By Adam R. Young, Mark A. Lies, II, Daniel R. Birnbaum and Craig B. Simonsen

Seyfarth Synopsis: By ignoring the terms of a settlement agreement it had with the Occupational Safety and Health Administration (“OSHA”), a New Jersey roofing contractor now faces more than $600,000 in penalties after numerous citations for allegedly failing to abate 2020 OSHA citations.

Employers often receive OSHA citations. Any citation the employer receives must be “abated,” meaning that the violation must be corrected to comply with the law, within 20 days of a settlement, unless a longer abatement term is prescribed by the settlement agreement.  OSHA regularly conducts follow-up inspections to ensure abatement. Failure to abate can be fined with huge penalties — $13,653 per violation, per day beyond the abatement date. For example, just 60 days after the abatement date, four citations could result in a fine of more than $3,000,000.

OSHA’s Hasbrouck Heights, New Jersey Area Office recently penalized a construction employer following a series of inspections at multiple worksites. In December 2020, OSHA allegedly observed the contractor’s employees working on a residential roof project without required fall protection, the most commonly cited occupational safety issue. In January 2021, OSHA visited another work site where “inspectors identified unsafe use of ladders and failures to ensure that workers used head, eye and fall protection.” These two inspections resulted in two willful, four repeat, and three serious citations and $420,521 in penalties.  According to OSHA, the “contractor … agreed to make safety improvements after federal safety inspections in 2019 identified nine violations with proposed penalties of $121,687.” The employer then “violated its settlement agreement with the U.S. Department of Labor. Following inspections in 2020 and 2021, the company now faces $600,741 in penalties for 10 more violations.” The new citations include a $180,220 citation for failure to abate one Serious violation.

The huge citation was coupled with a public relations disaster when OSHA released a damaging press release: OSHA Area Director Lisa Levy excoriated the contractor’s alleged “failure to honor its agreement with OSHA and knowingly put workers at risk of serious injuries or worse is inexcusable.”

Any allegedly non-compliant conditions that OSHA raises during an inspection should be promptly abated during the inspection (if possible) to reduce the probability of citations and to secure a Quick Fix penalty deduction. If OSHA issues citations, employers would be wise to carefully consider what citations they accept, and how those citations can be abated. Abatements can be explicitly detailed in settlement agreements, to ensure that all parties have the same views of abatement. Citations must be abated within 20 days of the settlement agreement becoming a final order, and additional “enhanced” abatements — that do not correspond to specific citations — should also be addressed promptly. If OSHA raises concerns about abatements that were submitted, employers should be responsive and prompt to get any issues addressed. Employers should consult with outside counsel on how to structure settlement agreements and avoid large Failure to Abate citations like the one received here.

By Brent I. Clark, James L. Curtis, Adam R. Young, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: On June 28, 2021, OSHA published a Compliance Directive, DIR 2021-02 (CPL 02), covering inspection procedures and enforcement policies for the Emergency Temporary Standard for COVID-19. The new directive sheds light on OSHA’s thought process in enforcing new provisions of the ETS, including the controversial medical removal payment provision. OSHA’s intent is to aggressively enforce the regulation, giving consideration to potential punitive damages or referral to OSHA’s Whistleblower Protection Program for certain infractions.

As we blogged about here, OSHA previously issued its COVID-19 ETS which went into effect on June 21. On June 28, 2021, OSHA issued Compliance Directive 2021-02 that covers inspection procedures for Compliance Safety and Health Officers in enforcing the ETS. The Directive establishes OSHA’s field inspection and enforcement procedures designed to “ensure uniformity in enforcing the ETS when addressing workplace exposures to SARS-CoV-2.”

The new inspection procedures shed some light on how OSHA plans to enforce the ETS, including the controversial medical removal requirements regarding maintenance of pay and provision of paid leave. Namely, OSHA has been directed to issue “Serious” citations as a matter of course if an employer does not pay an employee their regular rate of pay when working remotely or in insolation as part of a medical removal. As such, this could mean that subsequent infractions of employers not providing appropriate benefits to employees could be cited as a “Repeat” citation subject to a $136,532. The Compliance Directive also considers punitive damages as a possible remedy under OSHA’s whistleblower statue, Section 11(c). Compliance Officers are encouraged to refer cases to the Whistleblower Protection Program if they suspect retaliation.

In terms of determining compensation, the Compliance Directive permits some leeway to Compliance Officers. Namely CSHOs are directed to “determine whether the employer is appropriately compensating employees who are medically removed due to COVID-19. The determination regarding compensation for medical removal may depend on various factors including the size of the company, other sources of compensation to the employee, and payroll records.”  As such, it may be that an employer’s careful consideration of distributing existing benefit programs may “offset” the pay provisions.

