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

By Gillian G. W. Egan and Cressinda D. Schlag on December 1, 2020

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

By Cressinda D. Schlag and Jonathan M. Minear on November 23, 2020

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.

California Employers Now Have an Emergency Temporary Standard To Contend With

By Cressinda D. Schlag on November 23, 2020

On November 19, 2020, California’s Department of Industrial Relations Occupational Safety & Health Standards Board (“Board”) adopted a general safety order that, in effect, creates an emergency temporary standard specific to potential workplace coronavirus (“COVID-19”) exposures (“COVID-19 Prevention Rule” or “Rule”). While not the first state to adopt an emergency temporary standard (see our earlier posts on new requirements in Michigan, Oregon, and Virginia), California’s COVID-19 Prevention Rule is unique in that it is performance based and adds to the host of requirements imposed by the state’s public health departments. As a result, California employers need to ensure their efforts to manage COVID-19 heed both the new COVID-19 Prevention Rule and state and local public health department orders. The state’s Division of Occupational Safety & Health (“Cal OSHA”) will administer and enforce the COVID-19 Prevention Rule, which is set to be codified in Section 3205 of California’s Code of Regulations following review by the Office of Administrative Law. Once reviewed and approved by the Office of Administrative Law, the Rule will take immediate effect and impose new requirements on employers. Many of the requirements noted in the Rule are already required by Cal OSHA guidance on COVID-19 or by state and local health department orders, while other new requirements are set to go into effect on January 1, 2021.

COVID-19 Requirements for All Workplaces

Cal OSHA’s COVID-19 Prevention Rule has provisions that apply to all workplaces and provisions that are specific to employers that provide housing and transportation or are experiencing outbreak conditions at their workplace. Covered workplaces under the Rule include all workplaces in California, except workplaces with (i) only 1 employee having no contact with others, (ii) employees who are working remotely from their homes, and (iii) employees who are covered by Cal OSHA’s Aerosol Transmissible Disease Standard. In addition, because the COVID-19 Prevention Rule does not limit, restrict, or otherwise supersede state or local health department requirements, compliance with the COVID-19 Prevention Rule alone may not satisfy all workplace COVID-19 requirements in the state. Employers with California workplaces subject to the COVID-19 Prevention Rule may, in fact, have to contend with additional or more restrictive obligations under applicable state or local health department orders on top of the Rule’s many requirements. That said, the COVID-19 Prevention Rule imposes the following minimum requirements on all covered California workplaces:

COVID-19 Prevention Program. Employers must establish, implement, and maintain an effective written COVID-19 Prevention Program, which includes (i) a system for communicating COVID-19 information; (ii) procedures for identifying, evaluating, and responding to possible COVID-19 hazards; (iii) procedures to investigate and respond effectively to COVID-19 cases in the workplace, including notifications for potential COVID-19 exposures; (iv) methods for correcting identified COVID-19 hazards; and (v) measures to train and instruct employees on COVID-19 hazards and corresponding controls.
COVID-19 Preventive Measures. Employers must implement preventive measures consisting of (i) physical distancing or separation of persons by at least six feet, unless separation is “not possible” or involves a momentary exposure while persons are in movement; (ii) requirement for employees to wear face coverings, except in limited circumstances; (iii) use of engineering and administrative preventive controls, such as physical barriers, markings, optimized ventilation, and cleaning and disinfecting procedures; (iv) provision of handwashing facilities, and (v) use of personal protective equipment (“PPE”), such as gloves, face shields, face masks, goggles, and respirators, when needed to prevent exposure to COVID-19 hazards.
Reporting and Recordkeeping. Employers must report information to their local health department when required or requested, report COVID-19 cases that result in a serious illness or death to Cal OSHA, maintain records relevant to COVID-19 cases, and retain COVID-19 related records in a confidential manner and consistent with Cal OSHA medical records regulations.
Worker Exclusions. Employers must exclude workers from the workplace who are known to have COVID-19 or who have had a COVID-19 exposure and apply set criteria for allowing workers to return. For example, employers must, without exception, exclude workers that have had an exposure to COVID-19 in the workplace for at least 14 days.
Management of COVID-19 Infections and Outbreaks. For workplaces identified by a health department as having an outbreak and workplaces where there are three or more COVID-19 cases within a 14-day period, employers must provide testing to employees at the workplace during working hours upon discovery of the outbreak and at least one week later. When testing is required under the Rule, employers are responsible for testing costs and may have to provide ongoing testing when considered necessary by Cal OSHA, recommended by the health department, or to manage an ongoing outbreak.
COVID-19 Case Investigation. Employers must immediately investigate COVID-19 cases and potential COVID-19 outbreaks to determine if workplace related factors contributed to the case or outbreak and take immediate action to address any identified COVID-19 related hazards.
COVID-19 Case Notifications. Employers must report COVID-19 outbreaks (three or more positive cases of COVID-19 within a 14-day period) to their local health departments within 48 hours of knowing about a COVID-19 outbreak.

