U.S. EPA’s Addition of 1-BP to CERCLA Hazardous Substance List Likely Precursor to Similar Actions on PFAS
By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice
On April 8, 2022, U.S. EPA added the industrial solvent 1-bromopropane (1-BP) to its list of CERCLA hazardous substances; this listing was triggered by U.S. EPA’s decision to add 1-BP to the Clean Air Act’s list of hazardous air pollutants in January 2022. The addition of 1-BP to the Clean Air Act’s list of hazardous air pollutants may have come as a bit of a surprise since U.S. EPA hasn’t added a new pollutant to the hazardous air pollutant list since the list was originally promulgated in 1990. However, once on the Clean Air Act list of hazardous air pollutants, the pollutant automatically falls with the CERCLA definition of “hazardous substances”. In addition to adding 1-BP to the list of hazardous substances in Table 302.4 in the Code of Federal Regulations, U.S. EPA set a CERCLA reportable quantity for 1-BP at one pound (the CERCLA statutory default).
The manner in which U.S. EPA treats 1-BP at CERCLA sites may be illustrative as to how U.S. EPA will treat PFOS and PFOA, two PFAS compounds that are currently under consideration for listing as CERCLA hazardous substances. Will U.S. EPA add 1-BP to the CERCLA required analyte list at all Superfund sites or will U.S. EPA adopt a more selective approach by relying on Toxics Release Inventory (TRI) data to identify nearby sites or manufacturing facilities that may have used the industrial solvent? The more likely scenario is that U.S. EPA will utilize some screening criteria to determine whether to sample for 1-BP but how wide of a 1-BP net that U.S. EPA decides to cast remains to be seen.
1-BP is also a volatile substance so U.S. EPA could also rely on the new listing to reopen and investigate sites for potential vapor intrusion concerns. However, it is unlikely that a site would be reopened solely on the basis of 1-BP vapor intrusion risks.
We will continue to track how U.S. EPA elects to address 1-BP at Superfund sites in an effort to gain insight as to how U.S. EPA may approach future hazardous substance designations at the Corporate Environmental Lawyer.
PFOA and PFAS Take Another Step Towards Becoming Full-Fledged Members of the CERCLA Family of Hazardous Substances
By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice
On January 10, 2022, U.S. EPA forwarded to the White House Office of Management and Budget (OMB) a proposed rule that seeks to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Although not unexpected since this was of the key elements of U.S. EPA’s PFAS Strategic Roadmap, U.S. EPA’s proposed rule is unique in that it represents one of the first times that U.S. EPA has by rule sought to designate a chemical as a CERCLA hazardous substance. U.S. EPA's actions in sending the proposed rule to OMB may also be foreshadowing for a similar effort to designate PFOA and PFOS as "hazardous wastes" under the Resource Conservation and Recovery Act (RCRA) which would subject these substances to RCRA's cradle to grave regulatory scheme.
The effect of listing PFOA and PFOS as CERCLA “hazardous substances” is significant for the following reasons:
- New Sites: By designating PFOA and PFOS as CERCLA “hazardous substances”, due to the ubiquitous nature of these contaminants in the environment, hundreds of sites could become CERCLA Superfund sites. For example, PFAS chemicals can be found in the soil and groundwater at sites that historically used firefighting foams, including airports, refineries, and military installations. It is also a contaminant of concern at manufacturing operations associated with cookware, stain-resistant clothing, and various packaging products. Finally, it may be a concern at municipal landfills and wastewater treatment facilities. There may also be trickle-down effects at the state level since many states automatically include federally-designated substances in the state definition of hazardous substances.
- Existing/Closed Sites: Moreover, at existing Superfund sites (including sites where a final remedy has been selected and is being implemented), U.S. EPA can require that the sites be investigated for PFOA and PFOS. If found, U.S. EPA can require that existing remedial strategies be modified to address these contaminants in the soil or groundwater. Similarly, even at sites where remedial measures have been completed, U.S. EPA could still seek to reopen the sites and require that these newly designated hazardous substances be remediated.
- Cost-Recovery Claims: Designation of PFOA and PFOS as CERCLA hazardous substances would open the door for both U.S. EPA and private-party PRPs to bring CERCLA cost recovery and/or contribution claims to pay for the costs to investigate and remediate these chemicals. In light of the increased scrutiny of these compounds in drinking water supplies, one could expect numerous CERCLA cost-recovery lawsuits by drinking water providers to recover the costs to treat public drinking water system.
- Reporting Requirements: Designation as a CERCLA hazardous substance also triggers release reporting under CERCLA. CERCLA § 103 (42 U.S.C. § 9603) requires that releases of “reportable quantities” (RQ) of CERCLA hazardous substances be reported to the National Response Center. Until such time as U.S. EPA promulgates a specific RQ for PFOA and PFOS, the default RQ for these chemicals will be one pound. Although many states are moving towards banning the use of fire-fighting foam that contains per- and polyfluoroalkyl substances, if PFOA and/or PFOS are designated as CERCLA "hazardous substances", it is likely that any use of fire-fighting foam containing these substances would trigger CERCLA release reporting.
Once U.S. EPA receives the review back from OMB and publishes the proposed rule for comment in the Federal Register, U.S.EPA can expect to receive robust comments both against and in favor of the designation. We will continue to follow U.S. EPA’s efforts to designate PFOA and PFOS as CERCLA “hazardous substances” at the Corporate Environmental Lawyer blog.
Supreme Court Narrows Triggers for CERCLA Contribution Actions
By Allison A. Torrence
In a unanimous decision authored by Justice Thomas, the Supreme Court of the United States ruled in the case of Guam v. United States, No. 20-382, 593 U.S. __ (2021), that a party must resolve “CERCLA-specific liability” in order to trigger contribution rights under § 113(f)(3)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).
The question before the Court was whether a settlement between Guam and the United States that resolved claims under the Clean Water Act could be the basis for a contribution claim under § 113(f)(3)(B) of CERCLA. In this case, Guam and the U.S. EPA had entered into a Consent Decree following a Clean Water Act lawsuit, settling the United States’ Clean Water Act claims against Guam and requiring Guam take actions to close and cover a dump site. Thirteen years later Guam sued the United States under CERCLA for cost recovery and contribution, claiming the United States’ earlier use of the dump site exposed it to liability. The district court, in a ruling affirmed by the court of appeals, ruled that Guam had a contribution claim at one point, based on its Clean Water Act Consent Decree because that Decree required remedial measures and provided a conditional release, which sufficiently resolved Guam’s liability for the dump site and triggered a CERCLA contribution claim under § 113(f)(3)(B). However, the Decree also triggered the three-year statute of limitations, which had expired, leaving Guam without any viable claims.
The Supreme Court reversed the lower courts, rejecting the notion that the Clean Water Act Consent Decree was sufficiently similar to a CERCLA settlement to trigger contribution liability. The Court focused on a textual analysis of the statute, which states in relevant part that:
A person who has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement may seek contribution from any person who is not party to a [qualifying] settlement.
42 U.S.C. § 9613(f)(3)(B).
Of particular note to the Court was the reference in § 113(f)(3)(B) to “response action”, which is a term of art in CERCLA, and appears throughout the Act. The Court reasoned that this language “is best ‘understood only with reference’ to the CERCLA regime.” Guam, slip op. at 6, quoting United States v. Atlantic Research Corp., 551 U. S. 128, 135 (2007). Thus, according to the Court’s reasoning, to resolve liability for a “response action,” a party must engage in a CERCLA-specific settlement, not “settle an environmental liability that might have been actionable under CERCLA.” Id. at 7.
In conclusion, the Court held that “[t]he most natural reading of §113(f)(3)(B) is that a party may seek contribution under CERCLA only after settling a CERCLA-specific liability.” Id. at 9.
Like most major CERCLA decisions, the Court’s ruling answers one question but raises many more. We can expect future litigation on the precise bounds of how specific a settlement need be to qualify as “CERCLA-specific” under the Court’s holding. There will also likely be litigation regarding how this ruling may apply to other provision of CERCLA beyond §113(f )(3)(B). As always, the Corporate Environmental Lawyer Blog will be monitoring these important developments and reporting on what you need to know.
