California’s COVID-19 Workplace Safety Standard May Be Revised on Short Notice
By Leah Song
On May 20, 2021, the California Occupational Safety and Health Standards Board (“Board”) held a public meeting to consider revisions to the State’s COVID-19 emergency temporary standard (“ETS”), which had been the applicable law for California workplaces since November 30, 2020. (See December 1, 2020 Corporate Environmental Lawyer blog). On May 7, 2021, the California Division of Occupational Safety and Health (“Cal/OSHA”) issued a notice of emergency action regarding proposed revisions to the ETS for the Board to consider for adoption, given the developing science around COVID‑19, particularly the impact of vaccines and Cal/OSHA’s experience enforcing the ETS. However, on May 19, 2021, Cal/OSHA asked the Board to table its vote on Cal/OSHA’s May 7 proposed COVID-19 ETS revisions.
Given Cal/OSHA’s May 7 proposed revisions to the ETS included notable revisions changing definitions, masking and physical distancing requirements, and engineering controls, including distinctions based on whether employees were vaccinated. However, on May 13, 2021, the Centers for Disease Control and Prevention (“CDC”) posted its guidance for fully vaccinated people recommending, in part, that “fully vaccinated people no longer need to a mask or physically distance in any setting, except where required by federal, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.” CDC, Guidance for Fully Vaccinated People (May 13, 2021). In light of that new guidance, and the science that the risk is low that vaccinated people transmit the virus, Governor Newsom announced that the state will implement the new CDC mask guidelines on June 15, 2021, along with fully reopening the economy. In addition, California Health and Human Services Secretary Dr. Mark Ghaly announced on May 17, 2021 that, starting on June 15, 2021, “California plans to implement the CDC’s guidelines around masking to allow fully vaccinated Californians to go without a mask in most indoor settings.” However, California Department of Public Health issued a directive on May 21, 2021, that adopted the CDC guidance, but also stated that, with respect to COVID-19 protections, employers remain subject to the ETS, as applicable to their business.
On May 19, 2021, the day before the Board meeting, Cal/OSHA sent a memo recommending that the Board not vote on its May 7 proposed revisions, because it “believes it is important to revisit the proposed COVID-19 prevention emergency regulations in light of this new [CDC] guidance.” In the memo, Cal/OSHA stated that it will “limit any potential changes to consideration of the recent [CDC] guidance” regarding fully vaccinated people. On May 20, 2021, after hearing hours of public comment, the Board voted to table Cal/OSHA’s May 7 changes and to allow it to post, by May 28, 2021, its new proposed changes to the ETS for public comment. The Board will vote on June 3, 2021 in a special meeting as to whether to adopt the new Cal/OSHA proposed changes or to take other action on the ETS.
Jenner & Block’s Corporate Environmental Lawyer will continue to update on the California COVID-19 ETS and other COVID-19 matters as they unfold. Additional information regarding working during the COVID‑19 pandemic can be found on this blog and in Jenner & Block’s COVID‑19 Resource Center.
Where is OSHA’s COVID-19 ETS? No Where the Ides of March.
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On his first full day in office, President Biden issued an Executive Order on Protecting Worker Health and Safety, which required OSHA to “consider whether any emergency temporary standards on COVID‑19, including with respect to masks in the workplace, are necessary,” and if so, to issue such emergency temporary standards (ETS) by March 15, 2021. Executive Order 13999, § 2(b) (Jan. 21, 2021), 86 FR 7211 (Jan. 26, 2021). An ETS, which skips the initial notice and comment process before it is in effect, can be issued pursuant to Section 6(c) of the OSH Act if OSHA determines that employees are exposed to “grave danger” and that an emergency standard is “necessary” to protect them from the grave danger. 29 USC § 655(c).
March 15, 2021 came and went; no ETS was issued. As of this writing, OSHA has not made a public statement as to why it did not issue an ETS on March 15, or the agency’s considerations and future plans regarding an ETS. Why might OSHA have chosen not to act now? What has OSHA done instead? What ETS might be on the horizon?
Why Might OSHA Have Decided Not to Issue an ETS Now?
There is considerable legal risk that a COVID-19 ETS will not hold up in court. OSHA has not successfully issued an ETS since 1978. Its last attempt to issue an ETS would have regulated asbestos exposure and was invalidated by the US Court of Appeals in 1984. In Asbestos Info. Ass’n v. OSHA, 727 F.2d 415 (5th Cir. 1984), the court rejected the ETS because OSHA did not sufficiently support its conclusion of a “grave danger,” i.e., that 80 people would die in the next six months without the ETS and that OSHA could not show that an asbestos ETS was “necessary” given its existing respiratory standard.
As an additional legal hurdle, OSHA, in the last administration, has already gone on record that an ETS is unnecessary, and won that position in federal court. On June 11, 2020, the US Court of Appeals for the D.C. Circuit denied the AFL-CIO’s petition for a writ of mandamus to compel OSHA to issue an ETS for Infectious Diseases. The three-judge panel found that “OSHA reasonably determined that an ETS is not necessary at this time” given the “unprecedented nature of the COVID-19 pandemic, as well as the regulatory tools that the OSHA has at its disposal to ensure that employers are maintaining hazard-free work environments, see 29 U.S.C. § 654(a).” The panel held that “OSHA’s decision not to issue an ETS is entitled to considerable deference.”
Moreover, supporting the “grave danger” element for a COVID-19 ETS is challenging for OSHA, especially because the March 15 deadline gave it only two months to assemble the data and proof necessary. Further compounding the timing challenge, there are data gaps from the prior Administration, making it difficult to prove that any particular regulatory action would eliminate the grave danger. In addition, with vaccines becoming increasingly available, predicting how many workers would be protected from “grave danger” in the near future confounds easy statistical prediction. Regarding the “necessity” element, the Department of Labor Office of Inspector General’s February 25, 2021 report (the OIG Report) criticizes OSHA’s pandemic performance as deficient, but it principally blames OSHA’s “reduced inspections and most inspections not being conducted onsite” as the reasons that employees were subjected to “greater safety risk.” OIG Report at p. i. On the other hand, the OIG Report also urges OSHA to consider an ETS, noting that OSHA’s COVID-19 guidance is not enforceable, but it also states that OSHA can rely on its guidance as evidence to support a General Duty Clause claim. OIG Report, pp. 10-14. Thus, perhaps inadvertently, the OIG Report more strongly demonstrates that deficiencies in OSHA’s workplace safety protection were due to lack of enforcement, not necessarily the lack of tools to do so.
In addition to legal risks, the political risks to OSHA and the Biden Administration from a national ETS are substantial, particularly at this time. The President and his closest advisers are on a cross-country tour, promoting the American Rescue Plan and a nationwide vaccination rollout. In addition, the President announced on day one of his administration, that he intends to include private sector businesses in his National Strategy for the COVID-19 Response and Pandemic Preparedness; the President may not want to distract those employers and the working public with a different message that could be generated by a new COVID-19 ETS.
No doubt there is strong political support, among labor and other constituencies, for an ETS. OSHA has received such demands, including in the nomination hearings on Mayor Marty Walsh as Secretary of Labor, from labor and other advocates. They have suggested basing an ETS on the Virginia standard, the California ETS, or OSHA’s own guidance. On February 15, 2021, former HHS and OSHA officials, joined by other public health luminaries, called on the federal COVID-19 Pandemic Response members, as well as OSHA, to revise OSHA guidance and regulations, including by requiring healthcare workers and workers “at very high risk of exposure and infection such as in food processing, prisons, and security” to be provided N95 respirators, so that they need not rely solely on face coverings. Letter from R. Bright, et al., “Immediate Action is Needed to Address SARS-CoV-2 Inhalation Exposure” (Feb. 15, 2021). The letter also called on OSHA to issue an ETS “that recognizes the importance of aerosol inhalation, includes requirements to assess risks of exposure, and requires implementation of control measures following a hierarchy of controls.” On February 10, 2021, the American Industrial Hygiene Association and eight other scientific organizations issued a Joint Consensus Statement asking that OSHA issue a COVID-19 ETS.
In contrast, on February 25, 2021, House Republican members urged the Acting Secretary of Labor not to move quickly on an ETS, citing the difficulties that the California Division of Occupational Safety & Health had when it issued a COVID-19 ETS that quickly had to be modified, by order of the Governor, due to new CDC guidance. Given that by March 15 the Senate had not confirmed the nomination for a Secretary of Labor or an Assistant Secretary for OSHA, issuing an ETS without confirmed leaders puts the department and OSHA at further political risk.
Given these significant political risks and legal hurdles, it should be no surprise that OSHA’s March 15, 2021 decision on an ETS is: “not now.”
What COVID-19 Programs Has the Biden Administration’s OSHA Issued to Date?
President Biden’s Executive Order instructed OSHA to take several COVID-19 workplace safety actions, including: (1) issue “revised guidance” by February 4, 2021; (2) enhance enforcement; and (3) as discussed above, consider and, if necessary, issue a COVID-19 ETS by March 15. Executive Order 13999, § 2. With respect to that first action, OSHA beat the President’s deadline issuing a revised guidance eight days later on January 29, 2021. The new “stronger” guidance document, entitled Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (Protecting Workers Guidance), used more resolute language, such as directives that employers “should” implement certain programs, provided more details on a range of elements, including emphasizing communication to workers in native languages and non-retaliation, and incorporated recent CDC guidance.
Introducing the principal elements of its Protecting Guidance, OSHA reiterated employers’ obligation under the General Duty Clause, and stated that, “[i]mplementing a workplace COVID-19 prevention program is the most effective way to mitigate the spread of COVID-19 at work.” One new element in OSHA’s Protecting Workers Guidance is its reference to COVID-19 vaccination, stating that an employer’s effective COVID-19 Prevention Plan should: “Mak[e] a COVID-19 vaccine or vaccination series available at no cost to all eligible employees,” and employers should provide information about “the benefits and safety of vaccinations.” However, because the science on whether the vaccine prevents transmission is not settled, employers should be sure to not “distinguish between workers who are vaccinated and those who are not,” with regard to continuing protective measures, such as face coverings. However, as in all of the COVID-19 guidance documents, OSHA reiterated that its document “is not a standard or regulation, and it creates no new legal obligations.”
Then on March 12, 2021, just days before the ETS “deadline,” OSHA took two significant new actions to enhance its enforcement actions regarding COVID-19 workplace safety: (1) establishing the National Emphasis Program – COVID-19 (the NEP) targeting higher hazard industries for OSHA enforcement action; and (2) updating and replacing its former Interim Enforcement Response Plan for COVID-19 (the Enforcement Plan) to prioritize in-person worksite inspections by OSHA Compliance Safety and Health Officers (CSHO). These actions directly respond to President Biden’s Executive Order directing OSHA to “launch a national program to focus OSHA enforcement efforts related to COVID-19 on violations that put the largest number of workers at serious risk or are contrary to anti-retaliation principles.” Executive Order (EO) No. 13999, § 2(d), 86 FR 7211 (Jan. 26, 2021).
