In July, Virginia became the first state in the nation to promulgate a mandatory rule with a set of requirements designed to protect workers from COVID-19 infections in the workplace. For example, Virginia employers must:
Assess and categorize potential exposures to COVID-19 in the workplace
Implement a written infection control and response plan
Promptly notify potentially exposed co-workers, VOSH/OSHA, and/or the Department of Health about infected workers
But Virginia’s rule really just memorializes the widespread, already enforceable guidance from federal OSHA, the CDC, state and local departments of health, and governors’ offices all across the country, so the policies and controls that must be implemented in Virginia are by and large needed everywhere.
On August 19, 2020, the Food and Drug Administration (FDA) and the Occupational Safety and Health Administration (OSHA) released a detailed checklist for human and animal food manufacturers to consider when continuing, resuming or reevaluating operations due to the COVID-19 pandemic.
The stated purpose of the new guidance document is “for FDA-regulated human and animal food operations to use when assessing operations during the COVID-19 pandemic, especially when re-starting operations after a shut down or when reassessing operations because of changes due to the COVID-19 public health emergency caused by the virus SARS-CoV.”
The checklist is intended to guide employers who grow, harvest, pack, manufacture, process or hold human and animal food regulated by FDA, and covers nearly every (if not every) topic related to COVID-19 including:
Employee health screenings;
Operation configuration for social distancing;
Recommended engineering controls (e.g., physical barriers and adequate ventilation);
Communication and training;
Coordination with public health officials;
Exposure scenarios and return-to-work criteria;
Hand hygiene and respiratory etiquette;
Flexible sick leave policies;
PPE and face coverings.
The checklist also includes some more topics somewhat unique to the food industry, such as:
Recommendations for critical infrastructure workers;
Social distancing configurations for harvesting and along production lines; and
On July 20, 2020, the U.S. Centers Disease Control and Prevention (“CDC”) made major revisions to its COVID-19 “discontinue home isolation” guidance, upon which employers may rely to determine when it is safe for employees to return to work. This comes only a couple months after CDC made major revisions to the same guidance document when, on May 3, 2020, it extended the home isolation period from 7 to 10 days since symptoms first appeared for the symptom-based strategy in persons with COVID-19 who have symptoms, and from 7 to 10 days after the date of their first positive test for the time-based strategy in asymptomatic persons with laboratory-confirmed COVID-19.
In its most recent update, CDC has determined that a test-based strategy is no longer recommended to determine when to discontinue home isolation, except in certain circumstances. It has also modified its symptom-based strategy in part by changing the number of hours that must pass since last fever without the use of fever-reducing medication from “at least 72 hours” to “at least 24 hours.” CDC’s revisions should trigger employers to immediately revise their COVID-19 preparedness, response, and control plans to account for the latest changes. In light of the recent COVID-19 regulation that Virginia promulgated almost at the same time that CDC decided to update its guidance, the revisions also demonstrate that COVID-19 is not the type of hazard easily subject to a regulatory standard.
To start, it is important to understand the major changes that CDC has just made. As you know, prior to CDC’s most recent changes, CDC offered individuals with COVID-19 who had symptoms two options for discontinuing home isolation:
a symptom-based strategy; and
a test-based strategy.
It also offered individuals with COVID-19 who never showed symptoms two options:
The Directive lays out MIOSHA’s approach for selecting various retail and hospitality workplaces for programmed inspections about COVID-19 infection control.
The stated purposes of the Emphasis Program is to “increase MIOSHA’s presence in retail establishments to ensure workers are protected from SARS-CoV-2,” because “employees who come in contact with large numbers of people as a result of their employment [like in retail] are at elevated risk of infection.”
As we have been updating you about here, on July 27th, the Virginia Occupational Safety and Health Administration (VOSH) adopted a COVID-19 Emergency Temporary Standard (ETS). There are some important deadlines fast approaching under that new rule:
Conduct a COVID-19 Hazard Assessment to categorize the risk exposures at the workplace (due by Aug. 26th);
Deliver the first of two COVID-19 employee training events (due by Aug. 26th); and
Implement a written infectious disease preparedness and response plan (due by Sept. 25th).
But while everyone is scrambling to come into compliance with the emergency rule, we want to highlight another big development with the Virginia rule that has a fast-approaching deadline – that is, VOSH’s effort to prepare a permanent infectious disease standard.
