Coalition to Work on Federal OSHA’s COVID-19 Emergency Rulemaking

Background

In his first day in office, President Biden issued an Executive Order (“EO”) that directed Fed OSHA to revisit its strategy for regulating and enforcing workplace spread of COVID-19.  Among other actions, the EO directed OSHA to consider whether a federal COVID-19 emergency temporary standard (“ETS”) is necessary.  We believe it is a foregone conclusion OSHA will issue an ETS.  The lack of an explicit mandate to do so is likely more a formality than a real open question; i.e., the President prefers the appearance that the workplace safety experts at OSHA made the decision, but the White House has made clear what it expects.

Assuming OSHA determines an ETS is needed, the EO sets a March 15th deadline for OSHA to finalize and issue the rule, so OSHA is surely already working intensely on a COVID-19 ETS.  Although OSHA has not yet confirmed its intent to develop an ETS, we believe it prudent to begin our advocacy efforts as soon as possible, as there will likely be a small pre-rule window to impact the rule before it issues.

The question remains, though, what will a Fed OSHA COVID-19 ETS look like?  We need look no further than the examples set by the State OSH Plans that already have issued COVID-19 ETSs to see the difference between a manageable, effective rule (see Virginia OSHA’s ETS) and a daunting, sometimes unworkable rule (see Cal/OSHA’s ETS). Continue reading

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

On January 26th, Andrew J. SommerFred Walter and Megan S. Shaked presented 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 provided 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 learned about:

Continue reading

Fed OSHA Issues Updated COVID-19 Guidance, As Mandated by Pres. Biden’s Day 1 OSHA Executive Order

By Conn Maciel Carey’s COVID-19 Task Force

As we shared earlier this month, President Biden’s Day 1 OSHA Executive Order On Protecting Workers from COVID-19, directed federal OSHA to take 3 key actions:

  1. issue new COVID-19 guidance to protect workers within 2 weeks;
  2. consider whether to issue a COVID-19 emergency temporary standard (and to do so by March 15th); and
  3. enhance health and safety enforcement, including with a National Emphasis Program).

On Friday, January 29, 2021, OSHA delivered on the first of those mandates from the Executive Order, issuing a detailed set of new COVID-19 guidance for employers and workers entitled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.”

OSHA explained in its press release announcing the new guidance:

“The U.S. Department of Labor announced today that its Occupational Safety and Health Administration has issued stronger worker safety guidance to help employers and workers implement a coronavirus prevention program and better identify risks which could lead to exposure and contraction. Last week, President Biden directed OSHA to release clear guidance for employers to help keep workers safe from COVID-19 exposure.”

We first heard about the new guidance during a Small Business Administration Labor and Safety Round Table on Friday morning, when the new Acting Head of OSHA, Jim Frederick, and new Senior Advisor, Ann Rosenthal, gave an update about the new Administration’s priorities and plans for OSHA.  Mr. Frederick said the updated guidance is just “OSHA’s first step to re-establishing that OSHA is advocating for workers.”

As it comes still only in the form of guidance, the document technically does not create new legal obligations, but OSHA under the Biden Administration has already made clear that COVID-19 enforcement will be a priority, and unless (or really, until) it issues an emergency temporary standard, this guidance will almost certainly be relevant to OSHA’s enforcement efforts.  For example, like OSHA does in so many areas without existing standards, it is likely to point to this guidance to establish recognition of a serious hazard and the existence of feasible means of abatement for general duty clause citations.  Likewise, it could point to this guidance to challenge employer’s PPE determinations. Continue reading

What Employers Need to Know about the Pay and Benefits Continuation Elements of Cal/OSHA’s COVID-19 Emergency Rule

By Mark TrappAndrew Sommer, and Beeta Lashkari

On November 30, 2020, Cal/OSHA issued its final COVID-19 Emergency Temporary Standard (“ETS”), with all of its provisions effective immediately.  One of those provisions — the exclusion pay and benefits continuation requirements — has been at the center of much controversy.

Typical among these COVID-19 emergency rules, the Cal/OSHA regulations requires employers to exclude from the workplace “COVID-19 cases” as well as employees who experience a “close contact” exposure (i.e., contact within 6′ of a confirmed case for a cumulative 15 minutes). But the Cal/OSHA ETS gets controversial at Sec. 3205(c)(10)(C), where it requires employers to continue and maintain those employees’ earnings, seniority, and all other employment rights and benefits, as if the employee had not been removed from the job. Where permitted by law and when not covered by workers’ compensation, employers may use employer-provided employee sick leave benefits, and may consider benefit payments from public sources, in determining how to maintain earnings, rights and benefits.

