[Webinar] Cal/OSHA’s COVID-19 Emergency Temporary Standard

On Tuesday, January 26th at 12:00 PM PT / 3:00 PM ET, plan to join Andrew J. SommerFred Walter and Megan S. Shaked for a webinar regarding Cal/OSHA’s COVID-19 Emergency Temporary Standard.

Not to be outdone by other State OSH Plans like Virginia OSHA, Oregon OSHA, and Michigan OSHA, Cal/OSHA has adopted its own COVID-19 specific emergency temporary standard, and it is in a league of its own. This standard adds significant, burdensome new compliance obligations to California’s existing slate of state and local requirements applicable to employers.

This webinar will provide an overview of the regulation, existing and anticipated guidance provided by Cal/OSHA about it, as well as enforcement efforts by Cal/OSHA to date.  We will also examine the interplay between the emergency temporary standard and other new California legislation, including AB 685 and SB 1159.  Finally, we will help you interpret and avoid common pitfalls from some of the trickier sections of the regulation, such as the Outbreaks and Testing provisions.
Participants in this webinar will learn about:

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Cal/OSHA’S New Budget Raises Questions About The Future of Enforcement

By Fred Walter

Governor Newsom has announced his proposed budget for 2020-2021 and it has some good news and some bad for Cal/OSHA. Under the Governor’s proposal, Cal/OSHA’s overall budget will increase by $12,107,000, or just over 8% to $168,661,000.Cal-OSHA Budget (002)

This will be split between the three arms of Cal/OSHA. The budget for the Standards Board, which adopts regulations, is slated to increase to $3,946,000. The Appeals Board, which hears appeals of citations, is expected to get $6,706,000. But the Division of Occupational Safety and Health (DOSH) is by far the elephant in the room. Its current budget of $146,743,000 is 24 times that of the Appeals Board and 41 times that of the Standards Board. Its budget for 2021 will be $158,009,000.

The largest piece of the DOSH pie (33%) will go to the Elevator Unit. Consultation, PSM, and the Pressure Vessel Unit each will receive an 8% increase while Mining and Tunneling will get 9%.

But here is where it gets weird. Continue reading

President Biden’s Day 1 Executive Order regarding OSHA’s Response to the COVID-19 Pandemic

By Conn Maciel Carey’s COVID-19 Task Force

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

Cal/OSHA Issues a Second Batch of FAQs Clarifying Its New COVID-19 Emergency Temporary Standard

By Eric J. Conn, Andrew J. Sommer, and Beeta B. Lashkari

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.

And how to get into compliance, or at least what Cal/OSHA is expecting from California employers, has gotten a little clearer. As promised by Division Chief Doug Parker and Deputy Chief of Standards Eric Berg, we have a new set of Cal/OSHA FAQs about the agency’s COVID-19 Emergency Temporary Standard.

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….”

And here is a link to full set of FAQs Cal/OSHA has issued about the rule.

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

Announcing Conn Maciel Carey’s 2021 OSHA Webinar Series

ANNOUNCING CONN MACIEL CAREY’S
2021 OSHA WEBINAR SERIES

As the Trump Administration hands over the keys to President-Elect Biden and a new Democratic Administration, OSHA’s enforcement and regulatory landscape is set to change in dramatic ways, from shifting enforcement priorities, budgets and policies, to efforts to reignite OSHA’s rulemaking apparatus. Following an Administration that never installed an Assistant Secretary of Labor for OSHA, handled COVID-19 enforcement with a light touch, pumped the brakes on almost all rulemaking in general, and declined to issue an emergency COVID-19 standard in particular, the pendulum swing at OSHA is likely to be more pronounced than during past transitions. Accordingly, it is more important now than ever before to pay attention to OSHA developments.

Conn Maciel Carey’s complimentary 2021 OSHA Webinar Series, which includes (at least) monthly programs put on by OSHA-specialist attorneys in the firm’s national OSHA Practice, is designed to give employers insight into developments at OSHA during this period of flux and unpredictability.

To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2021 series, click here to send us an email request, and we will register you.  If you missed any of our programs from the past seven years of our annual OSHA Webinar Series, click here to subscribe to our YouTube channel to access those webinars.


