To assist with protecting the essential workers who work in the agricultural industry, California’s Department Industrial Relations Division of Occupational Safety and Health (“Cal OSHA”) issued updated guidance on coronavirus (“COVID-19”) infection prevention procedures for employers in the agricultural industry. Read our full article on the guidance here.
House Members Promoting Legislation to Compel MSHA to Issue Emergency Temporary Standard for Pandemic Safety
The Mine Safety and Health Administration (“MSHA”) has declined to issue an Emergency Temporary Standard (“ETS”) to address pandemic safety for miners. MSHA determined that issuance of an ETS was unnecessary for COVID-19 because MSHA’s existing health and safety standards allow MSHA to require mine operators to take action to abate COVID-19 health hazards in mines.
Recently the United States Court of Appeals for the District of Columbia Circuit rejected a union’s request for the Court to compel MSHA to issue an ETS. On the legislative path, a bipartisan group of House members are advocating legislation to require MSHA to issue an ETS to address pandemic safety for miners. The proposed legislation is called the “Covid-19 Mine Worker Protection Act.”
Sponsors of the “Covid-19 Mine Worker Protection Act” include Matt Cartwright (D-PA) and David McKinley (R-WV). In a recent press release, Representative Matt Cartwright stated: “The COVID-19 pandemic increases the need for stronger safety protections for these miners. This bipartisan bill would ensure reasonable workplace safety standards to protect miners from COVID-19 on the job and ensure miners can continue their essential work without fear of further endangering themselves or their families.” According to Representative McKinley’s press release, the legislation is supported by the United Mine Workers of America, among others.
A Senate version of the “Covid-19 Mine Worker Protection Act” was introduced earlier this year by Senator Joe Manchin (D-WV). Among other requirements, that Senate version would require MSHA to issue an ETS within 7 days of enactment to protect miners from COVID-19 exposure, and to issue a permanent comprehensive infectious disease standard within 2 years. Senator Manchin has conveyed that he “will keep working to include this language in future COVID-19 funding packages to protect our miners during this global health crisis.”
While MSHA is presently enforcing COVID-19 safety through its existing safety standards, operators should know that miners are more likely than ever to raise concerns about COVID-19 safety in the workplace. Mine operators can avoid potential issues by providing the appropriate levels of attention to COVID-19 as they do all workplace health and safety issues.
If you have questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our Workplace Safety and Health Team.
OSHA Publishes, Then Withdraws, A Broad Position on Reporting COVID-19 Hospitalizations and Fatalities
OSHA quietly updated its COVID-19 FAQs in mid-July to add guidance that took an extremely broad (and arguably unenforceable) interpretation of an employer’s responsibility to report COVID-19 hospitalizations and fatalities. Just as quietly, over the last weekend in July, it removed the updated Reporting FAQs. Now employers are left to speculate whether the guidance is gone for good, or whether they need to be on the alert for the guidance to return.
Under 29 C.F.R. § 1904.39(b)(6), all employers – including low-risk employers exempt from most OSHA recordkeeping requirements – must contact OSHA to report certain serious work-related injuries and illnesses. Employers have 8 hours to report a work-related fatality that occurs within 30 days of the work-related incident precipitating it. Employers have 24 hours to report an in-patient hospitalization if the hospitalization occurs within 24 hours of the work-related incident. This standard has been almost impossible for employers to comply with through the COVID-19 epidemic.
First, the determination of whether an employee’s COVID-19 infection is work-related at all is difficult, given the wide community spread of the disease. OSHA’s May 19 revised enforcement guidance made plain that it views COVID-19 as a recordable infectious disease – unlike, for example, a cold or the flu. (Note that this enforcement guidance expressly refers only to recordable incidents and does not reference the totally separate standard for reporting incidents. Nevertheless, as it remains the only guidance on determination of work-relatedness of COVID-19, many employers are using this guidance to also guide their analysis of work-relatedness for reporting as well. Read Courtney Malveaux’s blog entry discussing this guidance here.)
