By Matthew Graffigna and Robert E. Buch

Seyfarth Synopsis: Senate Bill 1159 was signed into law by Governor Newsom on September 17, 2020, and went into effect immediately. Under the new law, if employees test positive for COVID-19 under specific circumstances, there is a rebuttable presumption that their exposure occurred at the workplace. Unless rebutted, this presumption creates a compensable injury for purposes of qualifying for workers’ compensation benefits. SB 1159 also creates reporting requirements for employers through January 1, 2023.

Who Is Eligible For The New Workers’ Compensation Presumption?

As we previously reported, Executive Order N-62-20 created a rebuttable presumption surrounding certain COVID-19 workplace exposures. SB 1159 codifies Executive Order N-62-20 in new Labor Code section 3212.86. Under this section, there is now a statutory rebuttable presumption of industrial exposure (i.e., the assumption that someone got sick at work) for workers who tested positive or were diagnosed with COVID-19 within 14 days after performing services at their place of employment at their employer’s direction between March 19, 2020, and July 5, 2020. To be entitled to the presumption, an employee diagnosed with COVID-19 must have had the diagnosis confirmed by testing within 30 days of the diagnosis.

Since Governor Newsom’s Executive Order sunset on July 5, 2020, employers have been left in the dark as to whether and how its requirements might be extended. Now, the answer is clear—SB 1159 created a new framework for this rebuttable presumption that went into effect immediately on September 17, 2020.

Under the new Labor Code section 3212.88, there is a rebuttable presumption of workers’ compensation coverage when an employee tests positive for COVID-19 within 14 days after performing services at their place of employment at the employer’s direction if the positive test occurs on or after July 6, 2020, and the positive test occurred during a period of an “outbreakat the workplace.

However, there is a slightly different avenue for people working in healthcare or in public safety positions. For these employees to qualify for the presumption, they must only test positive for COVID-19 within 14 days of performing services at their place of employment on or after July 6, 2020 (regardless of whether there has been an “outbreak”).

Also note that across the board, employees must exhaust all available supplemental COVID-19 sick leave pay, such as the new CA COVID supplemental sick pay, before receiving temporary disability benefits from the worker’s compensation carrier.

What Does It Mean To Have An “Outbreak”?

For purposes of this new law, an “outbreak” is when, within 14 days, any of the following occurs at a place of employment:

  1. The employer has 100 employees or fewer at a specific place of employment, and four employees test positive for COVID-19.
  2. The employer has more than 100 employees at a specific place of employment, and 4% of the workforce at that place test positive for COVID-19.
  3. A specific place of employment is ordered to closed because of COVID-19.

(Note that this definition of “outbreak” is specific to this workers’ compensation presumption. The California Department of Health and other state and local laws use different definitions of “outbreak” for different purposes.)

But I Have A Huge Facility—What Does “Specific Place Of Employment” Mean?

Many employers have sites that cover several acres, encompassing multiple buildings, fields, and processing floors and departments. In these instances, the workers’ compensation liability presumption might not apply if someone works in a different or distinct part of a facility from any other employees who may have contracted COVID-19, because it may not be considered the “specific place of employment” under the new statute.

For purposes of the new law, a “specific place of employment” is defined as “the building, store, facility, or agricultural field where an employee performs work at the employer’s direction.” The employee’s home or residence is excluded unless the employee provides home health care services to another individual at the employee’s home or residence. (And, if that is the case, the home office must be the exclusive location where the employee performs their work.)

So, if an employer has one employee test positive in Building A, and another test positive in Building B on the opposite side of campus (and they don’t otherwise share facilities, like a break room or restroom), the employer may have a good argument the presumption does not apply.

If My Employee Tests Positive For COVID-19, What Do I Have To Do?

