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

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

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

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

Cal/OSHA Guidance Regarding COVID-19 in the Workplace

By Andrew Sommer, Megan Shaked, and Beeta Lashkari

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  Additionally, earlier this week, Division Chief Doug Parker sent an unpublished letter, clarifying Cal/OSHA’s recording/reporting requirements for coronavirus-related illnesses.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

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

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

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

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

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

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

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

By Eric J. Conn and Beeta B. Lashkari

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

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

These EOs were designed to, according to the President:

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

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

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

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

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

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

BREAKING – CSB Issues Final Accidental Release Reporting Rule

By Eric J. Conn and Beeta Lashkari

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

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

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

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

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

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

How Employers Should Respond to the 2019 Novel Coronavirus Outbreak

By Conn Maciel Carey’s COVID-19 Task Force

The 2019 Novel Coronavirus (“2019-nCoV” or “coronavirus”) is a respiratory illness that, with its spread to the United States, is raising important issues for employers.  This guide explains the outbreak, the legal implications of it, and how employers should be responding now to employees who might have the virus, are caring for affected family members, or are otherwise concerned about their health in the workplace.

The Coronavirus Outbreak

First detected in Wuhan, Hubei Province, China, 2019-nCoV is a respiratory virus reportedly linked to a large outdoor seafood and animal market, suggesting animal-to-person spread.  However, a growing number of patients reportedly have not had exposure to animal markets, indicating person-to-person spread is occurring.  At this time, it is unclear how easily the virus is spreading between people.  Symptoms of coronavirus include fever, cough, difficulty breathing, runny nose, headache, sore throat, and the general feeling of being unwell.  The incubation period is approximately 14 days, during which time an individual may see no symptoms but may still be contagious. The Centers for Disease Control and Prevention (“CDC”) reports that an ongoing investigation to determine more about this outbreak is underway, that the situation is rapidly evolving, and that more information will be provided as it becomes available.

As of January 30, 2020, there have been approximately 8,100 confirmed cases of 2019-nCoV in many countries, including in the United States.  On January 30, 2020, the International Health Regulations Emergency Committee of the World Health Organization (“WHO”) declared the outbreak a “public health emergency of international concern.”  On January 31, 2020, Health and Human Services Secretary Alex M. Azar II declared a public health emergency for the United States to aid the country’s healthcare community in responding to 2019-nCoV.  Additionally, on the same day, the President of the United States signed a presidential “Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Persons who Pose a Risk of Transmitting 2019 Novel Coronavirus.”

Legal Implications for Employers

With the presence of coronavirus in the United States, employers must be vigilant in complying with the various labor and employment laws implicated by the virus.

Continue reading

CSB Issues Notice of Proposed Rulemaking for New Accidental Release Reporting Rule

By Eric J. Conn and Beeta B. Lashkari

Earlier this week, on December 12, 2019, the U.S. Chemical Safety and Hazard Investigation Board (CSB) issued a Notice of Proposed Rulemaking (NPRM) for its long-awaiting chemical incident reporting rule, which sets out the circumstances when facility owners and operators are required to file reports with the CSB of accidental chemical releases and what must be communicated in the reports.

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

If promulgated, the rule would require owners and operators of stationary sources (chemical facilities) to report  accidental releases that result in a fatality, serious injury, or substantial property damage to the CSB within four hours.  The proposed rule also identifies the specific information required to be included in the accidental release report:

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

Importantly, recognizing that some or all of this information may not be known within four hours of an accidental release, the CSB decided to  include the qualifier — “if known” — for much of the information that would be required in the report.

If, however, the owner/operator submits a report to Continue reading

EPA Sends Final RMP Rollback Rule to OMB for Review

By Micah Smith, Eric J. Conn and Beeta Lashkari

Last week, on September 12, 2019, EPA sent its Final RMP Rollback Rule to the White House Office of Management & Budget (OMB) for pre-publication review.  The rule is expected to roll back many of the Obama-era RMP Amendment Rule that added to and enhanced numerous RMP requirements, which was finalized and published in the Federal Register three days before President Trump’s Inauguration.  

This new near-final RMP Rollback Rule comes after a long and tortured rulemaking and litigation history in which President Obama’s EPA rushed out the RMP Amendments Rule, President Trump’s EPA attempted to delay the RMP Amendments Rule, those attempts were defeated in federal court, and then EPA quickly finalized the current rulemaking with anticipated roll-backs.  Here is a quick summary of that history: Continue reading

Responding to OSHA 11(c) Retaliation Charges, Employee Safety Complaints, and Rapid Response Investigations

By Lindsay A. DiSalvo and Beeta B. Lashkari

When OSHA receives a complaint related to worker safety and health or a severe injury report, one action by OSHA is to give the employer an opportunity to respond before it takes the more extreme action of opening an inspection.  In addition, when OSHA receives an allegation of retaliation, it must provide the employer a chance to explain why the adverse employment action of which it is accused was legitimate or did not occur as alleged.  These responses are an opportunity for the employer to avoid an inspection or litigation of a retaliation claim.  A strong response could assuage OSHA’s concerns and resolve the complaint in a favorable manner for the employer.  However, these responses can also create a written record of admissions to which OSHA can hold the employer accountable, and any supporting documentation may be closely scrutinized and used to create liability.

