We did not have to wait long for the big update we have been holding our breath about – what the Biden Administration’s plans will be for a federal COVID-19 emergency standard. As we expected, in just his first full day in Office (January 21, 2021), President Biden has already issued an Executive Order focused on OSHA’s approach to managing the COVID-19 crisis in the workplace, but the answer about a federal COVID-19 ETS is not as clear as we expected, or at least, the definitive answer will come a little later.
In the Order entitled “Executive Order on Protecting Worker Health and Safety,” President Biden has directed federal OSHA to revisit its overall strategy for regulating and enforcing issues associated with workplace spread of COVID-19 to execute his Administration’s policy on worker safety:
“Ensuring the health and safety of workers is a national priority and a moral imperative. Healthcare workers and other essential workers, many of whom are people of color and immigrants, have put their lives on the line during the coronavirus disease 2019 (COVID-19) pandemic. It is the policy of my Administration to protect the health and safety of workers from COVID-19.”
Specifically, President Biden has directed the Assistant Secretary of Labor for OSHA to take four key actions relative to COVID-19 in the workplace: Continue reading →
On November 30, 2020, Cal/OSHA issued its COVID-19 Emergency Temporary Standard and it became effective immediately — all provisions. Cal/OSHA has signaled that there will be some early enforcement discretion, except for actions thought already to be required by the Injury Illness Prevention Plan regulation and other pre-existing regulations. But getting into compliance with this burdensome new rule should be a high priority.
The FAQs were announced by Cal/OSHA in a communication confirming that the agency would continue to issue guidance as needed, and continue to implement the formal Advisory Committee Process through which improvements and fixes to the rule may be adopted. Here’s an excerpt from the communication:
“There are now 69 FAQs with seven additional subheadings to help clarify and answer questions that we have received about the COVID-19 Prevention ETS …. We will continue to update the FAQs as needed in the future….”
Based on our review, we think these FAQs provide some important clarifications about the ETS, and in some instances, essentially rewrite the regulatory language (mostly in helpful ways). But it is also our view that the FAQs do not appear to be as flexible as the agency had signaled in some informal guidance (e.g., regarding how to determine the scope of an outbreak), and it does not address several important questions (e.g., what are employers options and obligations for employees who decline testing required by the rule). Here are some of the new FAQs Continue reading →
The Cal/OSHA Defense Report is a blog designed to bring California employers recent developments in workplace safety and health law, but not just to note that something has happened, but to talk about why California employers should care, and how it will affect their business.
We started the Cal/OSHA Defense Report blog because we frequent several useful blogs dedicated to practical day-to-day workplace safety & health issues, but none that dive deep into workplace safety & health legal and regulatory issues, especially not focused on the unique regulatory environment in California. This new blog is intended to fill that void.
The Cal/OSHA Defense Report will be the place to go to learn about significant new developments from California’s Division of Occupational Safety and Health (Cal/OSHA) and the Cal/OSH Standards Board. The blog will cover such topics as Continue reading →
As we noted in a Client Alert last month, the CDC issued its new guidance for “Close Contacts” in a way that would make quarantine circumstances much more likely; i.e., CDC’s new definition of close contact 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, rather than just a single, continuous 15-minute interaction.
Creating even more challenges for maintaining adequate staffing, the CDC issued additional guidance in November limiting the flexibility to keep asymptomatic critical infrastructure workers at work after a close contact exposure:
Employers may consider allowing exposed and asymptomatic critical infrastructure workers to continue to work in select instances when it is necessary to preserve the function of critical infrastructure workplaces. This option should be used as a last resort and only in limited circumstances, such as when cessation of operation of a facility may cause serious harm or danger to public health or safety.
Those two changes combined to make staffing a real challenge as we move firmly into the second big wave of COVID-19 cases.
Perhaps because of those challenges, today, the CDC issued new guidancethat would reduce the duration of many quarantines from 14 days to 10 days and, in some cases to 7 days. Specifically, CDC identified the following options as acceptable alternatives to a 14-day quarantine:
Quarantine can end after Day 10 without testing and if no symptoms have been reported during daily monitoring.
