OSHA’s Recordkeeping, Reporting, and E-Recordkeeping Rules [Webinar Recording]

On September 13, 2022, Lindsay A. DiSalvo and Ashley D. Mitchell presented a webinar regarding Important Nuances of OSHA’s Recordkeeping, Reporting, and E-Recordkeeping Rules.

Although OSHA’s injury and illness recordkeeping and reporting rules may seem clear on their face, there are many nuances in the applicable standards that can create challenges to accurately making and maintaining those required records and reports. And the accuracy of injury and illness records could be becoming even more essential in light of the changes OSHA has proposed to the current e-recordkeeping rule, which would increase the availability and use of injury and illness data.

Already, e-recordkeeping data is collected by OSHA and used in developing and executing its Site-Specific Targeting (“SST”) Program based on an employer’s 300A Summary. Per the changes proposed in the current rulemaking effort, OSHA intends to expand who is required to submit recordkeeping data, what data is collected, and what data is shared with the public. This would result in more employers’ injury and illness data being under the microscope and incorporated into OSHA’s enforcement efforts. Indeed, as COVID-19 recordkeeping continues to drive up DART rates for a number of employers due to the need for COVID-19 positive employees to isolate, more may be pulled in OSHA’s SST Program. Thus, it is important for employers to understand the changes possibly to come in e-recordkeeping, as well as what those changes could mean in the context of evaluating and recording/reporting injuries and illnesses.

Participants in this webinar learned about: Continue reading

OSHA Updates Its Severe Violator Enforcement Program to Sweep In Exponentially More Employers

By Eric J. Conn and Ashley D. Mitchell

On September 15, 2022, OSHA announced a significant set of updates to its dreaded Severe Violator Enforcement Program (“SVEP”), the first update to the program in over a decade. In a Press Release accompanying the update, Doug Parker, the Assistant Secretary of Labor for OSHA, explained:

The Severe Violator Enforcement Program empowers OSHA to sharpen its focus on employers who – even after receiving citations for exposing workers to hazardous conditions and serious dangers – fail to mitigate these hazards . . . . Today’s expanded criteria reflect the Biden-Harris administration’s commitment to ensuring OSHA has the tools it needs to ensure employers protect their workers or hold them accountable when they fail to provide safe and healthy workplaces.

Historically, the principal way that employers “qualified” into SVEP was by enforcement actions that included two or more willful or repeat violations related to a particular set of standards that represented “high emphasis hazards.” Indeed, that criteria has accounted for more than 70% of all SVEP-qualifying citations. Those “high emphasis hazards” essentially reflected the subjects of OSHA’s active enforcement National Emphasis Programs, including:

  • Fall Hazards in all industries
  • Amputation Hazards covered by Lockout/Tagout and Machine Guarding standards
  • Combustible Dust Hazards
  • Crystalline Silica Hazards
  • Lead Hazards
  • Grain Handling Hazards
  • Excavation/Trenching Hazards

The most important change in the updated SVEP is that Continue reading

[Webinar] OSHA’s Recordkeeping, Reporting, and E-Recordkeeping Rules

On Tuesday, September 13, 2022 at 1 p.m. EST, join Lindsay A. DiSalvo and Ashley D. Mitchell for a webinar regarding Important Nuances of OSHA’s Recordkeeping, Reporting, and E-Recordkeeping Rules.

Although OSHA’s injury and illness recordkeeping and reporting rules may seem clear on their face, there are many nuances in the applicable standards that can create challenges to accurately making and maintaining those required records and reports. And the accuracy of injury and illness records could be becoming even more essential in light of the changes OSHA has proposed to the current e-recordkeeping rule, which would increase the availability and use of injury and illness data.

Already, e-recordkeeping data is collected by OSHA and used in developing and executing its Site-Specific Targeting (“SST”) Program based on an employer’s 300A Summary. Per the changes proposed in the current rulemaking effort, OSHA intends to expand who is required to submit recordkeeping data, what data is collected, and what data is shared with the public. This would result in more employers’ injury and illness data being under the microscope and incorporated into OSHA’s enforcement efforts. Indeed, as COVID-19 recordkeeping continues to drive up DART rates for a number of employers due to the need for COVID-19 positive employees to isolate, more may be pulled in OSHA’s SST Program. Thus, it is important for employers to understand the changes possibly to come in e-recordkeeping, as well as what those changes could mean in the context of evaluating and recording/reporting injuries and illnesses.

Participants in this webinar will learn about: Continue reading

[Webinar] A Deep Dive Into Periodic Lockout/Tagout Inspections

On Wednesday, August 17, 2022 at 1 p.m. EST, join Aaron R. Gelb and Beeta B. Lashkari for a webinar regarding A Deep Dive Into Periodic Lockout/Tagout Inspections.