Environmental Organizations Petition EPA to Expand Enforcement of Clean Air Act’s General Duty Clause
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.
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.
OSHA Issues Proposed Update to Hazard Communication Standard
By Matthew G. Lawson
On February 5, 2021, the U.S. Occupational Safety and Health Administration (OSHA) issued a proposed rule updating its Hazard Communication (“Haz Com”) Standard to align its rules with those in the seventh version of the United Nation’s Globally Harmonized System of Classification and Labeling of Chemicals (GHS), published in 2017. OSHA’s proposed regulatory update is being issued as the United States’ major international trading partners, including Canada, Australia, New Zealand, and those in Europe, similarly prepare to align their own hazard communications rules with the seventh version of the GHS.
Originally established in 1983, OSHA’s Haz Com Standard provides a systematized approach to communicating workplace hazards associated with exposure to hazardous chemicals. Under the Haz Com Standard, chemical manufacturers and/or importers are required to classify the hazards of chemicals which they produce or import into the United States, and all employers are required to provide information to their employees about the hazardous chemicals to which they are exposed, by means of a hazard communication program, labels and other forms of warning, safety data sheets, and information and training. At an international level, the GHS provides a universally harmonized approach to classifying chemicals and communicating hazard information. Core tenants of the GHS include universal standards for hazard testing criteria, warning pictograms, and safety data sheets for hazardous chemicals.
In a pre-published version of the proposed rule, OSHA’s proposed modifications to the Haz Com Standard include codifying enforcement policies currently in OSHA’s compliance directive, clarifying requirements related to the transport of hazardous chemicals, adding alternative labeling provisions for small containers and adopting new requirements related to preparation of Safety Data Sheets. Key modifications included in the proposed rule, include:
New flexibility for labeling bulk shipments of hazardous chemicals, including allowing labels to be placed on the immediate container or transmitted with shipping papers, bills of lading, or by other technological or electronic means that are immediately available to workers in printed form on the receiving end of the shipment;
New alternative labeling options where a manufacturer or importer can demonstrate that it is not feasible to use traditional pull-out labels, fold-back labels, or tags containing the full label information normally required under the Haz Com Standard, including specific alternative requirements for containers less than or equal to 100ml capacity and for containers less than or equal to 3ml capacity; and
New requirements to update the labels on individual containers that have been released for shipment but are awaiting future distribution where the manufacturer, importer or distributer becomes aware of new significant information regarding the hazards of the chemical.
OSHA last updated its Haz Com Standard in 2012, to align the standard with the then recently published third version of GHS. In its newly proposed rule, OSHA clarifies that it is “not proposing to change the fundamental structure” of its Haz Com Standard, but instead seeking to “address specific issues that have arisen since the 2012 rulemaking” and to provide better alignment with international trading partners. According to OSHA, its proposed modifications to the Haz Com Standard “will increase worker protections, and reduce the incidence of chemical-related occupational illnesses and injuries by further improving the information on the labels and Safety Data Sheets for hazardous chemicals.”
OSHA is currently accepting comments on its proposed rule until April 19, 2021. Comments may be submitted electronically to Docket No. OSHA-2019-0001at http://www.regulations.gov, which is the Federal e-Rulemaking Portal.
DOE Final Rule Seeks to Streamline NEPA Review of LNG Projects
By Steven M. Siros, Co-Chair, Environmental and Workplace Health and Safety Law Practice
The Trump administration continues its efforts to issue new regulations in advance of January 20, 2021, with the Department of Energy (DOE) issuing a final rule that will exempt certain liquefied natural gas (LNG) projects from National Environmental Protection Act (NEPA) review. The final rule, published in the Federal Register on December 4, updates DOE’s NEPA implementing procedures with respect to authorizations issued under the Natural Gas Act in accordance with the recent revisions to the NEPA regulations as further described below.
According to DOE, the focus of the new rule is to clarify the scope of DOE’s NEPA obligations with respect to LNG projects and more specifically, to eliminate from the scope of DOE’s NEPA review potential environmental effects that the agency has no authority to prevent. Because DOE’s discretionary authority under Section 3 of the Natural Gas Act is limited to the authorization of exports of natural gas to non-free trade agreement countries, the rule limits the scope of environmental impacts that DOE must consider to the impacts associated with the marine transport of the LNG commencing at the point of export.
To that end, the final rule revises DOE’s existing Categorical Exclusions (CATEX) to reflect that the only elements of LNG projects subject to NEPA review is the following:
B5.7 Export of natural gas and associated transportation by marine vessel.
Approvals or disapprovals of new authorizations or amendments of existing authorizations to export natural gas under section 3 of the Natural Gas Act and any associated transportation of natural gas by marine vessel.
Based on prior NEPA reviews and technical reports, DOE has determined that the transport of natural gas by marine vessel normally does not pose the potential for significant environmental impacts and therefore qualifies for a CATEX. As such, the only reason that DOE would be obligated to engage in a NEPA review of a LNG project would be if “extraordinary circumstances” were deemed to be present that could not be mitigated and therefore would preclude DOE's reliance on this CATEX.
The revised CATEX also removes the reference to import authorizations from CATEX B5.7 because DOE has no discretion with respect to such approvals. Finally, the final rule also removes and reserves CATEX B5.8 and classes of actions C13, D8, D9 because these actions are outside of the scope of DOE’s authority or are covered by the revised CATEX B5.7.
Interestingly, although the Federal Energy Regulatory Commission (FERC) has responsibility for approving the construction of LNG export terminals, it has previously declined to analyze the greenhouse emissions associated with such projects, noting that DOE is the appropriate agency to consider such impacts. However, with DOE now concluding that these projects are categorically excluded from such reviews, it remains to be seen if FERC will reconsider its approach to these operations.
The final rule is scheduled to take effect on January 4, 2021 and it remains to be seen what if any action a new Biden administration might take in response to this rule. Assuming that the Republicans retain control of the Congress, DOE would be required to go through the formal withdrawal process. Alternatively, if the Democrats take control of the Senate, the regulation could be repealed pursuant to the Congressional Review Act.
We will continue to track the Trump administration’s ongoing effort to finalize regulations in advance of January 20th as well as efforts by any new administration to rollback these regulations on the Corporate Environmental Lawyer.
Virginia Issues First COVID-19 Emergency Workplace Safety and Health Standard
By Leah M. Song
On July 27, 2020, Virginia became the first state to adopt an emergency workplace safety standard regarding exposure to COVID-19. Virginia is one of the 22 states which has jurisdiction to issue its own workplace safety and health regulations, which must be at least as stringent as regulations issued by U.S. OSHA, but can go beyond federal requirements. The Virginia regulation titled §16 VAC 25‐220, Emergency Temporary Standard, Infectious Disease Prevention: SARS‐CoV‐2 Virus That Causes COVID‑19 (“Emergency Standard”) was adopted during a meeting of the Virginia Safety and Health Codes Board on July 15, 2020. The Emergency Standard will expire “(i) within six months of its effective date, upon expiration of the Governor’s State of Emergency, or when superseded by a permanent standard, whichever occurs first, or (ii) when repealed by the Virginia Safety and Health Codes Board.” The Emergency Standard was available as of July 24, 2020, but will be formally published on July 27, 2020, and its legal effective date is July 27, 2020.
The Emergency Standard shall apply to every employer, employee, and place of employment in Virginia within the jurisdiction of the Virginia Occupational Safety and Health Program (“VOSH”), as described in §§ 16 VAC 25-60-20 and 16 VAC 25-60-30 for both public and private employers.
The “[a]pplication of this [Emergency Standard] to a place of employment will be based on the exposure risk level” (i.e., “very high,” “high,” “medium,” and “lower” of COVID-19 and “related hazards present or job tasks.” The Emergency Standard includes a minimum list of factors to be considered in determining exposure risk level, such as the work environment and employee contact, as well as employer requirements for each exposure risk level.
