By Benjamin D. Briggs, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: OSHA’s enforcement budget increase to drive increase in 2021 inspections. 

The OSHA FY 2021 Congressional Budget Justification shows that in FY 2020 OSHA will receive an additional $12.7 million in funding that it will use to increase its Compliance Safety and Health Officer ranks by fifty from current staffing levels.  Notwithstanding the added staff the agency will add in the second half of 2020, OSHA anticipates a modest and temporary decrease in the number of FY 2020 inspections as compared with FY 2019 numbers, and   attributes the decrease to the process of onboarding and training compliance personnel before they can conduct inspections independently.

The anticipated decrease in inspection activity will be short-lived.  With the additional inspectors, the agency anticipates an additional 500 inspections will be conducted in FY 2021.  This reflects an anticipated increase FY 2021 inspections to 33,793 with a focus to the highest-impact and most complex inspections at the highest-risk workplaces.  Inspections of construction sites are expected to make up roughly 52% of all inspections.  In carrying out these inspections, OSHA will continue its focus on fall hazards and trenching operations.

In addition, in FY 2021, OSHA plans to continue the Site Specific Targeting (SST) inspections. The third year of SST inspections will target non-construction workplaces with 20 or more employees and is based on the injury and illness information employers submitted to OSHA through the Injury Tracking Application. OSHA will also “continue to focus on national and local emphasis programs that direct resources to industries with hazards that lead to severe injuries, illnesses, or death while balancing the requirement to respond to unprogrammed activity.”

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 Environmental Team.

By James L. Curtis, Brent I. Clark, Ilana R. Morady, Patrick D. Joyce, and Matthew A. Sloan

Seyfarth Synopsis: Important for healthcare workers involved in the care of patients with known or suspected COVID-19, the CDC late last week changed it’s personal protective equipment (PPE) guidance in light of N95 respirator shortages. In addition, OSHA issued updated guidance aimed at providing healthcare employers with alternative measures to protect healthcare workers from respiratory hazards associated with SARS-CoV-2, a/k/a/ COVID-19 or Coronavirus.

Notably, the CDC guidance now permits facemasks (also known as surgical masks) as an acceptable alternative to respirators when the supply chain of respirators cannot meet the demand. The CDC guidance states that available respirators should be prioritized for procedures that are likely to generate respiratory aerosols, which would pose the highest exposure risk to healthcare professionals. Such procedures are typically limited to ICUs and a few other inpatient settings; the vast majority of healthcare workers would not perform such procedures or be in proximity to such procedures.

The updated guidance cautions that when the supply chain of respirators is restored (N95’s in particular), facilities with an OSHA respiratory protection program should return to the use of respirators for employees who care for patients with known or suspected COVID-19.

The updated guidance also highlights the recommendation that eye protection, gown, and gloves continue to be used. Since viral droplets can infect a person through eye mucus, a surgical mask (or an N95 respirator) on its own would be ineffective in preventing infection if cough or sneeze droplets were to spray into a worker’s eyes.

The updated guidance is based on currently available information about COVID-19. Scientific evidence suggests that COVID-19 is most likely spread via droplet route, meaning the viral droplets leave a persons’ mouth or nose and fall to the ground. This is based on other known coronaviruses. Coronaviruses, including SARS-CoV-2, are not believed to be airborne, i.e. not spread via aerosol droplets. N95s and other respirators used in healthcare settings are designed to protect against aerosol droplets. Surgical masks, on the other hand, can provide protection against viral droplets from coughs or sneezes entering the wearer’s nose and mouth.

The relaxed PPE guidance from the CDC has incited criticism from organized labor, including the American Federation of Teachers, the Transport Workers Union of America, and National Nurses United. Nurses and other healthcare workers fear that weaker protections, together with longer and more frequent shifts, puts them at heightened risk of contracting and spreading the illness.

On March 14, 2020, OSHA updated its guidance on respiratory protection for healthcare workers, providing enforcement personnel with discretion to relax enforcement of annual fit testing requirement within the respiratory protection standard in situations where N95 respirators are in short supply. For example, conducting qualitative rather than destructive quantitative fit testing. In such situations, OSHA also cautions employers to “follow existing CDC guidelines, including taking measures to conserve supplies of these respirators while safeguarding [healthcare providers].” Further, OSHA recommends that healthcare workers be provided with other types of respiratory protection, “such as N99 or N100 filtering facepieces, reusable elastomeric respirators with appropriate filters or cartridges, or powered air purifying respirators (PAPR).”

OSHA’s also continues to refer employers to its prior COVID-19 guidance, which provides that “Workers, including those who work within 6 feet of patients known to be, or suspected of being, infected with SARS-CoV-2 and those performing aerosol-generating procedures, need to use respirators.” OSHA’s guidance also states, “When disposable N95 filtering facepiece respirators are not available, consider using other respirators that provide greater protection and improve worker comfort.” This guidance appears to be in conflict with both the updated CDC guidance and the updated OSHA guidance. However, in both guidance documents, OSHA points employers to CDC guidelines. Accordingly, it appears likely (but not certain) that OSHA will defer to the CDC in cases where N95s or other respirators are not available for healthcare workers treating known or suspected COVID-19 patients.