If testing is available, then quarantine can end after Day 7 if a respiratory specimen tests negative and no symptoms were reported during daily monitoring. The specimen may be collected and tested within 48 hours before the time of planned quarantine discontinuation (e.g., in anticipation of testing delays), but quarantine cannot be discontinued earlier than after Day 7; i.e., testing should be initiated no earlier than Day 5 after the close contact exposure occurs. Continue reading →
We wanted to give you an update as soon as we heard, and we just heard… OAL has officially approved Cal/OSHA’s emergency COVID-19 prevention regulation. OAL’s website was just updated with this entry:
And here is the Cal/OSHA website reflecting the current status of the rule and the final approved regulation language: “Text Approved by OAL.”
As Cal/OSHA’s website notes, the rule was filed with the Secretary of State today, and it is immediately effective – all provisions. However, during the Board’s final public hearing about the rule, the Division signaled there would be some reasonable delay in enforcement. Specifically, Division Chief Doug Parker told the Standards Board:
“Some employers are going to need more time. We intend to fully take that into account in determining how they’re implementing the rule…. The Division will consider ‘good-faith’ efforts on the part of employers and will offer compliance assistance.”
Be cautious about that, however, as the agency has not issued anything formal conveying this enforcement discretion, and to the extent the new rule merely formalizes some requirement Cal/OSHA already believed it had authority to enforce under the IIPP rule, do not expect any leniency. Be sure to document the efforts you are taking to come into compliance, especially where coming into full compliance will take a little time.
Here is what will happen next:
Guidance / FAQs: Cal/OSHA has indicated that it will soon be issuing FAQs and other guidance as early as this week that will hopefully “clarify” some of the provisions that we have flagged as ambiguous or problematic in our comments and other discussions with the Division. For example, we anticipate some guidance confirming that employers may Continue reading →
On November 19, 2020, the California’s Occupational Safety and Health Standards Board (“Board”) voted unanimously to adopt an Emergency COVID-19 Prevention Rule following a contentious public hearing with over 500 participants in attendance (albeit virtually). The Emergency Rule has been presented to California’s Office of Administrative Law (“OAL”) for approval and publication. OAL has ten days to approve the Rule; if approved, the Rule will become immediately effective, likely next Monday, November 30th. The Rule brings with it a combination of requirements overlapping with and duplicative of already-existing state and county requirements applicable to employers, as well as a number of new and, in some cases, very burdensome, compliance obligations.
The Board’s emergency rulemaking was triggered last May with the submission of a Petition for an emergency rulemaking filed by worker advocacy group WorkSafe and National Lawyers’ Guild, Labor & Employment Committee. The Petition requested the Board amend Title 8 standards to create two new regulations – the first, a temporary emergency standard that would provide specific protections to California employees who may experience exposure to COVID-19, but who are not already covered by Cal/OSHA’s existing Aerosol Transmissible Diseases standard (section 5199, which applies generally to healthcare employers); and the second, a regular rulemaking for a permanent infectious diseases standard, including novel pathogens such as SARS-CoV-2. Note that emergency rulemakings are rare and must meet a very high threshold designed to allow this abbreviated process; only when a true emergency necessitates this process. Here is a very simplified flowchart of the emergency standards rulemaking process.
Interestingly, the Standard Board’s staff found that a new COVID-19 rule was unnecessary because much of the proposed requirements recommended by WorkSafe’s Petition are already addressed under Cal/OSHA’s Injury and Illness Prevention Program Standard (“IIPP”), and therefore, recommended that the Petition be denied. DOSH staff, however, recommended that the Petition be approved, finding that an emergency regulation is warranted by the COVID-19 public health crisis and that the agency’s enforcement efforts would benefit from a specific regulatory mandate related to COVID-19.
On September 17th, the Standards Board accepted DOSH’s recommendation, finding that Continue reading →
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.