Year in and year out, OSHA’s Lockout/Tagout (Energy Control) standard is one of the most frequently cited standards. With the National Emphasis Program on Amputations continuing in 2022, employers are subject to inspections focusing on their LOTO programs and practices even if there are no serious injuries or complaints made about them. With increased scrutiny comes a greater risk of citations—particularly repeat violations—which can lead to employers being placed in OSHA’s Severe Violator Enforcement Program. Despite being such an important standard, OSHA’s LOTO rule continues to be one of the least understood. This webinar will take a deep dive into arguably one of the most confusing (not to mention, one of the most frequently cited) aspects of the LOTO rule – periodic inspections.

Participants in this webinar will learn about: Continue reading

OSHA Launches an Enforcement National Emphasis Program For Outdoor and Indoor Heat Illness Prevention

By Beeta Lashkari and Eric Conn

Last week, on April 12, 2022, OSHA announced that it has launched an enforcement National Emphasis Program (“NEP”) for Outdoor and Indoor Heat-Related Hazards.  The Heat Illness NEP applies to both indoor and outdoor workplaces, including general industry, construction, maritime, and agriculture.  The NEP is already in effect – as of April 8th – even before OSHA made its April 12th announcement, and will remain in effect for three years unless canceled or extended by a superseding directive.

Secretary of Labor Walsh, joined by Vice President Harris, announced this new enforcement program at a speech at the Sheet Metal Workers Local 19 Training Center in Philadelphia with these remarks:

“Tragically, the three-year average of workplace deaths caused by heat has doubled since the early 1990s. These extreme heat hazards aren’t limited to outdoor occupations, the seasons or geography. From farm workers in California to construction workers in Texas and warehouse workers in Pennsylvania, heat illness – exacerbated by our climate’s rising temperatures – presents a growing hazard for millions of workers….  This enforcement program is another step towards our goal of a federal heat standard. Through this work, we’re also empowering workers with knowledge of their rights, especially the right to speak up about their safety without fear of retaliation.”

Below is an analysis of the mechanics of OSHA’s Heat Illness NEP: Continue reading

Washington’s New Safety Standard for Protecting Temporary Workers

By Aaron R. Gelb & Beeta B. Lashkari

Last Spring, Washington governor Jay Inslee signed into law Substitute House Bill (SHB) 1206, creating new duties for staffing agencies and worksite employers to protect the safety of temporary workers.  The law, codified at Revised Code of Washington (“RCW”) 49.17.490, went into effect on July 25, 2021, but received scant attention from the media or safety professionals—no doubt, in large part, due to an ongoing focus on the COVID-19 pandemic.  Nonetheless, given the extent to which many employers rely on temporary workers to staff their operations, this new law is one that covered employers should pay attention to and develop a plan to help ensure compliance.  Below is a summary of the scope and requirements of the new standard, as well best practice tips for covered employers.

Who Is Covered by the New Standard?

The new standard generally applies to staffing agencies and worksite employers, as defined by the standard:

  • A “staffing agency” is an employer as defined in Chapter 49.17 of the RCW and North American industry classification system (NAICS) 561320 and means an organization that recruits and hires its own employees and temporarily assigns those employees to perform work or services for another organization, under such other organization’s supervision, to:
    • (i) [s]upport or supplement the other organization’s workforce;
    • (ii) provide assistance in special work situations including, but not limited to, employee absences, skill shortages, or seasonal workloads; or
    • (iii) perform special assignments or projects.
  • “Worksite employer” is an employer as defined in Chapter 49.17 of the RCW and means an individual, company, corporation, or partnership with which a staffing agency contracts or otherwise agrees to furnish persons for temporary employment in the industries described in sectors 23 and 31 through 33 of the North American industry classification system.

Importantly, per the definition of “worksite employer” Continue reading

OSHA’s 2021 Year in Review and 2022 Forecast [Webinar Recording]

On January 12, 2022, the Partners in Conn Maciel Carey’s national OSHA Practice Group on presented the kickoff event in Conn Maciel Carey’s 2022 OSHA Webinar series.  This first program of the year, as is tradition, was OSHA’s 2021 Year in Review and 2022 Forecast.

As we kickoff Year 2 of the Biden Administration, it is time to look back and take stock of what we learned from and about OSHA during the very eventful year that just concluded.  And more importantly, it is time to look ahead and assess what to expect from OSHA now that OSHA’s full senior leadership team is in place and ready to put its stamp on the agency.

In this webinar, the Partners in Conn Maciel Carey’s national OSHA Practice Group reviewed OSHA enforcement, rulemaking, and personnel developments from 2021. We also discussed the top OSHA issues employers should monitor and prepare for in the New Year.

Participants in this webinar learned about: Continue reading

Conn Maciel Carey’s 2022 OSHA Webinar Series

ANNOUNCING CONN MACIEL CAREY’S
2022 OSHA WEBINAR SERIES

A full year into the Biden Administration, the senior leadership team at federal OSHA is set, the agency’s new regulatory agenda has been revealed, and the enforcement landscape has begun to take shape, revealing a dramatic shift in priorities, including stronger enforcement, higher budgets and more robust policies protecting workers, and a renewed focus on new rulemaking. Following an Administration that never installed an Assistant Secretary of Labor for OSHA, relied almost exclusively on the General Duty Clause to enforce COVID-19 safety measures, drastically curtailed rulemaking, and declined to issue an emergency COVID-19 standard, the pendulum swing at OSHA has already been more pronounced than during past transitions. Accordingly, it is more important now than ever before for employers to stay attuned to developments at OSHA.

