By Helen M. McFarland and Amanda J. Hailey

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

As set forth in our May 28, 2020 blog post “Prohibited Business Activities and Conditions for Operations,” the State of Washington is enforcing its Emergency COVID-19 Safety Rules.

The Department of Labor and Industries (L&I) recently issued its first citation to a fitness gym that operated in violation of Governor Inslee’s Safe Start phased reopening plan. The Gym was cited and fined $9,639 for noncompliance.

The facility operates in Yakima county, which has many active cases of coronavirus (COVID-19) and currently remains in Phase 1 of the Governor’s Safe Start plan. During this phase, only essential businesses and other limited operations may remain open.  L&I learned of the facility’s violations after receiving complaints and a direct referral from the Yakima Health District. The company was contacted many times before L&I went out to conduct its investigation.

Employees at Washington’s Emergency Operations Center (EOC) have been contacting businesses about compliance with the rules. When employers refuse to follow the Safe Start plan, L&I may send a warning letter to let the business know that it is at risk of being fined if it remains open. Employers who remain in noncompliance may receive a visit from a Department of Occupational Health (DOSH) inspector, who will conduct an inspection and may issue a citation.

This serves as an important reminder. Employers should not rush to re-open beyond the boundaries of Washington’s Safe Start Plan. Operating outside the plan puts businesses at risk of citations and fines.

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, Patrick D. Joyce, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: OSHA Administrator Loren Sweatt recently blogged related to heat illness in the workplace as “forecasters are calling for above-average heat in some parts of the country and scorching temperatures in July and August.” Sweatt suggests six items to keep in mind as employers prepare for a hot summer.

We had previously blogged, Heat Illness Strikes Back: Return to Work’s Untold Story, that as we approach the heat of the summer season and as employers begin to return to work (RTW) 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. As employers focus on COVID-19 RTW efforts, they should remain aware of risks of safety rule violations, injuries, and heat illness. Loren Sweatt, OSHA’s Acting Administrator, recently blogged on this topic.

In Sweatt’s blog, she provided six tips to prepare employers and employees for a hot summer:

  1. Memorize these three words: “Water. Rest. Shade.” Ideally, workers should drink cool water as often as possible, but they may need sports beverages containing balanced electrolytes if they are sweating for several hours at a time. Employers should make sure workers can access shaded or air-conditioned rest areas to cool down as needed.
  2. New and temporary workers are most at risk. The body needs time to build a tolerance to heat, which is why more than 70% of outdoor heat fatalities occur during a worker’s first week of working in warm or hot environments. The process of building tolerance is called “acclimatization.” Learn how to create a heat illness prevention plan and be sure to supervise new employees until they are fully acclimatized.
  3. Indoor workers also can suffer from heat illness. Kitchens, laundries, warehouses, foundries, boiler rooms and many other indoor work environments can become dangerously hot. See a list of industries where OSHA considers workers to be at high risk.
  4. Use engineering controls or modify work practices to protect employees. For example, try increasing ventilation using cooling fans, schedule work at a cooler time of the day, and rotate job functions among workers to minimize heat exposure. Find additional best practices from OSHA here.
  5. Familiarize everyone at your workplace with the signs and symptoms of heat illness and make sure everyone knows what to do in an emergency.
    • Common heat exhaustion signs are: dizziness, headaches, cramps, sweaty skin, nausea and vomiting, weakness and a fast heartbeat. Heat stroke symptoms may include red, hot, dry skin; convulsions; fainting; very high temperature and confusion.
    • Pair workers with a buddy to observe each other for early signs and symptoms of heat illness.
    • Employees should call a supervisor for help if they believe someone is ill – and 911 if a supervisor is not available, or if someone shows signs of heat stroke.
  6. Download the OSHA-NIOSH Heat Safety App on your iPhone or Android device to help calculate the heat index at your worksite. The app provides specific recommendations for planning work activities and preventing heat illness based on the estimated risk level where you are working.

As workers continue 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. 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 Jaclyn Gross and Chantelle C. Egan

Seyfarth Synopsis: As counties begin loosening local restrictions and summer approaches, and in an effort to preempt a rise in COVID-19 cases, the California Department of Public Health issued a directive mandating that residents statewide wear face coverings.

