Does Novel “Greenwashing” Enforcement Action Portend a New Trend?
Environmental Organizations Petition EPA to Expand Enforcement of Clean Air Act’s General Duty Clause
By: Todd C. Toral and PJ M. Novack
Lawsuits over alleged misleading environmental marketing claims, or “greenwashing,” are nothing new. It has been nearly 30 years since the Federal Trade Commission (FTC) released its first version of the “Green Guides,” which are intended to help marketers avoid the practice. Since then, there have been many greenwashing actions before the FTC. More broadly, the FTC has pursued a number of suits in federal court, such as false advertising claims over the terms “clean diesel” and “100% organic.” But last month, in a first, several environmental groups petitioned the FTC to use its Green Guides offensively against a fossil fuel company for “misleading consumers on the climate and environmental impact of its operations.”
On March 16, 2021, Earthworks, Global Witness, and Greenpeace USA filed a complaint against Chevron for misleading consumers through advertisements that exaggerate the company’s investment in renewable energy and its commitment to reducing fossil fuel pollution. The action comes on the heels of Chevron’s new “Climate Change Resilience” report, where Chevron outlined its contributions against climate change. The environmental groups argue that Chevron misrepresents its image to appear climate-friendly and racial-justice oriented, while actually doing more harm than good. In support of their claims, the environmental groups point out that Chevron is the second most polluting company in the world and had spent only 0.2% of its capital expenditures on low-carbon energy sources between 2010-2018.
Considering the recent change in administrations, this action may represent a new trend where consumer and environmental groups are willing to take on major oil companies by petitioning a potentially more consumer-friendly FTC. President Biden currently has an opportunity to fill the vacant FTC seat and tip the balance of power toward Democrats. Moreover, President Biden has signaled his personal support for environmental causes by halting oil and gas sales and canceling the Keystone XL crude pipeline. Given the shifting sands, companies should be prepared for new and perhaps more creative enforcement actions.
By Matthew G. Lawson
Various environmental organizations, led by the Environmental Integrity Project (“EIP”), are urging the United States Environmental Protection Agency (“EPA”) to expand enforcement of Section 112(r)(1) of the Clean Air Act (CAA)—commonly known as the General Duty Clause (“GDC”)—in order to more closely regulate the handling of hazardous substances at industrial facilities permitted under the CAA. EIP’s ongoing efforts include petitioning EPA to require that the obligations of the GDC be incorporated in state-issued Title V air emission permits, such that these obligations may be enforced against permit holders by state regulators or through citizen suits. As explained below, efforts to expand enforcement of the GDC were for the most part blocked under the Trump Administration’s EPA, but it remains to be seen whether these efforts may achieve renewed success under the Biden Administration.
The GDC, which was first enacted as part of the 1990 amendments to the CAA, requires that owners and operators of regulated facilities that handle, process, or store “extremely hazardous substances” take certain actions to “prevent the accidental release and … minimize the consequences of any  release” of such substances. Specifically, the GDC requires facility owners and operators to: (i) conduct a hazardous risk assessment to identify potential risks from extremely hazardous substances at their facilities; (ii) design and maintain safe facilities that protect against releases; and (iii) develop and implement protocols to minimize the consequences from any accidental releases. While “extremely hazardous substances” is not defined by the GDC, the Senate Report from the 1990 CAA amendments provides that “extremely hazardous substance” includes any agent “which may as the result of short-term exposures associated with releases to the air cause death, injury or property damage due to its toxicity, reactivity, flammability, volatility, or corrosivity.” Although not necessarily exhaustive, EPA has created a list of extremely hazardous substances in 40 CFR part 68. Jurisdiction for enforcement of the GDC remains an issue of contention between EPA and environmental organizations. While enforcement of the GDC has traditionally been left to the exclusive purview of EPA, environmental groups are increasingly arguing that state air authorities can and should request delegation authority from the EPA to enforce the GDC at permitted facilities within their jurisdiction.
A key example of EIP’s efforts to increase enforcement of the GDC is provided in the organization’s April 14, 2020 Petition Objecting to a Title V Permit issued to Hazlehurst Wood Pellets LLC (“Hazlehurst”), a wood pellet mill operating in the State of Georgia. At the time of the petition, Hazlehurst’s Title V permit had been approved by state authorities, but remained subject to final review by EPA. EIP’s Petition asked EPA to deny Hazlehurst’s air emissions permit on the grounds that the permit failed to recognize or incorporate the requirements of the GDC. According to the Petition, ensuring compliance with the GDC was critical due to the fact that Hazlehurst regularly handles hazardous products, including “copious amount of wood dust,” which had previously caused flash fires at the facility. The Trump Administration EPA’s subsequent Order Denying the Petition rejected EIP’s request, finding that the GDC is not an “applicable requirement” for the purposes of Title V, and as such, “Title V permits need not—and should not—include terms to assure compliance with the [GDC] as it is an independent requirement…” EPA reasoned that if the requirements of the GDC were integrated into a Title V permit, the obligations would ostensibly be enforceable through citizen suits. Concluding that “neither citizens nor state and local air agencies may enforce the [GDC] under the CAA,” EPA rejected the Petition. At the same time, EPA clarified that because the GDC is “self-implementing,” it is independently enforceable by EPA and applies even when it is not expressed as part of a facility’s air permit.
While EPA’s Order denied the environmental organization’s request to expressly require GDC compliance in Title V permits, the Order did make clear that facilities holding Title V permits are still subject to the GDC’s requirements which may be enforced by EPA. According to recently issued EPA Guidance on the GDC, owners and operators who maintain extremely hazardous substances must adhere, at a minimum, to recognized industry standards and any applicable government regulations for handling such substances. While it remains to be seen whether the Biden Administration EPA will continue to resist expressly incorporating the GDC in Title V permits, the Biden Administration’s emphasis on regulatory compliance and environmental justice indicates that future enforcement of the GDC is likely to increase. For this reason, facilities holding air emission permits should review their existing protocols for handling and storing hazardous substances and ensure these protocols are consistent with prevailing industry standards and the requirements of the GDC.
Oil Industry Scores Big Win in Second Circuit Greenhouse Gas Litigation
By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice
Breaking from the pack and potentially creating a circuit split, the Second Circuit’s decision in City of New York v. Chevron, et al. dismissing New York’s City’s climate change lawsuit is a significant victory for the oil and gas industry. The unanimous ruling from the Second Circuit affirmed a district’s court decision dismissing New York’s common law claims, finding that issues such as global warming and greenhouse gas emissions invoked questions of federal law that are not well suited to the application of state law.
Taking a slightly different tact than state and local plaintiffs in other climate change lawsuits, the State of New York sued five oil producers in federal court asserting causes of action for (1) public nuisance, (2) private nuisance, and (3) trespass under New York law stemming from the defendants’ production, promotion and sale of fossil fuels. New York sought both compensatory damages as well as a possible injunction that would require defendants to abate the public nuisance and trespass. Defendants filed motions to dismiss that were granted. The district court determined that New York’s state-law claims were displaced by federal common law and that those federal common law claims were in turn displaced by the Clean Air Act. The district court also concluded that judicial caution counseled against permitting New York to bring federal common law claims against defendants for foreign greenhouse gas emissions.
The Second Circuit agreed with the district court, noting that the problems facing New York can’t be attributed solely to greenhouse gas emissions in the state nor the emissions of the five defendants. Rather, the greenhouse gas emissions that New York alleges required the City to launch a “$20 billion-plus multilayered investment program in climate resiliency across all five boroughs” are a byproduct of emissions around the world for the past several hundred years.
As the Second Circuit noted, “[t]he question before it is whether municipalities may utilize state tort law to hold multinational oil companies liable for the damages caused by greenhouse gas emissions. Given the nature of the harm and the existence of a complex web of federal and international environmental law regulating such emissions, we hold that the answer is ‘no.’”
Finding that New York’s state common law claims were displaced by federal common law, the Second Circuit then considered whether the Clean Air Act displaced these federal common law claims. The Second Circuit noted that the Supreme Court in Am. Elec. Power Co. v. Connecticut (AEP) (2011) had previously held that the “’Clean Air Act and the EPA actions it authorizes displace any federal common-law right to seek abatement’ of greenhouse gas emissions.” As to the State’s damage claims, the Second Circuit agreed with the Ninth Circuit’s reasoning in Native Vill. Of Kivalina v. Exxonmobil Corp. (9th Cir. 2012) that the “displacement of federal common law does not turn on the nature of the remedy but rather on the cause of action.” As such, the Second Circuit held that “whether styled as an action for injunctive relief against the Producers to stop them from producing fossil fuels, or an action for damages that would have the same practical effect, the City’s claims are clearly barred by the Clean Air Act.
The Second Circuit was careful to distinguish its holding from the holdings reached by the First, Fourth, Ninth and Tenth circuits in prior climate change cases, noting that in those other cases, the plaintiffs had brought state-law claims in state court and defendants then sought to remove the cases to federal courts. The single issue in those cases was whether defendants’ federal preemption defenses singlehandedly created federal question jurisdiction. Here, because New York elected to file in federal as opposed to state court, the Second Circuit was free to consider defendants’ preemption defense on its own terms and not under the heightened standard applicable to a removal inquiry.
Whether the Second Circuit’s decision has any impact on BP PLC, et al. v. Mayor and City Council of Baltimore, a case that has now been fully briefed and argued before the Supreme Court remains to be seen. The Baltimore case was one of the state court cases discussed above that was removed to federal court. The defendants had alleged a number of different grounds for removal, one of which is known as the “federal officer removal statute” that allows removal to federal court of any lawsuit filed against an officer or person acting under that office of the United States or an agency thereof. The limited issue before the Supreme Court was whether the appellate court could only consider the federal-officer removal ground or whether it could instead review any of the grounds relied upon in defendants’ removal petition.
Some commenters have noted that the Second Circuit’s decision creates a circuit split that may embolden the Supreme Court to address these climate change cases in one fell swoop. The more likely scenario, however, is that the Supreme Court limits its opinion to the narrow issue before it and leaves resolution of whether state law climate change nuisance actions are preempted by federal law for another day.
Unexplained PFAS Contamination at Petroleum Spill Site Mystifies Environmental Regulators
By Steven M. Siros and Matthew G. Lawson
The North Carolina Department of Environmental Quality (DEQ) is continuing to investigate an unexplained source of per-fluorinated compounds (PFAS) contamination that may be associated with the deployment of a fire-fighting compound in response to a major gasoline release by the Colonial Pipeline system on August 14, 2020. The Colonial Pipeline, which spans 5,500 miles from Houston, Texas, to Linden, New Jersey, runs through a number of southern and mid-Atlantic states, including North Carolina. The active pipeline delivers an average of 100 million gallons of liquid petroleum products each day. On August 14, 2020, a leak in the pipeline resulted in the release of approximately 1.2 million gallons of gasoline into the environment near the town of Huntersville, North Carolina. The release was the largest onshore gasoline spill in the United States in over 20 years and in connection with Colonial Pipeline’s emergency response to that release, Colonial Pipeline sprayed a commonly used fire suppressant known as F-500 encapsulate on the contaminated land to minimize the risk that vapors from the release would ignite.