In addition to other requirements that may be in place under state or local laws, SB 1159 creates employer reporting requirements. An employer that “knows or reasonably should know” that an employee has tested positive for COVID-19 must report to the workers’ claims administrator in writing—via email or fax—all of the following within three business days:

  1. An employee has tested positive. But the employer must not reveal any personally identifiable information about the employee unless the employee has asserted the infection is work-related or has filed a claim form pursuant to Section 5401.
  2. The date that the employee tested positive, which is the date the specimen was collected for testing.
  3. The specific address of the specific place of employment during the 14-day period preceding the date of the positive test.
  4. The highest number of employees who reported to work at the specific place of employment during the 45-day period preceding the last day the employee worked at each specific place of employment.”

Employers also must retroactively report to their carriers any employees who tested positive on or after July 6, 2020, and prior to September 17, 2020.

Following these reporting requirements is of paramount importance—employers that intentionally submit false or misleading information or fail to submit information when reporting can trigger civil penalties in amounts up to $10,000.

Workplace Solutions

The laws surrounding workers’ compensation and COVID-19 infections have been changing rapidly. If you have questions about the current state of reporting requirements or what to do if you have employees that test positive, then please contact your favorite Seyfarth attorney.

Edited by Coby Turner and Elizabeth Levy

By Ilana R. Morady and Elizabeth M. Levy

Seyfarth Synopsis: As California’s legislative session comes to an end, a wave of new COVID-19 related laws that impact employers are being signed into law. On September 17, 2020, Governor Newsom signed AB 685, which will require employers to provide specific notices to employees exposed to COVID-19 within one business day of becoming aware of the exposure, and impacts COVID-19 related alleged Cal/OSHA violations.

When we last we blogged about Assembly Bill 685, it was awaiting Governor Newsom’s approval, but it was signed into law on September 17, 2020. Under the new law, which will be in effect from January 1, 2021, until January 1, 2023, employers must comply with specific notification requirements any time there has been a potential COVID-19 exposure in the workplace. AB 685 also enhances Cal/OSHA’s enforcement abilities in the COVID-19 realm.

COVID-19 Exposure Notification Requirements

  • Who Do I Need To Notify?

Any time an employer is put on notice that a “qualifying individual” (someone who tested positive for or was diagnosed with COVID-19, or is subjected to an isolation order) was in the workplace while they were considered potentially infectious, the employer is subject to notice requirements.  First, notice must be provided to individuals who “may have been exposed” in the workplace within one business day.  This notice must be sent to employees, subcontractors, and union representatives.

Employers with multiple buildings or floors do not necessarily need to provide notice of potential exposure throughout the entire company— the notice requirement is limited to the specific “worksite” the qualifying individual entered, such as “Building A” or “Field 1,” and not necessarily the entire company or facility site.

Employers are also required to notify the local public health department within 48 hours of becoming aware of a COVID-19 workplace “outbreak,” as defined by the California Department of Public Health. (Note that the California Department of Public Health currently defines an outbreak as three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households. However, as with all things COVID-19 related, local definitions may vary and guidance may be subject to change, so employers should continue to regularly check on the most up to date applicable information.)

When notifying the local health department, employers should be prepared to report the number of COVID-19 cases at the worksite, as well as names, occupations and worksites of qualifying individuals. Employers required to report an outbreak must also notify the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.

  • What Information Does The Notification Need To Include?

The notice must inform individuals who were at the workplace during the qualifying individual’s infectious period that they “may have been exposed to COVID-19.” This notice also needs to provide information to all employees “who may have been exposed” about benefits to which employees may be entitled under federal, state, or local law, including workers’ compensation, paid sick leave, negotiated leave, and anti-retaliation and anti-discrimination protections.

In addition, all employees must be notified about the disinfection and safety plans that the employer plans to implement and complete per CDC guidelines.

  • How Do I Need To Distribute The Notice?

The written notification of potential exposure must be sent in a manner normally used by the employer to communicate employment-related information (including personal service, email, or text), must be in both English and the language understood by the majority of the employees, and must protect employee privacy (i.e., not disclose the names of qualifying individuals). Non-employee individuals entitled to this notice may be notified in a similar manner.

