On September 17, 2020, Governor Newsom signed Assembly Bill (“AB”) 685, which requires employers to provide written notifications to employees within one business day of receiving notice of potential exposure to coronavirus (“COVID-19”).  AB 685 also authorizes the Division of Occupational Safety and Health (“Cal OSHA”) to prohibit operations, processes, and prevent entry into workplaces that it has determined present a risk of infection to COVID-19 so severe as to constitute an imminent hazard. AB 685 also authorizes Cal OSHA to issue citations for serious violations related to COVID-19 without requiring the agency to comply with pre-citation requirements. Read our full article on the bill here.

Virginia recently enacted its Emergency Temporary Standard for COVID-19. The standard’s requirement that employers train workers came and went on August 26, 2020. Virginia Occupational Safety and Health expects employers to complete their Infectious Disease Preparedness and Response Plans no later than September 25, 2020.

To view the complete article, please click here.

To help employers in regulated human and animal food operations navigate ongoing challenges from the coronavirus (“COVID-19”) pandemic, the U.S. Food and Drug Administration (“FDA”), Centers for Disease Control and Prevention (“CDC”), and Occupational Safety and Health Administration (“OSHA”) have joined in publishing the sixteen page “Employee Health and Food Safety Checklist for Human and Animal Food Operations During the COVID-19 Pandemic” (“Checklist”). Without adding new guidance, the Checklist offers food employers with human and animal food operations a “quick reference” guide on measures the FDA, CDC, and OSHA believe are necessary to protect workers and operations from COVID-19 exposure risks, including health monitoring, social distancing, and food safety measures.

In the Checklist’s first section identifies key preventive measures for employees’ health and safety, with specific focus on COVID-19 hazard assessments and controls, employee health monitoring, and implementation of social distancing and infectious disease control and prevention practices. The Checklist also emphasizes the need for these preventive measures and controls to be communicated to employees through signage, demarcations around the facility, and employee trainings. The Checklist further emphasizes the need for employers to have a plan for managing a COVID-19 case and potential outbreak, including plan to identify and isolate sick employees, collaborate with local public health authorities, and ensure effective notification of potential COVID-19 exposures.

The Checklist’s second section shifts to focusing on food safety measures. This portion of the Checklist showcases having a food safety plan or Hazard Analysis, and Risk-Based Preventive Controls or a HACCP plan to identify and control potential hazards, which contemplates the impact of COVID-19 circumstances. For example, the Checklist directs regulated human and animal food operators to plan for a potential scaling back of operations due to worker absenteeism or unavailability of ingredients from manufacturing delays. The Checklist also iterates the importance of current good manufacturing practices, basic sanitation measures, and food safety protocols to prevent food contamination.

All in all, the Checklist is not a standard, regulation, or new agency guidance and as such does not create any new legal obligations. The Checklist does, however, provide a comprehensive list of standards, regulations, and federal agencies have determined are applicable to regulated human and animal food operations in response to COVID-19. For the reasons, the Checklist can be helpful for employers in this industry to assess their operations and adequacy in COVID-19 response planning.

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.

As fire season starts and some areas of California and several other states are attempting to contain wildfires, employers need to consider their obligations to employees. In some circumstances, employers must implement a variety of controls to protect employees from wildfire smoke, including engineering and administrative controls, or require the use of personal protective equipment (“PPE”). Employers may also have employees’ leaves of absence and wage compliance issues to consider. Read our full article on these topics here.

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.

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 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.

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.

 

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.