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

By Juliana C. Gaige and John D. Surma on

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.

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.

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

By Melanie L. Paul on

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

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.

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.

 

 

 

 

 

 

 

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

By Melanie L. Paul on

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.

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.

Oregon OSHA Moves Forward with COVID-19 Temporary Standard

By Cressinda D. Schlag and Brian P. Lundgren on

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.

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.

Flip-flopping Guidance: The Saga Continues

By Gillian G. W. Egan and Cressinda D. Schlag on

Last week we wrote about government agencies’ tendencies to “flip-flop” on guidance related to preventing transmission and spread of coronavirus (“COVID-19”), and how this impacts employers’ ability to meet health and safety compliance obligations expectations and avoid regulatory liability. Underscoring these points, on Monday the U.S. Centers for Disease Control and Prevention (“CDC”) rolled out yet another massive change in its position on the transmission of COVID-19 – one that it had previously posted, then removed, and has now posted again. The onslaught of changing information continues.

While CDC maintains that “principal mode by which people are infected with SARS-CoV-2 (the virus that causes COVID-19) is through exposure to respiratory droplets carrying infectious virus,” the agency’s concept of “respiratory droplets” for the moment has evolved to include both “larger droplets” and “smaller droplets and particles.” CDC’s new guidance, updated October 5, also notes that COVID-19 spreads easily, by close contact with respiratory droplets comprised of large and small droplets as well as smaller particle-sized droplets. In a departure from its previous guidance, CDC notes that some virus particles can also be spread by airborne transmission as a result of smaller droplets and particles that may “linger in the air for minutes to hours,” and be transmitted over longer distances and timeframes (e.g., ability to infect people more than 6 feet away from the infectious person). In some circumstances,  individuals can also become infected by airborne transmission after the infectious person has already left the area.

Per CDC’s new guidance, airborne transmission of COVID-19 can occur in “special circumstances” and conditions, but airborne transmission is not thought to be an efficient mechanism to spread the disease. Circumstances in which airborne transmission of COVID-19 have been observed include within enclosed spaces in which an infected person produced respiratory droplets for an extended period of time, such as when the infected person is breathing heavily. Other circumstances in which airborne transmission has been observed include prolonged exposure in an area with poor ventilation or following expiratory exertion (e.g., exercising). In other words, CDC views airborne transmission of COVID-19 as a possibility, but sees it as an inefficient mechanism for spread of the disease. In addition, CDC views the primary mode of transmission to still be close contact with an infected person (i.e., direct contact within less than 6 feet). As a result, CDC maintains that the current preventive measures for close contact are the most effective at preventing the spread of disease, including 6-foot social distancing, frequent hand-washing, use of cloth face coverings or masks, isolating when sick, and cleaning and disinfecting frequently-touched or potentially contaminated surfaces. Yet, in spite of CDC’s continued emphasis on cleaning and disinfection measures as a preventive measure, CDC also notes that “touching surfaces is not thought to be a common way that COVID-19 spreads.” (Recall that early in the pandemic employers were encouraged to engage in rigorous supplemental cleaning and disinfecting protocols, before we learned that fomite-transmission was not common.) Although acknowledging the potential for airborne transmission, begrudgingly, CDC has also only added the directive to “avoid crowded indoor spaces and ensure indoor spaces are properly ventilated by bringing in outdoor air as much as possible.” Further, CDC stresses the importance of having effective ventilation in enclosed spaces to prevent and minimize the potential for COVID-19 transmission.

Employers should take this guidance and compare it to their current COVID-19 response plans and procedures. Most notably, the new guidance on airborne transmission has the potential to impact layout, ventilation, barrier protection, and perhaps even require employers to revisit their virtual work policies. In particular, while distancing of employees’ work-stations by six feet remains important – depending on the layout and ventilation of the workspace additional measures may be needed to reduce the potential for COVID-19 transmission. Employers should also evaluate their ventilation system and assure it follows guidance by ASHRAE (formerly known as American Society of Heating, Refrigerating and Air-Conditioning Engineers), the U.S. Environmental Protection Agency, and other professional and government organizations on ventilation and air filtration designs to help reduce risks from the virus that causes COVID-19. (Be wary, however, of snake-oil salesmen – there are many allegedly “protective” ventilation systems being sold to the unwary consumer at extremely high cost, despite providing no added value. For example, bipolar ionization is often touted as a selling point for new HVAC systems, but often the cleaning and disinfecting claims for these systems are not able to be verified through efficacy performance data. )

To be clear, the evolution of scientific understanding of this virus is inevitable and good, as epidemiologists, health professionals, and scientists work rapidly to extrapolate findings from new data. Further, public health directives are inevitably going to shift along with that understanding – also a social good. What is NOT good, however, is employers’ exposure to potential government enforcement action in an environment of rapidly shifting and in some instances conflicting guidance. As we noted last week, OSHA generally does not regulate or enforce in the area of colds, flus, and other common infectious diseases because these are predominantly issues of public health, and not exclusive to an occupational exposure or within an employer’s direct control. CDC’s latest change in guidance, which continues to clarify that COVID-19 is a highly infectious disease that is novel and still poorly understood, simply underscores why COVID-19 should be treated as a public health issue.