In issuing citations, Compliance Officers are directed that costs accrue until payment, including back wages, insurance premiums and the like and, as an example, encourage Compliance Officers to draft citations that indicate the employee’s regular rate of pay, time worked per week, and dates when payment should be made, less customary deductions when the employee was required to work remotely due to COVID-19 exposure.

The Compliance Directive further directs Compliance Officers to be cognizant of the shift in employees’ incomes due to the pandemic and urging that Compliance Officers “take extra care to determine current wages.” OSHA directs its CSHOs to interview employees with similar job titles and seniority to determine the proper wages to be paid and consult an OSHA whistleblower protection investigator to determine how to calculate the amount owed to employees. Employers should be careful to analyze employee payment, to ensure no retaliatory intent could be inferred from benefits provided during medical removal. The Compliance Directive also notes that another factor in determining pay should be whether the employees would receive a bonus during the time period or medical plan.

The Compliance Directive makes clear that OSHA intends to aggressively enforce the new paid leave provisions of the new ETS, including issuing Serious citations, considering potential for punitive damages and referral to OSHA’s whistleblower protection program. Employers should consult experienced counsel to understand their compliance obligations with regard to these new provisions in order to minimize their liability.

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, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: OSHA Region V has recently adopted an Instruction to establish a Regional Emphasis Program (REP) for conducting inspections of select manufacturing industries with hearing loss rates higher than the national average. OSHA has a programed list that instructs Compliance Safety and Health Officers (CSHOs) to conduct walk-around inspections and do individual dosimetry if any noise hits at least 85 decibels. Not mentioned in the REP is an employer’s right to conduct companion dosimetry at a mutually convenient time.

Recent data from the National Institute for Occupational Safety and Health (NIOSH), has indicated that noise continually presents an occupational hazard. In 2019, “about 25% of all workers had been exposed to hazardous noise, with 34% of noise-exposed workers reporting not wearing hearing protection, while approximately 12% of all workers have hearing difficulty.”

As such, OSHA has issued a new REP that will cover establishments in 50 heavy industries, designated by North American Industry Classification System (NAICS) code. The REP provides programmed inspection lists, which will result in programmed inspections of employers whose establishments are randomly selected from a list of workplaces in these industries. During the Noise REP inspections, compliance officers will walk the production areas with a sound level meter. Any observations above the action level of 85 decibels will result in “full shift noise monitoring,” including personal noise dosimetry, to ascertain the extent of any noise hazards. Employers have a right to conduct companion dosimetry at a mutually convenient time, to the extent it believes OSHA may not be obtaining accurate information in its monitoring.

The REP is intended to encourage employers to take steps to identify, reduce, and eliminate hazards associated with exposure to high levels of noise. OSHA intends to use both outreach activities such as letters to employers, training sessions with stakeholders, electronic information sharing activities, and news release broadcasts. OSHA will also engage in enforcement activities that will include the inspection and review of operations and working conditions, injury and illness records, and safety and health programs to identify and obtain corrections of workplace hazards at all applicable inspection sites.

Accordingly, employers must take proactive steps now to minimize liability due to increased enforcement in this area. 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, James L. Curtis, Mark A. Lies, II, Adam R. Young, Patrick D. Joyce, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: As we approach the heat of the summer season and as employers begin to re-open after months of COVID-19 quarantine, workers may be out of shape, out of practice on workplace safety procedures, and may have to rebreathe hot air through face coverings. In addition, again this year forecasters are calling for above-average heat in some parts of the country and scorching temperatures in July and August. As employers focus on COVID-19 efforts, employers should remain aware of risks of safety rule violations, injuries, and heat illness issues.

We have previously blogged on heat stress in the workplace. See “Water. Rest. Shade.” OSHA Campaign to Prevent Heat Illness in Outdoor Workers, Cool For the Summer, Avoid the Summer Heat! Sweat the Details of California’s “Cool-Down” Periods and Avoid the Burn of Wage and Hour Class Litigation, and Cal/OSHA Drafts Rules for the Marijuana/Cannabis Industry and Heat Illness Prevention in Indoor Places of Employment.

As workers are seemingly beginning to return to work after a prolonged absence due to COVID-19, employers should be extra vigilant in refreshing employee training, especially as it relates to heat illness prevention and other safety requirements that could have slipped an employee’s mind while they were in quarantine.

The National Institute for Occupational Safety and Health (NIOSH) has a webpage dedicated to heat stress. NIOSH indicates that “workers who are exposed to extreme heat or work in hot environments may be at risk of heat stress. Exposure to extreme heat can result in occupational illnesses and injuries. Heat stress can result in heat stroke, heat exhaustion, heat cramps, or heat rashes. Heat can also increase the risk of injuries in workers as it may result in sweaty palms, fogged-up safety glasses, and dizziness.” Workers are especially susceptible to heat illness when they have not had a chance to acclimatize to a hot environment. As workers come out of quarantine, they may be used to being in air-conditioned environments and may need re-acclimatization to hot environments.

