Flip-flopping Guidance: The Saga Continues

Last week we wrote about government agencies’ tendencies to “flip-flop” on guidance related to preventing transmission and spread of coronavirus (“COVID-19”), and how this impacts employers’ ability to meet health and safety compliance obligations expectations and avoid regulatory liability. Underscoring these points, on Monday the U.S. Centers for Disease Control and Prevention (“CDC”) rolled out yet another massive change in its position on the transmission of COVID-19 – one that it had previously posted, then removed, and has now posted again. The onslaught of changing information continues.

While CDC maintains that “principal mode by which people are infected with SARS-CoV-2 (the virus that causes COVID-19) is through exposure to respiratory droplets carrying infectious virus,” the agency’s concept of “respiratory droplets” for the moment has evolved to include both “larger droplets” and “smaller droplets and particles.” CDC’s new guidance, updated October 5, also notes that COVID-19 spreads easily, by close contact with respiratory droplets comprised of large and small droplets as well as smaller particle-sized droplets. In a departure from its previous guidance, CDC notes that some virus particles can also be spread by airborne transmission as a result of smaller droplets and particles that may “linger in the air for minutes to hours,” and be transmitted over longer distances and timeframes (e.g., ability to infect people more than 6 feet away from the infectious person). In some circumstances,  individuals can also become infected by airborne transmission after the infectious person has already left the area.

Per CDC’s new guidance, airborne transmission of COVID-19 can occur in “special circumstances” and conditions, but airborne transmission is not thought to be an efficient mechanism to spread the disease. Circumstances in which airborne transmission of COVID-19 have been observed include within enclosed spaces in which an infected person produced respiratory droplets for an extended period of time, such as when the infected person is breathing heavily. Other circumstances in which airborne transmission has been observed include prolonged exposure in an area with poor ventilation or following expiratory exertion (e.g., exercising). In other words, CDC views airborne transmission of COVID-19 as a possibility, but sees it as an inefficient mechanism for spread of the disease. In addition, CDC views the primary mode of transmission to still be close contact with an infected person (i.e., direct contact within less than 6 feet). As a result, CDC maintains that the current preventive measures for close contact are the most effective at preventing the spread of disease, including 6-foot social distancing, frequent hand-washing, use of cloth face coverings or masks, isolating when sick, and cleaning and disinfecting frequently-touched or potentially contaminated surfaces. Yet, in spite of CDC’s continued emphasis on cleaning and disinfection measures as a preventive measure, CDC also notes that “touching surfaces is not thought to be a common way that COVID-19 spreads.” (Recall that early in the pandemic employers were encouraged to engage in rigorous supplemental cleaning and disinfecting protocols, before we learned that fomite-transmission was not common.) Although acknowledging the potential for airborne transmission, begrudgingly, CDC has also only added the directive to “avoid crowded indoor spaces and ensure indoor spaces are properly ventilated by bringing in outdoor air as much as possible.” Further, CDC stresses the importance of having effective ventilation in enclosed spaces to prevent and minimize the potential for COVID-19 transmission.

Employers should take this guidance and compare it to their current COVID-19 response plans and procedures. Most notably, the new guidance on airborne transmission has the potential to impact layout, ventilation, barrier protection, and perhaps even require employers to revisit their virtual work policies. In particular, while distancing of employees’ work-stations by six feet remains important – depending on the layout and ventilation of the workspace additional measures may be needed to reduce the potential for COVID-19 transmission. Employers should also evaluate their ventilation system and assure it follows guidance by ASHRAE (formerly known as American Society of Heating, Refrigerating and Air-Conditioning Engineers), the U.S. Environmental Protection Agency, and other professional and government organizations on ventilation and air filtration designs to help reduce risks from the virus that causes COVID-19. (Be wary, however, of snake-oil salesmen – there are many allegedly “protective” ventilation systems being sold to the unwary consumer at extremely high cost, despite providing no added value. For example, bipolar ionization is often touted as a selling point for new HVAC systems, but often the cleaning and disinfecting claims for these systems are not able to be verified through efficacy performance data. )

To be clear, the evolution of scientific understanding of this virus is inevitable and good, as epidemiologists, health professionals, and scientists work rapidly to extrapolate findings from new data. Further, public health directives are inevitably going to shift along with that understanding – also a social good. What is NOT good, however, is employers’ exposure to potential government enforcement action in an environment of rapidly shifting and in some instances conflicting guidance. As we noted last week, OSHA generally does not regulate or enforce in the area of colds, flus, and other common infectious diseases because these are predominantly issues of public health, and not exclusive to an occupational exposure or within an employer’s direct control. CDC’s latest change in guidance, which continues to clarify that COVID-19 is a highly infectious disease that is novel and still poorly understood, simply underscores why COVID-19 should be treated as a public health issue.

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.