A National Emphasis Program is an OSHA enforcement policy procedure through which OSHA decides how it is selecting sites for enforcement initiatives. An OSHA enforcement response plan informs CSHOs how to conduct their enforcement activities. In this case, the COVID‑19 NEP and the Enforcement Plan together tell employers the categories of workplaces and the types of enforcement procedures that are OSHA’s highest COVID-19 safety priorities. In the NEP, OSHA targets specified industries whose workers “have increased potential exposure to [a COVID-19] hazard, and that puts the largest number of workers at serious risk.” NEP, p. 1. The NEP also focuses on making sure that “workers are protected from retaliation,” including by referring allegations of retaliation to OSHA’s Whistleblower Protection Program. Id. OSHA makes clear that its NEP is to “augment” its continuing enforcement actions at all workplaces where it receives a complaint, severe incident report, or referral involving COVID-19 safety issues.
In the Enforcement Plan, OSHA instructs its Area Directors and CSHOs to “prioritize COVID-19-related inspections involving deaths or multiple hospitalizations due to occupational exposures to COVID-19” and “[w]here practical … perform on-site workplace inspections.” The Enforcement Plan provides greater detail about how the CSHO should conduct a COVID-19-related investigation and inspection, and the bases for citations issued to employers. While not addressing whether or when an ETS will be issued, OSHA buried in the text of both the NEP and the Enforcement Plan a few statements that “in the event that” OSHA issues an ETS, the ETS will be used instead of the General Duty Clause as the basis for citations with respect to COVID-19 safety violations, which will be enforced through the new NEP and Enforcement Plan.
What Might a COVID-19 ETS Look Like?
If OSHA were to issue a COVID-19 ETS, it may not be as comprehensive as either the Virginia COVID-19 standard or the California COVID-19 ETS. For example, OSHA may decide to focus on specific procedures for a targeted industry, perhaps adopting a standard like California’s Aerosol Transmissible Diseases standard that applies only to the healthcare industry. Or OSHA may decide to issue a more comprehensive regulation, but target high hazard industries, such as healthcare, congregate living facilities, meat processing plants, and/or manufacturing facilities, such as it just did in the COVID-19 NEP. That more comprehensive ETS could have the same substance of its most recent Protecting Workers Guidance.
As another alternative, OSHA may decide to focus an ETS solely on mask-wearing in the workplace, including in response to certain states’ recent decisions to eliminate a mask mandate. This approach may mirror what other federal agencies have already done. On January 30, 2021, the CDC issued a nationwide order requiring masks of a certain type to be worn, by the public and workers, in and on airplanes, trains, buses, and various modes of surface transportation, including in stations and terminals. Requirement for Persons to Wear Masks While on Conveyances and at Transportation Hubs. CDC Agency Order, 86 FR 8025 (Feb. 3, 2021). On January 31, 2021, TSA issued a Security Directive for enforcing the CDC Order. Security Directive 1582/84-21-01.
On March 1, 2021, the Federal Railroad Administration (FRA) issued the Emergency Order Requiring Face Mask Use in Railroad Operations, stating that it was “exercising its emergency railroad safety authority” to require rail carriers to require mask wearing by railway workers “while engaged in railroad operations.” 86 FR 11888, 11890 (Mar. 1, 2021). The FRA Emergency Order may be the best example to date for an OSHA mask-only ETS, in that the FRA is required to justify its Emergency Order as necessary to address an emergency safety situation. To support its Emergency Order, the FRA noted that it has authority to issue emergency orders to address an unsafe practice that “causes an emergency situation involving a hazard of death, personal injury, or significant harm to the environment,” including “restrictions and prohibitions… that may be necessary to abate the situation.” 86 FR at 11888, citing 49 U.S.C. § 20104. The FRA justified its emergency order by describing the impact of the pandemic generally; concerns about virus variants that spread more easily and quickly; and its field observations of railway personnel not wearing masks. The FRA stated that its emergency order was “necessary…to ensure a minimum level of nationwide compliance, together with the [TSA’s Security Directive].” 86 FR at 11890. The FRA also referred to the railroad transportation system being essential for public health, the economy, and “other bedrocks of American life.” Id. While applicable only to a specific industry, the FRA emergency order may indicate a targeted approach that OSHA may take at all workplaces, i.e., requiring the wearing of face masks at workplaces and in the work environment when a worker is exposed to others, except for narrow exceptions.
Particularly after the new Secretary of Labor is sworn in, we may well see an OSHA ETS. In any case, that ETS, if issued this year, will not have an Ides of March date, and its negative connotations, as an additional burden.
For more information or advice on the OSHA standards and enforcement during the pandemic, please contact the author. Additional information regarding working during the COVID-19 pandemic can be found in Jenner & Block’s Corporate Environmental Lawyer blog and in the Jenner & Block COVID-19 Resource Center.
OSHA Issues Immediately Effective COVID-19 National Enforcement Program and Updated Enforcement Guidance: No ETS Yet
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On March 12, 2012, OSHA took two significant new actions to enhance its enforcement actions regarding COVID-19 workplace safety: (1) establishing the National Emphasis Program – COVID-19 (the NEP) targeting higher hazard industries for OSHA enforcement action; and (2) updating and replacing its former Interim Enforcement Response Plan for COVID-19 (the Enforcement Plan) to prioritize in-person worksite inspections by OSHA Compliance Safety and Health Officers (CSHO). This action is in response to President Biden’s January 21, 2021 Executive Order on Protecting Worker Health and Safety, in which he directed OSHA to “launch a national program to focus OSHA enforcement efforts related to COVID-19 on violations that put the largest number of workers at serious risk or are contrary to anti-retaliation principles.” Executive Order (EO) No. 13999, § 2(d), 86 FR 7211 (Jan. 26, 2021). Although the Executive Order (§ 2(b)) also required OSHA to consider whether to issue a COVID-19 Emergency Temporary Standard (ETS), and to do so by March 15, 2021 if determined necessary, these two new OSHA policy documents are not an ETS. Instead, OSHA has buried in the text of both the NEP and the Enforcement Plan that “in the event that” OSHA issues an ETS, the ETS will be used instead of a General Duty Clause violation as the basis for citations with respect to COVID-19 safety violations, which will be enforced through the new NEP and Enforcement Plan.
A National Emphasis Program is an OSHA enforcement policy procedure, developed in accordance with OSHA’s Directives System, through which OSHA decides how it is selecting sites for enforcement initiatives. An OSHA enforcement response plan informs CSHO how to conduct their enforcement activities, whether in regard to an NEP, a particular hazard, or otherwise. In this case, the NEP and the Enforcement Plan together tell employers the categories of workplaces and the types of enforcement procedures that are OSHA’s highest COVID-19 safety priorities.
In the NEP, OSHA is targeting those specified industries whose workers “have increased potential exposure to [a COVID-19] hazard, and that puts the largest number of workers at serious risk.” NEP, p. 1. The NEP also focuses on making sure that “workers are protected from retaliation,” including by referring allegations of retaliation to OSHA’s Whistleblower Protection Program. Id. OSHA makes clear that its NEP is to “augment” its continuing enforcement actions at all workplaces where it receives a complaint, severe incident report, or referral involving COVID-19 safety issues.
In the Enforcement Plan, OSHA instructs its Area Directors and CSHOs to “prioritize COVID-19-related inspections involving deaths or multiple hospitalizations due to occupational exposures to COVID-19” and “[w]here practical … perform on-site workplace inspections.” The Enforcement Plan provides greater detail about how the CSHO should conduct a COVID-19-related investigation and inspection, and the bases for citations issued to employers.
The NEP and Enforcement Plan apply only to workplaces in states subject to federal OSHA enforcement. However, OSHA “strongly encourages” adoption of the NEP by the 28 states/territories that enforce “at least as effective” state plans for their private sector employers and/or state and local government workplaces. By May 11, 2021, the state-plan states/territories must submit to OSHA a notice of intent to adopt the NEP.
What Should an Employer Do Now?
In light of the NEP and the Enforcement Plan, all employers who are not primarily relying on telework or other remote practices for their employees should consider the following:
- Check to see if your business is within one of the NEP’s targeted industries, listed in NEP Appendix A, Table 1 (Targeted Industries in Healthcare by 2017 NAICS) or Table 2 (Targeted Industries for non-Healthcare by 2017 NAICS), the latter of which includes meat and poultry processing facilities, supermarkets, discount department stores, general warehousing and storage, full and limited service restaurants, and certain temporary help agencies.
- Check to see if your business is within a CISA-listed critical infrastructure industry that OSHA has determined has “the highest frequency of close contact exposures to the public or to coworkers resulting from their on-site work-related duties,” as listed in Appendix B, Table 1. These industries include manufacturing, construction, transportation, and merchandising businesses who had essential workers on-site throughout most, if not all, of the pandemic.
- Particularly if you are in one of the targeted industries, and especially if your OSHA 300A logs or other reports include COVID-19-related days away cases, hospitalizations, or fatalities, review and update your COVID-19 safety documents, programs, and procedures, including your:
- written COVID-19 safety and health plan, including contingency planning for emergencies, such as the pandemic
- procedures for hazard assessment
- procedures for PPE assessment and use (see 29 CFR § 1910.132)
- face covering measures for employees and all those with whom an employee would come in contact in the work environment, consistent with CDC guidelines regarding construction, donning, and maintenance of face coverings
- sanitation practices (see 29 CFR § 1910.141)
- worker protection actions implemented under the hierarchy of controls (engineering controls, administrative controls, work practices, and PPE), including physical distancing measures; ventilation; stay-home-when sick and return-to-work procedures for exposed and sick workers; and both routine and case-specific cleaning of surfaces
- respiratory program and PPE provision, including any modifications made as a result of the pandemic and documented good faith measures when compliance is not possible (see 29 CFR §§ 1910.132, 1910.134)
- COVID-19 signage (see 29 CFR § 1910.145)
- training and training records
- signage, training, and procedures encouraging employees to report symptoms and to raise safety concerns, and protecting employees against retaliation for doing so
- practices regarding employee access to exposure and medical records (see 29 CFR § 1910.1020)
- injury/illness recordkeeping and reporting documents and procedures (see 29 CFR Part 1904 and related enforcement memoranda and guidance)
- OSHA Hazard Alerts applicable to your industry
- Review OSHA’s newest COVID-19 Guidance, Mitigating and Preventing the Spread of COVID-19 in the Workplace ( 29, 2021)
- Consider the four elements of the General Duty Clause violation with respect to COVID-19-related hazards: (1) employer failed to keep the workplace free of a hazard to which employees of that employer were exposed; (2) hazard was recognized; (3) hazard was causing or was likely to cause death or serious physical harm; and (4) there was a feasible and useful method to correct the hazard. CDC guidelines will be used to show a recognized hazard and/or feasible means to abate the hazard.
What Should an Employer Expect if OSHA Conducts an Inspection?
- OSHA will not tell you in advance that it is starting an investigation and typically arrives on-site without prior warning.