The ETS is, of course, just a temporary standard, but by regulation, VOSH is required to commence a rulemaking to promulgate a permanent standard soon after issuing an ETS. By publication of the ETS in July, VOSH simultaneously gave notice that the Standards Board intends to adopt a permanent infectious disease standard, and the ETS serves as the proposed rule. Here is a link to the Proposed Permanent Standard for Infectious Disease Prevention. The agency intends to finalize the permanent rule within six months, with an effective date no later than January 27, 2021.
Last month, 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: Continue reading →
Confirmed by a positive laboratory test of a respiratory specimen; and
“More likely than not” the result of a workplace exposure, based on reasonably available evidence, and the absence of any alternative (non-work) explanation for the employee’s illness.
Cal/OSHA’s May 27th guidance, however, breaks from both of those key requirements for COVID-19 recordkeeping, rejecting the need for a confirmed case and flipping the burden of establishing work-relatedness on its head, establishing instead a presumption of work-related if any workplace exposure can be identified, even if the cause of the illness is just as likely to be attributable to a non-work exposure.
Aside from being bad policy that will result in many illnesses being recorded on 300 Logs only in California that were not actually COVID-19 cases, and/or that were not caused by exposures in the workplace, Cal/OSHA’s unique COVID-19 recording criteria are not permitted by law.
More COVID-19 cases on your logs can create significant risk of liability. For example, there is no doubt an avalanche of wrongful death and personal injury suits waiting around the corner, and while recording an illness is not an admission of wrong-doing, it is an admission that the illness was likely spread in your workplace. Plaintiffs’ attorneys will make hay of that to show your exposure control efforts were insufficient, or to show that the illnesses experienced by their clients (customers, contractors, family members of employees, and others whose suits would not be barred by workers’ compensation exclusivity) likely were also contracted in your workplace or because of your workplace. And of course, more illnesses having to be recorded also creates more potential for Cal/OSHA citations for failure to record or failure to record timely or accurately.
The Coalition for Uniformity in COVID-19 Recordkeeping
Conn Maciel Carey organized and represents the Coalition for Uniformity in COVID-19 Recordkeeping, which is composed of a broad array of California employers impacted by Cal/OSHA’s COVID-19 recordkeeping requirements. Continue reading →
On Monday, August 3rd 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), and special guest Jennifer Rose (VOSH Cooperative Programs Director with the Virginia Dept. of Labor and Industry) for a complimentary webinar regarding “Everything You Need to Know About Virginia OSHA’s New COVID-19 Standard.”
Last week, 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: Continue reading →
On Wednesday, July 15, 2020, Virginia’s Governor Ralph Northam announced the commonwealth’s adoption of an emergency temporary standard (“ETS”) on infectious disease prevention. With that, Virginia became the first state in the nation to promulgate a mandatory safety regulation designed to prevent and/or reduce COVID-19 infections in the workplace. The Virginia Department of Labor and Industry’s Safety and Health Codes Board voted to approve the ETS after Governor Northam directed the creation of enforceable regulations in a May Executive Order (the same EO that mandated the use of masks in public for all Virginians). Specifically, Governor Northam directed:
“The Commissioner of the Virginia Department of Labor and Industry shall promulgate emergency regulations and standards to control, prevent, and mitigate the spread of COVID-19 in the workplace. The regulations and standards … shall apply to every employer, employee, and place of employment within the jurisdiction of the Virginia Occupational Safety and Health (VOSH) program.”
Virginia state officials said they were forced to act because federal OSHA had not developed an employer safety standard to protect against infections from the Coronavirus, and thus the burden to do so has been left to the states.
The ETS, which was drafted by Virginia’s Department of Labor and Industry, will go into effect after it is published in a newspaper in Richmond, VA, which is expected to occur the week of July 27th. The rule will remain in effect as an ETS for at least six months, but can be made permanent through the Virginia OSHA (VOSH) formal rulemaking process defined by state law. Although the Final Rule has not been published, the rulemaking process has been somewhat public, with early drafts of the rule discussed and debated in public meetings, and what appears to be the final rule published today.