Major COVID-19 Outbreaks

Cal OSHA’s COVID-19 Prevention Rule requires that employers having a major COVID-19 outbreak take additional actions to prevent and minimize the spread of COVID-19. A major outbreak is defined in the Rule as a covered workplace that has 20 or more COVID-19 cases within a 30 day-period. If a major outbreak occurs, employers must comply with certain requirements until no new COVID-19 cases have been detected in the workplace for a 14-day period. These requirements include

Employer provided COVID-19 testing at least twice a week;
Exclusion of workers who have COVID-19 or experienced a COVID-19 exposure;
Ongoing COVID-19 case investigations;
COVID-19 hazard assessment and correction, which may require adjustments in ventilation, respiratory protection requirements, change in operations, or “other control measures deemed necessary” by Cal OSHA; and
Ongoing COVID-19 notification obligations.

COVID-19 Prevention in Employer-Provided Housing

Cal OSHA’s COVID-19 Prevention requires California employers take additional that provide housing or housing accommodations to their employees, with limited exceptions. At first, these employers must prioritize housing assignments to avoid having employees share a housing unit who do not usually have a common household. Employers must also implement physical distancing controls by redesigning housing spaces to maximize distance between individuals, limit capacity of common areas, and ensure separation of individuals’ beds and furniture. Employers must similarly offer residents face coverings and explain when to wear them, ensure effective cleaning and disinfecting, and implement resident screening and testing programs. Further employers must implement effective procedures for identifying when a resident develops symptoms of illness and ensure effective isolation of potentially sick individuals to prevent and minimize the potential for spread of COVID-19.

COVID-19 Prevention in Employer-Provided Transportation

Cal OSHA’s COVID-19 Prevention Rule requires that employers who are providing transportation for employees to and from work or as part of their job duties implement prescribed precautions. Employers must specifically emphasize transportation assignments that minimize workers sharing transportation with others who do not share a common household, use physical distancing if possible, and require drivers and riders to use face coverings. Employers providing employee transportation must also ensure that effective screening procedures are in place to prevent sick drivers or riders from sharing transportation. Employers must further provide for vehicles’ high contact surfaces to be cleaned and disinfected between trips and uses as well as ensure drivers and riders have access to sanitizing supplies.

The COVID-19 Prevention Rule’s Impact to California Employers

Cal OSHA’s COVID-19 Prevention Rule will upend California employers’ operations and workplace safety measures. Although California employers have been advised through Cal OSHA guidance to address COVID-19 hazards in their Injury Illness Prevention Programs since May, the COVID-19 Prevention Rule adds new programmatic and preventive requirements that go beyond Cal OSHA’s prior guidance. As a result, even those employers that have implemented COVID-19 preparedness and response plans adhering to guidance from the Centers for Disease Control and Prevention (“CDC”) and federal OSHA will need to develop new written program materials. The COVID-19 Prevention Rule also requires employers to comply strictly with preventive measures, unless they are “not possible.” For example, under the COVID-19 Prevention Rule, employers must implement physical distancing measures that ensure individuals remain at least 6 feet of separation or show why physical distancing is impossible. This burden to show that physical distancing is “not possible” also diverges from other occupational health and safety regulations and requirements where employers can show generally that compliance with a requirement is infeasible rather than impossible.

Along with the programmatic burdens, Cal OSHA’s COVID-19 Prevention Rule sets up significant compliance hurdles for employers in the form of COVID-19 case management requirements, mandatory worker exclusions, and required testing. For instance, under this Rule, employers must provide employees COVID-19 testing during working hours in some cases (i.e., COVID-19 outbreak, major COVID-19 outbreak, when recommended by a local health department). To ensure compliance with other federal and state laws, as well as protection of employees’ confidential and private health information, employers will need to coordinate testing services, maintain corresponding records as confidential medical information, and establish controls to prevent improper access, use, or disclosure of employees’ private health information. Employers may also need to make arrangements for testing services before a potential outbreak to ensure the availability of testing resources, especially if testing options are limited in the area where the worksite is located.

Although some of the requirements under Cal OSHA’s COVID-19 Prevention Rule are not set to go into immediate effect, Cal OSHA can rely on its COVID-19 related guidance to enforce against employers that have not implemented COVID-19 preparedness plans or procedures. Employers also need to be diligent in implementing the programmatic and preventive measures required by the Rule because Cal OSHA has expanded enforcement authority under this Rule and following passage of AB 685 to pursue enforcement of employers violations related to COVID-19 hazards. In fact, under the COVID-19 Prevention Rule and AB 685, Cal OSHA can issue orders compelling certain actions, such as COVID-19 testing, preventive measures, or worksite closures. Cal OSHA may also issue serious violations to employers for COVID-19 related violations without providing a pre-citation notification.

