OSHA Offers Carryout Guidance for Restaurateurs

With many restaurants limited to offering food and beverage carryout and curbside pickup options because of the COVID-19 pandemic, the Occupational Safety and Health Administration (OSHA) has published guidelines suggesting best practices to prevent the spread of COVID-19.

To prevent exposures with customers, OSHA recommends that food and beverage vendors:

  • Avoid direct hand-offs when possible;
  • Display an external sign with services available, instructions for pickup, and hours of operation; and
  • Reserve parking spaces near the front entrance for curbside pickup only.

To prevent exposures between restaurant personnel, OSHA recommends that restaurants:

  • Encourage workers to stay home if they are ill;
  • Train workers in hygiene practices and proper controls, such as social distancing;
  • Allow workers to wear masks or face coverings;
  • Provide handwashing stations and alcohol-based hand rubs;
  • Routinely clean and disinfect surfaces and equipment with disinfectants listed on the Environmental Protection Agency’s List N or have label claims addressing COVID-19; and
  • Encourage workers to report any safety or health concerns.

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

OSHA and CDC Issue Interim Guidance on COVID-19 for Meat and Poultry Processing Workers and Employers

Meat processing and packing facilities around the United States have emerged as hotspots for COVID-19.  While handling and processing meat and poultry does not expose workers to coronavirus, close contact with coworkers and supervisors may contribute to their potential exposures.  A number of facilities have had to temporarily close down operations due to outbreaks of Coronavirus amongst the workforce which has led to several deaths.  Many farms have reluctantly considered slaughtering their animals because of the lack of processing capacity.  This has sounded the alarm of many in the industry that there could be a disruption to the meat supply.

To address these concerns, President Trump signed an Executive Order on April 28, 2020 invoking the Defense Production Act to classify meat processing plants as essential infrastructure that must remain open to avoid disruptions to the nation’s food supply chains.  The Order specifies that the government will determine and provide all necessary materials and services to keep such facilities open consistent with guidance issued by the Centers for Disease Control (“CDC”) and OSHA.

The joint guidance issued by CDC and OSHA on April 26, 2020 provides steps that meatpacking and meat processing workers and employers – including those involved in beef, pork and poultry operations – can take to provide a safe and healthy workplace for workers by reducing the risk of exposure to the coronavirus.  While not creating new binding regulations that are enforceable against employers, it does provide helpful guidance for meat and poultry processors to limit the spread of COVID-19.

The interim guidance from OSHA and the CDC includes recommendations on the following:

  • Cleaning of shared meatpacking and processing tools;
  • Screening employees for the coronavirus before they enter work facilities;
  • Managing workers who are showing symptoms of the coronavirus;
  • Implementing appropriate engineering, administrative, and work practice controls;
  • Using appropriate personal protective equipment; and
  • Practicing social distancing at the workplace.

The recommendations also call for designating a qualified workplace coordinator to be responsible for COVID-19 assessment and control planning.  The coordinator should be identified as the contact person for any state/local health officials or OSHA/CDC.  All workers in the facility should know how to contact the identified coordinator with any COVID-19 concerns.  Facility management is encouraged to reach out to state and/or local public health officials and occupational safety and health professionals and establish ongoing communications to make sure they are getting relevant and up-to-date information concerning COVID-19.

Jackson Lewis attorneys and the dedicated COVID-19 Task Force are tracking the rapidly evolving federal, state, and local mandates.  Please contact a Jackson Lewis attorney with any questions.


Navigating Employer Obligations to Provide Employees with Masks, Face Coverings

As the Centers for Disease Control and Prevention (CDC) continues to study COVID-19, the agency is regularly updating guidance on precautionary measures to further prevent the spread of COVID-19 across the United States. The agency has expanded its recommended precautions to include “wearing cloth face coverings in public settings where social distancing measures are difficult to maintain” in response to new information showing that COVID-19 can spread from asymptomatic people in close proximity interactions (e.g., individuals standing directly next to each other and talking). To read full article please click here.

OSHA Outlines Discretion in Issuing Citations During Coronavirus Pandemic based on Employer’s Good Faith Efforts

On April 16, 2020, OSHA issued an Enforcement Memorandum directed to Regional Administrators and State Plan Designees giving them Discretion in Enforcement when Considering an Employer’s Good Faith Efforts During the Coronavirus Disease 2019 (COVID-19) Pandemic.  Under the Memo, OSHA acknowledges that some “employers may face difficulties complying with OSHA standards due to the ongoing health emergency” since business closures and other restrictions “may limit the availability of employees, consultants, or contractors who normally provide training, auditing, equipment inspections, testing, and other essential safety and industrial hygiene services.”  OSHA also recognized that employee participation in training or access to medical testing facilities could likewise be limited due to business closures and other restrictions related to COVID-19.  The Memo noted for example that several groups have suspended occupational spirometry and audiometric evaluations to minimize the risk of exposure to Coronavirus.

Based on this new reality, OSHA Area Offices and Compliance Safety and Health Officers (CSHOs) are instructed during inspections to consider an employer’s good faith efforts to comply with safety standards which require annual or recurring audits, reviews, training, or assessments.  In assessing an employer’s good faith efforts, the Memo advises that CSHO’s should examine whether the employer thoroughly explored all compliance options such as using virtual training or remote communications where possible.  This includes considering other interim alternative protections implemented or provided to protect employees, such as engineering or administrative controls, and whether the employer took steps to reschedule the required annual activity as soon as possible.