While some requirements apply to all employers of any size and in any industry, the Rule requires employers to conduct a risk assessment to identify potential exposures to COVID-19 in the workplace, and to categorize employees’ job tasks as “very high,” “high,” “medium,” or “lower” (as defined in the Rule). The hazard assessment has to be verified by a written certification that identifies the workplace evaluated, the person certifying that the evaluated was completed, the dates of the assessment, and the document as a certification.
Each category has a separate list of precautions employers are required to take Continue reading →
Continuing its effort to issue numerous industry-specific COVID-19 guidance documents, last week OSHA released guidance for the Oil and Gas Industry to help employers manage the COVID-19 hazard in oil and gas workplaces. The new guidance builds on existing CDC and/or OSHA guidance that we have seen for all employers or from other industry-specific guidance, and adds in a few oil and gas specific recommendations.
To start, OSHA makes clear that the guidance is geared towards oil and gas industry workers and employers, including those in sub-industries and tasks that make up the broader oil and gas sector. In that regard, OSHA provides a table that describes oil and gas work tasks associated with the exposure risk levels in OSHA’s occupational exposure risk pyramid, which divides tasks into four risk exposure categories – very high, high, medium, and lower (caution). Specifically, OSHA groups most oil and gas work tasks in the lower (caution) and medium exposure risk levels.
For the medium exposure risk level category, OSHA includes:
oil and gas drilling, servicing, production, distribution, and/or processing tasks that require frequent close contact (within 6 feet) with coworkers, contractors, customers, or the general public; and
traveling within facilities or between facilities when workers must share vehicles.
For the first group of tasks, OSHA notes that control rooms, trailers and doghouses are frequent high-traffic areas. The Agency also includes a general note that working and living together in close quarters where social distancing is not always feasible may increase exposure risk compared to other activities in the medium exposure risk category. Continue reading →
California increased its efforts to combat COVID-19 over the July 4th holiday weekend by deploying multi-agency strike teams to visit or otherwise make contact with businesses to evaluate and enforce compliance with and/or educate them about the State’s numerous COVID-19 orders, directives, and guidance.
The “Strike Force” includes representatives from at least ten different state agencies. Approximately 100 agents are from the Alcohol Beverage Control agency and the rest from the Division of Occupational Safety and Health (Cal/OSHA), the California Highway Patrol, the Board of Barbering & Cosmetology, Consumer Affairs, Food and Agriculture, Labor Commissioner’s Office, the Governor’s Office of Business and Economic Development, and other state licensing entities.
Ahead of the July 4th holiday, Governor Newsom ordered bars, indoor restaurants, movie theaters and more to close in a number of counties on a state watch list. The state monitoring list is ever changing and represents counties with a need for more support and/or enforcement.
Over the holiday, hundreds of state inspectors fanned out across California to enforce health orders related to Coronavirus.
The State’s actions are likely authorized by Executive Order N-33-20, which generally directs all residents immediately to heed current State public health directives to stay home, except as needed to maintain continuity of operations of essential critical infrastructure sectors and additional sectors as the State Public Health Officer “may designate” as critical to protect health and well-being of all Californians. As for the crackdown, the actions taken are likely be based on recent Continue reading →
On June 26, 2020, Oregon OSHA announced that in consultation with the Oregon Health Authority (OHA)/Public Health and other technical advisors, as well as affected stakeholders, it had begun to develop a pair of temporary COVID-19 workplace rules — one for healthcare and closely-related industries, and another for general workplaces. The target effective date for those temporary rules is September 1, 2020, with the rules to remain in effect through at least February 2021. In parallel, Oregon will also begin work on permanent rules addressing airborne infectious disease control through the state’s normal rulemaking process.
The technical advisory group meetings and external stakeholder meetings are already taking place and are expected to be completed over the next two weeks.
Even though the emergency temporary standards will not go through the typical, more formal rulemaking process, there are still opportunities for employers to influence:
the scope of the rules;
the substantive requirements of the rules; and/or
how their workplaces will be characterized (i.e., as healthcare or general industry).
Participation in the stakeholder meetings and the submission of comments could make
a significant impact on the nature of the burdens placed on Oregon employers through the remainder of the pandemic.
As COVID Spring transitions to COVID Summer, wearing some form of face covering has become the new norm, especially in workplaces all across the country. Many employers operating essential businesses, as well as non-essential business that have begun to reopen, have sought to provide or require some form of respirator, face mask, or face covering for employees. Given OSHA’s particular emphasis on respiratory protection throughout the pandemic and for the foreseeable future, it is important for employers to be aware of the OSHA guidelines and obligations regarding respirators and face coverings in the workplace.