Also note employers are required to maintain records of the written notification for at least three years.

  • Are There Any Exceptions?

The “outbreak” reporting requirement will not apply to “health facilities” as defined in the Health and Safety Code. In addition, neither the “outbreak” reporting nor the notification-of potential-exposure requirement will apply to employees who, as part of their duties, conduct COVID-19 testing or provide direct care to individuals known to have tested positive for COVID-19, or are in quarantine or isolation—unless the qualifying individual is an employee at the same worksite.

Cal/OSHA Enforcement

Cal/OSHA has long had the authority to shut down a worksite if it determines the worksite presents an “imminent hazard.” However, AB 685 adds Section 6325(b) to the Labor Code, which reiterates that the Division of Occupational Safety and Health can close down a business if it deems there is an “imminent hazard” related to potential COVID-19 transmission.

AB 685 also exempts the Division from sending notices of intent to issue serious citations (as is normally required) when the alleged hazard is COVID-19 related. Normally, if Cal/OSHA plans to issue a serious citation, it first sends a notice of intent, and employers have the option of responding with evidence. But now, if Cal/OSHA intends to issue a serious citation for an alleged COVID-19 hazard, it need not issue a notice of intent or consider the employer’s evidence.

Workplace Solutions

Navigating ever-changing COVID-19 related laws remains a significant challenge, particularly in California. Seyfarth continues to keep employers updated in its COVID-19 Resource Center. If you have questions or concerns regarding which types of regulations may apply to your workforce, and how to implement them, reach out to your favorite Seyfarth attorney.

Edited by Coby Turner

 

By James L. CurtisMark A. Lies, II, Adam R. Young, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: In two recent guidance documents, OSHA recommends that employers encourage workers to wear cloth face coverings to reduce the spread of COVID-19. OSHA further addresses the challenges posed by cloth face coverings for workers in hot and humid environments or while performing strenuous activities.

Since the CDC issued its April 2020 recommendation that individuals wear masks to stem the spread of the pandemic, we have blogged on the various guidelines and challenges employers face. See Heat Illness – A Phantom Menace: Sweatt Blogs on Safety Measures and Heat Illness in the Workplace, Heat Illness Strikes Back: Return to Work’s Untold Story, OSHA Updates FAQs on Face Masks in the Workplace, and DOL Issues FAQs About Face Coverings, Surgical Masks, and Respirators in the Workplace.

In its new guidance documents, OSHA recommends that employers follow the best practices to protect against the spread of COVID-19 and the risk of heat-related illness, including:

  • Acclimatize new and returning workers (through rotation between jobs that require face coverings and those that do not) to environmental and work conditions while wearing cloth face coverings.
  • Prioritize the use of cloth face coverings when workers are in close contact with others (less than 6 feet), such as during group travel or shift meetings.
  • Allow workers to remove cloth face coverings when they can safely maintain at least 6 feet of physical distance from others.
  • Evaluate the feasibility of wearing cloth face coverings for each worker and consider alternatives (e.g., face shields) when appropriate.
  • Increase the frequency of hydration and rest breaks in cooled environments.
  • Incorporate at least 6 feet of physical distancing into break areas by staggering breaks, spacing workers, or limiting the number of workers on break at a time, where feasible.
  • Encourage workers to use cloth face coverings that optimize fit and comfort and are made out of breathable, moisture-wicking materials.
  • Encourage workers to change cloth face coverings when wet, as wet face coverings make it more difficult to breathe and are not as effective. Provide clean replacement cloth face coverings or disposable face masks, as needed, for workers to change into throughout the work shift.
  • Plan for heat emergencies and train workers on heat stress prevention and treatment.
  • Avoid scheduling strenuous tasks during the hottest parts of the day and alter work shifts to cooler parts of the day, when possible.
  • Allow workers to utilize personal passive cooling devices such as ice vests.
  • Increase the frequency of communication to workers and encourage workers to monitor themselves and others for signs of heat illness.