However, following Colonial Pipeline’s initial emergency response, new questions have emerged regarding PFAS that was detected at the release site. As part of the ongoing efforts to investigate the nature and extent of the gasoline release, DEQ directed Colonial Pipeline to collect samples from the F-500 encapsulate and test that encapsulate for various PFAS formations. The resulting test data found elevated levels—as high as 22,600 parts per trillion (“ppt”)—of at least three different PFAS compounds. Samples of a nearby surface water showed PFAS concentrations ranging from 1 ppt to 14.9 ppt.
The source of the PFAS is not readily apparent, however, because as verified by the Safety Data Sheet , F-500 is not known to contain PFAS compounds. In fact, F-500 acts differently than aqueous film forming foam (AFFF) to fight fires. AFFF is intended to separate oxygen from the fuel while F-500 works by removing the heat, neutralizing the fuel, and interrupting the free radical chain reaction. As such, it does not rely on fluorine compounds for effectiveness.
It is possible that the source of the PFAS identified by Colonial Pipeline was a result of residual AFFF residing in the storage tank or in the fire-fighting equipment that was used to dispense the F-500 encapsulating agent. The F-500 was transported to the site by the Pelham Alabama fire department and the fire-fighting equipment that sprayed the F-500 was supplied by the Hunterville Fire Department. However, notwithstanding that the equipment was supplied by the municipal fire departments and that the F-500 is not known to contain PFAS compounds, DEQ has still requested that Colonial Pipeline provide data demonstrating that there have been no PFAS impacts to soil or groundwater as a result of the emergency response.
This a cautionary tale for environmental health and safety professionals charged with maintaining emergency spill response materials, including fire suppressant products, for their respective organizations. Such professionals are faced with a unique challenge of ensuring that products maintained for spill containment or remediation purposes are not only fit for these purposes, but also that these products do not contain chemicals that pose a potential threat to human health or the environment. This challenge is particularly acute with PFAS, of which there are over 5,000 different formulations which can be found in a large variety of different consumer and industry products. Even if a decision is made to swap out one product that may historically contained PFAS with a new product that is purportedly PFAS-free, care should be taken to ensure that product distribution equipment is PFAS-free. Otherwise, one might find oneself in the unfortunate position of having to defend against claims relating to PFAS impacts in the environment.
California Federal District Court Grants Preliminary Injunction in Proposition 65 Acrylamide Case
By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice
On the heels of a 2020 decision in National Association of Wheat Growers, et al. v. Becerra that barred the State of California from requiring Proposition 65 warnings for glyphosate-based pesticides because those warnings violated the First Amendment, another California District Court has thrown up a First Amendment roadblock for Proposition 65 claims relating to acrylamide in food and beverage products. As explained in more detail below, on March 29, 2021, the District Court granted a preliminary injunction in favor of the California Chamber of Commerce (Chamber) barring future State and private party Proposition 65 lawsuits alleging a failure to warn of acrylamide in food and beverage products.
The Chamber filed its lawsuit in October 2019 alleging that because the State did not “know” that eating food with acrylamide causes cancer in people, Proposition 65 violated the First Amendment because it mandated that businesses place warnings on food and beverage products stating that acrylamide is known to the State to cause cancer. The Council for Education and Research on Toxics (CERT)--a nonprofit organization that frequently files private party Proposition 65 lawsuits--intervened in the matter.
The Chamber requested a preliminary injunction to bar the State and any private litigant from filing new lawsuits to enforce Proposition 65 against businesses that do not warn consumers that acrylamide in food is “known to the State of California to cause cancer”. Both the State and CERT opposed the request for a preliminary injunction, arguing that the Chamber had not met its burden. CERT also argued that the preliminary injunction would be an unconstitutional prior restraint on its First Amendment right to bring Proposition 65 enforcement claims.
The Court quickly dismissed CERT’s unconstitutional restraint argument noting that if the Chamber is correct that Proposition 65 lawsuits targeting acrylamide are violative of the First Amendment, then the lawsuit has an illegal objective and therefore can be enjoined without violating the First Amendment. In considering whether the Chamber was likely to succeed on the merits of the complaint, the Court then proceeded to examine the Proposition 65 safe harbor warning which states as follows: “Consuming this product can expose you to [acrylamide], which is … known to the State of California to cause cancer.” After examining the scientific evidence presented to the Court, the Court found that the State had not shown that this warning was purely factual and uncontroversial.
Although the Court acknowledged that high exposure animal studies showed an increased incidence of cancer, dozens of epidemiological studies had failed to tie human cancer to a diet of food containing acrylamide. After considering the competing expert testimony, the Court concluded that the “safe harbor warning is controversial because it elevates one side of a legitimately unresolved scientific debate about whether eating goods and drinks containing acrylamide increases risk of cancer.” The Court recognized California’s substantial government interest in protecting the health and safety of consumers but concluded that at this stage of the litigation, the Chamber had shown that the Proposition 65 warning that the State demands does not directly advance that interest and is more extensive than necessary.
Finally, in evaluating whether the Chamber had demonstrated that it would suffer irreparable harm, the Court acknowledged the significant increase in Proposition 65 acrylamide pre-litigation notices and lawsuits over the past several years. As the Court noted, irreparable harm is relatively easy to establish in a First Amendment case like this and this burden was met by the Chamber. As such, the Court granted the Chamber's request for a preliminary injunction.
Again, it is important to note that this is just a preliminary injunction that bars future State and private party Proposition 65 acrylamide lawsuits while the case proceeds on the merits. However, this decision, along with the 2020 Wheat Growers decision noted above, may evidence a willingness on the part of California courts to give serious credence to First Amendment challenges to Proposition 65 warning requirements and may represent a light at the end of the Proposition 65 tunnel for entities that sell food and beverage products in California (and this time, it may not be the light from a train).
Congressional Review Act Resolution Introduced to Revoke EPA Methane Rule—Does this Open the CRA Floodgates?
By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice
On March 25, 2021, Democrats in the Senate and House of Representatives introduced joint resolutions pursuant to the Congressional Review Act (CRA) that if approved by Congress and signed by President Biden would rescind the Trump-era rollback of Obama-era regulations that (1) imposed methane-specific emission limits on “production and processing” segments of the oil and gas industry and (2) required that transmission lines and storage equipment be inspected for methane leaks and repaired in a timely manner in accordance with the New Source Performance Standards for the Oil and Natural Gas Industry. The CRA resolution, if approved by Congress and signed by President Biden, would reinstate these Obama-era regulations for the oil and gas industry.
The CRA, which was enacted in 1996, is a tool that allows Congress to disapprove a range of regulatory rules issued by federal agencies by first approving a joint resolution of disapproval that then goes to the President for signature. If signed by the President, the disapproved rule either does not take effect or does not continue. In addition, once a joint resolution of disapproval is enacted, the CRA provides that a new rule may not be issued in “substantially the same form” as the disapproved rule. Congress has a limited window to act—the CRA requires that a joint resolution of disapproval must be introduced within 60 legislative working days of the date that the rule was submitted to Congress.
The CRA had not been widely used prior to the Trump administration and the Democrats had widely criticized President Trump's prior use of the CRA to rescind Obama-era regulations. As such, there had been some uncertainty as to whether the Democrats would embrace this tool in light of their prior opposition and hostility to the use of the CRA by many environmental groups. However, with this joint resolution and another March 23rd CRA resolution to disapprove of the Equal Employment Opportunity Commission’s conciliation rule, the CRA floodgates may have opened. The resulting deluge will likely be of short duration, however, as the window for CRA disapprovals for Trump-era actions is expected to close on April 4th.
EPA Finalizes Revised Cross-State Air Pollution Rule Update: Emissions Reductions Required at Certain Power Plants Beginning in May
By Allison A. Torrence
On March 15, 2021, EPA finalized the Revised Cross-State Air Pollution Rule (“CSAPR”) Update for the 2008 ozone National Ambient Air Quality Standards (“NAAQS”). This final rule is issued pursuant to the “good neighbor provision” of the Clean Air Act and in response to the D.C. Circuit’s remand of the previous version of the CSAPR Update in Wisconsin v. EPA on September 13, 2019. The previous version of the CSAPR Update was issued in October 2016, and was found to be unlawful because it allowed certain states to continue their significant contributions to downwind ozone problems beyond the statutory dates by which the downwind states were required to be in compliance with the NAAQS. The Revised CSAPR Update attempts to address the deficiencies identified by the D.C. Circuit.
Beginning in the 2021 ozone season (the ozone season is May 1 through September 30), the Revised CSAPR Update will require additional emissions reductions of nitrogen oxides (“NOX”) from power plants in 12 states: Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, and West Virginia. EPA determined that additional emissions reductions were necessary in these 12 states because projected 2021 ozone season NOX emissions from these states were found to significantly contribute to downwind states’ nonattainment and/or maintenance problems for the 2008 ozone NAAQS. NOX is an ozone precursor, which can react with other ozone precursors in the atmosphere to create ground-level ozone pollution (a/k/a smog). These pollutants can travel great distances, often crossing state lines and making it difficult for downwind states to meet or maintain the ozone NAAQS.
As part of the Revised CSAPR Update, EPA is issuing new or amended Federal Implementation Plans (“FIPs”) for these 12 states that will replace those states’ existing CSAPR emissions budgets for power plants. The revised emission budgets will take effect with the 2021 ozone season and will adjust through 2024. The 2021 emission budgets will require power plants in these states to take advantage of existing, already-installed selective catalytic reduction (“SCR”) and selective non-catalytic reduction (“SNCR”) controls. Emissions reductions in the 2022 budgets will require installation or upgrade of state-of-the-art NOX combustion controls at power plants. Emission budgets will continue to be adjusted, through 2024, until air quality projections demonstrate that the upwind states are no longer significantly contributing to downwind states’ nonattainment of the 2008 ozone NAAQS.
EPA projects that the Revised CSAPR Update will provide significant public health benefits. According to EPA:
Due to this rule and other changes already underway in the power sector, ozone season NOx emissions will be nearly 25,000 tons lower in 2021 than in 2019, a reduction of 19 percent. The reduction in emissions is estimated to prevent about 290,000 asthma events, 560 hospital and emergency room visits, 110,000 days of missed work and school, and up to 230 premature deaths in 2025. The public health and climate benefits are valued, on average, at up to $2.8 billion each year over the period 2021 to 2040.