Second, it is almost impossible to define a specific “work-related incident” which led to a COVID-19 infection, due to its usual asymptomatic presentation during the first days after infection. If an employee is asymptomatic on her last day of work on Tuesday, receives a confirmed positive COVID-19 test on Thursday, and isn’t hospitalized until two weeks later – when does the “within 24 hours of the work-related incident” period begin to run?
Per the now-deleted FAQ, that period would begin to run as soon as the employer knew that she was both (1) hospitalized and (2) COVID-19 positive – even though that is two weeks after she was last at work. As written, the FAQ even entirely removed any consideration of work-relatedness from the analysis and collapses the two 24-hour periods into one – a complete departure from the requirements of the regulation. The FAQ similarly removes the work-relatedness determination from reports of COVID-19 fatalities. Essentially, if these FAQs were enforceable, employers could be required to notify OSHA any time any of their employees were hospitalized or died of COVID-19 – even if the employee had not reported physically into work for months.
Employers should remember that OSHA’s FAQs are merely guidance, and do not carry the same weight as a legally enforceable regulation that has gone through a notice and comment period. So even if these interpretations pop up again in OSHA’s FAQs or elsewhere in OSHA’s COVID-19 guidance, there are strong arguments against enforceability. However, it is helpful for employers to understand the broad interpretation that OSHA has, at least, considered long enough to draft and post answers to FAQs – even if they only left them up for a few days.
If you have questions or need assistance, or would like to see a copy of the withdrawn FAQs, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.
OSHA Finalizes Standard on Beryllium for General Industry
With everyone focusing on the coronavirus (“COVID-19”) pandemic, the Occupational Safety and Health Administration (“OSHA”) has quietly moved forward with issuing a final rule on occupational exposures to beryllium and beryllium compounds (collectively “beryllium”) for the general industry. Requirements for occupational exposures to beryllium are currently contained in three separate standards for the general industry (29 CFR 1910.1024), construction (29 CFR 1926.1124), and shipyards (29 CFR 1915.1024) sectors. However, the agency’s beryllium standard and proposed protections for general industry workers has been in flux for some time, as well as modified through revisions to proposed requirements during rulemaking proceedings. But now, OSHA has clarified these protective measures by amending certain requirements for occupational exposures to beryllium in the general industry (29 CFR 1910.1024), while maintaining the health standards previously established for beryllium. The compliance date of this final rule and resulting general industry requirements is September 14, 2020.
Under the final rule, OSHA maintains that employees’ exposure to beryllium should be limited to a 8-hour time-weighted average (“TWA”) of 0.2 µg/m3 as this permissible exposure limit (“PEL”) will reduce employees risk of health impairment or disease to the greatest extent feasible. OSHA also requires that employers limit employees’ short-term exposure to 2.0 µg/m3 over a 15-minute sampling period (“STEL”) and act to control or minimize beryllium exposures when sampling shows employees have a 0.1 µg/m3 8-hour TWA. The standard also requires specific protections for employees that may be exposed to beryllium while at work.
Like other health standards, OSHA’s final rule requires that employers in the general industry conduct an exposure assessment to identify and evaluate occupational beryllium exposures. Following the assessment, employers must then determine and implement appropriate methods for control, which may include use of engineering controls, respiratory protection, personal protective equipment, and other administrative controls. Employers should include these controls in a written exposure control plan that contemplates management of beryllium work areas, monitoring of control effectiveness, and general housekeeping procedures. Employers may also need to implement medical surveillance programs for employees with exposure to beryllium, paying specific attention to employees that develop a beryllium sensitization as this can lead to chronic beryllium disease.
Finally, general industry employers must ensure proper training and recordkeeping. More specifically, employers must effectively train employees with potential exposures to beryllium on sources of potential exposures and associated exposure hazards and control measures. Employers must also maintain accurate records on their exposure assessments, medical surveillance, and program implementation.
