Continued Uptick in OSHA Requests for Information to Nursing Homes

By Catherine A. Cano on March 1, 2021

Long-term care facilities have been hit hard by COVID-19. As we approach the one-year anniversary of this national emergency, many facilities have grown accustomed to the additional reporting and scrutiny. However, this climate has also made it easier for OSHA to target long-term care facilities. One of OSHA’s common tactics is using public records (e.g., newspapers and other media) as well as facility reports to the National Healthcare Safety Network (NHSN) to support requests for information about employee deaths (often without opening an inspection). These inquiries come in a variety of forms, from written requests to cold calls. The knee jerk reaction to respond in full is not always the only option, and it can open up the facility to an unnecessary inspection. Most facilities simply do not need that type of disruption or distraction during these trying times.

Unlike the reports to NHSN, which requires nursing homes to report all staff deaths, employers are only required to report work-related deaths to OSHA. This can be a difficult determination with COVID-19 infections. In the spring of 2020, OSHA issued guidance that provided some insight into making such determinations, which we blogged about here.

It is important to remember that OSHA’s right to conduct an inspection is not absolute. OSHA must have specific evidence of an existing violation or show of administrative reasonableness. The fact of a COVID-related employee death does not necessarily meet these standards, particularly given the prevalence of community spread in many areas of the country. The lawfulness of an OSHA request for information or inspection must be determined on a case-by-case basis, and facilities should consult with counsel before refusing to provide information to OSHA.

OSHA’s efforts also underscore the importance of evaluating COVID-related employee deaths and hospitalizations to ensure compliance with OSHA’s reporting requirements.

Cal OSHA Offers Additional Guidance for Its COVID-19 Emergency Temporary Standards: Testing Sites and Scope of Coverage

By Dale R. Kuykendall, Cressinda D. Schlag and Sierra Vierra on March 1, 2021

It has been three months since California approved the Division of Occupational Safety and Health’s (“Cal OSHA”) COVID-19 Emergency Temporary Standard (“ETS”). The rushed implementation of Cal OSHA’s ETS, which imposed new and confusing obligations on employers, left many scratching their heads and resulted in several legal challenges to the ETS. For example, some agricultural employers challenged the ETS on grounds that it was ambiguous, imposed overwhelming compliance obligations on employers, and did not consider costs or feasibility. Other employers continued to raise concerns over requirements in the ETS in public forums, through written questions to Cal OSHA, and directly with their representatives.

Cal OSHA responded to the concerns raised by employers and business associations by publishing a series of online FAQs at the beginning of January 2021. Following the initial series of FAQs, and largely in response to more employer questions, Cal OSHA quietly updated and revised the FAQs on January 26, 2021, and February 26, 2021. In its most recent rounds of FAQ updates, Cal OSHA has added new guidance on testing and the ETS’s scope of coverage.

Testing

A main area of confusion for employers since the ETS was adopted has been around the requirements for COVID-19 testing. This is because Cal OSHA’s ETS uses inconsistent language to discuss requirements (e.g., “offer” vs. “provide” in the context of required testing). The ETS also explicitly conveys that “all employees in the exposed workplace shall be tested and then tested again one week later,” raising questions as to whether an employer must require employees to undergo testing or exclude them from the workplace if testing is refused when required. Employers also struggled with understanding how testing should be provided to employees (e.g., on-site testing using a third party or requiring employees to get tested by a health plan provider). From the original FAQ, it is clear Cal OSHA views the testing provisions as requiring an employer to inform its employees on how they can obtain COVID-19 testing at no cost and during working hours or paid time when testing is required (i.e., following a work-related exposure if working in an exposed workplace during a minor or major outbreak). The original FAQ confirmed that employers had these same notification and testing obligations whenever testing is required under the ETS. But the FAQ largely did not explain how the employer could arrange for this testing beyond simply stating that employers were free to use state or local testing services, arrange testing with a third party, or use health plan provider testing options.

