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

On November 17, 2020, Eric J. ConnMicah Smith and Beeta Lashkari presented a complimentary webinar: Process Safety Update: The Latest with OSHA PSM & EPA RMP.

Following the 2013 West Fertilizer explosion, then-President Obama issued Exec. Orders directing OSHA, EPA and other agencies to “modernize” the chemical process safety regulatory landscape. OSHA and EPA took sweeping actions, from enforcement initiatives (like a new PSM National Emphasis Program) to rulemakings and interpretation letters.

Then President Trump took office with a de-regulatory agenda.  But rather than unwavering deregulation, Trump Admin. initiatives in this area have been splintered, with some deregulatory work proceeding (e.g., rollback of RMP amendments), others coming to a complete halt (e.g., PSM reform rulemaking), and still others moving forward like business as usual (e.g., the Chem/REF PSM NEP inspections and the CSB’s new accidental release reporting rule).  And now, with the Presidential Election behind us (sort of), and a new Biden Administration looming, we could see another significant shake-up of the regulatory landscape.

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

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

This was the 11th regularly scheduled webinar in the 2020 OSHA Webinar Series. Click here to view our full schedule, detailed program descriptions, and individual registration pages for the remaining webinars in the 2020 OSHA Webinar Series.  To register for all of Conn Maciel Carey’s OSHA webinars, click here to send an email request, and we will get you automatically registered.

If you missed any of our past webinars in our annual OSHA Webinar Series, here is a link to Conn Maciel Carey’s webinar archive.
2020 OSHA Webinar Series Logo

If you missed any of our past webinars in our annual OSHA Webinar Series, here is a link to Conn Maciel Carey’s webinar archive.

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Like so many other aspects of our lives, our Annual Process Safety Summit in Washington, DC will look a little different in the year of COVID-19.  Rather than gathering together in person in our Nation’s Capital for two full days in October, the 3rd Annual Process Safety Summit will be a virtual event, and it will take place in shorter segments on December 8-9, 2020.

But what will not change is the Summit’s one-of-a-kind opportunity to convene safety and legal professionals from chemical manufacturing, petroleum refining, paper, and other process industries with the senior government officials responsible for regulating process safety.  Check out our working agenda and register today.

Check out the Process Safety Summit website for updates.
 
Register now!  General admission is $50.00.

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

On November 17, 2020, Eric J. ConnMicah Smith and Beeta Lashkari presented a complimentary webinar: Process Safety Update: The Latest with OSHA PSM & EPA RMP.

Following the 2013 West Fertilizer explosion, then-President Obama issued Exec. Orders directing OSHA, EPA and other agencies to “modernize” the chemical process safety regulatory landscape. OSHA and EPA took sweeping actions, from enforcement initiatives (like a new PSM National Emphasis Program) to rulemakings and interpretation letters.

Then President Trump took office with a de-regulatory agenda.  But rather than unwavering deregulation, Trump Admin. initiatives in this area have been splintered, with some deregulatory work proceeding (e.g., rollback of RMP amendments), others coming to a complete halt (e.g., PSM reform rulemaking), and still others moving forward like business as usual (e.g., the Chem/REF PSM NEP inspections and the CSB’s new accidental release reporting rule).  And now, with the Presidential Election behind us (sort of), and a new Biden Administration looming, we could see another significant shake-up of the regulatory landscape.

This webinar reviewed Continue reading

What Employers Need to Know About Mandatory COVID-19 Vaccines

By Conn Maciel Carey’s COVID-19 Task Force

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

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

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

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

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

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

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

Fed OSHA and State OSH Plans Address Ventilation to Reduce the Workplace Spread of COVID-19

By Conn Maciel Carey’s COVID-19 Task Force

While each week seems to bring news of new COVID-19 rules imposed by a state, county or city, federal OSHA continues to offer guidance of which employers should take notice.  Earlier this month, on November 5th, OSHA issued a new publication focused on ways employers can use ventilation to reduce the transmission of COVID-19 virus droplets through the air in their workplaces.

“Ensuring adequate ventilation throughout the work environment can help to maintain a safe and healthy workplace.”

