On April 13, 2020, the Occupational Safety and Health Administration (“OSHA”) announced an Interim Enforcement Response Plan for Coronavirus Disease 2019 (“COVID-19”) related complaints, referrals, and severe illness reports. While OSHA has issued several enforcement memorandums on COVID-19 related issues in recent weeks, this guidance is specifically directed to OSHA’s Area Offices on conducting investigations and inspections involving potential exposures “to the workplace hazard of SARS-CoV-2 (severe acute respiratory syndrome coronavirus 2), which is the virus causing the current COVID-19 pandemic.”

In issuing the Interim Enforcement Response Plan, OSHA states that “heightened attention” will be given to COVID-19 risks, but leaves OSHA with flexibility and discretion to determine a fact-based enforcement approach. The Interim Enforcement Response Plan also indicates that OSHA should fully investigate complaints, referrals, and employer-reported fatalities and hospitalizations to ensure employees are sufficiently protected from risks of exposure to COVID-19. However, because non-healthcare and non-emergency response establishments, are likely to have a lower risk of exposure, the Interim Enforcement Response Plan directs  OSHA to process complaints for these types of organizations on a more informal basis. Further, the Interim Enforcement Response Plan instructs OSHA to use Rapid Response Investigations (“RRI”) to the extent possible to evaluate potential COVID-19 hazards.

The Interim Enforcement Response Plan goes on to state that OSHA Area Directors should take special precautions for COVID-19 related inspections. Where possible, OSHA should use electronic means of communication as well as avoid actions that would interfere with medical services. Inspectors are also instructed to work closely with their supervisors, regional office, the Office of Occupational Medicine and Nursing, and relevant public health authorities when the inspection involves a potentially high-risk exposure to COVID-19. Moreover, because the agency is considering COVID-19 inspections to be novel cases, the agency will be coding and tracking COVID-19 matters moving forward.

While OSHA’s Interim Enforcement Response Plan makes clear that most work environments have a low risk of exposure to COVID-19, it also emphasizes that the agency views infection control practices and social distancing measures as a type of general duty obligation to protect employees from potential COVID-19 exposure. OSHA may therefore pursue enforcement against employers who it believes have inadequate infection control procedures or social distancing measures under the Occupational Safety and Health Act’s General Duty Clause. OSHA’s Interim Enforcement Response Plan also provides for OSHA inspectors to pay close attention to employer compliance with OSHA standards on injury and illness recordkeeping, bloodborne pathogens, sanitation, personal protective equipment, and respiratory protection when conducting COVID-19 related investigations or inspections.

If you have questions regarding how best to address respiratory protection in the current work environment, please reach out to Jackson Lewis’ Coronavirus Task Force at jlcovid-19support@jacksonlewis.com.

In light of the ongoing safety concerns related to COVID-19, OSHA issued an alert identifying various voluntary safety measures that employers can take to keep package delivery workers safe from exposure to coronavirus.  OSHA’s safety tips included:

  • Establishing flexible work hours (e.g., staggered shifts) where feasible;
  • Minimizing interaction between drivers and customers by leaving deliveries at loading docks, doorsteps or other locations that do not require person-to-person exposures;
  • Promoting personal hygiene. If workers do not have access to soap and water for handwashing, provide alcohol-based hand rubs containing at least 60 percent alcohol. Provide disinfectants and disposable towels workers can use to clean work surfaces, including vehicle interiors;
  • Allowing workers to wear masks over their nose and mouth to prevent them from spreading the virus;
  • Using Environmental Protection Agency-approved cleaning chemicals from List N or that have label claims against the coronavirus; and
  • Encouraging workers to report any safety and health concerns.

This alert is intended only to educate and protect employees during the coronavirus pandemic but does not impose any specific obligations on employers.  OSHA continues to enforce all applicable safety standards and has received a significant number of worker complaints related to COVID-19.  It is important for employers to assess what policies and procedures it has implemented to address safety issues related to COVID-19.  Jackson Lewis attorneys and the dedicated COVID-19 Task Force are available to assist employers with workplace health matters or to answer any questions.

 

Today, OSHA issued long over due guidance relating to the recordability of COVID-19 cases for employers.  In short, OSHA has stated that it will not enforce the recordkeeping standard,29 C.F.R. Part 1904, against the majority of employers due to the difficulty in determining whether an employee contracted COVID-19 at work unless there is objective evidence of work-relatedness.

Previously OSHA took the position that COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. In the new guidance today, OSHA is exercising its enforcement discretion and will not enforce the recordkeeping requirements for employers, unless that employer is in the healthcare industry, emergency response organizations (medical, firefighting or law enforcement) or correctional facilities.

OSHA specifically stated, “In areas where there is ongoing community transmission, employers other than those in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work. In light of those difficulties, OSHA is exercising its enforcement discretion in order to provide certainty to the regulated community.