- Opening conferences will be held in a manner consistent with COVID-19 safety precautions, i.e., in an uncontaminated administrative area or outdoors, and will include union/employee representatives and management personnel responsible for COVID-19 safety and for other COVID-19-related programs, such as HR, medical staff, and facilities/physical plant.
- The “walkaround” will occur in areas that CSHO determines he/she wants to see. Note that the CSHO can issue citations for any health or safety hazard observed during the walkaround, even if not related to COVID-19.
- Interviews of management and non-management personnel can be conducted before, during, and after the walkaround. Employees may be contacted by phone and/or the CSHO may ask the employer to set up such calls while on-site. Typically, management cannot be present during the interviews, and an employee can approach the CSHO to speak privately.
- The CSHO’s document review, including of records of programs described above, may occur before a walkaround and/or the CSHO will ask to see or to have sent to the Area Office a copy of specified categories of documents.
- CSHO will be particularly sensitive to indications or complaints of retaliation, including with respect to talking to OSHA representatives at any time, including during an investigation. Actions considered to be retaliation can result in separate Whistleblower enforcement actions, which can result in injunctive or monetary relief to the employee.
- Citations, if issued, will be in the Serious classification, with penalties up to $13,653 per violation.
- A General Duty Clause violation will not be issued except after approval by the OSHA Regional Administrator and the National Office, with input from the Department of Labor’s Regional Solicitor.
- OSHA may decide to issue a Hazard Alert Letter (HAL) rather than a General Duty Clause or other citation, with recommended actions to be taken and subsequently reported to OSHA.
- If the work establishment is part of a multi-location corporation, and a COVID-19 citation or HAL has been issued, OSHA may send a letter to the corporate entity about the citation or HAL and recommend that the corporation assess and abate COVID-19 hazards at all other locations. If unabated hazards are subsequently found, this notification letter may serve as subsequent bases for OSHA upgrading the amount of penalties or classification of its violations.
In sum, although not (yet) an ETS, OSHA has proclaimed that it intends to take aggressive enforcement measures with respect to a broad range of businesses that have been operating in their usual workplaces during the pandemic. Employers in these businesses should prepare accordingly.
For more information or advice on US and states’ OSHA standards and guidance and enforcement nationwide, please contact the author. Additional information regarding working during the COVID-19 pandemic can be found on this blog and in the Jenner & Block COVID-19 Resource Center.
Centers for Disease Control and Prevention Releases Updated Public Health Guidelines for Vaccinated Individuals, Including Recommendations for the Workplace
By Matthew G. Lawson
On Monday, March 8, 2021, the Centers for Disease and Control and Prevention (CDC) released its first set of public health recommendations for individuals fully vaccinated against COVID-19, titled “Interim Public Health Recommendations for Fully Vaccinated People.” The CDC’s newly published guidelines are intended to replace the CDC’s existing public health guidance specifically for those individuals fully vaccinated for COVID-19. By “fully vaccinated”, CDC means ≥2 weeks after an individual has received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna), or ≥2 weeks after an individual has received a single-dose vaccine (Johnson and Johnson [J&J]/Janssen). The updated guidance includes specific recommendations for vaccinated individuals in the non-healthcare workplace, public spaces and private and/or family settings. While the CDC guidance is only intended to provide recommended best practices, it is anticipated that the CDC’s newest guidance will be relied on by states, municipalities, school systems, and private employers as these entities continue to update and implement their own respective health guidance and COVID-19 policies and protocols.
According to the updated guidelines, vaccinated persons can now engage in a number of new activities, including:
- Visiting with other fully vaccinated people indoors without wearing masks or physical distancing;
- Visiting with unvaccinated people from a single household who are at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing; and
- Refraining from quarantine and testing following a known exposure to COVID-19 if asymptomatic.
Notably, the new guidelines leave in place many of CDC’s existing recommendations for both vaccinated and non-vaccinated individuals. For example, the CDC recommends that fully vaccinated individuals continue to wear a mask in public, physical distance, avoid crowds and avoid poorly ventilated spaces. In addition, the CDC is continuing to recommend that vaccinated individuals delay domestic and international travel, and, if they do travel, continue to follow all CDC requirements and recommendations when doing so.
CDC’s guidelines for vaccinated individuals include a number of implications for private employers. In the context of non-healthcare workplaces, the CDC is now recommending that fully vaccinated employees do not need to quarantine following a known or suspected exposure to COVID-19 in the workplace unless that the vaccinated individual develops “COVID-like symptoms.” However, the guidelines still recommend that vaccinated persons receive testing “through routine workplace screening programs” following an exposure to COVID-19. Notably, CDC’s no quarantine recommendation does not extend to vaccinated employees working in congregate settings or other high-density workplaces (e.g., meat and poultry processing and manufacturing plants), and as a result vaccinated employees in congregate work environments should continue to adhere to the quarantine requirements following exposure. Employers should therefore evaluate their respective work environment to determine the appropriate quarantine procedures for employees who have received a vaccine. Under the guidelines, vaccinated individuals also need to comply with any existing COVID-19 health and safety rules issued by their employer. Thus, an employee’s vaccination status should not allow the employee to avoid his or her workplaces’ COVID-19 policies and procedures. Finally, CDC’s new guidelines do not update the CDC’s prior recommendation (issued December 30, 2020) regarding business travel. The CDC is continuing to recommend that employers “minimize non-essential travel” for all employees and, if resuming non-essential travel, ensure their employees continue to follow all state and local COVID-19 regulations and guidance regardless of their vaccination status.
In the accompanying scientific brief to its newly released guidance, the CDC cites to existing studies demonstrating the highly effective nature of the approved mRNA COVID-19 vaccines against SARS-CoV-2 infection (including both symptomatic and asymptomatic infections). Despite early evidence of the effectiveness of the approved vaccines, the CDC noted that only “approximately two-thirds of U.S. adults state that they [are] at least somewhat likely to receive a COVID-19 vaccine (or had received one already).” Because maintaining requirements to continue COVID-19 prevention measures after vaccination “may disincentive vaccine uptake,” the CDC explained that its new guidance intends to communicate additional advantages, to the individual and the community, from vaccination. The CDC advised that its guidance for vaccinated individuals will continue to be updated and modified “based on the level of community spread of SARS-CoV-2, the proportion of the population that is fully vaccinated, and the rapidly evolving science on COVID-19 vaccines.”
OSHA under Deadline for a Nationwide COVID 19 Workplace Safety Rule: Four States’ Existing Laws and New Federal Guidance and Orders Foretell the Future
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On his first full day in office, President Biden issued an Executive Order on Protecting Worker Health and Safety, which required OSHA to “consider whether any emergency temporary standards on COVID‑19, including with respect to masks in the workplace, are necessary,” and if so, to issue such emergency temporary standards (ETS) by March 15, 2021. Executive Order 13999, § 2(b) (Jan. 21, 2021), 86 FR 7211 (Jan. 26, 2021). An ETS, which skips the initial notice and comment process before it is in effect, can be issued pursuant to Section 6(c) of the OSH Act if OSHA determines that employees are exposed to “grave danger” and that an emergency standard is necessary to protect them from the grave danger. 29 U.S.C. § 655(c).
Putting aside that OSHA has not successfully issued an ETS since 1978, including that the last attempt to issue an ETS, regulating asbestos exposure, was invalidated by the US Court of Appeals in 1984, OSHA now has several models for a COVID‑19 ETS from which it may draw. Specifically, California, Michigan, Oregon, and Virginia are among the 22 states and territories that administer and enforce their own state-plan OSHA, rather than rely solely on federal standards and enforcement. These four states have developed their own COVID‑19 safety regulations that apply to most, if not all, workplaces in their respective states, and have both distinctive features and commonalities. Employers would be well-advised to be aware of each of the states’ specific standards, not only to comply with regulatory requirements in that state, but to consider whether their workplace is ready for potential, nationwide regulations which may incorporate elements of these states’ approaches.
With OSHA under a Presidential deadline to issue a nationwide COVID-19 safety regulation, we review the current status of OSHA guidance; describe the basic elements of the four states’ regulations; and look at recent federal orders by other agencies to anticipate what employers nationwide may soon be facing.
US OSHA: COVID‑19 Regulation and Guidance in the Prior Administration
US OSHA currently has several well-established regulations that apply to aspects of workplace protection that also apply to certain workplaces operating during the pandemic. For example, OSHA’s PPE and respiratory standards would apply particularly to work in hospitals and those in direct contact with people or bodies known to be infected by COVID-19. See, e.g., 29 CFR 1910.132, 1910.133, 1910.134. OSHA’s illness recordkeeping standard applies to workplaces otherwise required to do that recordkeeping (29 CFR 1904.2(a)), and all workplaces are required to report to OSHA work-related cases that result in hospitalization or death within 24 hours of a workplace exposure (see fn 9). The General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act, 29 USC 654(a)(1), requires each employer to furnish to each worker "employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm." 29 U.S.C. § 654(a)(1). Yet, the General Duty Clause does not provide clear direction on what an employer must do at the workplace, and enforcement by OSHA during the pandemic under the General Duty Clause can be difficult in all but the most egregious cases.
On its COVID-19 resource webpage, OSHA essentially recognizes that it does not have a comprehensive standard for working during the pandemic, as the state-plan states’ COVID-19 regulations do. OSHA points to its own bloodborne pathogen standard and California’s ATD standard as either provisions that “offer a framework that may help control some sources of the virus,” or “provid[ing] useful guidance for protecting [non-healthcare] workers exposed to SARS-CoV-2.” OSHA has responded to previous threats of airborne disease and viral transmission by issuing specific guidance, as in the case of the Zika virus, avian flu, and the H1N1 virus. To state the obvious, SARS-CoV-2 is unique in US workplaces for many reasons, including the length of time it has been a threat, its asymptomatic transmission, and the sheer number of cases of sickness and death.
On March 9, 2020, OSHA issued its “Guidance on Preparing Workplaces for COVID‑19,” (Preparing Guidance) and on June 17, 2020, OSHA issued its “Guidance on Returning to Work,” (Reopening Guidance) (both currently under review by OSHA under the Biden Administration). In its Preparing Guidance, OSHA recommended that employers divide job tasks into exposure levels of “very high, high, medium, and lower risk” and then recommends steps employers should consider taking to protect workers in each risk category, using its “hierarchy of controls” framework for addressing workplace risks, i.e., engineering controls, followed by administrative controls, safe work practices, and PPE. Specific controls generally were not offered and OSHA repeatedly described controls as “to be considered,” including physical barriers.
In its Reopening Guidance issued three months later as a supplement to the Preparing Guidance, OSHA’s “guiding principles” were that employers’ reopening plans “should address”:
- Hazard Assessment
- Social Distancing
- Identification and Isolation of Sick Employees
- Return to Work After Illness or Exposure
- Workplace Flexibilities
In addition to the two basic guidance documents, through 2020, OSHA issued industry-specific COVID-19 Alerts for specific industries or types of jobs. For example, it issued, COVID-19 Guidance for the Package Delivery Workforce, which contained “tips [to] help reduce the risk of exposure.” Those tips included suggestions such as, “Allow workers to wear masks over their nose and mouth to prevent them from spreading the virus” and “Discourage workers from using other workers’ tools and equipment.” These guidance documents were not clear mandates for any specific type of hazard control.