Before last week, California only recommended that residents wear face coverings as a precautionary measure with COVID-19, and the State left it in local governments’ hands to decide whether a mandatory requirement was necessary. As summer heats up and tempts residents to spend more time outside and congregate, Governor Newsom and the California Department of Public Health have issued a mandatory face covering directive to mitigate the spread of COVID-19 throughout California.

Masks on Top!

Under this new directive, unless a resident is specifically exempted, face coverings must be worn statewide in the following “high-risk” circumstances:

  • Inside of, or in line to enter, any indoor public space;
  • Obtaining services from the healthcare sector in settings including, but not limited to, a hospital, pharmacy, medical clinic, laboratory, physician or dental office, veterinary clinic, or blood bank;
  • Waiting for or riding on public transportation or paratransit or while in a taxi, private car service, or ride-sharing vehicle;
  • Engaged in work, whether at the workplace or performing work off-site, when:
    • Interacting in-person with any member of the public;
    • Working in any space visited by members of the public, regardless of whether anyone from the public is present at the time;
    • Working in any space where food is prepared or packaged for sale or distribution to others;
    • Working in or walking through common areas, such as hallways, stairways, elevators, and parking facilities;
    • In any room or enclosed area where other people (except for members of the person’s own household or residence) are present when unable to physically distance.
  • Driving or operating any public transportation or paratransit vehicle, taxi, or private car service or ride-sharing vehicle when passengers are present. When no passengers are present, face coverings are strongly recommended.
  • While outdoors in public spaces when maintaining a physical distance of 6 feet from persons who are not members of the same household or residence is not feasible.

West Coast Represent: County, City, and Industry Guidance

While the statewide directive does not specifically address California employers’ obligations, employers should keep in mind that more restrictive local orders will control. Accordingly, if a county or citywide order mandates wearing face coverings under additional sets of circumstances, or orders employers to provide face coverings to employees, the business must still abide by those requirements. Likewise, FAQs also issued last week direct Californian employees to industry guidance for additional situations warranting mask wearing at work.

Workplace Solutions

We are continuing to monitor California COVID-19 developments. If you have questions, please be sure to visit Seyfarth’s COVID-19 Resource Center, or contact your favorite Seyfarth attorney directly.

Edited by Coby Turner

By James L. Curtis, Ilana R. Morady, Adam R. Young, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: Occupational Safety and Health Administration (OSHA) has issued Guidance to assist employers reopening non-essential businesses ensure the safety of their employees and the public during the evolving coronavirus pandemic.

The new Guidance on Returning to Work (Reopening Guidance) is the most comprehensive update from OSHA since it released its Guidance on Preparing Workplaces for COVID-19 at the very beginning of the coronavirus pandemic. OSHA’s new and prior guidance should be complemented by the Centers for Disease Control and Prevention’s (CDC) Guidelines for Opening Up America Again. OSHA notes that its new “guidelines provide general principles for updating restrictions originally put in place to slow the spread of the coronavirus. During each phase of the reopening process, employers should continue to focus on strategies for basic hygiene, social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training.”

OSHA initially suggests that employers continue to consider ways to use workplace flexibilities, such as remote work and alternative business operations, to provide goods and services to customers.

If remote work is not possible for a business, the Reopening Guidance states that “for all phases of reopening, employers should develop and implement policies and procedures that address preventing, monitoring for, and responding to any emergence or resurgence of COVID-19 in the workplace or community. Employers should continue these practices to the extent possible to help prevent COVID-19 from emerging or resurging in their workplace.”

The Guidance suggests that employers adopt what it refers to as “Guiding Principles” such as:

  • Hazard assessment, including practices to determine when, where, how, and to what sources of SARS-CoV-2 workers are likely to be exposed in the course of their job duties.
  • Hygiene, including practices for hand hygiene, respiratory etiquette, and cleaning and disinfection.
  • Social distancing, including practices for maximizing distance between all people (including workers, customers, and visitors) to the extent feasible.
  • Identification and isolation of sick employees, including practices for worker self-monitoring or screening, and isolating and excluding from the workplace any employees with signs or symptoms of COVID-19.
  • Return to work after illness or exposure, including after workers have symptoms or a positive diagnosis of COVID-19, or complete recommended self-quarantine after exposure to a person with COVID-19.
  • Controls, including engineering and administrative controls, safe work practices, and personal protective equipment (PPE) selected as a result of an employer’s hazard assessment.
  • Workplace flexibilities, including those concerning remote work (i.e., telework) and sick leave.
  • Training, including practices for ensuring employees receive training on the signs, symptoms, and risk factors associated with COVID-19; where, how, and to what sources of SARS-CoV-2 employees might be exposed in the workplace; and how to prevent the spread of SARS-CoV-2 at work.
  • Anti-retaliation, including practices for ensuring that no adverse or retaliatory action is taken against an employee who adheres to these guidelines or raises workplace safety and health concerns.

OSHA reminds employers that its Reopening Guidance is not a standard or regulation and does not create new legal obligations. However, employers who fail to follow the Reopening Guidance, or other OSHA or CDC guidance, could potentially be cited under OSHA’s General Duty Clause, which requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.

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 Edward V. Arnold

Seyfarth Synopsis: On June 1, 2020, the Criminal Division of the US Department of Justice (DOJ) released an updated guidance document for white-collar prosecutors on the evaluation of corporate compliance programs. The document, entitled “Evaluation of Corporate Compliance Programs,” updates a prior version issued in April 2019, and seeks to better assist prosecutors in assessing the effectiveness of a corporation’s compliance program for the purpose of determining how and whether to penalize the corporation as a result of a criminal investigation. This updated guidance follows various iterations of compliance measures established by DOJ to better ensure the integrity of corporate compliance programs.

Prior DOJ guidance on corporate compliance programs

In March 2017, the DOJ’s Fraud Section released a guidance document entitled Evaluation of Corporate Compliance Programs which sets forth “specific factors that prosecutors should consider in conducting an investigation of a corporate entity, determining whether to bring charges, and negotiating plea or other agreements.” The document sets forth 11 key compliance program evaluation topics, along with a series of “common questions that the Fraud Section may ask in making an individualized determination” regarding corporate compliance programs.

In April 2019, DOJ’s Criminal Division updated the document to better harmonize the guidance with other DOJ guidance and standards while providing additional context to the multifactor analysis of a company’s compliance program. That document sets forth topics that the Criminal Division has frequently found relevant in evaluating a corporate compliance program, organizing them around three overarching questions that prosecutors should ask in evaluating compliance programs: First, is the program well-designed? Second, is the program effectively implemented? And, third, does the compliance program actually work in practice?

Updated DOJ guidance

DOJ’s updated guidance revises and refines the evaluation factors for prosecutors to consider when assessing penalties against corporate wrongdoers arising out of criminal investigations. These factors include “the adequacy and effectiveness of the corporation’s compliance program at the time of the offense, as well as at the time of a charging decision” and the corporation’s remedial efforts “to implement an adequate and effective corporate compliance program or to improve an existing one.” Specifically, prosecutors are looking closely at a corporation’s compliance program to determine the appropriate (1) form of any resolution or prosecution; (2) monetary penalty, if any; and (3) compliance obligations contained in any corporate criminal resolution.

At the outset, the updated guidance recognizes that every criminal investigation is context-dependent, and that because risk profiles and solutions vary among companies, an “individualized determination” should be made in lieu of a “rigid formula.” Among the various individualized factors that should be considered include “the company’s size, industry, geographic footprint, regulatory landscape, and other factors, both internal and external to the company’s operations, that might impact its compliance program.” Despite the individualized determinations, the guidance refers prosecutors to the three foundational questions: (1) is the program well-designed?; (2) is the program effectively implemented?; and (3) does the compliance program actually work in practice?

Is the corporation’s compliance program well designed?