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.

COVID-19 Reporting: An Employer’s Nightmare

By Gillian G. W. Egan and Cressinda D. Schlag on

It is an unfortunate outcome of this pandemic that in the OSHA world, guidance lags behind enforcement. While state and federal agencies try to make up their minds on the best way of managing COVID-19 threats in the workplace, many employers who have to remain open are receiving citations and penalties for, essentially, making educated but incorrect guesses on what to do. Even the CDC guidance has flip-flopped so often, employers are forced to write preventative plans and procedures in pencil so that they can be easily erased and re-written to conform on a moment’s notice. Take, for example, the decision of whether to report an employee’s hospitalization or death due to COVID-19 to OSHA:

Federal OSHA

Under 29 C.F.R. § 1904.39, all employers – including low-risk employers that are partially exempt from certain OSHA recordkeeping requirements – must contact OSHA to report some serious work-related injuries and illnesses, such as fatalities and in-patient hospitalizations. These reporting requirements, which are dependent on employer knowledge, are also tied to specific timing considerations and constraints. 29 C.F.R. § 1904.39 (b)(6) in particular conveys that employers have 8 hours to report a work-related fatality that occurs within 30 days of the work-related incident (i.e., event or exposure) precipitating it.  Employers likewise have 24 hours to report an in-patient hospitalization if the hospitalization occurs within 24 hours of the work-related incident that caused it.

Most infectious diseases are not recordable or reportable under OSHA regulations for many reasons. First and foremost, because of the prevalence of common infectious diseases in the general population, it is impossible to determine whether an infection is work-related or not. Second, rulemaking initiatives surrounding the regulations noted explicitly that there should be a carve out for the common cold, flu, and similar illnesses because these illnesses were public health matters rather than occupational exposure issues, and as such were not work-related. OSHA has further generally excluded illnesses from the recordkeeping requirements that can develop regardless of workplace exposure. However, OSHA decided on April 13 that COVID-19 illness would be treated as a recordable or reportable illness in some cases.

COVID-19 is a highly infectious disease that is easily spread through aerosolized respiratory droplets (e.g., sneezes, coughs, etc.) while individuals are in close contact (i.e., less than 6 ft. distance). To make matters more complicated, COVID-19 can also be spread by asymptomatic individuals. As COVID-19 community spread has increased, employers have had to grapple with determining work-relatedness with limited and, in some cases, changing guidance from authorities. As discussed in some of our earlier blog posts, early on in the pandemic OSHA initially advised that only those employers with occupational exposures to COVID-19 (e.g., healthcare facilities) were required to assess COVID-19 cases for work-relatedness. But the agency changed course on this position in May, stating that all employers needed to assess COVID-19 cases for work-relatedness. Then in mid-July, OSHA quietly updated its COVID-19 FAQs to add guidance that took an extremely broad (and probably unenforceable) interpretation of an employer’s responsibility to report COVID-19 hospitalizations and fatalities.  That approach, which was deleted from the site just a couple of weeks later, required employers to report COVID-19 hospitalizations and deaths regardless of work-relatedness or timeline between the potential workplace exposure (i.e., last day worked) and reportable event. Such an approach would have required reporting on COVID-19 cases that did not occur during the regulatory limitations period for reporting – a complete departure from the regulation.

On October 1, 2020, OSHA updated the FAQs again – this time taking a more reasonable approach.  In these latest FAQs, OSHA defines a “work-related incident” as “an exposure to SARS-CoV-2 in the workplace.” This is a significant and welcomed departure from OSHA’s previous position, which eliminated the work-relatedness determination altogether.  OSHA’s FAQs are merely guidance, and not even formal guidance. OSHA does not review and approve FAQs posted on its website with the same rigor as a memo, interpretation letter, or other document – and of course, OSHA’s decision not to engage in rulemaking on COVID-19 means that none of its COVID-19guidance has been subject to notice and comment or other rulemaking requirements under the Administrative Procedures Act. However, the absence of a formal rule means that the agency’s COVID-19 guidance memorandums and FAQs are employers’ best resource  to understand how federal OSHA views these issues and the position OSHA will take on them in an enforcement action. However, employers cannot stop there – because various states have their own reporting requirements that sometimes diverge widely from the federal agency.

