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March 18, 2021 Where is OSHA’s COVID-19 ETS? No Where the Ides of March.

Sigel

By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice

Covid-19

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.

CATEGORIES: COVID-19, OSHA

PEOPLE: Gabrielle Sigel

March 13, 2021 OSHA Issues Immediately Effective COVID-19 National Enforcement Program and Updated Enforcement Guidance: No ETS Yet

Sigel

By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice

Covid-19

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.

CATEGORIES: COVID-19, OSHA

PEOPLE: Gabrielle Sigel

March 3, 2021 OSHA under Deadline for a Nationwide COVID 19 Workplace Safety Rule: Four States’ Existing Laws and New Federal Guidance and Orders Foretell the Future

Sigel

By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice

Covid-19

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,[1] 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.[2] 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.”[3] 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).[4] 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
  • Hygiene
  • Social Distancing
  • Identification and Isolation of Sick Employees
  • Return to Work After Illness or Exposure
  • Controls
  • Workplace Flexibilities
  • Training
  • Anti-retaliation

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.

 

[1] 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).

[2] 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).

[3] OSHA COVID-19/Regulations webpage (last viewed 2/24/2021).

[4] 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.].”

CATEGORIES: Contamination, COVID-19, OSHA

PEOPLE: Gabrielle Sigel

February 10, 2021 OSHA Issues Proposed Update to Hazard Communication Standard

HeadshotBy Matthew G. Lawson Osha

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.

CATEGORIES: Climate Change, Contamination, Emerging Contaminants, Hazmat, OSHA, Sustainability

PEOPLE: Matthew G. Lawson

December 1, 2020 California OSHA Issues Comprehensive and Demanding COVID-19 Emergency Regulation

Sigel

By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice

Covid-19

On the afternoon of November 30, 2020, the California Office of Administrative Law (OAL) issued the final approval, allowing the emergency COVID‑19 regulation proposed by the California Division of Occupational Safety and Health (Cal-OSHA) and approved by the California Occupational Safety and Health Standards Board (Board) on November 19. The emergency regulation, establishing new sections 3205, 3205.1 through 3205.4 to Title 8, Division 1, Chapter 4 (General Industry Safety Orders) of the California Code of Regulations (CCR) is titled “COVID‑19 Prevention.” The COVID‑19 Prevention Rule is attached here as approved by the OAL. The COVID‑19 Prevention Rule is immediately effective on November 30, 2020. As an emergency regulation, it expires by October 21, 2021, unless it is extended or made permanent.

California, which as a “state-plan State,” can adopt workplace safety and health regulations more stringent than US OSHA regulations and guidance, has through its emergency regulatory process adopted a COVID‑19 regulation that applies to “all employees and places of employment” in California, except if the employees are working from home, the place of employment has only one employee “who does not have contact with other persons,” or employees when covered by California’s Aerosol Transmissible Diseases regulation, 8 CCR § 5199, which applies only to health care services, facilities, and operations. 8 CCR § 3205(a)(1). 

The basic construction of the COVID‑19 Prevention Rule follows the elements of California’s Injury and Illness Prevention Program (IIPP) rule, 8 CCR § 3203, and requires that all employers prepare and adopt a written program with the same elements of employee communication, hazard identification, inspections, hazard correction, training, controls, reporting, recordkeeping and access, but adds substantive requirements relating to COVID‑19 within each of those elements, and adds elements unique to an employer’s response to and control of COVID‑19. The COVID‑19 Prevention Rule also has provisions affecting aspects of an employer’s operations beyond its traditional safety and health scope, including an obligation to “continue and maintain an employee’s earnings, seniority and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job” for employees who are otherwise able to work, but are excluded from the worksite for work-related COVID‑19 exposures and quarantines. 8 CCR § 3205(10)(C).

Other notable aspects of the regulation include:

  • Definitions of COVID‑19 “exposure”, “symptoms”, “high-risk exposure period”, “exposed workplace”, periods of exclusion from the workplace (quarantine and isolation) and return-to-work criteria, that do not match the CDC’s current approach for essential workforces and which do not allow for any future changes in CDC guidelines regarding the length of isolation, quarantine, or return-to-work criteria.
  • Employers must provide viral testing for all employees excluded under Cal-OSHA’s broad definition of “exposed workplace,” up to twice weekly depending on the severity of an outbreak at the workplace.
  • Employers, with employee participation, must “conduct a workplace-specific identification of all interactions, areas, processes, equipment and materials that could potentially expose employees to COVID‑19 hazards.” 8 CCR § 3502 (c)(2)(D).
  • Specific requirements regarding controls, including physical distancing, face coverings, ventilation, disinfection, cleaning, hygiene, PPE and engineering controls.
  • Employers must provide notice within one business day of all COVID‑19 cases in the exposed workplace to employees “who may have had COVID‑19 exposures and [their union representative] and to all other employers/contractors in the workplace. 8 CCR § 3502 (c)(3)(B)3. (See also recently enacted revision to Labor Code § 6409.6 (AB 685).)
  • Employers must communicate hazards, policies and procedures to employees and all “other employers, persons, and entities within or in contact with the employer’s workplace.” 8 CCR § 3502 (c)(1)(D)
  • Specific requirements regarding COVID‑19 case investigation that must be documented and provided to any employee, employee representative, Cal-OSHA, or local health agencies.
  • Employers must have a documented procedure for investigation of COVID‑19 cases in the workplace, with many specific steps required in the COVID‑19 Prevention Rule.
  • Requirements for employer-provided transportation to and from the workplace and employer-provided housing. 8 CCR §§ 3205.3 and 3205.4.