If you have questions 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.
Mine Safety and Health Administration tells Federal Court that it is Issuing Citations for COVID-19 Health and Safety Violations
As the COVID-19 pandemic continues, the battle over when or if employers should be liable for personal injuries arising from coronavirus exposure allegedly caused during employment lurks on the horizon.
The United States Court of Appeals for the D.C. Circuit recently rejected a union’s request for the Court to compel the U.S. Department of Labor’s Mine Safety and Health Administration (“MSHA”) to issue an Emergency Temporary Standard (“ETS”) for infectious diseases. In Re: United Mine Workers of America.
Like the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA), which develops and enforces safety and health rules for workplaces, MSHA is tasked with developing and enforcing workplace safety and health rules for U.S. mines. Both agencies are within the U.S. Department of Labor.
MSHA must provide an ETS when miners are exposed to grave danger from exposure to harmful substances, agents or other hazards if the ETS is necessary to protect the miners from the grave danger. MSHA denied the union’s request for an ETS for COVID-19, which the union then challenged in federal court. The U.S. Court of Appeals for the D.C. Circuit ruled that it would not compel MSHA to issue the ETS finding it was not unreasonable for MSHA to determine that an ETS was unnecessary.
MSHA determined that issuance of an ETS was unnecessary for COVID-19 because MSHA’s existing health and safety standards allow MSHA to take require mine operators to take action to abate COVID-19 health hazards. MSHA assured the Court that its existing standards impose COVID-19 related duties on mine operators. MSHA shared that it is issuing safety citations to operators for COVID-19 health and safety violations.
As the pandemic rages on throughout different parts of the country not previously hard hit at the onset of the pandemic, miners are more likely than ever to raise concerns about COVID-19 in the workplace and may even refuse to work if they do not believe the mine operator is taking all necessary precautions to protect them against the COVID-19 hazard. Section 105(c) of the Mine Act prohibits mines from discriminating or retaliating against miners, miner representatives and applicants for employment for engaging in safety and health activities, including identifying hazards, requesting or participating in MSHA inspections, and refusing to engage in unsafe acts. These conditions, coupled with the assurances from MSHA regarding COVID-19 related enforcement, are likely to lead to an uptick in MSHA’s COVID-19 enforcement activity.
This sharpened awareness of COVID-19 health and safety issues is not unique to mines. The D.C. Court of Appeals noted that MSHA’s ETS provision tracks OSHA’s ETS provision. Earlier in June, the D.C. Court of Appeals struck down the AFL-CIO’s petition to compel OSHA to issue an ETS for COVID-19. The D.C. Circuit stated that OSHA’s decision not to issue an ETS was entitled to considerable deference. The Court also noted that OSHA had other existing statutory and regulatory tools at its disposal to ensure that employers are protecting employees against the COVID-19 hazard in the workplace.
While mine operators and employers often welcome employee participation as part of ensuring a safe workplace for all, it is important to be mindful that COVID-19 related issues are likely, at least for now, to be scrutinized by MSHA and OSHA. Mine operators can avoid potential issues by providing the appropriate levels of attention to COVID-19 related issues as they do to all other workplace health and safety issues.
If you have questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our Workplace Safety and Health Team.
Greater Enforcement Coming? OSHA Issues Citations for Respirator Program Violations after Employees Were Hospitalized with COVID-19
In a new effort to use existing regulations to respond to the ongoing public health emergency, OSHA cited an Ohio healthcare company for alleged serious violations of OSHA’s respirator regulations. OSHA launched an investigation at three of the employer’s healthcare facilities after seven employees were hospitalized with COVID-19.
Even though the employer provided the necessary N95 respirators to its healthcare workers, OSHA alleges that the employer committed two violations of OSHA’s respirator standard: (1) failure to have a written respirator program and (2) failure to provide a medical evaluation to determine employees’ ability to use a respirator in the workplace. OSHA’s press release announced that it cited each of the employer’s three facilities for the same two violations and a total proposed penalty of $40,482.
