New Year, New OSHA Citation Penalty Amounts

After Congress passed the Federal Civil Penalties Inflation Adjustment Act Improvements Act in 2015, it has now become an annual requirement for the U.S. Department of Labor to adjust civil penalty amounts for the various laws it enforces using cost-of-living adjustments to account for inflation.  According to the Act, the purpose of these annual adjustments is to improve the effectiveness of civil monetary penalties by increasing the amounts to maintain their deterrent effect.

For 2021, the U.S. Department of Labor published a final rule setting forth the following adjustments to the Occupational Safety and Health Administration (OSHA) civil penalty amounts based on cost-of-living adjustments:

  • OSHA’s maximum penalties for serious and other-than-serious violations will increase from $13,494 per violation to $13,653 per violation.
  • The maximum penalty for willful or repeated violations will increase from $134,937 per violation to $136,532 per violation.
  • Posting violations increased from $13,494 per violation to $13,653 per violation.
  • Failure to abate violations increased from $13,494 per day to $13,653 per day.

These OSHA civil penalty adjustments become effective and apply to any penalties assessed after January 15, 2021.  Since they must have standards and an enforcement program as effective as Federal OSHA, State OSHA plans must also increase their penalty amounts to come into alignment with these penalty increases.

If you have questions or need assistance on OSHA inspections and citations, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.

Virginia Passes Permanent Standard on COVID-19

The Virginia Safety and Health Codes Board enacted a Permanent Standard on COVID-19 in workplaces in a 9-4 vote on January 13, 2021.

On July 15, 2020, Virginia became the first state in the nation to promulgate an Emergency Temporary Standard to address COVID-19 in workplaces. Even with vaccine deliveries on the way, Virginia has enacted a Permanent Standard for consideration by the Virginia Safety and Health Codes Board (which includes author Courtney Malveaux).

To read the entire article, click here.

Agricultural Employers Challenge Cal OSHA’s Emergency Temporary Standard on COVID-19 Prevention

At the end of 2020, California approved the Division of Occupational Safety & Health’s (“Cal OSHA”) COVID-19 Emergency Temporary Standard (“ETS”).

Among the many requirements in the new ETS, Cal OSHA imposed a performance-based obligation on employers to establish and implement an effective COVID-19 Prevention Program, COVID-19 preventive measures (e.g., social distancing and mandatory use of face coverings), and COVID-19 case management (e.g., investigation, recording, and reporting). In establishing these requirements, the ETS also published prescriptive written COVID-19 Prevention Program components and procedures for handling COVID-19 cases, as well as steps to regulate multiple infections and presumed outbreaks at the workplace that are already subject to substantial state and local health department requirements. Moreover, the ETS substantially departs from other health and safety regulations by compelling worker exclusion following a potential workplace exposure to COVID-19, mandating exclusion pay in limited circumstances,  and that employees be provided COVID-19 testing. The ETS further imposes potential liability on employers if they fail to comply with the various requirements.

The ETS has created confusion and frustration among California employers already facing a multitude of federal, state, and local COVID-19 requirements, which are in a constant state of flux. The ETS also attempts to impose requirements that are administered by other responsible agencies and authorities, making employers’ obligations unclear and duplicative. For example, the ETS imposes an obligation on employers to notify state and local health departments of multiple COVID-19 cases despite this obligation already being imposed on employers under AB 685, guidance from the state health department, and standing health department orders.

Cal OSHA’s ETS also uses inconsistent language to discuss requirements (e.g., “offer” vs. “provide” in the context of required testing), imprecise language, and imposes obligations that do not make sense from either a technical or feasibility standpoint. For instance, the ETS defines a “COVID-19 test” as one that is (i) approved by the United States Food and Drug Administration (“FDA”) or has an Emergency Use Authorization from the FDA, and (ii) is administered in accordance with the FDA approval or Emergency Use Authorization. In doing so, Cal OSHA fails to take into account that COVID-19 tests can be approved for use under other regulatory pathways and that many COVID-19 tests on the market are not approved by FDA or under an Emergency Use Authorization. Restricting testing in this way also unnecessarily complicates an already complicated requirement and makes compliance more difficult, costly, and time-intensive.