Part I of the guidance discusses various hallmarks of a well-designed compliance program relating to risk assessment, company policies and procedures, training and communications, confidential reporting structure and investigation process, and third-party management. Within this framework, prosecutors should consider the following:

  • why the company has chosen to set up the compliance program the way that it has, and why and how the company’s compliance program has evolved over time;
  • whether the program is appropriately designed to detect the particular types of misconduct most likely to occur in a particular corporation’s line of business and complex regulatory environment;
  • [t]he effectiveness of the company’s risk assessment and the manner in which the company’s compliance program has been tailored based on that risk assessment and whether its criteria are periodically updated;
  • whether the company has a code of conduct that sets forth, among other things, the company’s commitment to full compliance with relevant Federal laws that is accessible and applicable to all company employees;
  • whether the company has established policies and procedures that incorporate the culture of compliance into its day-to-day operation;
  • the steps taken by the company to ensure that policies and procedures have been integrated into the organization, including through periodic training and certification for all directors, officers, relevant employees, and, where appropriate, agents and business partners;
  • whether the compliance program is being disseminated to, and understood by, employees in practice in order to decide whether the compliance program is truly effective;
  • whether the company’s complaint-handling process includes proactive measures to create a workplace atmosphere without fear of retaliation, appropriate processes for the submission of complaints, and processes to protect whistleblowers;
  • the company’s processes for handling investigations of such complaints, including the routing of complaints to proper personnel, timely completion of thorough investigations, and appropriate follow-up and disciplines; and
  • the extent to which the company has an understanding of the qualifications and associations of third-party partners, including the agents, consultants, and distributors that are commonly used to conceal misconduct, such as the payment of bribes to foreign officials in international business transactions. Note that DOJ has separate guidance addressing the Foreign Corrupt Practices Act.

The guide also recognizes that an effective compliance program will include a robust and comprehensive due diligence program for any acquisition targets. This another factor prosecutors should consider when assessing the design of a compliance program, along with the company’s process for timely and orderly integration of the acquired entity into existing compliance program structures and internal controls.

Is the corporation’s compliance program adequately resourced and empowered to function effectively?

Part II recognizes that even a well-designed compliance program may be unsuccessful in practice if its implementation is flawed. Thus, prosecutors are encouraged to ferret out whether the compliance program is a “paper program” or one “implemented, reviewed, and revised, as appropriate, in an effective manner.” Various factors are provided to assist in this regard, including a review of commitment by senior and middle management, autonomy and resources, and incentives and disciplinary measures. Within this framework, prosecutors should consider the following:

  • the extent to which senior management have clearly articulated the company’s ethical standards, conveyed and disseminated them in clear and unambiguous terms, and demonstrated rigorous adherence by example;
  • how middle management, in turn, have reinforced those standards and encouraged employees to abide by them;
  • how the compliance program is structured;
  • the sufficiency of the personnel and resources within the compliance function, in particular, whether those responsible for compliance have: (1) sufficient seniority within the organization; (2) sufficient resources, namely, staff to effectively undertake the requisite auditing, documentation, and analysis; and (3) sufficient autonomy from management, such as direct access to the board of directors or the board’s audit committee;
  • whether internal audit functions [are] conducted at a level sufficient to ensure their independence and accuracy, as an indicator of whether compliance personnel are in fact empowered and positioned to effectively detect and prevent misconduct;
  • [t]he resources the company has dedicated to compliance, [t]he quality and experience of the personnel involved in compliance, such that they can understand and identify the transactions and activities that pose a potential risk, and [t]he authority and independence of the compliance function and the availability of compliance expertise to the board;
  • whether the company has clear disciplinary procedures in place, enforces them consistently across the organization, and ensures that the procedures are commensurate with the violations; and
  • the extent to which the company’s communications convey to its employees that unethical conduct will not be tolerated and will bring swift consequences, regardless of the position or title of the employee who engages in the conduct.

Does the corporation’s compliance program work in practice?

Part III acknowledges that assessing the adequacy of the corporation’s compliance program at the time of the offense is a backward looking inquiry, and thus a difficult question for a prosecutor to answer. The guidance further acknowledges that the mere existence of misconduct does not automatically mean that the compliance program was ineffective at the time of the offense. In assessing whether a company’s compliance program was effective at the time of the misconduct, prosecutors should consider whether a corporation’s continuous improvement, periodic testing, and review, investigation of misconduct, and its analysis and remediation of any underlying misconduct. Within this framework, prosecutors should consider the following:

  • whether the company has engaged in meaningful efforts to review its compliance program and ensure that it is not stale;
  • whether a company has taken reasonable steps to ensure that the organization’s compliance and ethics program is followed, including monitoring and auditing to detect criminal conduct, and evaluate periodically the effectiveness of the organization’s program;
  • the existence of a well-functioning and appropriately funded mechanism for the timely and thorough investigations of any allegations or suspicions of misconduct by the company, its employees, or agents;
  • the extent to which a company is able to conduct a thoughtful root cause analysis of misconduct and timely and appropriately remediate the misconduct to address the root causes;
  • the extent and pervasiveness of the criminal misconduct; the number and level of the corporate employees involved; the seriousness, duration, and frequency of the misconduct; and any remedial actions taken by the corporation, including, for example, disciplinary action against past violators uncovered by the prior compliance program, and revisions to corporate compliance programs in light of lessons learned; and
  • any remedial actions taken by the corporation, including, for example, disciplinary action against past violators uncovered by the prior compliance program.

The FAR compliance requirements

In addition to the DOJ guidance addressing corporate compliance programs generally, the Federal Acquisition Regulation (“FAR”) emphasizes government contractors “must conduct themselves with the highest degree of integrity and honesty.” FAR 3.1002(a). In addition, contractors “should have” a written code of business ethics, a business ethics compliance training program, and an internal control system that is suitable to the size of the business and extent of its involvement in Government contracting. Pursuant to the FAR, an internal control system should “[f]acilitate timely discovery of improper conduct in connection with Government contracts” and “[e]nsure corrective measures are promptly instituted and carried out.” FAR 3.1002(b)(2) and (3).

FAR 52.203-13 entitled “Contractor Code of Business Ethics and Conduct” made the establishment of a compliance program mandatory for contracts and subcontracts with an expected value of more than $5 million and a performance period of 120 days or more. Regardless of whether a company is subject to the FAR requirements or not, the government has an array of penalties it may impose on companies for violations of federal laws and regulations. Thus, companies, whether or not they contract with the government, are incentivized to establish effective compliance programs.

Conclusion

A compliance program at its core consists of a set of policies and procedures put in place to ensure adherence to federal law. At a minimum, a compliance program should include a corporate code of ethics, mechanisms by which questionable activities are brought to the attention of management, and an education and training program for employees, and systematic review of existing practices and procedures. However, DOJ’s updated guidance illustrates that merely having a compliance program in place may not be enough—it needs to be reviewed, updated, and enforced periodically. It is important that companies develop and implement effective compliance programs in advance of government audits and investigations that contractors inevitably find themselves subject to. The ability to demonstrate an effective compliance program will be critical to contractors asking for reduced penalties to resolve government investigations. DOJ’s updated guidance provides a roadmap and a window into the process employed by prosecutors in assessing and examining compliance programs, of which contractor’s should be mindful when developing or updating their programs.

By James L. Curtis and Craig B. Simonsen

Seyfarth Synopsis: The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) had brought suit in the D.C. Circuit Court of Appeals against the U.S. Occupational Safety and Health Administration, through an Emergency Petition For A Writ Of Mandamus, and Request For Expedited Briefing And Disposition, No. 19-1158 (May 18, 2020). The Petition has today been denied.

The AFL-CIO sought to compel the respondent, the Occupational Safety and Health Administration (OSHA), to “issue—within thirty (30) days of this Court’s grant of the writ—an Emergency Temporary Standard for Infectious Diseases (ETS) aimed at protecting the life and health of millions of workers throughout the United States in grave danger from the deadly COVID-19 pandemic.”

The three-judge panel denied the Labor Federation’s petition for a writ of mandamus to make OSHA issue an “emergency temporary standard” covering the virus. The Court said that “in light of the unprecedented nature of the COVID-19 pandemic, as well as the regulatory tools that OSHA has at its disposal to ensure that employers are maintaining hazard-free work environments, see 29 U.S.C. § 654(a), OSHA reasonably determined that an ETS is not necessary at this time.”

“OSHA’s decision not to issue an ETS is entitled to considerable deference.”

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, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The Occupational Safety and Health Administration (OSHA) has released a series of frequently asked questions and answers regarding the use of masks in the workplace to assist the regulated community.