Merely preparing the written program document, in addition to the required procedures and protocols, will be a significant undertaking for almost all California employers. In the public hearing before the Board, Cal-OSHA representatives minimized the additional burden placed on employers given its view that employers already should have already undertaken much of the effort to update their basic IIPP document. Cal-OSHA representatives stated, however, that it recognized that employers would have to take some time to get all the requirements in place and would exercise enforcement discretion given the regulation’s immediate effective date. Cal-OSHA also informed the Board that it planned to issue interpretive guidance and other materials, but did not specify a date by which it would do so. Cal-OSHA stated that it would hold Advisory Committee meetings with employers and employees regarding refining the Rule, but noted that the agency did not expect to propose any changes in the regulatory language in the near-term.

For more information or advice on how to comply and implement the COVID‑19 Prevention Rule, 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.

CATEGORIES: COVID-19, OSHA

PEOPLE: Gabrielle Sigel

November 4, 2020 Amazon Workers’ COVID-19 Workplace Safety Lawsuit Dismissed

Sigel

 Song

By Gabrielle Sigel  and Leah M. Song

Covid-19

 

On November 2, 2020, Judge Cogan of the U.S. District for the Eastern District of New York dismissed the amended complaint of workers at Amazon’s Staten Island JFK8 fulfillment center (“JFK8”) against their employer over its alleged non-compliance with state and federal public health guidance and law during the COVID‑19 pandemic. Palmer. v. Amazon.com Inc., No. 20-cv-02468, U.S. Dist. Ct. E.D.N.Y., Doc. 73, Nov. 2, 2020 (“Op.”).

The workers alleged issues with the company’s productivity requirements preventing basic hygiene, limited air-conditioned break rooms impeding social distancing, inadequate contact tracing, and lack of communication and pay regarding COVID‑19 leave at the JFK8 facility. The amended complaint asserted claims for (i) public nuisance, (ii) breach of the duty to provide a safe workplace under New York Labor Law (“NYLL”) § 200, (iii) failure to timely pay COVID‑19 leave under NYLL § 191, and (iv) an injunction against future failure to timely pay COVID‑19 leave. Plaintiffs sought injunctive relief for their first, second, and fourth causes of action, and damages for their third cause of action.

On August 11, 2020, Amazon moved to dismiss the action based on the theory of primary jurisdiction, workers’ compensation law exclusivity, and other grounds. Judge Cogan granted Amazon’s motion to dismiss the public nuisance and workplace safety duty claims, without prejudice, based on the federal doctrine of primary jurisdiction, which “seeks to maintain a proper balance between the roles of courts and administrative agencies,” allowing a district court to choose not to rule in favor of having a matter addressed by an administrative agency. Op. at 8. Judge Cogan found that the “central issue in this case is whether Amazon’s workplace policies at JFK8 adequately protect the safety of its workers during the COVID‑19 pandemic,” which the court framed as a question of whether that issue is best handled by OSHA or the court. Id. at 10.  The court noted that, although OSHA has not issued a regulatory standard specific to COVID‑19, this “does not mean…that OSHA has abdicated its responsibilities during the pandemic. Rather, the agency has exercised its discretion in determining how to proceed in the face of an evolving pandemic fraught with uncertainty.” Id. The court reasoned that it was “not expert in public health or workplace safety matters, and lack[s] the training, expertise, and resources to oversee compliance with evolving industry guidance.” Id. at 11. Furthermore, the court found that “[p]laintiffs’ claims and proposed injunctive relief go to the heart of OSHA’s expertise and discretion.” Id. The court further held that the “risk of inconsistent rulings further weighs in favor of applying the doctrine of primary jurisdiction” as “[c]ourts are particularly ill-suited to address this evolving situation” and OSHA would be able to impose more flexible and uniform policies across the industry. Id. Therefore, the court dismissed plaintiffs’ public nuisance and NYLL § 200 claims, “so that plaintiffs may determine whether to seek relief through the appropriate administrative and regulatory framework.” Id. at 12.  

