By Brent I. ClarkJames L. Curtis, Adam R. YoungPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The Interim Enforcement Guidance for the 2020 Final Beryllium Standards applies to all types of beryllium inspections.

We have previously blogged about OSHA’s beryllium standards, and the Trump Administration’s delay in enforcement of these standards. See, for instance, OSHA Delays Enforcement of Beryllium Standard Until May, Update from the 2019 ABA Occupational Safety and Health Law Committee Midwinter Meeting, and What to Expect From OSHA in a President-Elect Trump Administration. Now, in the Biden Administration, OSHA is providing guidance to its personnel on how to enforce these standards, perhaps foreshadowing forthcoming aggressive enforcement.

OSHA’s guidance will apply to OSHA inspections of manufacturers using beryllium, as well as shipyards and construction sites where trace amounts of beryllium are used in sand-blasting materials. While the guidance primarily functions as guidance for OSHA compliance officers on how to conduct beryllium inspections, the guidance also provides employers with insights of what inspectors will likely be looking for during site inspections. In addition, the guidance outlines how to cite employers for alleged violations.

Note also the CDC-NIOSH site on beryllium, and the OSHA page the substance.

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 Patrick D. Joyce, Brent I. ClarkJames L. CurtisAdam R. Young, Ilana R. Morady, A. Scott Hecker, and Craig B. Simonsen

Seyfarth Synopsis: This week, the State of Oregon issued a final COVID-19 worker protection standard, replacing its temporary rule adopted six months ago. The final rule, effective on May 4th with certain provisions phasing in over time, is slated to stay in effect until state officials declare the COVID-19 emergency over.

The Oregon Occupational Safety and Health Administration (Oregon OSHA) drafted the updated rule following the process required for non-emergency rules, including holding public hearings and receiving and addressing written comments. The new rule mirrors the state’s temporary standard with minor changes. Employers with ten or more employees must have a written infection control plan in place that meets the core requirements. But employers that already assessed the COVID-19 risks their workers face, developed an infection control plan, and conducted training to comply with the earlier measure do not need to repeat those efforts. In short, workplace precautions put in place under the temporary rule to prevent transmission of COVID-19 at work need to be maintained.

Despite considerable public comment, the final rule continues to ignore the significant impact that COVID-19 vaccinations play in reducing potential workplace COVID-19 risks. In fact, despite the overwhelming evidence that vaccines are extremely effective against death and serious illness requiring hospitalization, as well effective at reducing the risk of transmission of COVID-19, Oregon OSHA states that it is following Federal OSHA’s January 29, 2021 guidance that employers should not distinguish among workers who are vaccinated and those that are not.  This plainly contradicts CDC guidance regarding the effectiveness of the vaccines and their impact on the need to quarantine vaccinated workers after a known COVID-19 exposure. (The CDC says such a worker need not quarantine unless they develop symptoms). Further, with Federal OSHA potentially on the verge of issuing its own ETS, Oregon OSHA chose to rely on months-old guidance, as opposed to CDC’s more recent recommendations. It is unclear how these contradictions will be resolved, but the reduction in workplace risks that result from increasing numbers of vaccinated workers is not in dispute.

The new rule creates mandates requiring respiratory protection for healthcare workers providing direct patient care, that take effect May 17, 2021. There are also new requirements, effective June 3, 2021, for creation of a crisis management plan, as well as requirements related to ventilation, employer-provided transportation, employee notification, and creation of a personal protective equipment supply management plan for healthcare employers.

See the Agency’s Summary of Key Issues Revision and Extension of Oregon COVID-19 Workplace Rules for more detailed discussion and the Agency’s explanation of the 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. ClarkJames L. CurtisAdam R. YoungA. Scott Hecker, and Craig B. Simonsen

Seyfarth Synopsis: On April 27, 2021, CDC announced updated recommendations for fully vaccinated people in non-healthcare settings (note that on the same day the CDC also posted Updated Healthcare Infection Prevention and Control Recommendations in Response to COVID-19 Vaccination).

Image from CDC.

Among other updates, the CDC: provided “guiding principles” for fully vaccinated individuals; explained that fully vaccinated people no longer need to wear masks outdoors (except in certain “crowded” settings and venues); and clarified that fully vaccinated folks, without symptoms, generally are not restricted from work following exposure to a known or suspected COVID-19 case.