The previous administration successfully resisted attempts to force it to adopt an ETS, instead insisting that it would rely on existing regulations and guidance, the General Duty Clause, and its enforcement priorities.
Four State-Plan States’ Approach
Four state-plan states determined that the business in their state should be regulated more prescriptively and with compliance mandates. An evaluation of each of these states’ regulations can be found in our Guide to COVID-19 Workplace Safety Regulation in Four State-Plan States.
In summary, these states took each of the elements in the Reopening Guidance and added specific, mandatory requirements, particularly with respect to hazard controls, return-to-work policies, and training. The principal differences are whether the state’s regulations expressly accommodate different levels of exposure risk (as described in the Preparing Guidance) and/or whether the state provides specific requirements for specific industries. The structure of Virginia’s permanent COVID-19 workplace safety regulation is built on the exposure risk approach described in the Preparing Guidance, and then adds specific controls and requirements for each exposure risk level. Michigan Emergency Rules require employers to categorize risk, but also includes hazard controls by industry. Oregon Emergency Rules have more industry-specific, fewer industry-wide prescriptive controls. Only California’s ETS does not rely on either an industry-specific or exposure risk regulatory approach, imposing requirements through its Injury and Illness Prevention Plan model for all employers except those healthcare employers already covered by its 2009 Aerosol-Transmitted Disease regulation. California’s ETS also requires more action, compared to all other States, in response to COVID-19 cases in the workplace, such as testing of exposed and potentially exposed employees and wage and benefit protections for employees who are required to be excluded from the workplace for quarantine or isolation.
By the end of the prior administration, these four states were the only states with workplaces operating under a comprehensive COVID-19 workplace safety regulation, enforced by the state’s occupational safety and health agency, not federal OSHA. The other states’ employers were operating under US OSHA guidance and existing regulations, as described above, and their Governors’ COVID-19 public health directives and orders.
The Biden Administration’s OSHA Guidance to Date
President Biden’s Executive Order on Protecting Worker Health and Safety instructed OSHA to take several COVID-19 workplace safety actions: issue “revised guidance” within two weeks; consider and, if necessary, issue a COVID-19 ETS by March 15; enhance enforcement; and initiate a multilingual workers’ rights outreach program. Executive Order 13999, § 2.
OSHA issued its revised guidance eight days later on January 29, 2021. The new “stronger” guidance document, entitled Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (Protecting Guidance), used more resolute language, such as directives that employers “should” implement certain programs, provided more details on a range of elements, including emphasizing communication to workers in native languages and non-retaliation, and incorporated recent CDC guidance.
Introducing the principal elements of its Protecting Guidance, OSHA reiterated employers’ obligation under the General Duty Clause, and stated that, “[i]mplementing a workplace COVID-19 prevention program is the most effective way to mitigate the spread of COVID-19 at work.” According to the Protecting Guidance, that program includes:
- Assigning a COVID-19 coordinator responsible for COVID-19 issues on behalf of the employer
- Conducting a hazard assessment
- Implementing controls, following the hierarchy of controls starting with engineering controls, administrative controls, PPE, and suppressing spread through hand washing, sanitation, and face coverings
- Considering protections for workers at higher risk for severe illness, including age, through supportive policies and practices
- Communicating and training in appropriate languages and in an understandable fashion
- As a “best practice,” instituting a “two-way” communication system for workers to report their symptoms and medical status and for employers to report illness cases in the workplace
- Instructing sick and exposed workers to stay home and having non-punitive absence policies
- Performing cleaning and disinfection, particularly after ill people have been at work
- Following state and local guidance regarding pre-entry health screening and testing
- Recording and reporting cases per existing regulation and reporting to health departments as locally required
- Protecting workers from retaliation for raising concerns about COVID-19 hazards
OSHA’s revised guidance also repeats, in detail, CDC guidelines regarding face coverings and periods of time for isolation and quarantine. However, what perhaps is most distinctive about the revised OSHA guidance is its reference to COVID-19 vaccination. OSHA’s Protecting Guidance states that an effective COVID-19 Prevention Plan should: “Mak[e] a COVID-19 vaccine or vaccination series available at no cost to all eligible employees,” and employers should provide information about “the benefits and safety of vaccinations.” However, because the science on whether the vaccine prevents transmission is not settled, employers should be sure to not “distinguish between workers who are vaccinated and those who are not,” with regard to protective measures, such as face coverings.
OSHA’s Protecting Guidance lays out in more detail the elements of a COVID-19 Prevention Plan, and indicates new concerns for enforcement, including with respect to language usage and vaccination efforts. However, OSHA’s enforcement powers continue to be limited primarily to General Duty Clause and PPE violations, as occurred in the prior administration. Like its predecessor guidance, OSHA states that the document “is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of existing mandatory safety and health standards. The recommendations are advisory in nature, informational in content, and are intended to assist employers in recognizing and abating hazards likely to cause death or serious physical harm as part of their obligation to provide a safe and healthful workplace.”
What OSHA’s Soon to Drop “Shoe” May Look Like
In considering issuing a COVID-19 ETS, OSHA faces political and legal risks that the state-plan states do not face. As noted above, OSHA has not even attempted to issue an ETS in close to 40 years. The facts that work through the pandemic has been occurring for a year and vaccines are becoming increasingly available will likely hurt OSHA’s ability to prove grave danger and necessity across all workplaces and in all industries. The fact that OSHA has issued COVID-19-related citations, with proposed penalties exceeding $4 million, under the General Duty Clause and existing regulatory standards, will also make it difficult for OSHA to prove the need for a broad ETS. Even though the Department of Labor Office of Inspector General’s February 25, 2021 report (the OIG Report) criticizes OSHA’s pandemic performance as deficient, it largely blames “increased complaints, reduced inspections, and most inspections not being conducted onsite subject employees to greater safety risk.” OIG Report at p. i. The OIG Report also stresses that OSHA’s guidance on COVID-19 safety is not enforceable, and urges OSHA to consider an ETS; however, it notes that OSHA can rely on its guidance as evidence to support a General Duty Clause claim. OIG Report, pp. 10-14. Indeed, as recently as February 23, 2021, OSHA announced that it had issued a citation under the General Duty Clause against a manufacturer, after an employee died, allegedly after workplace exposure to SARS-CoV-2. Although the OIG Report supports a COVID-19 ETS, perhaps inadvertently, the report more strongly demonstrates that deficiencies in OSHA’s workplace safety protection was due to lack of enforcement, not necessarily due to the lack of tools to do so.
Although OSHA has received demands from labor and other advocates to enact a nationwide ETS, resembling the Virginia model, the California model, or its own guidance, OSHA may well decide that a more politically and legally feasible approach is a more targeted one. For example, under the Biden Administration, federal orders requiring face coverings in workplaces have already begun. On January 21, 2021, the President’s Executive Order 13998, Promoting COVID‑19 Safety in Domestic and International Travel, 86 FR 7205 (Jan. 26, 2021), has resulted in the CDC issuing a nationwide order requiring masks of a certain type to be worn, by the public and workers, in and on airplanes, trains, buses, and various modes of surface transportation, including in stations and terminals. Requirement for Persons to Wear Masks While on Conveyances and at Transportation Hubs. CDC Agency Order, 86 FR 8025 (Feb. 3, 2021). On January 31, 2021, the TSA issued a Security Directive for enforcing the CDC Order. Security Directive 1582/84-21-01.
Most recently, on March 1, 2021, the Federal Railroad Administration (FRA) issued the Emergency Order Requiring Face Mask Use in Railroad Operations, stating that it was “exercising its emergency railroad safety authority” to require rail carriers to require mask wearing by railway workers “while engaged in railroad operations.” 86 FR 11888, 11890 (Mar. 1, 2021). To support this Emergency Order, the FRA noted that it has authority to issue emergency orders to address an unsafe practice that “causes an emergency situation involving a hazard of death, personal injury, or significant harm to the environment,” including “restrictions and prohibitions… that may be necessary to abate the situation.” 86 FR at 11888, citing 49 U.S.C. § 20104. The FRA justified its emergency order by describing the impact of the pandemic generally; concerns about virus variants that spread more easily and quickly; and field observations of personnel not wearing masks. The FRA stated that its emergency order was “necessary…to ensure a minimum level of nationwide compliance, together with the [TSA’s Security Directive].” 86 FR at 11890. The FRA also referred to the railroad transportation system being essential for public health, the economy, and “other bedrocks of American life.” Id. While clearly applicable only to a specific industry, the FRA emergency order may indicate a targeted approach that OSHA may take at all workplaces, i.e., requiring the wearing of face masks at workplaces and in the work environment, except for narrow exceptions.
OSHA also may decide to issue a regulation targeting a particular industry or hazards, such as adopting California’s ATD Standard as a federal ETS for the healthcare industry. Or OSHA may convert its most recent Protecting Workers guidance into an ETS targeted to specific high hazard industries, such as healthcare, congregate living facilities, meat processing plants, or manufacturing facilities. OSHA also may use its ETS powers to obtain information regarding the immediate reporting of COVID-19 cases in the workplace, in order to gather the data necessary to support both enhanced enforcement efforts or a future ETS.
Notably, on February 15, 2021, former HHS and OSHA officials, joined by other public health luminaries, called on COVID-19 Pandemic Response members, Jeffrey Zients, Dr. Rochelle Walensky, and Dr. Anthony Fauci, as well as other top federal officials, including at OSHA, to have the CDC and OSHA revise their guidance and regulations, including by requiring healthcare workers and workers “at very high risk of exposure and infection such as in food processing, prisons, and security” to be provided N95 respirators, so that they need not rely solely on face coverings. Letter from R. Bright, et al., “Immediate Action is Needed to Address SARS-CoV-2 Inhalation Exposure” (Feb. 15, 2021). The letter’s signatories also called on OSHA to issue an ETS “that recognizes the importance of aerosol inhalation, includes requirements to assess risks of exposure, and requires implementation of control measures following a hierarchy of controls,” essentially the basic elements in OSHA’s Protecting Workers guidance. They also called on OSHA to require that workers at lower exposure risks be “offered high-performing barrier face coverings tested to the STM F3502-21 Standard Specification for Barrier Face Coverings with at least 80% filter efficiency, no more than 15mm H2O air flow resistance and total inward leakage of no more than 5% on a panel of at least 10 subjects.” Id. They further recommended that this OSHA broad masking requirement be supported by a “national effort,” including under the Defense Production Act, to have N95 respirators and the ASTM 80% face coverings available for nationwide worker protection. Id.