Moreover, the court held that, even if the court did not defer to OSHA’s primary jurisdiction, it would dismiss the public nuisance claim because New York law requires that a private action for public nuisance allege that the plaintiff sustained special injury not common to the public at large. Finding that an increased risk of contracting COVID‑19 is “common to the New York City community at large” and the JFK8 facility is “not the source of COVID‑19,” the court held that plaintiffs could not maintain a public nuisance claim. Id. at 13-14. The court also found that, although the state safe workplace claim under NYLL § 200 is not preempted by the OSH Act, plaintiffs’ claims for past injuries, even for injunctive relief, are precluded by the language of New York’s workers’ compensation law, which makes workers’ compensation the exclusive remedy for workers’ claims against employers “for any liability whatsoever.” Id. at 14-20.

The court also dismissed plaintiffs’ NYLL § 191 claims regarding failure to pay timely COVID‑19 sick leave, finding that the statute addresses claims for prompt payment of “wages,” not sick leave. In reaching that decision, the court rejected the NY State Department of Labor’s recent COVID‑19 guidance in which it stated that prompt payment of COVID‑19 sick leave was subject to NYLL § 191’s requirements. Id. at 21-24.

Another example of a case in which a court relied on the primary jurisdiction clause to dismiss COVID‑19 workplace safety claims against an employer is Rural Community Workers Alliance (“RCWA”) v. Smithfield Foods, Inc., No. 5:20-cv-06063 (N.D. Mo.) from May 5, 2020. In that case, the United States District Court for the Western District of Missouri granted Smithfield Foods’ (“Smithfield”) motion to dismiss pursuant to the primary jurisdiction doctrine. The RCWA plaintiffs alleged two common law claims: (1) Smithfield’s practices at the meat processing plant constituted a public nuisance; and (2) Smithfield had breached its duty to provide a safe workplace. The plaintiffs, an employee and a workers advocacy group, sought only injunctive relief to require Smithfield to comply with OSHA/CDC guidance issued for the entire meat processing industry, and importantly, did not allege that they or any of their members had contracted COVID‑19 at the plant.

The Missouri federal case dismissed the case with prejudice, based on the federal primary jurisdiction doctrine. The court found and deferred to OSHA’s primary jurisdiction to interpret and apply its guidance and to the rights, albeit limited, that plaintiffs can seek through OSHA’s administrative and judicial processes. Id. at 14-17. In addition, the court found that plaintiffs had not met their “extraordinary burden” of proving a right to preliminary injunctive relief. Id. at 17. The court found that, despite the prevalence of COVID‑19 in the community and in the plant, the plaintiffs had not suffered “irreparable harm” because they alleged only the possibility of death or serious illness in the future. Id. at 18-20. The court found that “unfortunately, no one can guarantee health for essential workers – or even the general public – in the middle of this global pandemic.” Id. at 19. Thus, because the employer was taking measures to control the spread and there no confirmed COVID‑19 cases currently, “the court cannot conclude that the spread of COVID‑19 at the Plant is inevitable or that Smithfield will be unable to contain it if it occurs.” Id. at 20. The court also noted, when balancing the harms of granting (or denying) the injunction that “no essential-business employer can completely eliminate the risks that COVID‑19 will spread to its employees through the workplace. Thus, it is important that employers make meaningful, good faith attempts to reduce the risk.” Id.

The court also found that plaintiffs were unlikely to prevail on the merits of their nuisance claim because the employer had taken “significant measures” and there were no occurrences of the disease. Id. at 21-22. Similarly, the court found that plaintiffs would not be able to prove that Smithfield had breached its duty to provide a safe place to work, because the company “has taken substantial steps to reduce the protection for COVID‑19 exposure” and appeared to be complying with the OSHA/CDC guidance. Id. at 22.

Please feel free to contact the authors 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.

CATEGORIES: COVID-19, OSHA

PEOPLE: Gabrielle Sigel, Leah M. Song

June 22, 2020 U.S. OSHA Issues Guidance on Returning to Work

SongSigel

 

By Leah M. Song and Gabrielle Sigel 

Covid-19

 

On June 18, 2020, U.S. OSHA issued its “Guidance on Returning to Work,” (“Reopening Guidance”) compiling best practices and existing regulatory standards to assist employers and workers return to work and reopen businesses characterized as non-essential in the earlier weeks of the COVID‑19 pandemic. OSHA described the purpose of the Reopening Guidance as a supplement to OSHA’s first COVID-19 guidance for all employers, issued on March 9, 2020, titled “Guidance on Preparing Workplaces for COVID‑19,” and to the White House’s April 16, 2020 “Guidelines for Opening Up America Again,” both of which have been analyzed on the Jenner & Block Corporate Environmental Lawyer blog here and here, respectively.  In its news release introducing the Reopening Guidance, OSHA states that “[n]on-essential businesses should reopen as state and local governments lift  stay-at-home … orders, and follow public health recommendations from the Centers for Disease Control and Prevention and other federal requirements or guidelines.”

