As California Targets June Reopening Cal/OSHA Considers Updating COVID-19 Standards

On May 20th, the Cal/OSHA Standards Board will consider changes to COVID-19 Emergency Temporary Standards (“ETS”).

The proposed changes would still require employers to have an established written COVID-19 Prevention Program (“CPP”) that covers everything from training and communication with employees to the investigation of COVID-19 cases in the workplace.

However, there are notable proposed changes in the requirements for the CPP, definitions, and COVID-19 case management procedures, which will have significant impacts on California employers.

To read the full article on our California Workplace Law Blog, click here.

Without Much Ado, Cal OSHA Updates Guidance Regarding Vaccinated Individuals

As the federal government and state of California adjusted their COVID-19 guidance for vaccinated individuals, Cal OSHA remained silent on how vaccination affected the requirements under its COVID-19 Emergency Temporary Standard (ETS). While there had been discussions of revisions to the ETS, it was unclear if Cal OSHA would be able to release such revisions prior to the targeted reopening of California by June 15, 2021.

To read the full article on our California Workplace Law Blog, click here.

Are Adverse Reactions to COVID-19 Shots Recordable to OSHA? It Depends.

The Occupational Safety and Health Administration (OSHA) has determined that it will consider an adverse reaction to the COVID-19 vaccine a “work-related” recordable illness if an employee is required to take the vaccine as a condition of employment.

To read the full article, please click here.

Employers are Contesting OSHA’s COVID-19 Citations

Frustrated by constantly shifting guidance and shortages of respirators and other personal protective equipment experienced in 2020, employers are rejecting Occupational Safety and Health Administration (OSHA) citations for COVID-19 infractions and contesting them like never before.

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

OSHA Nomination Signals Greater Enforcement, New Standards

Signaling significant regulatory and enforcement changes from the Occupational Safety and Health Administration (OSHA), President Joseph Biden has named a California official to lead the agency.

To read the full article, click here.

OSHA Taking Its Time to Issue COVID-19 Emergency Temporary Standard

The Occupational Safety and Health Administration (OSHA) was directed under an executive order to promulgate an Emergency Temporary Standard (ETS) to address COVID-19 no later than March 15, 2021. It has yet to do so.

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

As States Reopen Employers Face Hard Choices on How to Manage Workplace Safety

The coronavirus (“COVID-19”) pandemic has continued to evolve, with COVID-19 cases declining in some areas and vaccinations being rolled out in phases by local public health authorities. Yet widespread vaccinations are not expected to be in place until later in 2021, with many Americans not having access to vaccines until May or June at the earliest. Even so, some states view the evolving circumstances as sufficient to lift restrictions and start returning to “normal.” Mississippi and Texas, for example, have recently lifted mandated requirements on state residents to wear cloth face coverings, capacity limitations on businesses, and other COVID-19 related restrictions. Other states, such as Idaho, Nebraska, and Oklahoma implemented COVID-19 restrictions, but did not go so far as to require residents to wear cloth face coverings or masks while in public. While a majority of states still have mask mandate laws, the inconsistency and changing requirements in COVID-19 restrictions continues to pose challenges for employers in determining how to provide a safe work environment. Employers must also carefully balance workplace safety considerations with workplace cultures, polarized viewpoints, and continually changing dynamics.

As states continue to modify and rescind COVID-19 executive orders and restrictions, employers also need to remember that they may have ongoing obligations under other federal or state laws. From a federal level, employers are currently subject to the General Duty Clause in the Occupational Safety and Health Act (“OSH Act”), which requires employers to provide a safe and healthy workplace that is free from recognized hazards likely to cause death or serious physical harm. For this reason, employers generally need to evaluate COVID-19 hazards in their workplace and implement responsive preventive controls, even if there is no standing executive order compelling this action. To satisfy their General Duty Clause obligations, employers most likely need to comply with federal OSHA guidance directing employers to maintain written COVID-19 Prevention Plans and implement preventive measures, such as employee use of masks, social distancing, and enhanced cleaning and disinfection measures. Employers may also need to implement engineering (e.g., installation of barriers) and administrative controls to address potential COVID-19 hazards from their operations. Retailers, for instance, may need to consider redesign of workplaces, installation of barriers, and methods for contactless interactions to prevent employees from being exposed to COVID-19 through public or customer interactions.

Some states have also adopted emergency temporary standards that impose strict obligations on employers. California and Oregon, for example, have extensive emergency temporary standard requirements, which include requirements for employees to wear masks or cloth face coverings when there is a potential for interaction with others. Following behind Virginia, these states are also in rulemaking proceedings and plan to enact a permanent COVID-19 standard. Federal OSHA has even more signaled to employers that it intends to issue even stricter COVID-19 workplace safety and health standards and may enact an emergency temporary standard similar or more restrictive to those that have been implemented at a state level. OSHA has also conveyed that enforcement of workplace safety and health preventive measures to protect against COVID-19 exposures and spread of virus is a top priority.

It is nice to think about COVID-19 restrictions ending and life returning to normal. But even as states lift their COVID-19 related orders, employers will need to think carefully about the workplace safety measures implemented in their workplaces. Employers that operate on a national level or in multiple states may also have drastically different compliance obligations related to workplace safety requirements in different locations. This, in turn, could cause significant confusion for employees, customers, visitors, and other third parties that may be on-site. Employers may therefore benefit from engaging in proactive and transparent communications with employees and third parties on COVID-19 response measures.

If you have questions about the state orders applicable to your operations or how to comply with federal and state health and safety laws, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

Inspector General Office Report Criticizes OSHA COVID-19 Enforcement, Pushes for COVID-19 Standard

Criticizing the Occupational Safety and Health Administration’s (OSHA) enforcement efforts during the COVID-19 pandemic, the Department of Labor Office of the Inspector General (OIG) pushes for a COVID-19, virus-specific standard in its report issued on February 25, 2021.

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

Continued Uptick in OSHA Requests for Information to Nursing Homes

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

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.

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