Employers should consider the application of the individual guidance for your particular workplace. The Use of Cloth Face Coverings while Working Outdoors in Hot and Humid Conditions. (September 2020), and The Use of Cloth Face Coverings while Working Indoors in Hot and Humid Conditions. (September 2020).

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Benjamin D. BriggsBrent I. ClarkMark A. Lies, IIAdam R. YoungIlana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: Cal/OSHA, in a press release, noted that it recently issued citations to a food manufacturer and its temporary employment agency, with over $200,000 in proposed penalties to each employer for “failing to protect hundreds of employees from COVID-19 at two plants.”

According to the Agency, the employers did not take “any steps to install barriers or implement procedures to have employees work at least six feet away from each other and they did not investigate any of their employees’ COVID-19 infections.” In addition, the employers did not “adequately communicate the COVID-19 hazards” to its employees and in at least one case did not report a COVID-19 fatality to Cal/OSHA.

The Agency noted that the citations also allege that the “employer did not notify employees about their potential exposure to other employees who had been diagnosed as infected with the virus so that such employees would be able to take appropriate protective  measures.”

Cal/OSHA’s Chief, Doug Parker, indicated that “if a COVID-19 illness occurs, employers must investigate the case to determine if additional protective measures should be taken and report the serious illnesses and deaths to Cal/OSHA. Employers should also notify workers of possible exposure and report outbreaks to county public health officials.”

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. Clark, Benjamin D. Briggs, Mark A. Lies, IIAdam R. YoungIlana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: Cal/OSHA announced that it has cited eleven employers for not protecting employees from COVID-19 exposure during inspections of industries where workers have an elevated risk of exposure. The industries include food processing, meatpacking, health care, agriculture and retail. The employers were cited for various violations including some classified as serious, with proposed penalties ranging from $2,025 to $51,190.

Cal/OSHA’s Chief Doug Parker said in the announcement that “we have identified these industries as priorities in our strategic enforcement efforts to make sure employers have adequate COVID-19 infection prevention procedures in place.” “These are industries where workers have been disproportionately affected, and these citations are the first of many to be issued in the coming weeks and months.” Emphasis added.

The notice indicates that “the inspections were opened after notification of serious illnesses, complaints of workplace hazards and after proactive joint enforcement efforts.”

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. ClarkMark A. Lies, IIAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: With Hurricane Laura drenching the Gulf Coast, employers are facing daunting emergencies, safety and health risks, property damage, employee disruption, and re-building.  

Introduction

Authorities are closely monitoring the ongoing hurricane season as Hurricane Laura menaces the southeast coast of the United States. For employers who are obligated to keep their employees safe during working hours, disaster preparedness is critical. This blog contains an updated primer on (1) preparing for an emergency; (2) taking action during an emergency; and (3) cleaning up and resuming business after an emergency.

Preparing for an Emergency

29 C.F.R. 1910.38 requires all workplaces with more than 10 employees to develop a written Emergency Action Plan (EAP), when required by an OSHA standard, to identify and coordinate necessary employer and employee actions during an emergency. At a minimum, the EAP must include the following elements:

  • Means of reporting emergencies (fires, floods, etc.);
  • Evacuation procedures and assigned exit routes;
  • Procedures to account for all employees following an evacuation;
  • Procedures to be followed by employees who must remain behind to attend to critical plant operations before evacuating;
  • Rescue and/or medical duties for employees who are assigned and trained to perform them; and
  • Names or job titles of people who can be contacted for more information about the plan.