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:
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;
Establishments with 20-249 employees in select “high hazard industries” to annually submit information from their 300A Annual Summaries only;
All submissions to be done electronically, via a purportedly secure OSHA website portal; and
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 →
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.”
As we have been updating you about here, on July 27th, the Virginia Occupational Safety and Health Administration (VOSH) adopted a COVID-19 Emergency Temporary Standard (ETS). There are some important deadlines fast approaching under that new rule:
Conduct a COVID-19 Hazard Assessment to categorize the risk exposures at the workplace (due by Aug. 26th);
Deliver the first of two COVID-19 employee training events (due by Aug. 26th); and
Implement a written infectious disease preparedness and response plan (due by Sept. 25th).
But while everyone is scrambling to come into compliance with the emergency rule, we want to highlight another big development with the Virginia rule that has a fast-approaching deadline – that is, VOSH’s effort to prepare a permanent infectious disease standard.
The ETS is, of course, just a temporary standard, but by regulation, VOSH is required to commence a rulemaking to promulgate a permanent standard soon after issuing an ETS. By publication of the ETS in July, VOSH simultaneously gave notice that the Standards Board intends to adopt a permanent infectious disease standard, and the ETS serves as the proposed rule. Here is a link to the Proposed Permanent Standard for Infectious Disease Prevention. The agency intends to finalize the permanent rule within six months, with an effective date no later than January 27, 2021.
Confirmed by a positive laboratory test of a respiratory specimen; and
“More likely than not” the result of a workplace exposure, based on reasonably available evidence, and the absence of any alternative (non-work) explanation for the employee’s illness.
Cal/OSHA’s May 27th guidance, however, breaks from both of those key requirements for COVID-19 recordkeeping, rejecting the need for a confirmed case and flipping the burden of establishing work-relatedness on its head, establishing instead a presumption of work-related if any workplace exposure can be identified, even if the cause of the illness is just as likely to be attributable to a non-work exposure.
Aside from being bad policy that will result in many illnesses being recorded on 300 Logs only in California that were not actually COVID-19 cases, and/or that were not caused by exposures in the workplace, Cal/OSHA’s unique COVID-19 recording criteria are not permitted by law.
More COVID-19 cases on your logs can create significant risk of liability. For example, there is no doubt an avalanche of wrongful death and personal injury suits waiting around the corner, and while recording an illness is not an admission of wrong-doing, it is an admission that the illness was likely spread in your workplace. Plaintiffs’ attorneys will make hay of that to show your exposure control efforts were insufficient, or to show that the illnesses experienced by their clients (customers, contractors, family members of employees, and others whose suits would not be barred by workers’ compensation exclusivity) likely were also contracted in your workplace or because of your workplace. And of course, more illnesses having to be recorded also creates more potential for Cal/OSHA citations for failure to record or failure to record timely or accurately.
The Coalition for Uniformity in COVID-19 Recordkeeping
Conn Maciel Carey organized and represents the Coalition for Uniformity in COVID-19 Recordkeeping, which is composed of a broad array of California employers impacted by Cal/OSHA’s COVID-19 recordkeeping requirements. Continue reading →
On Wednesday, July 15, 2020, Virginia’s Governor Ralph Northam announced the commonwealth’s adoption of an emergency temporary standard (“ETS”) on infectious disease prevention. With that, Virginia became the first state in the nation to promulgate a mandatory safety regulation designed to prevent and/or reduce COVID-19 infections in the workplace. The Virginia Department of Labor and Industry’s Safety and Health Codes Board voted to approve the ETS after Governor Northam directed the creation of enforceable regulations in a May Executive Order (the same EO that mandated the use of masks in public for all Virginians). Specifically, Governor Northam directed:
“The Commissioner of the Virginia Department of Labor and Industry shall promulgate emergency regulations and standards to control, prevent, and mitigate the spread of COVID-19 in the workplace. The regulations and standards … shall apply to every employer, employee, and place of employment within the jurisdiction of the Virginia Occupational Safety and Health (VOSH) program.”