State Considerations

There are 28 OSHA-approved State Plans that operate statewide occupational safety and health programs. Of these State Plan states, several states, including specifically California, New Mexico, and Virginia have taken varying positions on COVID-19 case management, resulting in distinct reporting requirements. A table comparing these states’COVID-19 case reporting requirements is provided below:

Federal OSHA California Reporting Distinctions New Mexico Reporting Distinctions Virginia Reporting Distinctions
 “Reportable” COVID-19 Case Requirements Confirmed COVID-19 positive case through testing that is determined to be work-related and results in satisfaction of reporting criteria.
  • COVID-19 case does not have to be confirmed through testing.
  • COVID-19 case must be reported if it meets the definition of a “serious injury or illness” irrespective of when a potential exposure may have occurred.
  • COVID-19 case may need to be reported even if work-relatedness determination is uncertain.
  • Confirmed COVID-19 employee case through testing.
  • Does not require work-relatedness or satisfaction of reporting criteria.
  • Report must be made within 4 hours of the employer’s knowledge that the employee is confirmed COVID-19 positive.
  • Confirmed COVID-19 positive case through testing that is determined to be work-related and results in satisfaction of reporting criteria.
  • Cluster or outbreak of cases, considered to be 3 or more employees present at the workplace within a 14-day period who have tested positive for COVID-19.

 

In addition to these reporting requirements, employers must also juggle reporting obligations to state and local health departments, notification requirements to employees and other third parties, and coordination with federal and state government agencies on COVID-19 concerns. In application, this means that for any given COVID-19 case, an employer may have a reporting obligation to (i) federal OSHA, or the state equivalent, (ii) state or local public health department, and corresponding notification obligations to (iii) employees and (iv) applicable third parties – all within strict timelines. Constantly evolving and, at times, inconsistent guidance from federal OSHA, government agencies, and state agencies ultimately leaves employers with significant uncertainty and confusion, as well as less opportunities to be successful in hitting their compliance targets.

To avoid regulatory liability and minimize risks of enforcement, employers need to be diligent in managing COVID-19 cases, even if they are likely from community exposures, and maintain effective records. Having a written plan for management of a COVID-19 case ahead of time, which is regularly updated, to account for changes in reporting and notification requirements can also help ensure reporting is done consistently, in a timely manner, and in accordance with the various reporting requirements.

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.

Occupational Safety and Health Review Commission Issues Spate of Pro-Employer Decisions

By Melanie L. Paul on

Last week, the Occupational Safety and Health Review Commission (OSHRC), a 3-Commisioner panel appointed by the President and confirmed by the Senate which hears appeals of contested OSHA cases, issued two decisions vacating OSHA’s citations and one decision reclassifying a willful violation to a serious violation and reducing the penalty from $49,000 to just $3500. These decisions signal a trend toward holding OSHA and the Department of Labor accountable for the citations they issue to employers for alleged safety and health violations. The three decisions all involve citations for machine guarding, which is a common hazard cited by OSHA in manufacturing and other industries. All three decisions were unanimous, which is significant given the makeup of OSHRC—two pro-employer Commissioners (Sullivan and Laihow) and one pro-employee Commissioner (Attwood).

In Aerospace Testing Alliance, the tip of an employee’s finger was crushed while operating a power shear in the metal shop after he removed a glove and circumvented a guard by placing his finger underneath the guard and piston on tip of the piece of metal he was cutting. The Commission overturned the ALJ’s decision upholding the citation, finding that the guard itself was compliant in the machine’s normal operation and that it was not reasonably predictable that the operator would circumvent the guard. Thus, the Commission concluded there was no violative condition given the manner in which the machine functions and how it is operated by the employees.

In Wayne Farms, an employee was injured when he was pulled into a poultry breading machine when he lifted the hopper’s metal gate and reached inside the machine while it was running. The Commission upheld the ALJ’s decision to vacate the citation on the same grounds as in Aerospace Testing Alliance. Specifically, the Commission found that the machine guarding was sufficient in the normal operation of the machine, but the employee bypassing the guard was not reasonably predictable and thus there was no noncompliance condition during the normal operation and normal job tasks related to that machine.

Finally, in Dover High Performance Plastic, Inc., OSHA cited the company with a willful machine guarding violation for allowing employees to operate lathes and mills with the doors either opened or removed. The Commission upheld the citation as to the lathes and not the mills, but reclassified the violation from willful to serious. The Commission found that the company demonstrated good faith by reprogramming the lathes following a 2012 accident which eliminated the most obvious aspect of the hazard—that an employee could be injured by the component of the lathe that begins to move when the production cycle automatically commences. Because the Commission found no violation with respect to the mill equipment and found good faith with respect to the lathes, it reduced the original penalty from $49,000 to $3,500.

OSHA serves and important role in helping protect America’s workforce by overseeing that employers provide a safe and healthful working environment to their employees. However, the agency is not infallible. As is often the case, particularly when workplace accidents occur, OSHA will issue citations to employers for alleged safety and health violations. But, as demonstrated by these three recent decisions, sometimes an accident really is just that and an employer is otherwise meeting its legal obligations.

For safety and health compliance assistance or defense of an OSHA inspection or citations, contact a Jackson Lewis attorney.

Virginia COVID-19 Restrictions and Workplace Standards Challenged by Manufacturers’ Association

By Courtney M. Malveaux on

A manufacturers’ association and several employers have filed a lawsuit to enjoin Virginia’s Emergency Temporary Standard for Infectious Disease Prevention related to COVID-19, which the Virginia Safety and Health Codes Board adopted on July 15, 2020.

To read the entire article, please click here.

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