The Emergency Standard details mandatory requirements for all employers, regardless of exposure risk level, such as:
Exposure assessment and determination, notification requirements, and employee access to exposure and medical records
Return to work policies and procedures
Limited access to common areas
Compliance with respiratory protection and personal protective equipment standards
Compliance with sanitation and disinfection standards
The Emergency Standard details additional requirements for each exposure risk level designated as “very high,” “high,” and “medium.” For all workplaces other than those with low exposure risk, the employer must develop and implement a written Infectious Disease Preparedness and Response Plan (“IDPR Plan”). The IDPR Plan, employers shall consider contingency plans for outbreaks, identify basic infection prevention measures, and address interaction with outside businesses.
In addition, the Emergency Standard requires that in workplaces in the “very high” and “high” exposure risk levels, the employer shall implement protective measures such as isolation facilities and physical barriers. For the “medium” exposure risk level, the employer shall consider protective measures such as flexible work arrangements and increasing physical distancing.
With regard to face coverings, the Emergency Standard defines “face covering” as not PPE. The Emergency Standard states: “Employee use of face coverings for contact inside six feet of coworkers, customers, or other persons is not an acceptable administrative or work practice control to achieve minimal occupational contact. However, when it is necessary for an employee to have brief contact with others inside the six feet distance a face covering is required.” §16 VAC 25‐220-30. At the “medium” exposure level, employers of "medium" exposure level workplaces are required, “to the extent possible,” to provide and have their employees wear face coverings where it is not feasible to physically distance between employees or in customer-facing jobs for the “medium” exposure level. Face coverings may not be required under certain circumstances, such due to the wearer’s medical condition and religious waivers.
To the extent that an employer actually complies with a recommendation contained in CDC guidelines, and those guidelines provide “equivalent or greater protection than provided by a provision of this [Emergency Standard], the employer’s actions shall be considered in compliance with this [Emergency Standard].” “An employer’s actual compliance with a recommendation contained in CDC guidelines … shall be considered evidence of good faith in any enforcement proceeding related to this [Emergency Standard].”
The Emergency Standard also expressly addressed the notification requirements when there is an employee with a positive COVID-19 case. Employers must notify (a) the building or facility owner if any employee in the building tests positive for COVID-19; (b) the Virginia Department of Health within 24 hours of the discovery of a positive case; and (c) the Virginia Department of Labor and Industry within 24 hours of the discovery of three or more employees who test positive for COVID-19 within a 14-day period.
Additionally, employers are prohibited from using antibody testing to “make decisions about returning employees to work who were previously classified as known or suspected to be infected” with COVID-19.
The Emergency Standard also confirms an employee’s right to “refus[e] to do work or enter a location that the employee feels is unsafe.” Section 16 VAC 25-60-110 provides requirements regarding the “discharge or discipline of an employee who has refused to complete an assigned task because of a reasonable fear of injury or death.” That provision states that such discharge or discipline will be considered retaliatory “only if the employee has sought abatement of the hazard from the employer and the statutory procedures for securing abatement would not have provided timely protection.”
Under Emergency Standard §16 VAC 25‐220‐80, covered employers will have until August 26, 2020, to train employees, covering topics such as the requirements of the Emergency Standard, COVID-19 symptoms and methods of transmission, safe and healthy work practices, and anti-discrimination provisions. It is important to note that training requirements for exposure risk levels “very high,” “high,” and “medium” differ from the less-comprehensive requirements for the “lower” risk level. Under subsection 16 VAC 25‐220‐70, if an employer is required to have an IDPR Plan, the employer must develop and train employees on their IDPR Plan by September 25, 2020.
Training and outreach materials, including training PowerPoints, FAQs, an IDPR Plan template, and an exposure risk level flow chart, are being developed by the VOSH Cooperative Programs Division, with some available here, as of July 24, 2020.
At the federal level, OSHA has come under scrutiny for its decision not to adopt a COVID-19 emergency temporary standard. The American Federation of Labor and Congress of Industrial Organizations’ (“AFL-CIO”) and other unions asked OSHA to issue an Emergency Temporary Standard (“ETS”), rather than have employers rely solely on existing OSHA regulations and new COVID-19 guidance to no avail. On May 18, 2020, the AFL-CIO filed a petition for a writ of mandamus in the U.S. Court of Appeals to compel OSHA to issue an ETS within 30 days. However, on June 11, 2020, the court held 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 environment.” On June 18, 2020, the AFL-CIO filed for a rehearing en banc. Please see Jenner & Block’s analysis of the AFL-CIO lawsuit here. In addition, the U.S. House of Representatives introduced legislation, titled “The COVID-19 Every Worker Protection Act” (H.R. 6559), which would require OSHA to issue an ETS. The provisions of H.R. 6559, including the provisions relating to the ETS, were included in H.R. 6800, The Heroes Act. H.R, passed by the House on May 15, 2020, and which is set to be part of the upcoming political debates and votes by the House and the Senate on new COVID-19 economic stimulus and related legislation.
Jenner & Block’s Corporate Environmental Lawyer will continue to update on these matters, as well as other important COVID‑19 related guidance, as they unfold.
OSHA Faces FAQs on Face Coverings
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On June 10, 2020, in a series of six “frequently asked questions and answers” (Face Coverings FAQs), OSHA provided its first general guidance on the use of cloth face coverings in the workplace. In announcing the FAQs, OSHA’s Principal Deputy Assistant Secretary, Loren Swett, stated that it was issuing the guidance because “millions of Americans will be wearing masks in their workplace for the first time” and “OSHA is ready to help workers and employers understand how to properly use masks so that can stay safe and healthy in the workplace.”
The Face Coverings FAQs document is the first COVID-19 guidance that OSHA has provided in a Q&A format. In this format, OSHA’s guidance may not provide straightforward answers to many employers’ questions. For most employers, the most important takeaway from the Face Coverings FAQs is: Cloth face coverings are not OSHA-required personal protective equipment (“PPE”), which must be provided and paid for by an employer; however, an employer may recommend or require cloth face coverings as a method of non-PPE virus “source control” and as part of a COVID-19 infection response plan. OSHA does not address whether employer-required cloth face coverings, when required as non-PPE “source control,” must be paid for by the employer.
Here are some key points from the Face Coverings FAQs:
- Cloth face coverings are used to “contain the wearer’s potentially infectious respiratory droplets produced when an infected person coughs, sneezes, or talks and to limit the spread of … the virus that causes … COVID-19, to others.” By “containing” droplets, rather than protecting the wearer against “droplets,” cloth face coverings are solely used for “source control”, not wearer protection.
- “Source control” is to prevent people who are asymptomatic or pre-symptomatic “from spreading potentially infectious respiratory droplets to others.”
- Cloth face coverings, whether homemade or commercially produced, “are not considered personal protective equipment (PPE)” under OSHA’s PPE regulations, 29 CFR 1910.132.
- Cloth face coverings are different from PPE, such as medical face masks (surgical masks) or respirators, because the sole purpose of cloth face coverings is as source control.
- Because face coverings are not PPE, “OSHA’s PPE standards do not require employers to provide them.” However, “OSHA generally recommends that employers encourage workers to wear face coverings at work,” as a method of source control.
- Because cloth face coverings are not necessary PPE, an employer cannot be required under OSHA’s PPE standards to provide them at no cost to workers.
- Employers can require cloth face coverings. Specifically, employers “may choose to ensure that cloth face coverings are worn as a feasible means of abatement in a control plan designed to address hazards from …the virus that causes COVID-19.” (emphasis added) In those circumstances, employers are “choos[ing] to use cloth face coverings as a means of source control,” in combination with engineering and administrative controls, such as social distancing.
- Cloth face coverings cannot be a substitute for social distancing measures.
- Cloth face coverings cannot be used by “those who have trouble breathing or are otherwise unable to put on or remove a mask without assistance.”
- Employers “have discretion” as to “whether to allow employees to wear cloth face coverings…based on the specific circumstances present at the work site.” For example, an employer can determine that cloth face coverings cannot be used if they “present or exacerbate a hazard” or are incompatible with otherwise required PPE.
- If the employer determines that cloth face coverings are inappropriate, “employers can provide PPE, such as face shields and/or surgical masks,” instead of encouraging face masks. In a footnote, OSHA explains that when surgical masks are used solely for “source control,” they are not considered “PPE,” which would be required to be provided and paid for by the employer under the PPE regulations.
- Neither cloth face coverings nor surgical masks can be used as a substitute for respirators, when respirators are required. Respirators prevent the wearer from inhaling small particles, and must be provided and used according to OSHA’s Respiratory Protection standard, 29 CFR 1910.134.