Recent updates to the FAQ clarify that employers have two primary options: the employer can (1) partner with a medical provider to establish a testing program; or (2) use the free testing services provided by the state or county health department. To locate county testing facilities, the employer should check the local county or city health department’s website. To locate the correct website, employers may visit the California Department of Public Health or the National Association of County and City Health Officials website, and click on the applicable county or city health department. Although not mentioned in the updated FAQs, the state also maintains a website on COVID-19 testing locations that employers can use to find testing locations. Cal OSHA’s FAQ updates also convey that employers who need to test a large number of employees on a regular basis can partner with the State of California Valencia Branch Laboratory (“VBL”) to set up on-site testing of employees.

While the updates signal to employers that they may use many different resources to satisfy testing obligations under the ETS, the updates fail to address some of the practical and feasibility challenges that employers are facing. Cal OSHA’s FAQs, in particular, fail to address whether employees that refuse to undergo testing when required or directed under the ETS need to be excluded from the workplace. Instead, Cal OSHA states only that employees may refuse and do not need to sign a declination form. The FAQs are similarly silent on how an employer can effectively manage some of the costs related to testing, such as travel costs, testing time, and out-of-pocket expenses. This can be especially difficult for employers that have employees working in remote areas where there are limited testing locations, such that the use of available testing centers to achieve testing is impracticable or can result in substantial costs in paid time or travel expenses. Further, while Cal OSHA’s FAQs make a determination that employers can arrange for testing with a third-party medical provider, Cal OSHA’s FAQs and guidance do not even attempt to advise employers on where to start in setting up a workplace testing plan. As a result, employers lack clear direction on how to arrange for workplace testing in a way that will satisfy Cal OSHA’s requirements under the ETS and be consistent with workplace testing considerations from the Centers for Disease Control and Prevention (“CDC”). This, in turn, leads to more questions on the employer’s obligations for management of testing records, selection of COVID-19 tests to be used in their workplace testing plan, and coordination of testing with employees.

Scope of Coverage

Cal OSHA’s ETS applies broadly to California workplaces and has only a few limited exceptions. Cal OSHA’s ETS, for instance, does not apply to employees when covered by the Aerosol Transmissible Diseases (“ATD”) standard. In attempting to clarify the scope of this exception, Cal OSHA’s original FAQs conveyed that an employee in a single workplace could not be subject to both the ETS and ATD standards at the same time. This exception is critically important for employers in the healthcare space, as well as emergency responders, as these employees often have ongoing occupational exposures to COVID-19, such that compliance with the ETS would be untenable. In addition, these employees are protected against COVID-19 exposures in the workplace through the ATD’s strict preventive measures and mandatory use of personal protective equipment.

To illuminate the exception further, Cal OSHA’s updated FAQ confirms that emergency responders that are protected by the ATD standard are exempt from the ETS. This is shown by Cal OSHA’s example that firefighters cannot be subject to both the ETS and ATD standards at the same time. Simply put, the firefighter must be protected from COVID-19 under one of the standards, but not by both. If the employer’s ATD Prevention Plan does not identify the firefighter as having occupational exposure to aerosol transmissible diseases, or if the firefighter is not protected under that plan, the ETS will apply. Employers in healthcare and emergency response will therefore need to carefully evaluate COVID-19 exposures in their workplaces and operations, and ensure that employees are protected by the preventive measures under either the ETS or ATD standard. Under this guidance, however, an employer cannot take the position that its entire workplace or operations are exempt from the ETS if only some of its employees are covered by the ATD standard. Employers in healthcare and emergency response may therefore need to comply with both the ATD and ETS in different areas of their operations.