COVID-19 Reporting: An Employer’s Nightmare

It is an unfortunate outcome of this pandemic that in the OSHA world, guidance lags behind enforcement. While state and federal agencies try to make up their minds on the best way of managing COVID-19 threats in the workplace, many employers who have to remain open are receiving citations and penalties for, essentially, making educated but incorrect guesses on what to do. Even the CDC guidance has flip-flopped so often, employers are forced to write preventative plans and procedures in pencil so that they can be easily erased and re-written to conform on a moment’s notice. Take, for example, the decision of whether to report an employee’s hospitalization or death due to COVID-19 to OSHA:

Federal OSHA

Under 29 C.F.R. § 1904.39, all employers – including low-risk employers that are partially exempt from certain OSHA recordkeeping requirements – must contact OSHA to report some serious work-related injuries and illnesses, such as fatalities and in-patient hospitalizations. These reporting requirements, which are dependent on employer knowledge, are also tied to specific timing considerations and constraints. 29 C.F.R. § 1904.39 (b)(6) in particular conveys that employers have 8 hours to report a work-related fatality that occurs within 30 days of the work-related incident (i.e., event or exposure) precipitating it.  Employers likewise have 24 hours to report an in-patient hospitalization if the hospitalization occurs within 24 hours of the work-related incident that caused it.

Most infectious diseases are not recordable or reportable under OSHA regulations for many reasons. First and foremost, because of the prevalence of common infectious diseases in the general population, it is impossible to determine whether an infection is work-related or not. Second, rulemaking initiatives surrounding the regulations noted explicitly that there should be a carve out for the common cold, flu, and similar illnesses because these illnesses were public health matters rather than occupational exposure issues, and as such were not work-related. OSHA has further generally excluded illnesses from the recordkeeping requirements that can develop regardless of workplace exposure. However, OSHA decided on April 13 that COVID-19 illness would be treated as a recordable or reportable illness in some cases.

COVID-19 is a highly infectious disease that is easily spread through aerosolized respiratory droplets (e.g., sneezes, coughs, etc.) while individuals are in close contact (i.e., less than 6 ft. distance). To make matters more complicated, COVID-19 can also be spread by asymptomatic individuals. As COVID-19 community spread has increased, employers have had to grapple with determining work-relatedness with limited and, in some cases, changing guidance from authorities. As discussed in some of our earlier blog posts, early on in the pandemic OSHA initially advised that only those employers with occupational exposures to COVID-19 (e.g., healthcare facilities) were required to assess COVID-19 cases for work-relatedness. But the agency changed course on this position in May, stating that all employers needed to assess COVID-19 cases for work-relatedness. Then in mid-July, OSHA quietly updated its COVID-19 FAQs to add guidance that took an extremely broad (and probably unenforceable) interpretation of an employer’s responsibility to report COVID-19 hospitalizations and fatalities.  That approach, which was deleted from the site just a couple of weeks later, required employers to report COVID-19 hospitalizations and deaths regardless of work-relatedness or timeline between the potential workplace exposure (i.e., last day worked) and reportable event. Such an approach would have required reporting on COVID-19 cases that did not occur during the regulatory limitations period for reporting – a complete departure from the regulation.

On October 1, 2020, OSHA updated the FAQs again – this time taking a more reasonable approach.  In these latest FAQs, OSHA defines a “work-related incident” as “an exposure to SARS-CoV-2 in the workplace.” This is a significant and welcomed departure from OSHA’s previous position, which eliminated the work-relatedness determination altogether.  OSHA’s FAQs are merely guidance, and not even formal guidance. OSHA does not review and approve FAQs posted on its website with the same rigor as a memo, interpretation letter, or other document – and of course, OSHA’s decision not to engage in rulemaking on COVID-19 means that none of its COVID-19guidance has been subject to notice and comment or other rulemaking requirements under the Administrative Procedures Act. However, the absence of a formal rule means that the agency’s COVID-19 guidance memorandums and FAQs are employers’ best resource  to understand how federal OSHA views these issues and the position OSHA will take on them in an enforcement action. However, employers cannot stop there – because various states have their own reporting requirements that sometimes diverge widely from the federal agency.

State Considerations

There are 28 OSHA-approved State Plans that operate statewide occupational safety and health programs. Of these State Plan states, several states, including specifically California, New Mexico, and Virginia have taken varying positions on COVID-19 case management, resulting in distinct reporting requirements. A table comparing these states’COVID-19 case reporting requirements is provided below:

Federal OSHA California Reporting Distinctions New Mexico Reporting Distinctions Virginia Reporting Distinctions
 “Reportable” COVID-19 Case Requirements Confirmed COVID-19 positive case through testing that is determined to be work-related and results in satisfaction of reporting criteria.
  • COVID-19 case does not have to be confirmed through testing.
  • COVID-19 case must be reported if it meets the definition of a “serious injury or illness” irrespective of when a potential exposure may have occurred.
  • COVID-19 case may need to be reported even if work-relatedness determination is uncertain.
  • Confirmed COVID-19 employee case through testing.
  • Does not require work-relatedness or satisfaction of reporting criteria.
  • Report must be made within 4 hours of the employer’s knowledge that the employee is confirmed COVID-19 positive.
  • Confirmed COVID-19 positive case through testing that is determined to be work-related and results in satisfaction of reporting criteria.
  • Cluster or outbreak of cases, considered to be 3 or more employees present at the workplace within a 14-day period who have tested positive for COVID-19.