Whichever approach OSHA takes by March 15, 2021, it will face political opposition, and the legal opposition to any ETS likely will be fierce. In the meantime, employers should consider that President Biden’s Protecting Worker Health and Safety Executive Order also called for OSHA to ramp up its enforcement activities, including to protect workplaces with a large number of people at risk. 86 FR at 7211, §§ 2(c), (d). Thus, regardless of whether OSHA issues a nationwide ETS, employers who have experienced multiple cases of COVID-19 or are in industries with higher numbers of cases would be well-advised to have in place a COVID-19 prevention plan, with well-recognized physical distancing, sanitation, mask-wearing, and other now-standard COVID-19 prevention controls.
For more information or advice on the various state-plan states’ COVID-19 standards, OSHA standards and guidance, and enforcement nationwide, please contact the author. Additional information regarding working during the COVID-19 pandemic can be found on this blog and in the Jenner & Block COVID-19 Resource Center.
 Asbestos Info. Ass’n v. OSHA, 727 F.2d 415 (5th Cir. 1984) (ETS rejected because OSHA did not sufficiently support its conclusion that 80 people would die in the next six months or that the ETS was necessary given its existing respiratory standard).
 State plans are authorized under Section 18 of the OSH Act and must have regulations “at least as effective” as federal OSHA.” 29 U.S.C. § 667(c).
 OSHA COVID-19/Regulations webpage (last viewed 2/24/2021).
 Each of the formerly issued OSHA guidance documents has a banner stating, “Given the evolving nature of the pandemic, OSHA is in the process of reviewing and updating this document. These materials may no longer represent current OSHA recommendations and guidance. For the most up-to-date information, consult Protecting Workers Guidance [which was issued on January 29, 2021 and is discussed below.].”
Virginia’s COVID-19 Workplace Safety Regulation Is Permanent: A National Model
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
In July 2020, we reported that Virginia, an OSHA State-plan State, was the first in the country to issue a workplace safety regulation specifically addressing COVID‑19. At that time, the Virginia standard was issued as a temporary emergency rule, which would expire by January 27, 2021, unless made permanent. On the expiration date, Governor Northam formally approved a revised version of the temporary emergency rule, 16VAC25-220, “Final Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID‑19, applicable to all regulated workplaces in the Commonwealth (the “Permanent Standard”). Although described as permanent, by its own terms, within 14 days of the expiration of the Governor’s temporary declaration for the COVID‑19 pandemic, the Virginia Department of Labor and Industry’s Safety and Health Codes Board must meet to determine whether there remains an ongoing need for the COVID-19 workplace safety regulation. § 20B. The Permanent Standard is immediately effective, except that the program documentation and training requirements go into effect on March 26, 2021. The Permanent Standard will be enforced by the Department of Labor and Industry operates the Virginia State Plan for Occupational Safety and Health (“VOSH”).
Like the temporary standard, the Permanent Standard requires all employers to implement certain basic protections and procedures and then increases the protective measures based on whether the “exposure risk level” for the workplace or specific job tasks should be classified as very high, high, medium, or lower. Outside the healthcare industry, first responders, mortuary services, and correctional and detention facilities, Virginia places of employment and job tasks are categorized as “medium” or “lower” exposure risk levels. The difference between “medium” and “lower” exposure risk levels is whether the work requires “more than minimal occupational contact within six feet with other employees, other persons, or the general public …”. § 30.
In the Permanent Standard, “minimal occupational contact” is defined to mean “no or very limited, brief and infrequent contact,” such as remote work, passing in a hallway while six feet apart, and long distance truck driving. § 30. Thus, although most office workspaces would be categorized as lower risk, if employees must even pass in the hallway within six feet of each other, the workplace or task is elevated to the medium exposure level, with its increased program documentation and training requirements. Other examples of the lower exposure levels are single workers behind impermeable clear plastic walls at convenience stores, telecommuting and telework, package delivery “that allows employees to maintain physical distancing from other employees, other persons, and the general public;” and workplaces that have “mandatory physical distancing of employees” from each other and all other persons. Id. Face coverings for employees within the six-foot physical distance parameter does not change the workplace or job task from a “medium” to a “lower” exposure risk level. Id.
The Permanent Standard’s basic requirements for all employers continue be as established in the temporary standard:
- Exposure assessment and determination.
- Employee notification and access to exposure and medical records.
- Return to work policies after being known or suspected to be infected.
- Engineering, administrative, and work practice controls, including physical distancing, face coverings, and sanitation and disinfection.
- Written infectious disease plans and preparedness plans for all employers unless they only have employees with lower levels of exposure or are a small business (fewer than eleven employees) at the medium exposure level.
The principal changes made by the Permanent Standard include:
- While the regulation continues to allow the employer to demonstrate compliance if they comply with equally protective mandatory or non-mandatory CDC guidelines, Virginia’s Commissioner of Labor and Industry must consult with the State Health Commissioner “for advice and technical and before making a determination related to compliance with CDC guidelines.” § 10.E. In addition, an enforcement action cannot be brought against an employer if PPE is not readily available “on commercially reasonable terms” and the employer makes a “good faith effort” to acquire the PPE on such terms. § 10.C.
- “Face covering” is now defined to match the more recent CDC guidance, i.e., an item “made of two or more layers of washable, breathable fabric that fits snugly against the sides of the face without any gaps, completely covering the nose and mouth and fitting securely under the chin. Neck gaiters made of two or more layers of washable, breathable fabric, or folded to make two such layers, are considered acceptable face coverings. Face covering shall not have exhalation valves or vents, which allow virus particles to escape, and shall not be made of material that makes it hard to breathe, such as vinyl.” § 30. A face covering must always cover the nose and mouth and extend under the chin. § 40.I. A face covering is always required, at a minimum, if employees have brief contact without six feet of distancing. For example, if employees pass in the hallway within six feet of each other, they must wear face coverings. § 40.H.
- While a face shield cannot be considered a substitute for a face covering or any form of PPE except for eye protection, a face shield, meeting certain specifications, may be worn if a face covering cannot be worn “due to medical contraindications.” § 40.J.
- Acceptable physical distancing can include an office or another solid floor to ceiling barrier only if “six feet of travel distance is maintained from others around the edges or sides of the wall as well.” § 30.
- Redefinition of “signs” and “symptoms” of COVID‑19. “Signs of COVID‑19” include only “medical conditions that can be objectively observed,” such as fever, breathing trouble, cough, vomiting, new confusion, bluish lips or face. § 30. On the other hand, “symptoms of COVID‑19” are medical conditions “that are subjective to the person and not observable to others,” such as chills, fatigue, and new loss of taste or smell. § 30. Persons are “suspected to be infected” if they have signs or symptoms.
- Provisions in the temporary regulation requiring that the employer have flexible sick leave policies, consistent with public health guidance, are deleted.
- Conforming to changes in CDC guidelines since the temporary standard was issued, the Permanent Standard changes the exposure period requiring notice, to employees, other employers’ employees, and the building or facility owner, of a positive case of a fellow employee, subcontractor, contract employee, or temporary employee “present at the place of employment.” The time period of exposure requiring notice now is from 2 days before through 10 days after symptom onset or a positive test reflecting newer CDC guidance. § 40.B.7.
- Employers must contact the Virginia Department of Health “when the worksite has had two or more confirmed cases of COVID‑19 of its own employees present at the place of employment within a 14-day period testing positive for [the virus] during that 14-day time period.” § 40.B.7.d. This report must be made within 24 hours of the employer’s knowledge and additional cases must continue to be reported “until the local health department has closed the outbreak.”
- Employers generally can no longer rely on a test-based strategy for return to work after an employee has been infected. Instead, symptomatic employees can return 10 days after symptom onset, if they are fever-free for 24 hours and respiratory symptoms have improved. § 40.C.1. However, employees with “severe illness” “may warrant extending duration of isolation for up to 20 days after symptom onset” and employees “who are severely immunocompromised may require testing to determine when they can return to work.” The employer “shall consider consultation with infection control experts” and VOSH will identify severe illnesses and severe immunocompromised conditions. Id.
- Employers can rely only on an RT-PCR test for viral RNA to determine that an asymptomatic employee is a known infected person who must be excluded from work for 10 days after the date of the first positive test. § 6.
- Employers must pay, or have their health insurance plans pay, for the cost of testing “for return to work determinations;” however, such testing is not required except in the case of the severely immunocompromised. § 40.C.3.
- A new “hierarchy of hazard controls” is required when multiple employees are occupying a vehicle for work purposes, but. First, the employer must attempt to eliminate the need to share vehicles. § 40.F. If sharing of vehicles must occur, the employer must provide respiratory protection, such as N95 respirators, instead of face masks, unless the employer can show that PPE is not “readily available” for those outside of the health care and first responder workplaces.
- More detailed requirements are provided for ventilation systems when job tasks or hazards are at very high or high levels of exposure (§ 50.B) or at medium levels of exposure (§ 60.B).
- As provided in the temporary standard, except for lower levels of exposures and small business at medium levels, employers must have a written Infectious Disease Preparedness and Response Plan (the “Plan”). The Permanent Standard adds that those Plans must address “situations where employees work during higher risk activities involving potentially large numbers of people or enclosed work areas such as at large social gatherings, … parties, restaurants, bars, hotels, … movie theaters, rest stops, airports, bus stations, train stations, … airplanes, etc.” § 70.C.3.a.(4). The Plan also must, consistent with privacy laws, address individual risk factors for severe disease, including age. at § 70.C.3.b.
- Extensive training and documentation of training continues to be required for all employees, except if they are only at a lower level of exposure. § 80.A. The Permanent Standard clarifies that such training must include: any CDC guidelines or Virginia guidance documents being relied upon in lieu of a specific provision in the Permanent Standard (§ 80.B.2.); risk factors for severe illness, including “advancing age” (§ 80.B.5.); strategies for extending use of PPE when it is in short supply (§ 80.B.8.f.); heat-related illness prevention, including when using PPE and face coverings (§ 80.B.8.g.); and additional methods for employee-specific training certification for all those at high or very high exposure levels (§ 80.G.).
- For employees only at the lower level of exposure, training requirements are not as rigorous, but now must include the “benefits of wearing face coverings.” § 80.G.5.
- The Permanent Standard provides that although an employee cannot be retaliated against for wearing a face covering that meets the requirements of the Standard and does not create a hazard, an employer can still “establish . . . and enforc[e] legally permissible dress code or similar requirements addressing the exterior appearance of [PPE] or face coverings.” § 90.B.
- The Permanent Standard continues to allow employees to raise “a reasonable concern” to the employer, its agent, other employees, a government agency, or “to the public such as through print, online, social, or any other media,” thus making an employer potentially liable for a VOSH citation for enforcing its internal publication policies and procedures. See 90.C.
- The Permanent Standard concludes by stating that it does not “limit an employer from refusing to do work or enter a location because of a reasonable fear of illness or death,” except pursuant to 16VAC25-60-110.
The Governor’s announcement of the Permanent Standard described VOSH’s enforcement approach. Upon receiving a complaint, VOSH will work with the employer to resolve the issue without an investigation. If VOSH has serious concerns or the employer is subject to multiple complaints, VOSH will open a formal investigation leading to citations or other enforcement action. To date, less than 1% of all complaints have been formally investigated, and less than one-third of those formally investigated have received a citation.