Conn Maciel Carey LLP’s complimentary 2022 OSHA Webinar Series, which includes monthly programs (sometimes more often, if events warrant) put on by the OSHA-focused attorneys in the firm’s national OSHA Practice Group, is designed to give employers insight into developments at OSHA during this period of unpredictability and significant change.

To register for an individual webinar in the series, click on the link in the program description below, or to register for the entire 2022 series, click here to send us an email request so we can get you registered.  If you missed any of our programs over the past seven years of our annual OSHA Webinar Series, here is a link to a library of webinar recordings.  If your organization or association would benefit from an exclusive program presented by our team on any of the subjects in this year’s webinar series or any other important OSHA-related topic, please do not hesitate to contact us.


2022 OSHA Webinar Series – Program Schedule

Continue reading

Process Safety Update: The Latest with OSHA PSM & EPA RMP [Webinar Recording]

On Tuesday, November 16, 2021, Micah Smith and Beeta Lashkari presented a webinar regarding Process Safety Update: The Latest with OSHA PSM & EPA RMP.

After the Obama/Biden Administration’s efforts to “modernize” the way the federal government regulates chemical process safety, we saw much that rolled back, stalled, or amended as the Trump Administration implemented a de-regulatory agenda. As the regulatory ping-pong ball bounces back the other direction, the regulated community is left in limbo to see what will become of OSHA’s and EPA’s plans for process safety.

As the Biden Administration begins to make its mark in this arena, we are tracking rulemaking and enforcement from OSHA, EPA and the CSB, and whether and how far these agencies will go back to the previous policies to modernize the applicable regulations.

This webinar reviewed Continue reading

OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard Set to Issue Imminently

By Conn Maciel Carey LLP’s COVID-19 Task Force

OSHA’s COVID-19 Vaccination and Testing emergency temporary standard is expected to be released imminently, likely Wednesday or Thursday of this week.

OMB Has Concluded Its Review of the ETS:

This morning, OMB’s website updated again, but this time, it was not to add more EO 12866 stakeholder meetings to the calendar, it was to declare OMB’s review of the ETS “concluded.”  Here are two screenshots from OMB’s website.  The first shows the list of active DOL rulemakings at OMB for some form of review, and it identifies the status for the COVID-19 vaccination and testing ETS as “Concluded.”

The second one provides a little more detail, including these notes about the ETS:  “Received Date: 10/12/2021” and “Concluded Date: 11/01/2021.”

The Dept. of Labor Gives Some Clues About What to Expect in the ETS:

Additionally, a Department of Labor spokesman shared this statement this morning:

“On November 1, the Office of Management and Budget completed its regulatory review of the emergency temporary standard. The Federal Register will publish the emergency temporary standard in the coming days. [OSHA] has been working expeditiously to develop an emergency temporary standard that covers employers with 100 or more employees, firm- or company-wide, and provides options for compliance…. Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose either to get vaccinated or to undergo regular COVID-19 testing and wear a face covering at work. The ETS also requires employers to provide paid time to workers to get vaccinated and paid sick leave to recover from any side effects.”

The DOL statement provides some useful insight about what will be in the final rule and when we will see it.  First, OSHA did stick with the 100-employee threshold that the President identified in his announcement and new COVID-19 Action Plan from September 9th.  There was always a chance that OSHA would  scrapped that employee-count trigger as they wrote the rule and instead made it apply to everyone.  We also see in this DOL statement that, as expected, the 100-employee count will be Continue reading

Update on Fed OSHA’s COVID-19 Vaccination and Testing Emergency Rulemaking

By Conn Maciel Carey LLP’s COVID-19 Task Force

Although it has only been 10 days since OSHA delivered a proposed COVID-19 Vaccination and Testing emergency temporary standard (ETS) to the White House’s Office of Management and Budget (OMB), a lot has happened.  We have seen bizarre attempts by groups of individuals to try to muck up the OMB review process.  The US Department of Labor sent letters to certain states informing them that federal OSHA is considering revoking their approved status to operate their State OSH Plans.  And, President Biden’s nominee to Head OSHA, Doug Parker, is scheduled to be confirmed early next week.  Here is a summary of what we’ve been seeing and where we are now.

When Will the Vaccination and Testing ETS be Issued? 