Despite numerous concerns raised in public meetings and written responses to the ETS, Cal OSHA also has not provided sufficient guidance on how to comply with the ETS, leaving many obligations on testing, worker exclusion, and COVID-19 case management unclear. Cal OSHA only just recently provided the public updated FAQs but still left numerous questions and ambiguities.

In response to the ETS’ ambiguities and overwhelming compliance burden, the Western Growers Association, the California Business Roundtable, the California Association of Winegrape Growers, the California Farm Bureau Federation, Ventura County Agricultural Association, and the Grower-Shipper Association of Central California joined together to file a lawsuit against Cal OSHA and related entities and individuals over the ETS before the Los Angeles Superior Court. The lawsuit contends that the Board violated employers’ due process rights and the state’s administrative procedure laws by failing to provide clear and adequate notice of the link between the ETS and the emergency situation necessitating the new rules. The lawsuit also claims that the ETS improperly imposes “unprecedented financial and operational costs on employers” in the state and without evidence that the new requirements will significantly or even materially improve workplace health and safety as it pertains to COVID-19. The required measures further lack clarity, such that employers are not understanding what is required of them, and do not take into account resources, feasibility, or costs. Further, the action alleges that many of the requirements in the ETS have little to no connection to workplace health and safety and instead deputize employers to monitor non-work-related COVID-19 exposure risks. The suit filed by the agricultural associations follows a lawsuit filed in San Francisco Superior Court by retail industry groups seeking declaratory and injunctive relief from the ETS.

To date, Cal OSHA and the other entities named in the suits have not publicly responded or acknowledged either complaint.

Jackson Lewis will continue to monitor issues pertaining to COVID-19 and the workplace in California. If you have questions about the ETS or related workplace safety issues, contact a Jackson Lewis attorney to discuss.

Reminder: OSHA 300A Data Due By March 2, 2021

The Occupational Safety and Health Administration (“OSHA”) kicked off the new year with a friendly reminder that covered employers must electronically submit Form 300A data for calendar year 2020 between January 2, 2021 and March 2, 2021. A paper copy of the 300A form must also be posted in for each establishment from February 1 through April 30.

By way of refresher, the recordkeeping regulation was revised in early 2019 to only require Form 300A data instead of additional records. The electronic filing requirement applies to two categories of establishments.

  • The first category includes establishments with 20 to 249 employees that are in specific industries with higher instances of injury or illness. A full list of these industries can be found here. Many industries in this category have been most hard hit by COVID-19, such as nursing care facilities, hospitals, and other healthcare providers, manufacturers, and grocery stores.
  • The second category includes establishments with 250 or more employees that are required to keep OSHA injury and illness records. In other words, establishments with 250 or more employees that are not otherwise exempted must electronically file the OSHA 300A.

In addition to these general categories, information must be provided if OSHA notifies you to do so for an individual data collection.

As explained in our previous blog post, work-related COVID-19 cases may trigger recording and reporting obligations, which would impact the 300A data. Employers should review OSHA’s Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 when determining whether a COVID-19 case is recordable or reportable.  We also recommend contacting an attorney to ensure the accuracy of recording and reporting of COVID-19 cases. Throughout the pandemic many employers have needlessly recorded and overreported cases to OSHA, subjecting themselves to burdensome and costly inspections.

Employers can find detailed instructions for filing the 300A data on OSHA’s Injury Tracking Application webpage, as well as FAQs.

What to Expect from OSHA Under the Biden Administration

President-Elect Joseph Biden has not named a nominee for Secretary of Labor yet, much less an Assistant Secretary of Labor for Occupational Safety and Health who would lead the Occupational Safety and Health Administration (OSHA). But individuals with a background in organized labor may be forerunners. He has promised to be “the most pro-union president you have ever seen” and that “unions are going to have increased power” in his administration.

To read the article in its entirety, click here.

Will Virginia’s COVID-19 Pandemic Standard Become Permanent?