This is compared to the annualized costs of the rule, which EPA estimates to be, on average, $25 million each year over the same period from 2021 to 2040.
The Revised CSAPR Update will be effective 60 days after it is published in the Federal Register, which should happen in the next week or two. More information about the CSAPR Update can be found on EPA’s Website.
Where is OSHA’s COVID-19 ETS? No Where the Ides of March.
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On his first full day in office, President Biden issued an Executive Order on Protecting Worker Health and Safety, which required OSHA to “consider whether any emergency temporary standards on COVID‑19, including with respect to masks in the workplace, are necessary,” and if so, to issue such emergency temporary standards (ETS) by March 15, 2021. Executive Order 13999, § 2(b) (Jan. 21, 2021), 86 FR 7211 (Jan. 26, 2021). An ETS, which skips the initial notice and comment process before it is in effect, can be issued pursuant to Section 6(c) of the OSH Act if OSHA determines that employees are exposed to “grave danger” and that an emergency standard is “necessary” to protect them from the grave danger. 29 USC § 655(c).
March 15, 2021 came and went; no ETS was issued. As of this writing, OSHA has not made a public statement as to why it did not issue an ETS on March 15, or the agency’s considerations and future plans regarding an ETS. Why might OSHA have chosen not to act now? What has OSHA done instead? What ETS might be on the horizon?
Why Might OSHA Have Decided Not to Issue an ETS Now?
There is considerable legal risk that a COVID-19 ETS will not hold up in court. OSHA has not successfully issued an ETS since 1978. Its last attempt to issue an ETS would have regulated asbestos exposure and was invalidated by the US Court of Appeals in 1984. In Asbestos Info. Ass’n v. OSHA, 727 F.2d 415 (5th Cir. 1984), the court rejected the ETS because OSHA did not sufficiently support its conclusion of a “grave danger,” i.e., that 80 people would die in the next six months without the ETS and that OSHA could not show that an asbestos ETS was “necessary” given its existing respiratory standard.
As an additional legal hurdle, OSHA, in the last administration, has already gone on record that an ETS is unnecessary, and won that position in federal court. On June 11, 2020, the US Court of Appeals for the D.C. Circuit denied the AFL-CIO’s petition for a writ of mandamus to compel OSHA to issue an ETS for Infectious Diseases. The three-judge panel found that “OSHA reasonably determined that an ETS is not necessary at this time” given the “unprecedented nature of the COVID-19 pandemic, as well as the regulatory tools that the OSHA has at its disposal to ensure that employers are maintaining hazard-free work environments, see 29 U.S.C. § 654(a).” The panel held that “OSHA’s decision not to issue an ETS is entitled to considerable deference.”
Moreover, supporting the “grave danger” element for a COVID-19 ETS is challenging for OSHA, especially because the March 15 deadline gave it only two months to assemble the data and proof necessary. Further compounding the timing challenge, there are data gaps from the prior Administration, making it difficult to prove that any particular regulatory action would eliminate the grave danger. In addition, with vaccines becoming increasingly available, predicting how many workers would be protected from “grave danger” in the near future confounds easy statistical prediction. Regarding the “necessity” element, the Department of Labor Office of Inspector General’s February 25, 2021 report (the OIG Report) criticizes OSHA’s pandemic performance as deficient, but it principally blames OSHA’s “reduced inspections and most inspections not being conducted onsite” as the reasons that employees were subjected to “greater safety risk.” OIG Report at p. i. On the other hand, the OIG Report also urges OSHA to consider an ETS, noting that OSHA’s COVID-19 guidance is not enforceable, but it also states that OSHA can rely on its guidance as evidence to support a General Duty Clause claim. OIG Report, pp. 10-14. Thus, perhaps inadvertently, the OIG Report more strongly demonstrates that deficiencies in OSHA’s workplace safety protection were due to lack of enforcement, not necessarily the lack of tools to do so.
In addition to legal risks, the political risks to OSHA and the Biden Administration from a national ETS are substantial, particularly at this time. The President and his closest advisers are on a cross-country tour, promoting the American Rescue Plan and a nationwide vaccination rollout. In addition, the President announced on day one of his administration, that he intends to include private sector businesses in his National Strategy for the COVID-19 Response and Pandemic Preparedness; the President may not want to distract those employers and the working public with a different message that could be generated by a new COVID-19 ETS.
No doubt there is strong political support, among labor and other constituencies, for an ETS. OSHA has received such demands, including in the nomination hearings on Mayor Marty Walsh as Secretary of Labor, from labor and other advocates. They have suggested basing an ETS on the Virginia standard, the California ETS, or OSHA’s own guidance. On February 15, 2021, former HHS and OSHA officials, joined by other public health luminaries, called on the federal COVID-19 Pandemic Response members, as well as OSHA, to revise OSHA guidance and regulations, including by requiring healthcare workers and workers “at very high risk of exposure and infection such as in food processing, prisons, and security” to be provided N95 respirators, so that they need not rely solely on face coverings. Letter from R. Bright, et al., “Immediate Action is Needed to Address SARS-CoV-2 Inhalation Exposure” (Feb. 15, 2021). The letter also called on OSHA to issue an ETS “that recognizes the importance of aerosol inhalation, includes requirements to assess risks of exposure, and requires implementation of control measures following a hierarchy of controls.” On February 10, 2021, the American Industrial Hygiene Association and eight other scientific organizations issued a Joint Consensus Statement asking that OSHA issue a COVID-19 ETS.
In contrast, on February 25, 2021, House Republican members urged the Acting Secretary of Labor not to move quickly on an ETS, citing the difficulties that the California Division of Occupational Safety & Health had when it issued a COVID-19 ETS that quickly had to be modified, by order of the Governor, due to new CDC guidance. Given that by March 15 the Senate had not confirmed the nomination for a Secretary of Labor or an Assistant Secretary for OSHA, issuing an ETS without confirmed leaders puts the department and OSHA at further political risk.
Given these significant political risks and legal hurdles, it should be no surprise that OSHA’s March 15, 2021 decision on an ETS is: “not now.”
What COVID-19 Programs Has the Biden Administration’s OSHA Issued to Date?
President Biden’s Executive Order instructed OSHA to take several COVID-19 workplace safety actions, including: (1) issue “revised guidance” by February 4, 2021; (2) enhance enforcement; and (3) as discussed above, consider and, if necessary, issue a COVID-19 ETS by March 15. Executive Order 13999, § 2. With respect to that first action, OSHA beat the President’s deadline issuing a revised guidance eight days later on January 29, 2021. The new “stronger” guidance document, entitled Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (Protecting Workers Guidance), used more resolute language, such as directives that employers “should” implement certain programs, provided more details on a range of elements, including emphasizing communication to workers in native languages and non-retaliation, and incorporated recent CDC guidance.
Introducing the principal elements of its Protecting Guidance, OSHA reiterated employers’ obligation under the General Duty Clause, and stated that, “[i]mplementing a workplace COVID-19 prevention program is the most effective way to mitigate the spread of COVID-19 at work.” One new element in OSHA’s Protecting Workers Guidance is its reference to COVID-19 vaccination, stating that an employer’s effective COVID-19 Prevention Plan should: “Mak[e] a COVID-19 vaccine or vaccination series available at no cost to all eligible employees,” and employers should provide information about “the benefits and safety of vaccinations.” However, because the science on whether the vaccine prevents transmission is not settled, employers should be sure to not “distinguish between workers who are vaccinated and those who are not,” with regard to continuing protective measures, such as face coverings. However, as in all of the COVID-19 guidance documents, OSHA reiterated that its document “is not a standard or regulation, and it creates no new legal obligations.”
Then on March 12, 2021, just days before the ETS “deadline,” OSHA took two significant new actions to enhance its enforcement actions regarding COVID-19 workplace safety: (1) establishing the National Emphasis Program – COVID-19 (the NEP) targeting higher hazard industries for OSHA enforcement action; and (2) updating and replacing its former Interim Enforcement Response Plan for COVID-19 (the Enforcement Plan) to prioritize in-person worksite inspections by OSHA Compliance Safety and Health Officers (CSHO). These actions directly respond to President Biden’s Executive Order directing OSHA to “launch a national program to focus OSHA enforcement efforts related to COVID-19 on violations that put the largest number of workers at serious risk or are contrary to anti-retaliation principles.” Executive Order (EO) No. 13999, § 2(d), 86 FR 7211 (Jan. 26, 2021).
A National Emphasis Program is an OSHA enforcement policy procedure through which OSHA decides how it is selecting sites for enforcement initiatives. An OSHA enforcement response plan informs CSHOs how to conduct their enforcement activities. In this case, the COVID‑19 NEP and the Enforcement Plan together tell employers the categories of workplaces and the types of enforcement procedures that are OSHA’s highest COVID-19 safety priorities. In the NEP, OSHA targets specified industries whose workers “have increased potential exposure to [a COVID-19] hazard, and that puts the largest number of workers at serious risk.” NEP, p. 1. The NEP also focuses on making sure that “workers are protected from retaliation,” including by referring allegations of retaliation to OSHA’s Whistleblower Protection Program. Id. OSHA makes clear that its NEP is to “augment” its continuing enforcement actions at all workplaces where it receives a complaint, severe incident report, or referral involving COVID-19 safety issues.
In the Enforcement Plan, OSHA instructs its Area Directors and CSHOs to “prioritize COVID-19-related inspections involving deaths or multiple hospitalizations due to occupational exposures to COVID-19” and “[w]here practical … perform on-site workplace inspections.” The Enforcement Plan provides greater detail about how the CSHO should conduct a COVID-19-related investigation and inspection, and the bases for citations issued to employers. While not addressing whether or when an ETS will be issued, OSHA buried in the text of both the NEP and the Enforcement Plan a few statements that “in the event that” OSHA issues an ETS, the ETS will be used instead of the General Duty Clause as the basis for citations with respect to COVID-19 safety violations, which will be enforced through the new NEP and Enforcement Plan.
What Might a COVID-19 ETS Look Like?
If OSHA were to issue a COVID-19 ETS, it may not be as comprehensive as either the Virginia COVID-19 standard or the California COVID-19 ETS. For example, OSHA may decide to focus on specific procedures for a targeted industry, perhaps adopting a standard like California’s Aerosol Transmissible Diseases standard that applies only to the healthcare industry. Or OSHA may decide to issue a more comprehensive regulation, but target high hazard industries, such as healthcare, congregate living facilities, meat processing plants, and/or manufacturing facilities, such as it just did in the COVID-19 NEP. That more comprehensive ETS could have the same substance of its most recent Protecting Workers Guidance.