Virginia state officials said they were forced to act because federal OSHA had not developed an employer safety standard to protect against infections from the Coronavirus, and thus the burden to do so has been left to the states.
The ETS, which was drafted by Virginia’s Department of Labor and Industry, will go into effect after it is published in a newspaper in Richmond, VA, which is expected to occur the week of July 27th. The rule will remain in effect as an ETS for at least six months, but can be made permanent through the Virginia OSHA (VOSH) formal rulemaking process defined by state law. Although the Final Rule has not been published, the rulemaking process has been somewhat public, with early drafts of the rule discussed and debated in public meetings, and what appears to be the final rule published today.
While some requirements apply to all employers of any size and in any industry, the Rule requires employers to conduct a risk assessment to identify potential exposures to COVID-19 in the workplace, and to categorize employees’ job tasks as “very high,” “high,” “medium,” or “lower” (as defined in the Rule). The hazard assessment has to be verified by a written certification that identifies the workplace evaluated, the person certifying that the evaluated was completed, the dates of the assessment, and the document as a certification.
Each category has a separate list of precautions employers are required to take Continue reading →
As COVID Spring transitions to COVID Summer, wearing some form of face covering has become the new norm, especially in workplaces all across the country. Many employers operating essential businesses, as well as non-essential business that have begun to reopen, have sought to provide or require some form of respirator, face mask, or face covering for employees. Given OSHA’s particular emphasis on respiratory protection throughout the pandemic and for the foreseeable future, it is important for employers to be aware of the OSHA guidelines and obligations regarding respirators and face coverings in the workplace.
Depending on the type of face mask used, and whether it is mandated by the employer or merely permitted for voluntary use, there are certain requirements that employers must follow under OSHA’s respiratory protection standard, 29 C.F.R. 1910.134, and perhaps other regulations. Last week, OSHA issued a series of Frequently Asked Questions (FAQs) about face coverings to help employers navigate obligations amidst the COVID-19 pandemic.
As a starting point, let’s level-set the type of equipment we are talking about. N95 masks, although they are called masks and look like masks, are actually considered by OSHA to be respirators. Of course, anything more substantial than an N95 mask, such as half- or full-face tight-fitting face pieces with a filtering medium, are also considered by OSHA to be respirators. Use of that type of equipment in the workplace, whether it is required by the employer or permitted for voluntary use, triggers numerous duties under OSHA’s respiratory protection standard that we will discuss below. On the other hand, simple paper or cloth masks, like dental or surgical masks, are not considered to be respirators, and do not trigger any requirements under 1910.134.
Let’s start this discussion with the more ubiquitous face coverings that are NOT considered to be respirators, and also are not considered to be personal protective equipment (PPE).
Paper or Cloth Face Masks
Setting aside respirators for the moment, if your workplace is permitting or even requiring use of some form of a loose-fitting paper or cloth mask, or even a generic face covering like a bandana or one of the DIY masks that CDC has been promoting for general use by the public, none of those is considered to be a respirator, AND none of those is even considered to be a form of PPE.
Recent data from OSHA indicates that in FY2019 there were over 2500 citations issued under §1910.178, which contains OSHA’s standard on PIT. This was the seventh most frequently cited standard by OSHA that year and according to OSHA, and specifically at the sub-sections of enforcement under §1910.178, the most commonly cited elements of the standard in FY2019 were:
178(l)(1)(i) – operator training: ensuring that operators are competent to safely operate a powered industrial truck as demonstrated by completion of training and evaluation;
178(l)(4)(iii) – refresher training and evaluation: evaluation of operator’s performance must be conducted at least once every three years;
178(l)(6) – certification of operator training and evaluation;
178(p)(1) – taking powered industrial trucks out of service when in need of repair, defective, or unsafe; and
178(l)(1)(ii) – operator training: ensuring completion of training prior to permitting employee to operate powered industrial truck.