Given the expedited roll-out of Cal OSHA’s ETS and the ongoing litigation surrounding the ETS, the agency will likely continue issuing new FAQs and guidance to employers. If you need assistance in complying with the ETS or other Cal OSHA safety regulations, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

New and Altered Hazard Communication Requirements Coming Soon

By Cressinda D. Schlag on February 22, 2021

Earlier this month, the Occupational Safety and Health Administration (“OSHA”) announced proposed amendments to the Hazard Communication Standard (“HCS”) in 29 CFR 1910.1200. The last time OSHA amended the HCS was in 2012 to align the standard with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”) and to create consistency with other countries in chemical hazard classification, labeling, and communication. Before 2012, the HCS required manufacturers, importers, and employers to evaluate the chemicals they produced, imported, and used for possible hazards and communicate hazard information to downstream workers using container labeling and safety data sheets (“SDS”). To protect employees from chemical hazards, employers were also required to have written hazard communication programs and employee training. These measures were not, however, always done consistently because of the varying international, federal, and state laws regulating hazardous chemical identification, classification, and hazard communication. As a result, many employers had difficulty complying with the standard and workers were often confused on chemical hazards.

In amending the HCS in 2012, OSHA had a primary goal of ensuring workers received consistent and accurate information on chemicals they used in the workplace. A second goal was to ensure effective and consistent hazard communication between manufacturers, suppliers, and employers. This, in turn, required uniformity in the methods used to identify, classify, and communicate on chemical hazards (e.g., labeling and SDS pictograms and signal words). It also required major changes in how manufacturers, importers, suppliers, and employers evaluated chemical hazards, noted hazard information on product SDSs, and development or revisions to hazard communication programs and training materials to ensure employees understood SDS and label elements. In practical effect, OSHA’s 2012 amendments constituted a broad overhaul of the HCS and took time to implement. The revised HCS, in fact, was not fully implemented until June 1, 2016 and many employers faced challenges in meeting the compliance deadlines established in the revised standard.

While OSHA’s 2012 amendments helped match the United States’ approach to management of chemical hazards with international standards, OSHA’s 2012 amendments only aligned the HCS with Revision 3 of the GHS (77 FR 17574). The United Nations has, however, published revised editions of the GHS every two years since 2002 and is currently on Revision 8, making the HCS out of date with international standards. To bring the HCS up to date, or closer to it, OSHA’s proposed rulemaking if enacted would, among other things, align the HCS with Revision 7 of the GHS and select provisions of Revision 8. But the proposed modifications to the HCS also change how employers must label some chemical products in the workplace. The proposed revisions also alter requirements for SDS content and modify protections for chemical information that may be confidential business information or trade secret.

Changes in Hazard Classifications

One major amendment proposed for the HCS is to revise criteria for the classification of certain health and physical hazards, including unstable gases, non-flammable aerosols, skin corrosion, or irritation, eye irritation, and aerosols generally. The proposed amendments would also create a new hazard class for desensitized explosives. Through these changes, certain non-hazardous products, classed under the 2012 amendments, may now need to be identified as hazardous or managed in a different hazard class. They may also need to have revised labeling and SDSs. Employers handling and using aerosol products may now also have requirements under the HCS where previously they did not. Further, manufacturers, importers, and suppliers of aerosols, desensitized explosives, and flammable gases will need to reevaluate their products and ensure proper classification, identification, labeling and communication of product hazards.

Labels and SDS Content

While OSHA’s proposed HCS amendments do not change the existing requirements for hazards to be communicated to downstream users and workers through labeling and SDSs, they would require SDS and labeling revisions. OSHA has proposed new warning language and precautionary statements in an effort to help clarify chemical hazards to workers. Some language proposed in the amendments at first appears to be more of a stylistic change than substantive. For example, rather than say “during pregnancy/while nursing,” the new precautionary statement language would state “during pregnancy and while nursing.” But the effect of this change is significant in that now both the scenario of pregnancy and nursing must be addressed on the product label and SDS where before only one may have been on the label. Other proposed changes introduce entirely new statements for hazard classes and categories. OSHA has more proposed new precautionary pictograms and mandatory language.

Even though the proposed changes would require many chemical manufacturers, importers, and suppliers to revise and update certain products’ SDSs and labels, OSHA’s proposed rule contemplates that these revisions will be easy to make. Indeed, OSHA’s proposed rulemaking suggests that effected employers can make required changes consistent with the HCS’s existing requirement to update SDSs and labels whenever new information is available and within three and six months, respectively.