While OSHA has up to six months to issue a citation, the Administration’s enforcement activity in response to the COVID-19 pandemic to this point has been modest, and the Administration’s critics have called on OSHA to take more aggressive enforcement actions. Similarly, OSHA has faced continued scrutiny to issue emergency regulations that address worker protections against the spread of COVID-19. However, the Administration has consistently pushed back against the need for emergency regulations and argues that its existing regulations—such as the respirator standard cited here—are sufficient to address the risks of COVID-19.
OSHA’s enforcement actions in this matter could suggest greater enforcement is on the horizon. OSHA’s Principal Deputy Assistant Secretary, Loren Sweatt, even released a statement highlighting the Administration’s enforcement action, which suggests that the citation has gained attention from OSHA’s leadership in Washington, D.C.
These citations demonstrate that even where employees provide necessary safety equipment, like N95 respirators for health care workers, they still must comply with all technical aspects of OSHA’s regulations. OSHA’s regulations encompass a wide scope of detailed obligations for employers, and even employers who strenuously work to provide a safe workplace can inadvertently violate a regulation.
For now, it does seem that OSHA is carefully cherry-picking cases with seemingly bulletproof facts and has targeted the healthcare industry because of front-line workers’ obvious exposure to COVID-19. In this instance, the cited employer allegedly had seven employees hospitalized due to COVID-19. Those types of facts definitely put a target on an employer’s back. As the numbers of COVID-19 cases rise around the country, particularly in places that were not hard hit at the beginning of the pandemic in March and April, we are likely to see an uptick of enforcement activity from OSHA.
Just because OSHA issues citations, however, does not mean they are valid. The Agency is under pressure to demonstrate that it remains effective in combatting the COVID-19 pandemic without a specific infectious disease standard. Jackson Lewis attorneys are available to assist employers to ensure that they are in compliance with all OSHA regulations and to defend against any citations issued.
The New Virginia Emergency Workplace Standard for COVID-19 Is Here
Virginia has published its highly anticipated first-in-the-nation emergency temporary standard for COVID-19 in the workplace.
Employers may obtain a copy by clicking here.
If you have questions or need assistance in an OSHA or VOSH matter, please reach out to a member of the Jackson Lewis Workplace Safety and Health Practice Group.
Virginia Passes First-In-Nation OSHA Standard for COVID-19
Employers wondering whether Virginia is the new California just got their answer: California has some catching up to do.
In a split vote, the Virginia Safety and Health Codes Board (which includes author Courtney Malveaux) passed a first-in-the-nation standard to address COVID-19 in workplaces. Virginia Occupational Safety and Health (VOSH), the state’s version of the Occupational Safety and Health Administration (OSHA), now will enforce a standard that mandates — and in some instances exceeds — guidance issued by the U.S. Centers for Disease Control and Prevention (CDC) and OSHA. The new standard covers most private employers in Virginia, as well as all state and local employees.
In addition to CDC and OSHA guidelines, the standard includes provisions that require employers to:
- Provide flexible sick leave policies, telework and staggered shifts when feasible;
- Provide both handwashing stations and hand sanitizer when feasible;
- Assess risk levels of employers and suppliers before entry;
- Notify the Virginia Department of Health of positive COVID-19 tests;
- Notify VOSH of three or more positive COVID-19 tests within a two-week period;
- Assess hazard levels of all job tasks;
- Provide COVID-19 training of all employees within 30 days (except for low-hazard places of employment);
- Prepare infectious disease preparedness and response plans within 60 days;
- Post or present agency-prepared COVID-19 information to all employees; and
- Maintain air handling systems in accordance with manufacturers’ instructions and American National Standards Institute (ANSI) and American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) standards.
The standard protects employees who raise reasonable concerns about infection control to print, online, social or other media. It also requires building and facility owners to report positive COVID-19 tests to employer tenants.