Finally, California employers will need to carefully evaluate requirements under the COVID-19 Prevention Rule along with state and local health department orders and industry guidance to determine what requirements apply to their operations. Since the COVID-19 Prevention Rule does not disturb or interfere with state and local health department requirements, California employers may need to balance different requirements in different California counties and cities. This will be a challenge for employers, particularly as there may be conflicting requirements as a result of differences in health department orders, guidance, or recommended practices. Indeed, because of significant differences in safety requirements in the COVID-19 Prevention Rule, emergency temporary standards adopted in several states, frequent changes in CDC guidance, and more stringent or additional obligations imposed by health department orders, employers may be unable to establish a consistent or uniform COVID-19 response plan and procedures across all of their operations.

OSHA issues Guidance on Ventilation

By Raymond Perez, II on November 17, 2020

As part of the agency’s ongoing efforts to address the COVID-19 pandemic in workplaces, OSHA continues to issue alerts and guidance designed to keep workers safe. The most recent guidance issued by OSHA deals with ventilation in the workplace to help maintain a safe and healthy work environment.

Under the guidance, OSHA recommends that employers work with heating, ventilation, and air conditioning (HVAC) professionals to look at ways to improve building ventilation as a way to address the potential hazard of exposure to COVID-19. Enclosed spaces with poor ventilation and air flow can make it more likely for employees to be exposed to potential infection. Studies have also shown that infected droplets can travel farther in areas that are not well ventilated.

To that end, OSHA offers the following tips to reduce the risk of exposure to the coronavirus:

Encourage workers to stay home if they are sick.
Ensure all HVAC systems are fully functional, especially those shut down or operating at reduced capacity during the pandemic.
Remove or redirect personal fans to prevent blowing air from one worker to another.
Use HVAC system filters with a Minimum Efficiency Reporting Value (MERV) rating of 13 or higher, where feasible.
Increase the HVAC system’s outdoor air intake. Open windows or other sources of fresh air where possible.
Be sure exhaust air is not pulled back into the building from HVAC air intakes or open windows.
Consider using portable high-efficiency particulate air (HEPA) fan/filtration systems to increase clean air, especially in higher-risk areas.
When changing filters, wear appropriate personal protective equipment. ASHRAE recommends N95 respirators, eye protection (safety glasses, goggles, or face shields), and disposable gloves.
Make sure exhaust fans in restrooms are fully functional, operating at maximum capacity, and are set to remain on.
Encourage workers to report any safety and health concerns.

OSHA continues to issue new alerts and guidance on COVID-19 and the agency is likely to make changes with how it approaches the pandemic next year with the new Biden Administration.

Oregon OSHA Issues COVID-19 Temporary Rule

By Cressinda D. Schlag on November 12, 2020

Stepping in line behind Virginia and Michigan, the Oregon Occupational Safety and Health Administration (“Oregon OSHA”) issued a Temporary Rule Addressing COVID-19 Workplace Risks (“Temporary Rule”) requiring Oregon employers to take certain actions in response to potential workplace exposures to coronavirus (“COVID-19”). Some provisions of Oregon OSHA’s temporary rule go into effect on November 16, 2020 and will remain in effect until May 4, 2021, unless revised, repealed, or extended, while others come later in the year or beginning of 2021. While some requirements in Oregon OSHA’s Temporary Rule will apply to all workplaces in Oregon, the Temporary Rule also has additional requirements specific to employers with more than 10 employees and “workplaces at exceptional risk.”

COVID-19 Requirements for All Workplaces

To meet the requirements of Oregon OSHA’s Temporary Rule all workplaces must implement certain preventive measures to help prevent and minimize the potential for COVID-19 exposures and spread of the disease. These measures include:

Physical distancing, which entails designing work activities and workflow in a way that “eliminate[s] the need for any employee” to be within 6 feet of another unless physical distancing is not feasible.
Mask, face covering, or face shield requirements, which obligate employers to ensure employees and others at the workplace (e.g., vendors, patrons, contractors) wear a mask, face covering or face shield to provide source control consistent with the Oregon Health Authority’s Statewide Mask, Face Covering, and Face Shield Guidance.
Cleaning and sanitation efforts of all areas of the workplace under the employer’s control, with defined frequencies such as daily cleaning of the workplace when occupied for less than 12 hours or at least every 8 hours while in use if occupied for more than 12 hours a day.
Posting of Oregon OSHA’s “COVID-19 Hazard Poster” in a prominent location where employees will be expected to see it (e.g., safety board or employee notice board).
Optimization of ventilation systems no later than January 6, 2021, which requires employers evaluate existing heating, ventilation, and air conditioning (“HVAC”) systems and ensure they are designed and able to provide ventilation consistent with applicable provisions from the American National Standards (ANSI)/American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) Standards 62.1 and 62.2 (SHRAE 2019a, 2019b).
Completion of an exposure risk assessment by December 7, 2020, with consideration of employee feedback, site-specific concerns, and key employee exposure controls such as ability for employees to work remotely, anticipated physical distancing, impact of non-routine work activities on exposure risk, potential risks hazards created by requirement for employees to wear masks, communication of COVID-19 exposure risks and controls, effectiveness of preventive controls to prevent or minimize the spread of disease, and policies and procedures for identifying potentially sick individuals and removing them from the workplace. Employers with more than 10 employees in the state must record their COVID-19 exposure risk assessment.
Implementation of an Infection Control Plan by December 7, 2020, which details the required preventive controls identified in Oregon OSHA’s Temporary Rule and addresses site-specific risks determined during the exposure risk assessment. Employers with more than 10 employees in the state must ensure their Infection Control Plan is in writing.
Communication and training of employees on COVID-19 matters, including the employer’s compliance with Oregon OSHA’s Temporary Rule, exposure risk assessment, Infection Control Plan, and applicable COVID-19 policies and procedures.