In addition to these required elements, it is recommended that employers also consider including the following in the EAP:

  • Procedures for protecting employees from COVID-19 during the emergency;
  • The location of the nearest hospital or emergency medical center;
  • The type of alarm system used to notify employees of an emergency;
  • Procedures for protecting information including procedures for storing or maintaining critical documents and records;
  • The location and permissible uses of protective equipment such as portable defibrillators, first aid kits, dust masks, fire extinguishers, etc.; and
  • The location of televisions or radios for further information during a disaster.

Ensuring the development of an effective EAP also requires the employer to train employees to understand their roles and responsibilities under the plan. When conducting this training, the employer must address literacy, language, and cultural barriers to ensure that the training is effective. Employers also must document the training.

OSHA has posted links and recommendations on its website to help employers prepare for hurricanes. The website includes tips regarding how to create evacuation plans and assemble emergency supply kits. The Environmental Protection Agency also has provided tips related to hurricane preparedness on its website.

Responding to an Emergency

Communication during an emergency is critical to maintain organization and prevent panic and injuries. For example, not all emergencies require an evacuation of the workplace.  In some cases, such as flooding, storms, or the release of biological or chemical agents, staying indoors is safer for employees. The first questions most people ask during an emergency is “should I stay or should I go?” Employers can guide employees as to the appropriate course of action by having an alarm system that emits a different signal for “evacuate” emergencies than for “stay put” emergencies. Alternatively, the alarm system could be programmed to give specific verbal instructions following the initial alert. Employers must consider the needs of disabled employees (e.g. those who are hearing or visually impaired) in selecting any alarm system.

Employers should have an effective means of communicating with employees about the following during an emergency:

  • Whether to evacuate or stay put;
  • How and where to get information about the emergency itself;
  • What areas of the building to avoid;
  • How and when it is safe to return to the work area; and
  • How and when it is acceptable to contact family members and loved one.

Picking Up the Pieces

Once the proverbial dust settles after an emergency, hazards to employees can still remain. For example, downed power lines in a flooded parking lot can injure or kill employees leaving the building after the storm passes. Hazards are even greater for employees who are tasked with cleaning up after an emergency. The OSHA Region 4 Administrator had indicated that “workers involved in storm cleanup can face a range of safety and health hazards…. Risks can be minimized with knowledge, safe work practices, and personal protective equipment. Cleanup work after the storm may involve hazards related to restoring electricity and communications, debris cleanup, roof repair, and tree trimming. Only those with the proper training, equipment, and experience should conduct cleanup activities.”

Employees who are actually performing clean-up work after a flood, storm, earthquake, or other disaster may be exposed to one or more of the following hazards:

  • Exposure to COVID-19 hazards,
  • Exposure to hazardous materials such as asbestos, mold, lead, or chemicals;
  • Downed power lines and trees;
  • Heat illness, including the complications of wearing face masks in the muggy August climate;
  • Confined spaces;
  • Blood borne diseases or other contagions;
  • Mosquito borne diseases; and
  • Structural destabilization.

OSHA’s website provides a Hurricane eMatrix for Hurricane Response and Recovery Work, outlining the most commonly performed duties during hurricane response and recovery work, and the hazards employees could face. OSHA has developed specific standards to address many of these hazards.

For example, OSHA’s Hazardous Waste Operations and Emergency Response standard, 29 C.F.R. § 1910.120, applies to employees who are performing clean-ups of hazardous waste or other hazardous materials. OSHA’s asbestos and lead standards require employers to evaluate the level or exposure to employees, provide appropriate protective equipment, and, in some cases, conduct regular monitoring of air quality in the work area.

In addition to these specific standards, other more general requirements will also come into play. For example, OSHA’s welding and cutting Lockout/Tagout, confined space entry, and fall protection programs may come into play, even if no OSHA standard specifically addresses the type of clean-up activity taking place. Finally, as always, OSHA’s General Duty Clause requires employers to provide a workplace free from recognized hazards. Accordingly, even if no OSHA standard applies to a particular activity or hazard, employers may still face citation liability if the hazard is reasonably likely to cause serious injury or death and there is a feasible means of abatement to correct the hazard. Before allowing employees to commerce any kind of clean-up work then, the employer must conduct a job hazard analysis (JHA) to identify and address potential hazards.