The CDC’s guidance, and an understanding of the coronavirus transmission route, also has implications for general industry. In particular, since facemasks do provide a measure of protection against COVID-19, some employees may wish to wear them in the workplace. While we recommend that employers take a flexible approach toward voluntary facemask use, and generally permit use unless there is a compelling business reason to avoid it, we also recommend that any employee who has COVID-19 symptoms be sent home immediately. In other words, employers should remove the source of the potential hazard such that no employee needs to wear a facemask to minimize or prevent exposure to the novel coronavirus.

Link to guidance: https://www.cdc.gov/coronavirus/2019-ncov/infection-control/control-recommendations.html

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 Andrew J. Sherman, Chantelle C. Egan, Anne R. Dana, and Patrick D. Joyce

Seyfarth Synopsis: As restaurant and hospitality consumers rethink their dining experiences, increased concerns are coming from food service providers about how to ensure food safety, reassure patrons, and address issues arising when workers get sick. The good news is that the food industry is already well-positioned because of its strict food safety standards.

Business owners and chefs need to consider how their business plans and business models need to shift, with a focus on delivery, catering, special events, and in-store promotions to keep facilities packed and tables turning. Restaurants and food service providers should also consider the below steps to help them prepare for Coronavirus-related issues.

Planning Ahead

One of the most important things for any employer is putting a plan in place for how to address these new concerns.

  • Open communication with employees and patrons
    • Provide detailed information to employees about Coronavirus, including the symptoms, where they can go if they believe they are sick, what steps the restaurant is taking to ensure the safety of workers’ and patrons—as well as provide regular updates as the situation evolves. Information is one of the best ways to calm frayed nerves.
    • Post signage upon entering restaurants and open letters on websites, and send emails to patrons of enhanced cleaning and personal hygiene procedures and measures. If your restaurant offers paid sick leave and/or health insurance, use this as an opportunity to toot your own horn, while also assuring patrons that you have stressed the importance to employees to stay home if feeling sick.
  • Develop a response plan
    • Reduced staff availability. An increased number of your staff may be staying home, whether because they or a loved one is ill, or due to preventative measures such as school closures.  Cross-training for various positions could ease the burden of reduced staff availability.
    • Reduction in demand. With individuals adopting new behaviors to curb the spread of Coronavirus (e.g., working remotely, not gathering in large groups), restaurants may experience a downturn in consumer demand.  Create strategies for alternative revenue sources. For example, offer delivery or catering.  Review contracts to determine how to handle cancellations for large parties or changing set delivery orders.
    • Supply chain. Access to ingredients, supplies, and other vital materials may be restricted as supply chains adjust to virus concerns. Research alternative sources of necessary supplies.
    • The need to close or reduce hours of operations may come on suddenly. Take measures to ensure that you can swiftly communicate with your employees and patrons. Also establish a plan for how to quickly undertake sanitation efforts.
    • Publicity. Get ahead of possible press coverage if there is a Coronavirus exposure by preparing a draft public response for the media, so you aren’t left scrambling.

Increase Sanitation Efforts

Using federal, state and local food safety laws and guidance as a starting point, now is the time to take your already rigorous cleaning routine to the next level.

  • Wash, rinse, repeat
    • Enhance frequency of cleaning, focusing on disinfecting high-touch public areas, such as door handles, tabletops, chairs, and counters, as well as credit card machines or other highly trafficked surfaces. Ensure that cleaning supplies comply with the EPA’s list of approved disinfectants for SARS-CoV-2 (which can be found here).
    • Consider additional sanitizing measures such as “deep cleans” at regular intervals and with increased frequency.
    • Increase handwashing requirements for employees, including instituting a schedule (such as every 30 or 60 minutes), as well as whenever employees touch their face, sneeze, cough, or use the restroom. Remind employees to wash their hands for at least 20 seconds using plenty of soap.
    • Provide hand sanitizer or personal disinfecting wipes for patrons as they enter the facility, demonstrating publicly your commitment to sanitation.
  • Limit hotspots for potential contamination
    • Remove self-serve condiment and utensil stations. Instead, have patrons ask for these items from gloved employees.
    • Suspend reusable cup options—whether for free refills or for patrons who bring their own.
    • Consider shifting to take-out options and evaluate best practices for providing patrons with food to go.

Sick Leave and Reporting Illness

Employers also need to quickly address what to do when employees are sick.