The standard also implements provisions that echo CDC and OSHA guidance, including requirements to:
- Place requirements on workplaces based on hazard levels (i.e., “very high,” “high,” “medium,” and “low”);
- Screen employees prior to entry to work;
- Establish requirements for employees with COVID-19 positive tests and symptoms before returning to work;
- Require social distancing or, when social distancing is not possible, respiratory protection; and
- Clean and disinfect commonly used areas and equipment.
The emergency standard will take effect upon publication at the end of July and is set to expire within six months or upon expiration of the Governor’s State of Emergency or the enactment of a permanent standard.
Virginia is a “State Plan” state that operates its own occupational safety and health program under an OSHA grant. There are twenty-seven other “State Plan” states that might also consider similar COVID-19 standards as well.
If you have questions or need assistance in an OSHA or VOSH matter, please reach out to a member of the Jackson Lewis Workplace Safety and Health Practice Group.
OSHA Enforcement Delays Can Get Citations Dismissed in Virginia
In Virginia, Occupational Safety and Health Administration (OSHA) citations can get dismissed if the agency delays too long.
Virginia Occupational Safety and Health (VOSH) enforces occupational safety and health laws on behalf of OSHA in Virginia. VOSH covers most private employers in Virginia, as well as all state and local employees.
Unlike in other states, Virginia lacks an administrative procedure to enforce citations for workplace safety and health matters. Instead, citations are enforced in the courts, which creates a significant backlog and time delays in cases. (Please note, the author has served as Virginia’s Labor Commissioner tasked with enforcement of VOSH citations, and has personally observed – and withdrawn – citation enforcement actions delayed up to seven or eight years.)
Virginia Code § 40.1-49.4(B) requires the Commissioner to “immediately notify the attorney for the Commonwealth for the jurisdiction wherein the violations alleged to have occurred and shall file with the circuit court a bill of complaint.” While the requirement does not require the Commissioner to file suit immediately, nor does it impose a limitations period, it also does not give the Commissioner unlimited time to enforce a citation in court. Barr v. S.W. Rodgers Co., 33 Va. App. 273, 278 (2000).
In several cases, courts have struck cases in which VOSH delays have prejudiced employers’ ability to defend themselves. Under one theory, an employer may suffer inherent prejudice because, during a long-time delay, “uncertainty is itself a large problem for most businesses, causing them inherent problems in planning, capital investment, and reporting of profit and loss.” Id. A long-pending citation can also be inherently prejudicial because OSHA posts citation information on its own website, and citation information “available to potential customers on the internet…is detrimental to [an employer’s] business.” Davenport v. Thor, Inc., 62 Va. Cir. 228, 229 (Martinsville 2003). So while a fifteen-month delay may not constitute inherent prejudice, S.W. Rodgers, supra., a 39-month delay may jeopardize a citation altogether. Thor, supra.
Even if a court does not find inherent prejudice, a court may dismiss a citation due to actual prejudice if the passage of time has led to the loss of key evidence or witnesses. Davenport v. C.R. Meyer & Sons, Inc., 91 Va. Cir. 421, 422-23 (Isle of Wight Cnty. 2015). “Recollections fade over time,” Thor, supra, which can force an employer to rely unfairly on conflicting memories. This can be make mounting a defense particularly difficult for an employer because the agency will not share investigative files until the discovery phase of litigation and, even then, may shield witnesses under the common law “informer’s privilege.” The agency cannot blame staff shortages or administrative burdens to excuse long delays. C.R. Meyer & Sons, supra.
While there are no limitations periods for VOSH citations, the agency does not have unlimited time. Unreasonable delays in enforcement activity can lead to dismissal of a VOSH citation.
If you have questions or need assistance in an OSHA or VOSH matter, please reach out to a member of the Jackson Lewis Workplace Safety and Health Practice Group.
