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

Seyfarth Synopsis: The federal Occupational Safety and Health Administration (OSHA) has adopted an Updated Interim Enforcement Response Plan for Coronavirus Disease (ERP). Now, as states begin reopening their economies, the revised ERP will “ensure employers are taking action to protect their employees.”

Federal OSHA has faced recent lawsuits from traditional labor relating its regulatory response to the pandemic, including its decision not to issue new regulations to address COVID-19. On May 19, 2020, OSHA issued a new enforcement guidance (Updated Interim Enforcement Response Plan for Coronavirus Disease 2019, May 19, 2020) acknowledging that many non-critical businesses have begun to reopen in areas of lower community spread, and then numerous other businesses will be reopening in coming weeks. The risk of transmission is lower in specific categories of workplaces, and personal protective equipment potentially needed for inspections is more widely available for OSHA staff. According to OSHA, it will “continue to prioritize COVID-19 inspections, and will utilize all enforcement tools as OSHA has historically done.” In the areas of lower risk, OSHA will return to doing more onsite inspections, which have largely been limited to fatality inspections during the pandemic.

According to the ERP, OSHA will continue to prioritize COVID-19 cases. The agency acknowledged that it will continue to target healthcare employers, who historically have not been a primary target of OSHA enforcement. During an inspection, the ERP instructs compliance officers to examine whether employees “who are expected to perform very high and high risk exposure tasks are using respirators (i.e., N95 or better).” The ERP states in bold text that “appropriate respiratory protection is required for all healthcare personnel providing direct care for patients with suspected or confirmed cases of COVID-19.” Area Directors will continue to evaluate potential on-site inspections for COVID risks to OSHA personnel and will not send compliance officers where they perceive a hazard.

Enforcement against employers will be largely through the General Duty Clause. The ERP provides a sample citation (Attachment 4), again focused on healthcare employment and precautions during the treatment of COVID-19 patients.

Attached to the Updated Interim Enforcement Response Plan are specific enforcement procedures (Attachment 1); a sample employer letter for COVID-19 activities (Attachment 2); a sample hazard alert letter (Attachment 3); and additional references, including OSHA’s prior COVID-19-related enforcement memoranda (Attachment 5).

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, Helen M. McFarland, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The State of Washington’s Division of Occupational Safety and Health (DOSH) just enacted Emergency COVID-19 Safety Rules on “Prohibited Business Activities and Conditions for Operations.”

In a first-of-its-kind emergency rulemaking, DOSH enacted an emergency rule that, on its face, allows the agency to cite Washington employers who fail to follow the patchwork of rules and guidance related to COVID-19, as set out by the State of Washington and associated safety and health authorities. According to DOSH, the purpose of the emergency rulemaking is to ensure employers are adequately implementing safety and health rules for responding to the COVID-19 pandemic.

The emergency rule requires employers to cease prohibited business activities and come into compliance with requirements under the State’s Stay Home, Stay Healthy Proclamation, and amendments under RCW 43.06.220 (Emergency Proclamation), including provisions:

  • Prohibiting employees from working where a business activity is prohibited by an emergency proclamation; and
  • Requiring employers to comply with all conditions for operation required by the Emergency Proclamation, Governor Inslee’s Safe Start phased reopening plan and related guidance.

Effective May 26, 2020, the emergency rule renders all guidance related to business operations during COVID-19 mandatory. According to DOSH, the emergency rule is intended to “clarify that restrictions and conditions on business activities” under the Stay Home, Stay Healthy order, are “also health and safety requirements and that employers can be subject to a citation and monetary penalties for violations.”

The emergency rule is set to expire on September 23, 2020.

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

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

Image from CDC.

Seyfarth Synopsis: In the last two weeks, the CDC has updated the list of symptoms for COVID-19 on several occasions, eliminating the “two or more” list and adding “less common” symptoms and emergency warning signs.

The CDC has cautioned that individuals with COVID-19 can be asymptomatic, have mild symptoms, or have severe illness.  Symptoms may appear 2-14 days after exposure to the virus.  As of May 26, 2020, CDC lists common COVID-19 symptoms as:

  • Fever or chills
  • Cough
  • Shortness of breath or difficulty breathing
  • Fatigue
  • Muscle or body aches
  • Headache
  • New loss of taste or smell
  • Sore throat
  • Congestion or runny nose
  • Nausea or vomiting
  • Diarrhea

The CDC has also cautioned there are other possible symptoms that are not included on the current list. The CDC has been regularly updating and modifying the list.

Finally, the CDC cautions that individuals should seek immediate medical attention immediately if they have:

  • Trouble breathing
  • Persistent pain or pressure in the chest
  • New confusion
  • Inability to wake or stay awake
  • Bluish lips or face

Employers should be closely tracking CDC guidance and updating their screening tools to minimize the number of symptomatic individuals in the workplace, and prevent COVID-19 transmission.

Seyfarth has developed numerous Return to Work tools to help employers maintain healthy and safe workplaces.  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, and Craig B. Simonsen

Seyfarth Synopsis: This U.S. Environmental Protection Agency (EPA) announced its final rule to add per- and polyfluoroalkyl substances (PFAS) to the list of chemicals required to be reported annually under the EPCRA Section 313 Toxics Release Inventory (TRI) reporting requirements, and established a 100-pound reporting threshold for these substances. TRI Reporters need to collect information beginning in 2020,  for the July 2021 report of 2020 releases. 