Employers of workers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions must continue to make work-relatedness determinations pursuant to 29 CFR § 1904. Until further notice, however, OSHA will not enforce 29 CFR § 1904 to require other employers to make the same work-relatedness determinations, except where:

  1. There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
  2. The evidence was reasonably available to the employer. For purposes of this memorandum, examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.”

While the memorandum is less clear about reporting COVID-19 positive cases, it is reasonable to infer that if a case is not recordable because it is difficult to determine work-relatedness, then that equally applies to reporting such cases where approriate critieria, such as a fatality or in-patient hospitalization was met.  Hopefully OSHA will clarify the scope of this enforcement guidance so employers can rest assured they are in full compliance with OSHA requirements.

Due to the evolving coronavirus (“COVID-19”) pandemic and emergence of outbreaks across the country, there have been widespread reports of critical shortages of personal protective equipment (“PPE”), such as masks, face shields, and gowns. OSHA previously issued guidance, including an April 3, 2020 memorandum and interim guidance and a March 14, 2020 enforcement memorandum, which alleviated some concerns on enforcement of the respiratory protection standard, 29 CFR § 1910.134, and certain other health standards, resulting from severe shortages in respirator availability. However, while this guidance relaxed some requirements for respirators, including specifically N95s and other filtering facepiece respirators (“FFRs”), OSHA’s guidance regarding annual fit-testing requirements only applied to employers in the health care industry. As a result, employers in other industries, such as construction and manufacturing, continued to face significant compliance hurdles in relation to respirator supplies, training, and required fit-testing.

To address annual fit-testing compliance challenges faced by non-health care industries, OSHA issued a new enforcement memorandum on April 8, 2020 (“Enforcement Guidance”), expanding its prior guidance on fit-testing requirements to cover workers in all industries, not just health care workers. Under this new Enforcement Guidance, OSHA field offices are instructed to “exercise enforcement discretion” with respect to annual fit-testing requirements in cases where “employers have made good-faith efforts to comply” with the respiratory protection standard. Notable, however, is the Enforcement Guidance’s indication that a “good-faith effort” by an employer will require:

  • Assessment of engineering controls,
  • Consideration of work practices, and
  • Potential administrative controls that would decrease the need for use of N95s or other FFRs.

In addition, OSHA’s Enforcement Guidance suggests that an employer may need to “temporarily suspend certain non-essential operations,” and adjust fit-testing procedures to prioritize fit-testing of equipment needed to protect employees working in high-hazard areas. OSHA’s Enforcement Guidance further makes clear that this new guidance, while making considerations for annual fit-testing requirements due to the COVID-19 pandemic, is not alleviating remaining compliance  obligations under the respiratory protection standard, including specifically those relating to initial fit testing, maintenance, care, and training.

If you have questions regarding how best to address respiratory protection in the current work environment, please reach out to Jackson Lewis’ Coronavirus Task Force at jlcovid-19support@jacksonlewis.com.

While the Occupational Safety and Health Administration (OSHA) and some states have offered guidance to prevent employee exposure to COVID-19, Los Angeles, the state of New York, and New York City are enforcing more restrictive measures for construction sites.

Based on guidance from the U.S. Centers for Disease Control and Prevention (CDC), the Los Angeles Department of Building and Safety is  requiring construction employers to develop comprehensive exposure control plans to address COVID-19, the potentially deadly respiratory disease caused by the novel coronavirus. Each employer’s control plan must address five elements:

  1. Social distancing
  2. Symptom checking
  3. Hygiene
  4. Decontamination procedures
  5. Training

Failure to comply may mean withheld municipal inspections or even a shutdown of the construction site. In addition, the Mayor of Los Angeles has ordered essential workers to wear non-medical face coverings and has required employers to provide face coverings to employees at the employer’s cost.

Amid growing concerns of construction workers who share tools and portable commodes without adequate sanitation, newly released guidance from the Governor of New York has halted all non-essential construction, except for emergency construction (such as work on facilities necessary to protect the health and safety of the occupants, infrastructure projects, or unfinished sites that cannot safely shut down). Sites failing to ensure proper social distancing and other best safety practices will be subject to fines of up to $10,000 per violation. The New York City Department of Buildings is the largest municipal bureau tasked with implementing the ban, and it provides more specific guidance on construction it deems essential.

For projects deemed essential, the New York City Department of Buildings expects contractors to follow best practices, including handwashing, cleaning surfaces, symptom monitoring, and staggered schedules for in-person meetings (such as pre-shift meetings and new employee orientations). It also suggests telephonic or outdoor meetings when a group must convene.

Construction employers also should:

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

General contractors, prime subcontractors, and site owners also may consider sharing known or suspected cases of COVID-19 with subcontractors at every level and inspectors before they enter the site and encourage them to do the same. Contractors and necessary visitors can use this information to develop plans to segregate tasks by time or distance to prevent spread.

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

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

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

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

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

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

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

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

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

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

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

Employers should also:

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

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

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

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

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

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

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

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

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

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

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

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

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

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