Under the updated guidance, fully vaccinated people can:

  • Visit with other fully vaccinated people indoors without wearing masks or physical distancing.
  • Visit with unvaccinated people (including children) from a single household who are at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing.
  • Participate in outdoor activities and recreation without a mask, except in certain crowded settings and venues.
  • Resume domestic travel and refrain from testing before or after travel or self-quarantine after travel.
  • Refrain from testing before leaving the United States for international travel (unless required by the destination) and refrain from self-quarantine after arriving back in the United States.
  • Refrain from testing following a known exposure, if asymptomatic, with some exceptions for specific settings
  • Refrain from quarantine following a known exposure if asymptomatic
  • Refrain from routine screening testing if asymptomatic and feasible

For now, according to the CDC, fully vaccinated people should continue to:

  • Take precautions in indoor public settings like wearing a well-fitted mask
  • Wear masks that fit snuggly when visiting indoors with unvaccinated people who are at increased risk for severe COVID-19disease or who have an unvaccinated household member who is at increased risk for severe COVID-19 disease
  • Wear well-fitted masks when visiting indoors with unvaccinated people from multiple households
  • Avoid indoor large-sized in-person gatherings
  • Get tested if experiencing COVID-19 symptoms
  • Follow guidance issued by individual employers
  • Follow CDC and health department travel requirements and recommendations

Recognizing that fully vaccinated persons have a minimal risk of contracting or transmitting COVID-19 to others, the CDC states that the “level of precautions taken should be determined by the characteristics of the unvaccinated people present, who remain unprotected against COVID-19.” In other words the CDC is focusing on the risks to unvaccinated persons which the CDC assumes “remain unprotected against COVID-19.” An obvious gap in the CDC guidance is the role that natural immunity plays for persons who are unvaccinated. However, the CDC is silent on this issue. In other parts of its own guidance the CDC recognizes that natural immunity is sufficient to warrant modified quarantine and exclusion from work treatment, just like for vaccinated persons. Once the guidance is based on the risk to those who are “unvaccinated” it seems clear that all forms of immunity to COVID-19 possessed by those persons should be considered when evaluating the overall risk and therefore the appropriate precautions.

In indoor public spaces, the guidance states that fully vaccinated people should continue to protect themselves and others by wearing a well-fitted mask, covering coughs and sneezes, washing hands often, and following any applicable workplace or school guidance. Fully vaccinated people should still watch for symptoms of COVID-19, especially following an exposure to someone with suspected or confirmed COVID-19. If symptoms develop, all people – regardless of vaccination status – should isolate and be clinically evaluated for COVID-19, including SARS-CoV-2 testing, if indicated.

While the CDC’s guidance does not explicitly apply to workplaces, it mentions employers, and is moving in the right direction. We expect the CDC to continue to update its guidance, including addressing how increased vaccinations impact the risk mitigation protocols required at work. Hopefully, now that the CDC has implicitly accepted the significant immunity and protection provided by vaccination, and they are now focusing on the risk to OTHERS, the CDC will more thoroughly evaluate those risks including the role of natural immunity. Of course, other mandates from federal agencies like OSHA or those imposed by state and local governments must be followed, where applicable.

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 Scott Hecker 

On April 26, 2021, OSHA referred its COVID-19 emergency temporary standard (“ETS”) to the White House’s Office of Information and Regulatory Affairs (“OIRA”).  OIRA reviews agency standards to facilitate finalization and publication.

With President Biden’s March 15 deadline for OSHA to issue a COVID-19 ETS more than a month in the past, even those who anticipated a delayed response had started to question whether OSHA would issue a standard. Indeed, the longer the ETS takes to issue – and, to be clear, it hasn’t yet issued – the less sense it makes. For OSHA to promulgate an ETS, section 6(c) of the Occupational Safety and Health Act requires “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and . . . that such emergency standard is necessary to protect employees from such danger.” As COVID-19 vaccinations increase – and demonstrate high rates of effectiveness, particularly at preventing serious illness and death – the more OSHA delays, the harder it will be to justify that an “emergency standard is necessary to protect employees” from “grave danger.”

According to the CDC’s COVID Data Tracker as of April 26, in the United States:

  • Over 232 million vaccine doses have been administered, meaning President Biden far-exceeded his goal to administer 200 million doses in his first 100 days.
  • Over 54% of the U.S. population, 18 and older, has received at least one dose.
  • Over 81% of the U.S. population, 65 and older, has received one dose; and
  • Almost 30% of the entire U.S. population is fully vaccinated.