Oregon OSHA’s Temporary Rule notably departs from guidance from the Centers for Disease Control and Prevention (“CDC”) and federal OSHA in several ways, so employers will need to be aware of the differences in preventive measure requirements. For example, Oregon OSHA allows employers to require use of face shields as a form of source control, which is contrary to current CDC guidance finding that use of face shields alone is not recommended because of ongoing concerns about their effectiveness. Oregon OSHA’s requirement on exposure risk assessments, which contemplates consideration of certain key questions and factors, will also likely be different to what is used for federal OSHA compliance. This is because federal OSHA’s concept of an exposure risk assessment focuses on pre-established levels of risk of exposure (e.g., low, moderate, high or very high), which federal OSHA has identified by whether an employee is expected to have direct or close contact with an individual who is known or suspected of having COVID-19.

Apart from prescribed preventive measures, Oregon OSHA’s Temporary Rule also requires employers establish a process for notifying employees, which contemplates notifications to (i) exposed employees who had a work-related contact with an individual who is known to have COVID-19, and (ii) affected employees who worked in the same facility or in the same “well-defined portion of the facility.” Notifications to both exposed and affected employees must also occur within 24 hours of the employer having knowledge that an individual with COVID-19 was present in the workplace. Oregon OSHA’s Temporary Rule even more directs employers to cooperate with the Oregon Health Authority with respect to COVID-19 diagnostic testing for workers and medical removals of an employee because of COVID-19 quarantine or isolation orders.

Additional COVID-19 Considerations by Industry, Workplaces With More Than 10 Employees, and Workplaces with Exceptional Risks

Along with the requirements noted above for all workplaces, Oregon OSHA’s Temporary Rule also prescribes requirements for employers in certain industries, workplaces with more than 10 employees, and workplaces with exceptional risks. If an employer is covered by one of the Temporary Rule’s industry-specific and activity-specific appendices (e.g., Retail Stores, Fitness-Related Organizations, Restaurants, and Law Enforcement) the employer must also implement the preventive measures and requirements noted in the applicable industry specific appendix. Similarly employers with more than 10 employees in the state must have written exposure risk assessments and infection control plans.

Employers operating “workplaces with exceptional risks” are identified in the Temporary Rule as those employers that require workers to perform job duties related to direct patient care, environmental decontamination in a healthcare setting, aerosol generating healthcare or postmortem procedures, direct client service in a residential care or assisted living facility, emergency response activities, personal care activities, or handle COVID-19 infected specimens or materials. These employers must provide infection control training to employees by December 21, 2020 covering these topics:

an explanation of Oregon OSHA’s Temporary Rule,
information on COVID-19 with details on mode of transmission, occupational risks of exposures, and personal risks of developing serious illness following exposure to COVID-19,
details on the employers exposure risk assessment,
explanation on requirements under the employer’s Infection Control Plan and implemented preventive measures (e.g., required use of masks, cleaning and sanitation protocols),
required use of masks, face shields, and personal protective equipment (“PPE”) where applicable, and
COVID-19 exposure control measures.

This training must be provided by someone knowledgeable in COVID-19 matters and employees’ job duties, in a manner that employees can understand and allow for discussion of questions and answers. Employers operating exceptional risk workplaces must also build additional components into their Infection Control Plan related to program responsibility and administration, with ongoing evaluation of the plan’s effectiveness and regular updates to address changes in operations or potential exposures to a hazard. Finally, Oregon OSHA’s Temporary Rule imposes additional preventive control requirements for some workplaces, including screening of all individuals entering a healthcare setting for symptoms of COVID-19, required use of barriers, partitions, and airborne infection isolation rooms where needed to protect against exposures to individuals known or suspected to be infected with COVID-19, and heightened risk ventilation requirements.

To help employers understand their obligations under the Temporary Rule, Oregon OSHA has published a chart showing the Temporary Rule’s application to different workplaces here. Oregon OSHA has also published several workplace advisory memos discussing COVID-19 requirements and is often updating its website with frequently addressed questions and answers.

Following Oregon OSHA’s issuance of the Temporary Rule, employers operating in Oregon will need to assess carefully which requirements apply to them and, at a minimum, ensure implementation of the preventive measures required for all workplaces by November 16, 2020. Employers should also know that because of slight differences between Oregon OSHA’s Temporary Rule and CDC and federal OSHA guidance, safety measures implemented in response to COVID-19 may not be uniform for all geographical locations that the employer operates in.

