEP) on outdoor and indoor heat-related hazards which started in April 2022. General industry employers in Region 5 still have to contend with the 2018 Powered Industrial Truck (PIT) Local Emphasis Program as well. A similar LEP targeting Wisconsin food manufacturers, with the primary difference being the NAICS Codes on which the two LEPs, began last Spring. To date, OSHA has opened 12 inspections, but citation data is not yet available for those inspections. Both LEPs mandate an inspection and review of production operations and working conditions; injury and illness records; safety and health programs; and hazardous energy control methods to identify and correct workplace hazards at all applicable inspection sites.
Earlier this year, in April, OSHA launched a Local Emphasis Program (LEP) in Wisconsin focused on food manufacturers. This LEP reflects the agency’s ongoing efforts to ramp up targeted enforcement efforts and follows Regional Emphasis Programs (REP) initiated in Region V last year focusing on exposure to noise hazards (June 2021) and transportation tank cleaning operations (August 2021), as well as the National Emphasis Program (NEP) on outdoor and indoor heat-related hazards which started in April 2022. General industry employers in Region 5 still have to contend with the 2018 Powered Industrial Truck (PIT) Local Emphasis Program as well. Meanwhile, we have been told to expect a similar LEP targeting Illinois food manufacturers, with the primary difference being the NAICS Codes on which that LEP will focus. While we have not yet seen the Illinois LEP targeting food processing establishments, we expect both programs will involve an inspection and review of production operations and working conditions; injury and illness records; safety and health programs; and hazardous energy control methods to identify and correct workplace hazards at all applicable inspection sites.
Why Is OSHA Targeting the Food Manufacturing Industry?
After examining data from the Bureau of Labor Statistics (BLS) for Wisconsin employers with a primary North American Industry Classification (NAICS) code in the 311xxx range, OSHA determined that food manufacturing industry injuries occurred at higher rates than found in other sectors. In OSHA’s view, the data demonstrates higher rates of total reportable cases; cases involving days away from work, job restriction or transfers, fractures, amputations, cuts, lacerations, punctures, heat burns, chemical burns, and corrosions. As such, OSHA’s stated goal in launching this LEP is to encourage employers to identify, reduce, and eliminate hazards associated with exposure to machine hazards during production activities and off-shift sanitation, service, and maintenance tasks.
On August 3, 2022, OSHA announced a new Regional Emphasis Program (“REP”) focused on warehousing and inside or outside storage and distribution yards in Pennsylvania, Delaware, Maryland, Virginia, West Virginia, and the District of Columbia, including those located at federal agencies, and federal installations in Region III’s jurisdiction. Covered employers in these states would be well-advised to dust off their copy of Conn Maciel Carey LLP’s OSHA Inspection Toolkit and take the necessary steps to ensure they are ready for the inspections that will begin before the end of the year.
Why Is OSHA Targeting Warehousing Operations?
In the REP and accompanying press release, OSHA explains it is seeking to reduce injury/illness rates in the warehousing industry by conducting comprehensive inspections to address hazards that may include those associated with powered industrial trucks, lockout tagout, life safety, means of egress, and fire suppression. OSHA further explains in the REP that while the rate of total recordable case rate for all private industry was 2.7 cases per 100 full-time workers, the rates for the industries included in this REP were 3.5 for beverage manufacturing; 4.8 for warehousing and storage; 4.0 for food and beverage stores; 4.3 for grocery wholesalers; and 5.5 for beer, wine, and alcoholic beverage wholesalers.
On May 19, Oregon OSHA issued a Statement Regarding Vaccination Status in Relation to Oregon’s Facial Covering and Social Distancing Requirements in which it advises that employers may discontinue enforcing face covering and physical distancing requirements as to employees and/or visitors (which apparently includes customers) only if the employer verifies the vaccination status of any such individuals attempting to enter without a face covering. Notably, Oregon OSHA further advises that the employer must enforce the physical distancing and facial covering requirements without regard to the exemption with respect to anyone who refuses to provide verification of their vaccination status. Over the past year, many retailers struggled to craft a workable policy that complied with the intent of Oregon OSHA’s expectation that they deny entry/refuse service to customers who refuse to wear a mask. As we discussed in prior blog posts, placing front line retail workers in such a position was not only infeasible, but it put them at greater risk of harm by customers who reacted in a violent manner when asked to wear a face covering. It remains to be seen, however, whether Oregon OSHA will adopt a rational approach respect to vaccination status verification requirements for retailers and other employers with public-facing operations.
Notably, Oregon OSHA’s Statement references the Oregon Health Authority’s May 18 Interim Guidance for Vaccinated Individuals, which includes retailers in the definition of a covered business; it does not, however define visitor. We nonetheless read the OHA’s Interim Guidance and the OR OSHA Statement together to treat customers/shoppers as visitors. According to the OR Health Authority, a business must continue to enforce the physical distancing and face covering requirements unless it: Continue reading →
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 →
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.
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. According 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:
Ensure social distancing practices for employees (and control customer flow, if applicable);
Ensure frequent and adequate employee handwashing and surface sanitation (with focus on high-touch areas/items);
Ensure sick employees stay home or go home if ill; and
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 →
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).