The stakeholder input process at OMB’s Office of Information and Regulatory Affairs (OIRA) is well underway.  OMB’s website reflecting the schedule of Executive Order 12866 meetings is normally only updated once per day, making it hard to nail down when OMB intends to conclude its review of the proposed ETS.  As of the end of last week, we heard that OMB might conclude its review process as early as last Friday, October 12th, but every day, OMB’s website updated to include more and more stakeholder meetings.  As of this morning (Friday, October 22nd), the OMB website updated again, and it did add some new scheduled OIRA EO 12866 stakeholder meetings (now up to 68 meetings), but all of the new meetings have been scheduled to be completed today by 3 PM.

It is beginning to look to us like OMB will have “completed” its review of the ETS by the end of the day today, so at this point, we think OSHA could release the pre-publication package revealing the regulatory text and the preamble of the final ETS, as early as the close of business today.

We have also been hearing Continue reading

New York HERO Act: COVID-19 Designation as Highly Contagious Communicable Disease Extended Until October 31, 2021

As we previously reported, on September 6, 2021, the New York State Commissioner of Health issued a designation determining COVID-19 to be “a highly contagious communicable disease that presents a serious risk of harm to the public health in New York State.”  Such designation triggered requirements on employers to activate their airborne infectious disease exposure prevention plans in accordance with the New York Health and Essential Rights Act (“HERO Act”).

The New York State Department of Labor (“NYDOL”) issued the HERO Act Standards and model plan, which set forth the minimum requirements employers must provide to address exposure to airborne infectious diseases in the workplace.  As explained in our prior blog post, those requirements include:

  • employee health screenings;
  • employee face coverings;
  • personal protective equipment;
  • workplace hand hygiene stations and protocols, which includes adequate break times for employees to wash their hands;
  • cleaning and disinfecting shared equipment and frequently touched surfaces and high-risk areas;
  • social distancing;
  • complying with mandatory or precautionary orders of isolation or quarantine issued to employees;
  • air flow, exhaust ventilation, or other special engineering design requirements;
  • designation of one or more supervisors with the responsibility to ensure compliance with the prevention plan and any applicable federal, state, or local laws, rules, or guidance on preventing the spread of an airborne infectious disease;
  • notice to employees; and
  • verbal review of the infectious disease standard, employer policies, and employee rights under the NY HERO Act.

Employers were required to adopt a model plan Continue reading

OSHA Launches Regional Emphasis Program Focused on Storage Tank Cleaning Operations

By Aaron R. Gelb

On August 2, 2021, OSHA announced a new Regional Emphasis Program (“REP”) focused on transportation tank cleaning operations in the rail and truck shipping industries.  This is the second REP launched in Region 5 in less than a month; on June 14, 2021, OSHA commenced an REP to address hazardous noise levels in the Midwest. Employers who perform tank cleaning operations in Region 5, which covers Illinois, Ohio, Wisconsin, Michigan, Minnesota and Indiana, would be well-advised to dust off their copy of Conn Maciel Carey LLP’s OSHA Inspection Toolkit and take the necessary steps to ensure they are ready for the inspections that will begin before the end of the year.

Why Is OSHA Targeting Tank Cleaning Operations?

In the REP and accompanying press release, OSHA places a special emphasis on the dangers posed by the exposure to toxic fumes from cleaning chemicals or stored products that can build up inside a storage tank, as well as risks of fire or explosion when a worker must handle volatile materials in confined spaces.  Additionally, OSHA warns that the workers cleaning these tanks may “face many serious and potentially deadly hazards caused by toxic fumes from chemicals, decaying crops, waste and other substances that can expose workers to suffocation, fires and explosions.” OSHA also highlighted several fatal accidents that occurred in the Midwest, noting that Region 5 has investigated 23 worker deaths and 97 incidents in the transportation and tank cleaning industries since 2016.  According to OSHA, the hazards most often found during these inspections involved the failure to prevent the inhalation of harmful substances and to follow procedures for permit-required confined space requirements.

Which Employers Will Be Targeted? Continue reading

NY State Health Commissioner Designates COVID-19 as a Highly Contagious Disease That Presents Serious Risk, Prompting Employers’ HERO Act Plans to be Activated

By Conn Maciel Carey’s COVID-19 Task Force

On Labor Day, the New York State Commissioner of Health designated COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to public health.  Under the New York HERO Act, employers must either adopt the New York State Department of Labor’s (“NYDOL”) model prevention plan or develop and establish an alternative prevention plan that equals or exceeds the requirements in the NYDOL’s model plan.

The NYDOL issued the HERO Act Standards and model plan, which set forth the minimum requirements employers must provide to address exposure to airborne infectious diseases in the workplace, on July 7, 2021.  As explained in our prior blog post, those requirements include:

  • employee health screenings;
  • employee face coverings;
  • personal protective equipment;
  • workplace hand hygiene stations and protocols, which includes adequate break times for employees to wash their hands;
  • cleaning and disinfecting shared equipment and frequently touched surfaces and high-risk areas;
  • social distancing;
  • complying with mandatory or precautionary orders of isolation or quarantine issued to employees;
  • air flow, exhaust ventilation, or other special engineering design requirements;
  • designation of one or more supervisors with the responsibility to ensure compliance with the prevention plan and any applicable federal, state, or local laws, rules, or guidance on preventing the spread of an airborne infectious disease;
  • notice to employees; and
  • verbal review of the infectious disease standard, employer policies, and employee rights under the NY HERO Act.