Multi-Employer Worksite Doctrine

It is important to note that even employers who hire outside contractors to clean up after a disaster must recognize their obligations for worker safety. OSHA’s “multi-employer worksite” doctrine allows the agency to issue citations not only to the employer whose employees are actually performing the clean-up work, but also to other employers who either control the means and methods of work of the employees. Accordingly, employers may be liable for the safety precautions provided to employees who are brought onto their worksites following a natural disaster.

Conclusion and Recommendations

It is imperative that employers develop and implement organized and clearly communicated procedures for responding to a disaster. A well-planned and executed emergency response program will help prevent panic, thereby minimizing employee injuries and damage to property. We recommend that employers consider the following:

  • Develop an EAP that covers a wide variety of potential emergencies and gives employees clear guidance on what to do in each scenario;
  • Be cognizant of hazards employees may face even after the immediate danger has passed;
  • Train employees in evacuation plans and other emergency response procedures;
  • Conduct a job hazard analysis and review applicable OSHA standards before assigning any employees to perform clean-up work; and
  • Evaluate the safety record of any independent contractor hired to perform clean-up work, including investigating the contractor’s worker’s compensation history, its OSHA logs, and its history of citations from OSHA.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. Clark, Mark A. Lies, IIAdam R. Young, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The CDC published guidance aimed at assisting retail and service companies in limiting workplace violence against or involving their employees that may be associated with enforcing face mask mandates and other COVID-19 precautions.

On March 30, 2020, the United States Centers for Disease Control and Prevention (CDC) modified its guidance to recommend that all Americans who are able wear face masks in public places should do so to reduce the likelihood of disease transmission. Shortly thereafter, federal OSHA issued its COVID-19 Guidance for Retail Workers, in which the agency recommends that retailers “allow workers to wear masks over their nose and mouth to prevent them from spreading the virus.”  Since that time, the majority of state and local jurisdictions have recommended or mandated face masks for individuals in retail stores, including both employee and customers. Many state agencies have begun patrolling retailers and threatening enforcement based on customers and employees observed flouting face mask and social distancing requirements.

Masks are not the only COVID-19 protections that state and local jurisdictions have mandated or recommended in retail settings. Other protections include: required social distancing, cleaning and disinfecting protocols, capacity requirements, and others. All of these are aimed at allowing retailers to remain operational while attempting to protect both employees and customers from infection.

Retailer policies mandating the use of face masks and other requirements set forth by state and local jurisdictions, and attempts to enforce those policies, have resulted in workplace violence incidents against retail employees. According to media reports, customers refusing to wear masks have wiped their nose on an employee’s clothing, coughed or sneezed on employees or other customers, broken an employee’s arm, and fatally shot an employee, among other incidents. See, e.g., https://abcnews.go.com/US/incomprehensible-confrontations-masks-erupt-amid-covid-19-crisis/story?id=70494577; https://www.cnn.com/videos/us/2020/05/12/target-store-mask-fight-orig-mg.cnn; https://www.nytimes.com/2020/05/08/us/coronavirus-masks-dollar-store-shooting-flint-Michigan.html.

Under the Occupational Safety and Health Act’s General Duty Clause, employers have a duty to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). State-plan OSH agencies have similar provisions in their state-specific OSH Act. Type II workplace violence, directed at employees by a customer or client, is a recognized hazard in the retail industry. See https://www.osha.gov/workplace-violence. Further, the Occupational Safety and Health Administration enforces employers’ duty to protect employees against workplace violence, through citations and litigation before the Occupational Safety and Health Review Commission.

The CDC issued non-mandatory guidance with strategies to limit violence towards workers that may occur when businesses put in place policies and practices to help minimize the spread of COVID-19 among employees and customers. Specifically the CDC references its Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19) for general business guidance on preventing COVID-19.

