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:

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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

Coalition to Comment on Cal/OSHA’s Emergency COVID-19 Rulemaking

By Conn Maciel Carey’s COVID-19 Task Force

On September 17, 2020, the Standards Board voted to grant a Petition filed by the worker advocacy group WorkSafe to promulgate a general industry emergency COVID-19 regulation.  This emergency temporary standard will almost certainly be followed by the development of a permanent infectious disease standard.  The intent of the rulemaking is to set specific, enforceable requirements and prohibitions for California employers, whose employees may be exposed to COVID-19 in the workplace, but who are not covered by Cal/OSHA’s existing Aerosol Transmissible Diseases (ATD) standard (generally applicable to healthcare operations).

Serious Concerns About the Likely Proposed Emergency Regulation

Although Cal/OSHA has not yet published a proposed standard, the WorkSafe petition included a proposed rule that sets specific requirements for identifying and evaluating COVID-19 workplace hazards, responding to COVID-19 exposures, and conducting employee training, among numerous other requirements.  The scuttlebutt we are hearing suggests the Standards Board is likely to follow the WorkSafe’s proposed model for both this emergency rule and a follow-up permanent infectious disease standard.

Regardless of the approach the Standards Board follows, it will be imperative for the employer community to have its voice heard in the rulemaking process, with a set of robust comments and other advocacy.  But if the agency does try to run with a proposal like the one WorkSafe designed, we have already identified numerous potential concerns for employers, including: Continue reading

Oregon to Issue COVID-19 Temporary Standard in Early November (Compliance Deadlines in Early December)

By Conn Maciel Carey’s COVID-19 Task Force

On Friday, October 23, 2020, Oregon OSHA released the latest version of its proposed COVID-19 Emergency Temporary Standard (the “OR ETS”).  Already delayed several times, it now appears that the OR ETS will go into effect the week of November 2nd, and include 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 October 23rd draft 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.

Employers seeking to have input in the final rule have little time as Oregon OSHA presently plans to only accept written comments through Friday, October 30.  Depending on how extensive the feedback is submitted, Oregon OSHA will finalize the rule and adjust the various effective dates included in it depending upon its adoption date.

About 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 plans to develop and release materials to support work on the risk assessment, the written exposure control plan, and the training activities required in the rule.  The agency is also still revising an OSHA Hazards Poster that employers will be required to post in the workplace.

For the majority of employers, the OR ETS will require them to take steps and adopt measures that are similar, if not identical, to those we discussed in our blog posts regarding Virginia OSHA’s COVID-19 ETS and Michigan OSHA’s new COVID-19 emergency rules.  At its core, the emergency standard will require employers to develop and implement:

  1. COVID-19 Exposure Risk Assessments
  2. A Written COVID-19 Exposure Control Plan
  3. COVID-19 and Exposure Control Training
  4. Specific Engineering and Administrative Controls

We detail those 4 core requirements below. 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

[Webinar] Technology Solutions for Complying with COVID-19 Requirements

On Tuesday, September 8th at 1 PM ET, join Eric J. Conn (Chair of Conn Maciel Carey’s national OSHA Practice) and Nick Eurek (President and Co-Founder of Maptician) for a complimentary webinar regarding “Technology Solutions for Complying with COVID-19 Requirements.” 

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.

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Virginia OSHA Moves to Make Permanent Its New Infectious Disease Standard

By Conn Maciel Carey’s COVID-19 Task Force

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:

  1. Conduct a COVID-19 Hazard Assessment to categorize the risk exposures at the workplace (due by Aug. 26th);
  2. Deliver the first of two COVID-19 employee training events (due by Aug. 26th); and
  3. Implement a written infectious disease preparedness and response plan (due by Sept. 25th).

We have been helping our clients quickly get up to speed on the new emergency rule.  As part of that effort, we co-hosted a webinar with the head of VOSH’s Consultation Program and also prepared an FAQ document about the new rule.

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.

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FAQs About Virginia OSHA’s New COVID-19 Emergency Temporary Standard

On August 3rd, Eric J. Conn (Chair of Conn Maciel Carey’s national OSHA Practice), Susan Wilcox (a CIH and CSP with Virginia-based Safety Resource Associates), and special guest Jennifer Rose (Director of Cooperative Programs at VOSH) presented a webinar: “Everything You Need to Know About Virginia OSHA’s New COVID-19 Standard.VOSH FAQs

During the webinar, we collected numerous questions from participants about VOSH’s new COVID-19 Emergency Temporary Standard.  We have compiled all of those questions from the webinar into this written Q&A document with our answers and useful links throughout.  These FAQs have also been incorporated into our broader compendium of COVID-19 FAQs on Conn Maciel Carey’s COVID-19 Task Force Resource Page.

We are also pleased to share these links to a copy of the slides and a recording of the webinar, as well as our article here on the OSHA Defense Report blog about the lay of the land around VOSH’s new rule.  And below is a brief recap of the program.

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

[Webinar] Everything You Need to Know About Virginia OSHA’s New COVID-19 Standard

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 regardingEverything 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 infectionsVOSH Cover Slide 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

Virginia Promulgates the Nation’s First Mandatory COVID-19 Workplace Safety Regulation

By Conn Maciel Carey’s COVID-19 Task Force

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.  VA EOThe 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

Oregon OSHA Initiates Rulemaking for Emergency Temporary COVID-19 Standards

By Conn Maciel Carey’s COVID-19 Task Force

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.  Picture1The 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.

Continue reading