As another alternative, OSHA may decide to focus an ETS solely on mask-wearing in the workplace, including in response to certain states’ recent decisions to eliminate a mask mandate. This approach may mirror what other federal agencies have already done. On January 30, 2021, the CDC issued a nationwide order requiring masks of a certain type to be worn, by the public and workers, in and on airplanes, trains, buses, and various modes of surface transportation, including in stations and terminals. Requirement for Persons to Wear Masks While on Conveyances and at Transportation Hubs. CDC Agency Order, 86 FR 8025 (Feb. 3, 2021). On January 31, 2021, TSA issued a Security Directive for enforcing the CDC Order. Security Directive 1582/84-21-01.
On March 1, 2021, the Federal Railroad Administration (FRA) issued the Emergency Order Requiring Face Mask Use in Railroad Operations, stating that it was “exercising its emergency railroad safety authority” to require rail carriers to require mask wearing by railway workers “while engaged in railroad operations.” 86 FR 11888, 11890 (Mar. 1, 2021). The FRA Emergency Order may be the best example to date for an OSHA mask-only ETS, in that the FRA is required to justify its Emergency Order as necessary to address an emergency safety situation. To support its Emergency Order, the FRA noted that it has authority to issue emergency orders to address an unsafe practice that “causes an emergency situation involving a hazard of death, personal injury, or significant harm to the environment,” including “restrictions and prohibitions… that may be necessary to abate the situation.” 86 FR at 11888, citing 49 U.S.C. § 20104. The FRA justified its emergency order by describing the impact of the pandemic generally; concerns about virus variants that spread more easily and quickly; and its field observations of railway personnel not wearing masks. The FRA stated that its emergency order was “necessary…to ensure a minimum level of nationwide compliance, together with the [TSA’s Security Directive].” 86 FR at 11890. The FRA also referred to the railroad transportation system being essential for public health, the economy, and “other bedrocks of American life.” Id. While applicable only to a specific industry, the FRA emergency order may indicate a targeted approach that OSHA may take at all workplaces, i.e., requiring the wearing of face masks at workplaces and in the work environment when a worker is exposed to others, except for narrow exceptions.
Particularly after the new Secretary of Labor is sworn in, we may well see an OSHA ETS. In any case, that ETS, if issued this year, will not have an Ides of March date, and its negative connotations, as an additional burden.
For more information or advice on the OSHA standards and enforcement during the pandemic, please contact the author. Additional information regarding working during the COVID-19 pandemic can be found in Jenner & Block’s Corporate Environmental Lawyer blog and in the Jenner & Block COVID-19 Resource Center.
OSHA Issues Immediately Effective COVID-19 National Enforcement Program and Updated Enforcement Guidance: No ETS Yet
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On March 12, 2012, OSHA took two significant new actions to enhance its enforcement actions regarding COVID-19 workplace safety: (1) establishing the National Emphasis Program – COVID-19 (the NEP) targeting higher hazard industries for OSHA enforcement action; and (2) updating and replacing its former Interim Enforcement Response Plan for COVID-19 (the Enforcement Plan) to prioritize in-person worksite inspections by OSHA Compliance Safety and Health Officers (CSHO). This action is in response to President Biden’s January 21, 2021 Executive Order on Protecting Worker Health and Safety, in which he directed OSHA to “launch a national program to focus OSHA enforcement efforts related to COVID-19 on violations that put the largest number of workers at serious risk or are contrary to anti-retaliation principles.” Executive Order (EO) No. 13999, § 2(d), 86 FR 7211 (Jan. 26, 2021). Although the Executive Order (§ 2(b)) also required OSHA to consider whether to issue a COVID-19 Emergency Temporary Standard (ETS), and to do so by March 15, 2021 if determined necessary, these two new OSHA policy documents are not an ETS. Instead, OSHA has buried in the text of both the NEP and the Enforcement Plan that “in the event that” OSHA issues an ETS, the ETS will be used instead of a General Duty Clause violation as the basis for citations with respect to COVID-19 safety violations, which will be enforced through the new NEP and Enforcement Plan.
A National Emphasis Program is an OSHA enforcement policy procedure, developed in accordance with OSHA’s Directives System, through which OSHA decides how it is selecting sites for enforcement initiatives. An OSHA enforcement response plan informs CSHO how to conduct their enforcement activities, whether in regard to an NEP, a particular hazard, or otherwise. In this case, the NEP and the Enforcement Plan together tell employers the categories of workplaces and the types of enforcement procedures that are OSHA’s highest COVID-19 safety priorities.
In the NEP, OSHA is targeting those specified industries whose workers “have increased potential exposure to [a COVID-19] hazard, and that puts the largest number of workers at serious risk.” NEP, p. 1. The NEP also focuses on making sure that “workers are protected from retaliation,” including by referring allegations of retaliation to OSHA’s Whistleblower Protection Program. Id. OSHA makes clear that its NEP is to “augment” its continuing enforcement actions at all workplaces where it receives a complaint, severe incident report, or referral involving COVID-19 safety issues.
In the Enforcement Plan, OSHA instructs its Area Directors and CSHOs to “prioritize COVID-19-related inspections involving deaths or multiple hospitalizations due to occupational exposures to COVID-19” and “[w]here practical … perform on-site workplace inspections.” The Enforcement Plan provides greater detail about how the CSHO should conduct a COVID-19-related investigation and inspection, and the bases for citations issued to employers.
The NEP and Enforcement Plan apply only to workplaces in states subject to federal OSHA enforcement. However, OSHA “strongly encourages” adoption of the NEP by the 28 states/territories that enforce “at least as effective” state plans for their private sector employers and/or state and local government workplaces. By May 11, 2021, the state-plan states/territories must submit to OSHA a notice of intent to adopt the NEP.
What Should an Employer Do Now?
In light of the NEP and the Enforcement Plan, all employers who are not primarily relying on telework or other remote practices for their employees should consider the following:
- Check to see if your business is within one of the NEP’s targeted industries, listed in NEP Appendix A, Table 1 (Targeted Industries in Healthcare by 2017 NAICS) or Table 2 (Targeted Industries for non-Healthcare by 2017 NAICS), the latter of which includes meat and poultry processing facilities, supermarkets, discount department stores, general warehousing and storage, full and limited service restaurants, and certain temporary help agencies.
- Check to see if your business is within a CISA-listed critical infrastructure industry that OSHA has determined has “the highest frequency of close contact exposures to the public or to coworkers resulting from their on-site work-related duties,” as listed in Appendix B, Table 1. These industries include manufacturing, construction, transportation, and merchandising businesses who had essential workers on-site throughout most, if not all, of the pandemic.
- Particularly if you are in one of the targeted industries, and especially if your OSHA 300A logs or other reports include COVID-19-related days away cases, hospitalizations, or fatalities, review and update your COVID-19 safety documents, programs, and procedures, including your:
- written COVID-19 safety and health plan, including contingency planning for emergencies, such as the pandemic
- procedures for hazard assessment
- procedures for PPE assessment and use (see 29 CFR § 1910.132)
- face covering measures for employees and all those with whom an employee would come in contact in the work environment, consistent with CDC guidelines regarding construction, donning, and maintenance of face coverings
- sanitation practices (see 29 CFR § 1910.141)
- worker protection actions implemented under the hierarchy of controls (engineering controls, administrative controls, work practices, and PPE), including physical distancing measures; ventilation; stay-home-when sick and return-to-work procedures for exposed and sick workers; and both routine and case-specific cleaning of surfaces
- respiratory program and PPE provision, including any modifications made as a result of the pandemic and documented good faith measures when compliance is not possible (see 29 CFR §§ 1910.132, 1910.134)
- COVID-19 signage (see 29 CFR § 1910.145)
- training and training records
- signage, training, and procedures encouraging employees to report symptoms and to raise safety concerns, and protecting employees against retaliation for doing so
- practices regarding employee access to exposure and medical records (see 29 CFR § 1910.1020)
- injury/illness recordkeeping and reporting documents and procedures (see 29 CFR Part 1904 and related enforcement memoranda and guidance)
- OSHA Hazard Alerts applicable to your industry
- Review OSHA’s newest COVID-19 Guidance, Mitigating and Preventing the Spread of COVID-19 in the Workplace ( 29, 2021)
- Consider the four elements of the General Duty Clause violation with respect to COVID-19-related hazards: (1) employer failed to keep the workplace free of a hazard to which employees of that employer were exposed; (2) hazard was recognized; (3) hazard was causing or was likely to cause death or serious physical harm; and (4) there was a feasible and useful method to correct the hazard. CDC guidelines will be used to show a recognized hazard and/or feasible means to abate the hazard.
What Should an Employer Expect if OSHA Conducts an Inspection?
- OSHA will not tell you in advance that it is starting an investigation and typically arrives on-site without prior warning.
- Opening conferences will be held in a manner consistent with COVID-19 safety precautions, i.e., in an uncontaminated administrative area or outdoors, and will include union/employee representatives and management personnel responsible for COVID-19 safety and for other COVID-19-related programs, such as HR, medical staff, and facilities/physical plant.
- The “walkaround” will occur in areas that CSHO determines he/she wants to see. Note that the CSHO can issue citations for any health or safety hazard observed during the walkaround, even if not related to COVID-19.
- Interviews of management and non-management personnel can be conducted before, during, and after the walkaround. Employees may be contacted by phone and/or the CSHO may ask the employer to set up such calls while on-site. Typically, management cannot be present during the interviews, and an employee can approach the CSHO to speak privately.
- The CSHO’s document review, including of records of programs described above, may occur before a walkaround and/or the CSHO will ask to see or to have sent to the Area Office a copy of specified categories of documents.
- CSHO will be particularly sensitive to indications or complaints of retaliation, including with respect to talking to OSHA representatives at any time, including during an investigation. Actions considered to be retaliation can result in separate Whistleblower enforcement actions, which can result in injunctive or monetary relief to the employee.
- Citations, if issued, will be in the Serious classification, with penalties up to $13,653 per violation.
- A General Duty Clause violation will not be issued except after approval by the OSHA Regional Administrator and the National Office, with input from the Department of Labor’s Regional Solicitor.
- OSHA may decide to issue a Hazard Alert Letter (HAL) rather than a General Duty Clause or other citation, with recommended actions to be taken and subsequently reported to OSHA.