Right up front, the FAQs settles once and for all the question of whether OSHA considers cloth or makeshift face coverings to be regulated PPE: they are not. The FAQs also outline the differences between cloth face coverings, surgical masks, and respirators, and notes that cloth face coverings “may be commercially produced or improvised (i.e., homemade) garments, scarves, bandanas, or items made from t-shirts or other fabrics.” The FAQs remind employers not to use surgical masks or cloth face coverings when respirators are necessary and if respirators are required, a proper respiratory protection program should be in place. In addition, the FAQs note the need for social distancing measures, even when workers are wearing cloth face coverings, and recommends following the Centers for Disease Control and Prevention’s guidance on washing face coverings.”

In the news release accompanying the FAQs, OSHA Administrator Loren Sweatt recognized that “as our economy reopens for business, millions of Americans will be wearing masks in their workplace for the first time,” and “OSHA is ready to help workers and employers understand how to properly use masks so they can stay safe and healthy in the workplace.”

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, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: OSHA issued its first COVID-19 citation to a Georgia nursing home. The citation alleges a failure to report within 24-hours a work-related incident resulting in hospital admissions.

As discussed in our prior blog, OSHA has issued new enforcement procedures for COVID-19 cases going forward. OSHA has indicated that its “efforts to address COVID-19 have been its top priority since February. Our world changed with the arrival and spread of the coronavirus. Although the pandemic has changed the way OSHA completes its mission, it has never faltered in its commitment to ensure employers provide a workplace free of hazards. OSHA quickly pivoted to focus intensely on giving employers and workers the guidance they need to work safely in this rapidly changing situation; where appropriate, OSHA has also enforced safety and health requirements. Never before has OSHA staff been so focused on a single health risk. Throughout this crisis, the incredible men and women of OSHA have remained committed to carrying out their mission to keep America’s workers safe and healthy.”  See Testimony of Principal Deputy Assistant Secretary Loren Sweatt before the House Education and Labor’s Workforce Protections Subcommittee on OSHA’s efforts to protect workers from COVID-19.

OSHA continued, saying that it “has existing standards that serve as the basis for its COVID-19 enforcement. Those standards include rules regarding respiratory protection, personal protective equipment (PPE), eye and face protection, sanitation, and hazard communication. In addition to those existing authorities, OSHA also has the ability to take appropriate action against employers under the OSH Act’s ‘general duty clause’.”

BNA reported that the “First Virus-Related OSHA Citation Goes to Georgia Nursing Home.” The May 18, 2020, citation was issued to the Windsor Nursing Inc., and included one Other-than-Serious item: “29 CFR 1904.39(a)(2): The employer did not report within 24-hours a work-related incident resulting in in-patient hospitalization, amputation or the loss of an eye. On 5/5/2020, the employer reported six hospitalizations that occurred as early as April 19th, 2020 but did not inform USDOL-OSHA of the hospitalizations until May 5th, 2020 at 7:14 am.”

Employers have a duty to report work-related hospitalizations due to an illness acquired at work. Work-relatedness requires a case-by-case inquiry, addressed in our prior blog. Because of widespread community transmission of the virus, most employee COVID-19 cases will not be considered work-related. Further, under the regulations (29 CFR 1904.39(b)(6)), employers need only report an in-patient hospitalization if it “occurs within twenty-four (24) hours of the work-related incident.” In the COVID-19 context, this means that employers only have a duty to report hospitalizations that they know occur within 24 hours of a workplace COVID-19 transmission. Employers normally lack information regarding the precise source of an infection and COVID-19 symptoms take 2-14 days to manifest. From a legal and factual perspective, it is virtually impossible or an employer to be aware of a COVID-19 hospitalization within 24 hours of a workplace transmission. Accordingly, employers generally will have no legal duty to report a COVID-19 hospitalization. Reporting a hospitalization could result in an onerous OSHA inspection and citations, as were issued here.

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. Olson, Andrew H. Perellis, Patrick D. Joyce, Rebecca A. Davis, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: Last week, the U.S. Environmental Protection Agency (EPA or Agency) initiated the first phase of a two phased approach to address ethylene oxide (EtO) emissions, announcing final amendments to the Miscellaneous Organic Chemical Manufacturing National Emission Standards for Hazardous Air Pollutants (NESHAP), known as MON.

