[Webinar] COVID-19 OSHA Enforcement and Regulatory Update

On Tuesday, April 20, 2021 at 1:00 P.M. ET, join Aaron Gelb, Amanda Strainis-Walker and Dan Deacon for a webinar regarding a “COVID-19 OSHA Enforcement and Regulatory Update”.

Since the 2020 presidential election was decided, employers have waited, wondered, and watched for signs to see how President Biden’s OSHA would regulate and enforce COVID-19 safety in the workplace. Although OSHA missed the March 15 deadline set by President Biden in his Day One Executive Order to issue its COVID-19 Emergency Temporary Standard (ETS), there have been several important developments providing a window into how OSHA will approach COVID-19 enforcement, most notably the agency’s launch of a COVID-19 National Emphasis Program (“COVID-19 NEP”) to focus the agency’s enforcement efforts on “companies that put the largest number of workers at serious risk of contracting the virus,” as well as prioritizing employers that “retaliate against workers for complaints about unsafe or unhealthy conditions, or for exercising other rights protected by federal law.” OSHA also updated its Interim Enforcement Response Plan, which details how OSHA’s field staff should conduct COVID-related inspections, including whether they will resume in person inspections or continue conducting them remotely as has been the norm for the past year.

During this webinar, participants will learn about: Continue reading

Another Status Update about Federal OSHA’s COVID-19 Emergency Rulemaking

By Conn Maciel Carey’s COVID-19 Task Force

It has been nearly a full month since the deadline set by President Biden’s Day-1 OSHA Executive Order for Federal OSHA to determine the necessity of and to issue a COVID-19 Emergency Temporary Standard (ETS), and we are all still waiting for the big news.  OSHA has not issued a final ETS.  The Office of Management and Budget’s (OMB) website has not been updated to reflect that it has received a proposed ETS from OSHA.  OSHA has not even explicitly announced that it will issue a COVID-19 ETS.

According to reports last week from Bloomberg Law, brand new Secretary of Labor Marty Walsh requested a hold on the release of an OSHA ETS, but according to a DOL spokesperson, that “hold” was so that OSHA could make “a rapid update based on the Centers for Disease Control and Prevention analysis and the latest information regarding the state of vaccinations and the variants.”  The sense from that reporting was that OSHA would be quickly updating certain provisions in a near-final draft of the ETS to align with the latest CDC guidance.  No suggestion that an ETS would not be issued.

However, later in the week, Politico reports that Secretary Walsh gave a public interview in which he said this:

That was the first time since President Biden’s Executive Order that we heard anyone at OSHA or the Department of Labor imply that a COVID-19 ETS may not happen, and it conflicts directly with Continue reading

Due to Low Risk of COVID-19 Surface Transmission, CDC Relaxes Cleaning and Disinfecting Guidance

By Conn Maciel Carey’s COVID-19 Task Force

Early in the pandemic, popular sentiment—and to a lesser extent, the scientific community—believed that surface transmission of COVID-19 was one of the primary vectors of transmission.  Over time, however, epidemiologists gained a better understanding of how the virus was most typically transmitted.  As a result, the CDC’s guidance evolved to a point where surface transmission was viewed as a less significant mode of transmission than person-to-person transmission.

Throughout all that, spring cleaning took on a new meaning in 2020, as people rushed to purchase all the disinfectant wipes and sprays they could find, wiping down groceries and mail, sanitizing their hands, and treating door handles like they were radioactive.  Workplace sanitation similarly became an area of emphasis as employers distributed wipes, sprays and pump bottles throughout their facilities, hired additional janitorial staff and, in many cases, spent exorbitant sums on third-party vendors to clean and disinfect the workplace, even introducing aggressive surface cleaning techniques like fogging. And once the hygiene frenzy took hold in the workplace, there has been little reprieve for employers from regulatory bodies.  State and local health departments, federal OSHA and State OSH Plans, and even some state legislatures, recommended or imposed strict sanitization protocols, including requirements to routinely wipe down shared surfaces with disinfectant, to close workplaces for deep cleaning even when days had passed since a COVID-positive individual had been in the area, and implement daily cleaning and disinfecting plans.  The financial cost for employers associated with these requirements rose quickly.  Like pre-shift temperature screens, some of these requirements have persisted even after the science has recognized their limited efficacy.

