As directed by President Joe Biden’s Executive Order issued on January 21, 2021 requiring the Federal Government to take swift action to protect workers from the COVID-19 pandemic, the Occupational Safety and Health Administration (“OSHA”) has released updated guidance on how to prevent exposure and the spread of COVID-19 in the workplace.

The guidance entitled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” was posted on OSHA’s website on January 29, 2021.  As with OSHA’s previous recommendations, this guidance is not mandatory and does not have the same legal effect as an OSHA standard.  However, it does give some insight into what OSHA expects to include in an emergency temporary standard (“ETS”) which the new Administration wants the agency to consider and potentially implement by March 15, 2021.

Most employers will be familiar with the elements in the guidance, but here are some of the significant new measures addressed in the guidelines:

  • Employers should provide all workers with face coverings (i.e., cloth face coverings, surgical masks), unless their work task requires a respirator.  Many states did not require this and OSHA did not previously recommend employers purchase masks.
  • Provide a COVID-19 vaccine at no cost to eligible employees.
  • Do not distinguish between vaccinated workers and those who are not vaccinated for purposes of implementing safety measures.
  • Minimize the effect of quarantine and isolations by implementing non-punitive policies, and provide paid sick leave. Employers with less than 500 employees are encouraged to provide FFCRA leave which is still available (though not mandatory) through March 31, 2021 under the Families First Coronavirus Response Act.
  • Provide guidance on screening and testing.
  • Assign a workplace coordinator responsible for COVID-19 issues.

OSHA’s guidance related to the COVID-19 pandemic continues to evolve and further changes are expected with President Biden’s new Administration.  James “Jim” Frederick, a former United Steelworkers safety official, has been named by the Administration to act as the head of OSHA on an interim basis.  Mr. Frederick has indicated that in that role he will be focused on drafting and implementing an enforceable emergency COVID-19 standard.  While these efforts may be opposed by various industry groups, employers need to be aware of these potential new developments so they can take appropriate steps to ensure that they are following the best recommendations to address the pandemic and provide their employees a safe and healthy working environment.

If you have questions or need assistance on OSHA inspections and citations, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.

In November, California quietly approved the Division of Occupational Safety and Health’s (“Cal OSHA”) COVID-19 Emergency Temporary Standard (“ETS”). Almost immediately, Cal OSHA’s ETS caused significant confusion and challenges for employers, who were already struggling with countless federal, state, and local requirements pertaining to COVID-19. Cal OSHA’s ETS also appeared to create new and different notification obligations for COVID-19 cases than those already provided for under AB 685 and standing health officer orders, and imposed confusing obligations on employers related to COVID-19 testing, work exclusions, and reporting of COVID-19 cases. In places, Cal OSHA’s ETS could also be viewed as requiring inconsistent response measures to those recommended under current guidance from the Centers for Disease Control and Prevention (“CDC”) and standing health officer orders. Moreover, the ETS requires preventive measures without consideration for the feasibility of those measures for certain workplaces.

In response to numerous concerns raised by employers and business associations, Cal OSHA’s standards board held a public meeting on the ETS in mid-December. And in response to stakeholder concerns, Cal OSHA promised to provide additional guidance on the ETS in the form of updated Frequently Asked Questions (“FAQs”) on its website.

At the start of January, and more than a month after the ETS had gone into effect, Cal OSHA finally published its additional guidance on the ETS.

The FAQs cover a host of topics, including information on the ETS’s applicability, how Cal OSHA intends to enforce the ETS, key requirements, and guidance for how employers can comply. Cal OSHA also provided clarification on testing requirements, considerations for “multiple infections,” or outbreak conditions, and requirements for providing exclusion pay to employees. Although much of the FAQs are merely a restatement of the actual ETS, there are some clarifications in the FAQs that have a substantial impact on employers. The FAQs also at times appear to depart from the ETS and provide an altered compliance obligation.

