OSHA Issues New Enforcement Guidance on Respiratory Protection

Earlier today, the Occupational Safety and Health Administration’s (“OSHA”) Directorate of Enforcement Programs issued a new memorandum and interim guidance (“Enforcement Guidance”) on enforcement of the respiratory protection standard, 29 CFR § 1910.134, and certain other health standards, in light of the severe shortages in respirator availability. Consistent with the agency’s March 14, 2020 enforcement memorandum on temporary enforcement guidance for respirator use in the health care industry, OSHA’s Enforcement Guidance expands the agency’s discretionary enforcement policy to all industries, including specifically healthcare personnel (“HCP”) and workers in other industries who are facing respirator shortages due to the coronavirus (“COVID-19”) pandemic (e.g., construction).

After acknowledging some of the challenges faced by employers from the COVID-19 pandemic, including specifically current supply shortages of disposable N95 filtering facepiece respirators (“FFR”), OSHA’s Enforcement Guidance outlines specific enforcement discretion to allow for extended use and reuse of respirators, and in some circumstances use of respirators that have “expired” or are older than the manufacturer’s recommended shelf life. OSHA’s Enforcement Guidance is, however, “time-limited to the current public health crisis” and employers are expected to “continue to manage their respiratory protection programs (RPPs) in accordance with the OSHA respirator standard.”

In application, OSHA’s Enforcement Guidance provides employers with some specific workarounds to current respirator supply shortages, including:

  1. Allowing workers to extend use of or reuse N95 FFRs, provided the mask is used by only one worker, is not contaminated or damaged, and maintains structural and functional integrity; and
  2. Allowing employers to use N95 FFRs that have exceeded the manufacturer’s recommended shelf life, including surgical N95s, in some situations where N95s are not readily available.

Further, to the extent respiratory protection is required and N95 FFRs would normally be used but are unavailable, employers are permitted to consider alternative classes of respirators so long as they provide equal or greater protection to an N95 FFR.

Employers should note, however, that OSHA’s Enforcement Guidance does not eliminate or reduce any obligation to protect employees from a potential respiratory hazard. Consequently, in the event respirators are not readily available because of supply shortages, OSHA’s Enforcement Guidance makes clear that employers will be expected to reassess whether other available controls are available to eliminate or control the exposure. For example, in dusty environments where an employer would normally control potential respiratory hazards using a dust mask or respirator, the employer may need to use a wet method or portable local exhaust system to control dust exposure if dust masks or respirators are unavailable. Further, OSHA’s Enforcement Guidance does not eliminate or reduce other compliance obligations under the respiratory protection and corresponding personal protective equipment standard, including specifically compliance obligations related to hazard assessments, inspections, and training.

While ultimately, OSHA’s Enforcement Guidance brings the agency’s position on respirators more in line with guidance from the Center for Disease Control and Prevention regarding extended use and limited reuse of respirators, employers facing respirator supply shortages, stretched resources, and operational restrictions in light of the COVID-19 pandemic will continue to face compliance challenges. If you have questions regarding how best to address respiratory protection in the current work environment, please reach out to Jackson Lewis’ Coronavirus Task Force at jlcovid-19support@jacksonlewis.com.

Construction Industry Coronavirus Guidance from NYC and OSHA

Construction workers received guidance on best practices in preventing the spread of novel coronavirus from New York City. The city has recognized that ordinary practices at construction sites – shared tools, huddled shift meetings and packed schedules with varied trade contractors – can present unique dangers at construction sites.

The Occupational Safety and Health Administration (OSHA) has issued non-industry-specific guidance on preparing workplaces for COVID-19, the potentially deadly respiratory disease caused by the novel coronavirus. Amid growing concerns of construction workers who share tools and portable commodes without adequate sanitation, New York City has provided guidance to address work practices specific to construction work.

In addition to universal tips on handwashing, cleaning surfaces and monitoring symptoms, the guidance recommends staggered schedules for pre-shift meetings, new employee orientations and other in-person meetings. It also suggests telephonic or outdoor meetings when a group has to convene.

Employers should also:

  • Ensure sufficient handwashing stations with soap and running water near commodes and break areas;
  • Keep workers at least six feet apart whenever possible while working together or supervising each other;
  • Sanitize shared equipment and tools frequently; and
  • Stagger trade contractors to prevent spread.