  • Review policies for how to handle employees who call out
    • Employers should review their sick leave policies, Family Medical Leave Act policies, and other relevant policies to determine what kind of leave must be provided to employees and under what situations.
    • Where feasible, some larger restaurants and chains have temporarily amended sick leave policies, including adding paid sick leave or “catastrophe pay” for up to 14 days for employees who have to be quarantined.
  • Pay attention to proposed new laws
  • Paid time off
    • Review any pay issues that may arise if employees are unable to come to work. Unless there is a contract or a collective bargaining agreement at issue, hourly employees typically work at-will and are not guaranteed wages or hours.  In other words, these employees do not need to be paid.  However, employers should ensure there are no local or state laws that require further consideration if schedules are suddenly changed.
    • For example, New York’s Fair Workweek law, which governs fast food restaurants, contains exceptions to the schedule change premium, and one such exception is a state of emergency declared by the governor of the State of New York or mayor of the city, which is currently the case in New York. Likewise, San Francisco’s Formula Retail Employee Rights Ordinances, which govern chain restaurants with at least 40 locations worldwide, provides a similar exception when “operations cannot begin or continue due to threats to employees or property, or when civil authorities recommend that work not begin or continue.”
  • Communicate expectations for employees to report potential exposure and/or diagnosis
    • Employers should remind employees about sick leave policies and strongly encourage employees who are not feeling well to stay home.
    • Employers should also implement requirements for reporting any possible exposure to or diagnosis of Coronavirus infection. This includes notifying other employees and/or patrons who may have been exposed.
  • Clarify expectations to managers for addressing employee and/or patrons displaying symptoms
    • Communicate with managers about how to address concerns with employees who appear sick and instructions on sending employees home. Put a policy in place with respect to what is required to return to work, such as a doctor’s note or a documented negative  Coronavirus test result.
    • Communicate with managers about what to do if a patron appears sick and is displaying symptoms associate with Coronavirus, which may include providing hand sanitizer and tissues, asking the patron to leave in extreme circumstances, and being sure to properly disinfect the area where the patron was after they leave.

The situation with Coronavirus, and how best to respond, is evolving rapidly.  Planning ahead, while remaining flexible, is key to navigating the changing norms and the impact of Coronavirus on your business.

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) or Workplace Counseling & Solutions Teams.

By James L. Curtis, Brent I. Clark, Mark A. Lies, II, Adam R. Young, Daniel R. Birnbaum, and Patrick D. Joyce

Seyfarth Synopsis: The WHO has officially declared COVID-19 to be a global “pandemic,” triggering new considerations for employers.

On March 11, 2020, the World Health Organization (“WHO”) released a “breaking” tweet quoting Doctor Tedros Adhanom Ghebreyesus, Director-General: “We have therefore made the assessment that #COVID19 can be characterized as a pandemic.”  According to the CDC definition, a “pandemic” refers to (1) a virus that can cause illness or death with (2) sustained person-to-person transmission of that virus and (3) evidence of spread throughout the world. As the WHO has the global reach to demarcate the global spread of the disease, individual countries look to the WHO to confirm a pandemic. The WHO cautioned that health officials have been unable to “control” pandemics in the past, and that “describing the situation as a pandemic does not change WHO’s assessment of the threat posed by this #coronavirus. It doesn’t change what WHO is doing, and it doesn’t change what countries should do.”  Accordingly, the WHO has not made additional recommendations based on the “pandemic” declaration.

As we have previously blogged, the CDC and OSHA have issued guidance on how to “reduce the impact of COVID-19 outbreak conditions on businesses, workers, customers, and the public.”  The EEOC had issued prior guidance on employee protections under the ADA in the event of a pandemic. The guidance from the federal agencies puts the burden on employers to identify health hazards specific to their workplaces and determine lawful actions based on the those hazards.

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) or Workplace Counseling & Solutions Teams.

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

Seyfarth Synopsis: OSHA has issued a new alert and guidance document on COVID-19 suggesting ways for employers to minimize and manage risks to their workforces.

Following the CDC, OSHA has now issued guidance intended to “reduce the impact of COVID-19 outbreak conditions on businesses, workers, customers, and the public.”  OSHA’s guidance, which draws heavily on information available through the CDC, is intended to help employers plan for a potential COVID-19 outbreak in the United States.  The guidance puts the burden on employers to identify risks specific to their workplace settings and to determine the appropriate control measures to implement.

OSHA’s guidance also identifies jobs that it considers very high or high risk, medium risk and lower risk.  Very high or high risk workers include those who interact with potentially infected travelers from abroad, including those involved in healthcare, travel, or waste management.

OSHA provides examples of how to reduce the risk of obtaining the virus, including washing hands with soap and water, avoiding close contact with people who are sick, and avoiding touching your eyes, nose or mouth with unwashed hands.  Additionally, the guidance includes discussion on appropriate engineering or administrative controls.

OSHA has also indicated that while no specific standard covers COVID-19 exposure, some OSHA requirements may apply to preventing occupational exposure, including OSHA’s personal protective equipment standards and OSHA’s general duty clause.  However, the guidance document does not discuss what, if any, enforcement activities OSHA may undertake.

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) or Workplace Counseling & Solutions Teams.

By Shireen Wetmore, Kerry M. Friedrichs, Benjamin D. Briggs, and Ilana R. Morady

Seyfarth Synopsis: The Department of Labor Standards and Enforcement, the Employment Development Department, and CalOSHA now have FAQs addressing how the COVID-19. coronavirus affects California businesses.