The Reopening Guidance states that it “focuses on the need for employers to develop and implement strategies. . .” for safe work after reopening. Although OSHA does not directly state that employers must have written reopening plans, OSHA’s Reopening Guidance provides the following “guiding principles” that employers’ reopening plans “should address”:

  • Hazard Assessment
  • Hygiene
  • Social distancing
  • Identification and Isolation of Sick Employees
  • Return to Work After Illness or Exposure
  • Controls
  • Workplace Flexibilities
  • Training
  • Anti-retaliation

(Reopening Guidance, pp. 6-10.) OSHA then provides suggestions on how to implement each of the “guiding principles.” Id. For instance, the Hazard Assessment guiding principle includes “practices to determine when, where, how, and to what sources of SARS-CoV-2 workers are likely to be exposed in the course of their job duties.” The Reopening Guidance provides several examples of how to implement hazard assessments, such as assessing job tasks to determine which involve occupational exposure to the virus and exposure to other members of the public or coworkers. In the discussion of the guiding principle of “Controls,” OSHA addresses PPE and makes clear, as it did in its Face Coverings guidance on June 10, 2020, that face coverings are not PPE. (Reopening Guidance, p. 8.) OSHA repeats this distinction regarding PPE in its discussion of the guiding principle of “Training.” OSHA states that although employers should train workers on how to don/doff, clean, store, maintain, and dispose of PPE, face coverings are not PPE, indicating that those training procedures are not for face coverings. (Reopening Guidance, p. 9.)  The CDC, however, has issued more comprehensive guidelines regarding use of face coverings.  OSHA concludes its discussion of the guiding principles by stating:  “Regardless of the types of infection prevention and control measures employers incorporate into their reopening plans, they should consider ways to communicate about those measures to workers, including through training … and providing a point of contact for any worker questions or concerns.”  

In the Reopening Guidance, OSHA reiterates what it states on its COVID‑19 webpage, that during the pandemic, employers continue to be responsible for complying with OSHA regulations. In the Reopening Guidance, OSHA provides an Appendix A organizing those regulatory requirements in table format. In addition, OSHA states that “[w]here there is no OSHA standard specific to SARS-CoV‑2, employers have the responsibility to provide a safe and healthful workplace that is free from serious recognized hazards” under the OSH Act’s General Duty Clause. 29 CFR 654(a)(1). (Reopening Guidance, p. 11.)

The Reopening Guidance (pp. 11-16) concludes with a series of Employer FAQs, addressing the following topics:

  1. OSH Act does not prohibit worksite COVID‑19 testing, but OSHA cautions that a negative result may not indicate no hazard;
  2. OSH Act does not prohibit worksite temperature checks or health screenings;
  3. OSHA requirements when performing tests and screening, including to protect employees who are performing screenings and to maintain records generating employee medical information;
  4. Referencing the sources of other equal employment laws, other than the OSH Act, pertaining to health and medical issues;
  5. Referencing the CDC as the source of guidelines for a sick employee’s safe return to work; and
  6. Advising, in general, how employers can determine whether OSHA-required PPE is needed.

As with all its published guidance, OSHA states that it is “not a standard or regulation, and it creates no new legal obligations.”

Please feel free to contact the authors 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.

CATEGORIES: COVID-19, OSHA

PEOPLE: Gabrielle Sigel, Leah M. Song

June 20, 2020 U.S. OSHA Issues Guidance on Returning to Work

SongSigel

 

By Leah M. Song and Gabrielle Sigel 

Covid-19

 

On June 18, 2020, U.S. OSHA issued its “Guidance on Returning to Work,” (“Reopening Guidance”) compiling best practices and existing regulatory standards to assist employers and workers return to work and reopen businesses characterized as non-essential in the earlier weeks of the COVID‑19 pandemic. OSHA described the purpose of the Reopening Guidance as a supplement to OSHA’s first COVID-19 guidance for all employers, issued on March 9, 2020, titled “Guidance on Preparing Workplaces for COVID‑19,” and to the White House’s April 16, 2020 “Guidelines for Opening Up America Again,” both of which have been analyzed on the Jenner & Block Corporate Environmental Lawyer blog here and here, respectively.  In its news release introducing the Reopening Guidance, OSHA states that “[n]on-essential businesses should reopen as state and local governments lift  stay-at-home … orders, and follow public health recommendations from the Centers for Disease Control and Prevention and other federal requirements or guidelines.”