2021 OSHA Webinar Series – Program Schedule

OSHA’s 2020 in Review
and 2021
Forecast

Thursday, January 14th

Respiratory Protection Rules –
Top 5 Risks and Mistakes

Wednesday, May 12th

Cal/OSHA’s COVID-19
Emergency Temporary Standard

Tuesday, January 26th

What to Expect from DOL Under
a Biden Administration

Wednesday, June 16th

What Employers Need to Know
About the COVID-19 Vaccine

Thursday, February 11th

Mid-Year Review of OSHA Developments

Thursday, July 22nd

COVID-19 Vaccine Distribution and Administration: OSHA Considerations

Thursday, February 18th

OSHA VPP and other Cooperative Programs

Tuesday, August 24th

Update About the
Chemical Safety Board

Tuesday, March 16th

Update about OSHA’s Electronic Recordkeeping Rule

Wednesday, September 8th

Annual Cal/OSHA Enforcement
and Regulatory Update

Tuesday, March 23rd

OSHA Issues During
Acquisitions and Divestitures

Thursday, October 7th

COVID-19 OSHA Enforcement
and Regulatory Update

Wednesday, April 20th

Updates about OSHA’s PSM
Standard EPA’s RMP Rule

Tuesday, November 16th

Recap of Year One of the Biden Administration

Tuesday, December 14th

See below for the full schedule with program descriptions,
dates, times and links to register for each webinar event.

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[Client Alert] New California Employment Laws for 2021 Will Leave Their Mark

By Andrew Sommer, Fred Walter, and Megan Shaked

2020 has been another banner year for California employment laws, with legislation and Cal/OSHA rulemaking associated with COVID-19 prevention and reporting taking center stage.  In our annual update of new employment laws impacting California private sector employers, we lead off with California’s COVID-19 related laws, given their far-reaching impact on the state’s workforce during the pandemic as employers continue to implement measures to prevent the spread of COVID-19 in the workplace.  We have also addressed other substantive legislative developments, particularly in the areas of wage and hour law and reporting of employee pay data.  Unless otherwise indicated, these new laws will take effect on January 1, 2021.

COVID-19 Related Rulemaking and Legislation

Temporary Emergency COVID-19 Prevention Rule Not to be outdone by Virginia OSHA, Oregon OSHA or Michigan OSHA, Cal/OSHA adopted an onerous COVID-19 specific temporary emergency regulation effective November 30, 2020.  Below is a detailed summary of how we got here, as well as an outline of what the rule requires.

On November 19, 2020, the California’s Occupational Safety and Health Standards Board (Standards 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 was then presented to California’s Office of Administrative Law for approval and publication.  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 Standards 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 Continue reading

Conn Maciel Carey is pleased to announce the launch of the Cal/OSHA Defense Report Blog

The Cal/OSHA attorneys in Conn Maciel Carey’s national OSHA Practice Group are excited to announce the launch of The Cal/OSHA Defense Report bog!

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

Cal/OSHA’s COVID-19 Emergency Temporary Standard Approved by OAL and Immediately Effective

By Conn Maciel Carey’s COVID-19 Task Force

Earlier today, we shared an update about Cal/OSHA’s fast-moving rulemaking for an emergency COVID-19 prevention rule, along with a detailed summary of how we got here, as well as an outline of what the California rule will require.

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

California COVID-19 Emergency Rule Adopted by Standards Board

By Conn Maciel Carey’s COVID-19 Task Force

Not to be outdone by Virginia OSHA, Oregon OSHA, or Michigan OSHA, Cal/OSHA is on the precipice of issuing an onerous COVID-19 specific regulation that is expected to be issued, with all provisions immediately effective, next week.  Below is detailed summary of how we got here, as well as an outline of what the California rule will require.

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

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

By Conn Maciel Carey’s COVID-19 Task Force

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

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

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

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

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

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

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

By Conn Maciel Carey’s COVID-19 Task Force

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

Serious Concerns About the Likely Proposed Emergency Regulation

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

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

Update on Cal/OSHA’s Wildfire Smoke Rule

By Andrew Sommer and Fred Walter

In May of this year, Conn Maciel Carey’s OSHA Practice submitted comments to the Cal/OSH Standards Board on behalf of the Wildfire Smoke Rule Industry Coalition about the agency’s effort to make permanent what had been Emergency Temporary Standard to protect workers from the respiratory hazards of California wildfires.

Last month, the Cal/OSH Standards Board issued a 15-day Notice of Proposed Modifications to what would become the permanent wildfire smoke rule. The proposed changes are not major, mostly clarifying that one of the methods for determining the Air Quality Index for particulate matter 2.5 is the Interagency Wildland Fire Air Quality Response Program.