Cooperation with International Trading Partners and Federal Agencies

A key goal in OSHA’s proposed amendments to the HCS is to facilitate cooperation with international trading partners and federal agencies. This goal is particularly relevant to chemical manufacturers, suppliers, and importers who operate internationally, in that having consistent use of GHS across countries can reduce inconsistencies in chemical management compliance obligations. OSHA’s attempts to harmonize its procedures with other federal agencies is refreshing and the proposed amendments both consider how many regulatory frameworks a product may be subject to and seek alignment in imposed obligations. Chemical hazards may, for instance, be subject to requirements imposed by OSHA, the Department of State, the Department of Transportation (“DOT”), the Environmental Protection Agency (“EPA”), the U.S. Coast Guard, the Consumer Product Safety Commission (“CPSC”), the Department of Energy (“DOE”), the Department of Defense (“DOD”), and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”). Along with leading an U.S. Interagency GHS Coordinating Group and working with representatives of these other federal agencies, OSHA is also actively collaborating with EPA to address health hazards from chemicals consistently. EPA has, for example, proposed changes to its regulations on significant new uses of chemical substances under the Toxic Substances Control Act (“TSCA”) to align with the HCS and the GHS (81 FR 49598).

OSHA’s proposed amendments would also provide flexibility in labeling when the product is already labeled for shipment consistent with DOT regulations. For instance, OSHA has proposed new HCS language addressing requirements for bulk shipments that allows labels to be placed on the immediate container or transmitted with shipping papers, bills of lading, or electronically. This approach would ensure hazard information is immediately available to workers on receiving the shipment of hazardous chemical products but allows for different approaches in how hazard communication is achieved. The proposed amendments would also allow for use of a DOT required pictogram on the label of a shipped container, without requiring additional placement of the HCS pictogram for the same hazard.

Unique Circumstances

On top of updating the HCS, aligning with more recent revisions of the GHS, and ensuring consistent management of chemical hazards with federal agencies, OSHA’s proposed amendments aim to make the standard more effective in certain unique circumstances. OSHA has specifically included proposed HCS amendments on labeling of small containers and relabeling of chemicals for shipment. Small container labeling has been of significant interest to the regulated community because many manufacturers and importers reported they could not comply with the HCS’s labeling requirements for small containers during public meetings and requests to the agencies. Though OSHA has tried to address these issues in several letters of interpretation, the proposed amendments would specifically address how containers should be labeled when the label is too small to note all required safety information, including all information required would cause readability issues, and challenges associated with fold-out labels.

OSHA has similarly proposed changes to the requirements for relabeling of chemicals that have a long or complex distribution chain. Complex distribution chains include, for example, products that are manufactured and then shipped to a distributor where there are then held for a long time before distribution to an end user. Another example is product returns from downstream users that are then shipped from the distributor to other customers. In effect, OSHA’s proposed amendments eliminate relabeling in these scenarios, provided products are clearly labeled and hazards are effectively communicated.

OSHA has even more proposed two key changes to the HCS on trade secrets and proprietary information. Presently, OSHA does not allow manufacturers to claim concentration ranges as trade secrets. But under the proposed amendments manufacturers, importers, and employers would not have to disclose chemical concentration ranges on SDSs or labels if claimed as a trade secret and would instead use a prescriptive concentration range. This approach would fit with other country’s requirements for disclosure of substance ingredients and provide greater protection for confidential business information and trade secrets. Federal agencies would also still have avenues for learning of the substance ingredients if needed. OSHA, in particular, can obtain confidential business information on a specific chemical product in collaboration with EPA under the agencies’ memorandums of understanding and interagency working groups.