It is imperative that employers utilizing PIT remain consistent when implementing training programs for material handling, and also know when to retrain. Not only must a recertification take place at least once every three years, as outlined in §1910.178(I)(4(iii), but refresher training must also be provided to operators if: Continue reading →
As employers around the country grapple with the employment law and workplace safety implications of the 2019 Novel Coronavirus (“COVID-19”), Conn Maciel Carey formed a national, multi-disciplinary legal and regulatory task force dedicated to helping our clients across all industries manage the multitude of pandemic-related issues employers are facing and preparing them for the tidal wave of litigation that is waiting around the corner.
As part of our COVID-19 Task Force, the firm’s dedicated Workplace Safety, Labor and Employment, and Litigation attorneys have produced a comprehensive set of resources to guide employers through this uncharted territory and the unique workplace challenges presented by the presence of a new health hazard in our nation’s workplaces.
We have now pulled those resources together in a single location — Conn Maciel Carey’s COVID-19 Task Force Page, where employers can find:
Most construction projects and tasks will be in the Lower or Medium risk exposure category in OSHA’s COVID-19 risk matrix (those categories require much less in the way of engineering and administrative controls than healthcare and manufacturing facilities. Social distancing and physical barriers continue to be the principal method to control infection recommended by OSHA. With respect to separating employees at construction sites, OSHA recommends:
Using closed doors and walls, whenever feasible, as physical barriers to separate workers from any individuals experiencing signs and/or symptoms consistent with COVID-19; and/or
Erecting plastic sheeting barriers when workers need to occupy specific areas of an indoor work site where they are in close contact (less than 6 feet) with someone suspected of having or known to have COVID-19.
OSHA also recommends gathering certain information (and provides sample questions) about projects before sending workers to perform construction activities in an indoor environment that may be occupied by a homeowner, customer, worker, or another occupant.
The new guidance includes a large section on “Face Coverings in Construction,” consistent with OSHA’s general movement towards a consistent expectation that employers will provide and require face coverings in workplaces whenever and wherever social distancing cannot be assured. The Face Covering section in this construction guidance explains that:
CDC recommends wearing cloth face coverings as a protective measure in addition to social distancing (i.e., staying at least 6’ away from others).
Cloth face coverings are especially important when social distancing is not feasible based on working conditions.
There are myriad workplace safety and health implications of the COVID-19 pandemic, but one OSHA regulatory obligation about which we have received countless questions the past three months is the requirement to record on an OSHA 300 Log and/or pick up the phone and report to OSHA work-related cases of COVID-19. This article explains the circumstances the OSHA recordkeeping and reporting obligations related to employee COVID-19 cases.
“An injury or illness occurring in the work environment that falls under one of the following exceptions is not work-related, and therefore is not recordable…. The illness is the common cold or flu.”
The rationale for the exemption is that the spread of the cold and flu is so pervasive and potential exposures are ubiquitous within and outside the workplace, so it can be nearly impossible to identify the specific source of infection.
Despite great personal sacrifice around the country in the form of mass self-quarantine, the scale of infection of COVID-19 continues to spread like the flu and common cold, with even more dire consequences. Nevertheless, OSHA has repeatedly made clear that COVID-19 is not subject to the cold/flu recordkeeping exemption:
“While 29 CFR 1904.5(b)(2)(viii) exempts recording of the common cold and flu, COVID-19 is a recordable illness when a worker is infected on the job.”
OSHA has explained that the cold and flu recordkeeping exemption is not just an OSHA policy or enforcement philosophy. Rather, it is a part of the regulation itself that went through APA notice-and-comment rulemaking. And the scientific reality is, COVID-19 is not the cold or flu. It is a different virus. So without another rulemaking (that history suggests would take longer than it will to eradicate this illness), OSHA cannot just declare this serious illness to be exempt from recordkeeping and reporting requirements.
Indeed, over a series of guidance documents in April and May, OSHA has doubled-down on its decision that employers must spend time determining whether cases of COVID-19 are more likely than not work-related.