“Workers at risk of heat stress include outdoor workers and workers in hot environments such as firefighters, bakery workers, farmers, construction workers, miners, boiler room workers, factory workers, and others. Workers at greater risk of heat stress include those who are 65 years of age or older, are overweight, have heart disease or high blood pressure, or take medications that may be affected by extreme heat.” These higher risk employees were among the first to quarantine due to risks associated with COVID-19 and may need the longest time to re-acclimatize in the workplace.

According to various studies, face mask-associated “facial heat complaints may represent any of a variety of effects, including local dermal effects, increased temperature of breathing air, elevated core temperature, or psychophysiological responses.” Therefore, risks of heat stress may be exacerbated through use of face coverings, which function like scarves by keeping warm air near the body. Employers who have employees that may be susceptible to heat illness should take efforts to minimize the exacerbating effects that heat may have, especially in light of the effects of the coronavirus pandemic. Many employees working physical jobs may be out of shape and at greater risk to suffer from heat illness. Employers should assess the hazard and implement a heat illness prevention plan, perhaps adding additional breaks and other measures necessary for employees to regulate their body temperatures.

Finally, workers may be months removed from performing lockout-tagout, entering permit-required confined spaces, using Company safety procedures, and complying with other safety rules. Return to work may necessitate generalized retraining on core safety rules.

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, James L. Curtis, Benjamin D. Briggs, Mark A. Lies, II. Adam R. Young, A. Scott Hecker, Ilana Morady, Patrick D. Joyce, Daniel R. Birnbaum, Matthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis: On June 21, 2021, the federal register published OSHA’s COVID-19 emergency temporary standard (“ETS”), focused on the health care industry.

As we blogged about here, OSHA posted its COVID-19 ETS to its website on June 10, 2021, but the ETS did not go into effect until its June 21 publication in the Federal Register.

29 CFR 1910.502(s) includes compliance dates for specific provisions of the ETS. Generally, health care sector employers must comply with the ETS’s requirements by July 6, 2021, except for the provisions concerning physical barriers, ventilation and training obligations, which have a compliance date of July 21, 2021. See id. at (i), (k), (n), and (s).

We are not aware of any legal challenges to the ETS having been filed, but there is certainly potential for litigation concerning the rule. The ETS’s medical removal requirements regarding maintenance of pay and provision of paid leave stand out as primary targets for contest.

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 Daniel R. Birnbaum, Coby Turner, Liz Watson, and Patrick D. Joyce

Seyfarth Synopsis: Following a rollercoaster ride that lasted for weeks, and culminated in another 4.5 hour long marathon meeting, on June 17, 2021, Cal/OSHA finally approved a revised version of its Emergency Temporary Standard (“ETS”). While the revised ETS aligns closer to guidance issued by the Center for Disease Control and Prevention (“CDC”) and California Department of Public Health (“CDPH”) with regards to face coverings, it still includes many controversial provisions relating to documenting employee’s vaccination status, providing approved respirators upon request for voluntary use, testing, and exclusion pay, amongst others.

Overview

As we have previously written about at length, Cal/OSHA’s ETS has endured a long road to adoption. Following withdrawal of an initial revision of the ETS that was nearly universally panned, Cal/OSHA issued new revisions on June 11, 2021. Cal/OSHA preemptively issued FAQs, available here, acknowledging that the new proposed ETS was raising compliance questions even before becoming effective.

On June 17, 2021, the OSHSB held yet another marathon meeting lasting 4.5 hours before adopting the revised ETS in a 5-1 vote. Following the meeting, the Governor signed an Executive Order with the intent of making the revised ETS effective immediately.

What Exactly Are The Rules Now?

Our previous detailed analysis of Cal/OSHA’s revised ETS is available here, but highlights include the following:

Face Coverings

  • Where an employer has “documentation” confirming that an employee is fully vaccinated, the employee can go without a face covering in most circumstances.
    • Cal/OSHA’s FAQs clarify that no specific form of documentation of vaccination is required, and identify the following acceptable options: 1) Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy; 2) Employees show proof of vaccination to the employer, similar to the way an employee may show identification for I-9 purposes, and the employer maintains a record (e.g., a log) of the employees who presented proof, but not the vaccine record itself; or 3) employees self-attest to vaccination status and employer maintains a record of who self-attests.
    • Whatever method the employer chooses to accept as proof of vaccination, the employer must make a record of vaccination status and keep such records confidential.
    • Employees for whom the employer lacks documentation confirming that they are fully vaccinated must be treated as unvaccinated for all purposes under the ETS, including exclusion, testing, face coverings, etc.
    • Note: Don’t forget to check and update your workplace California Consumer Privacy Act(“CCPA”) notices related to gathering employee vaccination information, if applicable.
  • Face coverings are still required indoors and in vehicles for employees who are not fully vaccinated.
  • All employees must wear face coverings during an outbreak regardless of their vaccinated status. An outbreak is when you have 3 or more employee COVID-19 cases in an exposed group during a 14-day period.
  • Face coverings are not required outdoors (except during outbreaks when physical distancing cannot be maintained).
  • Employers must provide face coverings to employees who are not fully vaccinated.
  • Employees who are not fully vaccinated must be provided with, and encouraged to use, respiratory protection upon request for their voluntary use, and trained on how to use the respiratory protection. Appropriate respirators include those approved by NIOSH (available here), such as N95s, but not KN95s.
  • Respirators must also be provided for voluntary use to all employees, regardless of vaccination status, if a worksite is in a “major” outbreak status (i.e. more than 20 COVID-19 cases within 30 days in an exposed group).
  • Employers must remind their employees that employees may wear face coverings at work regardless of vaccination status, without fear of retaliation.