The Reopening Guidance states that it “focuses on the need for employers to develop and implement strategies. . .” for safe work after reopening. Although OSHA does not directly state that employers must have written reopening plans, OSHA’s Reopening Guidance provides the following “guiding principles” that employers’ reopening plans “should address”:

  • Hazard Assessment
  • Hygiene
  • Social distancing
  • Identification and Isolation of Sick Employees
  • Return to Work After Illness or Exposure
  • Controls
  • Workplace Flexibilities
  • Training
  • Anti-retaliation

(Reopening Guidance, pp. 6-10.) OSHA then provides suggestions on how to implement each of the “guiding principles.” Id. For instance, the Hazard Assessment guiding principle includes “practices to determine when, where, how, and to what sources of SARS-CoV-2 workers are likely to be exposed in the course of their job duties.” The Reopening Guidance provides several examples of how to implement hazard assessments, such as assessing job tasks to determine which involve occupational exposure to the virus and exposure to other members of the public or coworkers. In the discussion of the guiding principle of “Controls,” OSHA addresses PPE and makes clear, as it did in its Face Coverings guidance on June 10, 2020, that face coverings are not PPE. (Reopening Guidance, p. 8.) OSHA repeats this distinction regarding PPE in its discussion of the guiding principle of “Training.” OSHA states that although employers should train workers on how to don/doff, clean, store, maintain, and dispose of PPE, face coverings are not PPE, indicating that those training procedures are not for face coverings. (Reopening Guidance, p. 9.)  The CDC, however, has issued more comprehensive guidelines regarding use of face coverings.  OSHA concludes its discussion of the guiding principles by stating:  “Regardless of the types of infection prevention and control measures employers incorporate into their reopening plans, they should consider ways to communicate about those measures to workers, including through training … and providing a point of contact for any worker questions or concerns.”  

In the Reopening Guidance, OSHA reiterates what it states on its COVID‑19 webpage, that during the pandemic, employers continue to be responsible for complying with OSHA regulations. In the Reopening Guidance, OSHA provides an Appendix A organizing those regulatory requirements in table format. In addition, OSHA states that “[w]here there is no OSHA standard specific to SARS-CoV‑2, employers have the responsibility to provide a safe and healthful workplace that is free from serious recognized hazards” under the OSH Act’s General Duty Clause. 29 CFR 654(a)(1). (Reopening Guidance, p. 11.)

The Reopening Guidance (pp. 11-16) concludes with a series of Employer FAQs, addressing the following topics:

  1. OSH Act does not prohibit worksite COVID‑19 testing, but OSHA cautions that a negative result may not indicate no hazard;
  2. OSH Act does not prohibit worksite temperature checks or health screenings;
  3. OSHA requirements when performing tests and screening, including to protect employees who are performing screenings and to maintain records generating employee medical information;
  4. Referencing the sources of other equal employment laws, other than the OSH Act, pertaining to health and medical issues;
  5. Referencing the CDC as the source of guidelines for a sick employee’s safe return to work; and
  6. Advising, in general, how employers can determine whether OSHA-required PPE is needed.

As with all its published guidance, OSHA states that it is “not a standard or regulation, and it creates no new legal obligations.”

Please feel free to contact the authors 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.

CATEGORIES: COVID-19, OSHA

PEOPLE: Gabrielle Sigel, Leah M. Song

June 12, 2020 U.S. Court of Appeals Denies AFL-CIO’s Petition for OSHA COVID-19 Emergency Temporary Standard

SongSigel

 

By Leah M. Song and Gabrielle Sigel 

Covid-19

 

On June 11, 2020, the U.S. Court of Appeals for the D.C. Circuit denied the American Federation of Labor and Congress of Industrial Organizations’ (“AFL-CIO”) petition for a writ of mandamus to compel OSHA to issue an Emergency Temporary Standard for Infectious Diseases (“ETS”), providing regulations to protect workers against coronavirus exposure in the workplace.

The three-judge panel, consisting of Judges Henderson, Wilkins, and Rao, 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 statutory section referenced by the court, includes the General Duty Clause of the Occupational Safety and Health Act (“the OSH Act”), which states that each 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(a)(1). The statute also requires that each employer shall “comply with occupational safety and health standards promulgated under this Act.” 29 U.S.C. § 654(a)(2). The panel held that “OSHA’s decision not to issue an ETS is entitled to considerable deference.”

Following the Court’s ruling, Solicitor of Labor Kate O’Scannlain and OSHA Principal Deputy Assistant Secretary Loren Sweatt stated in a news release: “We are pleased with the decision from the D.C. Circuit, which agreed that OSHA reasonably determined that its existing statutory and regulatory tools are protecting America’s workers and that an emergency temporary standard is not necessary at this time. OSHA will continue to enforce the law and offer guidance to employers and employees to keep America’s workplaces safe.” The ALF-CIO has the right to ask for a rehearing, including en banc, i.e., by all the judges appointed to the D.C. Circuit Court of Appeals.