General contractors, prime subcontractors and site owners may also consider developing protocols before workers and inspectors can enter the worksite.

Jackson Lewis attorneys and the dedicated COVID-19 Task Force are available to assist employers with workplace health matters or to answer any questions.

Cal OSHA issues Guidance on COVID-19 Infection Prevention for Childcare Industry

It is well known that California’s workplace health and safety regulations direct employers to develop and implement an Injury and Illness Prevention Program (“IIPP”) to protect employees from workplace hazards. Some employers also have an obligation under the California Department of Industrial Relations Division of Occupational Safety & Health’s (“Cal OSHA”) Aerosol Transmissible Diseases (“ATD”) standard (Title 8 California Code of. Regulations (CCR) §5199) to take additional precautions to protect workers from airborne infectious diseases, such as coronavirus (“COVID-19”). To further address risks of exposure to COVID-19 from working with children, Cal OSHA recently issued guidance to childcare industry employers and program administrators on ‘COVID-19 Infection Prevention in Childcare Programs.’

In addition to reminding childcare industry employers of the importance of having an IIPP, Cal OSHA’s guidance instructs these employers to implement specific procedures to prevent the spread of COVID-19 in the workplace, which include:

  • Having a comprehensive plan (i.e., procedures for daily check-ins and communications with parents and guardians) for how to share information on COVID-19 related issues, such as observed symptoms of COVID-19 infection and effective screening of children for COVID-19 infection;
  • Coordinating with local health officials on what to do in the event someone at the childcare facility is determined to have COVID-19 infection;
  • Educating children at the facility on how to prevent the spread of COVID-19 through proper hygiene practices (i.e., frequent hand washing, telling an adult when they do not feel well, coughing and sneezing etiquette, etc.);
  • Setting up a plan for how to manage children that become sick at the facility (e.g., isolation, communication with parent or guardian, etc.); and
  • Routinely cleaning and disinfecting surfaces and objects at the facility using products that are approved by the U.S. Environmental Protection Agency (“EPA”) for use against COVID-19.

Cal OSHA’s guidance also instructs childcare industry employers to train employees on  how COVID-19 is spread, precautions employees should take to prevent the virus from spreading, COVID-19 symptoms, and when to seek medical assistance for children or employees. Under the guidance, childcare industry employers should also be training employees on the employer’s plan for managing children at the facility that become sick and the procedures established for protecting employees from COVID-19 infection.

While many childcare industry employers in California will already have some of these program components in place, Cal OSHA’s guidance makes clear that the agency expects these employers to incorporate COVID-19 specific measures and precautions into their IIPP and infection prevention procedures. Cal OSHA’s guidance also indicates that the agency expects childcare industry employers to educate children on COVID-19 so that they can also help prevent the virus from spreading at the facility. Following issuance of this guidance, Cal OSHA may view a childcare industry employer’s failure to incorporate COVID-19 specific details into their IIPP, infection prevention procedures, or training as a failure to take necessary precautions to protect against workplace hazards and pursue an enforcement action.

Jackson Lewis attorneys and the dedicated COVID-19 Task Force are available to assist employers with a review of their IIPP and procedures, as well as to answer any questions.

OSHA Issues Temporary Guidance for Health Care Industry Hoping to Blunt Possible Respirator Shortage

As COVID-19 continues to spread throughout the United States, one concern is whether there are sufficient numbers of respirators in order to protect healthcare providers who are on the frontlines of dealing with infected and potentially infected patients. On March 11, 2020, President Trump issued a Presidential Memorandum stating that the government “must ensure that our healthcare providers have full access to the products they need.” In that memorandum, the President acknowledged that “at present, public health experts anticipate shortages in the supply of personal respiratory devices (respirators) available for use by healthcare workers in mitigating further transmission of COVID-19.” In order to address this issue, the memorandum tasks the Secretary of Labor to “consider all appropriate and necessary steps to increase the availability of respirators.”