COVID-19 Testing

  • Employers will not need to test fully vaccinated or naturally immune employees who are part of an exposed group in an outbreak, or who have had a close contact at work with a COVID-19 case, unless they have symptoms.
  • Employers must provide testing for all employees in an exposed group during “major” outbreaks, regardless of vaccination or symptom status.
  • Employers must provide free testing during paid working time to all employees who are not fully vaccinated who are symptomatic, regardless of any potential work-related exposure.

Physical Distancing

  • Cal/OSHA’s previous requirements involving physical distancing or barriers have been eliminated, except where there’s a “major” outbreak or an employee is not wearing a face covering as a reasonable accommodation.

COVID-19 Prevention Program/Training

  • The ETS includes updated training requirements, such as topics covering vaccinations, respirator availability/use/effectiveness, and when face masks must be used.
  • Employers must continue to have an effective written COVID-19 Prevention Program.
  • Cal/OSHA indicated that it will provide updated training materials as well as revised COVID-19 Model Prevention Programs in the near future on their website.

Workplace Solutions

In light of Cal/OSHA’s revised ETS, employers must reevaluate their current COVID-19 policies and procedures to ensure compliance with the new requirements. Consult your Seyfarth attorney, including any member of Seyfarth’s Workplace Safety team, to ensure that policies, trainings, and procedures meet the ETS requirements, and when managing interactions with Cal/OSHA regarding the ETS.

By Daniel R. Birnbaum, Patrick D. Joyce, Adam R. Young, Coby Turner, and Elizabeth M. Levy

Seyfarth Synopsis: Following its June 3, 2021 meeting, when the Cal/OSHA Standards Board voted to approve Cal/OSHA’s controversial revisions to the COVID-19 Emergency Temporary Standard (ETS), the Board convened an emergency meeting on June 9, 2021, where it voted unanimously to pull back the revisions. On June 11, 2021, the Board released a proposed do-over —the third attempt at an ETS—to align with recent CDPH and CDC guidance, particularly as it relates to vaccinated individuals.

You Make Choices And You Don’t Look Back—Unless You’re Cal/OSHA

As we have previously recounted, the journey of the Cal/OSHA ETS has taken on the scope of an action movie with its constant twists and turns. Standing alone from other governmental agencies, the Cal/OSHA Standards Board voted to approve highly controversial revisions to the COVID-19 ETS on June 3, 2021, which clashed with CDC guidance, CDPH guidance, and widely publicized California state rules which became effective June 15, 2021 (California’s “reopening”), all of which eliminate capacity restrictions, social distancing and permit fully vaccinated individuals to stop wearing masks in most situations.

In response to the near universal backlash from the both the regulated community and affected employees, the Board noticed an emergency meeting for June 9, 2021, which ultimately lasted four and one-half hours, during which it was widely criticized for deviating from the guidance of every other public health authority. As a result, the Board voted unanimously to pull back the revised ETS, and sent the draft ETS back to Cal/OSHA for a re-write.

Cal/OSHA issued its revised version of the proposed ETS to more closely align with CDC and CDPH on face covering restrictions, and it has added other new requirements and obligations for employers.

Will There Be Another Sequel?

Assuming there are no further unanticipated actions by the Board—a big assumption given the path of the ETS so far—the Board is expected to vote on this forthcoming version at its June 17, 2021, meeting. Barring an Executive Order from the Governor or unanticipated actions by the Board, the relaxation of the November 2020 ETS requirements is expected to become effective on about June 28, 2021. There has been some chatter from the Governor’s office that this may happen, but we wouldn’t recommend leading off in the race just yet.

Until then, employers must continue to follow the current (“old”) version of the rules, which require all employees regardless of vaccination status to remain socially distanced and wear masks at nearly all times—even though on June 15, 2021, the vaccinated general public will not be required to wear masks in most situations.

In the meantime, employers can look down the road to the new ETS that is likely around the corner.

Life Is Simple With Some Of The New Proposed ETS Provisions

Cal/OSHA has apparently (finally) heard the masses and attempted to align the ETS closer to CDC, CDPH, and California state regulations in many respects.