Employers were required to adopt a model plan or develop an individualized plan that met the Act’s requirements by August 5, 2021 and to provide the plan to employees by September 4, 2021.  Implementation of the plan, however, is only required whenever the Commissioner of Health designates an airborne infectious disease as a highly contagious communicable disease that presents serious risk of harm to public health.  As such, implementation of HERO Act plans is a bit of a moving target that employers must constantly monitor.  With total cases reaching an all-time low during the pandemic earlier this summer, the NYDOL clarified that the Commissioner of Health had not (yet) designated COVID-19 as such a disease, thus making the HERO Act Standards unenforceable.  That decision, however, has since changed as the highly transmissible Delta variant rages on and over 97% of US counties are now at substantial or high levels of community transmission.

Since the Commissioner of Health has made a designation, employers must now activate their written airborne infectious disease plans.  The HERO Act Standards detail additional steps employers must take when implementing their airborne infectious disease exposure prevention plan, including immediately reviewing their current plan; updating the plan to incorporate current information, guidance and any mandatory requirements, as appropriate; and finalizing the plan.  Employers are also required to conduct a “verbal review” of the plan’s protocols and employee rights under the Act, which is akin to a training requirement.  Finally, employers must distribute the plans to employees, post a copy of the plan in the workplace, and ensure that a copy of the plan is accessible during all work shifts.

Although it is unclear whether employers will be provided some leeway/time to ensure that their plans are reviewed, updated, and implemented in the workplace, employers should promptly take steps to comply with the Act.  As the Delta variant continues to surge throughout America, there will almost certainly be updated guidance regarding these plans from the NYDOL in the near future.

Fed OSHA’s COVID-19 ETS: What You Need to Know About Face Masks, Respiratory Protection and Other PPE

Today’s topic on the Fed OSHA COVID-19 ETS is face masks, respiratory protection, and other personal protective equipment (“PPE”)…what is required and when.

29 C.F.R. Section 1910.502(f) of the ETS establishes the personal protective equipment (“PPE”), including respiratory protection, requirements that must be implemented at covered facilities.  This summary describes these requirements.

Face Masks

The standard does not mandate that all employees wear N95 or other higher-level respiratory protection at all times.  Rather, it allows employees who work at covered facilities but do not have exposures to suspected or confirmed COVID-19 persons to wear face masks, defined as “surgical, medical procedure, dental, or isolation mask[s] that [are] FDA-cleared, authorized by an FDA EUA, or offered or distributed as described in an FDA enforcement policy.”  Face masks must be worn on all employees indoors or when in a vehicle with another person (for work purposes).  The face masks must be provided at no cost to the employee, and the employer must ensure that employees change their masks at least once per day (or when they are soiled, damaged or for other patient-care related reasons).

Certain exceptions to the requirement to wear face masks are allowed under the ETS, including when employees:

  • Are alone in a room
  • Are eating or drinking (and remain 6 feet from others or are separated by a physical barrier)
  • Have a medical condition, disability or religious beliefs that prevents use
  • Would risk serious injury or death by their use (in other words, where mask use poses a greater hazard)
  • Need to see another’s mouth when communicating (e.g., deaf employees)

In the above situations (except when alone or eating/drinking), the employer must ensure that employees are provided with and use Continue reading

Fed OSHA’s COVID-19 ETS: What You Need to Know About Cleaning and Disinfecting

By Conn Maciel Carey’s COVID-19 Task Force

Today’s topic is cleaning and disinfecting…when cleaning/disinfecting is required and what needs to be cleaned/disinfected.

29 C.F.R. Section 502(j) of the ETS establishes the cleaning and disinfecting requirements that must be implemented at covered facilities. This summary describes these requirements.

In patient care areas, resident rooms, and for medical devices and equipment, the employer must follow standard practices for cleaning and disinfection of surfaces and equipment in accordance with CDC’s “COVID-19 Infection Prevention and Control Recommendations” and CDC’s “Guidelines for Environmental Infection Control,” both of which the ETS incorporates by reference.  Under the ETS and CDC Guidance, cleaning refers to removal of dirt and germs using soap and water or other cleaning agents while disinfecting means using an EPA-registered, hospital-grade disinfectant included on EPA’s “List N” in accordance with manufacturers’ instructions.

Most healthcare settings have been following this CDC Guidance throughout the pandemic, so OSHA’s incorporation of these requirements into the ETS likely requires nothing new to be done when cleaning and disinfecting.  Some of the more fundamental requirements Continue reading

Fed OSHA’s COVID-19 ETS: What You Need to Know About Physical Distancing

By Conn Maciel Carey’s COVID-19 Task Force

Today’s topic is physical distancing…when distancing is required and ways to maintain distance.