- If the work establishment is part of a multi-location corporation, and a COVID-19 citation or HAL has been issued, OSHA may send a letter to the corporate entity about the citation or HAL and recommend that the corporation assess and abate COVID-19 hazards at all other locations. If unabated hazards are subsequently found, this notification letter may serve as subsequent bases for OSHA upgrading the amount of penalties or classification of its violations.
In sum, although not (yet) an ETS, OSHA has proclaimed that it intends to take aggressive enforcement measures with respect to a broad range of businesses that have been operating in their usual workplaces during the pandemic. Employers in these businesses should prepare accordingly.
For more information or advice on US and states’ OSHA standards and guidance and enforcement nationwide, please contact the author. Additional information regarding working during the COVID-19 pandemic can be found on this blog and in the Jenner & Block COVID-19 Resource Center.
Centers for Disease Control and Prevention Releases Updated Public Health Guidelines for Vaccinated Individuals, Including Recommendations for the Workplace
By Matthew G. Lawson
On Monday, March 8, 2021, the Centers for Disease and Control and Prevention (CDC) released its first set of public health recommendations for individuals fully vaccinated against COVID-19, titled “Interim Public Health Recommendations for Fully Vaccinated People.” The CDC’s newly published guidelines are intended to replace the CDC’s existing public health guidance specifically for those individuals fully vaccinated for COVID-19. By “fully vaccinated”, CDC means ≥2 weeks after an individual has received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna), or ≥2 weeks after an individual has received a single-dose vaccine (Johnson and Johnson [J&J]/Janssen). The updated guidance includes specific recommendations for vaccinated individuals in the non-healthcare workplace, public spaces and private and/or family settings. While the CDC guidance is only intended to provide recommended best practices, it is anticipated that the CDC’s newest guidance will be relied on by states, municipalities, school systems, and private employers as these entities continue to update and implement their own respective health guidance and COVID-19 policies and protocols.
According to the updated guidelines, vaccinated persons can now engage in a number of new activities, including:
- Visiting with other fully vaccinated people indoors without wearing masks or physical distancing;
- Visiting with unvaccinated people from a single household who are at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing; and
- Refraining from quarantine and testing following a known exposure to COVID-19 if asymptomatic.
Notably, the new guidelines leave in place many of CDC’s existing recommendations for both vaccinated and non-vaccinated individuals. For example, the CDC recommends that fully vaccinated individuals continue to wear a mask in public, physical distance, avoid crowds and avoid poorly ventilated spaces. In addition, the CDC is continuing to recommend that vaccinated individuals delay domestic and international travel, and, if they do travel, continue to follow all CDC requirements and recommendations when doing so.
CDC’s guidelines for vaccinated individuals include a number of implications for private employers. In the context of non-healthcare workplaces, the CDC is now recommending that fully vaccinated employees do not need to quarantine following a known or suspected exposure to COVID-19 in the workplace unless that the vaccinated individual develops “COVID-like symptoms.” However, the guidelines still recommend that vaccinated persons receive testing “through routine workplace screening programs” following an exposure to COVID-19. Notably, CDC’s no quarantine recommendation does not extend to vaccinated employees working in congregate settings or other high-density workplaces (e.g., meat and poultry processing and manufacturing plants), and as a result vaccinated employees in congregate work environments should continue to adhere to the quarantine requirements following exposure. Employers should therefore evaluate their respective work environment to determine the appropriate quarantine procedures for employees who have received a vaccine. Under the guidelines, vaccinated individuals also need to comply with any existing COVID-19 health and safety rules issued by their employer. Thus, an employee’s vaccination status should not allow the employee to avoid his or her workplaces’ COVID-19 policies and procedures. Finally, CDC’s new guidelines do not update the CDC’s prior recommendation (issued December 30, 2020) regarding business travel. The CDC is continuing to recommend that employers “minimize non-essential travel” for all employees and, if resuming non-essential travel, ensure their employees continue to follow all state and local COVID-19 regulations and guidance regardless of their vaccination status.
In the accompanying scientific brief to its newly released guidance, the CDC cites to existing studies demonstrating the highly effective nature of the approved mRNA COVID-19 vaccines against SARS-CoV-2 infection (including both symptomatic and asymptomatic infections). Despite early evidence of the effectiveness of the approved vaccines, the CDC noted that only “approximately two-thirds of U.S. adults state that they [are] at least somewhat likely to receive a COVID-19 vaccine (or had received one already).” Because maintaining requirements to continue COVID-19 prevention measures after vaccination “may disincentive vaccine uptake,” the CDC explained that its new guidance intends to communicate additional advantages, to the individual and the community, from vaccination. The CDC advised that its guidance for vaccinated individuals will continue to be updated and modified “based on the level of community spread of SARS-CoV-2, the proportion of the population that is fully vaccinated, and the rapidly evolving science on COVID-19 vaccines.”
10th Circuit Lifts Injunction in Colorado Challenge of Trump Waters of the United States Rule
By Allison A. Torrence
On March 2, 2021, the Tenth Circuit Court of Appeals reversed a ruling from the United States District Court for the District of Colorado in the case of Colorado v. EPA, et al., Nos. 20-1238, 20-1262, and 20-1263, that had issued a preliminary injunction blocking implementation of the Trump Administration’s Navigable Waters Protection Rule (“NWPR”) in the State of Colorado. Under the Tenth Circuit ruling, the NWPR was put back into force, and the State of Colorado’s case was remanded back to district court for further proceedings challenging the rule.
The NWPR is the latest attempt by EPA and the Army Corps of Engineers to define “Waters of the United States” and thereby define the jurisdiction of the Clean Water Act. The agencies have been grappling with this definition for nearly 50 years, and have faced nearly constant legal challenges along the way. In 2017, the Trump Administration rescinded the definition that had been promulgated under the Obama Administration, and in 2020, offered up its own definition in the NWPR. The NWPR narrows the definition of “Waters of the United States” from past definitions–notably by excluding certain wetlands and ephemeral streams from the definition and thus excluding them from the jurisdiction of the Clean Water Act.
A number of lawsuits were filed challenging the NWPR, including Colorado v. EPA. The Colorado case was significant because Colorado sought, and was granted, a preliminary injunction blocking implementation of the NWPR in the State of Colorado. The State had argued that by reducing the reach of the Clean Water Act, the NWPR caused irreparable injury to the State because Colorado would be forced to undertake additional enforcement actions in place of the federal government to protect the quality of its waterways. While the district court had found this to be sufficient injury to support the State’s preliminary injunction, the Tenth Circuit found that it was too speculative and uncertain. Thus, the preliminary injunction was rejected and reversed because the State of Colorado could not show irreparable injury. Notably, the Tenth Circuit did not address the merits of the State’s challenge to the NWPR.
Additionally, prior to the Tenth Circuit’s ruling, EPA and the Army Corps of Engineers had requested the court hold the appeal in abeyance for 60 days in light of the new leadership at the agencies following the election of President Biden. The court denied the request and issued its ruling lifting the preliminary injunction the following day. The Biden Administration has indicated it is reviewing the NWPR and may want to make changes to broaden the definition of “Waters of the United States” once again. If that is the case, the agencies may look to settle the Colorado case and other similar litigation with a promise of changes to come. The Corporate Environmental Lawyer Blog will monitor and report on these matters as they develop.
OSHA under Deadline for a Nationwide COVID 19 Workplace Safety Rule: Four States’ Existing Laws and New Federal Guidance and Orders Foretell the Future
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On his first full day in office, President Biden issued an Executive Order on Protecting Worker Health and Safety, which required OSHA to “consider whether any emergency temporary standards on COVID‑19, including with respect to masks in the workplace, are necessary,” and if so, to issue such emergency temporary standards (ETS) by March 15, 2021. Executive Order 13999, § 2(b) (Jan. 21, 2021), 86 FR 7211 (Jan. 26, 2021). An ETS, which skips the initial notice and comment process before it is in effect, can be issued pursuant to Section 6(c) of the OSH Act if OSHA determines that employees are exposed to “grave danger” and that an emergency standard is necessary to protect them from the grave danger. 29 U.S.C. § 655(c).
Putting aside that OSHA has not successfully issued an ETS since 1978, including that the last attempt to issue an ETS, regulating asbestos exposure, was invalidated by the US Court of Appeals in 1984, OSHA now has several models for a COVID‑19 ETS from which it may draw. Specifically, California, Michigan, Oregon, and Virginia are among the 22 states and territories that administer and enforce their own state-plan OSHA, rather than rely solely on federal standards and enforcement. These four states have developed their own COVID‑19 safety regulations that apply to most, if not all, workplaces in their respective states, and have both distinctive features and commonalities. Employers would be well-advised to be aware of each of the states’ specific standards, not only to comply with regulatory requirements in that state, but to consider whether their workplace is ready for potential, nationwide regulations which may incorporate elements of these states’ approaches.
With OSHA under a Presidential deadline to issue a nationwide COVID-19 safety regulation, we review the current status of OSHA guidance; describe the basic elements of the four states’ regulations; and look at recent federal orders by other agencies to anticipate what employers nationwide may soon be facing.
US OSHA: COVID‑19 Regulation and Guidance in the Prior Administration
US OSHA currently has several well-established regulations that apply to aspects of workplace protection that also apply to certain workplaces operating during the pandemic. For example, OSHA’s PPE and respiratory standards would apply particularly to work in hospitals and those in direct contact with people or bodies known to be infected by COVID-19. See, e.g., 29 CFR 1910.132, 1910.133, 1910.134. OSHA’s illness recordkeeping standard applies to workplaces otherwise required to do that recordkeeping (29 CFR 1904.2(a)), and all workplaces are required to report to OSHA work-related cases that result in hospitalization or death within 24 hours of a workplace exposure (see fn 9). The General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act, 29 USC 654(a)(1), requires each employer to furnish to each worker "employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm." 29 U.S.C. § 654(a)(1). Yet, the General Duty Clause does not provide clear direction on what an employer must do at the workplace, and enforcement by OSHA during the pandemic under the General Duty Clause can be difficult in all but the most egregious cases.
On its COVID-19 resource webpage, OSHA essentially recognizes that it does not have a comprehensive standard for working during the pandemic, as the state-plan states’ COVID-19 regulations do. OSHA points to its own bloodborne pathogen standard and California’s ATD standard as either provisions that “offer a framework that may help control some sources of the virus,” or “provid[ing] useful guidance for protecting [non-healthcare] workers exposed to SARS-CoV-2.” OSHA has responded to previous threats of airborne disease and viral transmission by issuing specific guidance, as in the case of the Zika virus, avian flu, and the H1N1 virus. To state the obvious, SARS-CoV-2 is unique in US workplaces for many reasons, including the length of time it has been a threat, its asymptomatic transmission, and the sheer number of cases of sickness and death.