Depending on the type of face mask used, and whether it is mandated by the employer or merely permitted for voluntary use, there are certain requirements that employers must follow under OSHA’s respiratory protection standard, 29 C.F.R. 1910.134, and perhaps other regulations. Last week, OSHA issued a series of Frequently Asked Questions (FAQs) about face coverings to help employers navigate obligations amidst the COVID-19 pandemic.
As a starting point, let’s level-set the type of equipment we are talking about. N95 masks, although they are called masks and look like masks, are actually considered by OSHA to be respirators. Of course, anything more substantial than an N95 mask, such as half- or full-face tight-fitting face pieces with a filtering medium, are also considered by OSHA to be respirators. Use of that type of equipment in the workplace, whether it is required by the employer or permitted for voluntary use, triggers numerous duties under OSHA’s respiratory protection standard that we will discuss below. On the other hand, simple paper or cloth masks, like dental or surgical masks, are not considered to be respirators, and do not trigger any requirements under 1910.134.
Let’s start this discussion with the more ubiquitous face coverings that are NOT considered to be respirators, and also are not considered to be personal protective equipment (PPE).
Paper or Cloth Face Masks
Setting aside respirators for the moment, if your workplace is permitting or even requiring use of some form of a loose-fitting paper or cloth mask, or even a generic face covering like a bandana or one of the DIY masks that CDC has been promoting for general use by the public, none of those is considered to be a respirator, AND none of those is even considered to be a form of PPE.
To be clear, while Fed OSHA’s latest COVID-19 Recordkeeping guidance does retreat from some of the early relief OSHA had offered employers, in substance, it merely changes the landscape around the edges — requiring more employers to analyze work-relatedness for COVID-19 cases. Still fed OSHA only requires recording or reporting COVID-19 cases where it is “more likely than not” that a COVID-19 case resulted from workplace exposure, based on reasonably available evidence, and the absence of any alternative (non-work) explanation for the employee’s illness.
Among other stark differences, Cal/OSHA’s new guidance flips the burden of establishing work-relatedness on its head. Now, according to Cal/OSHA, a COVID-19 case in California will be presumed to be work-related if any workplace exposure is identified, even if the cause of the illness is more likely attributable to a non-workplace exposure.
Unlike Fed OSHA’s previous and current recordkeeping guidance, Cal/OSHA’s FAQs now make clear that Cal/OSHA does NOT require a positive test for COVID-19 to be necessary to trigger recording requirements. Cal/OSHA states: Continue reading →
As employers around the country grapple with the employment law and workplace safety implications of the 2019 Novel Coronavirus (“COVID-19”), Conn Maciel Carey formed a national, multi-disciplinary legal and regulatory task force dedicated to helping our clients across all industries manage the multitude of pandemic-related issues employers are facing and preparing them for the tidal wave of litigation that is waiting around the corner.
As part of our COVID-19 Task Force, the firm’s dedicated Workplace Safety, Labor and Employment, and Litigation attorneys have produced a comprehensive set of resources to guide employers through this uncharted territory and the unique workplace challenges presented by the presence of a new health hazard in our nation’s workplaces.
We have now pulled those resources together in a single location — Conn Maciel Carey’s COVID-19 Task Force Page, where employers can find:
Most construction projects and tasks will be in the Lower or Medium risk exposure category in OSHA’s COVID-19 risk matrix (those categories require much less in the way of engineering and administrative controls than healthcare and manufacturing facilities. Social distancing and physical barriers continue to be the principal method to control infection recommended by OSHA. With respect to separating employees at construction sites, OSHA recommends:
Using closed doors and walls, whenever feasible, as physical barriers to separate workers from any individuals experiencing signs and/or symptoms consistent with COVID-19; and/or
Erecting plastic sheeting barriers when workers need to occupy specific areas of an indoor work site where they are in close contact (less than 6 feet) with someone suspected of having or known to have COVID-19.
OSHA also recommends gathering certain information (and provides sample questions) about projects before sending workers to perform construction activities in an indoor environment that may be occupied by a homeowner, customer, worker, or another occupant.