There are several important exceptions to these exclusion pay and benefits continuation requirements.  For example, the ETS provides that the provision does not kick in for any period of time when the employee is not able to work for reasons other than protecting persons at the workplace from possible COVID-19 transmission.  Likewise, the pay and benefits continuation provision does not apply where the employer can demonstrate the employee’s COVID-19 exposure is not work-related.  Finally, although not characterized as an “exception” specific to the exclusion pay and benefits provision, the ETS does also carve-out employees who can be temporarily reassigned to work where they do not have contact with other persons until applicable return-to-work requirements are met.

To provide some clarification about this pay and benefits continuation provision (as well as most other elements of the ETS), Cal/OSHA has issued two batches of FAQs, most recently updated January 8th.  There are now 10 FAQs related to exclusion pay and benefits, most notable among them: Continue reading

Virginia OSHA Modifies and Makes Permanent Its COVID-19 Regulation — Effective Jan. 27, 2021

By Dan C. Deacon and Eric J. Conn

On July 15, 2020, Virginia OSHA became the first State OSH agency in the nation to promulgate an Emergency Temporary Standard regulating COVID-19 in workplaces.  Last week, in a 9-4 vote, the Virginia Safety and Health Codes Board went a step further and finalized a “Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19,” making Virginia the first state in the country to issue a permanent rule regulating COVID-19 in the workplace.  The regulation has now been approved by Virginia Governor Ralph Northam (January 26, 2021) without change, and was published in a paper of public record (the Richmond Times-Dispatch) on January 27, 2021, so VOSH’s permanent infectious disease rule is officially in effect.

As we previously detailed, in its emergency rule form, the COVID-19 regulation required Virginia employers to:

  1. Develop and implement written COVID-19 infection control plans that include:
    • mandating social distancing measures
    • requiring face coverings for employees in customer-facing positions and wherever social distancing cannot be assured
    • providing frequent access to hand washing or hand sanitizing
    • regularly cleaning high-contact surfaces.
    • adopting robust sanitation procedures
    • ensuring appropriate air handling systems
    • implementing policies and procedures for isolating and removing known COVID-19 or suspected COVID-19 employees from the workplace, and for when it is safe for them to return to work (using either a symptom-based or test-based strategy depending on local healthcare and testing circumstances)
    • requiring all employees to be notified within 24 hours if a coworker tests positive for COVID-19
    • requiring notification to VOSH within 24 hours of the discovery of three or more employees testing positive within a 14-day period.
  1. Provide COVID-19 related training
  2. Provide employment protection for employees who wear their own PPE or who raise a reasonable concern about infection control.

The ETS also provided some flexibility based on evolving CDC guidance – stating that employers would avoid a citation where the employer complied with CDC guidelines to mitigate COVID-19, so long as the CDC recommended practice provides equal or greater protection than the requirement in the ETS.  The emergency standard was set to expire January 26, 2021, which is why VOSH moved so quickly to issue this permanent regulation.

The final Permanent Infectious Disease Rule Continue reading

REMINDER: Feb. 1st 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.  The requirement applies toall U.S. employers, except those with ten or fewer employees or those whose NAICS codes are in the set of very 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.

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

[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:

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

OSHA’s 2020 in Review and 2021 Forecast [Webinar Recording]

On January 14, 2020, the Partners in Conn Maciel Carey’s national OSHA • Workplace Safety Practice Group presented a webinar regarding Annual OSHA Update: 2020 In-Review and 2021 Forecast.

The ball has dropped, the confetti has been swept out of Times Square, and 2020 is in the books. It’s time to look back and take stock of what we learned from and about OSHA over the past year. More importantly, it is time to look ahead and assess what to expect from OSHA during the new year, and the start of a new Presidential term (either the 2nd Term of President Trump or new Administration under former Vice President Joe Biden). In this webinar, the Chair of Conn Maciel Carey’s national OSHA Practice Group will review OSHA enforcement, rulemaking, and leadership developments from 2020, and will discuss the top OSHA issues employers should monitor and prepare for in the New Year.

Participants in this webinar learned the following: Continue reading

Annual Increase in OSHA’s Civil Penalty Authority Kicks In January 15th

By Lindsay DiSalvo and Eric J. Conn

As of January 15, 2021, civil penalties for workplace safety and health violations issued by federal OSHA will increase by about 1.2%.  This increase reflects the annual inflation adjustment to civil monetary penalties initiated back in 2016.  As in prior years, though the increase seems minimal, the impact of these annual increases in the aggregate is significant, as OSHA’s civil penalty authority has nearly doubled from what it was just 5 years ago.