The lawsuit grew out of written requests that the AFL-CIO and more than 20 unions, including unions for healthcare workers, sent to OSHA in early March.  They asked OSHA to issue an ETS, rather than have employers rely solely on existing OSHA regulations and new COVID-19 guidance.  They requested an ETS that would include a requirement that all employers devise and implement an infection control plan and implement the necessary controls. After the AFL-CIO sent a letter on April 28, 2020, to the Secretary of Labor calling on the agency “to take immediate action to protect the safety and health of workers from exposure to COVID-19 on the job,” the Secretary responded two days later and stated that an ETS was not necessary.

On May 18, 2020, the AFL-CIO filed its petition for a writ of mandamus in the U.S. Court of Appeals to compel OSHA to issue an ETS within 30 days. The petition was based on Section 6(c) of the OSH Act, which states that OSHA “shall provide…for an emergency temporary standard to take immediate effect upon publication in the Federal Register if [it] determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” 29 U.S.C. § 655(c)(1). The AFL-CIO argued in its court petition that the COVID-19 pandemic is “exactly the type of workplace catastrophe that Congress intended an emergency temporary standard to address.” Given the risks facing essential workers and those returning to work, the AFL-CIO requested an expedited briefing and disposition of the petition and for OSHA to be given 10 days to respond.

On May 29, 2020, OSHA filed its response to the AFL-CIO’s petition, describing its efforts to protect workers during the pandemic through enforcing “existing rules and statutory requirements” and providing “rapid, flexible guidance.” OSHA emphasized the extreme nature of an ETS and how an ETS is rarely used as it “imposes a mandatory standard immediately without public input” and “stays in place…until a permanent rule informed by comment is put in place just six months later.” OSHA argued that 1) the AFL-CIO failed to demonstrate legal standing to bring the petition for a writ of mandamus; 2) an ETS is not “necessary” given OSHA’s existing specific rules, the general duty clause and would otherwise be counterproductive to OSHA’s COVID-19 efforts; and 3) “an ETS would foreclose ongoing policy assessments by the executive branch, Congress, and the states.” The National Association of Home Builders of the United States and other business associations filed amicus curiae briefs in support of OSHA’s position.

On June 2, 2020, the AFL-CIO filed its reply brief  defending its legal standing to bring the case based on its representation of workers in highly impacted industries and that at least 660 of its members have died as a result of COVID-19. The AFL-CIO continued to stress that an ETS is necessary given the “urgent situation” and “grave danger” that COVID-19 presents. Additionally, the AFL-CIO stated that “Congress required OSHA to issue standards despite inevitable scientific uncertainty,” and an ETS does provide flexibility navigating new scientific information since “an ETS can be issued and modified without notice and comment.” The AFL-CIO clarified that the OSH Act requires the agency to issue an ETS, “not that it requires a static, uniform, or all-encompassing ETS.”

In denying AFL-CIO’s petition, the court did not address OSHA’s standing argument, ruling solely on the substance of AFL-CIO’s petition.

Of note, OSHA regulations do not have direct application to the 22 states who have their own state occupational safety and health agencies and regulations governing private employers. One of those “state plan states” is California.  On May 20, 2020, the Labor & Employment Committee of the National Lawyers Guild and Worksafe, a California nonprofit “dedicated to ensuring occupational safety and health rights of vulnerable workers,” filed a petition for a temporary emergency standard before the California Occupational Safety & Health Standards Board (“the Board”). The petitioners requested that the Board create two new California safety regulations. First, the petitioners requested “a temporary emergency standard that would provide specific protections to California employees who may have exposure to COVID-19, but are not protected by the Aerosol Transmissible Diseases standards (Sections 5199 and 5199.1).” The petitioners recommended that the Board consider their draft emergency temporary standard for the Board’s consideration of language for an emergency standard. The petitioners’ draft parallels the framework of the Injury and Illness Prevention Program, but adding COVID-19 related provisions, such as identifying an employee representative, establishing various procedures, and analyzing job hazards and implementing preventative measures. Second, the petitioners requested that the Board enter into “a permanent rulemaking effort to protect workers from infectious diseases including novel pathogens,” such as COVID-19. As of June 11, 2020, the Board has not yet issued its decision on the petition.

Please feel free to contact the authors 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.

CATEGORIES: COVID-19, OSHA, Sustainability

PEOPLE: Gabrielle Sigel, Leah M. Song

June 11, 2020 OSHA Faces FAQs on Face Coverings

Sigel

By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice

Covid-19

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.

CATEGORIES: COVID-19, Hazmat, OSHA

PEOPLE: Gabrielle Sigel

May 21, 2020 Employers are Back in the Workplace: So is OSHA!