Determine Recordability of COVID-19 Cases
Consistent across all of OSHA’s COVID-19 guidance has been the basic structure for evaluating whether an employee’s COVID-19 case is recordable. Employers will only be responsible for recording a case of COVID-19 if it meets the following criteria: Continue reading →
In explaining the need for this enforcement relief, OSHA recognized that:
“Widespread business closures, restrictions on travel, limitations on group sizes, facility visitor prohibitions, and stay-at-home or shelter-in-place requirements” have strained the “availability of employees, consultants, or contractors who normally provide training, auditing, equipment inspections, testing, and other essential safety and industrial hygiene services,” as well as the opportunity for “employee participation in training even when trainers are available.” Similarly, “access to medical testing facilities may be limited or suspended.”
To address these very real challenges to achieving full compliance with various annual and other regulatory requirements, OSHA issued a temporary enforcement policy based on the agency’s enforcement discretion to relax enforcement of many existing regulatory obligations if complying with these obligations is not feasible or if doing so would pose an unreasonable risk of virus transmission among the employer’s workforce. Today’s enforcement policy applies broadly to employers in all industry sectors, takes effect immediately, and will remain in effect indefinitely throughout the current public health crisis.
The heart of the new enforcement policy is this:
Where an employer is unable to comply with OSHA standards that require annual or recurring audits, reviews, training, assessments, inspections, or testing because of the Coronavirus pandemic, AND the employer has made good faith attempts to comply, OSHA “shall take such efforts into strong consideration in determining whether to cite a violation.”
But where the employer cannot demonstrate any efforts to comply or why trying to comply would be more hazardous, a citation may issue as appropriate.
As part of OSHA’s assessment whether an employer engaged in good faith compliance efforts, OSHA will evaluate whether the employer Continue reading →
As concerns about the spread of COVID-19 grow, many employees working in essential businesses have sought to provide or require some form of respirator, face mask, or face covering for employees. Now, the CDC and White House are recommending that everyone wear some form of face covering any time in public to help reduce community spread of COVID-19. So, it is important to be aware of the OSHA guidelines and obligations regarding respirators and face coverings in the workplace. Depending on the type of face mask used, and whether it is required by the employer or permitted for voluntary use, there are certain requirements that employers must follow under OSHA’s respiratory protection standard, 29 C.F.R. 1910.134 and perhaps by other regulatory requirements.
As a starting point, let’s level-set the type of equipment we are talking about. N95 masks, although they are called masks and look like masks, are actually considered by OSHA to be respirators. Of course, anything more substantial than an N95 mask, such as half or full face tight-fitting face pieces with a filtering medium, are also considered by OSHA to be respirators. That type of equipment, whether it is required by the employer or permitted for voluntary use, triggers some requirements of OSHA’s respiratory protection standard that we will discuss below. Simple paper or cloth masks, like dental or non-N95 surgical masks, on the other hand, are not considered to be respirators, and do not trigger any requirements under 1910.134.
OSHA’s respiratory protection standard provides that a respirator shall be provided to each employee when such equipment is necessary to protect the health of such employee; i.e., if there are exposures to chemicals or other hazardous agents above permissible exposure limits. If a respirator is necessary because of exposure levels or simply because an employer mandates employees wear respirators, the employer must establish a written respiratory protection program that includes numerous elements such as fit testing, medical evaluations, procedures for proper use, storage and cleaning, and training.
OSHA’s initial Guidance for COVID-19 in the Workplace described four exposure risk categories (lower, medium, high, and very high) that workplaces and job tasks fall into, and the safety precautions that should be considered for each risk level, including what personal protective equipment (“PPE”) may be appropriate. The majority of workplaces, other than healthcare workers and those with regular close contact with known or suspected COVID-19 patients, fall into the lower or medium risk category. As of today, neither OSHA nor the CDC has issued guidance indicating that N95 respirators, or any other device considered to be a respirator, is required in lower- and medium-risk workplaces to protect employees from exposures to COVID-19.