How the Annual Penalty Adjustments Started

Over the past several years, we have seen civil monetary penalty increases of about 1%-2% each year, but this all started with a huge spike in permissible penalty amounts through a statute covertly passed during the Obama Administration.  Specifically, in an effort to avert a government shutdown, outgoing Speaker of the House John Boehner and President Barack Obama made a backroom deal that ultimately took the form of the Bipartisan Budget Act of 2015.  That measure included the “Federal Civil Penalties Inflation Adjustment Improvements Act” – a significant and controversial statute that was essentially unknown (including by the folks within OSHA) and saw exactly zero seconds of debate on the floor.

The Act mandated that essentially all executive agencies increase their maximum civil penalty authority by the percent increase to the Consumer Price Index since the last time the agencies had raised their penalties.  As OSHA’s civil penalty authority had been stagnant for 25 years, the “catch-up” penalty increase was the most significant at OSHA.  Per the formula included in the statute, OSHA was required to increase its penalties on August 1, 2016 by nearly 80%.

In addition to the one-time 80% “catch up” increase that went into effect on August 1, 2016, the Federal Civil Penalties Inflation Adjustment Improvements Act required that agencies make automatic annual updates thereafter (by January 15th each year) to civil penalties based on inflation.  OSHA made its 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

[Webinar] OSHA’s 2020 in Review and 2021 Forecast

On Thursday, January 14th at 1:00 PM ET, plan to join the Partners in Conn Maciel Carey’s national OSHA • Workplace Safety Practice Group for a webinar regarding Annual OSHA Update: 2020 In-Review and 2021 Forecast.

The ball has dropped, the confetti has been swept out of Times Square, and 2020 is in the books. It’s time to look back and take stock of what we learned from and about OSHA over the past year. More importantly, it is time to look ahead and assess what to expect from OSHA during the new year, and the start of a new Presidential term (either the 2nd Term of President Trump or new Administration under former Vice President Joe Biden). In this webinar, the Chair of Conn Maciel Carey’s national OSHA Practice Group will review OSHA enforcement, rulemaking, and leadership developments from 2020, and will discuss the top OSHA issues employers should monitor and prepare for in the New Year.

Participants in this webinar will learn the following: Continue reading

President-Elect Biden Announces Boston Mayor Marty Walsh as his Choice for Secretary of Labor

By: Kara M. Maciel, Eric J. Conn, and Beeta B. Lashkari

On January 7, 2021, President-elect Joe Biden announced his much-awaited choice for nominee to serve as Secretary of Labor, selecting Boston Mayor Marty Walsh.  Mayor Walsh made his mark as a labor leader, ultimately heading the Building and Construction Trades Council from 2011 to 2013.   Mr. Walsh was also a full-time legislator, serving in the Massachusetts state legislature for some 17 years before being elected mayor in 2014.Picture1

If confirmed, it is expected that Mayor Walsh’s close personal friendship with President-elect Biden will elevate the importance of the Labor Department in President Biden’s cabinet, allowing a Secretary Walsh significant influence in the Administration.

Mayor Walsh’s strong ties to organized labor and his selection follows through on President-elect Biden’s campaign promise to give unions a stronger voice in labor policy in his Administration. Mayor Walsh has a reputation as a “pragmatic deal maker,” and he is respected in Massachusetts by both business and labor for his reasonable approach to solving labor and employment issues facing the state.

Of the many issues likely to be tackled by the Labor Department over the next few years, one of the first and most impactful will be the likely issuance of a federal COVID-19 Emergency Temporary Standard by OSHA.  President-elect Biden has pledged to have OSHA quickly address this issue.  If a federal ETS is promulgated, it would replace the current Administration’s approach, which has relied heavily on CDC and agency guidance, as well as existing OSHA standards, like the respiratory protection standard and recordkeeping rules, to issue citations.  With respect to COVID-19, under Mayor Walsh’s leadership, the City of Boston implemented a 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.

Continue reading

[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

VOSH and the Virginia Dept. of Health Adopt Big Changes to Employers’ COVID-19 Requirements

By Conn Maciel Carey’s COVID-19 Task Force

Virginia made two significant changes to its COVID-19 regulatory landscape last week as it relates to quarantine measures and reporting positive cases to the Virginia Department of Health (VDH).

