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February 22, 2021 Virginia’s COVID-19 Workplace Safety Regulation Is Permanent: A National Model

Sigel

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

Covid-19

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.[1] 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:

  1. Exposure assessment and determination.
  2. Employee notification and access to exposure and medical records.
  3. Return to work policies after being known or suspected to be infected.
  4. Engineering, administrative, and work practice controls, including physical distancing, face coverings, and sanitation and disinfection.
  5. 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.

 

[1] All citations are to subsections of the Permanent Standard at 16VAC25-220, unless otherwise specified.

CATEGORIES: COVID-19

PEOPLE: Gabrielle Sigel

February 16, 2021 Biden Administration Confirms COVID-19 Liability Protections for Federal Contractors, Employees and Volunteers

Sigel

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

Covid-19

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.

CATEGORIES: COVID-19, Sustainability

PEOPLE: Gabrielle Sigel

February 15, 2021 EPA Approves Additional Pesticide Products to Use as COVID-19 Disinfectants

Sigel

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

Covid-19

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.

CATEGORIES: COVID-19, FIFRA

PEOPLE: Gabrielle Sigel

December 7, 2020 EPA Retains Existing Air Quality Standards for Particulate Matter

Torrence_jpgBy 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:

  1. Fine particles, or PM2.5, which are particles with a diameter of 2.5 micrometers and smaller; and
  2. 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:

PM NAAQS
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.

CATEGORIES: Air, COVID-19

PEOPLE: Allison A. Torrence

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

Sigel

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

Covid-19

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

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

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

Other notable aspects of the regulation include:

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

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

For more information or advice on how to comply and implement the COVID‑19 Prevention Rule, please contact the author.  Additional information regarding working during the COVID‑19 pandemic can be found on this blog and in Jenner & Block’s COVID‑19 Resource Center.

CATEGORIES: COVID-19, OSHA

PEOPLE: Gabrielle Sigel

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

Sigel

 Song

By Gabrielle Sigel  and Leah M. Song

Covid-19

 

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

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

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

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

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

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

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

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

Please feel free to contact the authors with questions or for further information. For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.

CATEGORIES: COVID-19, OSHA

PEOPLE: Gabrielle Sigel, Leah M. Song

October 22, 2020 CDC Changes Definition of “Close Contacts” for Contact Tracing Purposes: What Does This Mean for Employers?

Sigel

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

Covid-19

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:

https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-manufacturing-workers-employers.html

https://www.cdc.gov/coronavirus/2019-ncov/php/open-america/non-healthcare-work-settings.html

https://www.cdc.gov/coronavirus/2019-ncov/community/critical-workers/implementing-safety-practices.html

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.

CATEGORIES: Contamination, COVID-19

PEOPLE: Gabrielle Sigel

August 19, 2020 Environmental Groups Allege EPA Failed to Engage in Endangered Species Act Consultation Before Implementing COVID-19 Enforcement Discretion Policy

Song Linkedin_Steven_Siros_3130By Leah Song and Steven Siros

Covid-19On 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.

CATEGORIES: COVID-19, Water

PEOPLE: Steven M. Siros, Leah M. Song

August 12, 2020 State Court Legal Challenge to Illinois Gov. Pritzker’s COVID‑19 Executive Orders

Song SigelBy Leah Song and Gabrielle Sigel

SealAlthough 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:

  1. “Declaratory judgment finding that the April 30 Proclamation is void for failing to meet the definition of a disaster as defined in the IEMAA;”
  2. “Declaratory judgment finding that Pritzker had no authority to utilize emergency powers after April 08, 2020;”
  3. “Declaratory judgment finding that the Illinois Department of Public Health Act governs the conduct of the state actors in this context;” and
  4. “[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.

CATEGORIES: Air, Consumer Law and Environment, COVID-19

PEOPLE: Gabrielle Sigel, Leah M. Song

August 7, 2020 Federal Courts Beat Back Legal Challenges to Illinois Gov. Pritzker’s COVID‑19 Executive Orders

Song SigelBy Leah Song and Gabrielle SigelIL seal

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.