Another change to be expected in the final rule is a revision to the Appendix B training instructions to address cleaning and maintenance of reusable respirators, purportedly to address critical shortages of N95 respirators exacerbated by the COVID-19 pandemic. While anything that extends the supply of N95 masks is welcome, that change alone is not nearly enough to solve a massive compliance problem created by the rule. With the Wildfire Smoke Rule, DOSH requires workers exposed to wildfire smoke be supplied with N95 respirators, and it does not consider surgical masks to be acceptable substitutes. DOSH concedes that N95 respirators are generally not available to any but medical workers right now, but they have no recommended substitutes.

That was one of the primary points of emphasis in our coalition’s comments — the rule needed to include some flexibility around the requirement for employers to supply N95 respirator masks for all potentially affected workers. There were already problems with N95 shortages even before the COVID-19 pandemic, but now, the shortage is extreme, and with the CDC’s and OSHA’s recommendations that all supplies of N95s should be reserved for the healthcare industry obviously makes compliance with a a rigid N95 requirement for wildfire smoke protection impossible for most employers. Now in the midst of another wildfire season in California, employers are continuing to experience N95 shortages.

Continue reading

Coalition for Uniformity in COVID-19 Recordkeeping Advocates for Cal/OSHA to Realign its Requirements

By Conn Maciel Carey’s COVID-19 Task Force

As we previously reported, in late May, Cal/OSHA issued a new set of COVID-19 Recordkeeping and Reporting FAQs that represented a serious departure from federal OSHA’s guidance on that same subject.  Throughout the pandemic, federal OSHA has maintained that employers need only record and report COVID-19 cases that are:

  1. Confirmed by a positive laboratory test of a respiratory specimen; and
  2. “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, Cal-OSHA RK FAQSestablishing 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

California Governor Deploys COVID-19 “Strike Force” Over Holiday Weekend to Enforce Workplace Restrictions

By Conn Maciel Carey’s COVID-19 Task Force 

California increased its efforts to combat COVID-19 over the July 4th holiday weekend by deploying multi-agency strike teams to visit or otherwise make contact with businesses to evaluate and enforce compliance with and/or educate them about the State’s numerous COVID-19 orders, directives, and guidance.

The “Strike Force” includes representatives from at least ten different state agencies.  Approximately 100 agents are from the Alcohol Beverage Control agency and the rest from the Division of Occupational Safety and Health (Cal/OSHA), the California Highway Patrol, the Board of Barbering & Cosmetology, Consumer Affairs, Food and Agriculture, Labor Commissioner’s Office, the Governor’s Office of Business and Economic Development, and other state licensing entities.

Ahead of the July 4th holiday, Governor Newsom ordered bars, indoor restaurants, movie theaters and more to close in a number of counties on a state watch list.  The state monitoring list is ever changing and represents counties with a need for more support and/or enforcement.

Over the holiday, hundreds of state inspectors fanned out across California to enforce health orders related to Coronavirus.

The State’s actions are likely authorized by Executive Order N-33-20, which generally directs all residents immediately to heed current State public health directives to stay home, Calif EOexcept as needed to maintain continuity of operations of essential critical infrastructure sectors and additional sectors as the State Public Health Officer “may designate” as critical to protect health and well-being of all Californians.  As for the crackdown, the actions taken are likely be based on recent 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

Wildfire Smoke Rule Coalition Comments on Cal/OSHA’s Proposed Permanent Wildfire Smoke Standard

By Andrew J. Sommer and Eric J. Conn

On behalf of a diverse coalition of employers, Conn Maciel Carey submitted written comments and presented key comments at the Cal/OSH Standards Board’s May 21, 2020 meeting concerning the proposed permanent rule on protection from wildfire smoke.  The coalition raised a host of concerns about the rule, from the potentially broad application of the rule to the inflexible respiratory protection and hierarchy of controls requirements.

As background,  the Cal/OSH Standards Board adopted an emergency regulation regarding hazards associated with wildfire smoke last summer at the urging of various interest groups.  The regulation took effect on a temporary emergency basis on July 29, 2019.

Recently, the Board published a request for written comments and notice of a public hearing on its proposal to revise the emergency standard and make it permanent.  The Board explained:

Current regulations are not sufficiently specific as to what employers are required to do during wildfire events. This results in confusion on behalf of both employers and employees, leaving many employees unprotected….  As wildfire seasons worsen, the proposed regulation will avoid a potential increase in debilitating and sometimes life-threatening illnesses faced by workers exposed to wildfire smoke.