First, VDH has officially adopted CDC’s new quarantine guidance.  VDH and CDC continue to recommend a quarantine period of 14 days.  However, CDC guidance now includes two additional options for how long quarantine should last.  The safest option is still to quarantine for 14 days after last exposure, shorter quarantine periods are acceptable for close contacts who are quarantining but who have not experienced any systems.  Specifically, asymptomatic close contacts may end a quarantine after day 10 without testing, or after day 7 with a negative PCR or negative antigen test, if the test was performed on or after day 5.  It is still important to watch for symptoms of COVID-19 until 14 days after exposure, and to take other prevention measures including wearing a mask, distancing, and frequent hand washing.

VDH formally adopted this revised quarantine guidance in an announcement on its website for everyone except healthcare workers or healthcare facilities.  VDH recommends that Continue reading

[FAQs] Lessons Learned from the Roll-out of Virginia OSHA’s New COVID-19 Standard

On December 7, 2020, Eric J. Conn (Chair of Conn Maciel Carey’s national OSHA Practice), Susan Wilcox (a CIH and CSP with Safety Resource Associates in Virginia), and special guest Jennifer Rose (VOSH Cooperative Programs Director with the Virginia Department of Labor and Industry) presented a webinar regarding Lessons Learned from the Roll-out of Virginia OSHA’s New COVID-19 Standard.

Earlier this Summer, Virginia became the first state in the nation to promulgate a mandatory safety regulation designed to reduce COVID-19 infections in the workplace, when Virginia’s Governor Ralph Northam announced the commonwealth’s adoption of an Emergency Temporary Standard (“ETS”).  VOSH’s COVID-19 ETS went to effect on July 27th, with major elements of the rule kicking in in August and September.

Now, several months into implementation of the COVID-19-specific regulation, we checked in on the status of the rule, challenges employers have faced complying with it, and enforcement issues. We are pleased to share links to a copy of the slides and a recording of the webinar. Continue reading

[Webinar Recording] Lessons Learned from the Roll-out of Virginia OSHA’s New COVID-19 Standard

On December 7, 2020, Eric J. Conn (Chair of Conn Maciel Carey’s national OSHA Practice), Susan Wilcox (a CIH and CSP with Safety Resource Associates in Virginia), and special guest Jennifer Rose (VOSH Cooperative Programs Director with the Virginia Department of Labor and Industry) presented a webinar regarding Lessons Learned from the Roll-out of Virginia OSHA’s New COVID-19 Standard.

Earlier this Summer, Virginia became the first state in the nation to promulgate a mandatory safety regulation designed to reduce COVID-19 infections in the workplace, when Virginia’s Governor Ralph Northam announced the commonwealth’s adoption of an Emergency Temporary Standard (“ETS”). The COVID-19 ETS, which was drafted by Virginia’s Department of Labor and Industry, requires Virginia employers to:

  • Assess potential exposures to COVID-19 in the workplace
  • Categorize the level of risk exposure from Low to Very High (each with different mitigation requirements)
  • Develop and implement a written infection control plan
  • Provide employee training on the virus and control measures in the workplace
  • Make certain notifications about infected employees to co-workers, to VOSH, and to the VA Dept. of Health

VOSH’s COVID-19 ETS went to effect on July 27th, with major elements of the rule kicking in in August and September. Now, several months into implementation of the COVID-19-specific regulation, we check on the status of the rule, challenges employers have faced complying with it, and enforcement issues. Participants in this webinar will learn: Continue reading

3rd Annual (Virtual) Process Safety Summit – December 8-9, 2020

Register today for the 3rd Annual (Virtual) Process Safety Summit on December 8-9, 2020.

Like so many other aspects of our lives, our Annual Process Safety Summit in Washington, DC will look a little different in the year of COVID-19.  Rather than gathering together in person in our Nation’s Capital for two full days in October, the 3rd Annual Process Safety Summit will be a virtual event, and it will take place in shorter segments on December 8-9, 2020.

But what will not change is the Summit’s one-of-a-kind opportunity to convene safety and legal professionals from chemical manufacturing, petroleum refining, paper, and other process industries with the senior government officials responsible for regulating process safety.  Check out our working agenda and register today.

What is the Process Safety Summit in Washington, DC?

The Process Safety Summit in Washington, DC is an annual event, typically based in our nation’s Capital.  The 2nd Annual Summit last Fall welcomed more than 175 safety, process safety, and legal professionals from stakeholders in the chemical, petrochemical, paper, and petroleum refining industries, and other industries with operations covered by OSHA’s PSM Standard and EPA’s RMP Rule. The Summit focuses on the process safety regulatory landscape and industry best practices, with programming that covers rulemaking, enforcement programs, significant cases, trends as we move through the Trump Administration and into a Biden Administration, best practices, and other key process safety regulatory issues impacting Industry.