For fully vaccinated employees:

  • As we previously predicted, the most recent revisions to the ETS would allow fully vaccinated employees in California to remove their face coverings, even in the company of unvaccinated individuals.
    • But note that in an outbreak setting, even fully vaccinated individuals must wear face coverings if indoors, or outdoors and not physically distanced, and any fully vaccinated individuals actually conducting COVID-19 screenings must also wear a face covering.
  • Fully vaccinated employees (or those who had COVID-19 in the past 90 days and have since recovered) who have close contact with a COVID-19 case would not need to be excluded from the workplace as long as they remain asymptomatic.
  • Employers would not need to provide testing to asymptomatic individuals who have been fully vaccinated (or those recovered from COVID-19 in the prior 90 days), even if those individuals are part of an exposed group in an outbreak setting.
    • However, employers must still provide testing at no cost in a “major outbreak” setting, regardless of vaccination or immunity status.

Those employees who have not provided documentation of their fully vaccinated status need to be treated as if they are unvaccinated for all purposes in the proposed ETS.

For those employees:

  • They still must wear a face covering when indoors or in vehicles with others.
  • Cal/OSHA still “recommends” that these individuals continue to wear a face covering outdoors if physical distancing cannot be maintained.
  • Employees with close contact to a COVID-19 case would be permitted to return to work within 10 days if they do not develop symptoms, and certain essential critical infrastructure employees would be permitted to return after seven days during critical staffing shortages.

For everyone:

  • The proposed ETS would completely remove requirements for physical distancing, except for in major outbreak settings.
  • Employers must provide free testing during paid working time to all close contacts of a COVID-19 case in the workplace except those who are fully vaccinated and asymptomatic, and individuals who have recovered from COVID-19 in the past 90 days and are asymptomatic.
  • For people who are close contacts of a COVID-19 case and have symptoms, regardless of vaccination status, they may be allowed to return to work earlier than previously allowed if they (1) have a negative PCR test taken after becoming symptomatic, (2) at least 10 days have passed since the last known close contact, and (3) they have been symptom-free for at least 24-hours without the use of medication.
  • Employers must provide face coverings at no cost to any employee upon request only, regardless of vaccination status.
  • The requirement to install cleanable solid partitions where physical distancing cannot be maintained has been eliminated in most circumstances—it remains a suggested potential safety measure in outbreak settings, and a required safety measure in major outbreak settings.

What Else Is Covered In The Sequel?

Now, when employers are determining vaccination status, the proposed revisions make it clear that the ETS would permit “fully vaccinated” status to include employees where the employer has documentation that the individual has received a vaccine that meets FDA approval or has emergency use authorization and, if they are vaccinated outside the United States, a vaccine approved for emergency use by the World Health Organization. This revision considerably simplifies compliance issues for companies with international workforces.

In addition, the proposed revisions make it clear that the ETS would not apply to employees who are teleworking from a location of the employee’s choice, which is not under the control of the employer. So if your employees are working at Toretto’s Market or a coffee shop on their laptops—if you give them the freedom to choose their work location, the proposed ETS would not apply to them.

The proposed revised ETS also clarifies that employers need only report COVID-19 cases to their local health department and no longer need to report to the Division.

And, in a significant change for employers who have had widespread outbreaks, the definition of the end of “major outbreak” status (and thus associated testing provisions) would be changed to no longer require zero COVID-19 cases for a 14-day period—employers would just need to drop to fewer than three cases in a 14-day period.

In Many Ways, Still A Buster

Despite making long sought after revisions, Cal/OSHA has missed the mark in other areas of the proposed revisions to the ETS, which remain considerable burdens on employers.

Documentation of Vaccination Status

For instance, as noted above, the proposed revisions would require employers to “document” the vaccination status of employees. The Board indicated at the emergency meeting that it would elaborate on what documentation would be required, but missed by a mile by not including the promised explanation in the proposed revisions.

As we have seen in Santa Clara County, employers there must collect at least self-certification of vaccination status on forms from employees. At this time, it appears unlikely that self-attestation regarding vaccination status will be acceptable under the ETS, meaning that some sort of documentation (although it is still not clear what) will be required.

Exclusion Pay Requirements

Employees who are excluded from work under the provisions in the proposed ETS are entitled to earnings and benefits continuation unless they are receiving disability payments, workers’ compensation payments, or temporary disability payments, or if the employer can prove the close contact is not work related.

But the pay requirements in this version of the proposed ETS have changed. Employees no longer need to be “able and available to work” to be entitled to exclusion pay. And, if the employer decides an exception to earnings continuation applies, the employer must inform the employee of the denial and the applicable exception.