Some highlights from the FAQs include the following:

  • Scope of Coverage: The ETS applies to all employers, employees, and all places of employment with three exceptions:
    • A workplace where there is only one employee who does not have contact with other people;
    • Employees who are working from home; and
    • Employees who are covered by Cal OSHA’s Aerosol Transmissible Diseases Standard and regulations.
  • Communication with Employees: Under the ETS, employers must have effective communication with employees on (i) how to report COVID-19 symptoms, exposures, and hazards to the employer without fear of reprisal, (ii) COVID-19 hazards in the workplace, (iii) the employer’s COVID-19 related policies and procedures; (iv) testing resources, (v) how the employer will notify employees of potential COVID-19 exposures; (vi) the employer’s cleaning and disinfection protocols; and (vii) how employees can participate in identification and evaluation of COVID-19 hazards in the workplace. Employers must also provide training to employees on a wide range of COVID-19 related topics, including information on benefits that may be available to the employee and the proper use of face coverings.
  • Outbreaks and Exposed Workplaces: The FAQ somewhat clarifies the definitions of an outbreak, major outbreak, and “exposed workplace” for Cal OSHA purposes. For purposes of the ETS, “an outbreak” is three or more employees who are COVID-19 positive in 14 days, whereas “a major outbreak” is 20 or more employees testing positive in 30 days in an exposed workplace. An “exposed workplace” is, in turn, considered to be a work location, working area, or common area that is used or accessed by a COVID-19 case during their high-risk period or infectious period and can include bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas. However, the FAQs indicate that Cal OSHA does not expect employers to treat areas where masked employees momentarily pass through as part of the “exposed workplace.” Cal OSHA’s FAQs also do not address the fact that their interpretation of an outbreak or exposed workplace may be markedly different from the local health departments or how employers should address an outbreak condition when there are competing definitions or requirements under California laws (e.g., the ETS and health officer order).
  • Testing Requirements: In an attempt to clarify the testing obligation for employers, Cal OSHA’s FAQ states that when testing is required under the ETS, employers must only (i) inform employees on the need for testing and how they can obtain COVID-19 testing; (ii) offer testing to the affected employees at no cost; and (iii) ensure employees are compensated for the time it takes to get tested. Despite the plain language of the ETS conveying different obligations for testing in response to a COVID-19 case and outbreak conditions, Cal OSHA’s FAQ also states that there is no difference in meaning between the obligation to “offer” or “provide” testing in the ETS. Further, even though the ETS conveys that employees are to be immediately tested in some circumstances, employers are not required to mandate employee testing, exclude the employee from the workplace until testing is complete, or obtain a declination from an employee who refuses to be tested.

Even though Cal OSHA provided 69 FAQs and responses, employers are likely to continue to have questions as well as face compliance challenges. Cal OSHA has, for example, not addressed the permissibility of employers using COVID-19 testing resources that are approved through an alternate regulatory pathway than the Food and Drug Administration and Emergency Use Authorization pathway outlined in the ETS, even if these testing resources are more readily available or affordable.

Cal OSHA’s FAQs also do not address challenges posed by the exclusion pay provisions. This is especially significant given that some of the sick leave benefits Cal OSHA contemplates as being available for employers to meet exclusion pay provisions expired at the end of 2020 and have not been renewed. Moreover, Cal OSHA does not address the apparent conflict in the exclusion pay provisions and workers’ compensation compensability. The conflict arises especially with employees who become symptomatic as they may not be eligible for exclusion pay and may also not be eligible for workers’ compensation.

Cal OSHA’s FAQs has advised that additional resources for compliance are forthcoming and that resources, including sample training materials, will be posted and updated on Cal/OSHA’s COVID-19 webpage.

If you need assistance in complying with the ETS or other Cal OSHA safety regulations, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

After Congress passed the Federal Civil Penalties Inflation Adjustment Act Improvements Act in 2015, it has now become an annual requirement for the U.S. Department of Labor to adjust civil penalty amounts for the various laws it enforces using cost-of-living adjustments to account for inflation.  According to the Act, the purpose of these annual adjustments is to improve the effectiveness of civil monetary penalties by increasing the amounts to maintain their deterrent effect.

For 2021, the U.S. Department of Labor published a final rule setting forth the following adjustments to the Occupational Safety and Health Administration (OSHA) civil penalty amounts based on cost-of-living adjustments:

  • OSHA’s maximum penalties for serious and other-than-serious violations will increase from $13,494 per violation to $13,653 per violation.
  • The maximum penalty for willful or repeated violations will increase from $134,937 per violation to $136,532 per violation.
  • Posting violations increased from $13,494 per violation to $13,653 per violation.
  • Failure to abate violations increased from $13,494 per day to $13,653 per day.