OSHA Reminds Employers of Duty to Protect Employees from Heat Exposure
The arrival of the hot summer season brings the risks and dangers of heat exposure for many employees throughout the United States. The Occupational Safety and Health Administration (OSHA) has issued a reminder to employers of their duty to protect employees, along with some guidance on ways to recognize and mitigate the risks of heat exposure.
How Hot Does it Need to Be?
Serious heat-related illnesses can occur on normal summer days, when temperatures are not extreme. A good rule of thumb is that workers need additional protective measures whenever the Heat Index is 80 degrees Fahrenheit or above. However, sports physiologists have found that even as low as 65 degrees Fahrenheit may pose a risk of heat-related illnesses when workload is very heavy or strenuous.
CA Note: For California employers, Cal/OSHA Heat Illness Prevention Standard §3395 additionally requires that employers implement additional high heat procedures when the temperature equals or exceeds 95 degrees Fahrenheit.
Does It Matter Whether Workers are Indoors or Outdoors?
No. OSHA’s guidance extends to any work environment that presents occupational risk factors, including heavy physical activity, warm or hot environmental conditions, lack of acclimatization, and wearing clothing that holds in body heat. OSHA also identifies a non-exclusive list of industries at risk:
| Outdoors | Indoors |
| · Agriculture
· Construction · Landscaping · Mail and package delivery · Oil and gas well operations |
· Bakeries, kitchens, and laundries
(sources with indoor heat-generating appliances) · Electrical utilities (particularly boiler rooms) · Fire Service · Iron and steel mills and foundries · Manufacturing with hot local heat sources, like furnaces (e.g., paper products or concrete) · Warehousing |
OSHA recommends that employers utilize its assessment tools, which are based on levels of physical activity and wet bulb globe temperature readings, to evaluate the combination of body heat and environmental heat to identify what risks their workers face for heat stress.
CA Note: For California employers, Cal/OSHA Heat Illness Prevention Standard §3395 applies to outdoor place of employment.
What Steps to Prevent Heat Exposure?
- Offer water, rest, shade, and ventilation. Employers should encourage workers to drink water every 15 minutes, and take frequent rest breaks in shaded or air conditioned areas. Employers also should use cooling fans and, whenever possible, schedule work at a cooler time of the day. OSHA has published a comprehensive list of best practices in considering what engineering controls, work practices, and personal protective equipment should be in place.
- CA Note: For California employers, Cal/OSHA Heat Illness Prevention Standard §3395 mandates that employers provide cool drinking water free of charge, shade for employees when the outdoor temperature exceeds 80 degrees, and preventive cool-down rests that are monitored by another employee.
- Create a Plan. OSHA recommends that employers create a heat illness prevention plan, with elements addressing: how workers will gradually develop heat tolerance, supervision of workers, a protocol for summoning medical assistance, what engineer controls and work practices will be used to reduce heat stress, measurement of heat stress, a response when the National Weather Service issues a heat advisory, how to identify heat hazards, and what training will be provided to workers and supervisors.
- Require Training. Employers should provide training to workers on the hazards of heat exposure and how to prevent illness. New and temporary workers are most at risk to the hazards of excessive heat. OSHA’s website offers additional guidance on building heat tolerance in its recommendations for establishing a plan to protect new workers from heat illness.
- Implement Supervision. As heat conditions can change rapidly, OSHA recommends that, if feasible, at least one individual at a worksite should monitor conditions and implement the employer’s heat plan throughout the workday. This individual should undergo training, be on-site with workers, and have the capacity to report to the employer any adverse heat-related conditions or signs and symptoms of heat related illness experienced by any of the workers.
For OSHA’s recommended practices with managing heat exposure, visit https://www.osha.gov/SLTC/heatstress/index.htm.
Jackson Lewis attorneys and the dedicated Workplace Safety and Health Practice Group are available to assist employers with training and creating an OSHA-compliant prevention plan customized to the needs of their particular industry.