MIOSHA Issues Temporary Emergency Rules for Managing COVID-19 in the Workplace

By Juliana C. Gaige and John D. Surma on October 30, 2020

Following the October 2, 2020 Michigan Supreme Court decision invalidating Governor Gretchen Whitmer’s pandemic executive orders, the Michigan Occupational Safety and Health Administration (MIOSHA) issued temporary emergency rules to help control, prevent and mitigate the spread of COVID-19.

Effective October 14, 2020, these rules apply to all employers currently covered by Michigan’s Occupational Health and Safety Act. MIOSHA promulgated these rules at the behest of business associations and unions asking for a more formal and understandable framework to handle COVID-19 in the workplace. The rules remain in effect for six months and can be extended for another six months upon Governor Whitmer’s certification of need.

Exposure Determination

Under the rules, employers must go beyond simply creating a COVID-19 preparedness and response plan consistent with CDC and OSHA guidance. Employers must now make an exposure determination by categorizing job tasks and procedures based on actual or anticipated contact with suspected or known COVID-19 cases.

Preparedness Plan

Based on the various exposure levels anticipated in the workplace, employers must develop and implement a written preparedness and response plan detailing measures to prevent exposure. This will include engineering controls, administrative controls, basic infection prevention measures, personal protective equipment, health surveillance and training. The plan must be communicated to employees by hard copy or company website or intranet.

Infection Prevention Measures

Basic infection prevention measures must include promotion of hand hygiene, preventing sick employees from reporting to the workplace, limiting shared equipment, and increased facility cleaning and disinfection. Notably, the rules require employers to create a policy prohibiting in-person work where work activities can feasibly be done remotely.

Health Surveillance

Heightened health surveillance measures are now required, including daily entry self-screening for all entering the workplace, such as a symptoms and exposure questionnaire and temperature check. Employees must promptly report COVID-19 symptoms. Employers must isolate employees known or suspected to have COVID-19 from the rest of the workforce. The local public health department must be immediately notified of a confirmed case, and co-workers, contractors or suppliers who may have had contact must be notified within 24 hours.

Workplace Controls

Additional workplace controls must be instituted, including designation of an on-site safety coordinator responsible for implementing, monitoring and reporting the control strategies implemented. Signage, markings and physical barriers should be used to remind employees of proper hand hygiene and keeping appropriate distance. Face coverings must be provided at no cost to the employee.

Personal Protective Equipment

Personal protective equipment, including respirators if necessary, must be provided appropriate to the exposure risk associated with the job and in accordance with current CDC and OSHA guidelines. More specific requirements are listed for various industries, namely construction, manufacturing, retail, restaurants and bars, health care, in-home and personal services, public accommodations, sports and exercise facilities, meat processing plants and casinos.

Training and Recordkeeping

The rules require employers to train employees on infection control practices, proper use of personal protective equipment, notification of suspected or confirmed COVID-19 cases and reporting of unsafe working conditions. Records must also be kept of the training, screening protocols and notifications made under these rules.

Federal Appeals Court Deals Blow to OSHA’s Ability to Cite Repeat Violations

By Melanie L. Paul on October 29, 2020

On Tuesday, October 27, 2020, the U.S. Court of Appeals for the Tenth Circuit issued a long- awaited decision in Sec’y of Labor v. Wynnewood Refining Co., LLC. That case originated in 2012 when OSHA inspected the company following a boiler explosion that killed two employees. OSHA issued several repeat citation items under the Process Safety Management (PSM) standard. The company litigated the validity of the citations and repeat classifications at trial and the Administrative Law Judge affirmed all but one of the PSM violations but changed several repeat violations to serious. The ALJ found that the violations occurred under Wynnewood, Inc. and not Wynnewood LLC, a new company formed in December 2011 after Wynnewood, LLC’s parent company acquired all the stock in Wynnewood, Inc’s parent company.

On appeal to the Occupational Safety and Health Review Commission (“the Commission”), the Commission upheld the PSM violations but declined to find repeat liability finding that OSHA did not satisfy the substantial continuity test. Under that test, the Commission considers the totality of the circumstances of the change in ownership to determine whether the current company should be held liable for repeat citations based on citations from the previous company. In making this determination, the Commission applies a three-factor test: (1) the nature of the business, including the continuity in the type of business products or services offered and customers served to determine whether the activities associated with the business and the inherent safety and health considerations have changed; (2) the jobs and working conditions because of their close correlation with particular safety and health hazards; and (3) the continuity of personnel, specifically those who control decisions related to safety and health because their decisions related directly to how well the employer complies with the requirements of the Occupational Safety and Health Act.

The Commission found that the first two factors leaned in favor finding substantial continuity test, but OSHA did not satisfy the third factor. Although there were many supervisors who were the same at either company, “these managers merely implemented the safety policies set by the previous parent company and then the new parent company because new management focuse[d] on improving safety, health, and the proper implementation of [the] PSM [standard]” and that it made substantial investments in safety personnel and equipment, causing a “safety culture shift.”