These OSHA civil penalty adjustments become effective and apply to any penalties assessed after January 15, 2021.  Since they must have standards and an enforcement program as effective as Federal OSHA, State OSHA plans must also increase their penalty amounts to come into alignment with these penalty increases.

If you have questions or need assistance on OSHA inspections and citations, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.

The Virginia Safety and Health Codes Board enacted a Permanent Standard on COVID-19 in workplaces in a 9-4 vote on January 13, 2021.

On July 15, 2020, Virginia became the first state in the nation to promulgate an Emergency Temporary Standard to address COVID-19 in workplaces. Even with vaccine deliveries on the way, Virginia has enacted a Permanent Standard for consideration by the Virginia Safety and Health Codes Board (which includes author Courtney Malveaux).

To read the entire article, click here.

At the end of 2020, California approved the Division of Occupational Safety & Health’s (“Cal OSHA”) COVID-19 Emergency Temporary Standard (“ETS”).

Among the many requirements in the new ETS, Cal OSHA imposed a performance-based obligation on employers to establish and implement an effective COVID-19 Prevention Program, COVID-19 preventive measures (e.g., social distancing and mandatory use of face coverings), and COVID-19 case management (e.g., investigation, recording, and reporting). In establishing these requirements, the ETS also published prescriptive written COVID-19 Prevention Program components and procedures for handling COVID-19 cases, as well as steps to regulate multiple infections and presumed outbreaks at the workplace that are already subject to substantial state and local health department requirements. Moreover, the ETS substantially departs from other health and safety regulations by compelling worker exclusion following a potential workplace exposure to COVID-19, mandating exclusion pay in limited circumstances,  and that employees be provided COVID-19 testing. The ETS further imposes potential liability on employers if they fail to comply with the various requirements.

The ETS has created confusion and frustration among California employers already facing a multitude of federal, state, and local COVID-19 requirements, which are in a constant state of flux. The ETS also attempts to impose requirements that are administered by other responsible agencies and authorities, making employers’ obligations unclear and duplicative. For example, the ETS imposes an obligation on employers to notify state and local health departments of multiple COVID-19 cases despite this obligation already being imposed on employers under AB 685, guidance from the state health department, and standing health department orders.

Cal OSHA’s ETS also uses inconsistent language to discuss requirements (e.g., “offer” vs. “provide” in the context of required testing), imprecise language, and imposes obligations that do not make sense from either a technical or feasibility standpoint. For instance, the ETS defines a “COVID-19 test” as one that is (i) approved by the United States Food and Drug Administration (“FDA”) or has an Emergency Use Authorization from the FDA, and (ii) is administered in accordance with the FDA approval or Emergency Use Authorization. In doing so, Cal OSHA fails to take into account that COVID-19 tests can be approved for use under other regulatory pathways and that many COVID-19 tests on the market are not approved by FDA or under an Emergency Use Authorization. Restricting testing in this way also unnecessarily complicates an already complicated requirement and makes compliance more difficult, costly, and time-intensive.

Despite numerous concerns raised in public meetings and written responses to the ETS, Cal OSHA also has not provided sufficient guidance on how to comply with the ETS, leaving many obligations on testing, worker exclusion, and COVID-19 case management unclear. Cal OSHA only just recently provided the public updated FAQs but still left numerous questions and ambiguities.

In response to the ETS’ ambiguities and overwhelming compliance burden, the Western Growers Association, the California Business Roundtable, the California Association of Winegrape Growers, the California Farm Bureau Federation, Ventura County Agricultural Association, and the Grower-Shipper Association of Central California joined together to file a lawsuit against Cal OSHA and related entities and individuals over the ETS before the Los Angeles Superior Court. The lawsuit contends that the Board violated employers’ due process rights and the state’s administrative procedure laws by failing to provide clear and adequate notice of the link between the ETS and the emergency situation necessitating the new rules. The lawsuit also claims that the ETS improperly imposes “unprecedented financial and operational costs on employers” in the state and without evidence that the new requirements will significantly or even materially improve workplace health and safety as it pertains to COVID-19. The required measures further lack clarity, such that employers are not understanding what is required of them, and do not take into account resources, feasibility, or costs. Further, the action alleges that many of the requirements in the ETS have little to no connection to workplace health and safety and instead deputize employers to monitor non-work-related COVID-19 exposure risks. The suit filed by the agricultural associations follows a lawsuit filed in San Francisco Superior Court by retail industry groups seeking declaratory and injunctive relief from the ETS.