The guidance provides a window into the types of questions OSHA may ask during future COVID-related inspections, and could be referenced as support for General Duty Clause violations.  Employees, as well as lawyers representing individuals bringing wrongful death actions on behalf of deceased employees, may also question why an employer opted not to evaluate ventilation systems and take some or all of the steps recommended by OSHA.

We had been bracing for guidance or regulatory requirements related to ventilation, with concerns that it would require capital projects to overhaul existing HVAC systems.  But fortunately, this guidance does not go that far, and in fact, most of the recommended steps are not particularly burdensome.  For example, OSHA suggests working with a heating, ventilation, and air conditioning (HVAC) specialist to ensure the employer’s HVAC systems are fully functional.  OSHA also recommends that employers open windows or provide other sources of fresh air wherever possible, and leave restroom exhaust fans on continuously while operating at maximum capacity — steps that can be achieved without infrastructure changes to the workplace.

More burdensome than leaving a bathroom fan running or a window open, however, OSHA also advises installing air filters with a Minimum Efficiency Reporting Value (MERV) rating of 13 or higher, where feasible (i.e., where the system can handle it), and using portable high-efficiency particulate air (HEPA) fan/filtration systems to increase clean air, especially in higher-risk areas.

When working with an HVAC specialist, the guidance recommends that employers also should confirm that Continue reading

Oregon OSHA Issues Final COVID-19 Temporary Standard (Compliance Deadlines in Early December)

By Conn Maciel Carey’s COVID-19 Task Force

Earlier this week, on Monday, November 9, 2020, Oregon OSHA released its final COVID-19 Emergency Temporary Standard (the “OR ETS”) after several delays.  Employers will have to act quickly to come into compliance, as the ETS goes into effect November 16th, with a series of major deadlines coming due in early December.

The ETS includes one set of mandates for all workplaces and another set for what it defines as “workplaces of exceptional risk” — namely those that include job duties related to direct patient care, aerosol-generating or post-mortem procedures, in-home care and/or direct client service in residential care or assisted living facilities.  The OR ETS also includes an appendix with “mandatory guidance” for 19 specific industries and/or workplace activities, including:

  • restaurants and bars;
  • retail;
  • construction;
  • veterinary clinics; and
  • entertainment facilities.

Explaining the need for an emergency rule, leadership at OR OSHA said this:

“The COVID-19 emergency has highlighted the risks that any infectious disease, particularly one that is airborne, can create for a wide variety of workplaces. As a result of both the immediate and long-term risks highlighted by the current public and occupational health crisis, Oregon OSHA is responding to the request that the state adopt an enforceable workplace health rule on an emergency basis this summer, to be replaced by a permanent rule.”

Oregon OSHA has plans to release materials on its website to support work on the risk assessment, the written exposure control plan, and the training activities required in the rule.  Presently, there is a template exposure risk assessment form available. The agency also released a poster that employers must post in the workplace.

For the majority of employers, the OR ETS requires that they Continue reading

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

On Tuesday, November 17th at 1 PM Eastern, join Eric J. Conn, Micah Smith and Beeta Lashkari for a complimentary webinar: Process Safety Update: The Latest with OSHA PSM & EPA RMP.

Following the 2013 West Fertilizer explosion, then-President Obama issued Exec. Orders directing OSHA, EPA and other agencies to “modernize” the chemical process safety regulatory landscape. OSHA and EPA took sweeping actions, from enforcement initiatives (like a new PSM National Emphasis Program) to rulemakings and interpretation letters.

Then President Trump took office with a de-regulatory agenda.  But rather than unwavering deregulation, Trump Admin. initiatives in this area have been splintered, with some deregulatory work proceeding (e.g., rollback of RMP amendments), others coming to a complete halt (e.g., PSM reform rulemaking), and still others moving forward like business as usual (e.g., the Chem/REF PSM NEP inspections and the CSB’s new accidental release reporting rule).  And now, with the Presidential Election behind us (sort of), and a new Biden Administration looming, we could see another significant shake-up of the regulatory landscape.

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

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

[Webinar Recording] Michigan OSHA’s New COVID-19 Emergency Rule

On October 29, 2020, Eric J. Conn, Aaron R. Gelb and Ashley D. Mitchell presented a bonus webinar event: Michigan OSHA’s New COVID-19 Emergency Rule.