On March 9, 2020, OSHA issued its “Guidance on Preparing Workplaces for COVID‑19,” (Preparing Guidance) and on June 17, 2020, OSHA issued its “Guidance on Returning to Work,” (Reopening Guidance) (both currently under review by OSHA under the Biden Administration). In its Preparing Guidance, OSHA recommended that employers divide job tasks into exposure levels of “very high, high, medium, and lower risk” and then recommends steps employers should consider taking to protect workers in each risk category, using its “hierarchy of controls” framework for addressing workplace risks, i.e., engineering controls, followed by administrative controls, safe work practices, and PPE. Specific controls generally were not offered and OSHA repeatedly described controls as “to be considered,” including physical barriers.
In its Reopening Guidance issued three months later as a supplement to the Preparing Guidance, OSHA’s “guiding principles” were that employers’ reopening plans “should address”:
- Hazard Assessment
- Social Distancing
- Identification and Isolation of Sick Employees
- Return to Work After Illness or Exposure
- Workplace Flexibilities
In addition to the two basic guidance documents, through 2020, OSHA issued industry-specific COVID-19 Alerts for specific industries or types of jobs. For example, it issued, COVID-19 Guidance for the Package Delivery Workforce, which contained “tips [to] help reduce the risk of exposure.” Those tips included suggestions such as, “Allow workers to wear masks over their nose and mouth to prevent them from spreading the virus” and “Discourage workers from using other workers’ tools and equipment.” These guidance documents were not clear mandates for any specific type of hazard control.
The previous administration successfully resisted attempts to force it to adopt an ETS, instead insisting that it would rely on existing regulations and guidance, the General Duty Clause, and its enforcement priorities.
Four State-Plan States’ Approach
Four state-plan states determined that the business in their state should be regulated more prescriptively and with compliance mandates. An evaluation of each of these states’ regulations can be found in our Guide to COVID-19 Workplace Safety Regulation in Four State-Plan States.
In summary, these states took each of the elements in the Reopening Guidance and added specific, mandatory requirements, particularly with respect to hazard controls, return-to-work policies, and training. The principal differences are whether the state’s regulations expressly accommodate different levels of exposure risk (as described in the Preparing Guidance) and/or whether the state provides specific requirements for specific industries. The structure of Virginia’s permanent COVID-19 workplace safety regulation is built on the exposure risk approach described in the Preparing Guidance, and then adds specific controls and requirements for each exposure risk level. Michigan Emergency Rules require employers to categorize risk, but also includes hazard controls by industry. Oregon Emergency Rules have more industry-specific, fewer industry-wide prescriptive controls. Only California’s ETS does not rely on either an industry-specific or exposure risk regulatory approach, imposing requirements through its Injury and Illness Prevention Plan model for all employers except those healthcare employers already covered by its 2009 Aerosol-Transmitted Disease regulation. California’s ETS also requires more action, compared to all other States, in response to COVID-19 cases in the workplace, such as testing of exposed and potentially exposed employees and wage and benefit protections for employees who are required to be excluded from the workplace for quarantine or isolation.
By the end of the prior administration, these four states were the only states with workplaces operating under a comprehensive COVID-19 workplace safety regulation, enforced by the state’s occupational safety and health agency, not federal OSHA. The other states’ employers were operating under US OSHA guidance and existing regulations, as described above, and their Governors’ COVID-19 public health directives and orders.
The Biden Administration’s OSHA Guidance to Date
President Biden’s Executive Order on Protecting Worker Health and Safety instructed OSHA to take several COVID-19 workplace safety actions: issue “revised guidance” within two weeks; consider and, if necessary, issue a COVID-19 ETS by March 15; enhance enforcement; and initiate a multilingual workers’ rights outreach program. Executive Order 13999, § 2.
OSHA issued its revised guidance eight days later on January 29, 2021. The new “stronger” guidance document, entitled Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (Protecting Guidance), used more resolute language, such as directives that employers “should” implement certain programs, provided more details on a range of elements, including emphasizing communication to workers in native languages and non-retaliation, and incorporated recent CDC guidance.
Introducing the principal elements of its Protecting Guidance, OSHA reiterated employers’ obligation under the General Duty Clause, and stated that, “[i]mplementing a workplace COVID-19 prevention program is the most effective way to mitigate the spread of COVID-19 at work.” According to the Protecting Guidance, that program includes:
- Assigning a COVID-19 coordinator responsible for COVID-19 issues on behalf of the employer
- Conducting a hazard assessment
- Implementing controls, following the hierarchy of controls starting with engineering controls, administrative controls, PPE, and suppressing spread through hand washing, sanitation, and face coverings
- Considering protections for workers at higher risk for severe illness, including age, through supportive policies and practices
- Communicating and training in appropriate languages and in an understandable fashion
- As a “best practice,” instituting a “two-way” communication system for workers to report their symptoms and medical status and for employers to report illness cases in the workplace
- Instructing sick and exposed workers to stay home and having non-punitive absence policies
- Performing cleaning and disinfection, particularly after ill people have been at work
- Following state and local guidance regarding pre-entry health screening and testing
- Recording and reporting cases per existing regulation and reporting to health departments as locally required
- Protecting workers from retaliation for raising concerns about COVID-19 hazards
OSHA’s revised guidance also repeats, in detail, CDC guidelines regarding face coverings and periods of time for isolation and quarantine. However, what perhaps is most distinctive about the revised OSHA guidance is its reference to COVID-19 vaccination. OSHA’s Protecting Guidance states that an effective COVID-19 Prevention Plan should: “Mak[e] a COVID-19 vaccine or vaccination series available at no cost to all eligible employees,” and employers should provide information about “the benefits and safety of vaccinations.” However, because the science on whether the vaccine prevents transmission is not settled, employers should be sure to not “distinguish between workers who are vaccinated and those who are not,” with regard to protective measures, such as face coverings.
OSHA’s Protecting Guidance lays out in more detail the elements of a COVID-19 Prevention Plan, and indicates new concerns for enforcement, including with respect to language usage and vaccination efforts. However, OSHA’s enforcement powers continue to be limited primarily to General Duty Clause and PPE violations, as occurred in the prior administration. Like its predecessor guidance, OSHA states that the document “is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of existing mandatory safety and health standards. The recommendations are advisory in nature, informational in content, and are intended to assist employers in recognizing and abating hazards likely to cause death or serious physical harm as part of their obligation to provide a safe and healthful workplace.”
What OSHA’s Soon to Drop “Shoe” May Look Like
In considering issuing a COVID-19 ETS, OSHA faces political and legal risks that the state-plan states do not face. As noted above, OSHA has not even attempted to issue an ETS in close to 40 years. The facts that work through the pandemic has been occurring for a year and vaccines are becoming increasingly available will likely hurt OSHA’s ability to prove grave danger and necessity across all workplaces and in all industries. The fact that OSHA has issued COVID-19-related citations, with proposed penalties exceeding $4 million, under the General Duty Clause and existing regulatory standards, will also make it difficult for OSHA to prove the need for a broad ETS. Even though the Department of Labor Office of Inspector General’s February 25, 2021 report (the OIG Report) criticizes OSHA’s pandemic performance as deficient, it largely blames “increased complaints, reduced inspections, and most inspections not being conducted onsite subject employees to greater safety risk.” OIG Report at p. i. The OIG Report also stresses that OSHA’s guidance on COVID-19 safety is not enforceable, and urges OSHA to consider an ETS; however, it notes that OSHA can rely on its guidance as evidence to support a General Duty Clause claim. OIG Report, pp. 10-14. Indeed, as recently as February 23, 2021, OSHA announced that it had issued a citation under the General Duty Clause against a manufacturer, after an employee died, allegedly after workplace exposure to SARS-CoV-2. Although the OIG Report supports a COVID-19 ETS, perhaps inadvertently, the report more strongly demonstrates that deficiencies in OSHA’s workplace safety protection was due to lack of enforcement, not necessarily due to the lack of tools to do so.
Although OSHA has received demands from labor and other advocates to enact a nationwide ETS, resembling the Virginia model, the California model, or its own guidance, OSHA may well decide that a more politically and legally feasible approach is a more targeted one. For example, under the Biden Administration, federal orders requiring face coverings in workplaces have already begun. On January 21, 2021, the President’s Executive Order 13998, Promoting COVID‑19 Safety in Domestic and International Travel, 86 FR 7205 (Jan. 26, 2021), has resulted in the CDC issuing a nationwide order requiring masks of a certain type to be worn, by the public and workers, in and on airplanes, trains, buses, and various modes of surface transportation, including in stations and terminals. Requirement for Persons to Wear Masks While on Conveyances and at Transportation Hubs. CDC Agency Order, 86 FR 8025 (Feb. 3, 2021). On January 31, 2021, the TSA issued a Security Directive for enforcing the CDC Order. Security Directive 1582/84-21-01.
Most recently, on March 1, 2021, the Federal Railroad Administration (FRA) issued the Emergency Order Requiring Face Mask Use in Railroad Operations, stating that it was “exercising its emergency railroad safety authority” to require rail carriers to require mask wearing by railway workers “while engaged in railroad operations.” 86 FR 11888, 11890 (Mar. 1, 2021). To support this Emergency Order, the FRA noted that it has authority to issue emergency orders to address an unsafe practice that “causes an emergency situation involving a hazard of death, personal injury, or significant harm to the environment,” including “restrictions and prohibitions… that may be necessary to abate the situation.” 86 FR at 11888, citing 49 U.S.C. § 20104. The FRA justified its emergency order by describing the impact of the pandemic generally; concerns about virus variants that spread more easily and quickly; and field observations of personnel not wearing masks. The FRA stated that its emergency order was “necessary…to ensure a minimum level of nationwide compliance, together with the [TSA’s Security Directive].” 86 FR at 11890. The FRA also referred to the railroad transportation system being essential for public health, the economy, and “other bedrocks of American life.” Id. While clearly applicable only to a specific industry, the FRA emergency order may indicate a targeted approach that OSHA may take at all workplaces, i.e., requiring the wearing of face masks at workplaces and in the work environment, except for narrow exceptions.
OSHA also may decide to issue a regulation targeting a particular industry or hazards, such as adopting California’s ATD Standard as a federal ETS for the healthcare industry. Or OSHA may convert its most recent Protecting Workers guidance into an ETS targeted to specific high hazard industries, such as healthcare, congregate living facilities, meat processing plants, or manufacturing facilities. OSHA also may use its ETS powers to obtain information regarding the immediate reporting of COVID-19 cases in the workplace, in order to gather the data necessary to support both enhanced enforcement efforts or a future ETS.