The Emergency Standard

The emergency standard (which is still in effect) requires California employers to take steps to protect employees who may be exposed to wildfire smoke.  Importantly, the regulation covers “workplaces” rather than employers of a particular size or scope of service. It applies in workplaces where:

  • The current Air Quality Index (AQI) for PM2.5 is 151 or greater, regardless of the AQI for other pollutants, and
  • The employer should reasonably anticipate that employees may be exposed to wildfire smoke.

The regulation specifically exempts Continue reading

California Governor Issues COVID-19 Executive Order Extending Deadlines for Cal/OSHA Citations and Appeals

By Fred Walter and Andrew Sommer

With no fanfare, California Governor Gavin Newsom issued the latest in his series of COVID-19-related executive orders on May 7, 2020. Executive Order N-63-20 extends by 60 days the time for Cal/OSHA to issue citations and for employers to file appeals, motions and petitions for reconsideration.

As rationale for extending these statutory, jurisdictional deadlines, Governor Newsom explained:

WHEREAS the COVID-19 pandemic, as well as physical distancing and
other public health measures undertaken in response to it, have affected
governmental agencies, workers, private businesses, and California residents,
with associated impacts on adherence to certain statutory and regulatory
deadlines, as well as to workers’ efforts to vindicate their labor and employment
rights; and

WHEREAS the COVID-19 pandemic, as well as physical distancing and
other public health measures undertaken in response to it, have also had
widespread impacts on state and local governments’ ability to perform certain
functions via in-person interactions, and such functions should be performed via
other means to the extent consistent with public safety and other critical public
interests….

As to the Cal/OSHA related deadlines specifically, the Order states:

“The deadlines specified in or that apply to (Labor Code section 6317, related to the issuance of Cal/OSHA citations, and Labor Code sections 6319, 6600, 6600.5, 6601a and 6601.5) shall be extended for a period of 60 days to the limited extent that at the time to issue a citation or file a complaint, claim, or appeal would otherwise elapse in the 60-day period…” following the effective date of the Order, which was May 7, 2020.

A review of the cited Labor Code sections reveals that this Order extends Cal/OSHA’s time to issue citations and the employer’s time to file appeals, motions and petitions for reconsideration.

Labor Code section 6317 gives Cal/OSHA six months following the occurrence of a violation of a safety order to issue a citation or notice in lieu of citation. The remaining Labor Code sections cited in the Order put employers on notice that they must file an appeal within 15 working days of receipt of a citation or notice. If they do not, their right to do so would be lost.

As with most executive orders, this language is open to interpretation. Cal/OSHA Enforcement reads the Order to mean that Continue reading

Conn Maciel Carey Expands OSHA Practice by Addition of Legendary Cal/OSHA Specialist Attorney Fred Walter

Conn Maciel Carey is pleased to announce the addition to its national Workplace Safety Practice of renowned Cal/OSHA attorney Fred Walter.

Mr. Walter has spent more than 35 years working with employers to defend OSHA and Cal/OSHA citations, as well as developing and auditing safety programs to answer regulatory mandates. He also represents employers in defense of “serious and willful misconduct” claims and provides crisis management services.  For the past twelve years, Mr. Walter was the Managing Partner of a premier Cal/OSHA defense firm, Walter & Prince LLP.

Fred Walter Wix Headshot

“Fred is a true legend of the OSHA Bar.  The opportunity to align with him and enable our young lawyers, and really all of us, to benefit from his experience, knowledge, and mentorship, will help solidify Conn Maciel Carey as the premier workplace safety law firm in the country,” said Eric J. Conn, Chair of the firm’s Workplace Safety Practice Group.  “In addition to bringing decades of experience and knowledge, it is Fred’s creative approach and focus on consensus-building, rather than bridge-burning, that make him such a great fit with our team,” Eric added.

Mr. Walter’s diverse clientele includes employers in all of the construction trades, manufacturing, warehousing, freight handling, logging, farm labor contracting, food processing, and wineries.  In his over three decades of practice, Fred has acquired a wealth of knowledge of Cal/OSHA regulations and enforcement and developed unique relationships and established credibility with the players within Cal/OSHA and among its Counsel.

“It is clear from talking with Fred that he loves the work he does and cares about the people for and with whom he does it.  And he brings such a depth of experience with Cal/OSHA defense and counseling, as well as unique relationships with the players at Cal/OSHA, that will enhance the workplace safety legal services we provide to employers across all industries,” said Andrew J. Sommer, Managing Partner of the firm’s California practice.