However, that does not answer the question about what, if any, regulatory requirements there are if employers permit employees to voluntarily use N95s or other negative pressure filtering facepieces. OSHA most succinctly addressed which parts of 1910.134 apply to the voluntary use of N95 masks in a 2009 Interpretation Letter with this statement:
“If respiratory protection is not required and the employer did not advise the employee to use [an N95 dust mask], but the employee requested to use a dust mask, it would be considered voluntary use. Under these conditions, there would be no requirement to develop a written respiratory protection program; however, the employer would be responsible for providing the employee with a copy of Appendix D of 1910.134[, which outlines information for employees using respirators when not required under the standard].”
Since publishing our previous post last month, there have been a number of significant developments related to the 2019 Novel Coronavirus – now officially called “COVID-19.” Notably, during the week of February 23, 2020, the U.S. Centers for Disease Control and Prevention (“CDC”) reported community spread of the virus that causes COVID-19 in California, Oregon, and Washington. Community spread in Washington resulted in the first death in the U.S. from COVID-19, as well as the first reported case of COVID-19 in a health care worker, and the first potential outbreak in a long-term care facility.
Recent Developments and Federal Guidance
CDC has published an Interim Guidance for Businesses and Employers, cautioning employers to use the guidance to determine the risk of the Coronavirus, and not to use race or country of origin to make a determination. The guidance covers recommended strategies for employers to use, including: (1) actively encouraging sick employees to stay home; (2) separating sick employees; (3) emphasizing staying home when sick, respiratory etiquette and hand hygiene by all employees; (4) performing routine environmental cleaning; and (5) advising employees before traveling to consult CDC’s Traveler’s Health Notices and other CDC guidance. Additionally, the guidance states that if an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace, but maintain confidentiality as required by the Americans with Disabilities Act (“ADA”).
This is your yearly reminder about the important February 1st deadline to prepare, certify and post your OSHA 300A Annual Summary of workplace injuries and illnesses, for all U.S. employers, except those with ten or fewer employees or those whose NAICS codes are in the set of low-hazard industries exempt from OSHA’s injury and illness recordkeeping requirements, such as dental offices, advertising services, and car dealers (see the exempted industries at Appendix A to Subpart B of Part 1904). The Form 300A is a summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the particular OSHA 300 Log.
Note that February 1st falls on a Saturday this year, but that does not affect the deadline to post. So, if there will be noone present at your workplace to make the posting on that Saturday, be sure to get your 300A posted by Friday, January 31st.
This February 1st requirement to prepare, certify and post 300A forms should not be confused with OSHA’s Electronic Recordkeeping Rule. The February 1st deadline is only about the internal hard copy posting of 300A data for your employees’ eyes. The E-Recordkeeping Rule, on the other hand, requires certain employers to electronically submit data from their 300A Annual Summary forms to OSHA through OSHA’s web portal – the Injury Tracking Application. The deadline for those submissions this year (i.e., to submit 300A data from 2019) is March 2, 2020. Click here for more information about OSHA’s E-Recordkeeping Rule.
By February 1st every year, covered employers must:
Review their OSHA 300 Log(s);
Verify the entries on the 300 Logs are complete and accurate;
Correct any deficiencies identified on the 300 Logs;
Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses, and input those calculations into the 300A Annual Summary Form; and
Have a “Company Executive” certify the accuracy of the 300 Log and the 300A Summary Form.