- Per existing regulation, filtering facepiece respirators (FFRs), such as N95s, can be used by employees “voluntarily,” if they first receive certain required information regarding their use and hazards.
- Even though cloth face coverings are not required pursuant to PPE regulations, OSHA twice refers to an employer’s statutory obligations under the OSH Act’s General Duty Clause to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” In those references, OSHA refers to using cloth face coverings as source covering one “feasible method” to address hazards from the virus in the workplace.
OSHA makes important distinctions between a cloth face coverings and “medical face masks”, of which surgical masks are an example. A surgical mask is not necessarily approved by the FDA as a medical device. Both medical face masks and cloth face coverings fail to protect the wearer against airborne transmissible agents because of their loose fit, and both can be used to “contain the wearer’s respiratory droplets”, i.e., “source control”. However, in contrast with cloth face coverings, surgical masks can be PPE if they are used to “protect workers against splashes and sprays (i.e., droplets) containing potentially infectious materials.” However, a surgical mask also may not be considered PPE, when it is used solely as “source control.” Thus, with respect to surgical masks, OSHA is making the distinction between PPE and non-PPE based on the purpose for which the employer uses it—if the mask is used solely for purposes of “source control,” it is not PPE; if the mask is used for wearer protection against others’ droplets, it is PPE. However, because “cloth face coverings” are defined to exclude protecting the worker from others’ infection, if an employer is stating that it is using a piece of equipment as a method of wearer protection, the employer will be required to show that, in fact, the device can provide that protection and treat it as PPE.
OSHA’s references to the General Duty Clause are worth repeating and analyzing. In the Face Covering FAQs, OSHA makes a distinction between what is required by existing regulations, such as the PPE or Respiratory Protection standards, and what may be required under the General Duty Clause. In other guidance, OSHA has stated that the General Duty Clause is one of the "OSHA requirements" that “apply to preventing occupational exposure to SARS-CoV-2.” In the first comprehensive guidance OSHA issued regarding COVID-19, at page 7, OSHA stated that developing an infectious disease response plan is a step that all employers can take to guard against the workplace risks of exposure to the virus.
In the context of the General Duty Clause, OSHA’s Face Covering FAQs guidance states that an employer’s “control plan designed to address hazards” from the virus and COVID-19 can include “control measures,” including engineering controls, administrative controls (such as social distancing), PPE, and different methods of virus “source control,” all as “feasible methods” to address the hazards. OSHA also describes non-PPE as a “means of abatement” under the General Duty Clause. Thus, especially because of the potentially broad scope of the General Duty Clause, an employer would be well-advised to have a COVID-19 response plan, which should include an identification of the risk of workplace exposure (it may be low) and descriptions of engineering and administrative controls, PPE, and other controls for the risk of exposure to the virus in the workplace. Consistent with the Face Coverings FAQs guidance, the response plan should carefully distinguish between equipment to be used as required PPE and equipment required or allowed to be used as “source control.”
Please feel free to contact the author with questions or for further information. For regular updates about the impact of COVID 19 in the workplace and on business generally, please visit Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID 19 Resource Center.
White House Reopening Guidelines: How Will Workplaces Open Up Again?
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On April 16, 2020, the White House issued “Guidelines: Opening Up America Again” (Guidelines), with criteria for how state and local officials, employers and individuals should approach reopening segments of their communities after various stay-at-home orders, essential-business regimens and other social distancing measures that Federal, State and local governments have issued in response to the coronavirus and COVID-19.
The Guidelines recommend a three-phased approach to reopening, with “Gating Criteria” before States can begin Phase One. An important component to the Guidelines are the directions to all employers and to industry-specific employers. In general, until a state or locality is in Phase Two, when schools are allowed to reopen, burdens on employers and employees will not significantly diminish. It is only in Phase Three that the workplace will begin to resemble “pre-COVID-19” conditions.
The “Gating Criteria” for States, before Phase One can begin, include 14-day downward trajectories in symptoms and cases, having non-crisis care treatment of all patients, and having a “robust program” for testing “at-risk” healthcare workers. In addition, the Guidelines describe “Core State Preparedness Responsibilities” regarding testing, contact tracing, healthcare system capacity and other safety and health plans for the community, before Phase One can begin. One of the “Core State Preparedness Responsibilities” is to “protect the health and safety of workers in critical industries.”
The Guidelines include specific recommendations for employers in all phases of the reopening process, as follows:
Develop and implement appropriate policies, in accordance with Federal, State, and local regulations and guidance, and informed by industry best practices, regarding:
Social distancing and protective equipment
Testing, isolation and contact tracing
Use and disinfection of common and high-traffic areas
Monitor workforce for indicative symptoms.
Do not allow symptomatic people to physically return to work until cleared by a medical provider.
Develop and implement policies and procedures for workforce contact tracing following employee COVID+ test.
Compliance with these Guidelines can impose on employers significant costs, business interruptions and other burdens. For example, due to personnel and supply chain shortages, many employers will have limited ability to conduct temperature and symptom checks or to provide protective equipment. In addition, effective contact tracing within the workplace can be procedurally difficult, time-consuming and require additional, trained personnel.
The Guidelines also have more specific directions impacting employers for each phase of reopening.
In Phase One, the Guidelines discourage gatherings of more than 10 people, such as trade shows, minimize non-essential travel and recommend that “vulnerable individuals” continue to shelter in place. “Vulnerable individuals” are those who are “elderly” (an undefined term) or who have “serious underlying health conditions.” The Guidelines remind individuals that if someone has a vulnerable individual in the household “by returning to work or other environments where distancing is not practical, they could carry the virus back home.”
These precautions can make certain workers reluctant to return to work and may require additional flexibility or hiring criteria by employers. In addition, in Phase One, schools and organized youth activities are to remain closed, which will place burdens and challenges on all businesses, whether they seek to remain open or to reopen anew.
Under the Guidelines, all employers are to do the following in Phase One:
Continue to ENCOURAGE TELEWORK whenever possible and feasible with business operations.
If possible, RETURN TO WORK IN PHASES.
Close COMMON AREAS where personnel are likely to congregate and interact, or enforce strict social distancing protocols.
Minimize NON-ESSENTIAL TRAVEL and adhere to CDC guidelines regarding isolation following travel.
Strongly consider SPECIAL ACCOMMODATIONS for personnel who are members of a VULNERABLE POPULATION.
Reopening of restaurants is not generally addressed in the Guidelines, except in the context of “large venues,” which in Phase One “can operate under strict physical distance protocols.” Examples of “large venues” are “sit-down dining, movie theaters, sporting venues and places of worship.” Bars are recommended to remain closed, but gyms may re-open, with protections. Senior Living facilities and hospital should remain on shut-down to outside visitors, but elective surgeries can resume with precautions.
Most importantly for employers, schools and youth activities can reopen in Phase Two. However, precautions about protecting vulnerable individuals continue, including the concern about workers in the same household potentially affecting those individuals.
The concern about public gatherings and social settings is targeted to groups of more than 50 people, unless “precautionary measures are observed.” Examples or a definition of “precautionary measures” are not provided. In this phase, non-essential travel can be resumed for individuals and in the workplace.
For all employers, the Phase Two Guidelines recommend:
Continue to ENCOURAGE TELEWORK whenever possible and feasible with business operations.
Close COMMON AREAS where personnel are likely to congregate and interact, or enforce moderate social distancing protocols.
NON-ESSENTIAL TRAVEL can resume.
Strongly consider SPECIAL ACCOMMODATIONS for personnel who are members of a VULNERABLE POPULATION.
“Large venues” can operate under “moderate physical distancing protocols,” another term which is undefined. Bars can reopen “with diminished standing-room occupancy, where applicable and appropriate.”
Phase Three has limited directions or restrictions on the workplace. “Vulnerable individuals can resume public interactions” but should practice physical distancing and undefined “precautionary measures.” All other populations “should consider minimizing time spent in crowded environments.” Employers, however, can “resume unrestricted staffing.” Large venues are recommended to “operate under limited physical distancing protocols” and bars can increase standing room occupancy.