Required Respiratory Protection

The newly proposed ETS still would include a controversial requirement that employers provide respiratory protection of a correct size for voluntary use to all unvaccinated employees—but the proposed requirement has been altered slightly so that respiratory protection now must be provided only upon employee request. This alteration addresses the concerns of many employers about being forced to stockpile respiratory protection unnecessarily, which could hamper the supply for first responders and during California’s upcoming wildfire season.

Employers must also encourage respiratory protection use amongst unvaccinated employees, and train any employees who request respiratory protection on how to properly wear the respiratory protection provided, how to perform a seal check, and on how facial hair may interfere with a seal.

Further, employers must provide respiratory protection for voluntary use to all employees in an exposed group, regardless of vaccination status, if the employer is in a “major outbreak” status, i.e., having 20 or more employee COVID-19 cases in an exposed group during a 30-day period.

Face Coverings

Permissible face coverings under the proposed ETS would include only a surgical mask, a medical procedure mask, a respirator worn voluntarily, or a fabric material mask of at least two layers of material. This means many of the normal fabric masks employees have been using will no longer be permissible.

Employers also must “ensure” that the face coverings are worn over the nose and mouth by unvaccinated individuals.

Testing

Employers would be required to make COVID-19 testing available at no cost to employees with COVID-19 symptoms who are not fully vaccinated, during the employees’ paid time—this is regardless of whether there was any potential work-related exposure to COVID-19.

Employer Provided Transportation

The proposed ETS expands the restrictions in employer-provided transportation to cover a much broader array of workplace settings. While it previously applied only in situations traveling to and from work, the proposed ETS now covers employer-provided transportation to and from different jobsites, delivery sites, buildings, stores, facilities, or fields.

Employers now must, to the extent feasible, assign employees with shared vehicles to distinct groups and keep those groups separate.

The saving grace is that this expanded section does not apply where all employees are fully vaccinated.

Notification and Training Requirements

All employees exposed to a COVID-19 case in the workplace must be notified in writing of potential exposure, in a form readily understandable by the employees. This notice may be by personal service, email, or text message, and if the employer knows the employee has limited literacy, then the employer may give oral notice in a language understandable by the employee.

Employee training requirements must include information on:

    • legally mandated sick and vaccination leave, if applicable,
    • the employer’s policies for providing respirators and how to properly use them,
    • the fact that COVID-19 is an airborne disease and N95s and more protective respirators protect the users from airborne disease while face coverings primarily protect people around the user,
    • how to access COVID-19 testing and vaccination, and the fact that vaccination is effective at preventing COVID-19 transmission, serious illness, and death,
    • the conditions under which face coverings must be worn at the workplace, and that they are recommended outdoors for people who are not fully vaccinated if physical distancing cannot be maintained, and
    • employees’ rights to request free face coverings and wear face coverings at work, regardless of vaccination status, without retaliation.

Workplace Solutions

As always, don’t jump the starting line as developments on the workplace safety front in California continue to occur fast and furious. With new requirements continually being issued, please don’t hesitate to reach out to one of the authors of this post or a member of our Workplace Safety team with any questions.

By Benjamin D. Briggs, Coby Turner, Elizabeth M. Levy, Ilana Morady, Patrick D. Joyce, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: Less than a week after the Cal/OSHA Standards Board voted to approve Cal/OSHA’s controversial revisions to the COVID-19 Emergency Temporary Standard (ETS), it convened an emergency meeting on June 9, 2021, after which it voted unanimously to pull back the revision. The Board will now send the ETS back for another do-over, to align a new revision with the CDPH and CDC guidance, particularly as it relates to vaccinated individuals.

Background

The story of the Cal/OSHA ETS becomes more convoluted by the day. Those of you following from home will recall that one week ago, on June 3, 2021, the Cal/OSHA Standards Board voted to approve a highly controversial revision to the COVID-19 ETS.

But that approved revision did not align with existing CDC guidance, or the recently updated CDPH guidance and California state rules slated to become effective June 15, 2021 (California’s “reopening”), which will permit fully vaccinated individuals to stop wearing masks in most situations. Let’s just say the regulated community was not pleased with the Board’s revision.

Fast forward to June 8, 2021, when the Board noticed an emergency meeting to be held on June 9, 2021. That meeting, attended by representatives of  widely ranging interests—employers, employees, industry groups, organized labor groups, healthcare professionals, and members of the public at large—lasted 4.5 hours. Virtually every comment criticized the Board for deviating from the guidance of public health authorities.

At the end of the meeting, the Board voted unanimously to pull back the revised ETS, which would have gone into effect on or about June 13, 2021, and sent the ETS back for re-write. We expect yet another revision in the coming days—one aligning more closely the with CDC and CDPH. The Board is expected to vote on this forthcoming version at its June 17, 2021 meeting. If approved, the revision would go into effect around June 28, 2021.

What Does This Mean?

For now, employers must continue to follow the current (“old”) version of the November 2020 ETS, which requires all employees regardless of vaccination status to remain socially distanced and wear masks at nearly all times. We previously blogged about the detailed requirements of the ETS here.

