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

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

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

[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

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

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

The Cal/OSHA Defense Report is a blog designed to bring California employers recent developments in workplace safety and health law, but not just to note that something has happened, but to talk about why California employers should care, and how it will affect their business.

We started the Cal/OSHA Defense Report blog because we frequent several useful blogs dedicated to practical day-to-day workplace safety & health issues, but none that dive deep into workplace safety & health legal and regulatory issues, especially not focused on the unique regulatory environment in California. This new blog is intended to fill that void.

The Cal/OSHA Defense Report will be the place to go to learn about significant new developments from California’s Division of Occupational Safety and Health (Cal/OSHA) and the Cal/OSH Standards Board.  The blog will cover such topics as Continue reading

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

[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 reviews the status and likely future of OSHA’s PSM Standard and EPA’s RMP Rule, CSB developments, and other process safety issues, such as the recent 10th Cir. Decision on PSM application to interconnected and co-located vessels.

We are pleased to share links to a copy of the slides and a recording of the webinar Continue reading

What Employers Need to Know About Mandatory COVID-19 Vaccines

By Conn Maciel Carey’s COVID-19 Task Force

With the availability of a safe, effective COVID-19 vaccine edging closer and closer, employers understandably have a number of questions regarding their role in the workplace – whether and when they can require a vaccination, what exceptions are required in a mandatory vaccination program, and whether they should require (as opposed to encourage and facilitate) the COVID-19 vaccine for employees once it becomes available. 

This summer, the World Health Organization reported that nearly 200 potential vaccines were currently being developed in labs across the world, and as of mid-October, disclosed that more than 40 had advanced to clinical stage testing on humans.  Drug manufacturers estimate that a vaccine will be ready and approved for general use by the end of this year, although logistically not ready for widespread distribution until mid-2021.

Indeed, just over the past couple of weeks, Pfizer and Moderna have made promising announcements regarding the results of their clinical trials.  Namely, on Monday, November 9, 2020, Pfizer and BioNTech announced that a vaccine candidate against COVID-19 achieved success in the firm interim analysis from the Phase 3 study.  The vaccine candidate was found to be more than 90% effective in preventing COVID-19 in participants without evidence of prior SARS-CoV-2 infection in the first interim efficacy analysis.  According to the announcement, submission for Emergency Use Authorization (EUA) to the U.S. Food and Drug Administration (FDA) is planned for soon after the required safety milestone is achieved, which is currently expected to occur this week.  Additionally, as reported by the National Institutes of Health (NIH) on November 16, 2020, there have been promising interim results from a clinical trial of a NIH-Moderna COVID-19 vaccine.  An independent data and safety monitoring board (DSMB) reported that the vaccine candidate was safe and well-tolerated and noted a vaccine efficacy rate of 94.5%.

As the reality of a vaccination nears, employers are inquiring whether they can and should mandate the vaccine for their employees.

  1. Can Employers Require Employees to Take the COVID-19 Vaccine?

As a threshold matter, it should be noted that according to a member of the federal advisory panel on immunizations that will be making recommendations to the CDC on who should get the first doses, vaccines authorized under the FDA’s emergency use authority, as these COVID-19 vaccinations will be at the start, cannot be mandated.  Any COVID-19 vaccine brought to market under an EUA instead of the normal non-emergency approval process will, by necessity, lack long term safety data.

In general though, outside the context of EUA vaccine, employers can require vaccination as a term and condition of employment, but such practice is not without limitations, nor is it always recommended.  Although the issue is only now coming to the forefront because of COVID-19, mandatory vaccinations in the workplace are not new, and have been particularly prevalent among healthcare providers for decades.  Some variability exists under federal law and among federal agencies, but for the most part, mandatory vaccination programs are permissible, as long as employers consider religious accommodation requests under Title VII of the Civil Rights Act of 1964 (Title VII) and medical accommodation requests under the Americans with Disabilities Act (ADA). 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

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

On Tuesday, November 17th at 1 PM Eastern, join Eric J. Conn, Micah Smith and Beeta Lashkari for 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 reviews the status and likely future of OSHA’s PSM Standard and EPA’s RMP Rule, CSB developments, and other process safety issues, such as the recent 10th Cir. Decision on PSM application to interconnected and co-located vessels.

Click here to register for the November 17th webinar. Continue reading

New Jersey Joins States with Mandatory Workplace COVID-19 Protective Measures

By the Conn Maciel Carey COVID-19 Task Force

Following in the wake of Virginia OSHA and Michigan OSHA issuing enforceable COVID-19 emergency temporary standards, and as Oregon OSHA and Cal/OSHA ready their own COVID-19 emergency standards this month, New Jersey’s governor, Phil Murphy, issued Executive Order No. 192 (“EO 192”) on October 28, 2020, imposing a series of requirements on Garden State employers.

Whereas Virginia, Michigan, California, and Oregon are all State OSH Plan States, meaning they have state agencies that enforce workplace safety and health standards, New Jersey employers fall within the jurisdiction of federal OSHA, and as a result, enforcement of EO 192 will fall to New Jersey state agencies that do not normally focus on occupational safety and health issues.  In a press release announcing EO 192, Governor Murphy explained why he issued the Order despite federal OSHA’s primary jurisdiction over workplace safety in New Jersey.  Governor Murphy explained:

“A more significant portion of the State’s workforce has returned to in-person work, and as [New Jersey’s] economy continues to gradually reopen, it is necessary to ensure broad application of relevant health and safety standards to protect workers across all industries.”