Some level of physical distancing and undefined “precautionary measures” are to be maintained throughout all three phases described in the Guidelines. The Guidelines do not provide a marker for when the protections described in the last, Third Phase, can be lifted.
Please feel free to contact the author with questions or for further information. For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.
OSHA to Manufacturers: Coronavirus "Safety Tips” in an “Alert” to Manufacturing Employers
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On April 16, 2020, OSHA released an “alert” with “safety tips” that manufacturing employers “can follow to help protect manufacturing workers from.” (“Manufacturers Alert”) (emphasis added). Although the “alert” is not a regulation which OSHA can directly enforce, OSHA may attempt to use an alert as a basis for imposing liability on employers under the OSH Act’s General Duty Clause. In any case, employers should expect that OSHA compliance officers will use the Manufacturers Alert to evaluate enforcement options in response to employee complaints about coronavirus exposure in the workplace. In addition, employees may view the Manufacturers Alert as a checklist to evaluate their workplaces and for complaints to OSHA and their employers. The full list of OSHA’s “tips” are provided at the end of this article.
OSHA’s Manufacturers Alert was issued on the same day that the White House issued its guidelines for “Opening Up America Again” (“the Guidelines”). The Guidelines include recommendations specifically targeted to employers prior to a State or region reopening for business. Notably, OSHA’s Manufacturers Alert did not include several precautions or directions to employers that were listed in the Guidelines, including directions to employers to conduct symptom monitoring, temperature checks, and contact tracing, and to obtain clearance by a medical provider before a symptomatic worker can return to the workplace.
According to the Guidelines, all employers should:
Develop and implement appropriate policies, in accordance with Federal, State, and local regulations guidance, and informed by industry practices, regarding:
Social distancing and protective equipment
Testing, isolating, and contact tracing
Use and disinfection of common and high-traffic areas
Previously, OSHA published “Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus.” The Manufacturers Alert adds six-foot physical distancing to those “Ten Steps” and tells manufacturing employers to consider limiting closer work or taking “innovative approaches” to limit exposures during closer work. Unlike the Ten Steps, the Manufacturers Alert also includes directions to allow workers to wear masks at work and to train workers on donning, doffing, and maintaining protective clothing and equipment.
OSHA’s Manufacturers Alert lists the following 12 “tips:”
Encourage workers to stay home if they are sick.
Establish flexible work hours (e.g., staggered shifts), if feasible.
Practice sensible social distancing and maintain six feet between co-workers, where possible.
For work activities where social distancing is a challenge, consider limiting the duration of these activities and/or implementing innovative approaches, such as temporarily moving or repositioning workstations to create more distance or installing barriers (e.g., plexiglass shields) between workstations.
Monitor public health communications about COVID-19 recommendations for the workplace and ensure that workers have access to and understand that information.
Train workers on how to properly put on, use/wear, take-off, and maintain protective clothing and equipment.
Allow workers to wear masks over their nose and mouth to prevent spread of the virus.
Encourage respiratory etiquette, including covering coughs and sneezes.
Discourage workers from using other workers’ tools and equipment.
Use Environmental Protection Agency-approved cleaning chemicals from List N or that have label claims against the coronavirus.
Promote personal hygiene. If workers do not have access to soap and water for handwashing, provide alcohol-based hand rubs containing at least 60 percent alcohol. Provide disinfectants and disposable towels workers can use to clean work surfaces.
Encourage workers to report any safety and health concerns.
For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.
OSHA to Most Employers: Limited Exemption from Recording Requirement for Employees’ COVID 19 Cases
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On April 10, 2020, US OSHA partially retracted its initial instructions to employers, which had required employers to evaluate employees who contracted COVID‑19 as potential recordable occupational illnesses under OSHA’s injury/illness recordkeeping rules, 29 CFR Part 1904. According to its new “Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID‑19),” (Recording Guidance), in most cases, OSHA will not enforce its recordkeeping rules that otherwise would have required all employers to make determinations as to whether “workers who contacted COVID‑19 did so due to exposures at work.” However, OSHA did not retract its basic position that COVID‑19 “is a recordable illness,” which must be recorded as a work-related illness on OSHA 300 logs (or their equivalent) if: (1) the employee has a “confirmed case of COVID‑19” based on at least one positive test for the virus; (2) the COVID‑19 is “work-related,” per 29 CFR § 1904.5, i.e., the disease is contracted from exposure in the work environment; and (3) the case meets recording criteria, including a significant illness diagnosed by a healthcare professional or days away from work. Instead, OSHA recognized that in areas with community-spread of the coronavirus, most employers “may have difficulty” making determinations that COVID‑19 cases were due to exposures at work, so those employers would no longer have to affirmatively investigate whether the employee’s COVID‑19-positive diagnosis was work-related in order to avoid the risk of an OSHA enforcement action for a recordkeeping violation.
OSHA’s “enforcement discretion” towards an employer’s obligation to record COVID‑19 cases has several important caveats:
First, healthcare emergency response organizations, and correctional institutions (here, Non‑Exempt Employers) would continue to be required to determine whether an employee’s COVID‑19 diagnosis was due to workplace exposure.
Second, OSHA’s enforcement discretion apparently is limited to areas where there is community transmission of the virus.
Third, all employers would continue to be required to determine that an employee’s COVID‑19 diagnosis is a work-related case, if:
“There is objective evidence that a COVID‑19 case may be work related [such as if] a number of cases develop among workers who work closely together without an alternative explanation” and
The “objective evidence” is “reasonably available to the employer . . . [such as if] information [is] given to the employer by employees” or the employer learns information in the “ordinary course of managing its business and employees.”
If a case is recorded, the employer must keep the employee’s name confidential “if an employee voluntarily requests” that the employer do so. Although OSHA’s Recording Guidance does not expressly address OSHA’s requirement to report serious and fatal illnesses to OSHA, because the reporting requirement is triggered by hospitalizations or fatalities due to a “work-related incident,” if, in reliance on the Recording Guidance, an employer does not determine that the illness is a work-related case, it follows that the case also would not be a reportable case.
OSHA stated that it was granting this enforcement discretion in order to allow employers more time to focus on “good hygiene practices” and otherwise mitigating the effects of COVID‑19 in the workplace. This Recording Guidance supplements OSHA’s general guidance on COVID‑19 preparedness in the workplace and OSHA COVID-19 enforcement guidances issued to address certain aspects of its respiratory protection rules, as well as OSHA’s new workplace poster, entitled “Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus.”
For more information about the impact of COVID‑19 in the workplace and on business generally go to Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.
OSHA to Employers: Some Relief from Respiratory Protection Rules in the Face of N95 Shortages
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On April 3, 2020, U.S. OSHA issued two Enforcement Guidance memos which, for the first time, provide guidance to all industries, including healthcare, regarding how to comply with OSHA rules in the face of N95 shortages. The first document is entitled “Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to Coronavirus Disease 2019 (COVID-19) Pandemic” (N95 Shortage Guidance). The N95 Shortage Guidance informs all employers whose employees are required to use, or permitted to voluntarily use, respiratory protection, the limited circumstances in which an OSHA inspector may, on a “case-by-case basis, exercise enforcement discretion” when an employer deviates from OSHA’s current respiratory protection standards, including OSHA’s principal rules at 29 CFR §1910.134 (the Respiratory Standard). While offering some relief from the threat of an OSHA enforcement action, the N95 Shortage Guidance also serves to reemphasize employers’ continuing obligations under the Respiratory Standard despite the short, often non-existent, supply of respiratory protection equipment.
Employers’ continuing obligations in the face of shortages include:
Manage your respiratory protection program (RPP) in accordance with the Respiratory Standard and “pay close attention to shortages of N95s.”
Identify and evaluate respiratory hazards.
Develop, implement, and document worksite-specific procedures to address changes in use of N95s and other respiratory protection.
Revise your written RPP to reflect changes in workplace conditions caused by the N95 shortage and COVID-19.
For the first step completing these obligations, “all employers should reassess their engineering controls, work practices, and administrative controls” to identify how to decrease the need for N95s. OSHA suggests alternatives to use of N95s, e.g., use of wet methods or portable local exhaust systems and moving the task requiring use of respiratory protection outdoors. More cautiously, OSHA states that “[i]n some instances, an employer may also consider taking steps to temporarily suspend certain non-essential operations.” However, OSHA does not require that employers stop performing tasks with respiratory hazards.