In the near future, sometime after the June 17, 2021 meeting (with the caveat that one can really never know with Cal/OSHA), we expect that fully vaccinated employees in California will not need to wear a mask or socially distance, even if in the company of unvaccinated individuals. This relaxation of the current requirements is expected to become effective on about June 28, 2021.

Other provisions of Cal/OSHA’s controversial revised ETS, however, are expected to stick. One is the requirement that employers provide respiratory protection for voluntary use to all unvaccinated employees.

Keep in mind that the California “reopening” remains on target for June 15, 2021. This means that, unless Cal/OSHA announces it will be exercising enforcement discretion, all employees will still need to be in masks and distanced until the new revision becomes effective, even though the vaccinated general public won’t be required to wear them.

What Else Should I Know?

At the June 9 meeting, the Board indicated that Cal/OSHA should clarify the documentation requirement around vaccination status as proposed in the most recent revised ETS. At this time, it appears unlikely that self-attestation regarding vaccination status will be acceptable, meaning that some sort of documentation (although it is not clear what) will be required.

Workplace Solutions

Stay tuned for the rapid fire developments on the workplace safety front in California. If you are facing difficult questions from your employees in this space that you need help answering, please don’t hesitate to reach out to one of the authors of this post or a member of our Workplace Safety team.

By Brent I. Clark, James L. Curtis, Benjamin D. Briggs, Mark A. Lies, II. Adam R. Young, A. Scott Hecker, Ilana Morady, Patrick D. Joyce, Daniel R. Birnbaum, Matthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis: On June 9, 2021, at the tail end of prepared remarks before the House Education and Labor Committee, Secretary of Labor Marty Walsh announced – not with a bang, but with a whimper – that OSHA would publish its long-anticipated COVID-19 emergency temporary standard (“ETS”) on June 10, and that the ETS would focus only on the health care industry.

When OSHA sent the ETS to the White House’s Office of Information and Regulatory Affairs on April 26, 2021 (more than a month after President Biden’s initial deadline for doing so), observers anticipated a broad rule, covering the full breadth of OSHA’s jurisdiction. Focusing solely on health care, OSHA’s June 10 ETS likely disappoints unions and worker advocates who continued to champion the ETS well after science – and CDC guidance – pointed to a lack of necessity. In addition to the actual ETS, OSHA has developed supplemental ETS-related resources, including a helpful flowchart to determine coverage.

ETS Requirements

For those employers who fall into covered categories, including hospitals, nursing homes, and assisted living facilities; emergency responders; home health care workers; and employees in ambulatory care settings where suspected or confirmed coronavirus patients are treated, the ETS requires:

  • Developing and implementing a COVID-19 plan, including worksite-specific hazard assessments, to mitigate virus spread;
  • Limiting and monitoring entry points, and screening and triaging all clients, patients, residents, delivery people and other visitors, and other non-employees entering the setting;
  • Developing and implementing policies and procedures to adhere to Standard and Transmission-Based Precautions in accordance with CDC’s “Guidelines for Isolation Precautions”;
  • Providing and ensuring employees wear facemasks, with certain exceptions. Under certain circumstances, N95 respirators or other personal protective equipment must be provided by the employer to employees. Where N95s are used, but not required, employers must follow the new mini respiratory protection program included as 29 CFR 1910.504 (yes, it’s actually called a “mini respiratory protection program”);
  • Following specific protocols when an aerosol-generating procedure is performed on a person with suspected or confirmed COVID-19;
  • Physical distancing, i.e., ensuring six feet of distance between workers where feasible. Where physical distance is not feasible, the employer must ensure that the employee is as far apart from all other people as feasible, and must install barriers in fixed work locations outside of direct-care areas;
  • Cleaning and disinfection;
  • Ventilation;
  • Employee screening and notification of COVID-19 exposure;
  • Training;
  • Recordkeeping; and
  • Reporting COVID-19 fatalities and hospitalizations.

The standard also requires covered employees to provide workers with paid time off to get vaccinated and to recover from side effects. Employees who have coronavirus or who may be contagious must work remotely or be separated from others, or they must be provided paid time off, up to $1,400 per week.

Employers must advise employees that employees cannot be retaliated against for exercising rights under the ETS, and employers must implement the ETS with no cost to employees.

In well-defined areas where there is no reasonable expectation that any person will be present with suspected or confirmed coronavirus, the ETS exempts fully vaccinated workers from its masking, distancing, and barrier provisions.

Updated Guidance for Non-Health Care Sectors

OSHA’s revised guidance covering non-health care workplaces focuses its risk mitigation protocols on unvaccinated workers. Referring to CDC guidance, OSHA notes that fully vaccinated individuals do not need not take all of the same precautions that unvaccinated people should. Further, OSHA advises that most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure, unless stricter state or local laws apply.