Sigel

By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice

Covid-19

On May 19, 2020, in recognition of many more businesses opening their workplaces in response to governors modifying stay-at-home orders and the President’s urging businesses to reopen across the country, OSHA revised two of its prior COVID-19 enforcement policies, thereby informing employers that OSHA would no longer grant enforcement discretion regarding the recording of work-related COVID-19 exposure cases and that OSHA intended to conduct more onsite inspections of alleged workplace violations and complaints, particularly those focusing on COVID-19 issues. 

OSHA began its announced changes in enforcement policies by stating that, “The government and the private sector have taken rapid and evolving measures to slow the virus’s spread, protect employees, and adapt to new ways of doing business.”  The two revised policies are to “ensure employers are taking action to protect their employees” as workplaces reopen.  Both new policies go into effect on May 26, 2020.

OSHA’s first policy change is to its own enforcement procedures.  OSHA plans to increase in-person inspections of “all types of workplaces.”  OSHA stated that it can conduct more onsite inspections because the risk to OSHA inspectors is lower and the PPE that OSHA inspectors would need is “more widely available.” Thus, OSHA will rescind its April 13, 2020, Interim Enforcement Response Plan for COVID-19, which stated OSHA's temporary policy of suspending most onsite inspections in favor of written and telephonic communications with employers.  Under the May 26, 2020 Updated Interim Enforcement Response Plan, OSHA intends to return to its pre-pandemic approach for determining whether to respond to employee complaints by (a) in-person investigation; (b) non-formal telephonic investigations; and/or (c) requests that employers respond in writing to a complaint, such as through a Rapid Response Investigation in response to a reported fatality or work-related in-patient hospitalization.  However, in all cases, OSHA intends to “continue to prioritize COVID-19 cases.” 

OSHA’s updated policy also provides that in geographic areas with sustained or resurgent cases of community transmission, OSHA’s Area Directors have the discretion to prioritize onsite inspections for cases of fatalities and imminent danger exposures, particularly in “high-risk workplaces, such as hospitals and other healthcare providers treating patients with COVID-19 [and] workplaces with high numbers of complaints or known COVID-19 cases.”

OSHA’s second announced enforcement policy change concerns OSHA’s recordkeeping regulations, which obligates employers in many businesses with 10 or more employees to record certain cases of employee illness as a recordable case on OSHA-required logs of work-related injuries and illnesses.  The recordkeeping regulation provides that if the employee has a confirmed case of COVID-19, which is “work-related” as defined in OSHA regulation, 29 CFR § 1904.5, and for which the employee received medical treatment beyond first aid or days away from work (the latter almost always being the case), the employee’s illness is recordable. 

The challenge to employers in the case of a community-wide communicable disease is knowing whether the employee’s illness is “work-related.”  In OSHA’s April 10, 2020 enforcement discretion policy issued on this topic, OSHA recognized that for all workplaces except those with a high-risk of exposure to COVID-19-positive people (e.g., COVID-19 hospital wards and prisons), employers did not have to take action to determine whether an employee’s illness was due to a work-related exposure and thus recordable.  In the new OSHA policy, effective May 26, 2020, all employers, regardless of COVID-19 exposure risk levels, must determine whether an employee’s illness is work-related. 

However, OSHA recognizes that, “[g]iven the nature of the disease and ubiquity of community spread, … in many instances it remains difficult to determine whether a COVID-19 illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace.”  Thus, if the employer conducts a “reasonable and good faith inquiry” and the employer “cannot determine whether it is more likely than not that exposure in the workplace played a causal role…., the employer does not need to record that COVID-19 illness.” (Emphasis added.)

OSHA will consider whether an employer has made a “reasonable determination of work-relatedness” by evaluating:

  • The reasonableness of the employer's investigation into work-relatedness. OSHA states that employers should “not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers' lack of expertise in this area.” Instead, in response to known employee illness, the employer should “(1) ask the employee how he believes he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee's work environment for potential exposure,” including other cases in that environment.
  • The evidence available to the employer.“Available” evidence can be information both available at the time of the investigation and learned later by the employer.
  • The evidence that a COVID-19 illness was contracted at work. OSHA will evaluate “all reasonably available evidence… to determine whether an employer has complied with its recording obligation.” Such evidence can include clusters of cases in the work environment or whether the employee had “frequent, close exposure to the general public in a locality with ongoing community transmission” and in either case there is “no alternative explanation.”  On the other hand, a case is “likely not work-related,” if the employee had “close” and “frequent” exposure to someone outside the workplace who was infectious during the relevant time period.

Especially because OSHA can do its own post hoc determination of the reasonableness of the employee’s decision, employers should document their investigation of each case of an employee COVID-19 illness.