Earlier this week, more than a year after the COVID-19 pandemic began, the CDC has released new guidance clarifying that the risk of contracting COVID-19 from contaminated surfaces is, in fact, quite low. Continue reading

Cal/OSHA Advisory Committee Convened as Division Considers Changes to COVID-19 Emergency Temporary Standard

By Conn Maciel Carey’s COVID-19 Task Force

Over four months after the California Occupational Safety and Health Standards Board (“Board”) unanimously adopted a COVID-19 Emergency Temporary Standard (“ETS”), the Division of Occupational Safety and Health (the “Division”) has been busy considering potential changes to the emergency regulation.  When the ETS was first adopted, the regulated community scrambled to understand and implement the regulation.  The Division issued numerous Frequently Asked Questions in January, February and March, but many questions remained unanswered.

Cal ETS Advisory CommitteeIn February, the Division convened an Advisory Committee to provide input on possible changes to the ETS.  The Advisory Committee consisted of members from business and industry, labor and community groups, public agencies, and the health sciences.  A coalition of California employers organized by Conn Maciel Carey – the California Employer COVID-19 Prevention Coalition (the “Coalition”) – was one of a very small group of industry representatives invited to participate on the Advisory Committee.

Ahead of the Advisory Committee meetings, which were held on February 11, 12 and 16, Cal/OSHA circulated Discussion Drafts reflecting changes to be considered during the meetings.  Over the course of the 3-day Advisory Committee meeting, the Coalition had the opportunity to provide meaningful input on it members’ concerns and recommendations to improve the ETS.

On March 2, the Coalition submitted written comments to the Chief of the Division.  The Coalition addressed a variety of concerns, including suggesting the Division: Continue reading

Annual Cal/OSHA Update: Legislation, Regulations, Guidance, Executive Orders and More! Oh My! [Webinar Recording]

On March 23, 2021, Andrew J. SommerFred Walter and Megan Shaked presented a webinar regarding Annual Cal/OSHA Update: Legislation, Regulations, Guidance, Executive Orders and More! Oh My!

This year’s annual Cal/OSHA update covered the latest legislative, regulatory and enforcement developments concerning COVID-19, including the Emergency COVID-19 Prevention Rule. We also alerted you to new regulatory changes concerning the Wildfire Smoke rule, various proposed rules being considered by Cal/OSH Standards Board, and general DOSH enforcement trends.

Participants in this webinar learned about: Continue reading

Five Important Updates About Federal OSHA and Cal/OSHA COVID-19 Recordkeeping

By Conn Maciel Carey’s COVID-19 Task Force

It has been a little while since we last shared an update about COVID-19 recordkeeping issues. Since Fed OSHA issued its COVID-19 recordkeeping guidance in May 2020 and Cal/OSHA issued its controversial COVID-19 Recordkeeping FAQs with unique, more onerous requirements in June, the agencies have been mostly quiet about COVID-19 recordkeeping. But that does not mean there have not been significant developments in that area or that there are no important developments to monitor closely.

Here are five notable OSHA and Cal/OSHA COVID-19 recordkeeping updates that we wanted to share with you:

1.  Congressional Intervention About Cal/OSHA’s COVID-19 Recordkeeping FAQs

As we explained last year, Cal/OSHA’s May 27th COVID-19 Recordkeeping FAQs departed from Fed OSHA’s COVID-19 recordkeeping requirements in two key ways: (i) rejecting Fed OSHA’s recordability precondition of a positive COVID test; and (ii) flipping the burden of establishing work-relatedness on its head, setting instead a presumption of Cal-OSHA RK FAQSwork-relatedness 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 non-work related illnesses being recorded on California employers’ 300 Logs, Cal/OSHA is not legally permitted to deviate from Fed OSHA’s recordkeeping requirements.

The latest big development on that front was a helpful letter from the U.S. Department of Labor responding to an inquiry about this issue from a group of California Congressmen, in which DOL confirms that Cal/OSHA should be following the same recordkeeping requirements as Fed OSHA. Despite the clear statements in Cal/OSHA’s FAQs that a “confirmed case” is not required for recordkeeping and that work-relatedness should be presumed, the federal Department of Labor explained in its letter to the Congressmen: Continue reading

Annual Cal/OSHA Update: Legislation, Regulation, Guidance, Executive Orders and More! Oh My! [Webinar]

On Tuesday, March 23, 2021 at 1:00 P.M. PT / 4:00 P.M. ET, join Andrew J. Sommer, Fred Walter and Megan Shaked for a webinar regarding “Annual Cal/OSHA Update: Legislation, Regulation, Guidance, Executive Orders and More! Oh My!