The Tenth Circuit determined that the Commission correctly applied the substantial continuity test. The Tenth Circuit then reviewed the Commission’s decision under the substantial evidence standard, in which the appellate court asks whether a reasonable mind would consider the evidence adequate to support the conclusion, without reweighing the evidence, second-guessing the factual inferences made from the evidence, or substituting their own judgment on witness credibility. In so doing, the Tenth Circuit determined that substantial evidence in the record supported the Commission’s finding that there was no substantial continuity between Wynnewood, Inc. and Wynnewood.

This decision affects employers across all industries on the issue of repeat citations when companies change ownership and the new ownership makes significant safety improvements. There is a significant difference in penalties between a serious citation, which currently has a maximum of $13,494, with a repeat, which currently has a maximum of $134,937. And, if a company receives a repeat citation, OSHA may look at a subsequent violation of the same regulation as willful. These designations as repeat and willful can adversely affect employers who bid on or contract for work with other entities. Importantly, this decision reinforces the notion that a new owner should not be penalized for the OSHA history of its predecessor, where it is striving to improve safety and health in the workplace and taking concrete action to do so. It also represents a check on OSHA’s authority to issue Repeat citations.

If you have compliance questions or need assistance fighting a wrongfully-issued OSHA citation, contact an attorney in the Jackson Lewis Workplace Safety and Health Practice Group.

Surgical Masks, Respirators, and More: Employers Grapple with Personal Protective Equipment Requirements Amid Constantly Evolving COVID-19 Guidance and Laws

By Cressinda D. Schlag on October 26, 2020

Eight months into the coronavirus (“COVID-19”) pandemic and employers in both healthcare and non-healthcare settings are grappling with requirements for employees’ use of personal protective equipment (“PPE”) and respiratory protection. Rather than clarify the requirements, continually evolving guidance from the Centers for Disease Control and Prevention (“CDC”), Occupational Health and Safety Administration (“OSHA”), state safety agencies, and state and local health departments only confound the issues by either overstating the requirements in an effort to simplify them or being overly detailed and appearing to conflict with other agency guidance. In some cases, employers’ good-faith efforts to satisfy the requirements are also hampered by limitations in PPE supplies, resources, time, or competing COVID-19 priorities, creating impossible situations and often a balancing of regulatory risks and potential liabilities.

Since March, CDC and federal OSHA guidance have instructed employers to conduct a hazard assessment to determine employees’ risk of workplace exposure to COVID-19 and take appropriate responsive controls. In effect, this guidance encourages all employers to consider COVID-19 a recognized hazard and implement basic infectious disease control and prevention measures, as well as social distancing, good hygiene practices, and enhanced cleaning and disinfection protocols. Higher risk industries, or those industries where employees must or are likely to have close contact (fewer than 6 feet of physical distance) with individuals known or suspected of having COVID-19, were also directed to use appropriate PPE, such as gloves, gowns, safety glasses, masks, and, in some cases, respiratory protection, such as NIOSH approved filtering facepiece respirators like the N95. But determining when exactly a respirator is needed continues to be a moving compliance target. OSHA’s most recent guidance on N95s and N95 use, published in the form of an answer to a frequently asked question (“FAQ Guidance”), also does little to direct employers by stating simply that N95s provide effective personal protection against COVID-19 and that employers are responsible for ensuring employees are protected enough against potential workplace exposures to COVID-19. OSHA’s FAQ Guidance further takes the impractical position of directing employers to cease or delay operations “whenever a [COVID-19] hazard presents an imminent danger,” N95s are unavailable, and other controls do not eliminate the COVID-19 exposure risk. This guidance, in application to healthcare settings, is partially inconsistent with CDC guidance on Optimization Strategies for PPE Supplies, which allows for use of alternative PPE in some cases and does not require full elimination of a COVID-19 exposure risk.

CDC, in fact, has consistently conveyed in guidance that in a healthcare setting, employees should use Standard Precautions, Contact Precautions, and Airborne Precautions and eye protection when caring for patients with confirmed or possible COVID-19. Through its guidance, CDC has directed healthcare employees to implement universal use of PPE and wear, at a minimum, a surgical mask, gloves, eye protection (i.e., safety glasses or face shield), and gown whenever interacting with an individual who is known or suspected of having COVID-19. At the same time, and to the extent feasible, some form of source control, such as a physical barrier or patient’s use of a cloth face covering or mask, should also be used to minimize the risk further of transmitting disease. Respiratory protection, in contrast, is reserved for higher risk procedures, or aerosol generating procedures and surgical procedures that pose a higher risk of transmission if the patient is COVID-19. CDC guidance does not, however, direct healthcare employees to wear respiratory protection simply because there is a potential exposure to COVID-19 in the workplace or risk of exposure to COVID-19 cannot be eliminated.