 

In addition to these reporting requirements, employers must also juggle reporting obligations to state and local health departments, notification requirements to employees and other third parties, and coordination with federal and state government agencies on COVID-19 concerns. In application, this means that for any given COVID-19 case, an employer may have a reporting obligation to (i) federal OSHA, or the state equivalent, (ii) state or local public health department, and corresponding notification obligations to (iii) employees and (iv) applicable third parties – all within strict timelines. Constantly evolving and, at times, inconsistent guidance from federal OSHA, government agencies, and state agencies ultimately leaves employers with significant uncertainty and confusion, as well as less opportunities to be successful in hitting their compliance targets.

To avoid regulatory liability and minimize risks of enforcement, employers need to be diligent in managing COVID-19 cases, even if they are likely from community exposures, and maintain effective records. Having a written plan for management of a COVID-19 case ahead of time, which is regularly updated, to account for changes in reporting and notification requirements can also help ensure reporting is done consistently, in a timely manner, and in accordance with the various reporting requirements.

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.

Occupational Safety and Health Review Commission Issues Spate of Pro-Employer Decisions

Last week, the Occupational Safety and Health Review Commission (OSHRC), a 3-Commisioner panel appointed by the President and confirmed by the Senate which hears appeals of contested OSHA cases, issued two decisions vacating OSHA’s citations and one decision reclassifying a willful violation to a serious violation and reducing the penalty from $49,000 to just $3500. These decisions signal a trend toward holding OSHA and the Department of Labor accountable for the citations they issue to employers for alleged safety and health violations. The three decisions all involve citations for machine guarding, which is a common hazard cited by OSHA in manufacturing and other industries. All three decisions were unanimous, which is significant given the makeup of OSHRC—two pro-employer Commissioners (Sullivan and Laihow) and one pro-employee Commissioner (Attwood).

In Aerospace Testing Alliance, the tip of an employee’s finger was crushed while operating a power shear in the metal shop after he removed a glove and circumvented a guard by placing his finger underneath the guard and piston on tip of the piece of metal he was cutting. The Commission overturned the ALJ’s decision upholding the citation, finding that the guard itself was compliant in the machine’s normal operation and that it was not reasonably predictable that the operator would circumvent the guard. Thus, the Commission concluded there was no violative condition given the manner in which the machine functions and how it is operated by the employees.

In Wayne Farms, an employee was injured when he was pulled into a poultry breading machine when he lifted the hopper’s metal gate and reached inside the machine while it was running. The Commission upheld the ALJ’s decision to vacate the citation on the same grounds as in Aerospace Testing Alliance. Specifically, the Commission found that the machine guarding was sufficient in the normal operation of the machine, but the employee bypassing the guard was not reasonably predictable and thus there was no noncompliance condition during the normal operation and normal job tasks related to that machine.

Finally, in Dover High Performance Plastic, Inc., OSHA cited the company with a willful machine guarding violation for allowing employees to operate lathes and mills with the doors either opened or removed. The Commission upheld the citation as to the lathes and not the mills, but reclassified the violation from willful to serious. The Commission found that the company demonstrated good faith by reprogramming the lathes following a 2012 accident which eliminated the most obvious aspect of the hazard—that an employee could be injured by the component of the lathe that begins to move when the production cycle automatically commences. Because the Commission found no violation with respect to the mill equipment and found good faith with respect to the lathes, it reduced the original penalty from $49,000 to $3,500.

OSHA serves and important role in helping protect America’s workforce by overseeing that employers provide a safe and healthful working environment to their employees. However, the agency is not infallible. As is often the case, particularly when workplace accidents occur, OSHA will issue citations to employers for alleged safety and health violations. But, as demonstrated by these three recent decisions, sometimes an accident really is just that and an employer is otherwise meeting its legal obligations.

For safety and health compliance assistance or defense of an OSHA inspection or citations, contact a Jackson Lewis attorney.

Virginia COVID-19 Restrictions and Workplace Standards Challenged by Manufacturers’ Association

A manufacturers’ association and several employers have filed a lawsuit to enjoin Virginia’s Emergency Temporary Standard for Infectious Disease Prevention related to COVID-19, which the Virginia Safety and Health Codes Board adopted on July 15, 2020.

To read the entire article, please click here.

Assembly Bill 685 Changes Employer Notification Requirements on COVID-19 and Enhances Cal OSHA Enforcement Abilities

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.

Have You Started Your COVID-19 Training and Infectious Disease Plan In Virginia?

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.

More Guidance on COVID-19 Response Measures for FDA Regulated Human and Animal Food Operations

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.

Wildfires Present Challenges for California Employers

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.

Cal OSHA issues Updated Infection Prevention Guidance for Agricultural Employers

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.

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