When the MI Supreme Court struck down Gov. Whitmer’s COVID-19 Executive Orders, MI OSHA responded quickly to fill the void, and last week issued a series of COVID-19 Emergency Regulations. 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 regulations. While many of the requirements set forth in the new rules mirror the Governor’s prior EOs, having a prescriptive rule in place makes it that much easier for MI OSHA to issue citations to employers.

Given MI OSHA’s aggressive use of the General Duty Clause to support a series of citations after an inspection blitz over the summer, Michigan employers should expect enforcement to continue in a similar manner, making compliance with these rules all the more important.  Participants in this webinar learned about the requirements of MIOSHA’s COVID-19 emergency rules and steps to take to avoid citations, including:

Continue reading

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

By the Conn Maciel Carey COVID-19 Task Force

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

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

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

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

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

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

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

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

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

OSHA Publishes Employer Injury and Illness Data Collected Under the E-Recordkeeping Rule

By Eric J. Conn, Dan C. Deacon, and Beeta B. Lashkari

As the world continues to focus its attention on all things COVID-19 related – especially as the Centers for Disease Control and Prevention learns more and more about the virus and updates its guidelines — earlier this month, OSHA quietly published a treasure trove of employer injury and illness data as part of its Tracking of Workplace Injuries and Illnesses Rule (aka the “E-Recordkeeping Rule”).  The move comes after numerous attempts by OSHA under the Trump Administration to delay and narrow the requirements set forth in the original E-Recordkeeping Rule promulgated by OSHA in May 2016 during the final year of the Obama Administration, and also attempts by Trump’s OSHA to withhold from disclosure, even pursuant to FOIA requests, the injury and illness data collected pursuant to the Rule since 2016.

History of E-Recordkeeping Rule

The current version of the E-Recordkeeping Rule has undergone some changes and revisions, and indeed, as we previously posted here on the OSHA Defense Report, the Rule has had a long and tortured history.  Before promulgation of the E-Recordkeeping Rule, unless OSHA opened an enforcement inspection at an employer’s workplace or the Bureau of Labor Statistics requested an employer’s participation in its annual injury data survey, employer injury and illness recordkeeping data was maintained internally by employers.  In a major policy shift, on May 11, 2016, President Obama’s OSHA enacted the E-Recordkeeping Rule, requiring hundreds of thousands of workplaces to submit injury and illness data through OSHA’s Injury Tracking Application (“ITA”).  At that time, the Rule also included a provision in which employer injury and illness data would be made available to the public on a searchable online database without scrubbing employer names or location details.

More specifically, the 2016 E-Recordkeeping Rule required:

  1. All establishments with 250 or more employees in industries covered by the recordkeeping regulation to submit to OSHA annually their injury and illness data and information from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries;
  2. Establishments with 20-249 employees in select “high hazard industries” to annually submit information from their 300A Annual Summaries only;
  3. All submissions to be done electronically, via a purportedly secure OSHA website portal; and
  4. Employer’s injury data to be publicized in a “user-friendly” database for all the world to see.

There were numerous legal challenges to the Rule, some of which are still being litigated.  Continue reading

CDC Guidance for Retail and Service Industries on Workplace Violence Associated with COVID-19 Policies

By Conn Maciel Carey’s COVID-19 Task Force

In recent months, we have heard too many stories and seen too many viral videos about retail clerks and restaurant employees facing violent attacks and threats from belligerent anti-mask customers who have been refused service or otherwise asked to adhere to the mask mandates issued by the Governors or Health Departments in their states.  This includes the tragic tale of the store security guard who was shot and killed in Michigan after telling a customer at a discount store to wear a state-mandated face mask.

Responding to the surge in workplace violence faced by retailers and others in the service industries, on September 1, 2020, the CDC issued guidance on Limiting Workplace Violence Associated with COVID-19 Prevention Policies in Retail and Services Businesses.  The new guidance covers how to manage the threat of violence from customers or others who are asked to comply with Governors’ or Health Department mandates or the businesses’ own infection control policies, such as requiring masks to be worn by customers, asking customers to follow social distancing rules, and setting limits on the number of customers allowed inside at one time.  Specifically, the guidance discourages retailers from becoming the enforcer in these situations, and includes recommendations like calling 911 and not arguing with a customer who refuses to comply with the rules. 