Five Common 300A Mistakes that Employers Make
We frequently see employers make the following five mistakes related to this annual duty to prepare, post and certify the injury and illness recordkeeping summary: Continue reading →
We are three years into the Trump Administration, and we have seen a mixed bag of change and business as usual at OSHA in enforcement and rulemaking. We watched late Obama-era OSHA rules get repealed, delayed, or amended and a modest boost in compliance assistance—the sort of policy shifts you expect to see in a transition from a Democratic to a Republican Administration. However, we have seen plenty of the unexpected, such as increases in virtually every enforcement metric, including record numbers of $100K+ enforcement actions. And most surprising of all, OSHA still does not have an Assistant Secretary—the longest ever vacancy for the top job at OSHA—and it seems highly likely the Agency will remain without a Senate-approved leader for the entirety of this presidential term. As we move into an election year, the final year of President Trump’s current term, we expect more reshuffling of OSHA enforcement policies and rulemaking priorities, and surely more surprises, so it is critical to stay abreast of OSHA developments.
Conn Maciel Carey’s complimentary2020 OSHA Webinar Series includes monthly webinars presented by OSHA-specialist attorneys in the firm’s national OSHA Practice designed to give employers insight into developments at OSHA during this remarkable time in OSHA’s history.
Last week, the CSB issued a Notice of Proposed Rulemaking for its accidental release reporting rule, which establishes the criteria for when facility owners and operators are required to report to CSB accidental chemical release incidents and what must be included in those reports. Here is a link to an article we posted that summarizes the CSB’s proposal and background about the situation. If promulgated, the rule would require owners and operators of stationary sources to report to the CSB within four hours any accidental chemical releases that results in a:
Serious injury; or
Substantial property damage.
A release reporting rule was mandated by the CSB’s enabling statute (decades ago), but the Agency had never issued such a rule. In February of this year, however, a federal court ordered the CSB to promulgate a final reporting rule within 12 months of the court’s ruling—by mid-February 2020. With CSB waiting until the 11th hour to publish this NPRM, interested stakeholders have only a very small window to make sure their concerns about the proposed rule are heard. Comments are due to the CSB by January 13, 2020, and because the deadline to promulgate the rule is court-mandated, there likely will be no extension of the comment period.
Although the proposal indicated that CSB contemplated some of the duplicative effort that a separate CSB reporting rule would require, the proposed rule does not come close to addressing employers’ legitimate concerns about the burden this reporting requirement will place on employers at a time when their attention should be focused on emergency response. To compound the problem, the scope of reportable incidents and criteria for reportability aligns neither with CSB’s investigative jurisdiction nor with other agencies’ already-existing reporting requirements, and, as formulated, could create disincentives for robust internal reporting of incidents.
Following the tragic West Fertilizer explosion in 2013, then-President Obama issued an Executive Order directing OSHA, EPA and other agencies to “modernize” the way the government regulates chemical process safety. OSHA and EPA took (or at least initiated) sweeping actions in response to the Executive Order, from enforcement initiatives (like a new wave of Refinery and Chemical Facility PSM National Emphasis Program inspections) to rulemaking and interpretation letters to overhaul OSHA’s PSM and EPA’s RMP regulatory landscape.
When President Trump took office with a de-regulatory agenda, the regulated community was left wondering what this meant for these changes to process safety regulations. But rather than a continued wave of action, the momentum splintered, with some initiatives proceeding, others coming to a halt, and others still being pared back. We saw immediate delays and the beginning of rollbacks of new process safety regulations, yet enforcement initiatives appeared to move forward unhindered. And now, with two years of the Trump Administration in the books, it is still unclear where the regulatory landscape will settle.
This webinar will review the status and likely future of OSHA’s PSM Standard and EPA’s RMP Rule, as well as other major process safety developments from the federal government, state governments, and industry groups.
What is the Process Safety Summit in Washington, DC?
The Process Safety Summit in Washington, DC is an annual event in our nation’s Capital. The Inaugural Summit last Fall welcomed more than 175 safety and legal professionals from stakeholders in the chemical, petrochemical, paper, and petroleum refining industries and other industries with operations covered by OSHA’s PSM Standard and EPA’s RMP Rule. The Summit focuses on the process safety regulatory landscape and industry best practices, with programming that covers rulemaking, enforcement programs, significant cases, trends as we move through the Trump Administration, best practices, and other key process safety regulatory issues impacting Industry.