Perhaps you, like an author of this post, enjoy reading updates on COVID-19 (the shorthand for “coronavirus disease 2019”) while wearing a mask on airplane flights. Or maybe you’re not a coronavirus nerd but are just curious. How long does it take to properly wash my hands? Should I wear a mask? Is the coronavirus in my county? My neighborhood? If I feel a cold coming on, should I go to the doctor or call in sick? Or should I keep coming to work unless I get more serious symptoms? For these kind of questions, your best online source is the CDC website.

But what if you’re that most beleaguered of entities, a California employer? Where can you turn?

Below we have collected guidance issued to date by various California administrative agencies.  We also highlight some of the potential inconsistencies between the guidance from these agencies.  Take a dollop of hand sanitizer (if you can find any) and read on…

DLSE Issues Guidance for Employers

The Labor Commissioner’s Office has released FAQs on Laws Enforced by the Labor Commissioner [https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm] and the intersection with COVID-19, addressing key topics including sick leave and reporting time pay.

What about sick leave for employees who are quarantined? The guidance from the Division of Fair Labor Standards and Enforcement opines that employees are entitled to use available California Paid Sick Leave not only for illness due to COVID-19, but also for “preventative care.” Time spent in self-quarantine may qualify as preventative care if ordered by civil authorities.

Once sick leave is exhausted, employees may be able to use vacation or other paid time off if the employer’s policies would otherwise permit it.

Employers must not require that quarantined employees use their paid sick leave, but may set a two-hour minimum for each use of paid sick leave.

Employers must not ask about medical information, but may ask about recent travel to high-risk countries and may require that employees report such travel.

Shutdowns and Supply Chain Disruptions

Supply chain disruptions caused by quarantines in China, Italy and elsewhere may curtail operations by California businesses. Telling employees to stay home may trigger certain obligations for employers. For example, reporting time pay requirements may apply even if the reason for sending employees home relates to COVID-19 exposure, with certain exceptions when a quarantine is ordered by civil authorities.

If exempt salaried employees perform any work during a week in which the company is shut down, they may still be entitled to a full week’s salary, if they were ready and able to work but did not do so because the employer did not make work available.

EDD Guidance On Wage Replacement and Payroll Disruptions

The Employment Development Department (“EDD”) has also issued guidance for employees, in line with the DLSE guidelines, discussing how employees can replace wages lost due to coronavirus-related absences, through short term disability or unemployment insurance.

Employees may be able to claim short term disability while sick or quarantined, or paid family leave while caring for a sick or quarantined family member. In the event of a layoff or hours reduction, employees may also be entitled to UI payments as well.

Employers considering layoffs or work reductions because of COVID-19 should consult programs such as the EDD’s Work Sharing Program, which permits employers to reduce hours for employees, while providing wage replacement through UI, without laying off workers or removing them from the payroll.

The EDD also offers tax assistance to employers affected by COVID-19, including 60-day extensions to file state payroll reports or to deposit state payroll taxes without penalty or interest.

CalOSHA Advice on Making A Plan to Protect Workers

Last month we blogged about CalOSHA’s guidance on protecting workers from COVID-19 under the Aerosol Transmissible Diseases (ATD) standard, which applies to the healthcare industry and other establishments where risk of exposure to aerosol transmissible diseases may be higher, such as laboratories, correctional facilities, homeless shelters, and drug treatment programs.

Now, CalOSHA has issued interim guidance to general industry employers on how to protect workers from COVID-19. The guidance confirms the Division’s position that even employers not covered by the ATD standard must, under the CalOSHA regulatory scheme, protect employees from COVID-19 to the extent the disease is a hazard in the workplace. CalOSHA does not indicate whether employers should currently consider COVID-19 a hazard, but the analysis is essentially based on reasonable anticipation. In other words, can you reasonably anticipate that your employees are at risk of being exposed to the virus? Given the current state of affairs, CalOSHA appears to believe the answer is likely yes for most employers. So, what to do?

CalOSHA opines that general industry employers should implement measures to prevent or reduce infection hazards, such as implementing CDC recommendations, and also provide training to employees on their COVID-19 infection prevention methods.

The CDC’s infection prevention measures include:

  • Actively encouraging sick employees to stay home
  • Sending sick employees, particularly those with respiratory illness symptoms, home immediately
  • Training employees on important topics such as:
    • Hand hygiene,
    • Cough and sneeze etiquette,
    • Avoiding close contact with sick persons
    • Avoiding touching eyes, nose, and mouth with unwashed hands
    • Avoiding sharing personal items with coworkers
    • Checking the CDC’s Traveler’s Health Notices
  • Providing tissues, no-touch disposal trash cans, and hand sanitizer for use by employees
  • Performing routine environmental cleaning of shared workplace equipment and furniture

CalOSHA also encourages employers to implement the CDC’s recommendation for creating an infectious disease outbreak response plan. Such plans may include canceling group activities or events, increasing telecommuting opportunities, and other methods of minimizing exposure among employees (and with the public).