As the COVID‑19 workplace safety standard longest in effect, the Virginia standard has served as a model for other State-plan States and for the Biden Administration. Indeed, in his February 4, 2021, Senate confirmation hearing for the position of Secretary of Labor, he praised the Virginia Permanent Standard. If OSHA issues its own emergency temporary standard, it likely will have many of the elements in the Virginia Permanent Standard, which arise from, but significantly expand standard elements long found in U.S. OSHA guidance.
For more information or advice on the Virginia COVID‑19 Permanent Standard, please contact the author. Additional information regarding working during the COVID‑19 pandemic can be found on this blog and in Jenner & Block’s COVID‑19 Resource Center.
 All citations are to subsections of the Permanent Standard at 16VAC25-220, unless otherwise specified.
Biden Administration Confirms COVID-19 Liability Protections for Federal Contractors, Employees and Volunteers
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On February 16, 2021, Acting Secretary of the U.S. Department of Health & Human Services (“HHS”) Norris Cochran, published in the Federal Register the Sixth Amendment to the Declaration Under the Public Readiness and Emergency Act [“PREP Act”]. 86 Fed. Reg. 9516-9520 (Feb. 16, 2021). This is the second amendment to the Declaration issued since President Biden took office and continues the Trump Administration’s practice of providing broad liability protection for those responding to COVID‑19.
The Declaration originally was issued on January 31, 2020, by former HHS Secretary Azar. Pursuant to the PREP Act, the Declaration allows the Secretary to extend liability immunity to “covered persons” for taking allowed actions with respect to “covered countermeasures,” in prescribed circumstances, all as declared by the Secretary. A “covered person” is “immune from suit and liability under Federal and State law for all claims of loss caused by, arising out of, relating to, or resulting from the administration or use of a covered countermeasure,” which includes FDA-authorized COVID‑19 vaccines and tests. See 42 U.S.C. § 247d‑6d(a)(1). Under the PREP Act, “covered persons” include “manufacturers,” distributors,” “program planners,” “qualified persons,” and their “officials, agents and employees.” 42 U.S.C. § 247d-6d(i)(2).
In the Sixth Amendment to the Declaration, the Acting Secretary augmented the “covered persons” protected from liability with an additional category of “qualified persons.” Although the Unites States is, by statute, a “covered person,” the structure of the statutory provision defining “covered person” does not make clear that direct contractors and employees of the United States are similarly covered. See 42 U.S.C. § 247d-6d(i)(2). To clear up that ambiguity, the Sixth Amendment provides that a “qualified person” includes “any Federal government employee, contractor or volunteer who prescribes, administers, delivers, distributes or dispenses a Covered Countermeasure,” if the federal department or agency “has authorized or could authorize” that person “even if those authorized duties or responsibilities ordinarily would not extend to members of the public or otherwise would be more limited in scope than the activities such employees, contractors or volunteers are authorized to carry out under this declaration.” 86 Fed. Reg. at 9519 (Feb. 16, 2021).
This expanded liability protection is fully consistent with and will support President Biden’s National Strategy for the COVID‑19 Response and Pandemic Preparedness, which envisions federal vaccination sites and “deploy[ing] thousands of federal staff, contractors and volunteers to support state and local vaccination efforts.” See National Strategy, pp. 9, 52.
EPA Approves Additional Pesticide Products to Use as COVID-19 Disinfectants
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
U.S. EPA recently has approved two new products for use on surfaces in the battle to kill SARS-CoV-2, the virus that causes COVID‑19.
On February 10, 2021, EPA announced that it had approved a copper alloy product, made of at least 95.6 % copper, as a product that kills the virus upon contact. Thus, all products containing the copper alloy product can be sold as providing long-term disinfection against the virus. Specifically, EPA’s approved use on surfaces of the copper alloy product registered to the Copper Development Association (“CDA”) [EPA Reg. No. 82012‑1]. CDA’s registration had previously been approved under the Federal Insecticide, Fungicide & Rodenticide Act (“FIFRA”), for more than a decade, albeit for other purposes. Products using the approved antimicrobial copper alloys will be added to EPA’s List N appendix of supplemental antimicrobial products that can be used to kill SARS‑CoV‑2 virus particles that contact surfaces treated with the copper alloys.
Perhaps anticipating EPA’s action, on February 1, 2021, New York State Senator Timothy Kennedy sponsored a bill, S3905, in the New York State Senate to require the use of EPA’s approved copper alloy product in all touch surfaces in new, publicly funded construction projects. As of this writing, the bill is in committee for consideration. On January 7, 2021, Assembly Member Marianne Buttenschon had introduced the same language in a bill, A998, in the New York Assembly, where it also is being considered in committee.
In addition to the copper alloy surface approval, on January 15, 2021, EPA issued a FIFRA Section 18 emergency exemption for an antiviral treatment of the air, Grignard Pure, which can be used in indoor spaces to kill SARS-CoV-2. Section 18 of FIFRA allows EPA to approve, on an emergency basis, federal agencies’ and states’ petitions to allow the use of pesticides for previously unregistered uses. The emergency exemption for public health reasons lasts only for a year. To date, EPA has issued only two emergency exemptions to address SARS-CoV-2.
Most recently, on January 15, 2021, EPA granted emergency exemptions to Georgia and Tennessee for the use of Grignard Pure, which forms a mist that contains triethylene glycol (“TEG”) as the active ingredient that kills the virus upon contact in the air. TEG is an ingredient commonly used in fog machines, but only for its theatrical effects, not as a pesticide. EPA stated that, the product can be applied only by a “trained professional in certain indoor spaces in Georgia and Tennessee where high occupancy, prior ventilation or other factors make it challenging to follow public health guidance and maintain appropriate social distancing.” Based on laboratory testing, Grignard Pure, when activated, “will continuously inactivate 98% of airborne SARS‑CoV‑2 particles,” EPA explained. Using Grignard Pure does not eliminate the need for mask wearing and social distancing, EPA warned.
Prior to the Grignard Pure emergency exemption, the only other FIFRA Section 18 emergency exemption that EPA had granted in the fight against SAR-CoV‑2 was a product called SurfaceWise2, which was approved for the use in American Airlines airport facilities and airplanes in Texas, Oklahoma, and Arkansas, and in limited health facilities in Texas. SurfaceWise2, manufactured by Allied BioScience, is a surface coating that can be used with electrostatic sprayers, that inactivates the virus within two hours of its application. That one-year exemption currently expires in August 2021.
EPA Retains Existing Air Quality Standards for Particulate Matter
By Allison A. Torrence
On December 7, 2020, EPA completed its five-year review of the National Ambient Air Quality Standards (“NAAQS”) for Particulate Matter (“PM”), a criteria air pollutant under the Clean Air Act. In a final action set to be published in the Federal Register in the coming days, EPA decided to retain the current NAAQS for PM, which have been in place since 2012.
PM is measured in two categories:
- Fine particles, or PM2.5, which are particles with a diameter of 2.5 micrometers and smaller; and
- Coarse particles, or PM10, which are particles with a diameters between 2.5 and 10 micrometers.
PM2.5, emitted from numerous sources including power plants, vehicle exhaust, and fires, is generally the more significant health concern, as it has been linked to serious respiratory disease, increased mortality rates, and recent studies have even linked a history of PM2.5 exposure to increased COVID-19 mortality rates.
The Clean Air Act requires EPA to set both primary and secondary NAAQS for PM2.5 and PM10. Primary NAAQS must be set at levels that will protect public health and secondary NAAQS must be set at levels that will protect public welfare. All NAAQS must be reviewed by EPA every five years. EPA has regulated PM emissions through the NAAQS since 1971, and revised the PM NAAQS four times since then—in 1987,1997, 2006 and 2012.
The current primary and secondary NAAQS for PM are as follows:
According to EPA data, there are currently 16 counties in the U.S. currently in nonattainment of the primary PM2.5 NAAQS and 23 counties currently in nonattainment of the primary PM10 NAAQS.
EPA’s decision to keep the existing PM NAAQS comes despite warnings from its own scientists. Notably, in the Policy Assessment for the Review of the National Ambient Air Quality Standards for Particulate Matter, one of the technical documents used by EPA in support of its final decision, EPA scientists concluded that:
“When taken together, we reach the conclusion that the available scientific evidence, air quality analyses, and the risk assessment…can reasonably be viewed as calling into question the adequacy of the public health protection afforded by the combination of the current annual and 24-hour primary PM2.5 standards.”
This Policy Assessment also states that under the current PM2.5 standards, long-term PM2.5 exposures are estimated to be associated with as many as 45,000 total deaths per year. However, the Policy Assessment also noted certain uncertainties and limitations in the evidence and risk assessments that could lead the agency to decide to keep the existing standards.
EPA received over 60,000 public comments on the PM NAAQS proposal, which was closely watched by environmentalists and industry alike. Because of this close public interest, this may be an issue that will be reviewed sooner than the normal five-year review once the Biden Administration begins in 2021. As always, we will keep you updated on any further developments at the Corporate Environmental Lawyer.
California OSHA Issues Comprehensive and Demanding COVID-19 Emergency Regulation
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
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.
Amazon Workers’ COVID-19 Workplace Safety Lawsuit Dismissed
By Gabrielle Sigel and Leah M. Song
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.
CDC Changes Definition of “Close Contacts” for Contact Tracing Purposes: What Does This Mean for Employers?
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
I. The New CDC Definition of Close Contacts
On October 21, 2020, the CDC published a new definition of “Close Contact” for contact tracing purposes. This new definition will affect how employers determine Close Contacts for purposes of internal contract tracing to limit and prevent exposures and spread of the coronavirus within the workplace. The new CDC definition can be found here: https://www.cdc.gov/coronavirus/2019-ncov/php/contact-tracing/contact-tracing-plan/appendix.html#contact Quoting from the CDC link:
“Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period* starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.
* Individual exposures added together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 minutes). Data are limited, making it difficult to precisely define “close contact;” however, 15 cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation. Factors to consider when defining close contact include proximity (closer distance likely increases exposure risk), the duration of exposure (longer exposure time likely increases exposure risk), whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding), if the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting), and other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors). Because the general public has not received training on proper selection and use of respiratory PPE, such as an N95, the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE. At this time, differential determination of close contact for those using fabric face coverings is not recommended.”
Previously, CDC had defined “Close Contact” to mean someone who spent at least 15 consecutive minutes within six feet of a person confirmed to be have COVID-19, the disease caused by SARS-CoV-2.
II. What Does the New Definition Mean for Employers (Outside the Healthcare Industry)
Under CDC guidance, an employer should quarantine any Close Contact employee, i.e., the Close Contact employee should not be allowed on the worksite and should be told to quarantine per CDC guidance. If the Close Contact develops symptoms or tests positive, in which case the Close Contact becomes an infected person who is in isolation per CDC guidance. Notably, the CDC also states that, at this time, whether an infected person or the exposed person was wearing a mask during the exposure period does not affect the determination of a Close Contact for these purposes. However, the CDC does recognize that the determination of a Close Contact is “difficult to precisely define” and suggests that other factors may be considered, such as whether the infected person had symptoms at the time of exposure, whether the infected person was engaged in activities “likely to generate respiratory aerosols,” and environmental conditions, such as whether the exposure occurred indoors and the adequacy of indoor ventilation.