Ethylene oxide, a flammable, colorless gas used to make other chemicals that are used in manufacturing a range of products, including antifreeze, textiles, plastics, detergents and adhesives, is also used to sterilize equipment and plastic devices that cannot be sterilized by steam, such as medical equipment. The Agency recently updated its controversial risk value for ethylene oxide (criticized by industry as significantly overstating the risks associated with and safe levels of EtO). As a result, EPA determined it had become necessary to develop rulemaking to reduce EtO emissions consistent with the risk values. Last week’s MON rule contains the “technology-based” standards for monitoring and controlling EtO via Maximum Achievable Control Technology (MACT) standards.

Among the requirements of the new standards are controls and operational limits for storage tanks, process vents, transfer racks and heat exchange systems. The operational requirements  and work practice standards include leak control requirements and control of emissions from wastewater streams. There are also new monitoring and control requirements for flares used to control EtO emissions.

Despite the imposition of new control, operational limits, and work practice standards, EPA has estimated that compliance with the standards will reduce EtO emissions by only 0.76 tons per year nationwide. That is, the efforts to be borne by industry are estimated to reduce EtO by only de minimis amounts.

The Final Rule was released on May 29, 2020.  EPA has made a Fact Sheet  on the Final Rule available. It should be noted that this rule will largely only affect miscellaneous specialty chemical production; USEPA has not yet developed specific standards for EtO from commercial sterilizers.

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

Seyfarth Synopsis: The Occupational Safety and Health Administration (OSHA) has adopted a Revised Enforcement Guidance for Recording Cases of COVID-19. Under the OSHA regulations and the revised guidance, most cases of COVID-19 will not be definitively “work-related” and will not be recorded or reported to OSHA.

OSHA is revising its previous enforcement policy for recording cases of coronavirus (Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019, May 19, 2020). Under OSHA’s recordkeeping requirements, coronavirus is a potentially recordable illness, and employers are responsible for recording cases of the coronavirus, if the case:

Work related cases that result in an employee fatality must be reported to OSHA by phone or online. Because of the difficulty in determining whether this widespread virus was actually contracted at the worksite, OSHA has stated that it will focus on an employers’ reasonable, good faith efforts in making work-related determinations.

In determining whether an employer has complied with this obligation and made a reasonable determination of work-relatedness, Compliance Officers will consider the following:

  • The reasonableness of the employer’s investigation into work-relatedness.
  •  Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area.
  • It is sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness, (1) to ask the employee how they believe they contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee their work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee’s work environment for potential SARS-CoV-2 exposure. The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.

Accordingly, OSHA continues to recognize the difficulty in determining work-relatedness for an illness that exists in the community and may be contracted from numerous sources and will assess employers’ reasonable efforts in making work-related determinations. In making the work-relatedness determination, employers need to consider the effect of numerous safety and health procedures that the employer has implemented to control and minimize the risk of possible infection within the workplace.

The employer’s safety program should be following the guidance of the CDC and OSHA regarding COVID-19. These precautions, when considered individually and collectively, effectively reduce and control the possible risk that the COVID-19 virus will be present and/or transmitted to another worker in the workplace. For example, by ensuring that employees are staying home and not at work when they have symptoms that might be COVID-19 the employer would be eliminating the possibility that a worker who is symptomatic with COVID-19 is at work. Further, by following key safety precautions, such as social distancing and wearing masks and face coverings, the employer is eliminating or significantly reducing the chance that an associate will be in “close contact” with someone who may have COVID-19.

If an employer makes a reasonable and good faith inquiry but cannot determine whether it is more likely than not that exposure in the workplace caused a worker to contract COVID-19, OSHA says that the employer does not need to record the case or to report a hospitalization or fatality.

The employer’s individual work-relatedness reasonable inquiry for each COVID-19 case can be short and focused on whether an employee had close contact with other individuals at work (15 minutes or more of contact, within six feet, without face masks or barriers). Cases are not recordable without close contact at work with a known or suspected COVID-19 case. Such contact is necessary but insufficient by itself, because the probability of transmission is low and there is often an alternative explanation of community transmission.

Seyfarth OSHA practice attorneys have sample questions for several industries that can help guide employers in how to best conduct this inquiry for each case.

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.