 

CATEGORIES: Air, COVID-19

PEOPLE: Gabrielle Sigel, Leah M. Song

July 27, 2020 Virginia Issues First COVID-19 Emergency Workplace Safety and Health Standard

Song

By Leah M. Song

Covid-19On July 27, 2020, Virginia became the first state to adopt an emergency workplace safety standard regarding exposure to COVID-19. Virginia is one of the 22 states which has jurisdiction to issue its own workplace safety and health regulations, which must be at least as stringent as regulations issued by U.S. OSHA, but can go beyond federal requirements. The Virginia regulation titled §16 VAC 25‐220, Emergency Temporary Standard, Infectious Disease Prevention: SARS‐CoV‐2 Virus That Causes COVID‑19 (“Emergency Standard”) was adopted during a meeting of the Virginia Safety and Health Codes Board on July 15, 2020. The Emergency Standard will expire “(i) within six months of its effective date, upon expiration of the Governor’s State of Emergency, or when superseded by a permanent standard, whichever occurs first, or (ii) when repealed by the Virginia Safety and Health Codes Board.” The Emergency Standard was available as of July 24, 2020, but will be formally published on July 27, 2020, and its legal effective date is July 27, 2020.

The Emergency Standard shall apply to every employer, employee, and place of employment in Virginia within the jurisdiction of the Virginia Occupational Safety and Health Program (“VOSH”), as described in §§ 16 VAC 25-60-20 and 16 VAC 25-60-30 for both public and private employers.

The “[a]pplication of this [Emergency Standard] to a place of employment will be based on the exposure risk level” (i.e., “very high,” “high,” “medium,” and “lower” of COVID-19 and “related hazards present or job tasks.” The Emergency Standard includes a minimum list of factors to be considered in determining exposure risk level, such as the work environment and employee contact, as well as employer requirements for each exposure risk level.

The Emergency Standard details mandatory requirements for all employers, regardless of exposure risk level, such as:

  • Exposure assessment and determination, notification requirements, and employee access to exposure and medical records
  • Return to work policies and procedures
  • Physical distancing
  • Limited access to common areas
  • Compliance with respiratory protection and personal protective equipment standards
  • Compliance with sanitation and disinfection standards

The Emergency Standard details additional requirements for each exposure risk level designated as “very high,” “high,” and “medium.” For all workplaces other than those with low exposure risk, the employer must develop and implement a written Infectious Disease Preparedness and Response Plan (“IDPR Plan”). The IDPR Plan, employers shall consider contingency plans for outbreaks, identify basic infection prevention measures, and address interaction with outside businesses.

In addition, the Emergency Standard requires that in workplaces in the “very high” and “high” exposure risk levels, the employer shall implement protective measures such as isolation facilities and physical barriers. For the “medium” exposure risk level, the employer shall consider protective measures such as flexible work arrangements and increasing physical distancing.

With regard to face coverings, the Emergency Standard defines “face covering” as not PPE. The Emergency Standard states: “Employee use of face coverings for contact inside six feet of coworkers, customers, or other persons is not an acceptable administrative or work practice control to achieve minimal occupational contact. However, when it is necessary for an employee to have brief contact with others inside the six feet distance a face covering is required.” §16 VAC 25‐220-30. At the “medium” exposure level, employers of "medium" exposure level workplaces are required, “to the extent possible,” to provide and have their employees wear face coverings where it is not feasible to physically distance between employees or in customer-facing jobs for the “medium” exposure level. Face coverings may not be required under certain circumstances, such due to the wearer’s medical condition and religious waivers.

To the extent that an employer actually complies with a recommendation contained in CDC guidelines, and those guidelines provide “equivalent or greater protection than provided by a provision of this [Emergency Standard], the employer’s actions shall be considered in compliance with this [Emergency Standard].” “An employer’s actual compliance with a recommendation contained in CDC guidelines … shall be considered evidence of good faith in any enforcement proceeding related to this [Emergency Standard].”

The Emergency Standard also expressly addressed the notification requirements when there is an employee with a positive COVID-19 case. Employers must notify (a) the building or facility owner if any employee in the building tests positive for COVID-19; (b) the Virginia Department of Health within 24 hours of the discovery of a positive case; and (c) the Virginia Department of Labor and Industry within 24 hours of the discovery of three or more employees who test positive for COVID-19 within a 14-day period.