The new guidance includes a large section on “Face Coverings in Construction,” consistent with OSHA’s general movement towards a consistent expectation that employers will provide and require face coverings in workplaces whenever and wherever social distancing cannot be assured. The Face Covering section in this construction guidance explains that:
CDC recommends wearing cloth face coverings as a protective measure in addition to social distancing (i.e., staying at least 6’ away from others).
Cloth face coverings are especially important when social distancing is not feasible based on working conditions.
There are myriad workplace safety and health implications of the COVID-19 pandemic, but one OSHA regulatory obligation about which we have received countless questions the past three months is the requirement to record on an OSHA 300 Log and/or pick up the phone and report to OSHA work-related cases of COVID-19. This article explains the circumstances the OSHA recordkeeping and reporting obligations related to employee COVID-19 cases.
“An injury or illness occurring in the work environment that falls under one of the following exceptions is not work-related, and therefore is not recordable…. The illness is the common cold or flu.”
The rationale for the exemption is that the spread of the cold and flu is so pervasive and potential exposures are ubiquitous within and outside the workplace, so it can be nearly impossible to identify the specific source of infection.
Despite great personal sacrifice around the country in the form of mass self-quarantine, the scale of infection of COVID-19 continues to spread like the flu and common cold, with even more dire consequences. Nevertheless, OSHA has repeatedly made clear that COVID-19 is not subject to the cold/flu recordkeeping exemption:
“While 29 CFR 1904.5(b)(2)(viii) exempts recording of the common cold and flu, COVID-19 is a recordable illness when a worker is infected on the job.”
OSHA has explained that the cold and flu recordkeeping exemption is not just an OSHA policy or enforcement philosophy. Rather, it is a part of the regulation itself that went through APA notice-and-comment rulemaking. And the scientific reality is, COVID-19 is not the cold or flu. It is a different virus. So without another rulemaking (that history suggests would take longer than it will to eradicate this illness), OSHA cannot just declare this serious illness to be exempt from recordkeeping and reporting requirements.
Indeed, over a series of guidance documents in April and May, OSHA has doubled-down on its decision that employers must spend time determining whether cases of COVID-19 are more likely than not work-related.
Determine Recordability of COVID-19 Cases
Consistent across all of OSHA’s COVID-19 guidance has been the basic structure for evaluating whether an employee’s COVID-19 case is recordable. Employers will only be responsible for recording a case of COVID-19 if it meets the following criteria: Continue reading →
As states across the country begin to loosen or lift stay-at-home and shutdown orders, many workplaces that had been idled, have just begun to or will soon resume operations. Many states and localities are setting as a precondition for reopening, a requirement that they develop and implement a written, site-specific COVID-19 Exposure Control and Response Plan.
Regardless of any state or local requirement to develop such a plan, any business that operates without an Exposure Control Plan will be potentially exposed to a number of legal or business risks, such as an OSHA citation, being shutdown by a state or local health department, and/or becoming a target for a wrongful death action brought by families of employees, temporary workers, customers, vendors and/or guests. They should also plan to deal with a workforce that is scared and anxious about the company’s response to the COVID-19 pandemic, which may result in employees refusing to work (which would disrupt and complicate scheduling) and/or making regular and frequent complaints to OSHA about the purported unchecked hazard in your workplace. Responding to these complaints will take time and cost money, distracting your business from its mission. Retaliation claims under Section 11(c) of the OSH Act is another foreseeable consequence of a scared workforce. Without an Exposure Control Plan in place, the legal vulnerabilities will be real and are potentially significant.
We focus below on five key reasons employers must develop a written COVID-19 Exposure Control and Response Plan. But first, what is an exposure control plan?
What is an Exposure Control and Response Plan?
When OSHA identifies a serious safety or health hazard, it usually requires employers to develop a written program including the measures employers will take to counteract the hazard. For example, OSHA requires written lockout/tagout programs to protect against hazardous energy; respiratory protection programs and process safety management programs to protect against hazardous chemical exposures; and emergency action plans to protect against the risk of fires in the workpalce. Simply put, a COVID-19 Exposure Control Plan is a written safety plan outlining how your workplace will prevent the spread of COVID-19, covering issues such as:
How you will facilitate social distancing in your workplace;
What engineering or administrative controls you will implement when workers cannot remain at least 6′ apart;
The steps that you will take to ensure employees comply with personal hygiene practices;
What types of protective equipment you will provide for various tasks and operations;
What enhanced housekeeping protocols will be implemented for frequently touched surfaces, tools, and machines;
What you are doing to prevent/screen sick workers from entering the workplace;
How you will respond to confirmed or suspected cases among your workforce; and
How you will communicate with and train your workforce on these mitigation measures.