In response to the Presidential Memorandum, on March 14, 2020, the Department of Labor issued temporary enforcement guidance regarding respirators. The guidance became effective on the date it was issued and will remain in effect until further notice. It is intended to address the potential supply shortages of N95 filtering facepiece respirators in the face of the COVID-19 outbreak. The guidance reiterated that “appropriate respiratory protection is required for all healthcare personnel providing direct care” to patients with known or suspected COVID-19. The guidance goes on to recognize that healthcare providers must still take measures to conserve respirator supplies. In order to assist with this conservation effort, OSHA recommends that healthcare employers “provide [healthcare providers] with another respirator of equal or higher protection, such as N99 or N100 filtering facepieces, reusable elastomeric respirators with appropriate filters or cartridges, or powered air purifying respirators (PAPR).” Additionally, OSHA suggested that healthcare employers change their method of fit testing “from a destructive method (i.e., quantitative) to a non-destructive method (i.e., qualitative).” This way the respirator can then be used safely for work tasks after the fit test is conducted.

Finally, the guidance stated that OSHA field offices would be exercising enforcement discretion regarding its annual fit testing requirement, 29 CFR § 1910.134(f)(2), so long as employers in the health care industry did the following:

  • Make a good-faith effort to comply with 29 CFR § 1910.134;
  • Use only NIOSH-certified respirators;
  • Implement CDC and OSHA strategies for optimizing the supply of N95 filtering facepiece respirators and prioritizing their use;
  • Perform initial fit tests for each HCP with the same model, style, and size respirator that the worker will be required to wear for protection against COVID-19 (initial fit testing is essential to determine if the respirator properly fits the worker and is capable of providing the expected level of protection);
  • Inform workers that the employer is temporarily suspending the annual fit testing of N95 filtering facepiece respirators to preserve and prioritize the supply of respirators for use in situations where they are required to be worn;
  • Explain to workers the importance of performing a user seal check (i.e., a fit check) at each donning to make sure they are getting an adequate seal from their respirator, in accordance with the procedures outlined in 29 CFR § 1910.134, Appendix B-1, User Seal Check Procedures;
  • Conduct a fit test if they observe visual changes in the employee’s physical condition that could affect respirator fit (e.g., facial scarring, dental changes, cosmetic surgery, or obvious changes in body weight) and explain to workers that, if their face shape has changed since their last fit test, they may no longer be getting a good facial seal with the respirator and, thus, are not being adequately protected; and,
  • Remind workers that they should inform their supervisor or their respirator program administrator if the integrity and/or fit of their N95 filtering facepiece respirator is compromised.

OSHA reiterated that this enforcement discretion only applies to annual fit testing for healthcare personnel and does not apply or impact any of the other requirements of Respiratory Protections standard such as initial fit testing, maintenance, care, and training. Given this guidance and guidance from the Center for Disease Control and Prevention regarding extended use and limited reuse of respirators, healthcare employers are in a difficult position of having to both conserve their respirator supply and ensure that its employees are appropriately protected. If you have questions regarding this balancing act, please reach out to Jackson Lewis’ Coronavirus Task Force at jlcovid-19support@jacksonlewis.com.



Is COVID-19 Recordable or Reportable to OSHA?

We are all adjusting to a new normal for the next few weeks and the impact on COVID-19 is significant on employers, this includes ensuring employees who may be at risk are kept safe and healthy by implementing necessary OSHA requirements.  A few weeks ago, OSHA issued general guidance on COVID-19 for employers.  In doing so, there was a very general statement about tracking COVID-19 cases and recording them in compliance with OSHA’s recordkeeping standards.  The lack of specificty set off new questions by employers, which OSHA has now tried to clarify on its website.

Generally, we have seen some confusion between something that is recordable versus reportable for OSHA purposes.   Below are some questions and answers that hopefully address employer concerns about recordkeeping and reporting to OSHA COVID-19 employee illnesses.

Is an employee confirmed with COVID-19 recordable on the OSHA 300 Log?

Work-related injuries or illness are recordable under certain circumstances.  But it should be noted, that not all employers are required to maintain work-related injuries and illness records.  Some employers are exempt based on their North American Industry Classification System (NAICS) codes. For example, banks are exempt under NAICS 5221 – Depository Credit Intermediation. This classification includes for example commercial banking, 52211 and credit unions 52213.