Additionally, employers are prohibited from using antibody testing to “make decisions about returning employees to work who were previously classified as known or suspected to be infected” with COVID-19.

The Emergency Standard also confirms an employee’s right to “refus[e] to do work or enter a location that the employee feels is unsafe.” Section 16 VAC 25-60-110 provides requirements regarding the “discharge or discipline of an employee who has refused to complete an assigned task because of a reasonable fear of injury or death.” That provision states that such discharge or discipline will be considered retaliatory “only if the employee has sought abatement of the hazard from the employer and the statutory procedures for securing abatement would not have provided timely protection.”

Under Emergency Standard §16 VAC 25‐220‐80, covered employers will have until August 26, 2020, to train employees, covering topics such as the requirements of the Emergency Standard, COVID-19 symptoms and methods of transmission, safe and healthy work practices, and anti-discrimination provisions. It is important to note that training requirements for exposure risk levels “very high,” “high,” and “medium” differ from the less-comprehensive requirements for the “lower” risk level. Under subsection 16 VAC 25‐220‐70, if an employer is required to have an IDPR Plan, the employer must develop and train employees on their IDPR Plan by September 25, 2020.

Training and outreach materials, including training PowerPoints, FAQs, an IDPR Plan template, and an exposure risk level flow chart, are being developed by the VOSH Cooperative Programs Division, with some available here, as of July 24, 2020.

At the federal level, OSHA has come under scrutiny for its decision not to adopt a COVID-19 emergency temporary standard. The American Federation of Labor and Congress of Industrial Organizations’ (“AFL-CIO”) and other unions asked OSHA to issue an Emergency Temporary Standard (“ETS”), rather than have employers rely solely on existing OSHA regulations and new COVID-19 guidance to no avail. On May 18, 2020, the AFL-CIO filed a petition for a writ of mandamus in the U.S. Court of Appeals to compel OSHA to issue an ETS within 30 days. However, on June 11, 2020, the court held that “OSHA reasonably determined that an ETS is not necessary at this time” given the “unprecedented nature of the COVID-19 pandemic, as well as the regulatory tools that the OSHA has at its disposal to ensure that employers are maintaining hazard-free work environment.” On June 18, 2020, the AFL-CIO filed for a rehearing en banc. Please see Jenner & Block’s analysis of the AFL-CIO lawsuit here. In addition, the U.S. House of Representatives introduced legislation, titled “The COVID-19 Every Worker Protection Act” (H.R. 6559), which would require OSHA to issue an ETS. The provisions of H.R. 6559, including the provisions relating to the ETS, were included in H.R. 6800, The Heroes Act. H.R, passed by the House on May 15, 2020, and which is set to be part of the upcoming political debates and votes by the House and the Senate on new COVID-19 economic stimulus and related legislation.

Jenner & Block’s Corporate Environmental Lawyer will continue to update on these matters, as well as other important COVID‑19 related guidance, as they unfold.

CATEGORIES: COVID-19, Hazmat, Sustainability

PEOPLE: Leah M. Song

July 13, 2020 Lawsuits Challenging EPA’s Temporary Enforcement Discretion Policy for COVID‑19 Pandemic Hit Dead End

Song

By Leah M. Song

Covid-19As an update to our July 1st blog regarding EPA’s notice that its COVID-19 Temporary Enforcement Policy will end on August 31, 2020, there have been some new developments in the lawsuits filed challenging that policy.

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 (“Plaintiffs”) failed to show that they were injured by EPA’s purported “unreasonable delay” in responding to the petition. The Plaintiffs had petitioned EPA to publish an emergency rule requiring an entity to provide written notice if they were suspending monitoring and reporting because of COVID-19.

The court held that the Plaintiffs failed to establish the standing requirements. The Plaintiffs did not establish that they were “legally entitled to the information they seek” and lacked association standing as well. The Plaintiffs did not demonstrate that they “suffered a sufficiently concrete injury nor that that alleged injury is fairly traceable to EPA’s purported delay in responding to the Petition.”

The court said it was “perfectly obvious that, at the time Plaintiffs brought this lawsuit, the EPA had not ‘unreasonably’ delayed its response to the Petition.” Judge McMahon said that “the real litigation – over the legality of the [Enforcement Policy] itself – is presently being briefed in an action brought by nine State Attorneys General. That is where the action will – and should – take place.” Accordingly, the court granted summary judgment in favor of the EPA.