Thus, employers must ensure there is a procedure in place for managing and developing the responses to these situations, and be strategic about the information they share with OSHA in the response.  We are pleased to share the following tips and strategies for how to effectively address such complaints.

Whistleblower Complaints

To start, although OSHA enforces whistleblower standards under 22 different statutes, the agency receives most of its retaliation claims (over 62%) under Section 11(c) of the Occupational Safety and Health (OSH) Act. Section 11(c) prohibits employers from retaliating against workers who in good faith attempt to exercise a worker safety-related protected right under the law.

While the vast majority – about 71% – are either dismissed by OSHA or withdrawn by the employee, the sheer number of complaints OSHA receives, and the fact that nearly 30% of them do end in favor of the employee, should be more than motivation for employers to thoroughly address each one filed against them.  This is particularly true because, under Section 11(c), employees can be entitled to substantial remedies, such as Continue reading

OSHA’s New Emphasis Program for Fertilizer Grade Ammonium Nitrate and Anhydrous Ammonia

By: Aaron R. Gelb and Beeta B. Lashkari

On September 25, 2018, OSHA announced the launch of a new Regional Emphasis Program (REP) to address the hazards from exposure to fertilizer grade ammonium nitrate (FGAN) and agricultural anhydrous ammonia.  The REP, effective October 1, 2018, covers the states of Arkansas, Louisiana, Oklahoma, and Texas in OSHA Region VI, and Kansas, Missouri, and Nebraska in OSHA Region VII.  OSHA will commence enforcement activities on January 1, 2019, after a three-month period of education and prevention outreach.  FGAN REP_2Generally, enforcement activities will include the inspection and review of: (1) production operations and working conditions; (2) injury and illness records; (3) safety and health programs; and (4) chemical handling and use.  OSHA’s decision to initiate a new REP covering two regions and seven states is yet another reminder that the agency is continuing full-speed ahead with enforcement efforts.  While many anticipated that the Trump administration would retire OSHA’s national, regional and local emphasis programs, that has not happened.  To the contrary, OSHA continues to implement the same number of enforcement emphasis programs as at the end of the Obama administration.

What prompted OSHA to act now?

On April 17, 2013, a fire and explosion involving FGAN occurred at the West Fertilizer Company in West, Texas, resulting in at least 14 fatalities.  While OSHA and the West Fertilizer Company ultimately reached a settlement, OSHA initially issued more than 20 citations, including several under Section (i) of its Explosives and Blasting Agents Standard.  Continue reading

Confounding Expectations, OSHA Enforcement in the Trump Administration Is On the Rise

By Eric J. Conn and Beeta B. Lashkari

Based on the rhetoric from the 2016 presidential campaign trail, it was reasonable for Industry to anticipate OSHA enforcement under a Trump Administration to contract significantly from the aggressive enforcement model employed by Pres. Obama’s OSHA.  Informed by the enforcement philosophies of past Republican administrations, the expectation was that a Pres. Trump / Sec. Acosta OSHA would scale back enforcement, favor compliance assistance, slash OSHA’s budget and staff to limit enforcement, retire national and local emphasis enforcement programs, revise enforcement policies that inflate civil penalties, and otherwise retool its approach to ease the regulatory burden on employers.

The reality, however, is that OSHA during the Trump-era has not backed down from its enforcement mission.  Quite to the contrary, relevant enforcement data reveals enforcement creep.  With still no Trump-appointed Assistant Secretary of Labor for OSHA in place nearly two years into the Trump Administration, career OSHA staff have considerable influence over the direction OSHA is steering, and that is why little has changed, and why change may not be on the near horizon.

Here are some of the key ways that OSHA enforcement is hardly distinguishable two years into the Trump Administration from OSHA during the Obama Administration:

  • OSHA’s FY19 budget is increasing by $5M from the end of the Obama-era (nearly $560M total)
  • The number of employees at OSHA dipped at the start of the Trump Administration, but it has restored to roughly the same as the end of the Obama-era (approx. 2,000)

  • The number of National and Local Emphasis Enforcement Programs remains essentially the same (approx. 150 Local/Regional Emphasis Programs and 9 National Emphasis Programs), including new or retooled NEPs for petroleum refineries and trenching
  • The total number of fed OSHA inspections actually increased from 31,948 in FY2016 to 32,396 in FY2017 (the first year over year increase in the number of inspections in nearly a decade)

Continue reading