Governor Murphy also pointed to the absence of a federal COVID-19 standard as another reason for the need for the EO in New Jersey:

“the federal government has failed to provide all workers the proper standards and protections that they deserve. Today’s executive order closes that gap to help ensure the health and safety of our workforce during this unprecedented time….  Today’s executive order lays out the enforceable standards we need, ensuring the safety of our workers, employers and customers. I will continue to fight for a federal OSHA emergency temporary standard, but where the Trump Administration and Mitch McConnell have dropped the ball, our state has stepped up.”

In order to comply with EO 192, New Jersey employers must:

  • Continue to focus on ensuring 6 feet of distance between workers whenever feasible. Where the nature of an employee’s work or the work area does not allow for 6 feet of distance to be maintained at all times, employers must ensure that each such employee wears a mask and install physical barriers between workstations wherever possible.
  • Require employees, customers, visitors, and other individuals entering the worksite to wear cloth or disposable face masks while on the premises. Masks must be provided to employees at no cost.   Employees may remove their masks when at their workstations if they are at least 6 feet from anyone else, or when alone in a walled office.  Notably, EO 192 provides that employers may deny entry to customers who refuse to wear a mask but does not mandate denial of service as states such as Michigan and Oregon have required.
  • Facilitate and ensure Continue reading

Important COVID-19 Update: “Close Contact” Redefined to Mean 15 Cumulative Minutes

By Conn Maciel Carey’s COVID-19 Task Force

We want to alert you to a significant COVID-19 development out of the CDC yesterday.  Specifically, the CDC just announced a material revision to its definition of “Close Contact.”  The new definition makes it explicit that the 15-minute exposure period (i.e., within 6-feet of an infected individual for 15 minutes) should be assessed based on a cumulative amount of time over 24 hours, not just a single, continuous 15-minute interaction.

Here is the new definition included on the CDC’s website:

Close Contact – Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period* starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.

* Individual exposures added together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 minutes). Data are limited, making it difficult to precisely define “close contact;” however, 15 cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation. Factors to consider when defining close contact include proximity (closer distance likely increases exposure risk), the duration of exposure (longer exposure time likely increases exposure risk), whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding), if the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting), and other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors). Because the general public has not received training on proper selection and use of respiratory PPE, such as an N95, the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE.  At this time, differential determination of close contact for those using fabric face coverings is not recommended.​

CDC’s revised view of what constitutes a Close Contact is based on an exposure study at a correctional facility.  Here is the CDC’s public notice about the correctional facility analysis.  The analysis apparently revealed that virus was spread to a 20-year-old prison employee who interacted with individuals who later tested positive for the virus, after 22 interactions that took place over 17 minutes during an eight-hour shift.  

An important consequence of this revision is the impact it will have on employers’ ability to maintain staffing because it establishes a much lower threshold trigger for required quarantine.  Recall that

Continue reading

MI OSHA is the 2nd State OSH Plan to Adopt a COVID-19 Emergency Rule: How to Comply in 5 (Not-So-Easy) Steps

By Conn Maciel Carey’s COVID-19 Task Force

Reacting quickly to the Michigan Supreme Court’s decision striking down a series of Governor Gretchen Whitmer’s COVID-19 Executive Orders, Michigan OSHA issued a series of COVID-19 emergency rules on October 14 to fill the void—many of which mirror the requirements imposed on employers by the Governor’s prior Executive Orders.  When Gov Whitmer signed the Emergency Rules Order, Michigan became only the second state in the country with a set of enforceable, COVID-19 specific regulation.

MIOSHA’s new COVID-19 emergency rules, which became effective immediately and which will remain in effect for 6 months, require employers to:

  • conduct workplace risk assessments for COVID-19 exposures;
  • develop a written exposure control plan; and
  • adopt a series of workplace protections.

“While most Michigan job providers are doing their part to slow the spread of COVID-19, these rules provide them with clarity regarding the necessary requirements to keep their workplaces safe and their employees healthy,” said Gov. Whitmer. “I will continue to work around the clock with my partners in labor and business to ensure protections for every Michigan worker.”

Because MIOSHA’s rule uses pretty vague language and is lean on detail, the agency has already begun to issue FAQs explaining what some of the provisions of the rule mean.  Here is the first batch of FAQs:

While MIOSHA had already been aggressively citing employers under the General Duty Clause over the past few months, most of those citation directly referenced Gov. Whitmer’s now-invalidated COVID-19 Executive Orders. Michigan employers can now be cited for violating these specific regulations.  At the same time, however, Republican legislators have sent a series of bills to Governor Whitmer that include liability protections for employers that comply with MI OSHA guidelines, making compliance with these rules all the more important.

Employers with operations in Michigan wishing to avoid citations should take the following 5 steps  as soon as practically possible: (1) Assess; (2) Plan; (3) Protect; (4) train; and (5) document.

STEP 1:  Conduct Workplace Assessment & Make Exposure Determinations (ASSESS)

Employers must evaluate Continue reading