Five Reasons to Develop a Written COVID-19 Exposure Control Plan
First, whether you have remained open because you are an essential business or plan to reopen soon, you may soon find yourself required to Continue reading →
With no fanfare, California Governor Gavin Newsom issued the latest in his series of COVID-19-related executive orders on May 7, 2020. Executive Order N-63-20 extends by 60 days the time for Cal/OSHA to issue citations and for employers to file appeals, motions and petitions for reconsideration.
As rationale for extending these statutory, jurisdictional deadlines, Governor Newsom explained:
WHEREAS the COVID-19 pandemic, as well as physical distancing and
other public health measures undertaken in response to it, have affected
governmental agencies, workers, private businesses, and California residents,
with associated impacts on adherence to certain statutory and regulatory
deadlines, as well as to workers’ efforts to vindicate their labor and employment
WHEREAS the COVID-19 pandemic, as well as physical distancing and
other public health measures undertaken in response to it, have also had
widespread impacts on state and local governments’ ability to perform certain
functions via in-person interactions, and such functions should be performed via
other means to the extent consistent with public safety and other critical public
As to the Cal/OSHA related deadlines specifically, the Order states:
“The deadlines specified in or that apply to (Labor Code section 6317, related to the issuance of Cal/OSHA citations, and Labor Code sections 6319, 6600, 6600.5, 6601a and 6601.5) shall be extended for a period of 60 days to the limited extent that at the time to issue a citation or file a complaint, claim, or appeal would otherwise elapse in the 60-day period…” following the effective date of the Order, which was May 7, 2020.
A review of the cited Labor Code sections reveals that this Order extends Cal/OSHA’s time to issue citations and the employer’s time to file appeals, motions and petitions for reconsideration.
Labor Code section 6317 gives Cal/OSHA six months following the occurrence of a violation of a safety order to issue a citation or notice in lieu of citation. The remaining Labor Code sections cited in the Order put employers on notice that they must file an appeal within 15 working days of receipt of a citation or notice. If they do not, their right to do so would be lost.
As with most executive orders, this language is open to interpretation. Cal/OSHA Enforcement reads the Order to mean that Continue reading →
As the federal government and states begin to relax shutdown and stay-at-home orders and non-essential businesses begin to resume or ramp-up operations, employers need to plan for the safe and healthy return of their employees, customers, and guests back into the workplace. During this webinar, participants heard from members of Conn Maciel Carey’s COVID-19 Task Force as they discussed how to develop and implement a Return-to-Work Plan.
On May 1, 2020, Governor Wanda Vázquez Garced of Puerto Rico issued a COVID-related Executive Order (“EO 2020-038”), which imposes a number of requirements upon employers, included among them that every employer must develop a comprehensive, site-specific COVID-19 exposure control plan prior to reopening. The Executive Order also makes clear that employers already open under prior exemptions to prior lockdown orders must also prepare a plan and must do so as soon as possible.
To implement the Executive Order, the Puerto Rico Secretary of Labor issued Circular Letter 2020-03 (“CL 2020-03”), setting forth the elements that must be covered in the plan, including the requirement that the plan be “exclusive to [your] particular workplace.”
There are 22 total elements that must be covered, including the requirements that the plan:
Be a written document, specific to the workplace and contemplates the particular tasks, the physical structure and the number of employees.
Include recommendations issued by local, national and international health agencies regarding controls to prevent the spread of COVID-19.
Detail the monitoring and/or screening process of personnel prior to entering the workplace.
Indicate the control measures that will be taken to achieve the physical distance between employees and clients/public.
Indicate how adequate ventilation will be provided to ensure adequate air flows and, in locations with air conditioning systems, effective filtering.
As previously discussed on the OSHA Defense Report blog, on April 10, 2020, Federal OSHA issued enforcement guidance for recording cases of COVID-19, relaxing recordkeeping enforcement for employers other than those in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions. Unfortunately, the guidance does not mandate that State Plan States follow suit, and not all states with approve OSH Programs have announced whether they will be following Fed OSHA’s guidance.