While the rolling average for doses administered per day may be declining, that is likely because those who raced to be front-of-line for distribution have received their vaccines. The government may need to reorient its strategy to attract more passive potential recipients, as well as individuals who are on the fence about getting the vaccine.

Beyond battling the passage of time and increasing vaccination numbers, OSHA will need to justify its change in position on the need for an ETS, as former Secretary of Labor Scalia and former Principal Deputy Assistant Secretary for OSHA Loren Swett both opined that OSHA’s toolkit already included what it needed to enforce COVID-related violations. The Biden Administration may be unwittingly confirming these assertions by increasingly issuing COVID-related citations under the General Duty Clause of the OSH Act, section 5(a)(1), to require employers to mandate, e.g., masking and social distancing.

OSHA’s issuing an ETS also implicates federalism, as it will apply in any states that follow federal OSHA regulations, including Texas and Florida, which are among the states on the forefront of rolling back COVID-related risk mitigation protocols. States with their own OSHA plans – e.g., Kentucky, Tennessee, and the Carolinas – will need to issue their own ETSs within 30 days that are “at least as effective” as OSHA’s. Then there are states like California and Virginia that have their own regulations already in effect; they’ll need to ensure what they’ve previously promulgated is at least as effective as the OSHA ETS.  A state like New York that recently passed the HERO Act to protect workers from aerosol transmissible diseases may now run into federal preemption issues because of the anticipated ETS.

OSHA has never mandated vaccinations, with its Bloodborne Pathogen standard requiring that employers offer certain employees the Hepatitis B vaccine likely coming the closest. We don’t anticipate any vaccine requirement in the ETS, but we should expect the OSHA ETS to require employers to follow CDC guidance; to incorporate OSHA’s January 29, 2021 publication, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”; and to adopt provisions from state ETSs.

We can expect litigation challenging the ETS from states and from associations like the U.S. Chamber of Commerce.  Challenges to OSHA ETSs have had mixed success, with the Congressional Research Service noting that of the nine ETSs OSHA has issued “courts have fully vacated or stayed the ETS in four cases and partially vacated the ETS in one case.”

Perhaps OIRA will introduce additional roadblocks to publishing OSHA’s ETS, but while we await the standard’s review, employers should consider the resources above to ensure they’ll be ready to comply, if needed.

For a deeper dive into the possibility of an OSHA ETS and how it could affect your business, join us on Tuesday, May 4th for Seyfarth’s Webinar: The Biden Administration: Actions on Labor and Employment in the First 100 Days. 

We will continue to monitor developments and to provide updates as appropriate. If you would like additional information please reach out to Scott HeckerBrent Clark, and Seyfarth’s Workplace Safety and Environmental team.

By Robert S.  Whitman and Daniel I. Small

Seyfarth Synopsis: The New York State Legislature is keeping busy with new employment legislation as the local and national economies continue to recover from the COVID-19 pandemic.

On April 21, 2021, both houses of the Legislature announced passage of portions of the NY Hero Act, which requires extensive new workplace health and safety protections in response to the pandemic.  The Legislature is also advancing two additional employment-related bills: one would ban “no-rehire” clauses in employment settlement agreements, and the other would prohibit “no-poach” agreements between franchisors and franchisees.

NY Hero Act

Despite pushback from the business community, the NY Hero Act has passed both houses of the Legislature.  When signed by the Governor (as is expected), the law will provide the following:

  • Airborne Infectious Disease Workplace Safety Standard.  The law directs the Department of Labor to establish minimum requirements for preventing the spread of airborne infectious diseases in the workplace.  The standards must differentiate among industries and must address several areas, including (1) employee health screenings, (2) face coverings, (3) personal protective equipment, (4) social distancing, and (5) cleaning and disinfecting protocols.  Employers will be required either to adopt the DOL-issued standard that is relevant to their industry and workforce, or to establish their own disease prevention plan that meets or exceeds the requirements of the DOL-issued standard.  Employers will also be required to post their plan in the workplace and distribute it to their employees upon hire and/or after reopening following a closure due to an airborne infectious disease.
  • Non-Retaliation.  Employers will be barred from retaliating against employees for reporting violations of their standard, for reporting concerns of exposure to such diseases, and for refusing to work where the employee reasonably believes in good faith that the workplace exposes them to an unreasonable risk of exposure.
  • Penalties.  The law authorizes the DOL to assess penalties to a non-compliant employer of at least $50 per day for failing to adopt a relevant standard or disease prevention plan, and a fine of $1,000-$10,000 for failing to comply with the plan.
  • Private Right of Action.  The law also provides employees with the right to bring a lawsuit seeking injunctive relief against an employer for failing to comply with the above provisions of the law.  Courts may enjoin the employer’s conduct and award the plaintiff attorneys’ fees and costs and liquidated damages up to $20,000 unless the employer demonstrates good faith attempts to comply with the standard.
  • Creation of Workplace Safety Committees.  The law requires employers to permit employees to form a joint labor-management workplace safety committee with employee and employer designees.  The committee must be allowed to raise workplace health and safety concerns, review employer workplace safety policies, participate in government site visits relating to workplace health and safety standards, and attend committee meetings and trainings related to workplace health and safety standards.

The effective date of the mandate for the DOL to issue the industry-specific standards is 30 days from the Governor’s signature.  While the statute is not crystal clear on this point, it appears that employers will not be required to establish their own disease prevention plan until the DOL issues its standards.  Other aspects of the law have more immediate implications: the non-retaliation provision takes effect 30 days after the Governor’s signature, and the workplace safety committee provisions are effective 180 days after signature.

Prohibition of No-Rehire Clauses

Bill S766, which is currently pending before the full State Senate, would prohibit employers from including clauses in settlement agreements that prevent employees from applying for, accepting, or engaging in future employment with the employer, or any entity or entities related to such employer.  The bill declares that an agreement containing such a provision is unenforceable—except that the employer would still be bound by its obligations under the agreement to include full compensation/severance pay for the employee.

As proposed, this bill would take effect 60 days following the Governor’s signature.  In anticipation of passage, employers should carefully review their settlement templates for New York employees, as no-rehire clauses are common provisions in separation and settlement agreements involving terminated employees.

No-Poach Ban

Bill S562, known as the End Employer Collusion Act, prohibits agreements between franchisors and franchisees that restrict such entities from hiring the current or former employees of their franchisor or other franchisees.  Any such agreements would be deemed void as a matter of law.  Additionally, the bill provides a private right of action for any employee who was denied employment pursuant to such a no-poach agreement and authorizes compensatory damages, punitive damages, and attorneys’ fees.

As proposed, this bill would take effect immediately upon the Governor’s signature.

Next Steps for Employers

In the short-term, employers should begin working with counsel to develop compliant policies and procedures under the NY Hero Act, which is expected to be signed shortly.  Employers should also consider how the prohibitions on no-rehire clauses and no-poach agreement might impact their operations.

We will continue to monitor developments and provide updates as appropriate.

For more information on this or any related topics, please contact the authors, your Seyfarth attorney, or any member of Seyfarth Shaw’s Employment Law Group or the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. ClarkJames L. CurtisAdam R. YoungPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: OSHA yesterday issued an additional guidance addressing whether employers need to record adverse vaccine reactions on their 300 Logs.

Consistent with the OSHA regulations, OSHA’s guidance explains that an adverse reaction to the COVID-19 vaccine is recordable if the reaction is: (1) work-related, (2) a new case, and (3) meets one or more of the general recording criteria in 29 CFR 1904.7 (e.g., days away from work, restricted work or transfer to another job, medical treatment beyond first aid).” The FAQ adds an additional requirement: (4) the vaccine is required for employees.

Accordingly, adverse reactions are only potentially recordable on the OSHA 300 log where the employer mandates the vaccine; where the vaccine is voluntary, OSHA is exercising “enforcement discretion to only require the recording of adverse effects to employer required vaccines at this time.”  Employers “do not need to record adverse effects from COVID-19 vaccines that [they] recommend, but do not require.”  For the record-keeping exception to apply, the vaccine must be voluntary in the sense that employees face no material adverse employment consequences for choosing to remain unvaccinated.

For mandatory vaccines, OSHA does not define what reactions would be considered to be “work-related,” or how employers should conduct the analysis.  Aside from anaphylaxis during the medical review period after the vaccine, employers may lack the information to know whether a vaccine contributed to the alleged symptoms, and would need to rely on the report of a physician.  Based on OSHA’s prior vaccination recordkeeping advice, we recommend further analyzing whether the vaccine was administered at work, whether the adverse reaction occurred at work, and whether the employee was required to get the vaccine because the employer reasonably expected exposure to active COVID-19 cases at work (such is in a hospital, nursing home, or correctional institution).