The guidance offers Resources and Trainings on Workplace Violence, including:

The guidance also recommends employee training for warning signs and response. It suggests that “employee training on workplace violence [] cover[] definitions and types of violence, risk factors and warning signs for violence, prevention strategies, and ways to respond to threatening, potentially violent, or violent situations.” The guidance specifically recommends de-escalation training for employees.

The guidance also provides several illustrations, with one related to action that can be taken to prevent workplace violence, and the other regarding basic dos and don’ts for employees to prevent workplace violence:

Image from CDC

This guidance is non-mandatory, but may be helpful for employers addressing the issue of face-mask mandates, other COVID-19 prevention measures, and aggressive enforcement positions from state agencies.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis, Mark A. Lies, II, Adam R. Young, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: Commission’s approval of undocumented training provides blueprint for employee misconduct claims for employers going forward.

In a July 28, 2020, Occupational Safety and Health Review Commission (OSHRC) decision, Angel Brothers Enterprises, Ltd., (Docket No. 16-0940), the Commission upheld Administrative Law Judge (ALJ) Heather A. Joys’ decision affirming a willful OSHA citation, rejected Angel Brothers Enterprises, Ltd. (Angel’s) unpreventable employee misconduct (UEM) affirmative defense, and assessed a $35,000 penalty.

Angel is a construction contractor that digs over 1,000 excavations each year. On December 8, 2015, Angel began working on the installation of a concrete drainage pipe alongside a road in LaPorte, Texas. The following day, an OSHA compliance officer (CSHO) arrived at the worksite to conduct an inspection. During the inspection, the foreman admitted to the CSHO that he had allowed an employee to work in the excavation, which was no longer benched and lacked a trench box. The Agency issued a willful violation under the trenching construction regulation.

The Company argued that the violation was the result of employee misconduct, including the difficult-to-prove area of supervisory misconduct. To establish employee misconduct, an employer must be able to show that it had (1) a safety rule in place addressing the hazard, (2) effective training on that safety rule, (3) adequate supervision of employees for compliance with that safety rule, and (4) effective enforcement of violations of the safety rule. Supervisory misconduct requires a further showing of unforeseeable conduct on the part of the supervisor.

As to the UEM element requiring effective enforcement of safety rules, the ALJ held that Angel did not effectively enforce its safety rules upon discovering violations. Specifically, the ALJ focused on the employer’s failure to identify or correct an employee’s answers to three questions about cave-in protection on a “Pre-Task Plan” form for the project on three consecutive days. ALJ Joys considered this three-day pattern analogous to the facts in Dana Container, Inc., 25 BNA OSHC 1776 (No. 09-1184, 2015), aff’d, 847 F.3d 495 (7th Cir. 2017), in which the Commission found that a consistent failure to correct errors on “entry permit” forms demonstrated a lack of enforcement.

Though the Commission affirmed that the employer had not proved UEM, the Commission provided helpful guidance on the elements required for proving the UEM defense. Judge Joys held that Angel could not prove adequate communication of the safety rule, because its training was on-the-job, verbal, not fully documented, and contradicted by other testimony. The Commission instead found the evidence “more than sufficient to meet Angel’s burden of proving adequate communication,” despite the lack of documentation. The Commission relied on testimonial evidence of toolbox talks, orientation training sessions, competent person training, and Spanish-language instruction for Spanish-speaking employees.

Employee misconduct is the most common defense to OSHA citations. Employers should be aware that many citations are defensible and should be contested or appealed, particularly where they result from incidences of employee misconduct. Though OSHA is a document-driven agency, the Commission has confirmed that training documentation cannot and need not exist in a written form for all safety training that takes place. Employers should consult with counsel to develop any defense to OSHA citations.