Per CDC guidance, the quarantine period is for 14 days, which typically means that the employee is not at the worksite, but can work remotely if their circumstances, including any labor agreement, so allows. The CDC recognizes, however, that a mandatory worksite quarantine period for Close Contacts could cause severe consequences for employers of “Critical Infrastructure Workers,” typically as defined by the Cybersecurity & Infrastructure Security Agency (“CISA”). Thus, the CDC provides an exception to the 14-day worksite quarantine for asymptomatic Critical Infrastructure Workers – they may continue to work at the standard workplace(s) if they adhere to protective measures prior to and during their work shift, including: pre-screening and regular monitoring for fever and other symptoms; wearing a face mask “at all times while in the workplace;” maintaining at 6-foot distance and practice social distancing “as work duties permit;” and working in areas that are frequently cleaned, including common areas and commonly shared equipment.
Although the CDC suggests that determinations of close contact can be affected by factors other than proximity and duration of exposure, it provides no guidance on how to account for those other factors in the course of the determination. Most employers are going to need to rely on clearly defined and easily understood rules, so that a workplace contact tracing program can be appropriately administered. Thus, most employers likely will continue to rely only on the more easily determined proximity and duration factors.
As a result of CDC’s change to the definition of Close Contact to include anyone in close proximity within a cumulative 15-minute period, rather than a consecutive 15-minute period, more employees may be designated as Close Contacts and, therefore, more employees may need to be precluded from working on-site, particularly those who cannot be classified as Critical Infrastructure Workers. Although an employer typically cannot prevent an exposure from occurring outside the workplace, an employer’s best “defense” to potential coronavirus exposure in the workplace, and the resulting Close Contact designation, is adherence to and enforcement of 6-foot distancing for all workplace activities, both during more social activities (such as in breakrooms, cafeterias, restrooms) and during job tasks.
Other Related CDC Sites:
Questions? Please contact Gabrielle Sigel, 847-710-3700, GSigel@jenner.com
Jenner & Block’s Corporate Environmental Lawyer will continue to update on these matters, as well as other important COVID‑19 related guidance, as they unfold.
Environmental Groups Allege EPA Failed to Engage in Endangered Species Act Consultation Before Implementing COVID-19 Enforcement Discretion Policy
By Leah Song and Steven Siros
On August 18, 2020, the Center for Biological Diversity, Waterkeeper Alliance, Inc., and Riverkeeper, Inc. (“Conservation Groups”) filed a new lawsuit in the U.S. District Court for the Southern District of New York against the U.S. Environmental Protection Agency and Administrator Wheeler (“EPA”) for failing to comply with their mandatory duties under the Endangered Species Act (“ESA”) in connection with promulgation of EPA’s COVID-19 enforcement discretion policy. More specifically, the Conservation Groups argued that the EPA failed to “initiate and complete ESA Section 7 consultation to ensure that EPA’s actions in response to the COVID-19 pandemic,” as described in the March 26, 2020 “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program” (“Temporary Enforcement Policy”), would not jeopardize any listed species or their habitats. An analysis of the Temporary Enforcement Policy can be found at Jenner & Block’s Corporate Environmental Lawyer blog here.
Other environmental groups had previously challenged EPA’s Temporary Enforcement Policy, claiming that EPA was unreasonably delaying its response to a petition filed by the groups requesting that EPA issue an emergency rule requiring written notice from regulated entities that elect to suspend required environmental reporting and/or monitoring due to the COVID-19 pandemic. On July 8, 2020, Judge McMahon of the United States District Court for the Southern District of New York ruled that the Natural Resources Defense Counsel and other environmental organizations failed to show that they were injured by EPA’s purported “unreasonable delay” and therefore granted summary judgment in favor of EPA.
In this latest lawsuit, the Conservation Groups claim that EPA failed to engage in a required ESA Section 7 consultation prior to promulgating its Temporary Enforcement Policy. Notwithstanding that EPA’s Temporary Enforcement Policy explicitly states that regulated entities should “make every effort to comply with their environmental compliance obligations” and merely provides guidance on how EPA’s plans to exercise its long-held enforcement discretion in light of the challenges posed by the COVID-19 pandemic, the Conservation Groups’ complaint explains how the regulatory programs affected by the Temporary Enforcement Policy implicate the interests of listed species and their habitat as those programs are “intended to limit pollution and prevent adverse environmental harm.” For example, the complaint asserts that suspension of Clean Water Act’s National Pollutant Discharge Elimination System (“NPDES”) effluent sampling program “potentially affects listed species and critical habitats by allowing unmonitored and unreported (and hence unrestricted) contamination of waterways such species depend on.”
The Section 7 consultation process is meant to “insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined . . . to be critical.” 16 U.S.C. § 1536(a)(2). The Section 7 consultation process must be initiated at “the earliest possible time” for any project that “may affect” listed species. 50 C.F.R. § 402.14(a). The Conservation Groups allege that the Temporary Enforcement Policy “clearly meets the ESA’s ‘may affect’ threshold for triggering the agency’s Section 7 consultation obligations.” While the Conservation Groups recognized the unique challenges posed by COVID-19, they stated “this does not mean that EPA may simply ignore its vitally important, and legally required, ESA Section 7 duties and disregard potential impacts on imperiled species and their critical habitats.” They argue there is no evidence that the EPA undertook Section 7 consultation with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, or even followed the emergency consultation process provided for in the ESA.
EPA announced that it will terminate its reliance on the Temporary Enforcement Policy on August 31, 2020 (although EPA stated that the termination in no way limits its ability to exercise enforcement discretion on a case-by-case basis). EPA’s termination announcement was previously discussed on Jenner & Block’s Corporate Environmental Lawyer blog here. In light of EPA’s announcement, several State Attorneys Generals that had also filed a complaint challenged EPA’s Temporary Enforcement Policy indicated that they intend to dismiss their lawsuit so long as EPA terminates its reliance on the policy on or before August 31st. In an attempt to preempt what is likely to be a motion to dismiss on mootness grounds, the Conservation Groups allege that “there is no assurance that the policy will be rescinded by that date, particularly given the recent surge in COVID-19 cases,” and that their case should therefore be allowed to proceed.
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.
State Court Legal Challenge to Illinois Gov. Pritzker’s COVID‑19 Executive Orders
By Leah Song and Gabrielle Sigel
Although Illinois Governor Pritzker has scored successes in the federal lawsuits brought against his COVID‑19 Executive Order actions, he has not fared as well, thus far, in state court.
Back on April 23, 2020, Illinois State Representative (R) Darren Bailey filed a complaint in the Clay County Circuit Court with two counts for declaratory judgment and a request for injunction, alleging that Governor Pritzker’s extension of the stay-at-home order exceeded the authority afforded to the Governor under the Illinois Emergency Management Agency Act (“IEMAA”). Specifically, the lawsuit alleged that the IEMAA grants certain enumerated powers to the Illinois Governor following the proclamation of a “public health emergency,” but that Section 7 of the IEMAA limits these authorities to “a period not to exceed 30 days” following the declaration. Thus, Rep. Bailey alleged that any extension of the stay-at-home order 30 days after the original Executive Order was void. On the same date that he filed his complaint, Rep. Bailey filed a motion seeking a temporary restraining order (“TRO”) to enjoin Governor Pritzker from enforcing the stay-at-home order against him or entering any further executive orders that would limit Rep. Bailey’s ability to travel within the state.
On April 27, 2020, Illinois Circuit Court Judge Michael McHaney temporarily blocked enforcement of Governor Pritzker’s stay-at-home order by granting Rep. Bailey the TRO, solely as to him. In its order granting the TRO, the circuit court found that Rep. Bailey had “shown he will suffer irreparable harm if the [TRO] is not issued” and had “shown he has no adequate remedy at law or in equity in that absent a [TRO] being entered, plaintiff, will continue to be isolated and quarantined in his home.” On that same day, Governor Pritzker filed a notice of interlocutory appeal to the Appellate Court of Illinois, Fifth Judicial District, requesting that the court reverse and vacate Judge McHaney’s decision and dissolve the TRO. On April 30, 2020, Rep. Bailey filed in the Fifth District Appellate Court a consent to entry of order vacating the TRO and remanding the case back to the circuit court, which the court agreed to do on May 1, 2020.
On remand, Rep. Bailey filed an amended complaint on May 13, 2020, consisting of four counts seeking the follow relief:
- “Declaratory judgment finding that the April 30 Proclamation is void for failing to meet the definition of a disaster as defined in the IEMAA;”
- “Declaratory judgment finding that Pritzker had no authority to utilize emergency powers after April 08, 2020;”
- “Declaratory judgment finding that the Illinois Department of Public Health Act governs the conduct of the state actors in this context;” and
- “[I]njunctive relief.”
Shortly after, on May 18, 2020, Rep. Bailey filed a motion for summary judgment. Before the hearing on the summary judgment motion, the Governor removed the case to federal court, but it was ultimately remanded. The U.S. Department of Justice got involved in this legal battle, filing a brief in federal court arguing that this case belonged in state court.
Following the remand from federal court, Rep. Bailey filed a notice of hearing on his summary judgment motion. On July 2, 2020, Judge McHaney ruled in favor of Rep. Bailey and held that Governor Pritzker’s COVID-19 Executive Orders were void and granted summary judgment on two counts (“July 2 Order”). The court concluded that the “30-days of emergency powers provided in Section 7 of IEMAA … lapsed on April 08, 2020,” such that all COVID-19 Executive Orders after April 8, 2020 are “void ab initio.” Further, the Governor had no authority “to restrict a citizen’s movement or activities and/or forcibly close business premises.” The court also granted Rep. Bailey’s “oral request that his Amended Complaint be a representative action” such that this ruling shall “apply to all citizens of the State of Illinois.”
The court must rule on the remaining issue of whether COVID-19 “meets the definition of a disaster as defined in the IEMAA.” Until then, the July 2 Order is neither enforceable nor appealable. The Illinois Attorney General moved to dismiss the remaining count and a hearing was set for July 17, but it was vacated by agreement. On July 22, Rep. Bailey filed a motion for leave to amend and add an additional count, seeking a declaratory judgment that a “public health emergency” as defined by the IEMAA did not exist in Clay County on June 26, 2020, when Governor Pritzker issued a proclamation that a “public health emergency” existed within all Illinois counties as a result of COVID-19.