Under the N95 Shortage Guidance, if N95 alternatives are not possible and “respiratory protection must be used” OSHA provides a series of decision-making options:
Use alternative classes of NIOSH-approved respirators if they “provide equal or greater protection” compared to N95s.
If NIOSH-approved alternatives are not available, or use of these alternatives create additional hazards, then employers may:
Implement extended use or reuse of N95s, with extended use preferred over reuse; or
Use NIOSH-approved N95s past the manufacturer’s recommended shelf life, but only if the equipment’s integrity has not been compromised.
OSHA then states further requirements for the use of any of these options, including documenting the use of options in written RPPs and providing additional training to employees on the new procedures. In the health care industry only, OSHA refers employers to the CDC’s guidance on the hierarchy of decisions applicable in case of expired N95s, but states that its N95 Shortage Guidance is not intended to cover COVID-19 “crisis standard of care” scenarios.
In the second guidance document issued on April 3, 2020, entitled “Enforcement Guidance for Use of Respirators Protection Equipment Certified under Standards of other Countries or Jurisdictions” (Respirator Use Guidance), OSHA provides the hierarchy of decision-making that constitutes making a “good-faith effort” to provide appropriate respiratory protection:
Implement OSHA’s hierarchy of controls to eliminate or substitute out workplace hazards
Prioritize efforts to acquire and use equipment as follows:
Foreign-certified, as listed by OSHA, other than by China
China-certified [without any NIOSH certificate]
Only use equipment beyond shelf life if in non-compromised condition
Extended use or reuse in accordance with CDC’s Strategies for Optimizing the Supply of N95 Respirators
Use homemade masks or other improvised face coverings “only as a last resort”
The Respirator Use Guidance also summarizes other requirements for respiratory protection, including training, documenting changes in procedures and conditions, and equipment inspection.
The two April 3 Enforcement Guidance documents accompany OSHA’s March 14, 2020 enforcement guidance regarding respirator fit-testing for health care employers only, previously discussed by the author here. See Jenner & Block’s “Corporate Environmental Lawyer” blog and Jenner & Block’s COVID-19/Coronavirus Resource Center for frequently updated information for businesses and organizations worldwide.
EPA’s Temporary Enforcement Discretion Policy for COVID-19 Pandemic
By Leah M. Song and Steven M. Siros
On March 26, 2020, the U.S. Environmental Protection Agency (“EPA”) announced a temporary policy regarding EPA enforcement of environmental legal obligations during the COVID-19 pandemic. EPA Administrator Andrew Wheeler stated that the “EPA is committed to protecting human health and the environment, but recognizes challenges resulting from efforts to protect workers and the public from COVID-19 may directly impact the ability of regulated facilities to meet all federal regulatory requirements.”
This temporary enforcement discretion policy applies to civil violations during the COVID-19 outbreak. To clarify, the policy does not apply to: a) any criminal violations or conditions of probation in criminal sentences, b) activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments, and c) imports. Additionally, the policy does not relieve any entity from preventing, responding to, or reporting accidental releases.
The temporary policy makes it clear that the EPA expects regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible. To be eligible for enforcement discretion, the policy also requires facilities to document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID-19 pandemic.
The policy addresses different categories of noncompliance differently and is broken into the following sections:
Routine Compliance Monitoring and Reporting by Regulated Entities
Facilities should use existing procedures to report noncompliance with routine activities, such as compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification. If reporting is not reasonably practicable due to COVID-19, facilities should maintain this information internally and make it available to EPA upon request. In general, the EPA does not expect to seek penalties for violations of such routine activities where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request.
Additionally, the EPA does not plan to ask facilities to “catch-up” with missed monitoring or reporting if the underlying requirement applies to intervals of less than three months. For other monitoring or reports, such as those required on a bi-annual or annual basis, when this policy is no longer in effect, the EPA expects facilities to take reasonable measures to resume compliance activities as soon as possible, including conducting late monitoring or submitting late reports, and encourages facilities to provide supporting documentation in the reporting form.
Given the online availability of trainings, the EPA does not think trainings will be affected. If training is not practicable due to COVID-19, the EPA believes that it is more important to keep experienced, trained operators on the job, even if a training or certification is missed.
EPA does expect continued submissions, certifications or required reports or other deliverables, but will exempt the requirement to obtain a “wet” signature, and will accept a digital or electronic signature. EPA strongly encourages use of approved electronic reporting mechanisms.
Settlement Agreement and Consent Decrees Reporting Obligations and Milestones
Parties to EPA administrative settlement agreements should utilize the notice procedures set forth in the agreement if the parties anticipate missing enforceable milestones. The notification should provide the information required by the agreement, which typically will include steps taken to minimize the effects and duration of any noncompliance caused by COVID-19.
Consent decrees entered into with the EPA and the U.S. Department of Justice (“DOJ”) remain under the jurisdiction of the courts. The EPA staff will coordinate with the DOJ to exercise enforcement discretion with regard to stipulated penalties for the routine compliance obligation. Again, parties should utilize the notice procedures set forth in the consent decree.
The EPA expects all regulated entities to continue to manage and operate their facilities in a manner that is safe and that protects the public and the environment.
Facilities should contact the appropriate implementing authority if facility operations impacted by COVID-19 may create an acute risk or an imminent threat to human health or the environment. In response, the EPA will work with the appropriate authority to discuss measures to minimize or prevent the acute or imminent threat to health or the environment from the COVID-19-caused noncompliance and obtain a return to compliance as soon as possible.
If a facility suffers from failure of air emission control or wastewater or waste treatment systems or other facility equipment that may result in exceedances of enforceable limitations, the facility should notify the implementing authority as quickly as possible. The notification also should include information on the pollutants emitted, discharged, discarded, or released; the comparison between the expected emissions or discharges, disposal, or release and any applicable limitation(s); and the expected duration and timing of the exceedance(s) or releases.
If facility operations result in noncompliance are not already addressed by the EPA above, the facility should do its best to prevent or mitigate noncompliance and document such efforts.
If a facility is a generator of hazardous waste and, due to disruptions caused by the COVID-19 pandemic, is unable to transfer the waste off-site within the time periods required under RCRA to maintain its generator status, the facility should continue to properly label and store such waste. If the facility does its best to prevent or mitigate noncompliance, the EPA will treat such entities to be hazardous waste generators.
Lastly, if a facility is an animal feeding operation, and, due to disruptions caused by the COVID-19 pandemic, is unable to transfer animals off-site and, solely as a result of the pandemic, meets the regulatory definition of concentrated animal feeding operation (“CAFO”), the EPA will not treat such animal feeding operations as CAFOs.
Public Water Systems Regulated Under the Safe Drinking Water Act
The EPA has heightened expectations for public water systems. The EPA expects operators of such systems and laboratories performing analysis for water system to continue normal operations, maintenance, and timely analysis of samples and results.
The EPA will consider continued operation of drinking water systems to be the highest priority. The EPA considers the following tiers of compliance monitoring: 1) National Primary Drinking Water Regulations, 2) nitrate/nitrite and Lead and Copper Rule, and 3) contaminants for which the system has been non-compliant.
The EPA strongly encourages public water systems to consult with the state and EPA regional offices without delay if issues arise that prevent the normal delivery of safe drinking water.
In situations where a facility is essential critical infrastructure, the EPA may consider, on a case-by-case basis, a more tailored short-term No Action Assurance if it is in the public interest. The EPA will consider essential the facilities that employ essential critical infrastructure workers as determined by guidance issued by the Cybersecurity and Infrastructure Security Agency.
EPA’s policy will apply retroactively beginning on March 13, 2020. EPA will assess the continued need for and scope of this temporary policy on a regular basis and will update it if EPA determines modifications are necessary. EPA will post a notification here at least 7 days prior to terminating this temporary policy.
Jenner & Block’s "Corporate Environmental Lawyer" will continue to update on these matters, as well as other important COVID-19 related guidance, as they unfold.
Does the OSH Act Give an Employee the Right to Refuse to Work Due to Fear of Workplace COVID-19 Exposure?