This guidance is vital as we have seen the opposite instruction from such governmental agencies as Michigan OSHA (“MIOSHA”), Oregon OSHA (“OR OSHA”), and the New Mexico Occupational Health and Safety Bureau (“NMOHSB”).  Indeed, those state OSH Programs have been issuing citations and shutdown orders for retailers and restaurants who do not refuse service to customers unwilling to wear a face covering onsite.  CDC’s guidance will hopefully force these agencies to be sensible about the terrible dilemma they are forcing on businesses and their front line employees who feel the brunt of these enforcement policies that would turn them into law enforcement. Continue reading

Conn Maciel Carey Expands Midwest Practice with Addition of Talented L&E Attorney

Conn Maciel Carey LLP, a boutique law firm with national practices in OSHA • Workplace Safety, Labor & Employment, and Litigation, is pleased to announce that Ashley Mitchell has joined the firm as an attorney in its Chicago office.

Ms. Mitchell, an employment litigator, will represent clients in a wide range of employment litigation and counsel clients on the myriad legal issues employers face in the workplace.  She also will defend employers in inspections, investigations and enforcement actions involving federal OSHA and neighboring state plan agencies.

“Ashley brings a unique perspective to our employment litigation, counseling and training practice having started her career working with prominent plaintiff-side employment law firms here in Chicago, where she also developed experience dealing with policies, procedures and practices that directly impact workplace safety and health,” said Aaron Gelb, co-head of the firm’s Chicago office.  “Ashley is ideally suited to pivot from working on pension withdrawal matters one day to preparing for a labor arbitration the next,” said Mark Trapp, co-head of the Chicago office.

“We are committed to strategically growing our practices and geographic locations, and adding Ashley to our seasoned team in the Midwest will allow Conn Maciel Carey to continue to provide the excellent client service with a focus on practical and creative advice that our national and regional clients are looking for,” said Kara Maciel, Chair of the firm’s Labor • Employment Practice. Eric Conn, Chair of the firm’s OSHA • Workplace Safety Practice added, 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.

Continue reading

Update on Cal/OSHA’s Wildfire Smoke Rule

By Andrew Sommer and Fred Walter

In May of this year, Conn Maciel Carey’s OSHA Practice submitted comments to the Cal/OSH Standards Board on behalf of the Wildfire Smoke Rule Industry Coalition about the agency’s effort to make permanent what had been Emergency Temporary Standard to protect workers from the respiratory hazards of California wildfires.

Last month, the Cal/OSH Standards Board issued a 15-day Notice of Proposed Modifications to what would become the permanent wildfire smoke rule. The proposed changes are not major, mostly clarifying that one of the methods for determining the Air Quality Index for particulate matter 2.5 is the Interagency Wildland Fire Air Quality Response Program.

Another change to be expected in the final rule is a revision to the Appendix B training instructions to address cleaning and maintenance of reusable respirators, purportedly to address critical shortages of N95 respirators exacerbated by the COVID-19 pandemic. While anything that extends the supply of N95 masks is welcome, that change alone is not nearly enough to solve a massive compliance problem created by the rule. With the Wildfire Smoke Rule, DOSH requires workers exposed to wildfire smoke be supplied with N95 respirators, and it does not consider surgical masks to be acceptable substitutes. DOSH concedes that N95 respirators are generally not available to any but medical workers right now, but they have no recommended substitutes.

That was one of the primary points of emphasis in our coalition’s comments — the rule needed to include some flexibility around the requirement for employers to supply N95 respirator masks for all potentially affected workers. There were already problems with N95 shortages even before the COVID-19 pandemic, but now, the shortage is extreme, and with the CDC’s and OSHA’s recommendations that all supplies of N95s should be reserved for the healthcare industry obviously makes compliance with a a rigid N95 requirement for wildfire smoke protection impossible for most employers. Now in the midst of another wildfire season in California, employers are continuing to experience N95 shortages.

Continue reading

OSHA and FDA Issue COVID-19 Checklist for Food Industry Workplaces

By Conn Maciel Carey’s COVID-19 Task Force

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;
  • Signage;
  • Coordination with public health officials;
  • Exposure scenarios and return-to-work criteria;
  • Hand hygiene and respiratory etiquette;
  • Flexible sick leave policies;
  • Cleaning/disinfecting; and
  • PPE and face coverings.