This year’s annual Cal/OSHA update will cover the latest legislative, regulatory and enforcement developments concerning COVID-19, including the Emergency COVID-19 Prevention Rule. We will also alert you to new regulatory changes concerning the Wildfire Smoke rule, various proposed rules being considered by Cal/OSH Standards Board, and general DOSH enforcement trends.

Participants in this webinar will learn about: Continue reading

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

By Conn Maciel Carey’s COVID-19 Task Force

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

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

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

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

Goals of the COVID-19 NEP

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

Industries and Workplaces Covered by the NEP

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

Status Update About OSHA’s Emergency COVID-19 Rulemaking

By Conn Maciel Carey’s COVID-19 Task Force

We are sure many of you have been on the edge of your seat waiting for news about OSHA’s COVID-19 emergency temporary standard, which was expected to be issued by next Monday, March 15th  per Pres. Biden’s Day-1 OSHA Executive Order (EO).  So that you might be able to enjoy your weekend, we wanted to share with you the latest we are hearing about the status of the emergency rulemaking.

Status of Rulemaking

As we expected, the process OSHA is following (an emergency rulemaking with some time pressure set by Pres. Biden) does not include an opportunity for a formal pre-rule public notice-and-comment period.  Nevertheless, the rule still needs to go to the White House’s Office of Management and Budget (OMB) for approval before it is issued and can go into effect.  That likely means that the Office of Information and Regulatory Affairs (OIRA) within OMB will provide for stakeholder input in some form pursuant to Executive Order 12866.  As of now, OMB’s website still does not reflect a docket entry for OSHA’s COVID-19 ETS, and we have not otherwise heard or seen anything that would indicate the proposed rule has been delivered to OMB.  To monitor that, here is a link to OMB’s page about regulations under EO 12866 review — scroll down to the Department of Labor section of rules.

We also have started to hear through the rumor-mill that OSHA understand the Executive Order to require Continue reading

MSHA Issues Guidance for Mine Operators and Independent Contractors to Mitigate and Prevent Spread of COVID-19

By: Nicholas W. Scala and Conn Maciel Carey’s COVID-19 Task Force

On March 10, 2021, the Mine Safety and Health Administration (“MSHA”) released additional – and more detailed – COVID-19 guidance.  Issued under the Biden Administration, “Protecting Miners: MSHA Guidance on Mitigating and Preventing the Spread of COVID-19” is significantly more detailed than what was provided by MSHA in 2020. The enhanced guidance recommends mine operators and independent contractors working at mines take additional action to limit the spread of COVID-19 in the workplace. This is akin to what the Occupational Safety and Health Administration (“OSHA”) has recommended in its COVID-19 guidance for general industry workplaces.

Similar to the previous guidance issued by the agency, MSHA continues to rely heavily on best practices outlined byCOVID guidnce the Centers for Disease Control (“CDC”), however, unlike MSHA’s 2020 guidance, this time the agency lays out specific actions and policies it “recommends” operators undertake while highlighting several specific, existing MSHA regulations that can be applied to COVID-19 prevention for enforcement purposes.

Below, we take a look at some of the most impactful elements of the MSHA guidance, but for a complete review of the MSHA guidance, join us on Thursday, March 18th for the MSHA Defense Report 2021 Webinar – COVID-19 and MSHA: Best Practices and Compliance Strategies for Mine Operators.

COVID-19 Prevention Programs

 For the first time, MSHA formally recommends that each mine develop and implement a COVID-19 Prevention Program. These programs, which have been recommended by OSHA and are required in multiple state-plan OSHA Emergency Temporary Standards (“ETS”), are expected to be the mine’s (or contractor’s) outline and collection of COVID-19 mitigation efforts. Our Conn Maciel Carey workplace safety team has been recommending employers have these plans in place, and assisting clients with the development of COVID-19 Exposure Control and Response Plans throughout the pandemic.

Now, those employers regulated by MSHA will be expected to have the plans in place. In instances where OSHA has come on site for COVID-19 complaints or investigations, most often the first document request to the employer is for the site’s COVID-19 Prevention Program, even though under federal OSHA – as with MSHA – it is not currently required by regulation.

MSHA recommends a miner’s COVID-19 Prevention Program and plan would at a minimum: Continue reading

Cal/OSHA’s COVID-19 Emergency Temporary Standard Survives Two Legal Challenges

By Andrew Sommer, Eric Conn, and Beeta Lashkari

On February 25, 2021, Superior Court Judge Ethan Schulman officially ruled on two requests for preliminary injunctions against the implementation of Cal/OSHA’s COVID-19 emergency temporary standard (ETS), denying the injunctive relief sought in both cases.