29 C.F.R. Section 1910.502(h) establishes the requirements employers covered by the ETS must follow regarding physical distancing.  Employers must ensure that each employee is separated from all other people by at least 6 feet when indoors, unless the employer can demonstrate that it is not feasible to remain distant to accomplish a specific activity (e.g., hands-on medical care).  This summary describes the physical distancing requirements of the ETS.

To determine when and where physical distancing is necessary in the workplace, employers must rely on the results of their hazard assessments.  Places and times where people may congregate or come in contact with one another must be identified and addressed, regardless of whether employees are performing an assigned work task or not.  For instance, it is typical that employees congregate during meetings or training sessions, as well as in and around entrances, bathrooms, hallways, aisles, walkways, elevators, breakrooms or eating areas, and waiting areas.  All of these areas must be identified and addressed as part of the hazard assessment.

After identifying potential areas where employees may congregate and therefore where concern regarding workplace exposure is heightened, employers must develop and implement policies and procedures to comply with the 6 feet physical distancing requirements.

The ETS establishes several exceptions to the physical distancing requirements of the standard. Physical distancing is not required for employees who are fully vaccinated when those employees are in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.  (Face masking and physical barriers also are not required in this situation.)

The physical distancing requirement also does not apply Continue reading

New York Department of Labor Issues HERO Act Standards – What is Required of Employers?

As previously discussed, the NY HERO Act requires all New York employers to implement workplace health and safety protocols in response to a “highly contagious communicable disease,” as designated by the New York State Commissioner of Health.  On July 7, 2021, the New York Department of Labor finally released the anticipated HERO Act standards and industry-specific model plans.

Notably, the HERO Act standards only apply in relation to “an airborne infectious agent or disease designated by the Commission of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health” and do not apply to “any employee within the coverage of a temporary or permanent standard adopted by the Occupational Safety and Health Administration setting forth applicable standards regarding COVID-19 and/or airborne infectious agents and diseases.”

The standards and industry-specific model plans include requirements cover the following topics:

  1. employee health screenings,
  2. face coverings,
  3. physical distancing,
  4. workplace hygiene stations,
  5. regular cleaning and disinfecting of shared equipment and surfaces and housekeeping,
  6. personal protective equipment,
  7. compliance with quarantine guidelines in cases of exposure and infection response during a designated outbreak,
  8. advanced engineering requirements, such as air flow and exhaust systems,
  9. compliance with local laws,
  10. the appointment of supervisory employees to maintain enforcement of these new standards,
  11. regular reviews of employer policies, and
  12. anti-retaliation provisions

Although the NY Department of Health continues to grapple with COVID-19 pandemic, interestingly, the NY Department of Labor has clarified that the Commissioner of Health has not designated COVID-19 as a highly contagious communicable disease.  Thereforethe HERO Act standards are not currently being enforced.

This does not completely relieve employers from Continue reading

Fed OSHA’s COVID-19 ETS: What You Need to Know About Physical Barriers

By Conn Maciel Carey’s COVID-19 Task Force

Today’s topic is physical barriers…what has to be installed and where they have to be installed.

29 C.F.R. Section 1910.502(i) of the ETS establishes a requirement for physical barriers to be installed under certain circumstances. Solid barriers must be installed at each fixed work location outside of direct patient care areas where an employee is not separated from all other people by at least 6 feet of distance, except where the employer can demonstrate it is not feasible to do so or where the exception for vaccinated employees applies.  This summary describes the standard’s requirements for physical barriers.

Where barriers are required, they must be of sufficient height and width and situated in a manner to block face-to-face pathways between individuals based on where each person would normally stand or sit. They must either be easily cleanable or disposable.  While the ETS does not specify the type of material that must be used for physical barriers, OSHA explains in the preamble that the material must be impermeable to infectious droplets that are transmitted when an infected individual is sneezing, coughing, breathing, talking, or yelling – such as plastic or acrylic partitions. The barriers must be designed, constructed, and installed to prevent droplets from reaching employees when they are in their normal sitting or standing location relative to the workstation. OSHA recognizes that effective design and installation of physical barriers will differ among workplaces based on job tasks, work processes, potential users, and the physical layout of the work area.

In terms of where barriers need to be installed and where they don’t, the ETS Continue reading

Fed OSHA’s COVID-19 ETS: What You Need to Know About Reporting

By Conn Maciel Carey’s COVID-19 Task Force

Many of you are likely knee-deep in ensuring that your facilities are in compliance with the various components of OSHA’s new Emergency Temporary Standard, with the July 6th compliance deadline upon us.  Our CMC COVID-19 Taskforce has reviewed all 1,000+ pages of OSHA’s ETS and supporting documentation and has as good an understanding of what is required as one can have – although OSHA has left some big question marks and caused a fair amount of head scratching in some areas.  To help you understand precisely what is required of your covered facilities, and to assist with compliance implementation, we have prepared summaries of the major requirements of the ETS.  Look for our summaries here each day over the next week.  The devil is in the details, however, so please reach out if you would like a more nuanced understanding of how the standard applies to your particular facility and what steps you need to take to ensure you are in compliance – and avoid an enforcement action under OSHA’s COVID-19 National Emphasis Program.