The guidance notes that employer responsibility for addressing the COVID-19 hazard arises from the CalOSHA Injury Illness Prevention Plan standard (8 CCR 3203). Thus, CalOSHA will argue that an employer’s failure to address the potential COVID-19 hazard could result in liability. The guidance also suggests that certain employers may be required to provide Personal Protection Equipment (PPE) under the CalOSHA PPE standard (8 CCR 3380) or to implement administrative and engineering controls under the Control of Harmful Exposures standard (8 CCR 5141).

This CalOSHA stance is significant, because CalOSHA is suggesting that some general industry employers may have to provide respirators, such as N95 masks. Yet employers cannot distribute these masks without implementing procedures such as medical clearance and fit testing. If you are considering the use of respirators in the workplace, or have employees who wish to wear them voluntarily, contact your favorite Seyfarth attorney for further guidance. Note that surgical masks are not considered respirators and hence are not subject to CalOSHA regulatory requirements, but the guidance reminds employers that surgical masks do not protect persons from airborne infectious diseases and cannot be relied upon for novel pathogens.

The guidance also highlights some risks for employers. For example, the CDC guidance encourages employers to inform fellow employees when an employee has been exposed to COVID-19. Yet employers must be cautious and maintain confidentiality consistent with the requirements of the Americans with Disability Act (“ADA”) and California laws. As highlighted by the DLSE guidance above, employers must not ask about medical information and should be careful in addressing concerns (and suspicions) about an employee’s health, symptoms, or potential exposure to COVID-19.

Legislation in the Pipeline

Assemblywoman Lorena Gonzalez of San Diego (of AB5 fame) has authored Assembly Bill 3123, a bill seeking to protect workers facing quarantine because of COVID-19. Her bill aims to provide job protection for quarantined employees who miss work, allow employees to use sick leave while quarantined, and to provide additional protection for parents whose children’s schools are closed. This latter provision may become increasingly important as many schools across California [https://www.sacbee.com/news/local/article241009211.html], including the entire Elk Grove School District, the fifth largest in the state, are closing their doors in an effort to prevent spread of COVID-19.

Just the Beginning

Politicians and health experts alike are warning that the outbreak is likely to expand, with school closures, supply chain disruptions, and related economic upheaval continuing in the coming weeks and months. Other California agencies are working to provide guidance for employers, as well as various federal and local agencies. We anticipate that these guidelines will evolve and be updated over the course of coming weeks. We will continue to update this blog with new developments. Check back for updates and consider reaching out to your employment counsel as you prepare to address the impacts of the novel coronavirus on your company and workers.

Stay safe, wash your hands, and feel free to contact the authors or any other member of our dedicated Coronavirus Task Force with any questions or to let us know what your company is doing about COVID-19.

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

 

By Patrick D. Joyce, Ilana R. Morady, Adam R. Young, and Daniel R. Birnbaum

Seyfarth Synopsis: Seyfarth Shaw’s OSHA/MSHA group is at the ABA’s Occupational Safety and Health Law Committee Midwinter Meeting this week. Today, we heard from panels that discussed California Workplace Violence and Indoor Heat Rules, Issues under the Freedom of Information Act, OSHA’s silica standard, and criminal prosecutions under the OSH and MSH Acts.

We are attending the ABA Occupational Safety and Health Law Meeting this week in Palm Springs, California. Representatives from the OSH Review Commission, the MSH Review Commission, Administrative Law Judges, OSHA, MSHA, the U.S. Department of Labor Solicitor’s Office, and OSHA state plans were present.

Today is the final day of the OSHA Midwinter meeting that earlier this week included discussions on trends in OSHA enforcement as well as the latest updates on Coronavirus.

The morning session included a judges panel featuring five Occupational Safety and Health Review Commission Administrative Law Judges who provided attorneys in attendance instruction on best practices during hearing, including navigating discovery disputes, motion practice, and conduct during trial.

California Regulations on Indoor Heat Illness

The meeting also included panels on California’s the imminent regulations covering (1) indoor heat illness and (2) workplace violence prevention in all industries.

Those who have been closely following the rulemaking know that the latest draft of the soon-to-be standard was in April 2019, almost one year ago. Numerous comments on the April 2019 draft were provided by regulated industries and other interested parties, so the consensus is that there likely will be significant changes in the next draft.  Representatives of regulated industries were vocal about criticisms, but also expressed hopefulness that their criticisms will be considered in the final draft. Some of the key criticisms voiced were:

  • The 82 degree threshold is still too low. Industry representatives were pleased that this is 2 degrees higher than the original 80 degree threshold, but there’s a push to get to 85 degrees. The likelihood of the Division raising the threshold to 85, however, is uncertain.
  • Much discussion was focused on how the draft indoor heat illness requirements are far more stringent than the existing outdoor heat illness requirements. Troublesome to industry is that there’s apparently little to no data suggesting that indoor heat is actually a significant hazard to employees. The Division has yet to provide any data-backed rational basis for provisions in the proposed standard, leaving the regulated industry with a sense of arbitrariness underlying the requirements.
  • The proposed regulation addresses high radiant areas, in other words places where there is machinery or equipment generating heat, e.g. an oven in a bakery. This means that employers will need to be mindful of assessing the entire workplace and gauging the temperature in multiple areas. Most of an employer’s facility could be unregulated, but if there are any locations where employees work that meet or exceed threshold temperatures, those areas will be subject to the rule.
  • Representatives expressed concern about the burdensome recordkeeping requirements under the draft. As of now, employers will be required to maintain temperature logs for 12 months. The good news, however, is that the original draft would have considered these logs “exposure records” subject to a 30 year retention schedule.
  • The draft includes a provision that essentially says CalOSHA can still cite employers under the IIPP standard to the extent an indoor work area is not covered by the indoor heat illness prevention standard. CalOSHA has already used the IIPP standard to cite employers for indoor heat hazards, and this provision, if part of the final rule, will continue to allow them to do so.
  • There are numerous scenarios for which application of the proposed standard is unclear, or will be potentially infeasible or highly burdensome. For example, some employers have isolated buildings that contain equipment which needs to be examined from time to time and are worried that under the new rule, these buildings will be subject to engineering controls such as air conditioning.

California Regulations on Workplace Violence

In response to questions and comments from constituents, the Division said the current draft of the proposed general industry workplace violence regulation will be revised “materially.” Part of the revision may involve a roll back, which pleased employer representatives because the rule in its current form is voluminous and complex. But again, that’s just rumor. The final rule remains to be seen, and consensus is that it may be a while before a final rule is promulgated. Interested parties were reminded that when the next comment period opens up, be sure to submit feedback so that it may be considered in the next draft.

Freedom of Information Act

Seyfarth attorney Adam R. Young served on a panel that discussed protecting employer documents from disclosure under the Freedom of Information Act (“FOIA”).  Adam discussed the legal standards governing FOIA under new Supreme Court precedent.  He provided best practices to help employers protect confidential and proprietary information provided to OSHA during inspections from disclosure to third parties through FOIA.  He addressed appropriate markings and disclaimers for preserving confidentiality rights, and how to craft responses to reverse FOIA inquires to minimize production and employer liabilities.

OSHA’s Silica Standard for Construction

A panel also discussed the impact and enforcement of OSHA’s silica standard for construction, which requires employers to limit worker exposures to respirable crystalline silica. The panel discussed OSHA’s FAQ for employers related to implementation and enforcement of the construction crystalline silica standard. The panel answered questions related to the upcoming National Emphasis Program for crystalline silica, including its intended implementation in mid-2020, as well as an upcoming OSHA compliance directive regarding crystalline silica. The main takeaway: OSHA is serious about enforcement of the requirements contained in the crystalline silica standard including medical surveillance, regulated areas, and compliance with Table 1 exposure control methods.

Criminal Enforcement

Finally, we heard from a panel on federal and state prosecutions for criminal violations related to workplace safety and health.   In a case involving a willful violation relating to an employee fatality, federal OSHA may refer the matter to the U.S. Department of Justice for criminal prosecution. The Department of Labor has also referred criminal violations relating to conspiracy, aiding and abetting, false statements, obstruction, witness tampering, destruction of evidence, and aiding and abetting.  In California, the Bureau of Investigation opens a criminal investigation into every fatality case and refer the cases to state prosecutors for “appropriate action.”  The referral can take place prior to the issuance of citations, and state criminal prosecutors may play an active role in the inspection.  Total criminal penalties in California, when including court costs and victim restitution, can run more than $4.5m.

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, Patrick D. Joyce, Ilana Morady, Adam R. Young, and Daniel R. Birnbaum

Seyfarth Synopsis: Seyfarth Shaw’s OSHA/MSHA group is at the ABA’s Occupational Safety and Health Law Committee Midwinter Meeting this week. Today, we heard from the Director of the National Institute for Occupational Safety and Health on Coronavirus and Opioids, a panel who discussed the impact of technology in safety and health programs and OSHA inspections, and recent Executive Orders. 

We are attending the ABA Occupational Safety and Health Law Meeting this week in Palm Springs, California. Representatives from the OSH Review Commission, the MSH Review Commission, Administrative Law Judges, OSHA, MSHA, the U.S. Department of Labor Solicitor’s Office, and OSHA state plans were present.

A hot topic of the conference has been the ongoing spread of Coronavirus and the related issues faced by employers.  Seyfarth has developed a portal that is designed to help employers stay prepared during this time, including legal updates.

The morning session featured Dr. John Howard, the Director for the National Institute for Occupational Safety and Health.  Dr. Howard fielded our questions related to Coronavirus, SARS-CoV-2, or COVID-19.  Specifically, we were able to ask how long an individual could contract the virus from touching an object that was previously touched by an infected person.  Dr. Howard noted that similar viruses can exist on a surface from a few hours to up to a few weeks.  At this point, it is not clear where COVID-19 falls on this spectrum.