OSHA’s guidance also does not address reporting of serious illnesses, meaning the requirement for employers to call OSHA and report an adverse vaccine reaction that results in a death within 30 days or an in-patient hospitalization for medical treatment within 24 hours.  Presumably,  OSHA would exercise the same discretion for voluntary vaccinations, but the issue is not entirely clear.

Also, 23 OSHA state plans regulate private employers in their respective states.  Those states may offer guidance that is more restrictive on the record-keeping of adverse vaccine reactions.  If your company operates in California or another aggressive OSHA state plan, check with qualified outside OSHA counsel as to whether record-keeping of adverse vaccine reactions is required for voluntary vaccines.

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, Benjamin D. BriggsIlana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: A new Senate Bill that would radically increase Cal/OSHA’s enforcement powers is working its way through the California legislature. SB 606, authored by Senator Lena Gonzalez and Assemblywoman Lorena Gonzalez – both of whom have significant organized labor backgrounds –  has been approved by the Senate Judiciary Committee and referred to the Appropriations Committee, its last stop before being considered by the full chamber.

If passed there, it will move to the Assembly. The bill is sponsored by organized labor, including the California Labor Federation, United Food and Commercial Workers Union, and Worksafe.

The bill would do the following:

  • Enable Cal/OSHA to issue a citation based on evidence or documents “in lieu of or in addition to an onsite inspection”;
  • Expand Cal/OSHA citation authority to include violations of Labor Code Division 5 (relating to safety in employment), including any standard, rule, order, or regulation that is part of it, as well as the Health and Safety Code. This provision potentially flies in the face of the general principle that an agency can’t cite to a statute over an adopted regulation where the statute isn’t sufficiently specific to inform the regulated entity of what it has to do in order to comply with the law;
  • Establish a rebuttable presumption that if an employer operates multiple worksites and has a written policy or procedure that violates specific workplace safety laws, the violation is considered “enterprise-wide.” SB 606 would also allow Cal/OSHA to seek an injunction to stop work operations until the alleged enterprise-wide conditions were corrected;
  • Staying of abatement by the Appeals Board on enterprise-wide citations would be prohibited unless there are no exposed employees and the condition is not likely to cause death, serious injury or illness, or exposure. The Board would be required to issue an enterprise-wide abatement order if Cal/OSHA demonstrates an enterprise-wide violation;
  • Establish “egregious employer” provisions. Cal/OSHA would be required to cite such an employer if it  believes the employer has willfully violated a standard. Each employee exposed to that violation would be considered a separate violation for purposes of penalty, which means that the current maximum penalty for a willful, $132,765, could be multiplied across an entire workforce. Under the bill, potential violations would also attached to “related employer entities” defined as employers who have a direct business relationship with the primary employer and share at least in part reliance on their respective policies, advice, or consultation for safety and health compliance, e.g. corporate parents, subsidiaries, affiliates, labor providers, franchisees, and licensees. As many employers are already aware, Federal OSHA has long used corporate-wide abatement as part of a settlement-negotiating strategy, but AB 606 goes much farther by enabling Cal/OSHA to issue enterprise-wide citations;
  • SB 606 would establish a rebuttable presumption that an employer has engaged in retaliation against an employee if it takes adverse action within 90 days of an employee raising a potential safety violation, including COVID concerns;

A Chamber-led coalition of employer groups is vigorously opposing this attempted unprecedented expansion of Cal/OSHA authority.

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 Jeryl L. OlsonRebecca A. DavisPatrick D. JoyceIlana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Environmental Protection Agency (EPA) issued the 2021 Multi-Sector General Permit (“MSGP”) for industrial stormwater discharges on January 15, 2021. The 2021 MSGP became effective on March 1, 2021 and replaces the 2015 MSGP for facilities in states with EPA-managed NPDES Programs. 