On July 15, 2020, Virginia became the first state in the nation to promulgate an Emergency Temporary Standard to address COVID-19 in workplaces. Even with vaccine deliveries on the way, Virginia has proposed a Permanent Standard for consideration by the Virginia Safety and Health Codes Board (which includes author Courtney Malveaux).

To read the article in its entirety, click here.

New Virginia Executive Order Expands Face Covering Requirements, Restricts Gatherings

Virginia Governor Ralph Northam has issued Executive Order Number Seventy-Two, expanding face covering requirements, reducing allowable social gatherings, and directing Virginians to remain at home after midnight. The Order also states that individuals who decline to wear a face covering due to a medical condition are not required to produce medical documentation verifying their stated condition(s) or identify their precise underlying medical condition(s). The Order took effect at 12:01 a.m. on December 14, 2020.

To view the article in its entirety, please click here.

California Employers are now Grappling with Cal OSHA’s COVID-19 Emergency Temporary Standard

Shortly before Thanksgiving, California’s Department of Industrial Relations Occupational Safety & Health Standards Board (“Board”) adopted a general safety order that creates an emergency temporary standard specific to potential workplace COVID-19 exposures (“Rule”). The Rule was quietly approved by the Office of Administrative Law without detailed analysis on November 30th and went into effect upon approval. While this gave little time for employers to come into compliance with the new requirements, the Division of Occupational Safety & Health (“Cal OSHA”) has maintained that many of the requirements are not entirely new and align with guidance previously issued on measures to address COVID-19 hazards in connection with employers’ Injury Illness and Prevention Program. Cal OSHA has also informally conveyed that the agency will work with employers to achieve compliance with the Rule, particularly in situations where employers are making a diligent effort to comply.

To read my full article posted on Jackson Lewis’ California Workplace Law Blog, click here.

OSHA Issues COVID-19 Respiratory Protection Guidance for Long Term Care Facilities

OSHA has issued guidance on personal protective equipment (“PPE”) and respiratory protection use in nursing home and long term care facilities (collectively “LTCFs”) to protect against COVID-19. In its recently issued guidance, OSHA sets forth additional detail about the strategies it believes LTCFs should consider when protecting employees from COVID-19.  As a preliminary reminder, although a guidance document issued by OSHA, this guidance document has not undergone the rigorous rulemaking process required for a regulation under the Administrative Procedures Act, and merely serves as guidance for the pertinent industry.

In the latest issued LTCF guidance OSHA follows its usual hazard assessment and hierarchy of control framework provided in the PPE Standard (29 C.F.R. § 1910.134), stating that LTCFs should first conduct a risk assessment to identify which workers are at risk of exposure to any airborne hazards, which includes (per OSHA’s definition) COVID-19, as a result of their job duties. After a thorough risk assessment is completed, the LTCF must determine how to protect employees from the identified hazards pursuant to OSHA’s long-established hierarchy of controls. The LTCF must engage in engineering controls (e.g. ventilation) to reduce the hazard wherever possible. Next, the LTCF must apply administrative controls (i.e. hand hygiene, physical distancing, and cleaning and disinfection protocols). As a third step of hazard prevention, LTCFs should determine appropriate PPE and make sure it is available to each employee who needs it.

OSHA suggests that respiratory protection, such as an N-95 respirator, may be appropriate for any individual who provides patient care while working within six feet of individuals who are a suspected or confirmed positive for COVID-19. This includes while performing tasks such as bathing, dressing, and toileting, in addition to clinical care. However, for each of the examples mentioned, it is unlikely that the employer could be using a form of source control, such as requiring the patient to wear a mask, or be behind a protective barrier. As a result, respirators may not be needed in these situations when other engineering or administrative controls are being used effectively. This is further complimented by the fact that guidance from the Centers for Disease Control and Prevention (“CDC”) requires only surgical masks for direct care of patients with confirmed or suspected COVID-19, unless the care provided involves aerosol generating procedures or surgeries with risk of transmission through infectious material splashes or sprays. Any LTCF engaging in a hazard assessment should document its decision-making, following the best and most up-to-date infectious disease guidelines, industry best practices, and recommendations from the CDC, and guidance from state and local health departments.