But assuming the establishment is not exempt and is required to maintain work-related injury and illness records, if an employer has a confirmed COVID-19 case of an employee where the work environment was likely the cause or contributing factor of the illness then the COVID-19 case might be recordable if the one of the following occur:

  1. Medical treatment (beyond first aid) is provided, such as prescription medication is issued
  2. Restricted duty is imposed by the treating physician or the employer
  3. Days away from work (lost time) is imposed by the treating physician  (employee is kept from work and cannot work at home due to the virus)

Given what we know about the virus currently, it is more likely that medical treatment or days away (lost time) will occur with COVID-19.

Here is what OSHA has specifically said on the recording of a confirmed COVID-19 case:

COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. However, employers are only responsible for recording cases of COVID-19 if all of the following are met:

  1. The case is a confirmed case of COVID-19 (see CDC information on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19);
  2. The case is work-related, as defined by 29 CFR 1904.5; and
  3. The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medical treatment beyond first-aid, days away from work).

If the case is recordable, can it be considered a privacy case and kept on a separate log?

So technically no, a privacy case is defined very specifically in the regulations and a COVID-19 case does not meet that definition, however, if it is recorded on a separate log there is likely no harm here and there are strong reasons to argue these should be considered privacy cases and employee names not be placed on the log. However, absent specific guidance from OSHA on this, the case does not meet the definition of a privacy case under OSHA’s requirements and employers who treat such cases as privacy cases should be aware of potential laibility. The exception would be if any employee voluntarily requests that his or her name not be entered on the OSHA 300 Log.

Does workers compensation related to COVID-19 have any impact on recording a case?

Whether a workers compensation claim is filed or not has no bearing and whether the claim is paid or denied has no bearing on whether a COVID-19 case is recordable either.

Is an employee confirmed with COVD-19 reportable to OSHA?

The only way a COVID-19 case would be reportable to OSHA would be if the employee passes away or is hospitalized as an in-patient (out patient hospitalizations are not reportable to OSHA) as a result of COVID-19 contracted from performing work-related duties.   The normal criteria for reporting serve injuries applies even to COVID-19 cases.  Employers must report any worker fatality within 8 hours and any amputation, loss of an eye, or hospitalization of a worker within 24 hours. It should be noted that even employers who are exempt from recordkeeping must report a severe injury if it meets this criteria.

Jackson Lewis has a team of dedicated attorneys to address employer concerns and questions relating to COVID-19.  Additional information can be found on our dedicated webpage.

Kentucky Considers Amendments to Injury Reporting Requirements

On February 12, 2020, Kentucky’s Labor Cabinet’s Department of Workplace Standards has proposed an amendment to its regulation on employer’s obligations to report workplace injury and illnesses. Currently, employers in Kentucky must report all “work-related” incidents involving the loss of an eye, hospitalization of fewer than 3 employees, or amputation within 72 hours of the incident. Employers must also report all “work-related” incidents leading to death of an employee or the hospitalization of three or more employees. The proposed amended regulation would affect three major aspects of the injury reporting rule: 1) the work-related element of the reporting requirement; 2) the types of medical treatment that will constitute hospitalization; and 3) the time frame for reporting amputations and the loss of an eye.

The first change proposed is the elimination of the work-relatedness requirement for reporting injuries. Under current Kentucky law, workplace injuries and illnesses need not be reported unless they are work-related. There is a presumption that an injury and illnesses sustained at work are indeed work-related. But that presumption may be rebutted by the employers.

The proposed amendment to Kentucky’s reporting regulations would upend this framework. Instead of there being a rebuttable presumption that injuries or illnesses sustained at work are work-related, the proposed regulation would eliminate the requirement of work-relatedness in Kentucky. If the proposed amendment is approved, employers would need to report each “eye loss, hospitalization, amputation, and/or death that “occurs in the work environment, or is caused or contributed to by an event in the work environment” to Kentucky OSHA, even if not work-related. While this amendment would make it easier for employers to determine whether to report an injury or illness, it could also lead to Kentucky OSHA collecting data that does not necessarily reflect how safe a worksite actually is.