In cases where compliance is not possible, CSHOs must also look to see if the employer ensured that employees were not exposed to hazards from tasks, processes, or equipment for which they were not prepared or trained.  Likewise, if an employer cannot comply with OSHA-mandated training, audit, assessment, inspection, or testing requirements due to the closure of workplaces by local authorities, employers should still demonstrate a good faith attempt to meet the applicable requirements as soon as possible following the re-opening of the workplace.

To the extent an employer can show that it made good faith effort to comply, Area Offices have the discretion to take such efforts into “strong consideration” in determining whether to issue a citation.  In such cases, Area Offices must include sufficient documentation to support the decision (e.g., notes on the efforts the employer made to comply, letters or other documentation showing that providers had closed).  If the employer is unable to demonstrate any efforts to comply, then a citation can be issued as appropriate under existing enforcement policy.

The Memo provides several examples of situations where enforcement discretion should be considered.  This includes annual audiograms that had to be canceled due to on-site visitor restrictions and social distancing protocols.  In that case, OSHA would not cite the employer for failing to conduct annual audiograms provided that the employer: “considered alternative options for compliance, implemented interim alternative protective measures, where possible, and shows a good faith effort to reschedule the mobile facility as soon as possible.”  Similarly, OSHA will not cite an employer for failing to conduct annual refresher respirator training that could not be conducted due to travel restrictions for the consultant again if the employer made good faith efforts to comply and to reschedule the training as soon as the restrictions are lifted.  OSHA also provided examples related to annual Process Safety Management requirements, hazardous waste operations training, maritime crane testing and certification, construction crane operator certification and medical evaluations.

OSHA also stated that it will develop a program to conduct monitoring inspections from a randomized sampling of cases where violations were noted but not cited under this policy to ensure that corrective actions are taken by the employer once normal activities resume.  CSHOs have been directed to code such cases for future review and OSHA stated that additional guidance on monitoring will be provided at a later date.

The Memo is effective immediately and will remain in effect until further notice.  OSHA noted that this guidance is due to the unique public health crisis related to COVID-19 and is time-limited.  If you have any questions regarding OSHA enforcement activity during the COVID-19 pandemic, Jackson Lewis attorneys and the dedicated COVID-19 Task Force are available to assist.

States Providing Guidance and Considering New Rules to Protect Agriculture Workers from COVID-19

As harvesting seasons approach, some state safety agencies have considered whether additional safety measures are needed to protect agricultural workers from potential exposures to coronavirus (“COVID-19”). In California, the state Department of Industrial Relations Division of Occupational Safety & Health (“Cal OSHA”) released specific guidance on April 7, 2020 for agricultural employers. While noting that communicable diseases, such as COVID-19, are a recognized workplace hazard within the state, Cal OSHA advises California agricultural employers to ensure their Injury and Illness Prevention Programs (“IIPPs”) address potential exposures to COVID-19. Cal OSHA’s guidance goes on to make specific recommendations for agricultural employer’s IIPPs, which include:

  • Providing training to employees on how to recognize COVID-19 symptoms, methods of preventing transmission, and good hygiene practices.
  • Implementing procedures to help prevent the spread of COVID-19 at worksites, such as methods for identifying and sending employees home that are sick, ensuring proper sanitation, and routine cleaning and disinfecting of hard surfaces.
  • Incorporating methods of physical distancing into all work practices, such as staggering work shifts, constructing additional shade structures to allow for employees to stand at least 6 ft. apart, and setting up quarantines for workers who live on site but who are exhibiting symptoms of illness.

State agricultural agencies in Minnesota and Connecticut have also published resources for agricultural employers on preparing for sick workers in light of the COVID-19 pandemic and outbreaks. But, for the most part, guidance from these states corresponds with general recommendations from the Centers for Disease Control and Prevention (“CDC”) on preparing for COVID-19 exposures and do not contemplate new or additional safety measures.

In contrast, Oregon OSHA, is currently considering whether to initiate rulemaking on farmworker housing and field sanitation considering COVID-19 concerns. Oregon OSHA, in fact, requested public comments on a petition that requests Oregon OSHA issue rules requiring agricultural employers to provide toilets, clean transportation, COVID-19 training, and decongested living spaces. Comments on the petition closed on April 13, 2020 and Oregon OSHA is expected to decide on rulemaking needs relatively soon.

Employers should carefully assess how states are viewing worker safety during the COVID-19 pandemic because state specific guidance and requirements may have a significant impact on the policies and procedures that employers need to address safety issues related to COVID-19 under state safety laws. Jackson Lewis attorneys and the dedicated COVID-19 Task Force are available to assist employers with workplace health matters or to answer any questions.


OSHA Interim Enforcement Response Plan for COVID-19 Matters

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.

OSHA Issues COVID-19 Alert Identifying Safety Tips for Package Delivery Workers

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.


OSHA Issues Enforcement Guidance on Recording COVID-19 Cases

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.

OSHA Expands Guidance on Respirator Fit-Testing to Cover all Industries

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.

Los Angeles, New York Impose New Construction Requirements and Restrictions Due to COVID-19

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.