OSHA appears to have finally reached the conclusion that it cannot demonstrate the need and gravity necessary to warrant an all-industry ETS. But employers should expect the updated guidance to serve as fodder for additional citations under OSHA’s COVID-19 National Emphasis Program, including pursuant to the General Duty Clause of the OSH Act. Maintaining required protocols and following all applicable guidance – as well as any stricter state and local rules – remains paramount in the enforcement arena.

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 Lorie E. Almon, Meredith-Anne Berger, Anne R. Dana, and Glenn J. Smith

Seyfarth Synopsis: With no fanfare or effective means of publication, New York adopted an emergency regulation, effective May 26, 2021, implementing the latest CDC guidance on face coverings, with certain key exceptions. Notably, face coverings are required for unvaccinated food service workers at all times, regardless of proximity from others. While employers have been expecting revised industry-specific guidance to incorporate the new social distancing and mask mandates, instead, on June 7, 2021, Governor Cuomo announced that upon reaching a 70% vaccination rate for adults state-wide, most restrictions currently in place will be lifted.

New York State recently published emergency regulations (66-3.1—66-3.5) regarding mandatory face coverings in the wake of COVID-19 and the State’s adoption of the CDC’s recent guidance, which we previously discussed here, allowing fully vaccinated individuals to go without a face covering under most circumstances. They also address non-essential gatherings and penalties.

The emergency regulations provide, in sum:

  • Individuals over age two and who are medically able must wear a face covering in a public place when not maintaining a social distance, unless the individual is fully vaccinated (i.e., 2+ weeks after the final dose of any COVID-19 vaccine), in which case a face covering is not required. Exceptions to this rule include: a pre-kindergarten to twelfth grade school, public transit, homeless shelter, correctional facility, nursing home, health care setting, or other setting where mask use is otherwise required by federal or state law or regulation.
  • Employees in any workplace who are not fully vaccinated must wear a face covering when “in direct contact with customers or members of the public, or when unable to maintain social distance.” Notably, employees of food service establishments who are not fully vaccinated must wear a face covering at all times while at the workplace. Businesses must provide such face coverings at no cost to employees.
  • Businesses and building owners may require all individuals who enter their premises to wear a face covering, and are entitled to deny admittance to any person who does not comply. Note, this particular provision is subject to conformance with the Americans with Disabilities Act, New York State, and New York City Human Rights Laws.
  • Businesses cannot deny services or discriminate against any individual on the basis that they choose to wear a mask for purposes of protection against COVID-19, but which is not designed to otherwise obscure the identity of the individual.
  • Non-essential gatherings are prohibited under certain circumstances, i.e., over capacity limitations provided by relevant Executive Orders or on sidewalks, streets or other public property within 100 feet of a food service establishment or a business holding a liquor license. Any non-essential gatherings must comply with social distancing protocols and cleaning and disinfection guidelines. This prohibition does not apply to essential businesses as defined by Empire State Development.
  • Fines for violation of the emergency regulations are $1,000 per violation, except for violating capacity limits on non-essential gatherings or for a business or individual who promotes a non-essential gathering, which has a maximum fine of $15,000.

While it was expected that New York’s industry-specific guidance would be updated to address the new mask and social distancing rules, it now appears that is unlikely. Instead, during a press conference on June 7, 2021, Governor Cuomo announced that “most remaining COVID restrictions will be lifted when 70% of adult New Yorkers have received at least one dose of the COVID vaccine.” At the time of the announcement, the percentage was at 68.6%.

The announcement included the following:

  • “The State’s New York Forward industry specific guidelines — including capacity restrictions, social distancing, cleaning and disinfection, health screening, and contact information for tracing — will become optional for retail, food services, offices, gyms and fitness centers, amusement and family entertainment, hair salons, barber shops and personal care services, among other commercial settings. Large-scale event venues, pre-K to 12 schools, public transit, homeless shelters, correctional facilities, nursing homes, and healthcare settings must continue to follow the State’s guidelines until more New Yorkers are vaccinated.”
  • Unvaccinated individuals will still be responsible for maintaining proper social distancing of six feet and wearing a mask. In addition, large-scale event venues, Pre-K to 12 schools, public transit, homeless shelters, correctional facilities, nursing homes and health care settings will be exempt from the restriction lift, and New York State’s existing COVID-19 health protocols will remain in effect. (Notably, the requirement that unvaccinated food service workers continue to mask at all times was not mentioned as a restriction that will remain in place, but this may have been an oversight).

It is also unclear whether the emergency regulations cited above are intended to work in tandem with the lifting of the industry-specific guidance upon reaching the 70% threshold, or will once again be amended in accordance with same. This likely depends on whether the rollback of the industry-specific guidance is effectuated through a broader lifting of the COVID-19 disaster emergency declaration.

Seyfarth will continue to track what has become a rather confusing lifting of restrictions across New York. Please contact your Seyfarth attorney with any questions you may have.