For more detail as to other steps an employer must take based upon the specific risk level identified during the initial exposure assessment, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Jeryl L. Olson, Patrick D. JoyceKay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis: On August 5, 2020, the U.S. Environmental Protection Agency (EPA or Agency) released a final memorandum on “Guidance on Plantwide Applicability Limitation Provisions Under the New Source Review Regulations.”

The guidance memorandum is, according to EPA, intended to increase the use of an air permitting option little-used by, but potentially favorable to industry, by improving understanding of PAL by stakeholders. According to EPA, confusion caused by previous guidance has led to a relative low adoption rate in the 17 years PALs have been in existence; from industry’s prospective however, the process for obtaining a PAL is formidable, particularly because state permitting agencies have little or no experience with PALs and are reluctant to take the “leap of faith” necessary to make PALs attractive to industry.

PALs are an optional, flexible permitting mechanism that involves the establishment of a plantwide emissions limit, (in tons per year), for specific pollutants. Once established, changes to facility operations that affect that pollutant can forego New Source Review (“NSR”),  a costly and time consuming process for industry. The PAL provides a permittee the ability to manage process changes (modifications) without triggering major NSR and the need to conduct project-by-project major NSR applicability analyses. To qualify a PAL, EPA’s regulations require a source to conduct monitoring, recordkeeping and reporting of the actual emissions of a PAL pollutant on a 12-month rolling basis (which most sources do already).

While industry is generally familiar with the option, EPA’s guidance appears to be  intended to address specific concerns raised by non-permittee “stakeholders” on the PAL provisions and to generally improve the understanding of PALs by the public. According to EPA, particular concerns raised by stakeholders are addressed in the guidance, and include discussions of : (1) PAL Permit Reopening, (2) PAL Expiration, (3) PAL Renewal, (4) PAL Termination, (5) Monitoring Requirements for PALs, (6) Emission Factor Adjustment, (7) Validation Testing, (8) Missing Monitoring Data, (9) Baseline Actual Emissions for Replacement Units, and (10) General Advantages of PALs and Other Considerations.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

Seyfarth Synopsis: Today we will begin posting a monthly summary of our Workplace Safety and Environmental blogs posted over the month, as a way to keep you connected and aware of the latest thought leadership. As always, readers are encouraged to reach out to our authors with and comments or questions raised from the blogs.

First Employer Cited For Violating Washington’s Safe Start Order

Seyfarth Synopsis: The Department of Labor and Industries issued its first citation against an employer for violating Washington’s Safe Start Order.

EPA Ends Enforcement Discretion Policy for COVID-19 Pandemic on August 31

Seyfarth Synopsis: On June 29, 2020, U.S. Environmental Protection Agency (EPA) issued a memorandum regarding termination of the COVID-19 temporary enforcement policy. EPA has selected August 31, 2020 as the termination date for its temporary enforcement policy. Also updated were EPA’s Frequent Questions About the Temporary COVID-19 Enforcement Policy.

OSHA Updates FAQs on Face Masks in the Workplace

Seyfarth SynopsisThe Occupational Safety and Health Administration has updated its frequently asked questions and answers to advise employers about the use of face masks in the workplace.

EPA Proposes Amendments to Air Toxics Standards for Industrial, Commercial, and Institutional Boilers and Process Heaters NESHAP

Seyfarth Synopsis: The U.S. Environmental Protection Agency has released a pre-publication copy of its proposed amendments to the Air Toxics Standards for Industrial, Commercial, and Institutional Boilers and Process Heaters at Major Source Facilities, 40 CFR Part 63. The proposed rules establish new emissions limits for a large number of chemicals, and impose significant obligations on affected parties utilizing a variety of boilers.

Virginia Adopts Emergency Workplace Safety Regulations

Seyfarth Synopsis: In late May, Virginia Governor Ralph Northam directed the state’s Department of Labor and Industry to develop emergency temporary standards to prevent workplace exposure to COVID-19. Those rules were adopted on July 15, 2020.