Fred will be based out of the firm’s San Francisco office, and will Continue reading

Cal/OSHA’s Proposed Permanent Wildfire Smoke Rule – Coalition to Comment

By Andrew J. Sommer and Eric J. Conn

Last summer, at the urging of various interest groups, the Cal/OSH Standards Board adopted an emergency regulation regarding hazards associated with wildfire smoke. The regulation took effect on a temporary emergency basis on July 29, 2019.

Recently, the Board published a request for written comments and notice of a public hearing on its proposal to revise the emergency standard and make it permanent.  The Board explained:

Current regulations are not sufficiently specific as to what employers are required to do during wildfire events. This results in confusion on behalf of both employers and employees, leaving many employees unprotected….  As wildfire seasons worsen, the proposed regulation will avoid a potential increase in debilitating and sometimes life-threatening illnesses faced by workers exposed to wildfire smoke.

The deadline for written comments is May 21, 2020, and the public hearing will be held in Rancho Cordova, CA that same day.

The Emergency Standard

The emergency standard (which is still in effect) requires California employers to take steps to protect employees who may be exposed to wildfire smoke.  Importantly, the regulation covers “workplaces” rather than employers of a particular size or scope of service. It applies in workplaces where:

  • The current Air Quality Index (AQI) for PM2.5 is 151 or greater, regardless of the AQI for other pollutants, and
  • The employer should reasonably anticipate that employees may be exposed to wildfire smoke.

The regulation specifically exempts Continue reading

[Webinar Recording] Cal/OSHA Developments that California Employers Must Track

On April 16, 2020, Andrew SommerEric J. Conn, and Megan Shaked of the law firm Conn Maciel Carey presented a complimentary webinar: Cal/OSHA Developments that California Employers Must Track.OSHA Capture

California’s Division of Occupational Safety and Health, aka Cal/OSHA, is perhaps the most aggressive and enforcement-heavy state OSH Program in the nation. California employers face a host of requirements that other employers around the country do not. Likewise, the Cal/OSHA inspection and Appeal process creates several unique landmines for California employers.

During this webinar, participants learned about:

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

[Webinar] Cal/OSHA Developments that California Employers Must Track

On Thursday, April 16, 2020 at 1 PM Pacific / 4 PM Eastern, join Andrew Sommer, Eric J. Conn, and Megan Shaked of the law firm Conn Maciel Carey for a complimentary webinar: Cal/OSHA Developments that California Employers Must Track.OSHA Capture

California’s Division of Occupational Safety and Health, aka Cal/OSHA, is perhaps the most aggressive and enforcement-heavy state OSH Program in the nation. California employers face a host of requirements that other employers around the country do not. Likewise, the Cal/OSHA inspection and Appeal process creates several unique landmines for California employers.

During this webinar, participants will learn about:

Continue reading

COVID-19 Pandemic FAQs – What Do Stay-At-Home / Shelter-In-Place Orders Mean For Employers?

By Conn Maciel Carey’s COVID-19 Task Force

Governors across the nation have signed various “stay-at-home” or “shelter-in-place” orders in an increased effort to slow the spread of COVID-19.  Many cities and counties have also signed such orders as well, including in states with no statewide order in place. COVID These orders vary in their scope in the restricted activities and affected industries but they typically address: (1) the continued operations of critical businesses; (2) restrictions on non-essential businesses; (3) the activities individuals may continue to perform; and (4) other limitations on gatherings.

Spotlight: California

On March 19, 2020, California Governor Gavin Newsom signed an emergency order requiring all individuals living in California “stay home or at their places of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors.”  Californians may continue working for such critical infrastructure sectors and any other industries the governor designates as critical.  The emergency order cites to federal guidance on the federal critical infrastructure sectors, which identifies the 16 critical infrastructure sectors including critical manufacturing, food and agriculture, transportation, energy, healthcare and emergency services.

The emergency order references a March 19, 2020 Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response issued by the U.S. Department of Homeland Security, which includes more detailed descriptions of categories of workers falling under each of the identified critical infrastructure sectors.  Some of the other state orders also rely on this federal guidance on “essential critical infrastructure workers” in defining the critical business that may continue to operate under the orders.

Californians may 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

REMINDER: February 1, 2020 Deadline to Prepare, Certify, & Post OSHA 300A Annual Summaries of Work-Related Injuries: 5 Common Mistakes Employers Make

By Lindsay A. DiSalvo, Dan C. Deacon, and Eric J. Conn

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