Most recently, on August 5, 2020, Rep. Bailey filed a Petition for Adjudication for Indirect Civil Contempt, seeking to hold Governor Pritzker in civil contempt of court for disregarding the July 2 Order and continuing to issue COVID-19 Executive Orders. Judge McHaney ordered Governor Pritzker to appear in the Clay County Courthouse on August 14, 2020 to “show cause why he should not be held in indirect civil contempt and sanctioned for his willful disregard with the previously entered order of the Court.” The order stated that failure to appear may result in a warrant for the Governor’s arrest. But on August 11, 2020, the Illinois Supreme Court issued an order to stay the contempt hearing set for this Friday.
On July 23 and 24, 2020, Rep. Bailey’s attorney filed similar cases in various counties across the state, including Bond, Clinton, Edgar, Richland, and Sangamon counties, all seeking a declaratory judgment that a “public health emergency” as defined by the IEMAA did not exist as of June 26, 2020 and to void the Governor’s Executive Orders. . See Craig v. Pritzker, No. 2020-MR-589 (Sangamon Cty. Cir. Ct., Ill.); Allen v. Pritzker, No. 2020-MR-45 (Edgar Cty. Cir. Ct., Ill.); DeVore v. Pritzker, No. 2020- MR-32 (Bond Cty. Cir. Ct., Ill.); Gorazd v. Pritzker, No. 2020-MR-79 (Clinton Cty. Cir. Ct., Ill.); English v. Pritzker, No. 2020-MR-48 (Richland Cty. Cir. Ct., Ill.).
On August 11, 2020, in response to a motion for a supervisory order filed by the Illinois Attorney General on behalf of the Governor, the Illinois Supreme Court consolidated, in the Sangamon County Circuit Court before Judge Grischow, all of the cases filed in various counties, including Rep. Bailey’s lawsuit. Sangamon County includes the city of Springfield, the Capitol of Illinois.
An analysis of the Governor’s successes upholding his Executive Orders in federal court can be found here. 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.
Federal Courts Beat Back Legal Challenges to Illinois Gov. Pritzker’s COVID‑19 Executive Orders
By Leah Song and Gabrielle Sigel
Several state and federal court lawsuits have been brought challenging Illinois Governor Pritzker’s proclamations and executive orders related to COVID‑19 (“Executive Orders”). In federal court, in contrast with state court, the Governor has been successful defending his Executive Orders. Most recently, on July 29, 2020, in a written opinion issued on August 1, 2020, the Village of Orland Park, and certain of its residents lost their motion to obtain immediate invalidation of the Executive Orders, when Judge Andrea Wood, of the United States District Court for the Northern District of Illinois (“the Northern District”), found that their claims had less than a “negligible likelihood” of succeeding. Village of Orland Park v. Pritzker, No. 20-cv-03528.
As background to the Village’s lawsuit, in response to the COVID‑19 pandemic, Governor Pritzker issued Executive Orders on March 9, March 20, April 1, April 30, May 29, and June 26, 2020 declaring a statewide public health disaster and restricting business operations, gatherings above a certain size, and other measures consistent with both stay-at-home and reopening orders. On June 16, 2020 the Village of Orland Park, the owner of a restaurant in the Village, and two Village residents (“Plaintiffs”) sued Governor Pritzker seeking to have the federal court issue a temporary restraining order and preliminary injunction prohibiting enforcement of the Executive Orders.
Plaintiffs’ complaint alleged that the Executive Orders violate their due process rights, the equal protection clause of the Fourteenth Amendment, and their procedural and substantive rights under the Illinois constitution and the Illinois Department of Public Health Act. The Village claimed that the Executive Orders illegally attempt to prevent the home-rule municipality from implementing its own order, allowing a faster reopening. The restaurant owner claimed that the Executive Orders caused economic losses. The individual plaintiffs claimed that the Executive Orders caused personal isolation and restricted medically necessary exercise.
Based on Plaintiffs’ verified complaint, the facts of which were uncontested by the Governor at that early stage of proceedings, the court heard oral argument on June 30, 2020. The court ruled that Plaintiffs did not meet the standards for injunctive relief, which require them to show a “greater than negligible likelihood of success on the merits,” and that the balance of harms Plaintiffs may suffer as a result of their claimed injury are greatly outweighed by burdens on the Governor and the public interest. The court began its analysis of the merits of Plaintiffs’ claims by finding that “the COVID‑19 pandemic constitutes the very sort of extraordinary threat to public health and safety contemplated by the Supreme Court in Jacobson [v. Massachusetts, 197 U.S. 11 (1905)].” Slip op. at 13. Pursuant to the standards in Jacobson, because Plaintiffs could not show that “the Executive Orders have a real or substantial relationship to preventing the spread of COVID‑19 or beyond all question plainly and palpably invade Plaintiffs’ constitutional rights,” Plaintiffs’ federal claims did not have more than a negligible chance of success. Id.
Moreover, even without relying on deference to state authority during a public health emergency recognized in Jacobson, Judge Wood also was unpersuaded by the merits of any of Plaintiffs’ federal claims when analyzed based on “traditional constitutional analyses.” Slip op. at 14. With respect to Plaintiffs’ procedural and substantive due process claims, while the complaint was unclear as to the liberty or property interests at stake, the court considered that Plaintiffs “may be asserting rights to work, rights to travel, or rights to freedom of association.” Slip op. at 15. However, the court found that Plaintiffs failed to show that they were deprived of those interests without due process of law. For example, the court reasoned that “there is no constitutional procedural due process right to state-mandated procedures.” Id. Even if Plaintiffs “are ultimately correct that the Governor should have complied with the procedures…in implementing his response to COVID‑19, they still will not have established a federal constitutional violation.” Id. The court also found that Plaintiffs could not establish that their rights were, in fact, violated. The court dispensed with Plaintiffs’ equal protection claim by noting the “many rational bases for the distinctions drawn among different types of business in the Executive Orders.” Slip op. at 23. The court also found that the Governor’s defense under the doctrine of sovereign immunity under the Eleventh Amendment to the U.S. Constitution barred all of the state law claims in federal court. Slip op. at 27.
After finding that Plaintiffs had less than a negligible chance of prevailing on the merits of their claims, the court considered the balance of harms to “further demonstrate[ ] that a preliminary injunction would be inappropriate.” Id. “Granting a preliminary injunction to Plaintiffs would do extraordinary damage to the state’s interest (and the public interest) in preventing the spread of COVID‑19…. On the other side of the balance, Plaintiffs have made no showing that they are experiencing substantial harm as a result of the Executive Orders at this time or that they are likely to experience substantial harm in the near future.” Slip op. at 28. Therefore, the court denied Plaintiffs’ motion for injunctive relief.
On July 27, 2020, the Governor moved to dismiss the entire case for failure to state a claim and lack of jurisdiction. Judge Wood arranged a briefing schedule on the Governor’s motion, and set September 29, 2020, for the next telephonic hearing in the case.
The ruling in Village of Orland Park follows three other successes for the Governor thus far in federal court. Judge John Lee heard the first Northern District case opposing the Governor’s Executive Orders in a case filed by The Beloved Church and its pastor against the Governor and the Stephenson County Sheriff and other officials on April 30, 2020. Cassell v. Snyders, No. 20-cv-50153. The church claimed that the Governor’s April 30, 2020 Executive Order violated the First Amendment’s Free Exercise Clause and three state statutes. On May 2, 2020, the court denied the church's request for injunctive relief. In a written decision issued on May 3, 2020, after finding, based on Jacobson, that the “traditional tiers of constitutional scrutiny do not apply” during an epidemic (slip op. at 14), the court ruled that the Order was a “neutral, generally applicable law” that is supported by a rational basis (slip op. at 26). The court then invoked the Governor’s Eleventh Amendment sovereign immunity with respect to the state law claims, and found the state law claims also unlikely to succeed on the merits. After this denial of injunctive relief in the district court, the church’s interlocutory appeal remains pending in the U.S. Court of Appeals for the Seventh Circuit as of this writing.
In a second federal case brought by a religious institution, in Elim Romanian Pentecostal Church v. Pritzker, No. 20‑cv‑02782, two churches contested the Governor’s Executive Order, which limited gatherings of more than ten people and imposed social distancing requirements, including on churches. They filed their complaint and a motion for emergency injunctive relief on May 7 and 8, 2020, respectively. The complaint challenged the Governor’s Order on federal and state constitutional grounds and state statutory grounds, but their motion for injunctive relief rested only on U.S. First Amendment rights. On May 13, 2020, Judge Robert Gettleman found that the Governor’s Order was both neutral and of general applicability; therefore, because it was supported by a rational basis, it was not unconstitutional. The court further found that “Plaintiffs’ request for an injunction, and their blatant refusal to follow the mandates of the Order are both ill-founded and selfish.” Slip op. at 11. Wheb the district court denied injunctive relief, the churches appealed to the Seventh Circuit. Their requests for injunctive relief were denied on appeal. In its June 16, 2020 decision, the Seventh Circuit, in part relying on Chief Justice Roberts’ concurring opinion to the denial of injunctive relief in a case brought by churches in the Ninth Circuit, ruled that “Illinois has not discriminated against religion and so has not violated the First Amendment.” Slip op. at 12. The Seventh Circuit then denied the churches’ request for rehearing en banc on July 27, 2020.
On June 15, 2020, several Illinois Republican Party organizations filed a complaint and motion for a TRO and preliminary injunction in the Northern District, alleging that because Governor Pritzker’s Executive Order prohibited gatherings greater than fifty people but exempted the free exercise of religion from this limit, the organizations’ rights under the First and Fourteenth Amendments were violated. Illinois Republican Party v. Pritzker, No. 20-cv-03489. Specifically, the Republican organizations alleged that, by exempting the free exercise of religion from the gathering limit, Governor Pritzker created an unconstitutional content-based restriction on speech. On July 2, 2020. Judge Sara Ellis, denied plaintiffs' motion for preliminary injunctive relief, ruling that their likelihood of success on the merits of their constitutional claims was less than negligible and the balance of harms weighed heavily against them. The court based its ruling on both Jacobson and a “traditional First Amendment analysis.” Slip op. at 9. The court found that “by exempting free exercise of religion from the gathering limit [in the Executive Order], the Order creates a content-based restriction.” Id. at 15. The court held, however, that the Executive Order survives “strict scrutiny” because the content-based restriction may “eliminate[ ] the increased risk of transmission of COVID‑19 when people gather while only exempting necessary functions to protect health, safety, and welfare and free exercise of religion. Therefore, the Governor has carried his burden at the stage in demonstrating that the Order is narrowly tailored to further a compelling interest….” Id. at 18. The political organizations filed for emergency relief on appeal. The U.S. Court of Appeals for the Seventh Circuit ruled that the Governor’s compelling interest in controlling the spread of COVID‑19 passed strict scrutiny, and denied their motion for emergency relief on July 3, 2020, and the U.S. Supreme Court denied plaintiffs’ emergency application for write of injunctive relief on July 4, 2020. Further proceedings on appeal to the Seventh Circuit are pending as of this writing.
Although the Governor scored successes in the federal lawsuits brought against his COVID‑19 actions, he has not fared as well thus far in state court. The state court litigation against the Governor’s Executive Orders will be addressed in a separate blog, to be published shortly.
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.