Two separate legal challenges to the ETS were filed a couple of weeks after the rule was adopted by the Cal/OSHA Standards Board.  The first was filed by the National Retail Federation and others, alleging generally that an emergency rule was not necessary and appropriate; i.e., the agency had not asserted facts adequate to establish the existence of an emergency, and therefore, the rushed rulemaking process that ignored stakeholder input was not lawful.  It also alleged that Cal/OSHA overstepped its jurisdictional authority with respect to the ETS provisions mandating wage and benefits continuation.

The second legal challenge was filed by the Western Growers Association and other agricultural interests.  This lawsuit similarly challenged the legality of an emergency rule in this context and the pay and benefits provisions.  It also attacked the provisions regarding employer-provided housing and transportation.

In a 40-page order, Judge Schulman rejected all of the plaintiffs’ arguments, commenting, “No federal or state court in the country has blocked emergency public health orders intended to curb the spread of COVID-19, and the illnesses, hospitalizations and deaths that follow in its wake.  This Court will not be the first.  Lives are at stake.”  Indeed, the cases faced long odds, with Judge Schulman Continue reading

What Employers Need to Know About COVID-19 Vaccines [Webinar Recording]

On February 11th, Kara M. MacielFern Fleischer-Daves, and Lindsay A. DiSalvo presented a webinar regarding What Employers Need to Know About COVID-19 Vaccines.

In December 2020, two COVID-19 vaccines received emergency use authorization from the US government and several more vaccines may be approved in the coming months. In the initial phases, front-line health care workers, nursing home residents, persons over 75 years of age, and others with underlying health conditions were given first priority. Many employers want to have their “essential workers” or all of their workers vaccinated as soon as possible.

During this webinar, Conn Maciel Carey’s OSHA and Labor & Employment attorneys discussed these important questions:

Continue reading

SPECIAL BONUS WEBINAR: COVID-19 Vaccines at the Workplace

On Thursday, February 18th from 1:00 P.M. – 2:15 P.M. (ET), join Conn Maciel Carey for a special bonus webinar regarding COVID-19 Vaccines at the Workplace.

Are you curious how the COVID-19 vaccine distribution effort works or is intended to work?  Is your organization considering standing up an onsite vaccination program or looking into options to facilitate the vaccination of your employees?  As this country embarks on a massive undertaking that involves a series of remarkable public/private partnerships, many employers are anxious to better understand how the supply chain works, who is making prioritization decisions and why, and what they can do now to help increase the number of arms that receive shots.  If you have questions about these issues or other vaccine rollout-related matters, we hope you will join us for an informative panel discussion moderated by Aaron Gelb, Partner in Charge of Conn Maciel Carey’s Chicago Office with special guests:

  • Lori Tremmel Freeman, CEO of the National Association of County and City Health Officials (NACCHO)
  • Michelle Kite, Retail Health and Safety Manager at Walgreens
  • Sonali Kshatriya, Pharmacist and Manager on the Walgreens Clinical Team
  • Fern Fleischer-Daves, OSHA Attorney at Conn Maciel Carey

Participants in this webinar will learn about: Continue reading

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

[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

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

By Fred Walter

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

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

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

But here is where it gets weird. Continue reading

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

By Conn Maciel Carey’s COVID-19 Task Force

We did not have to wait long for the big update we have been holding our breath about – what the Biden Administration’s plans will be for a federal COVID-19 emergency standard.  As we expected, in just his first full day in Office (January 21, 2021), President Biden has already issued an Executive Order focused on OSHA’s approach to managing the COVID-19 crisis in the workplace, but the answer about a federal COVID-19 ETS is not as clear as we expected, or at least, the definitive answer will come a little later.

In the Order entitled “Executive Order on Protecting Worker Health and Safety,” President Biden has directed federal OSHA to revisit its overall strategy for regulating and enforcing issues associated with workplace spread of COVID-19 to execute his Administration’s policy on worker safety:

“Ensuring the health and safety of workers is a national priority and a moral imperative. Healthcare workers and other essential workers, many of whom are people of color and immigrants, have put their lives on the line during the coronavirus disease 2019 (COVID-19) pandemic. It is the policy of my Administration to protect the health and safety of workers from COVID-19.”

Specifically, President Biden has directed the Assistant Secretary of Labor for OSHA to take four key actions relative to COVID-19 in the workplace: Continue reading

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

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

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