By Gabrielle Sigel and Leah M. Song
Responding to COVID‑19, many state and local governments are issuing orders encouraging or requiring workers to stay at home (“Stay-At-Home Order”) unless their employment is deemed to be in an “essential business” or “critical infrastructure industry.” Whether working in an essential business or where no Stay-At-Home Order has been issued, employees may express concerns about, or refuse, coming to work due to fear of contracting COVID‑19 at work. The federal Occupational Safety and Health Act (“OSH Act” or “the Act”) prohibits an employer from retaliating against an employee for exercising rights under the Act. If an employer fires or takes other action against an employee who walks off the job due to COVID‑19 fears, is the employee exercising a right under the Act, such that the employer could face a government lawsuit for retaliating against the employee? Although this discussion is limited to refusal to work rights and responsibilities under the OSH Act, as with many issues raised by the novel coronavirus, the answer will be fact-specific and may be unique to this public health crisis. After analyzing the applicable law below, we provide practical suggestions for how employers and their counsel can analyze the issue if raised at their workplace.
I. The OSHA Anti-Retaliation Provisions
Since the OSH Act’s enactment in 1970, Section 5(a)(1) of the Act states that “[e]ach employer shall furnish to each of his employees 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 to his employees.” 29 U.S.C. § 654 (“the General Duty Clause”). From its beginning, the OSH Act also has provided that an employer cannot “discharge or in any manner discriminate against any employee” because the employee complains about a safety issue to management or OSHA or “because of the exercise by [an] employee on behalf of himself or others of any right afforded by this Act.” 29 U.S.C. § 660(c) (“Section 11 of the OSH Act”); see also 29 CFR Part 1977. If an employer takes discriminatory action in retaliation, the Secretary of Labor (“the Secretary”) can sue the employer, under Section 11 of the OSH Act, in federal district, to require reinstatement, back pay, and “all appropriate relief.” 29 U.S.C. § 660(c)(2). However, the OSH Act does not expressly address how employees can exercise their rights when there is an imminent risk of death or serious bodily injury and a reasonable belief that there is not sufficient time or opportunity to seek redress from OSHA or the employer.
Interpreting Section 11 in 1973, OSHA issued its anti-retaliation regulation at 29 CFR § 1977 (the “OSHA anti-retaliation regulation”), addressing whether, under what circumstances, and how an employee could refuse to perform work under the Act. Section 177.12(b)(1) (emphasis added) states:
[A]s a general matter, there is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace. Hazardous conditions which may be violative of the Act will ordinarily be corrected by the employer, once brought to his attention. If corrections are not accomplished, or if there is dispute about the existence of a hazard, the employee will normally have opportunity to request inspection of the workplace pursuant to section 8(f) of the Act, or to seek the assistance of other public agencies which have responsibility in the field of safety and health. Under such circumstances, therefore, an employer would not ordinarily be in violation of section 11(c) by taking action to discipline an employee for refusing to perform normal job activities because of alleged safety or health hazards.
29 CFR § 1977.12(b)(1) (emphasis added).
Despite this initial statement that employees do not have the right to walk off the job, in the next paragraph the regulation acknowledges that exigent circumstances may exist that would trigger employee protections for refusing to work. Section 1977.12(b)(2) states: “[O]ccasions might arise when an employee is confronted with a choice between not performing assigned tasks or subjecting himself to serious injury or death arising from a hazardous condition at the workplace,” and, on those occasions, an employer cannot take action against the employee. 29 CFR § 1977.12(b)(2). Specifically, if: (1) “the employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition;” (2) “a reasonable person… would conclude that there is a real danger of death or serious injury;” (3) due to the urgency of the situation, there is insufficient time “to eliminate the danger through resort to regular statutory enforcement channels;” and (4) the employee “sought from his employer, and was unable to obtain, a correction of the dangerous condition,” an employer taking action against the employee refusing to work could be subject to a Section 11 lawsuit brought by the Secretary. Id.; see also 29 U.S.C. § 660(c).
OSHA has published guidance on the issue, Workers’ Right to Refuse Dangerous Work, cautioning that “OSHA cannot enforce union contracts that give employees the right to refuse to work,” but explaining the steps that workers should take if they believe working conditions are dangerous, the employer fails to eliminate the imminent danger, and there is not enough time to address the condition through regular enforcement channels:
Ask your employer to correct the hazard, or to assign other work;
Tell your employer that you won’t perform the work unless and until the hazard is corrected; and
Remain at the worksite until ordered to leave by your employer.
Notably, this OSHA guidance does not answer the question presented by COVID‑19: an employer’s obligations and an employee’s rights when OSHA’s direction to “remain at the worksite” is at the root of an employee’s claim of a dangerous condition.
II. Caselaw and OSHA Guidance Interpreting Section 11 and the OSHA Anti-Retaliation Regulation
Not surprisingly, there are no reported court cases interpreting the OSHA anti-retaliation provisions in the context of potential exposure at the workplace to a contagious illness, much less a pandemic. However, court decisions interpreting the OSHA anti-retaliation regulation in the context of other workplace risks are instructive as to how those provisions may be applied to the workplace risk of exposure to the novel coronavirus.
The foundational case upholding a worker’s OSH Act right to refuse to work is the U.S. Supreme Court’s decision in Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980). In Whirlpool, two employees refused to conduct maintenance tasks that previously had led to the death of a fellow employee, claiming that the risk had not been eliminated despite repeated employee complaints to management. When the employees refused to conduct the task the day after their call to OSHA, the employer sent them home without pay and put reprimands in their files. The Secretary filed suit against the employer, alleging unlawful discrimination against the employees in violation of Section 11 of the Act, as interpreted by the OSHA anti-retaliation regulation. On appeal to the U.S. Supreme Court, the issue was whether the OSHA regulation “authorizing employee ‘self-help’ in some circumstances . . . is permissible under the Act.” 445 U.S. at 8. The Supreme Court first found that the OSHA regulation allowing workers to “avoid workplace conditions that they believe pose grave dangers to their own safety” “conforms to the fundamental objective of the Act—to prevent occupational deaths and serious injuries” and that the regulation rationally complemented the Act’s remedial scheme. Id. at 11-12, 21.
The Court then conducted an analysis of the Act’s legislative history. The Court noted that the provisions in the OSH Act were different from those in other acts protecting workers, such as the National Labor Relations Act (“NLRA”) and the Labor Management Relations Act. Id. at 17, n. 29. The Court also found that
Congress very clearly meant to reject a law unconditionally imposing upon employers an obligation to continue to pay their employees their regular paychecks when they absented themselves from work for reasons of safety. But the regulation at issue here does not require employers to pay workers who refuse to perform their assigned tasks in the face of imminent danger. It simply provides that in such cases the employer may not “discriminate” against the employees involved. An employer “discriminates” against an employee only when he treats that employee less favorably than he treats others similarly situated.
Id. at 18-19 (emphasis added). The Court concluded that the OSHA regulation explaining that it is an employee’s right to refuse to perform an assigned task because of a reasonable apprehension of death or serious injury, coupled with a reasonable belief that no less drastic alternative is available, was a “valid exercise of [the Secretary’s] authority under the Act.” Id. at 22.
In Whirlpool, the Court found that the employees “were clearly subjected to ‘discrimination’ when [their employer] placed reprimands in their respective employment files,” but the Court left to the lower court on remand to determine if the denial of pay for time they did not work was discrimination. Id. at 19, n. 31.
Since the Supreme Court’s decision in Whirlpool, the Secretary has successfully obtained awards of back pay, reinstatement, and other relief under Section 11 of the Act and the anti-retaliation regulation. See, e.g., Perez v. Clearwater Paper Corp., 184 F. Supp. 3d 831 (D. Idaho 2016) (employer who retaliated against its employee for complaining about health hazards was required to pay back pay, severance pay, emotional distress and punitive damages); Perez v. U.S. Postal Service, 76 F. Supp. 3d 1168 (W. D. Wash. 2015) (employer who retaliated against its employee when he helped another employee file a complaint with OSHA was required to pay lost wages from denial of promotion, travel, housing, and medical expenses, and emotional distress damages, and expunge the employee’s personnel record); see also Secy. v. Lear Corp. Eeds and Interiors, 822 F.3d 556, 561-62 (11th Cir. 2016) (the Secretary has power under Section 11 to enjoin an employer’s state court lawsuit alleging tortious defamation by employees who raised health and safety concerns if Secretary finds that the employer’s tort claims are baseless and retaliatory or preempted by federal law); Reich v. Hoy Shoe Co., 32 F.3d 361, 368 (8th Cir. 1994) (“an employer that retaliates against an employee because of the employer's suspicion or belief that the employee filed an OSHA complaint has as surely committed a violation of § 11(c) as an employer that fires an employee because the employer knows that the employee filed an OSHA complaint”).