This Summit fills an important gap for employers operating the process safety regulatory environment.

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

[Webinar] Lessons Learned from the Roll-out of Virginia OSHA’s New COVID-19 Standard

On Monday, December 7th at 1 PM ET, join Eric J. Conn (Chair of Conn Maciel Carey’s national OSHA Practice), Susan Wilcox (a CIH and CSP with Safety Resource Associates in Virginia), and special guest Jennifer Rose (VOSH Cooperative Programs Director with the Virginia Department of Labor and Industry) for a webinar regarding Lessons Learned from the Roll-out of Virginia OSHA’s New COVID-19 Standard.

Earlier this Summer, Virginia became the first state in the nation to promulgate a mandatory safety regulation designed to reduce COVID-19 infections in the workplace, when Virginia’s Governor Ralph Northam announced the commonwealth’s adoption of an Emergency Temporary Standard (“ETS”). The COVID-19 ETS, which was drafted by Virginia’s Department of Labor and Industry, requires Virginia employers to:
  • Assess potential exposures to COVID-19 in the workplace
  • Categorize the level of risk of exposure from Low to Very High (each with different mitigation requirements)
  • Develop and implement a written infection control plan
  • Provide employee training on the virus and control measures in the workplace
  • Make certain notifications about infected employees to co-workers, to VOSH, and to the VA Dept. of Health
VOSH’s COVID-19 ETS went to effect on July 27th, with major elements of the rule kicking in in August and September. Now, several months into implementation of the COVID-19-specific regulation, we check on the status of the rule, challenges employers have faced complying with it, and enforcement issues. Participants in this webinar will learn:

Continue reading

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

On November 17, 2020, Eric J. ConnMicah Smith and Beeta Lashkari presented a complimentary webinar: Process Safety Update: The Latest with OSHA PSM & EPA RMP.

Following the 2013 West Fertilizer explosion, then-President Obama issued Exec. Orders directing OSHA, EPA and other agencies to “modernize” the chemical process safety regulatory landscape. OSHA and EPA took sweeping actions, from enforcement initiatives (like a new PSM National Emphasis Program) to rulemakings and interpretation letters.

Then President Trump took office with a de-regulatory agenda.  But rather than unwavering deregulation, Trump Admin. initiatives in this area have been splintered, with some deregulatory work proceeding (e.g., rollback of RMP amendments), others coming to a complete halt (e.g., PSM reform rulemaking), and still others moving forward like business as usual (e.g., the Chem/REF PSM NEP inspections and the CSB’s new accidental release reporting rule).  And now, with the Presidential Election behind us (sort of), and a new Biden Administration looming, we could see another significant shake-up of the regulatory landscape.

This webinar reviewed 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

Oregon OSHA Issues Final COVID-19 Temporary Standard (Compliance Deadlines in Early December)

By Conn Maciel Carey’s COVID-19 Task Force

Earlier this week, on Monday, November 9, 2020, Oregon OSHA released its final COVID-19 Emergency Temporary Standard (the “OR ETS”) after several delays.  Employers will have to act quickly to come into compliance, as the ETS goes into effect November 16th, with a series of major deadlines coming due in early December.

The ETS includes one set of mandates for all workplaces and another set for what it defines as “workplaces of exceptional risk” — namely those that include job duties related to direct patient care, aerosol-generating or post-mortem procedures, in-home care and/or direct client service in residential care or assisted living facilities.  The OR ETS also includes an appendix with “mandatory guidance” for 19 specific industries and/or workplace activities, including:

  • restaurants and bars;
  • retail;
  • construction;
  • veterinary clinics; and
  • entertainment facilities.

Explaining the need for an emergency rule, leadership at OR OSHA said this:

“The COVID-19 emergency has highlighted the risks that any infectious disease, particularly one that is airborne, can create for a wide variety of workplaces. As a result of both the immediate and long-term risks highlighted by the current public and occupational health crisis, Oregon OSHA is responding to the request that the state adopt an enforceable workplace health rule on an emergency basis this summer, to be replaced by a permanent rule.”

Oregon OSHA has plans to release materials on its website to support work on the risk assessment, the written exposure control plan, and the training activities required in the rule.  Presently, there is a template exposure risk assessment form available. The agency also released a poster that employers must post in the workplace.

For the majority of employers, the OR ETS requires that they Continue reading