Notably, on February 15, 2021, former HHS and OSHA officials, joined by other public health luminaries, called on COVID-19 Pandemic Response members, Jeffrey Zients, Dr. Rochelle Walensky, and Dr. Anthony Fauci, as well as other top federal officials, including at OSHA, to have the CDC and OSHA revise their guidance and regulations, including by requiring healthcare workers and workers “at very high risk of exposure and infection such as in food processing, prisons, and security” to be provided N95 respirators, so that they need not rely solely on face coverings. Letter from R. Bright, et al., “Immediate Action is Needed to Address SARS-CoV-2 Inhalation Exposure” (Feb. 15, 2021). The letter’s signatories also called on OSHA to issue an ETS “that recognizes the importance of aerosol inhalation, includes requirements to assess risks of exposure, and requires implementation of control measures following a hierarchy of controls,” essentially the basic elements in OSHA’s Protecting Workers guidance. They also called on OSHA to require that workers at lower exposure risks be “offered high-performing barrier face coverings tested to the STM F3502-21 Standard Specification for Barrier Face Coverings with at least 80% filter efficiency, no more than 15mm H2O air flow resistance and total inward leakage of no more than 5% on a panel of at least 10 subjects.” Id. They further recommended that this OSHA broad masking requirement be supported by a “national effort,” including under the Defense Production Act, to have N95 respirators and the ASTM 80% face coverings available for nationwide worker protection. Id.
Whichever approach OSHA takes by March 15, 2021, it will face political opposition, and the legal opposition to any ETS likely will be fierce. In the meantime, employers should consider that President Biden’s Protecting Worker Health and Safety Executive Order also called for OSHA to ramp up its enforcement activities, including to protect workplaces with a large number of people at risk. 86 FR at 7211, §§ 2(c), (d). Thus, regardless of whether OSHA issues a nationwide ETS, employers who have experienced multiple cases of COVID-19 or are in industries with higher numbers of cases would be well-advised to have in place a COVID-19 prevention plan, with well-recognized physical distancing, sanitation, mask-wearing, and other now-standard COVID-19 prevention controls.
For more information or advice on the various state-plan states’ COVID-19 standards, OSHA standards and guidance, and enforcement nationwide, please contact the author. Additional information regarding working during the COVID-19 pandemic can be found on this blog and in the Jenner & Block COVID-19 Resource Center.
 Asbestos Info. Ass’n v. OSHA, 727 F.2d 415 (5th Cir. 1984) (ETS rejected because OSHA did not sufficiently support its conclusion that 80 people would die in the next six months or that the ETS was necessary given its existing respiratory standard).
 State plans are authorized under Section 18 of the OSH Act and must have regulations “at least as effective” as federal OSHA.” 29 U.S.C. § 667(c).
 OSHA COVID-19/Regulations webpage (last viewed 2/24/2021).
 Each of the formerly issued OSHA guidance documents has a banner stating, “Given the evolving nature of the pandemic, OSHA is in the process of reviewing and updating this document. These materials may no longer represent current OSHA recommendations and guidance. For the most up-to-date information, consult Protecting Workers Guidance [which was issued on January 29, 2021 and is discussed below.].”
Biden Administration Takes New Action to Ensure Increased Consideration of Climate Change Impacts by the Federal Government
By Matthew G. Lawson
On Friday, February 19, 2021, the Council on Environmental Quality (“CEQ”) rescinded prior draft guidance issued under the Trump Administration in 2019 (the “2019 Draft CEQ Guidance”), which had limited the degree to which federal agencies needed to consider and quantify climate change impacts under the National Environmental Policy Act (NEPA). The rescission of the 2019 Draft CEQ Guidance is the latest step by the federal government to implement President Biden’s Executive Order 13990, which was signed on President Biden’s first day in office (the “Day 1 EO”). In addition to directing CEQ to rescind its prior guidance, President Biden’s Day 1 EO set forth numerous directives implementing the administration’s new climate change policy, including an order reinstating the Interagency Working Group (IWG) and directing the IWG to develop an updated “Social Cost of Carbon” (“SCC”) valuation to better quantify the economic harms associated with the emission of carbon dioxide and other greenhouse gasses (“GHGs”). Under the Day 1 EO, the IWG was directed to publish its new interim SCC value within 30 days of the Order and publish a final SCC value by January 2022. Together, the Day 1 EO’s rescission of the 2019 Draft CEQ Guidance and reinstatement of the IWG signal a clear intent from the Biden Administration to significantly increase the degree to which federal agencies must consider and account for climate change impacts when enacting future regulation or taking other agency actions.
The origins of the SCC metric can be traced back to President Clinton’s 1993 Executive Order 12866, which required that federal agencies, to the extent permitted by law, “assess both the costs and the benefits of [their] intended regulation and…propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs.” Compliance with Executive Order 12866 poses a unique challenge for federal agencies where a proposed regulation is expected to cause a significant increase or decrease of carbon dioxide or other GHG emissions, as the benefits or costs associated with these emissions cannot easily be quantified or compared to other metrics used in the agency’s cost-benefit analysis.
To assist federal agencies with this inherent challenge, the Obama Administration in 2010 convened the IWG with the goal of identifying a metric grounded in data that represents the long-term net economic damages associated with an incremental increase in carbon dioxide or other GHG emissions in a given year (typically measured in dollars per metric ton). The resulting metric created by the IWG (the “Social Cost of Carbon” or “SCC”), provides an estimated monetary value representing a wide range of anticipated climate impacts resulting from CO2 emissions, such as net changes in agricultural productivity and human health, property damage from increased flood risk, and changes in energy system costs. Although the IWG acknowledged a range of possible SCC values, the IWG set a mid-range SCC value of $21 per ton of CO2 emitted in 2010. The IWG subsequently revised and modified its SCC value on several occasions, and most recently in 2016 when IWG revised the value of SCC to $42 per ton of CO2 emitted in 2020.
In August 2016, the Obama-era CEQ sought to promote the use of SCC beyond its original application (i.e., cost-benefit analyses of proposed regulations) by recommending use of the metric in applicable NEPA analyses. To that end, the Obama CEQ issued final NEPA guidance (the “2016 CEQ Guidance”) recommending that federal agencies utilize the IWG’s SCC valuation to quantify the environmental impact of increased GHG emissions resulting from their proposed actions. As a result of the 2016 CEQ Guidance, federal agencies were advised for the first time to consider applying the SCC not only to weigh the costs and benefits of proposed regulations, but also to quantify the costs of increased GHG emissions associated with their proposed actions where such actions trigger the requirements of NEPA.
Following the 2016 election of President Trump, the use and impact of SCC as a decision-making tool significantly declined. In March 2017, pursuant to Executive Order 13783, the Trump Administration disbanded the IWG and withdrew its existing SCC valuation “as no longer representative of governmental policy.” As a result, federal agencies under the Trump Administration set their own SCC values, which resulted in an average value between $1 and $7 per ton of CO2 emitted in 2020. The Trump Administration also rescinded the 2016 CEQ Guidance and published its own draft guidance (the “2019 Draft CEQ Guidance”) rejecting the application of SCC to quantify the impacts GHG emissions in NEPA reviews. Finally, while not directly addressing SCC, the Trump Administration issued a regulatory overhaul to NEPA that aimed to reduce the type of environmental impacts that a federal agency must consider during a NEPA review.
Impact of the Biden Administration’s Recent Actions
The Day 1 EO and subsequent rescission of the 2019 Draft CEQ Guidance signal a strong intention by the Biden Administration to reverse the climate change policies enacted by the Trump Administration. Under the Day 1 EO, the IWG has been instructed to set a SCC value that “capture[s] the full cost of greenhouse gas emissions as accurately as possible, including by taking global damages into account.” Based on these instructions, experts have predicted that the IWG’s interim SCC value is likely to be set at $125 per ton or higher.
While federal agencies await the imminent release of IWG’s interim SCC value, federal agencies may—at least in the context of NEPA reviews—look to the most recent 2016 SCC value set by the IWG prior to its disbandment. In the published rescission of the 2019 Draft CEQ Guidance, CEQ advises that until new guidance is provided, federal agencies “should consider all available tools and resources in assessing GHG emissions and climate change effects of their proposed actions, including, as appropriate and relevant, the 2016 [CEQ] Guidance.” Of course, the 2016 CEQ Guidance itself recommends that federal agencies rely on the 2016 SCC valuation to quantify climate change impacts associated with agency actions.
The Biden Administration’s decision to resurrect the IWG and revoke the 2019 Draft CEQ Guidance is expected to have a significant impact on a wide scope of federal agency actions with the potential to increase or decrease GHG emissions. Upon the enactment of the new SCC value, federal agencies will be required to afford greater weight to potential climate change impacts during their decision-making process. As a result, industry may expect an increase in new regulations aimed at reducing GHG emissions, as well as greater challenges in securing federal approval to engage in GHG-intensive activities, such as oil, gas or coal mining.
U.S. EPA Embraces Prior Administration’s PFAS Drinking Water Proposals
By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice
On February 22, 2021, U.S. EPA announced that it was moving forward with implementation of several regulatory proposals issued in the waning days of the Trump Administration. First, U.S. EPA announced that it was finalizing its regulatory determination under the Safe Drinking Water Act (SDWA) for perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA). A regulatory determination is the first regulatory step in setting a maximum contaminant level (MCL) for these contaminants. The final regulatory determination, signed by Acting EPA Administrator Jane Nishida, reached the same conclusions as had been reached by former EPA Administrator Andrew Wheeler—(1) that these contaminants may have an adverse effect on the human health; (2) that the contaminants are known to be present in public water systems at a sufficient frequency and at levels that pose public health concerns; and (3) that regulation of these contaminants presents a meaningful opportunity to reduce health risks. Interestingly, U.S. EPA’s regulatory determination specifically acknowledges that its 2016 Lifetime Health Advisory Levels of 70 parts per trillion for both PFOA and PFOS continue to represent the best available peer reviewed scientific assessment for these chemicals, notwithstanding that many comments were submitted encouraging U.S. EPA to update and revise its 2016 Lifetime Health Advisory Levels. It is likely to take about four years to promulgate a final MCL for PFOS and PFOA.
U.S. EPA also reissued its proposed Fifth Unregulated Contaminant Monitoring Rule (UCMR5). The reissued USMR5 is identical to the draft that was issued on January 14, 2021 at the tail end of the Trump Administration but was temporarily put on hold when the Biden Administration took office. The proposed UCMR5 would require community water systems serving 3,300 people or more to monitor for a group of 30 chemicals (29 of which are PFAS substances) between 2023 and 2025. The monitoring is intended to provide U.S. EPA with data on the national occurrence of these chemicals in drinking water that at least in part will guide U.S. EPA in promulgating regulatory determinations for other PFAS substances. U. S. EPA will accept public comment on the draft UCMR5 for a period of 60 days following publication in the Federal Register.