For those in the healthcare industry, the NIOSH Director noted that earlier this week the FDA granted temporary approval for healthcare personnel to purchase N95 respirators from the industrial market (i.e., use NIOSH-approved respirators).  The authorization also permits extended use of respirators.  Dr. Howard also compared the Coronavirus to the flu and indicated that Coronavirus, at 3.4%, currently has a higher fatality rate than Influenza.  However, he observed that there have been approximately 30,000 deaths from Influenza this year (while there are 40-60,000 in a given year).  He stated that both Coronavirus and Influenza clinically present in the same way: fever, cough, and shortness of breath.  Ultimately, he noted that it was still hard to draw comparisons based on how new Coronavirus is.

On the issue of quarantines, Dr. Howard indicated that health authorities were past the quarantine phase, which are not going to be primarily used as a public health tool.  Rather, health authorities have shifted to the treatment phase, given the distribution of the virus.  With regard to travel, the United States has issued guidance restricting travel to China, Iran, Italy, South Korea and Japan.  As the outbreak becomes more widespread, we will see more travel advisories.  Dr. Howard also spoke on testing for the virus, including having testing available across the country by the end of this week.  Finally, Dr. Howard indicated that it is likely this event will become a pandemic in the future.

The NIOSH Director also discussed the ongoing opioid epidemic.  Data shows the exponential growth in the abuse of highly addictive synthetic opioids (like fentanyl).  95% of overdose deaths have occurred amongst working age Americans.  Additionally, he observed that workers’ compensation claims from opioid usage are higher in the South and in the construction industry.  Significantly, he observed that the amount of injuries or illnesses that occur in the workplace correlates to more opioid deaths.  He also highlighted a case where an employer was required to pay $1.8 million for not accommodating a disabled employee who used opioids under the Americans with Disabilities Act.

We also heard from a panel on the impact of technology in the workforce.  In what may have been a first at an OSHA conference, during the presentation, a local union interrupted the presentation to protest what it alleged as safety issues that could impact its members.  This provided a first-hand example of how a company’s health and safety program can intersect with union activity.

Finally, a representative from the Department of Labor discussed the use of unmanned aerial systems (i.e., drones) by OSHA.  OSHA highlighted that it was using these devices for inspection activities, including observing hazards and issuing citations.  OSHA is also using drones to take measurements, access remote areas, and take recordings.  The drones have an increased ability to observe more workplace conditions than a traditional Compliance Officer.  Use of such devices may lead to more thorough and comprehensive inspections and additional citations for employers.

More to come from the conference tomorrow…

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 Rebecca A. Davis, Brent I. Clark, Jeryl L. Olson, Patrick D. Joyce, Ilana R. Morady, and Kay R. Bonza

Seyfarth Synopsis: The United States Environmental Protection Agency (EPA) released a list of disinfectants to use against SARS-CoV-2, the novel coronavirus that causes COVID-19.

EPA today released a list of disinfectants to use against SARS-CoV-2 that qualified through EPA’s Emerging Viral Pathogen Program. We previously blogged on EPA’s guidance for utilizing EPA-registered disinfectant products against emerging pathogens, such as SARS-CoV-2, the pathogen which causes the disease known as COVID-19, that are not otherwise identified on the product’s label.

The list contains a wide array of publically- and commercially-available disinfectants, including sprays, gels, wipes, and dilutable liquids. As a result of EPA’s publication, manufacturers with listed products are now are allowed to make “off label” claims as to the product’s effectiveness for use against SARS-CoV-2, for example in social media, technical literature, and other advertising. Prior to publication of the list, manufacturers faced potential penalties from EPA if they made claims that their product was effective against SARS-CoV-2.

According to the U.S. Centers for Disease Control and Prevention, good hygiene practices are still the best defense against contracting COVID-19, but cleaning and disinfecting touched objects and surfaces with a household cleaning spray or wipe may help prevent person-to-person spread. Now, EPA has indicated which household cleaning sprays or wipes it considers approved for such uses. Though some disinfectants may be in short supply, manufacturers are ramping up production in an attempt to meet demand.

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

By Adam H. Laughton, Mark A.Lies, II, and Daniel R. Birnbaum

Seyfarth Synopsis: With coronavirus infections continuing to spread both in the US and abroad, fears of a pandemic with serious disruptions to the economy and everyday life continue to grow. Concerns are compounded for healthcare providers and facilities, who are not only employers but are also in the front lines of the response. An outbreak among healthcare professionals and those who work with providers and facilities not only impacts their finances, but can cascade into a larger healthcare crisis. Below we present a series of recommendations and other guidance focused on helping healthcare providers and facilities to prepare for a potential pandemic.

