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.

OSHA Does Not Back Employee Work Refusals in All Circumstances

Since March 2020, workers have expressed elevated concerns about their exposure to COVID-19 on construction sites. As states lift restrictions on construction work, employers should note that the Occupational Safety and Health Administration (OSHA) limits workers’ ability to refuse work.

 

To read the full article, click here.

New OSHA Guidance for Businesses Returning to Work

Late last week, the Occupational Safety and Health Administration (“OSHA”) issued new guidance for employers that are reopening their businesses and returning employees to work. Intended as a supplement to the agency’s earlier Guidance on Preparing Workplaces for COVID-19, this guidance does not offer any new recommended practices or strategies for minimizing and preventing the spread of coronavirus (“COVID-19”). Instead, this guidance provides examples for how employers can incorporate recommended practices for COVID-19 control and prevention into reopening and return to work strategies, with continued focus on infectious disease control and prevention (e.g., hand hygiene; cleaning and disinfection), social distancing, workplace controls and flexibilities (e.g., methods for identifying sick individuals and removing them from the workplace), and employee training.

Under OSHA’s guidance, employers are at a minimum expected to ensure the following:

  • Hazard Assessment: Risks of exposure to COVID-19 in the workplace are addressed through completion of a documented hazard assessment and implementation of corresponding controls, such as engineering controls (e.g., physical barriers), administrative controls (e.g., staggered shifts, health screening, workplace policies), and, when applicable, use of personal protective equipment (“PPE”).
  • Use of Preventive Controls: Risks of exposure to COVID-19 and spread of the disease are prevented and minimized through good hygiene (e.g., hand hygiene, respiratory etiquette, and protocols around cleaning and disinfection), social distancing, and immediate identification and removal of sick individuals from the workplace.
  • Policies and Procedures: Effective policies and procedures are in place to minimize employees’ exposure risks, such as procedures for prompt injury and illness reporting, remote work, sick leave, and workplace flexibility.
  • Employee Training: Employees are trained on potential workplace exposures to COVID-19 and how to prevent the spread of COVID-19 at work, including risks of exposure to COVID-19, the employer’s COVID-19 related policies and procedures, and safe work practices (e.g., use of cloth face coverings, good hygiene practices, and cleaning and disinfection measures).

OSHA’s new guidance also broadly addresses health screening, temperature checks, COVID-19 testing, and use of PPE. More specifically, OSHA’s guidance conveys that OSHA’s standards and regulations generally permit employers to conduct health screening measures, such as questionnaires, temperature checks, and COVID-19 testing to prevent sick people from entering the workplace. In doing so, however, OSHA instructs employers to ensure compliance with guidance from the Centers for Disease Control and Prevention (“CDC”) and U.S. Equal Employment Opportunity Commission (“EEOC”), along with applicable state and local laws. Employers will also need to ensure effective controls are in place to prevent COVID-19 exposures while conducting employee screening through use of effective social distancing or PPE as appropriate and may need to comply with additional OSHA standards and regulations. For example, on-site screening of employees and corresponding documentation of screening results may incur compliance obligations under OSHA’s PPE and medical records standards.

No matter how employers plan to address COVID-19 risks within the workplace, OSHA’s guidance reminds employers that they need to be aware of evolving guidance from the CDC and location specific circumstances. Further, OSHA’s guidance re-emphasizes to employers that employees have a right to raise workplace safety and health concerns without fear of retaliation, which includes a right to raise concerns over the employer’s COVID-19 policies and procedures.

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

California Employers Face Different Recording and Reporting Requirements for COVID-19 Cases

Requirements for recording and reporting of occupational injuries and illnesses are unique in California, with the state having more stringent obligations than federal Occupational Safety and Health Administration (“OSHA”) around both reporting of “serious injuries” and what constitutes a work-related injury or illness. To complicate the matter further for California employers, the State of California Department of Industrial Relations’ Division of Occupational Safety and Health (“Cal OSHA”) recently issued guidance on recording and reporting of coronavirus (“COVID-19”) cases, which differs from guidance issued by federal OSHA.

Much like federal OSHA’s guidance on COVID-19 recording and reporting, Cal OSHA’s guidance contends that employers need to assess COVID-19 cases for work-relatedness and record them on the company’s log (i.e., 300, 300A and 301 or equivalent forms) when the COVID-19 case satisfies recording criteria by leading to death, lost time, medical treatment beyond first aid, or loss of consciousness. Under Cal OSHA’s guidance, employers may also need to report the COVID-19 case when work-related and results in the employee’s death or hospitalization. But, unlike federal OSHA requirements, Cal OSHA’s guidance makes clear that employers may also need to record a COVID-19 case, and potentially report, if it causes a “significant injury or illness” as diagnosed by a licensed medical or healthcare professional. In addition, any work-related COVID-19 case that results in a fatality or hospitalization needs to be reported, regardless of how long has passed from the possible exposure event due to differences in Cal OSHA’s requirements for reporting.

Some other significant differences in Cal OSHA’s guidance around recording and reporting of COVID-19 cases include the following:

  • Confirmed COVID-19 Case: Cal OSHA like federal OSHA considers a positive COVID-19 test to provide confirmation of COVID-19 infection. Yet unlike federal OSHA, Cal OSHA’s guidance conveys that there may be circumstances where an employer must record or report a COVID-19 case without a test result confirming the presence of COVID-19. Cal OSHA also takes the position that in some cases recording and reporting obligations will apply to a suspected COVID-19 case and some employee illnesses which have yet to be diagnosed as COVID-19.
  • Sickness at Work: Because of Cal OSHA’s more stringent requirements for reporting of a “serious injury or illness,” Cal OSHA’s guidance contends that employers need to report a case when an employee becomes sick at work if it constitutes a “serious injury or illness” without regard for whether it is work-related. Under this guidance, California employers may have an obligation to report a COVID-19 case to the agency, even if it is ultimately determined not to be work-related.
  • Workers Compensation Considerations: In direct response to California Governor Newsom’s order on workers compensation eligibility for essential workers that contract COVID-19, Cal OSHA’s guidance advises employers that the work-related determination for recording and reporting obligations under Cal OSHA regulations remains separate from the determination for workers compensation eligibility.