The checklist also includes some more topics somewhat unique to the food industry, such as:

  • Shared/communal housing;
  • Recommendations for critical infrastructure workers;
  • Social distancing configurations for harvesting and along production lines; and
  • Process Safety Management considerations for facilities with ammonia refrigeration systems that may have been shut down. 
Continue reading

Michigan OSHA Launches COVID-19 Enforcement Emphasis Program Targeting Retail and Restaurants

By Conn Maciel Carey’s COVID-19 Task Force

Over the course of the last month, several of our retail clients have been visited by Michigan OSHA (MIOSHA) for COVID-19 enforcement inspections in circumstances without an employee complaint or any self-reported work-related COVID-19 hospitalization or death.  The reason for these inspections, it turns out, is MIOSHA has launched a State Emphasis Program (SEP) on COVID-19 in Bars, Restaurants, Gas Stations, Grocery and Convenience Stores, and Other Retail.  We got our hands on the Directive for the Emphasis Program. Here’s a summary of what Michigan employers in those industries need to know about MIOSHA’s new enforcement strategy.

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.”

The inspections are evaluating the employer’s adherence to Governor Whitmer’s Executive Orders for COVID-19, OSHA Guidance on Preparing Workplaces for COVID-19, and applicable CDC guidance for COVID-19.

The agency has created a targeting list of retail/hospitality businesses broken down as follows:

Continue reading

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.

Continue reading

Coalition for Uniformity in COVID-19 Recordkeeping Advocates for Cal/OSHA to Realign its Requirements

By Conn Maciel Carey’s COVID-19 Task Force

As we previously reported, in late May, Cal/OSHA issued a new set of COVID-19 Recordkeeping and Reporting FAQs that represented a serious departure from federal OSHA’s guidance on that same subject.  Throughout the pandemic, federal OSHA has maintained that employers need only record and report COVID-19 cases that are:

  1. Confirmed by a positive laboratory test of a respiratory specimen; and
  2. “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, Cal-OSHA RK FAQSestablishing 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

[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

OSHA Releases COVID-19 Guidance for the Oil and Gas Industry

By Conn Maciel Carey’s COVID-19 Task Force

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.  Picture1The  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:

  1. 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
  2. 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

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

OSHA Issues COVID-19 FAQs about Respirators, Face Masks, and Face Coverings

By Conn Maciel Carey’s COVID-19 Task Force

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.Face Covering FAQs

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.

As a general rule, Continue reading

National Forklift Safety Day: OSHA Enforcement of Powered Industrial Truck Requirements

By Eric J. Conn and Nick W. Scala

Forklifts, or powered industrial trucks, continue to be one of the most essential and most heavily cited pieces of equipment within material handling, which makes today – National Forklift Safety Day – sponsored by the Industrial Truck Association, an opportune time to review some of the most common areas of OSHA enforcement for powered industrial trucks (“PIT”).Capture

Recent data from OSHA indicates that in FY2019 there were over 2500 citations issued under §1910.178, which contains OSHA’s standard on PIT. This was the seventh most frequently cited standard by OSHA that year and according to OSHA, and specifically at the sub-sections of enforcement under §1910.178, the most commonly cited elements of the standard in FY2019 were:

  • 178(l)(1)(i) – operator training: ensuring that operators are competent to safely operate a powered industrial truck as demonstrated by completion of training and evaluation;
  • 178(l)(4)(iii) – refresher training and evaluation: evaluation of operator’s performance must be conducted at least once every three years;
  • 178(l)(6) – certification of operator training and evaluation;
  • 178(p)(1) – taking powered industrial trucks out of service when in need of repair, defective, or unsafe; and
  • 178(l)(1)(ii) – operator training: ensuring completion of training prior to permitting employee to operate powered industrial truck.

It is imperative that employers utilizing PIT remain consistent when implementing training programs for material handling, and also know when to retrain. Not only must a recertification take place at least once every three years, as outlined in §1910.178(I)(4(iii), but refresher training must also be provided to operators if: Continue reading