Here is a summary of the ETS requirements for reporting:

Reporting

29 C.F.R. Section 1910.502(r) revises the fatality and hospitalization reporting requirements for COVID-19 cases.  This summary describes the new reporting requirements.

For fatalities, covered employers must report all work-related COVID-19 fatalities within 8 hours of learning of the reportable fatality.  Unlike the requirement to report work-related fatalities under the existing injury and illness reporting standard (29 C.F.R. Section 1904.39), the reporting obligation is not limited to fatalities that occur within 30 days of exposure.

This means if these two factors are present, the case is reportable:

  • The employee died from a confirmed case of COVID-19; and
  • The cause of death was a work-related exposure to COVID-19.

For hospitalizations, covered employers must report all work-related COVID-19 in-patient hospitalization within 24 hours of learning of the reportable in-patient hospitalization.  Similar to fatalities, OSHA did not include in the COVID-19 reporting standard the temporal boundary included in the existing Section 1904.39 reporting standard.  Continue reading

Fed OSHA’s COVID-19 ETS: What You Need to Know About Recordkeeping

By Conn Maciel Carey’s COVID-19 Task Force

Many of you are likely knee-deep in ensuring that your facilities are in compliance with the various components of OSHA’s new Emergency Temporary Standard, with the July 6th compliance deadline upon us.  Our CMC COVID-19 Taskforce has reviewed all 1,000+ pages of OSHA’s ETS and supporting documentation and has as good an understanding of what is required as one can have – although OSHA has left some big question marks and caused a fair amount of head scratching in some areas.  To help you understand precisely what is required of your covered facilities, and to assist with compliance implementation, we have prepared summaries of the major requirements of the ETS.  Look for our summaries here each day over the next week.  The devil is in the details, however, so please reach out if you would like a more nuanced understanding of how the standard applies to your particular facility and what steps you need to take to ensure you are in compliance – and avoid an enforcement action under OSHA’s COVID-19 National Emphasis Program.

Here is a summary of the ETS requirements for recordkeeping:

Recordkeeping

29 C.F.R. Section 1910.502(q) establishes a new recordkeeping obligation applicable to covered employers requiring the creation and maintenance of a dedicated COVID-19 Log, while leaving in place the existing requirements applicable to all employers (including employers covered by the ETS) to record workplace COVID-19 cases that meet the Section 1904 recordkeeping criteria threshold (days away from work, etc.) on the employer’s OSHA 300 Log.  It also establishes recordkeeping obligations for the COVID-19 Plan that is required by Section 1910.502(c) of the ETS.  This summary describes the new requirements for COVID-19 recordkeeping.

The ETS requires covered employers — unless they have 10 or fewer employees in the entire company — to create, maintain, and make available to regulators COVID-19 records. Most notably, this requires covered employers to maintain a COVID-19 Log on which they must record every instance of a COVID-19-positive employee, whether or not the illness is work-related¸ with the limited exception of employees who exclusively telework.  Unlike an OSHA 300 Log, for which employers have seven days to record an injury or illness, positive COVID-19 cases must be recorded on the COVID-19 Log within 24 hours of learning of the positive diagnosis.  (Note that the 10 or fewer employee exemption applies to the new COVID-19 Log recordkeeping obligations only and not to a covered employer’s obligation to report work-related COVID-19 fatality or in-patient hospitalizations.) Continue reading

Fed OSHA’s COVID-19 ETS: What You Need to Know About Hazard Assessments and COVID-19 Plans

By Conn Maciel Carey’s COVID-19 Task Force

Many of you are likely knee-deep in ensuring that your facilities are in compliance with the various components of OSHA’s new Emergency Temporary Standard, with the July 6th compliance deadline nearly upon us.  Our CMC COVID-19 Taskforce has reviewed all 1,000+ pages of OSHA’s ETS and supporting documentation and has as good an understanding of what is required as one can have – although OSHA has left some big question marks and caused a fair amount of head scratching in some areas.  To help you understand precisely what is required of your covered facilities, and to assist with compliance implementation, we have prepared summaries of the major requirements of the ETS.  Look for our summaries here each day over the next week.  The devil is in the details, however, so please reach out if you would like a more nuanced understanding of how the standard applies to your particular facility and what steps you need to take to ensure you are in compliance – and avoid an enforcement action under OSHA’s COVID-19 National Emphasis Program.

One of the first steps employers must take is to conduct a hazard assessment of your operations to determine those areas where risk of virus transmission exists, and to then develop a response plan for dealing with those risks.  The hazard assessment findings and your plans for transmission mitigation must be incorporated into a written COVID-19 Plan.  Here is a summary of the ETS requirements for conducting the hazard assessment and preparing a written plan:

29 C.F.R. Section 1910.502(c) requires all employers covered by the ETS to develop and implement a COVID-19 Plan for each workplace. If the employer has more than 10 employees, the Plan must be written. This summary describes the requirements associated with the COVID-19 Plan.