While in the end, both federal OSHA and Cal OSHA agree that COVID-19 cases will be recordable and reportable in some cases employers in California need to be diligent in assessing instances of COVID-19 to ensure they comply with California’s more stringent recording and reporting obligations.

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 Issues Guidance on Prevention of COVID-19 Cases at Construction Sites

The Occupational Safety and Health Administration (OSHA) has issued guidance for construction industry employers to prevent spread of COVID-19.

In addition to measures the agency suggests for all employers, the guidance includes a variety of preventive measures at construction sites, such as:

  • Using Environmental Protection Agency-approved cleaning chemicals from List N or that have label claims against COVID-19 for cleaning frequently touched surfaces like tools, handles, and machines;
  • Using physical barriers (such as walls, closed doors, or plastic sheeting) to separate workers from individuals experiencing signs or symptoms consistent with COVID-19;
  • Keeping in-person meetings (such as toolbox talks and safety meetings) as short as possible, limiting the number of workers in attendance, and using social distancing practices;
  • Screening calls when scheduling indoor construction work to assess potential exposures and circumstances in the work environment before worker entry; and
  • Staggering work schedules (such as alternating workdays or extra shifts) to reduce the total number of employees on a job site at any given time and to ensure physical distancing.

Specifically for construction work in home environments or occupied buildings, the guidance directs employers to implement standard operating procedures and employee training to ensure that workers:

  • Request that any residents at the worksite who have been diagnosed with or are experiencing signs or symptoms of COVID-19 remain physically separated from and communicate remotely with workers;
  • Ask others in the workplace to wear a cloth or other face covering, if available, and to cover coughs and sneezes; and
  • Request that shared spaces in the construction area have good air flow, such as by turning on an air conditioner or opening windows, weather permitting, consistent with CDC recommended precautions for people in households.

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 COVID-19 Team.

OSHA Issues Guidance Clarifying Recording Obligations for COVID-19 Cases

The Occupational Safety and Health Administration (OSHA) has published new guidance requiring employers covered by OSHA’s recordkeeping standards to determine whether employees have contracted COVID-19 while at work.

In an effort “to provide certainty to employers and workers,” beginning on May 26, 2020, the agency is requiring all employers to record all COVID-19 cases that:

  • Are confirmed by at least one positive test (as defined by the CDC as a respiratory specimen that tested positive for SARS-CoV-2, the virus that causes COVID-19);
  • Are work-related; and
  • Cause employees to seek medical treatment beyond first aid, result in lost work days or restricted duty or cause loss of consciousness or death.

In an earlier guidance, published on April 10, 2020, the agency recognized the difficulty of determining whether a COVID-19 case was “work-related” due to potential employee infections at home, in the community, or elsewhere. Deciding that employers needed to devote their attention to protective measures (such as disinfecting worksites and implementing proper safety controls), OSHA limited the requirement to make work-related determinations to employers in healthcare industries, emergency response organizations, and correctional institutions. Under that guidance, most employers were exempt from making work-related determinations unless there was reasonably objective evidence reasonably available to the employer of a work-related case. The April 10 guidance will be rescinded on May 26, 2020 and the May 19, 2020 guidance will take effect.

Accordingly, most employers must determine whether employees contracted COVID-19 at work when completing OSHA 300 Logs listing injuries and illnesses. Such logs have become increasingly relevant in recent years because OSHA uses employers’ self-reported data in the logs to publish each workplace’s injury and illness rates on the agency’s website. In accordance with existing regulations, the only employers that are exempt from maintaining such injury and illness records are those with 10 or fewer employees or certain employers in low-hazard industries.

OSHA has directed compliance officers enforcing the new rule to consider a variety of factors in determining compliance, such as:

(1) The reasonableness of the employer’s investigation into work-relatedness;

OSHA has indicated that a reasonable investigation would include the following:

  • Asking the employee how he/she believes they contracted COVID-19;
  • Discussing, to extent feasible, the employee’s out of work activities; and
  • Reviewing the employee’s work environment to consider other related cases.

(2) The evidence available to the employer;

Determinations of whether a case is work-related should be based on evidence reasonably available to the employer at the time the determination is made, but can be changed later when the employer later learns more information that might impact the work-relatedness determination.

(3) And evidence that a COVID-19 illness was contracted at work.

OSHA’s guidance outlines some evidence that may weigh in favor of or against work-relatedness, including:

  • Whether there are several cases among workers who are work closely together and there is no alternative explanation (likely work-related);
  • Whether an employee contracted COVID-19 shortly after lengthy close exposure to a customer or coworker who has is confirmed positive and there is no alternative explanation (likely work-related);
  • Whether the employee’s job duties have them in frequent, close exposure to the general public in an area with ongoing community transmission and there is no alternative explanation (likely work-related);
  • Whether the employee is the only worker to contract COVID-19 and the employee’s job duties do not include frequent contact with the public, regardless of community transmission (likely not work-related); and
  • Whether the employee, outside of work, has close and frequent contact with family, significant other, friends, (who are not co-workers) who have COVID-19 (likely not work-related).

Because OSHA considers COVID-19 a respiratory illness, it should be coded on the 300 Log as such and if an employee voluntarily requests that their name not be entered into the OSHA 300 Log, the employer must not publish the employee’s name.

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

 

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