Note that whenever an LTCF does conduct a hazard assessment and determines that filtering facepiece respirators (such as N-95s) are necessary PPE, OSHA’s respiratory protection standard (29 C.F.R. § 1910.134, the “RPP”) will apply. OSHA’s RPP regulations require a lengthy written job hazard analysis and task hazard analysis for use of respirators; a lengthy written respirator program with detailed, individualized procedures for each separate location, job, or task (depending on what the hazard analyses require); the selection of a Program Administrator, who has specific duties; medical evaluations; initial-use and then annual fit-testing; lengthy storage, cleaning, and mask-replacement procedures; and other detailed requirements.

OSHA’s guidance further details various “source control” measures, in categories recommended as follows:

  • Cloth face coverings – to be worn by patients and visitors but not by healthcare providers if protection against exposure to splashes and sprays, or respiratory protection against airborne hazards is needed. All patients and visitors should be offered a surgical mask, face mask, or cloth face covering by the LTCF if they do not provide their own, and if supplies allow.
  • Facemasks – these include KN95 respirators with ear loops instead of head straps, as well as other masks that do not provide fluid resistance.
  • FDA-cleared or authorized surgical masks – these masks, authorized for emergency use by the FDA, are regulated by OSHA under the PPE standard (at 29 CFR 1910.132) or the Bloodborne Pathogens standard (29 CFR 1910.1030). OSHA prefers that healthcare providers use these rather than face masks or cloth face coverings, as they provide source control and protection for the wearer against splashes and sprays. As they are loose-fitting and do not provide a seal for the user, these masks are not effective at protecting against potential airborne hazards.
  • Respirators (including FDA-cleared or authorized surgical N95 FFRs), which must be subject to fit-testing, medical evaluations, employee training, specific cleaning and storage procedures, and all of the other myriad requirements under OSHA’s RPP standard at 29 C.F.R. § 1910.134. OSHA also refers employers to the CDC guidelines for extending the use of N95s as necessary during the shortages presented by the pandemic, and cautions against accidental purchase of counterfeit N95s. N95 FFRs remain in short supply, as are most alternative respirators, including P100s and N99s, reusable rubber respirators, and powered air purifying respirators (“PAPRs”).

OSHA reminds employers that employees wearing N95s must be sure that any additional required PPE, such as eye or face protection, will fit with the N95 so that all pieces can safely be worn together.

If you have questions or need assistance in managing your response to OSHA’s guidance here or the pandemic in general, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.

Washington State Is Developing Wildfire Smoke Worker-Safety Rules

Smoke from Western wildfires caused Washington state to experience some of the worst air quality in the world this year, which increased health risks to outdoor workers. In response, the state’s Department of Labor & Industries’ Division of Occupational Safety and Health (“L&I” or “Division”) announced that it is developing new workplace health and safety rules on wildfire smoke exposure hazards, particularly in the construction and agriculture industries. Over the next several months, and following issuance of a Notice of Intent (CR-101), L&I will hold meetings to gather information from stakeholders and begin drafting an occupational health standard on wildfire smoke to be included in chapter 296-62 of the Washington Administrative Code.

While some requirements of the rule are unknown, the new rule will likely address several key issues, including:

  • Identification of potentially harmful worker exposures to wildfire smoke and related air quality conditions;
  • Communication with employees on air quality conditions, exposure risks, and required controls;
  • Employee training and instruction; and
  • Required engineering and administrative controls to address potentially harmful exposures.

Washington is the second state after California to formally engage in rulemaking to protect workers from hazards related to wildfire smoke.

This new rule will add to existing (1) Division guidance on appropriate dust masks and filtering facepiece respirators for protecting employees from exposures to poor air quality conditions caused by wildfire smoke, and (2) guidance from the state’s Department of Health about reducing exposure to wildfire smoke.

Employers in Washington who have outdoor operations should keep an eye out for Division led stakeholder meetings, requests for public comment, and draft versions of a proposed wildfire rule. Employers can get up to date information on L&I’s rulemaking page and sign-up for alerts here.

If you have questions, would like additional information, or need assistance, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.