To date, Cal OSHA and the other entities named in the suits have not publicly responded or acknowledged either complaint.

Jackson Lewis will continue to monitor issues pertaining to COVID-19 and the workplace in California. If you have questions about the ETS or related workplace safety issues, contact a Jackson Lewis attorney to discuss.

The Occupational Safety and Health Administration (“OSHA”) kicked off the new year with a friendly reminder that covered employers must electronically submit Form 300A data for calendar year 2020 between January 2, 2021 and March 2, 2021. A paper copy of the 300A form must also be posted in for each establishment from February 1 through April 30.

By way of refresher, the recordkeeping regulation was revised in early 2019 to only require Form 300A data instead of additional records. The electronic filing requirement applies to two categories of establishments.

  • The first category includes establishments with 20 to 249 employees that are in specific industries with higher instances of injury or illness. A full list of these industries can be found here. Many industries in this category have been most hard hit by COVID-19, such as nursing care facilities, hospitals, and other healthcare providers, manufacturers, and grocery stores.
  • The second category includes establishments with 250 or more employees that are required to keep OSHA injury and illness records. In other words, establishments with 250 or more employees that are not otherwise exempted must electronically file the OSHA 300A.

In addition to these general categories, information must be provided if OSHA notifies you to do so for an individual data collection.

As explained in our previous blog post, work-related COVID-19 cases may trigger recording and reporting obligations, which would impact the 300A data. Employers should review OSHA’s Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 when determining whether a COVID-19 case is recordable or reportable.  We also recommend contacting an attorney to ensure the accuracy of recording and reporting of COVID-19 cases. Throughout the pandemic many employers have needlessly recorded and overreported cases to OSHA, subjecting themselves to burdensome and costly inspections.

Employers can find detailed instructions for filing the 300A data on OSHA’s Injury Tracking Application webpage, as well as FAQs.

President-Elect Joseph Biden has not named a nominee for Secretary of Labor yet, much less an Assistant Secretary of Labor for Occupational Safety and Health who would lead the Occupational Safety and Health Administration (OSHA). But individuals with a background in organized labor may be forerunners. He has promised to be “the most pro-union president you have ever seen” and that “unions are going to have increased power” in his administration.

To read the article in its entirety, click here.

On July 15, 2020, Virginia became the first state in the nation to promulgate an Emergency Temporary Standard to address COVID-19 in workplaces. Even with vaccine deliveries on the way, Virginia has proposed a Permanent Standard for consideration by the Virginia Safety and Health Codes Board (which includes author Courtney Malveaux).

To read the article in its entirety, click here.

Virginia Governor Ralph Northam has issued Executive Order Number Seventy-Two, expanding face covering requirements, reducing allowable social gatherings, and directing Virginians to remain at home after midnight. The Order also states that individuals who decline to wear a face covering due to a medical condition are not required to produce medical documentation verifying their stated condition(s) or identify their precise underlying medical condition(s). The Order took effect at 12:01 a.m. on December 14, 2020.

To view the article in its entirety, please click here.

Shortly before Thanksgiving, California’s Department of Industrial Relations Occupational Safety & Health Standards Board (“Board”) adopted a general safety order that creates an emergency temporary standard specific to potential workplace COVID-19 exposures (“Rule”). The Rule was quietly approved by the Office of Administrative Law without detailed analysis on November 30th and went into effect upon approval. While this gave little time for employers to come into compliance with the new requirements, the Division of Occupational Safety & Health (“Cal OSHA”) has maintained that many of the requirements are not entirely new and align with guidance previously issued on measures to address COVID-19 hazards in connection with employers’ Injury Illness and Prevention Program. Cal OSHA has also informally conveyed that the agency will work with employers to achieve compliance with the Rule, particularly in situations where employers are making a diligent effort to comply.

To read my full article posted on Jackson Lewis’ California Workplace Law Blog, click here.