The Secretary’s prosecution of Section 11 lawsuits typically uses a burden-shifting framework, consistent with other lawsuits for discrimination, in which the burden shifts to the employer if the Secretary has established a prima facie case. See Solis v. Blue Bird Corp., 404 Fed. Appx. 412, 413 (11th Cir. 2010) (the district court properly used “the burden-shifting framework laid out in McDonnell Douglas Corp. v. Green,” 411 U.S. 792 (1973), in a Section 11 retaliatory discharge case). For example, in Chao v. Blue Bird Corp., 2009 WL 485471 (M.D. Ga., Feb. 26, 2009), the Secretary brought suit under Section 11 of the OSH Act when an employer discharged an employee after he raised safety concerns about a work assignment and demanded further training. Id. Blue Bird, 2009 WL 485471 at *2-4; see 29 CFR § 1977.9. Applying McDonnell Douglas, the court found: “Claims alleging wrongful discharge in retaliation for exercising rights afforded under the Act are analyzed under the burden-shifting framework” under which the Secretary “must present sufficient evidence to satisfy the elements of her prima facie case.” Blue Bird at *3 (citation omitted). To establish a prima facie case, “the Secretary must show by a preponderance of the evidence that (1) [the employee] engaged in protected activity; (2) [the employer] took adverse action against [the employee]; and (3) a causal connection exists between the protected activity and the adverse action.” Id. (citation omitted). “If a prima facie case is established, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the employment action. Id. If articulated [by the employer], the [Secretary] must show that the [employer’s] reason was pretextual in order to prevail.” Id. (citation omitted). In Blue Bird, the court found that the employees’ actions were proper and protected under the Act, that the employer’s discharge and other actions violated the Act, and that the employer’s justification for its action was pretextual, and ordered the employee’s reinstatement with all prior benefits and back pay.
On January 1, 2016 OSHA’s Directorate of Whistleblower Programs, which investigates potential Section 11 claims before they are filed in court, issued an agency-wide memo; “Clarification of the Work Refusal Standard Under 29 CFR 1977.12(b)(2)” (the “Work-Refusal Memo”). OSHA noted that there were “five requirements for a protected work refusal:”
a reasonable apprehension of death or serious injury,
a good faith refusal,
no reasonable alternative,
insufficient time to eliminate the condition through regular statutory channels, and
where possible, the employee sought and was unable to obtain a correction of the dangerous condition.
Work-Refusal Memo, p. 2. The last page of the Work-Refusal Memo has a flowchart showing how OSHA analyzes whether an employee’s work refusal is protected under the Act. Among other points, OSHA clarifies that “[i]t is not an absolute requirement that a complainant [employee] call federal or state OSHA after being instructed to perform a dangerous task.” Id., p. 3. However, “OSHA should determine whether (1) the called federal or state OSHA and, if not; (2) whether there was a period of time during which the complainant reasonably could have contacted Federal or state OSHA but did not do so.” OSHA also takes the position that an “employee voluntary quit” after “protectable refusal to work” may be considered a constructive discharge, that can trigger Section 11 liability. Id., pp. 5‑6.
III. Minimizing Risk of an OSH Act Retaliation Claim During the COVID‑19 Crisis
In sum, under the OSH Act, employees are not given an unfettered right to walk off the job or refuse to work, even in response to a dangerous condition. Moreover, employees are not necessarily entitled to pay if they refuse to work. However, employees generally are protected from discriminatory action by an employer if they stop work when they reasonably believe that they will be forced to work under dangerous conditions, risking death or serious injury, and they have no other recourse. Discriminatory actions are those treating an employee “less favorably” than others similarly situated. Whirlpool, 445 U.S. at 19. OSH Act protections are separate from those under labor contract laws. See, e.g., Whirlpool, 445 U.S. at 17, n. 29; N.L.R.B. v. Tamara Foods, Inc., 692 F.2d 1171 (8th Cir. 1982) (non-unionized employees have a protected right under the NLRA to walk off worksite after repeated exposures to ammonia fumes); see also, Hatzel & Buehler, Inc. v. Orange & Rockland Utilities, Inc., 1992 WL 391154, *5, n.10, 10-13 (D. Del. Dec. 14, 1992) (contractor cannot rely on its employees’ rights under OSHA anti-relation regulation to claim impossibility of performance of work involving asbestos exposure).
The medical science regarding COVID‑19 and the virus’ transmission is still growing. To bring an action against an employer, the Secretary would first need to demonstrate that exposure to COVID‑19 (or the virus) in a particular workplace presents a “real danger of death or serious injury.” See 29 CFR § 1977.12(b)(2). Still, an employer will want to take precautions to avoid being sued by the Secretary for retaliatory conduct if employees raise COVID‑19 concerns or refuse to come to work out of fear of the disease. To protect against an OSH Act Section 11 claim, employers and their counsel will want to consider the following:
First, an employer should not take any potentially retaliatory actions merely because an employee raises a COVID‑19 safety concern or if the employee contacts OSHA about that concern. See 29 CFR § 1977.9 (employee’s rights to raise safety concerns and/or contact OSHA protects employee from any retaliation in response).
Second, in response to an OSHA inquiry, complaint, or inspection, the employer would be well‑advised to demonstrate its compliance with potentially applicable OSHA regulations, such as PPE standards, e.g., 29 CFR § 1910.132.
Third, although OSHA recognizes that “[t]here is no specific OSHA standard covering COVID‑19,” the employer should consider its workplace conditions in light of OSHA’s “Guidance on Preparing Workplaces for COVID‑19” (“the OSHA Guidance”), issued on March 11, 2020 (and any updates thereto). As discussed in a previous article on the COVID‑19 OSHA Guidance, OSHA recommends steps that employers should take to protect workers at different levels of risk, using OSHA’s “hierarchy of controls” framework for addressing workplace risks ( i.e., engineering controls, followed by administrative controls, safe work practices, and PPE). Notably, OSHA recognizes that for “most employers,” they can protect their employees just by implementing “basic infection prevention measures.” OSHA Guidance at 8, 20-22.
Fourth, if a fellow worker contracted COVID‑19 and had been at the worksite within at least 14 days prior, the employer should consider the adequacy of its cleaning of the affected work area. See CDC’s “Environmental Cleaning and Disinfection Recommendations”; OSHA Guidance at 9-10.
Fifth, the employer should evaluate whether the employer has control over the worksite conditions that are the subject of the complaint and whether a change in operations or additional precautions are possible and appropriate, especially given that the business may be deemed “essential.” See OSHA Guidance at 11-12. This evaluation, and potential implementation of additional hazard controls, can demonstrate that the employer took appropriate steps to address the hazard, as explained in 29 CFR § 1977.12(b)(1).
Sixth, the employer should consider the action it should take in response to an employee’s refusal to come to work or to work as instructed, given that it may be the employer’s obligation to show that its action was not discriminatory, i.e., no different than taken with respect to others working in the same circumstances. The employer will want to show that the reasons for its actions, including, for example, discharge, were non-discriminatory, including whether those measures are equally applied, consistent with existing company policies and procedures, and otherwise not a pretext for retaliating against an employee taking allegedly lawful action.
As with many employment law issues, dealing with employees’ concerns is both delicate and crucial to a business’s success, particularly in these fraught and novel times. Careful consideration of Section 11 OSH Act responsibilities should be a key part of the employer’s COVID‑19 legal compliance analysis.
See Jenner & Block’s COVID‑19 Coronavirus Resource Center for further articles regarding legal issues facing our community in the wake of the public health emergency.