Second, the Department of Workplace Standards has proposed an expansion the definition of a reportable hospitalization. The current rule requires employers to report “in-patient hospitalizations” and hospitalizations involving only observation or diagnostic testing need not be reported. The proposed amendment would require all formal admissions to be reported even if the admission were only for observation or diagnostic testing.

Finally, the proposed amendment would address a time limitation for reporting of an eye loss, amputation, hospitalization, or death occurs that more than 72 hours (or 8 hours in death or mass hospitalization) after a workplace incident. Presently, employers need not report loses of an eye, amputations, or hospitalizations of fewer than 2 employees if not occurring within 72 hours of the workplace incident. So, for example, an employer would not have to report an employee receiving a medical amputation two weeks after sustaining a workplace injury. However, the amendments would do away with the 72-hour threshold and employers would have to report all amputation and eye loss injuries no matter how long they occur after the workplace incident.

The Labor Cabinet is holding a public hearing on these proposed amendments on April 23, 2020. If these amendments to come into effect, employers in Kentucky will need to become educated on the revised requirements and likely update their processes and procedures for injury and illness reporting.

Cal/OSHA Standards Board Approves Employee IIPP Access Rule

As previously addressed by the OSHA Law Blog, California’s Occupational Safety and Health Standards Board (“Standards Board”) considered a proposed standard that would allow employee access to their employer’s Injury and Illness Prevention Plan (“IIPP”). During its January 16th, 2020 meeting the Standards Board approved the proposed rule, which is now expected to take affect on January 1, 2021.

The new standard will require employers to provide their employees with access to their written IIPP within five days of a request. The standard provides employers with some flexibility as to how they provide access to the IIPP. Employers have two options to comply with the standard. First, they can provide requesting employees with a printed or electronic copy of the program. Second, in lieu of providing a copy of program, employers can also allow employees “unobstructed access through a company server or website, which allows an employee to review, print, and email the current version of the Program.”

Employers are provided with additional flexibility in how they implement processes and procedures regarding employee requests for the IIPP. The proposed standard states that “[t]he employer shall communicate the right and procedure to access the Program to all employees.” In response to employer comments, the Standards Board stated this subsection is intended to provide “employers with flexibility in determining the best method for providing [] access.”

Given the Standards Board’s approval of the proposed standard, employers should begin considering how they will comply. While this standard is not technically complex, it is best for employers to develop processes and train their management officials ahead of time. That way, when Cal/OSHA begins enforcing this standard, they will be ahead of the curve.


Employers Consent to Cal/OSHA Inspection Deemed Voluntary Despite a Cavalcade of California Officials Descending on the Workplace

Recently, the California Court of Appeal reviewed an appeal regarding citations issued against a sheet metal company, Nolte Sheet Metal in Nolte Sheet Metal, Inc. v. Occupational Safety and Health Appeals Board. Read my article on Jackson Lewis’ California Workplace Law Blog by clicking here.

Review Commission Gains Quorum After Senate Confirmations

Since April of 2019, the Occupational Safety and Health Review Commission (“Commission”) has been a panel of one. After Chairwoman Heather MacDougall resigned from the Commission on March 31, 2019 and Commission Cynthia Attwood’s term ended in April of 2019, the Commission was left with one member, Commissioner James Sullivan, Jr. In July 2019, Mr. Sullivan was elevated to Chairman of the Commission and has sat in that position without a quorum since then. But that will soon change as the Senate has confirmed two appointees, both familiar faces to the Commission.

On January 9th, 2020, the Senate confirmed both Cynthia Attwood and Amanda Wood Laihow by voice vote. Attwood has previously served two terms on the Commission, both as a commissioner and as Chairwoman, with her first term beginning in February 2010 and her last term ending on April 27, 2019. Ms. Attwood’s third term would expire on April 27, 2025. As for Ms. Wood Laihow, she is also familiar to the Commission as she currently serves as Chairman Sullivan’s chief counsel. Ms. Wood Laihow’s term is set to expire on April 27, 2023.

Because the Commission has lacked a quorum, Chairman Sullivan has been unable to issue decisions on pending appeals. However, he has been able to continue to designate cases for review. According to the Commission’s website, there are currently 23 cases pending Commission review. Once Attwood and Wood Laihow are officially sworn in, the Commission can begin reviewing those appeals and start issuing decisions again.