Considerations for Employers

OSHA’s proposed HCS amendments are substantial and would impact manufacturers, importers, suppliers, and employers. Employers, in fact, would need to review their product inventories, ensure proper product classification, as well as update their written programs, SDSs, and training materials. Employers may also need to modify their labeling procedures and methods of communicating chemical hazards. Once these changes are complete, employers will further have to roll out training to affected managers, supervisors, and employees. Implementing such extensive changes could be difficult for some employers, particularly if already facing competing compliance and resource priorities and demands caused by unforeseen challenges from the coronavirus pandemic.

Ways to Participate in the Rulemaking

OSHA’s notice of proposed rulemaking to amend the HCS asks interested parties to submit comments on the proposed changes. Comments, including requests for a public hearing on the proposed rule, must be submitted to the Federal Register for Docket No. OSHA-2019-0001 by April 19, 2021. If requests for a hearing are submitted during the comment period, OSHA will schedule an informal public hearing for interested parties to testify on the effect of the proposed rule and introduce evidence on the rule’s potential impact.

If you have any questions on OSHA’s proposed amendments to the HCS, would like assistance with submitting written comments, or need help with chemical risk management issues please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

Push to Give Workers Right to Sue Employers for Occupational Safety and Health Act Violations

By Courtney M. Malveaux and Catherine A. Cano on February 17, 2021

As the Occupational Safety and Health Act (OSH Act) turned 50 in December 2020, the Center for Progressive Reform (CPR) issued “OSHA’s Next 50 Years: Legislating a Private Right of Action to Empower Workers,” in which it suggested that Congress provide a private right of action for employees under the OSH Act.

To read this article in its entirety, please click here.

OSHA Issues New Guidance for Employers Combating COVID-19

By Mary L. Bradley and Raymond Perez, II on February 8, 2021

On January 29, 2021, the Occupational Safety and Health Administration (OSHA) published “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” The Guidance incorporates much of the existing guidance from the Centers for Disease Control and Prevention (CDC), adds to guidance OSHA previously issued, and reflects strategies and practices familiar to many employers. To read the entire article, click here: https://www.jacksonlewis.com/publication/osha-issues-new-guidance-employers-combating-covid-19

A New Chairperson Now Leads the Occupational Safety and Health Review Commission

By Mary L. Bradley on February 2, 2021

Cynthia L. Attwood was sworn in as Chair of the Occupational Safety and Health Review Commission (Review Commission), January 20, 2021, following her designation by President Joseph R. Biden Jr. Ms. Atwood is very familiar with the role of Chair, having served as Acting Chairman and then Chairman from April 2015 until January 2017. In 2010, Ms. Atwood was first appointed to the Review Commission by President Barack Obama and he reappointed her in 2013. In 2020, President Donald J. Trump appointed Ms. Attwood to a third term.

The Review Commission was established by Congress as an independent federal agency that acts as a quasi -judicial body to adjudicate contested OSHA citations. The Review Commission is comprised of three Commissioners who are appointed by the president to hear appeals from decisions of the Review Commission’s Administrative Law Judges (ALJs).

Ms. Attwood has had an extensive career in federal service and is a seasoned attorney and manager. Prior to joining the Review Commission, she served in several capacities at the U.S. Department of Labor spending over a decade in the Senior Executive Service as Associate Solicitor for Occupational Safety and Health Administration and as Associate Solicitor for Mine Safety and Health. In addition, for three years she served as Administrative Appeals Judge on the Department of Labor’s Administrative Review Board. In her early career, Ms. Atwood served in the Civil Rights Division of the U. S. Department of Justice where she litigated before the Supreme Court of the United States and the United States Court of Appeals.

The trend in recent Review Commission decisions reflects favorably for employers. Although Ms. Attwood is considered as pro-employee, in three recent decisions the commissioners unanimously decided in favor of the employer. The decisions resulted in a serious citation being vacated, an unforeseeable error was determined to be an understandable mistake and a trial judge’s credibility determination overruled. According to the OSHRC website, as of February 2, 2021, 21 decisions are awaiting review. If the trend is an accurate predictor, the Review Commission may continue to more highly scrutinize OSHA enforcement actions, representing a win for employers.