The 2021 MSGP replaces the 2015 MSGP, which expired and was administratively continued on June 4, 2020. Beginning March 1, 2021, operators in affected jurisdictions  must submit a new Notice of Intent (“NOI”) to obtain authorization to discharge in accordance with the deadlines set forth in Part 1.3.3. of the 2021 MSGP. Table 1-2 of the 2021 MSGP lists NOI deadlines. For example, facilities with existing coverage under the 2015 MSGP must submit their NOI by May 30, 2021. Affected jurisdictions include:

  • New Hampshire, New Mexico, Puerto Rico, Massachusetts, and Washington, D.C.;
  • Idaho, until July 1, 2021, when NPDES permit management will transition to the Idaho Department of Environmental Quality;
  • S. territories except the Virgin Islands;
  • Federally operated facilities in Colorado, Delaware, Vermont, and Washington;
  • Most Indian country lands; and
  • Other designated activities in specific states (e.g., oil and gas activities in Texas and Oklahoma).

While limited to the referenced affected jurisdictions for now, the changes incorporated in the 2021 MSGP will affect all state programs eventually, when states renew their industrial stormwater permits; several states will upgrade to the new MSGP before the end of 2021.

The 2021 MSGP requires industrial facilities in 29 different industrial sectors to implement control measures and develop and make available to the public site-specific Stormwater Pollution Prevention Plans (“SWPPP”) to comply with NPDES requirements specific for each sector.  New provisions in the 2021 MSGP include the following substantive technical, quasi-technical and administrative changes which include the following and eventually will impact all permittees:

  1. The 2021 MSGP includes new or updated technical provisions:
  • changes in frequency and reporting obligations for both indicator monitoring and benchmark monitoring;
  • adds monitoring of polynuclear aromatic hydrocarbons (PAHs) for certain facilities;
  • requires monitoring in the fourth year of the permit, even where benchmark monitoring has been allowed to be discontinued;
  • requires increased monitoring for discharges to impaired waters;
  • requires corrective actions in accordance with certain steps (“tiering”), first evaluating and implementing controls based on the SWPPP, then escalating to include additional control measures, and finally imposing permanent structural controls, and even treatment controls; and
  • requires enhanced stormwater control measures in areas known to be impacted by weather conditions including flooding, hurricanes, storm surges, in advance of weather events. Measures might include reducing inventory of materials stored outside, or elevation of outside storage of materials.
  1. There are also new quasi-administrative changes to the MSGP including:
  • filing of and public disclosure of the facility SWPPP (it must now be uploaded with the NOI);
  • site signage to alert the public that the site is subject to the 2021 MSGP and to alert the public of the existence of the SWPPP; and
  • public disclosure of additional implantation measures (AIM), as may be required by an AIM triggering event, such as an exceedance of a benchmark threshold for four consecutive quarters.
  1. Finally, there are administrative changes to the MSGP:
  • the process, and the terms and conditions of the general permit, have been made more “user friendly”;
  • the directions and permit have been updated to use “plain language” so that the requirements of the permit are clear to users, enforcement authorities, and the pubic;
  • EPA has reportedly improved the security of the NPDES e-Reporting Tool (“NeT”) to “ensure organizations only have access to their permit forms and information.” NeT users will now “own,” or have access to specific NPDES identification information (“ID”), to prepare or submit: Changes to NOIs, Notices of Terminations, or Annual Reports associated with that NPDES ID.

Because of the new monitoring and control requirements, signage requirements, requirements to upload SWPPPs with the NOI,and requirements to make SWPPPs public, it is important that our clients be aware of these changes as they are implemented in their state.

Feel free to reach out to the authors, one of Seyfarth Shaw’s Environmental Compliance, Enforcement & Permitting team members, or your Seyfarth attorney with any questions on this important topic.

By Brent I. ClarkJames L. CurtisAdam R. YoungA. Scott HeckerPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The White House announced on Friday that Douglas L. Parker will be its nominee for the head of federal OSHA.

Mr. Parker previously served in the Obama Administration as Deputy Assistant Secretary for Policy to the Mine Safety and Health Administration. Mr. Parker also served as a member of the Biden-Harris transition team, where he focused on worker health and safety issues, and has held positions as a senior policy advisor and special assistant at the Department of Labor. An attorney, Mr. Parker previously worked as in-house counsel at a labor union.

Most recently, he has served as the Chief of the California Division of Occupational Safety and Health since 2019. In his tenure at CalOSHA, the Agency has aggressively enforced an overbroad and hastily-issued COVID-19 emergency temporary standard, using COVID-19 as a vehicle to force employers to engage in widespread surveillance testing, and to legislate by regulation progressive priorities on wage and hour issues, far beyond the scope of his agency’s safety and health mission.