One day later on July 9, the State Attorneys General indicated that they will drop their lawsuit against EPA given the upcoming Enforcement Policy deadline. “EPA does not intend to extend the [Enforcement] Policy beyond August 31 and, should the policy terminate on (or before) August 31, Plaintiffs currently intend to voluntarily dismiss the Complaint without prejudice.” The parties prepared a “contingent, expedited briefing schedule” should EPA not terminate the Enforcement Policy by that date. This announcement this lawsuit will be is unlikely to cause Judge McMahon to revisit the summary judgment ruling since this decision doesn’t change that Plaintiffs lacked standing to bring the claims.

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.

CATEGORIES: Climate Change, COVID-19, Sustainability

PEOPLE: Leah M. Song

July 1, 2020 The End for EPA’s Temporary Enforcement Discretion Policy for COVID 19 Pandemic

Song

By Leah M. Song

Covid-19On June 29, 2020, the U.S. Environmental Protection Agency (“EPA”) issued a termination addendum to the COVID‑19 temporary enforcement policy previously issued on March 26, 2020. As further discussed below, EPA’s temporary enforcement policy will now terminate no later than August 31, 2020. 

The temporary enforcement policy discussed EPA enforcement of environmental legal obligations during the COVID‑19 pandemic. The temporary policy made clear that the EPA expected regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible. To be eligible for enforcement discretion, the policy also required facilities to document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID‑19 pandemic. The temporary enforcement policy was analyzed in Jenner & Block’s Corporate Environmental Lawyer blog here.

In the recent termination addendum, EPA pointed to various federal and state guidelines developed in response to the pandemic, but noted that as restrictions begin to be relaxed or lifted, so too are compliance obstacles. However, EPA also noted that in some states, the resurgence of COVID‑19 cases could result in a pause in reopening and EPA acknowledged that “there will be a period of adjustment as regulated entities plan how to effectively comply both with environmental legal obligations and with public health guidance.”

EPA therefore selected August 31, 2020, as the termination date for the temporary enforcement policy. EPA stated that the termination date reflects “the changing circumstances on facility operations, worker shortages, and other constraints caused by the public health emergency,” but “ensures that there is adequate time to adjust to the changing circumstances.”

EPA reminded entities that “[a]s stated in the temporary policy, entities should make every effort to comply with their environmental compliance obligations and the policy applies only to situations where compliance is not reasonably practicable as a result of COVID‑19” which “should become fewer and fewer.” EPA made clear that it “will not base any exercise of enforcement discretion on this temporary policy for any noncompliance that occurs after August 31, 2020.” However, EPA will still consider exercising its enforcement discretion on a “case-by-case basis regarding any noncompliance, including noncompliance caused by the COVID‑19 public health emergency, before or after the temporary policy is terminated.”

Finally, EPA floated the possibility that the temporary enforcement policy could terminate even before August 31, 2020. EPA will continue to assess national and state conditions, such as “the expiration or lifting of ‘stay at home’ orders” and “the status of federal and/or state COVID‑19 public health emergency guidelines.” In the event that EPA determines conditions warrant earlier termination of the policy, EPA will provide at least 7 days’ notice prior to termination of the policy. 

Jenner & Block’s Corporate Environmental Lawyer will continue to update on these matters, as well as other important COVID‑19 related guidance, as they unfold.

CATEGORIES: COVID-19

PEOPLE: Leah M. Song

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

SongSigel

 

By Leah M. Song and Gabrielle Sigel 

Covid-19

 

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

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

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

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

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

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

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

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

Please feel free to contact the authors with questions or for further information. For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.

CATEGORIES: COVID-19, OSHA

PEOPLE: Gabrielle Sigel, Leah M. Song

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

SongSigel

 

By Leah M. Song and Gabrielle Sigel 

Covid-19

 

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

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

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

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

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

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

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

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

Please feel free to contact the authors with questions or for further information. For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.

CATEGORIES: COVID-19, OSHA

PEOPLE: Gabrielle Sigel, Leah M. Song