OSHA Issues Updated COVID-19 Guidance in Compliance with President Biden’s Executive Order

By Mary L. Bradley and Raymond Perez, II on January 29, 2021

As directed by President Joe Biden’s Executive Order issued on January 21, 2021 requiring the Federal Government to take swift action to protect workers from the COVID-19 pandemic, the Occupational Safety and Health Administration (“OSHA”) has released updated guidance on how to prevent exposure and the spread of COVID-19 in the workplace.

The guidance entitled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” was posted on OSHA’s website on January 29, 2021. As with OSHA’s previous recommendations, this guidance is not mandatory and does not have the same legal effect as an OSHA standard. However, it does give some insight into what OSHA expects to include in an emergency temporary standard (“ETS”) which the new Administration wants the agency to consider and potentially implement by March 15, 2021.

Most employers will be familiar with the elements in the guidance, but here are some of the significant new measures addressed in the guidelines:

Employers should provide all workers with face coverings (i.e., cloth face coverings, surgical masks), unless their work task requires a respirator. Many states did not require this and OSHA did not previously recommend employers purchase masks.
Provide a COVID-19 vaccine at no cost to eligible employees.
Do not distinguish between vaccinated workers and those who are not vaccinated for purposes of implementing safety measures.
Minimize the effect of quarantine and isolations by implementing non-punitive policies, and provide paid sick leave. Employers with less than 500 employees are encouraged to provide FFCRA leave which is still available (though not mandatory) through March 31, 2021 under the Families First Coronavirus Response Act.
Provide guidance on screening and testing.
Assign a workplace coordinator responsible for COVID-19 issues.

OSHA’s guidance related to the COVID-19 pandemic continues to evolve and further changes are expected with President Biden’s new Administration. James “Jim” Frederick, a former United Steelworkers safety official, has been named by the Administration to act as the head of OSHA on an interim basis. Mr. Frederick has indicated that in that role he will be focused on drafting and implementing an enforceable emergency COVID-19 standard. While these efforts may be opposed by various industry groups, employers need to be aware of these potential new developments so they can take appropriate steps to ensure that they are following the best recommendations to address the pandemic and provide their employees a safe and healthy working environment.

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.

Additional Guidance for Cal OSHA’s COVID-19 Emergency Temporary Standards

By Cressinda D. Schlag on January 22, 2021

In November, California quietly approved the Division of Occupational Safety and Health’s (“Cal OSHA”) COVID-19 Emergency Temporary Standard (“ETS”). Almost immediately, Cal OSHA’s ETS caused significant confusion and challenges for employers, who were already struggling with countless federal, state, and local requirements pertaining to COVID-19. Cal OSHA’s ETS also appeared to create new and different notification obligations for COVID-19 cases than those already provided for under AB 685 and standing health officer orders, and imposed confusing obligations on employers related to COVID-19 testing, work exclusions, and reporting of COVID-19 cases. In places, Cal OSHA’s ETS could also be viewed as requiring inconsistent response measures to those recommended under current guidance from the Centers for Disease Control and Prevention (“CDC”) and standing health officer orders. Moreover, the ETS requires preventive measures without consideration for the feasibility of those measures for certain workplaces.

In response to numerous concerns raised by employers and business associations, Cal OSHA’s standards board held a public meeting on the ETS in mid-December. And in response to stakeholder concerns, Cal OSHA promised to provide additional guidance on the ETS in the form of updated Frequently Asked Questions (“FAQs”) on its website.

At the start of January, and more than a month after the ETS had gone into effect, Cal OSHA finally published its additional guidance on the ETS.

The FAQs cover a host of topics, including information on the ETS’s applicability, how Cal OSHA intends to enforce the ETS, key requirements, and guidance for how employers can comply. Cal OSHA also provided clarification on testing requirements, considerations for “multiple infections,” or outbreak conditions, and requirements for providing exclusion pay to employees. Although much of the FAQs are merely a restatement of the actual ETS, there are some clarifications in the FAQs that have a substantial impact on employers. The FAQs also at times appear to depart from the ETS and provide an altered compliance obligation.