Before developing the Plan, employers must conduct a workplace specific hazard assessment for the purpose of identifying and understanding where potential COVID-19 hazards exist and what controls must be implemented to reduce those hazards. Employers must inspect the entire workplace and the hazard assessment should: Continue reading

New Guidance Recommends Employers Engage with Employees and Unions to Mitigate COVID-19 in the Workplace

By: Conn Maciel Carey’s COVID-19 Taskforce

On June 10th, federal OSHA published significant updates to its principal workplace COVID-19 guidance – Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.  This was an update to the original version that issued on January 29, 2021 in response to Pres. Biden’s Day 1 OSHA Executive Order, and the first time it has been updated since the COVID-19 vaccines became widely available.

At its core, OSHA’s new guidance was updated to align with CDC’s May 13, 2021 guidance regarding relaxing requirements for vaccinated individuals and advises that, unless otherwise required by another jurisdiction’s laws, rules, or regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure.

To the extent workers are not vaccinated or are otherwise at risk, however, OSHA states that employers must continue to implement controls to help protect them, include:

  • separating from the workplace all infected people, all people experiencing COVID symptoms, and any unvaccinated people who have had a close contact with someone with COVID-19
  • implementing physical distancing
  • maintaining ventilation systems, and
  • enforcing the proper use of face coverings or PPE when appropriate.

Importantly, OSHA recommends employers engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated and otherwise at-risk workers and mitigate the spread of COVID-19 by taking some combination of these actions: Continue reading

“What’s The Hazard” Podcast – Special Guest Eric Conn of Conn Maciel Carey

Conn Maciel Carey’s Co-Founder and OSHA Practice Chair, Eric J. Conn, made a special guest appearance on the most recent episode of the “What’s The Hazard” safety podcast series hosted by Doug Fletcher, of Fletcher Safety Consulting.

During this interview, Eric shared an OSHA defense counsel’s insight about the highly anticipated Federal OSHA COVID-19 Emergency Temporary Standard, and tips for employers about managing OSHA inspections, including the most important steps to prepare for inspections, common mistakes employers make during inspections, and strategies to achieve successful outcomes at the end of inspections.

Click here to listen to the full podcast.

OSHA Announces COVID-19 National Emphasis Program and Updated Interim Enforcement Response Plan

By Conn Maciel Carey’s COVID-19 Task Force

While OSHA is expected today, March 15th, to confirm that it will issue a COVID-19 Emergency Temporary Standard (ETS), and to get that ETS released within a month, there were also a couple of important developments last week regarding OSHA’s approach to COVID-19 enforcement.

On Friday afternoon, March 12th, OSHA launched a COVID-19 National Emphasis Program (“COVID-19 NEP”) to:

“focus its inspection and enforcement efforts on companies that put the largest number of workers at serious risk of contracting the virus,” as well as prioritizing employers that “retaliate against workers for complaints about unsafe or unhealthy conditions, or for exercising other rights protected by federal law.”

This move by OSHA was not unexpected.  As we previously shared, Pres. Biden’s Day-1 OSHA Executive Order on Protecting Worker Health and Safety (the same EO that called for the COVID-19 ETS), separately called for OSHA to issue a COVID-19 NEP.

Goals of the COVID-19 NEP

In today’s announcement about the COVID-19 NEP, OSHA explained that “the goal of this NEP is to significantly reduce or eliminate worker exposures to SARS-CoV-2 by targeting industries and worksites where employees may have a high frequency of close contact exposures and therefore, controlling the health hazards associated with such exposures.”  The NEP includes “an added focus to ensure that workers are protected from retaliation” and are accomplishing this by preventing retaliation where possible, distributing anti-retaliation information during inspections and outreach opportunities, as well as promptly referring allegations of retaliation to the Whistleblower Protection Program.

Industries and Workplaces Covered by the NEP

OSHA also explained that inspections under the COVID-19 NEP will include some follow-up inspections of worksites previously inspected by OSHA in 2020, but principally will focus on establishments in industries identified on targeting lists OSHA will develop now.  The NEP covers a broader set of workplaces than seems consistent with the goals of the NEP.  The directive creates three different lists of covered workplaces – high risk healthcare establishments and high risk non-healthcare establishments (which is how the NEP has been described), and also a third list of “Supplemental Industries for non-Healthcare in Essential Critical Infrastructure” that does not have the same high exposure risk characteristics of the first two lists.  The industries covered by these three lists are included at the bottom of this email.  Area Offices may also “add establishments to the generated master lists based on information from appropriate sources (e.g., local knowledge of establishments, commercial directories, referrals from the local health department, or from other federal agencies with joint jurisdictions, such as the Centers for Medicare & Medicaid Services (CMS) and the U.S. Department of Agriculture (USDA), media referrals or previous OSHA inspection history).” Continue reading