On August 2, 2021, OSHA announced a new Regional Emphasis Program (“REP”) focused on transportation tank cleaning operations in the rail and truck shipping industries. This is the second REP launched in Region 5 in less than a month; on June 14, 2021, OSHA commenced an REP to address hazardous noise levels in the Midwest. Employers who perform tank cleaning operations in Region 5, which covers Illinois, Ohio, Wisconsin, Michigan, Minnesota and Indiana, would be well-advised to dust off their copy of Conn Maciel Carey LLP’s OSHA Inspection Toolkit and take the necessary steps to ensure they are ready for the inspections that will begin before the end of the year.
Why Is OSHA Targeting Tank Cleaning Operations?
In the REP and accompanying press release, OSHA places a special emphasis on the dangers posed by the exposure to toxic fumes from cleaning chemicals or stored products that can build up inside a storage tank, as well as risks of fire or explosion when a worker must handle volatile materials in confined spaces. Additionally, OSHA warns that the workers cleaning these tanks may “face many serious and potentially deadly hazards caused by toxic fumes from chemicals, decaying crops, waste and other substances that can expose workers to suffocation, fires and explosions.” OSHA also highlighted several fatal accidents that occurred in the Midwest, noting that Region 5 has investigated 23 worker deaths and 97 incidents in the transportation and tank cleaning industries since 2016. According to OSHA, the hazards most often found during these inspections involved the failure to prevent the inhalation of harmful substances and to follow procedures for permit-required confined space requirements.
Membership in OSHA’s Voluntary Protection Programs (VPP) has long been coveted by employers with exceptional safety programs. VPP recognizes employers that implement effective safety and health management systems and maintain injury and illness rates below national averages for their industries. To be accepted into the Program, employers must undergo a rigorous onsite evaluation by a team of safety and health professionals and are re-evaluated every three to five years on myriad metrics to remain in the Program. Importantly, VPP members are exempt from OSHA programmed inspections. However, VPP came under intense scrutiny from the Obama/Biden Administration because it was perceived as being too easy for employers to get into, too difficult to be removed, and provided too much of an enforcement shield. With a transition back to a Democratic Administration, that negative view of VPP may resurface, resulting in further chipping away at participation opportunities and the attendant benefits to employers in the program.
This webinar examined the basics of VPP, and discussed possible changes to participation and the impact on employers that are currently flying or wish to fly the VPP flag. Participants learned: Continue reading →
Today’s topic on the Fed OSHA COVID-19 ETS is health screening and medical management.
29 C.F.R. Section 1910.502(l) sets forth employee screening, employer/employee notification, medical removal, medical removal protection benefits, and return-to-work requirements. This summary describes those requirements of the ETS.
A. Employee Screening
Employers have discretion in choosing whether to implement self-monitoring and/or in-person screening. Employers who choose to have employees self-monitor for COVID-19 symptoms can assist employees in that effort by providing them with a short fact sheet to remind them of the symptoms of concern. Employers may also consider posting a sign stating that any employee entering the workplace certifies that they do not have symptoms of COVID-19, to reinforce the obligation to self-screen before entering the workplace.
Employers who choose to conduct in-person employee screening for COVID-19 symptoms may use methods such as temperature checks and asking the employee if they are experiencing symptoms consistent with COVID-19. Employers should conduct this screening before employees come into contact with others in the workplace, such as co-workers, patients, or visitors.
To the extent employers choose to conduct onsite screening, there are important safety considerations to take into account. Continue reading →
Today’s topic on the Fed OSHA COVID-19 ETS is training.
29 C.F.R. Section 1910.502(n) requires that all employers covered by the ETS provide training to their employees. To the extent that the employer has already provided training and that training is compliant with the standard, the employer does not need to re-train employees. This summary describes the training requirements of the ETS.
If the employer has already provided training related to COVID-19, but the previous training did not cover all the elements required by the ETS, the employer must offer training on the elements it had not previously addressed.
As with other OSHA standards, the training required by the ETS must be administered at a literacy level and in a language employees understand. The trainer must be a person knowledgeable in the topics covered by the training and how they apply to the employee’s specific job tasks. Additionally, the training should be interactive, providing an opportunity for interactive questions and answers. An employer may satisfy the interactive requirement even if the employer offers a virtual training if the employer makes available a qualified trainer to address questions after the training or offers a telephone hotline where employees may ask questions.
The training must be designed to allow employees to understand the following: Continue reading →
fully vaccinated people can choose to wear a mask regardless of the level of transmission, particularly if they are immunocompromised or at increased risk for severe disease from COVID-19, or if they have someone in their household who is immunocompromised, at increased risk of severe disease or not fully vaccinated; and
fully vaccinated people who have a known exposure to a suspected or confirmed COVID-19 case be tested 3-5 days after exposure, and wear a mask in public indoor settings for 14 days or until they receive a negative test result.
Although the guidance speaks in absolutes, we think that the general limitations that have applied to all prior mask mandates throughout the pandemic continue to inform this updated guidance; i.e., “public indoor settings” is intended to cover locations where there is the potential for exposure to another individual, and not where an employee is “alone in a room” or “alone in a vehicle.”
Is Your County Experiencing Substantial or High Levels of Transmission?
To determine whether your workplace is in a county experiencing substantial or high transmission of COVID-19, the CDC uses two different indicators, the higher of which prevails:
total new cases per 100,000 persons over the past seven days; and
Having shared a series of predictions during our January webinar regarding how OSHA would tackle the COVID-19 pandemic and reshape its priorities under new leadership during the first year of the Biden Administration, we have now taken stock of what has happened at DOL and OSHA during the first months of the Biden Administration, discussed surprise developments, and looked ahead at the remainder of 2021 and beyond. We took a close look at senior leadership now in place or on the way and analyzed what those appointments likely mean for employers. We also reviewed OSHA’s efforts to address the COVID-19 pandemic, including the new healthcare-focused emergency temporary standard and updated guidance for everyone else. In addition, we examined President Biden’s efforts to make good on his promises to increase OSHA’s budget, grow the number of inspectors and generally ramp up enforcement. Lastly, we reviewed key developments in OSHA’s rulemaking agenda.
Here is a summary of the vaccine section of the guidance:
May employers ask employees about vaccination status under federal law? See FAQs K9, K5, K15, K16, K18, K19
Yes – does not violate ADA or GINA.
However, employer should not ask “why” an employee is unvaccinated, as this could compel the employee to reveal disability information that is protected under the ADA and/or GINA.
Recommended practice: If employer requires documentation or other confirmation of vaccination, “notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis.”
Is vaccination information “confidential” under the ADA? See FAQ K4
Yes, this includes documentation (i.e., the white vaccination card) or “other confirmation” of vaccination, which we presume means any self-attestation form or email from the employee, as well as any record, matrix, spreadsheet, or checklist created by the employer after viewing employees’ vaccination cards or receiving a verbal confirmations from employees.
The records or information must be kept confidential and stored separately from employee personnel files.
How may employers encourage employees and family members to get vaccinated? See FAQ K3Continue reading →