Some highlights from the FAQs include the following:

Scope of Coverage: The ETS applies to all employers, employees, and all places of employment with three exceptions:
- A workplace where there is only one employee who does not have contact with other people;
- Employees who are working from home; and
- Employees who are covered by Cal OSHA’s Aerosol Transmissible Diseases Standard and regulations.
Communication with Employees: Under the ETS, employers must have effective communication with employees on (i) how to report COVID-19 symptoms, exposures, and hazards to the employer without fear of reprisal, (ii) COVID-19 hazards in the workplace, (iii) the employer’s COVID-19 related policies and procedures; (iv) testing resources, (v) how the employer will notify employees of potential COVID-19 exposures; (vi) the employer’s cleaning and disinfection protocols; and (vii) how employees can participate in identification and evaluation of COVID-19 hazards in the workplace. Employers must also provide training to employees on a wide range of COVID-19 related topics, including information on benefits that may be available to the employee and the proper use of face coverings.
Outbreaks and Exposed Workplaces: The FAQ somewhat clarifies the definitions of an outbreak, major outbreak, and “exposed workplace” for Cal OSHA purposes. For purposes of the ETS, “an outbreak” is three or more employees who are COVID-19 positive in 14 days, whereas “a major outbreak” is 20 or more employees testing positive in 30 days in an exposed workplace. An “exposed workplace” is, in turn, considered to be a work location, working area, or common area that is used or accessed by a COVID-19 case during their high-risk period or infectious period and can include bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas. However, the FAQs indicate that Cal OSHA does not expect employers to treat areas where masked employees momentarily pass through as part of the “exposed workplace.” Cal OSHA’s FAQs also do not address the fact that their interpretation of an outbreak or exposed workplace may be markedly different from the local health departments or how employers should address an outbreak condition when there are competing definitions or requirements under California laws (e.g., the ETS and health officer order).
Testing Requirements: In an attempt to clarify the testing obligation for employers, Cal OSHA’s FAQ states that when testing is required under the ETS, employers must only (i) inform employees on the need for testing and how they can obtain COVID-19 testing; (ii) offer testing to the affected employees at no cost; and (iii) ensure employees are compensated for the time it takes to get tested. Despite the plain language of the ETS conveying different obligations for testing in response to a COVID-19 case and outbreak conditions, Cal OSHA’s FAQ also states that there is no difference in meaning between the obligation to “offer” or “provide” testing in the ETS. Further, even though the ETS conveys that employees are to be immediately tested in some circumstances, employers are not required to mandate employee testing, exclude the employee from the workplace until testing is complete, or obtain a declination from an employee who refuses to be tested.

Even though Cal OSHA provided 69 FAQs and responses, employers are likely to continue to have questions as well as face compliance challenges. Cal OSHA has, for example, not addressed the permissibility of employers using COVID-19 testing resources that are approved through an alternate regulatory pathway than the Food and Drug Administration and Emergency Use Authorization pathway outlined in the ETS, even if these testing resources are more readily available or affordable.

Cal OSHA’s FAQs also do not address challenges posed by the exclusion pay provisions. This is especially significant given that some of the sick leave benefits Cal OSHA contemplates as being available for employers to meet exclusion pay provisions expired at the end of 2020 and have not been renewed. Moreover, Cal OSHA does not address the apparent conflict in the exclusion pay provisions and workers’ compensation compensability. The conflict arises especially with employees who become symptomatic as they may not be eligible for exclusion pay and may also not be eligible for workers’ compensation.

Cal OSHA’s FAQs has advised that additional resources for compliance are forthcoming and that resources, including sample training materials, will be posted and updated on Cal/OSHA’s COVID-19 webpage.

If you need assistance in complying with the ETS or other Cal OSHA safety regulations, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

New Year, New OSHA Citation Penalty Amounts

By Raymond Perez, II on January 14, 2021

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.

Virginia Passes Permanent Standard on COVID-19

By Courtney M. Malveaux on January 14, 2021

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.