There are many reasons for limiting the required use of respiratory protection to protect against COVID-19 to use during aerosol generating procedures and certain surgical procedures. To begin with, respiratory protection equipment is simply not available in quantities that could meet the healthcare industry’s demand for universal use. Use of respiratory protection equipment can also put a physical strain on the individual wearing the equipment and cause worker discomfort. Requiring employees to wear respiratory protection also creates a substantial compliance obligation under federal and state occupational health and safety laws. This compliance obligation, which involves, among other things, having a written program, medical surveillance, and fit-testing is even more difficult for employers to comply with in normal times, and nearly impossible to comply with amid the COVID-19 pandemic. In fact, because of supply demands, employers who need respirators are facing many supply shortages. To overcome a supply shortage, employers must often supply employees with respirators that are from a different supplier or manufacturer, creating fit-testing compliance challenges. Supply shortages have also made required fit-testing impossible because of the unavailability of fit-testing kits and equipment. Similarly, because of the spread and incidents of COVID-19 in certain areas, healthcare employees, who but for COVID-19 would never need to wear a respirator, may not be able to undergo medical evaluations before needing to wear a respirator to protect against a COVID-19 exposure in the workplace.

Despite guidance from CDC and OSHA acknowledging issues in PPE and respiratory protection supply shortages, as well as obstacles from COVID-19 circumstances, federal OSHA and state equivalent agencies are aggressively pursuing enforcement of PPE and respiratory protection program violations. A cursory look at OSHA’s COVID-19 enforcement data shows the agency is actively citing hospitals, health care centers, rehabilitation centers, and long-term care and skilled nursing facilities for violating the Respiratory Protection Standard in connection with requirements for written programs, annual fit-testing, and medical evaluations.

Therefore, even if employers are not on the frontline for managing COVID-19, CDC and federal OSHA’s guidance make clear that employers need to conduct a hazard assessment to determine risks of exposure to COVID-19 in the workplace and ensure employees are wearing appropriate PPE and respiratory protection. While employers in healthcare settings need not require universal use of respiratory protection to achieve compliance with CDC infection control and preventive requirements, they will want to ensure their hazard assessment details the rationale behind their selection of PPE for each task or procedure. Employers that are requiring to wear filtering facepiece respirators, such as the N95, should also ensure they comply with applicable federal and state requirements by having a written program and procedures, conducting required medical evaluations and fit-testing, and ensuring employees are fully trained and that this training is documented. Moreover, employers that are unable to achieve full compliance with OSHA’s PPE and Respiratory Protection Standards for whatever reason should maintain detailed records for why full compliance could not be achieved, interim control efforts, and steps taken to come into compliance to preserve a defense against an OSHA citation or enforcement action.

CDC’s Expansion of “Close Contact” Definition Spells Trouble for Employers

By Melanie L. Paul on October 21, 2020

On Wednesday, October 21, 2020, the CDC issued new guidance expanding the definition of a “close contact” from someone who has been within 6 feet of a COVID-19 positive person for 15 minutes or more to:

“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.”

This shift in definition appears to be based on a case study of a single prison guard in Vermont who contracted COVID-19 after interacting within 6 feet of 6 inmates who subsequently tested positive for COVID-19. In an article also published on the CDC’s website on Wednesday, the authors noted that the prison guard had 22 interactions with the 6 inmates for a cumulative 17 minutes over a 24-hour period. Seven days later, the prison guard began experiencing COVID-19 symptoms and 5 days after that he tested positive for COVID-19. The inmates had worn microfiber cloth masks during most interactions with the prison guard that occurred outside a cell but had several interactions with the prison guard without masks. The prison guard wore a microfiber cloth mask, gown, and goggles for eye protection in all his interactions. He also wore gloves during most interactions.

The prison guard anecdotally reported no other known close contact exposures to persons with COVID-19 outside work and no travel outside Vermont during the 14 days preceding illness onset. The article also notes that the community transmission was low at the time, with just 20 cases per 100,000 persons. This prison guard was only 1 out of 13 employees who were exposed to the infectious inmates who tested positive for COVID-19 despite not meeting the definition of having close contact.

What this article does not mention is whether the prison guard and inmates, were wearing their cloth masks appropriately, covering their mouths and noses. Given the vast number of people who do not cover their noses or otherwise wear their masks as chin accessories, there are potential flaws with this “study.” The article also does not note any significance as to whether being exposed to 6 different persons with the virus, who may have varying levels of contagiousness, may have also played a factor. Nor does it note whether the prison guard had any underlying health issues making him particularly vulnerable to transmission of the virus. Moreover, this study lacks an appropriate sample size from which to draw a conclusion about close contacts and this situation could be an outlier.

Notwithstanding these concerns, the CDC is using this information to expand the definition of “close contact.” This much broader definition of “close contact” will likely turn contact tracing on its head, as it will greatly expand the universe of who may be considered a “close contact,” complicating an already impossible task.