OSHA ends its revised policy by cautioning employers that, regardless of whether an employee’s illness is recordable, “as a matter of health and safety” [subtext: subject to potential OSHA enforcement], the employer should respond to protect other workers when it learns that one employee has become ill.  OSHA does not describe, however, what those next steps should be.

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.

CATEGORIES: COVID-19, OSHA

PEOPLE: Gabrielle Sigel

April 18, 2020 OSHA Promises Relaxed Enforcement during Pandemic if Employers Make “Good Faith Effort” to Comply with Non-Achievable Recurring Requirements

Sigel

 Song

By Gabrielle Sigel  and Leah M. Song

Covid-19

 

On April 17, 2020, OSHA posted an April 16, 2020 enforcement guidance, which, for the first time, recognized that due to COVID-19, employers were not able to feasibly comply with a wide-range of OSHA regulatory requirements.  In a memorandum titled, “Discretion in Enforcement when Considering an Employer’s Good Faith Efforts during the Coronavirus Disease 2019 (COVID-19) Pandemic” (“Good Faith Guidance”).  OSHA instructed its Compliance Officers that they should exercise enforcement discretion and not issue citations for regulatory violations if employers made a “good faith effort” but ultimately could not comply with regulations requiring “annual or recurring audits, reviews, training, or assessments” (collectively, “Recurring Requirements”).  The Good Faith Guidance takes effect immediately, applies to all OSHA-regulated industries, and continues “until further notice.”

In support of its enforcement discretion decision, OSHA found that, due to widespread business shutdowns in response to COVID-19, many employers were not able to perform certain mandatory Recurring Requirements, such as annual audiograms, Process Safety Management revalidations and reviews, respirator spirometry testing, annual training requirements, and inspection, certification, and relicensing activities.  As further support, OSHA noted that the American College of Occupational and Environmental Medicine had advised that all occupational spirometry testing for respirator use be suspended, and the Council for Accreditation in Occupational Hearing Conservation recommended that all audiometric evaluations be suspended. 

Given these circumstances, OSHA stated that an employer should not be cited for failure to comply with Recurring Requirements if the employer demonstrates that it made “good faith efforts,” as follows:

  • “Thoroughly explored all options” to comply with regulatory requirements, such as virtual or remote trainings;
  • Implemented any interim alternative protections, such as engineering or administrative controls;
  • Took steps to reschedule the required annual activity as soon as possible; and
  • Ensured that employees were not exposed to hazards from tasks, processes, or equipment for which they were not prepared or trained

If an employer was unable to comply with Recurring Requirements because the workplace was required to close entirely, the employer should demonstrate a “good faith attempt to meet the applicable requirements as soon as possible following the re-opening of the workplace.” 

Given the Good Faith Guidance, employers would be well-advised to document their good faith efforts to comply with Recurring Requirements and why it was not possible to comply.  Although OSHA Compliance Officers have been directed to take an employer’s good faith efforts into “strong consideration” before issuing a citation, the Compliance Officer must document the regulatory violation and the good faith efforts in its case file.  In addition, in a program to be developed “at a later date,” OSHA plans to conduct monitoring inspections of locations where violations occurred but were not cited to “ensure that corrective actions have been taken once normal activities resume.”

The Good Faith Guidance supplements other previously issued OSHA enforcement discretion guidance memos and enforcement directives arising out of the COVID-19 health emergency, which have been analyzed in Jenner & Block’s Corporate Environmental Lawyer blog.

For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s COVID‑19 Resource Center and the Corporate Environmental Lawyer blog.

CATEGORIES: COVID-19, OSHA

PEOPLE: Gabrielle Sigel, Leah M. Song

April 17, 2020 OSHA to Manufacturers: Coronavirus "Safety Tips” in an “Alert” to Manufacturing Employers

Sigel

By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice

Covid-19

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
  • Temperature checks
  • Testing, isolating, and contact tracing
  • Sanitation
  • Use and disinfection of common and high-traffic areas
  • Business travel

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.

CATEGORIES: COVID-19, Hazmat, OSHA

PEOPLE: Gabrielle Sigel

April 11, 2020 OSHA to Most Employers: Limited Exemption from Recording Requirement for Employees’ COVID 19 Cases

Sigel

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:

  1. “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
  2. 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.

CATEGORIES: Hazmat, OSHA

PEOPLE: Gabrielle Sigel

April 8, 2020 OSHA to Employers: Some Relief from Respiratory Protection Rules in the Face of N95 Shortages

Sigel

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:

  1. Manage your respiratory protection program (RPP) in accordance with the Respiratory Standard and “pay close attention to shortages of N95s.”
  2. Identify and evaluate respiratory hazards.
  3. Develop, implement, and document worksite-specific procedures to address changes in use of N95s and other respiratory protection.
  4. 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:
    • NIOSH-certified
    • 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.

CATEGORIES: Hazmat, OSHA

PEOPLE: Gabrielle Sigel