Recent CMS and CDC Guidance

Since the beginning of February 2020, as concerns about coronavirus reaching the US began to grow, both the Centers for Medicare & Medicaid Services (CMS) and the Centers for Disease Control and Prevention (CDC) have published guidance specifically for healthcare providers and facilities. The CDC’s guidance appears in three documents, (1)  Interim U.S. Guidance for Risk Assessment and Public Health Management of Healthcare Personnel with Potential Exposure in a Healthcare Setting to Patients with Coronavirus Disease 2019 (COVID-19) (“Interim Guidance”), (2) Interim Infection Prevention and Control Recommendations for Patients with Confirmed Coronavirus Disease 2019 (COVID-19) or Persons Under Investigation for COVID-19 in Healthcare Settings (“Infection Control Guidance”); and (3) Coronavirus Disease 2019 (COVID-19) Hospital Preparedness Assessment Tool (the “Assessment Tool”). The Interim Guidance contains a rubric for categorizing personnel based on their risk of exposure, as well as recommendations for monitoring and work restrictions (even for asymptomatic individuals). The Infection Control Guidance sets forth specific recommendations aimed at healthcare facilities and providers focused on the following areas: minimizing exposure, training, use of personal protective equipment (PPE), visitation and access, engineering controls, personnel management, environmental controls and reporting. The Assessment Tool is a useful checklist of elements to be assessed and actions taken by professionals and facility personnel to prepare for a pandemic.

The CMS guidance, Information for Healthcare Facilities Concerning 2019 Novel Coronavirus Illness (2019-nCoV) (Ref: QSO 20-09-ALL) (“CMS Guidance”) references the CDC guidance above and adds that infectious diseases should be addressed in a provider’s emergency preparedness plans and policies, which are required under recent regulations. CMS also adds a warning that state and federal facility surveyors (i.e. inspectors) are being trained and advised to closely observe facility staff hand hygiene practices, violations of which could lead to sanctions, penalties or other disruptions in licensure or Medicare/Medicaid program participation.

Advice for Healthcare Providers and Facilities as Employers

Healthcare providers and facilities not only have obligations to their patients and the public at large, but also to their own employees. All employers in the US have a “general duty” under the Occupational Safety and Health Act to provide a “safe and healthful workplace.”  Where there is a “recognized hazard” (such as a pandemic), employers must develop plans to protect employees. Importantly, in healthcare facilities, this obligation extends to employees or contractors of other entities who perform work at the hospital (e.g. members of the hospital medical staff). Other potential areas of intersection with employer liabilities include: worker’s compensation programs, disability benefits, Family and Medical Leave Act benefits, the American with Disabilities Act, and general premises liability (which may be mitigated via insurance). Additional detail on the above can be found in our Legal Update on Coronavirus: Employer Liability Issues. Note also that the materials form our comprehensive webinar are available. See the Coronavirus webinar presentation slides and the presentation recording.

HIPAA

While managing high-risk and high stakes patients and medical conditions such as coronavirus, providers and facilities must also keep in mind their HIPAA obligations to keep patient health information private and secure. The Department of Health and Human Services Office of Civil Rights (OCR) recently issued a bulletin to remind healthcare providers and facilities of their obligations under HIPAA. The OCR reiterated that “covered entities” (and in some cases, their business associates) may use or disclose patient information for treatment purposes, to public health authorities (CDC, local or state health department), and (with a patient’s permission) to family members  and others involved in the patient’s care. In limited circumstances, a covered entity can disclose information  to others as necessary to prevent a serious and imminent threat, but this disclosure is only permitted to those in a position to prevent or mitigate the threat. Importantly, health care providers and facilities may not release information about a particular identifiable patient to the media without the patient’s consent or other limited and specific circumstances. A pandemic outbreak does not excuse a facility from observing the required HIPAA security safeguards.

Other Recommendations

Following the CMS and CDC guidance and other prudent advice, it is recommended that all healthcare providers and facilities do the following:

  • Review infection control and prevention policies and procedures;
  • Additional training for all personnel, management and leadership on infection control, hand hygiene and other aspects of pandemic response;
  • Review and update, as necessary, emergency preparedness plans to include contingencies for pandemic outbreaks;
  • Review inventory of PPE (including masks and gloves for patients and others in waiting areas);
  • Planning and additional training for public relations and media personnel regarding disclosure or release of information about infected or potentially infected patients;
  • Evaluate telemedicine capabilities and capacity to continue to operate if key personnel are infected or quarantined, as well as circumstances when locations need to be closed;
  • Assess telephone and receptionist scripts to assure uniform response and presentation to patients;
  • Assess workforce for risk factors and exposure, as well as regular monitoring and observation of employees and other personnel, particularly those with identified risk factors;
  • Evaluate the need to adjust and space scheduling of patients to minimize contact; and
  • Discuss pandemic preparation with ancillary service providers and recipients of referrals (e.g. labs, imaging, etc.).

All levels of leadership and management of healthcare providers and facilities (up to and including its governing body) should be regularly and actively engaged in planning, reporting and responding to potential coronavirus infections and precautions within that organization.

Many thanks to Clifford C. Dacso, M.D. of Baylor College of Medicine, for his assistance in preparing this article.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Health Care, Life Sciences & Pharmaceuticals, Workplace Safety and Health (OSHA/MSHA), or the Workplace Counseling & Solutions Teams.