This new definition will certainly impact safety and health compliance in the workplace and may have a significant economic impact on businesses. Will this new guidance keep people at home instead of dining out? Will customers continue to shop in brick and mortar stores? Will people be willing use public transportation? These industries are going to face new challenges in providing a safe environment for employees and the public alike. And, for those employers who thought they were safe from OSHA enforcement by following CDC guidance, this new definition is a game changer. OSHA may now use broad definition of “close contact” to support its position that many more COVID-19 cases are “work-related” than previously thought, potentially triggering OSHA recording and reporting requirements. This ever-shifting guidance on COVID-19 continues to plague employers trying to keep their workplaces safe and further demonstrates why OSHA should not be trying to regulate what is actually a public health crisis.

Oregon OSHA Moves Forward with COVID-19 Temporary Standard

By Cressinda D. Schlag and Brian P. Lundgren on October 7, 2020

As circumstances from the coronavirus (“COVID-19”) pandemic continue to evolve, the federal Occupational Safety and Health Administration (“OSHA”) has maintained reliance on Section 5(a)(1) of the Occupational Safety and Health Act (“OSH Act”), known as the General Duty Clause, and current standards to address workplace exposures to COVID-19.

Rather than engage in rulemaking, OSHA has continued to use guidance as its primary mechanism to communicate COVID-19 safety expectations to employers. In part a response to the perceived inadequacy in the current regulatory framework’s ability to address COVID-19 hazards, several states, such as Virginia and New Mexico, have already moved forward with temporary rulemaking for employer COVID-19 response measures.

Now, Oregon OSHA—who led the way in issuing industry specific COVID-19 response measures early in the pandemic and engaged in some emergency rulemaking initiatives—is the next state to move forward with plans to develop and implement a temporary standard for COVID-19. But unlike some of the other states that have focused rulemaking efforts on temporary response measures, Oregon OSHA is taking the additional proactive step of initiating rulemaking on a broader and permanent infectious disease control and prevention rule.

Oregon OSHA envisions the COVID-19 temporary rulemaking and permanent rule as two essentially different projects both in nature and scope.

Oregon COVID-19 Temporary Rulemaking

For the initial temporary rulemaking, Oregon OSHA intends to adopt an emergency rule that sets out requirements to protect against workplace exposures to COVID-19, with distinct but complimentary requirements for workplaces in the healthcare and general industries. In the near final draft COVID-19 Temporary Standard, released by Oregon OSHA on September 25, 2020, the agency identifies proposed COVID-19 requirements that will apply to all workplaces including:

Strict physical distancing requirements, under which employers must ensure that 6 feet of distance is maintained between “all individuals in the workplace” by redesigning the workplace and establishing administrative controls.
Required use of masks, face shields, and face coverings by all individuals in the workplace, with limited exceptions (g., children under the age of 5, while eating or drinking).
Enhanced sanitation measures, such that all common areas accessible to employees and high-touch surfaces are targeted to be cleaned and sanitized every 24 hours.
Increased communication on COVID-19 safety protocols through required postings, employee communications, and training.
COVID-19 incident response measures, including contact tracing procedures, notification processes to affected employees, medical removal of employees for quarantine and isolation when necessary, COVID-19 testing in certain circumstances, and protocols for coordinating with the Oregon Health Authority or local public health department when necessary.

Separately, Oregon OSHA’s draft COVID-19 Temporary Standard, if adopted as is, would require employers to conduct an exposure risk assessment as prescribed in the rule and designate at least one individual per establishment to act as a “distancing officer,” who will be responsible for implementing the employer’s COVID-19 safety protocols and procedures.

Following Oregon OSHA’s release of this draft, the agency’s rulemaking documents indicate that a further revised draft and complete set of appendices will be released for final review towards the end of October 2020. Oregon OSHA also plans to adopt the temporary rule with immediate effect by the end of October or early November 2020.

Oregon Permanent Rule on Airborne Infectious Disease in the Workplace

Once Oregon OSHA has finalized its COVID-19 Temporary Standard, the agency will focus its attention on a permanent Airborne Infectious Disease Rule, which will be have broader infectious disease control and prevention requirements. Throughout October and November 2020, Oregon OSHA plans to meet with rulemaking advisory committees to develop and produce a pre-proposal draft of the permanent rule.

Oregon OSHA expects to release the pre-proposal draft in late November 2020. The permanent rule will be subject to a formal notice and comment period beginning in November 2020 and extending through March 2021.

Key Take Away for Oregon Employers

If Oregon OSHA’s timeline proceeds as is, the agency will have a COVID-19 Temporary Standard in place by the end of this month and a permanent Airborne Infectious Disease Rule in place sometime in 2021, with Oregon OSHA’s current timeline identifying a potential effective date in April 2021.

Both the temporary and permanent rulemaking initiatives present significant implications for Oregon employers, with new administrative requirements, compliance obligations, and considerations for workplace design and operations. Employers in Oregon should therefore keep a close eye on these rulemaking activities and consider participating in stakeholder meetings and by public comment.