We will continue to provide updates on U.S. EPA’s efforts to regulate PFAS substances in the Corporate Environmental Lawyer.
Virginia’s COVID-19 Workplace Safety Regulation Is Permanent: A National Model
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
In July 2020, we reported that Virginia, an OSHA State-plan State, was the first in the country to issue a workplace safety regulation specifically addressing COVID‑19. At that time, the Virginia standard was issued as a temporary emergency rule, which would expire by January 27, 2021, unless made permanent. On the expiration date, Governor Northam formally approved a revised version of the temporary emergency rule, 16VAC25-220, “Final Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID‑19, applicable to all regulated workplaces in the Commonwealth (the “Permanent Standard”). Although described as permanent, by its own terms, within 14 days of the expiration of the Governor’s temporary declaration for the COVID‑19 pandemic, the Virginia Department of Labor and Industry’s Safety and Health Codes Board must meet to determine whether there remains an ongoing need for the COVID-19 workplace safety regulation. § 20B. The Permanent Standard is immediately effective, except that the program documentation and training requirements go into effect on March 26, 2021. The Permanent Standard will be enforced by the Department of Labor and Industry operates the Virginia State Plan for Occupational Safety and Health (“VOSH”).
Like the temporary standard, the Permanent Standard requires all employers to implement certain basic protections and procedures and then increases the protective measures based on whether the “exposure risk level” for the workplace or specific job tasks should be classified as very high, high, medium, or lower. Outside the healthcare industry, first responders, mortuary services, and correctional and detention facilities, Virginia places of employment and job tasks are categorized as “medium” or “lower” exposure risk levels. The difference between “medium” and “lower” exposure risk levels is whether the work requires “more than minimal occupational contact within six feet with other employees, other persons, or the general public …”. § 30.
In the Permanent Standard, “minimal occupational contact” is defined to mean “no or very limited, brief and infrequent contact,” such as remote work, passing in a hallway while six feet apart, and long distance truck driving. § 30. Thus, although most office workspaces would be categorized as lower risk, if employees must even pass in the hallway within six feet of each other, the workplace or task is elevated to the medium exposure level, with its increased program documentation and training requirements. Other examples of the lower exposure levels are single workers behind impermeable clear plastic walls at convenience stores, telecommuting and telework, package delivery “that allows employees to maintain physical distancing from other employees, other persons, and the general public;” and workplaces that have “mandatory physical distancing of employees” from each other and all other persons. Id. Face coverings for employees within the six-foot physical distance parameter does not change the workplace or job task from a “medium” to a “lower” exposure risk level. Id.
The Permanent Standard’s basic requirements for all employers continue be as established in the temporary standard:
- Exposure assessment and determination.
- Employee notification and access to exposure and medical records.
- Return to work policies after being known or suspected to be infected.
- Engineering, administrative, and work practice controls, including physical distancing, face coverings, and sanitation and disinfection.
- Written infectious disease plans and preparedness plans for all employers unless they only have employees with lower levels of exposure or are a small business (fewer than eleven employees) at the medium exposure level.
The principal changes made by the Permanent Standard include:
- While the regulation continues to allow the employer to demonstrate compliance if they comply with equally protective mandatory or non-mandatory CDC guidelines, Virginia’s Commissioner of Labor and Industry must consult with the State Health Commissioner “for advice and technical and before making a determination related to compliance with CDC guidelines.” § 10.E. In addition, an enforcement action cannot be brought against an employer if PPE is not readily available “on commercially reasonable terms” and the employer makes a “good faith effort” to acquire the PPE on such terms. § 10.C.
- “Face covering” is now defined to match the more recent CDC guidance, i.e., an item “made of two or more layers of washable, breathable fabric that fits snugly against the sides of the face without any gaps, completely covering the nose and mouth and fitting securely under the chin. Neck gaiters made of two or more layers of washable, breathable fabric, or folded to make two such layers, are considered acceptable face coverings. Face covering shall not have exhalation valves or vents, which allow virus particles to escape, and shall not be made of material that makes it hard to breathe, such as vinyl.” § 30. A face covering must always cover the nose and mouth and extend under the chin. § 40.I. A face covering is always required, at a minimum, if employees have brief contact without six feet of distancing. For example, if employees pass in the hallway within six feet of each other, they must wear face coverings. § 40.H.
- While a face shield cannot be considered a substitute for a face covering or any form of PPE except for eye protection, a face shield, meeting certain specifications, may be worn if a face covering cannot be worn “due to medical contraindications.” § 40.J.
- Acceptable physical distancing can include an office or another solid floor to ceiling barrier only if “six feet of travel distance is maintained from others around the edges or sides of the wall as well.” § 30.
- Redefinition of “signs” and “symptoms” of COVID‑19. “Signs of COVID‑19” include only “medical conditions that can be objectively observed,” such as fever, breathing trouble, cough, vomiting, new confusion, bluish lips or face. § 30. On the other hand, “symptoms of COVID‑19” are medical conditions “that are subjective to the person and not observable to others,” such as chills, fatigue, and new loss of taste or smell. § 30. Persons are “suspected to be infected” if they have signs or symptoms.
- Provisions in the temporary regulation requiring that the employer have flexible sick leave policies, consistent with public health guidance, are deleted.
- Conforming to changes in CDC guidelines since the temporary standard was issued, the Permanent Standard changes the exposure period requiring notice, to employees, other employers’ employees, and the building or facility owner, of a positive case of a fellow employee, subcontractor, contract employee, or temporary employee “present at the place of employment.” The time period of exposure requiring notice now is from 2 days before through 10 days after symptom onset or a positive test reflecting newer CDC guidance. § 40.B.7.
- Employers must contact the Virginia Department of Health “when the worksite has had two or more confirmed cases of COVID‑19 of its own employees present at the place of employment within a 14-day period testing positive for [the virus] during that 14-day time period.” § 40.B.7.d. This report must be made within 24 hours of the employer’s knowledge and additional cases must continue to be reported “until the local health department has closed the outbreak.”
- Employers generally can no longer rely on a test-based strategy for return to work after an employee has been infected. Instead, symptomatic employees can return 10 days after symptom onset, if they are fever-free for 24 hours and respiratory symptoms have improved. § 40.C.1. However, employees with “severe illness” “may warrant extending duration of isolation for up to 20 days after symptom onset” and employees “who are severely immunocompromised may require testing to determine when they can return to work.” The employer “shall consider consultation with infection control experts” and VOSH will identify severe illnesses and severe immunocompromised conditions. Id.
- Employers can rely only on an RT-PCR test for viral RNA to determine that an asymptomatic employee is a known infected person who must be excluded from work for 10 days after the date of the first positive test. § 6.
- Employers must pay, or have their health insurance plans pay, for the cost of testing “for return to work determinations;” however, such testing is not required except in the case of the severely immunocompromised. § 40.C.3.
- A new “hierarchy of hazard controls” is required when multiple employees are occupying a vehicle for work purposes, but. First, the employer must attempt to eliminate the need to share vehicles. § 40.F. If sharing of vehicles must occur, the employer must provide respiratory protection, such as N95 respirators, instead of face masks, unless the employer can show that PPE is not “readily available” for those outside of the health care and first responder workplaces.
- More detailed requirements are provided for ventilation systems when job tasks or hazards are at very high or high levels of exposure (§ 50.B) or at medium levels of exposure (§ 60.B).
- As provided in the temporary standard, except for lower levels of exposures and small business at medium levels, employers must have a written Infectious Disease Preparedness and Response Plan (the “Plan”). The Permanent Standard adds that those Plans must address “situations where employees work during higher risk activities involving potentially large numbers of people or enclosed work areas such as at large social gatherings, … parties, restaurants, bars, hotels, … movie theaters, rest stops, airports, bus stations, train stations, … airplanes, etc.” § 70.C.3.a.(4). The Plan also must, consistent with privacy laws, address individual risk factors for severe disease, including age. at § 70.C.3.b.
- Extensive training and documentation of training continues to be required for all employees, except if they are only at a lower level of exposure. § 80.A. The Permanent Standard clarifies that such training must include: any CDC guidelines or Virginia guidance documents being relied upon in lieu of a specific provision in the Permanent Standard (§ 80.B.2.); risk factors for severe illness, including “advancing age” (§ 80.B.5.); strategies for extending use of PPE when it is in short supply (§ 80.B.8.f.); heat-related illness prevention, including when using PPE and face coverings (§ 80.B.8.g.); and additional methods for employee-specific training certification for all those at high or very high exposure levels (§ 80.G.).
- For employees only at the lower level of exposure, training requirements are not as rigorous, but now must include the “benefits of wearing face coverings.” § 80.G.5.
- The Permanent Standard provides that although an employee cannot be retaliated against for wearing a face covering that meets the requirements of the Standard and does not create a hazard, an employer can still “establish . . . and enforc[e] legally permissible dress code or similar requirements addressing the exterior appearance of [PPE] or face coverings.” § 90.B.
- The Permanent Standard continues to allow employees to raise “a reasonable concern” to the employer, its agent, other employees, a government agency, or “to the public such as through print, online, social, or any other media,” thus making an employer potentially liable for a VOSH citation for enforcing its internal publication policies and procedures. See 90.C.
- The Permanent Standard concludes by stating that it does not “limit an employer from refusing to do work or enter a location because of a reasonable fear of illness or death,” except pursuant to 16VAC25-60-110.
The Governor’s announcement of the Permanent Standard described VOSH’s enforcement approach. Upon receiving a complaint, VOSH will work with the employer to resolve the issue without an investigation. If VOSH has serious concerns or the employer is subject to multiple complaints, VOSH will open a formal investigation leading to citations or other enforcement action. To date, less than 1% of all complaints have been formally investigated, and less than one-third of those formally investigated have received a citation.
As the COVID‑19 workplace safety standard longest in effect, the Virginia standard has served as a model for other State-plan States and for the Biden Administration. Indeed, in his February 4, 2021, Senate confirmation hearing for the position of Secretary of Labor, he praised the Virginia Permanent Standard. If OSHA issues its own emergency temporary standard, it likely will have many of the elements in the Virginia Permanent Standard, which arise from, but significantly expand standard elements long found in U.S. OSHA guidance.
For more information or advice on the Virginia COVID‑19 Permanent Standard, please contact the author. Additional information regarding working during the COVID‑19 pandemic can be found on this blog and in Jenner & Block’s COVID‑19 Resource Center.
 All citations are to subsections of the Permanent Standard at 16VAC25-220, unless otherwise specified.