The state of Washington has not published any guidance on that issue one way or the other. But here is what we have learned from the Washington Department of Labor and Industries (“DLI”) Division of Occupational Safety and Health (“DOSH”).
As a threshold matter, as we know from Fed OSHA recordkeeping, among other requirements, for an injury or illness to be recordable, it must be “work-related.” The language of Washington DLI’s recordkeeping regulation regarding assessing work-relatedness mirrors the Fed OSHA regulation. They both state that an employer:
“must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a preexisting injury or illness.”
Work-relatedness is presumed for injuries and illnesses resulting from events or exposures that occur in the work environment, unless an enumerated exception applies, and the work-relatedness exceptions for Fed OSHA and Washington are also the same.
California’s Division of Occupational Safety and Health, aka Cal/OSHA, is perhaps the most aggressive and enforcement-heavy state OSH Program in the nation. California employers face a host of requirements that other employers around the country do not. Likewise, the Cal/OSHA inspection and Appeal process creates several unique landmines for California employers.
In explaining the need for this enforcement relief, OSHA recognized that:
“Widespread business closures, restrictions on travel, limitations on group sizes, facility visitor prohibitions, and stay-at-home or shelter-in-place requirements” have strained the “availability of employees, consultants, or contractors who normally provide training, auditing, equipment inspections, testing, and other essential safety and industrial hygiene services,” as well as the opportunity for “employee participation in training even when trainers are available.” Similarly, “access to medical testing facilities may be limited or suspended.”
To address these very real challenges to achieving full compliance with various annual and other regulatory requirements, OSHA issued a temporary enforcement policy based on the agency’s enforcement discretion to relax enforcement of many existing regulatory obligations if complying with these obligations is not feasible or if doing so would pose an unreasonable risk of virus transmission among the employer’s workforce. Today’s enforcement policy applies broadly to employers in all industry sectors, takes effect immediately, and will remain in effect indefinitely throughout the current public health crisis.
The heart of the new enforcement policy is this:
Where an employer is unable to comply with OSHA standards that require annual or recurring audits, reviews, training, assessments, inspections, or testing because of the Coronavirus pandemic, AND the employer has made good faith attempts to comply, OSHA “shall take such efforts into strong consideration in determining whether to cite a violation.”
But where the employer cannot demonstrate any efforts to comply or why trying to comply would be more hazardous, a citation may issue as appropriate.
As part of OSHA’s assessment whether an employer engaged in good faith compliance efforts, OSHA will evaluate whether the employer Continue reading →
Last week, Cal/OSHA updated its website, providing additional guidance on how to protect Californian employee from spread of COVID-19 in the workplace. Additionally, earlier this week, Division Chief Doug Parker sent an unpublished letter, clarifying Cal/OSHA’s recording/reporting requirements for coronavirus-related illnesses. Below is a summary of both pieces of guidance from Cal/OSHA:
Additional Cal/OSHA Guidance on COVID-19 in the Workplace
Starting with the new guidance on its website, Cal/OSHA provided additional information on how to protect workers from COVID-19. While Cal/OSHA previously issued guidance on requirements under its Aerosol Transmissible Diseases (“ATD”) standard specific to COVID-19, as well as general guidelines, it has now released industry-specific guidance and ATD model plans. The industry-specific guidance includes:
The ATD model plans are fillable pages provided in Word format and include an exposure control plan, laboratory biosafety plan, and “referring employer” model written program.
As general guidance, Cal/OSHA’s website also includes interim guidelines for general industry on COVID-19. These interim guidelines make clear that, for employers covered by the ATD standard, employers must protect employees from airborne infectious diseases such as COVID-19 and pathogens transmitted by aerosols. The ATD standard applies to:
hospitals, skilled nursing facilities, clinics, medical offices, outpatient medical facilities, home health care, long-term health care facilities, hospices, medical outreach services, medical transport and emergency medical services;
certain laboratories, public health services and police services that are reasonably anticipated to expose employees to an aerosol transmissible disease;
correctional facilities, homeless shelters, and drug treatment programs; and
any other locations when Cal/OSHA informs employers in writing that they must comply with the ATD standard.
Additionally, for employers NOT covered by the ATD standard, Cal/OSHA advises employers to Continue reading →