We anticipate Mr. Parker will pursue labor union priorities at federal OSHA, in conjunction with recently-confirmed Secretary of Labor Marty Walsh, as well as aggressive enforcement on a range of controversial issues. While Mr. Parker may not have an official role in issuing a federal COVID-19 emergency temporary standard (ETS), depending on his nomination process and the timing of any ETS’s promulgation, employers should be aware of CalOSHA’s ETS requirements, including the testing and employee benefits provisions mentioned above.

We are actively tracking whether Mr. Parker’s nomination will raise opposition in the United States Senate.

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. ClarkJames L. CurtisAdam R. YoungPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The CDC recently updated its Guidance on Domestic Travel During the COVID-19 Pandemic. The guidance also provides domestic travel recommendations for unvaccinated people.

Image from CDC.

The CDC recently issued updated guidance regarding travel. It is important to recognize that the CDC’s guidance on COVID-19 is not a law or regulation. However, various agencies and public health authorities have adopted some or all of the CDC recommendations, including recommendations regarding travel. Consequently, employers should consult actual laws and regulations regarding travel for their specific jurisdictions to understand requirements versus recommendations and guidance, especially employers who are considering their own travel policies.

As COVID-19 vaccinations in the United States continue, the CDC and other authorities will likely adjust their requirements and guidance to address the vaccinated population. Employers should be sure to closely track developments and make adjustments to their own policies as the risks associated with COVID-19 and travel change over time.

Domestic Travel Recommendations for Vaccinated People

According the CDC’s updated guidance, people who are fully vaccinated with an FDA-authorized vaccine can travel safely within the United States. People are considered fully vaccinated:

  • 2 weeks after their second dose in a 2-dose series, such as the Pfizer or Moderna vaccines, or
  • 2 weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine

Individuals who have not completed the 2-week period are not fully vaccinated, so the CDC recommends continuing to take all precautions until they are fully vaccinated. The CDC also cautions that immuno-compromised individuals may need to limit travel, even if vaccinated.

During Travel

The CDC recommends that fully vaccinated travelers still wear a mask over their nose and mouth while traveling. Masks are required by federal law on airplanes, buses, trains, and other forms of public transportation traveling into, within, or out of the United States and in U.S. transportation hubs such as airports and stations.

Fully vaccinated individuals should also avoid crowds and physically distance, staying at least 6 feet from anyone who is not traveling with them, and should continue good hygiene practices, washing hands often or using hand sanitizer (with at least 60% alcohol) according to the most recent guidance.

After Travel

The CDC advises that vaccinated travelers should self-monitor for COVID-19 symptom, and to self-isolate and get tested if they develop symptoms. They must also abide by state and local requirements, even if it differs from the CDC’s guidance.

The CDC does not advise that vaccinated individuals (and those who had COVID-19 in the past 3 months) self-quarantine after travel.

Domestic Travel Recommendations for Unvaccinated People

If individuals are not fully vaccinated and must travel, the CDC recommends:

1. Before Travel

Get tested utilizing an FDA approved viral test 1-3 days before their trip.

2. During Travel

Wear a mask over their nose and mouth. Masks are required by federal law on planes, buses, trains, and other forms of public transportation traveling into, within, or out of the United States and in U.S. transportation hubs such as airports and stations.

Avoid crowds and stay at least 6 feet from anyone who is not traveling with them.

Wash hands often or use hand sanitizer (with at least 60% alcohol).

3. After Travel

Get tested utilizing an FDA approved viral test no sooner than 3-5 days after travel AND stay home and self-quarantine for a full 7 days after travel.

  • Even if the individual tests negative, they should stay home and self-quarantine for the full 7 days.
  • If the test is positive, the individual must self-isolate to protect others from getting infected.
  • If the individual decides not to get tested, they should stay home and self-quarantine for 10 days after travel.

Regardless of whether the traveler seeks a test after travel or not, they should avoid being around people who are at increased risk for severe illness for 14 days, self-monitor for COVID-19 symptoms (isolate and get tested if symptoms develop), and follow all state and local recommendations or requirements. Some state and local requirements do not allow travelers to test-out of self-quarantine.

Visit your state, territorial, tribal or local health department’s website to look for the latest information on where to get tested.

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.