We had previously blogged that the National Defense Authorization Act (NDAA) Adds Per- and Polyfluoroalkyl Chemicals to TRI and about the EPA Advance Notice of Proposed Rulemaking on Per- and Polyfluoroalkyl Chemicals. In advance of the formal publication of the final rule in the Federal Register very soon, the Agency has published a pre-publication draft of the rule in a notice entitled:  EPA Takes Next Step to Implement PFAS Legislation,; the pre-publication notice lists the 172 PFAS that will shortly be subject to reporting under TRI.  Per- and polyfluoroalkyl substances are a group of man-made chemicals that includes PFOA, PFOS, and other chemicals. PFAS can be found in food, commercial household products, the workplace, drinking water, and in living organisms, including fish, animals, and humans.

While EPA estimates approximately 500 facilities nationwide will be required to report PFAs under the new rule, Seyfarth believes the impact is expected to be much, much larger because of the number of facilities in the affected NAICS codes which will be required to determine if they exceed the low 100 pound threshold trigger for reporting any of the individual PFAs. (The 100 pound threshold applies to manufacturing, processing or use of any of the listed PFAs, which are ubiquitous in industrial use). That is, many of our clients will need to carefully determine in 2020 whether they manufacture, process or use more than 100 pounds of any of the PFAs; the exercise of determining whether a facility has even met the threshold is itself a time-consuming process that must be done whether or not a facility must actually report the PFAs on its 313 form. To that end, the Agency notes that “TRI reporting requirements state that a facility should use readily available data collected pursuant to other provisions of law or, where such data are not readily available, reasonable estimates of the amounts involved.”

Under the rules,  Form 313 TRI reporting forms must be prepared for or include PFAS beginning July 1, 2021, for calendar year 2020 data.

For more information on the final rule, TRI reporting, the affected PFAs, or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety & Environmental Team.

By Jeryl L. Olson, Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: This U.S. Environmental Protection Agency (EPA) proposed rule would provide “procedures for developing and issuing guidance documents and to establish a petition process for public requests to modify or withdraw an active guidance document.”

We have previously blogged on agency guidance documents. See President Issues Executive Orders on Guidance Documents and Transparency; Still Business-Friendly Times – DOJ Limits the Use of Agency Guidance Documents in Civil Enforcement; and Business-Friendly Times – USDOJ Limits the Use of Agency Guidance Documents in Civil Enforcement.

The purpose of the EPA’s proposed rules are to ensure EPA guidance documents:

  • Are developed with appropriate review;
  • Are accessible and transparent to the public;
  • Are subject to public participation;
  • Meet standard elements established for guidance documents and “significant guidance documents”; and
  • Contain procedures for the public to request that an active guidance document be modified or withdrawn.

The proposed rule is intended to be consistent with Executive Order (EO) 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents” .

The proposed rulemaking will not necessarily change the utility of guidance documents; EPA guidance documents will continue to be  legally non-binding. The rule will however ensure that EPA works with stakeholders to develop guidance documents, provide opportunities for public review and comment on the draft guidance document, and announces the availability of final guidance documents. The proposed regulation will also establish a portal to allow the public to more easily identify Agency guidance documents.

The public comment period will end 30 days after publication of the proposed rule in the Federal Register; for assistance in providing comments or for more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety & Environmental Team.

By Chris DeMeo, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: CDC and OSHA issues specific guidance related to COVID-19 policies, administrative controls, engineering controls, personal protective equipment, and face masks for the nursing home industry.   

During the COVID-19 pandemic, nursing homes and care facilities have instituted significant precautions and protocols to address employee and resident safety.  The Centers for Disease Control and Prevention (CDC) and federal Occupational Safety and Health Administration (OSHA) have both recently published guidance documents to assist guide nursing home employers in their response. The CDC has issued Considerations for the Public Health Response to COVID-19 in Nursing Homes, (April 29, 2020). This guidance is intended to assist nursing homes and public health authorities with response in nursing homes. This guidance supplements but does not replace recommendations included in the CDC’s earlier Interim Additional Guidance for Infection Prevention and Control for Patients with Suspected or Confirmed COVID-19 in Nursing Homes. OSHA just issued a COVID-19 Guidance for Nursing Home and Long Term Care Facility Workers, (May 14, 2020), which employers can follow to help protect nursing home workers and long term care facility workers from exposure to the coronavirus.

The CDC advises that nursing homes should:

  • Act now to implement all COVID-19 preparedness recommendations, even before cases are identified in their community.
  • Address asymptomatic and pre-symptomatic transmission, implement source controlfor everyone entering a healthcare facility (e.g., healthcare personnel, patients, visitors), regardless of symptoms.
    • Cloth face coverings are not considered personal protective equipment (PPE) because their capability to protect healthcare personnel (HCP) is unknown. Facemasks, if available, should be reserved for HCP.
    • For visitors and residents, a cloth face covering may be appropriate. If a visitor or resident arrives to the facility without a cloth face covering, a facemask may be used for source control if supplies are available.
  • Dedicate an area of the facility to care for residents with suspected or confirmed COVID-19; consider creating a staffing plan for that specific location.

In its nursing home and long-term care facility workers news release and Alert, OSHA suggests the following measures that can help protect employees working in nursing homes and long term care facilities, including:

  • Encourage workers to stay home if they are sick;
  • Screen workers and residents regularly for signs and symptoms consistent with the coronavirus. Send sick workers home or to seek medical care;
  • Closely monitor and take additional precautions regarding employees and residents who may have been exposed to an individual with the coronavirus;
  • Follow CDC guidance on updating existing resident visitation policies;
  • Ask visitors to inform the facility if they develop a fever or symptoms consistent with the coronavirus within 14 days of their visit;
  • Maintain at least 6 feet between workers, residents, and visitors to the extent possible, including while workers perform their duties and during breaks;
  • Stagger break periods to avoid crowding in breakrooms;
  • Consider alternatives to in-person large group gatherings (e.g., staff meetings, resident activities);
  • Always follow good infection prevention and control practices. Consult OSHA’s COVID-19 guidance for healthcare workers and employers.
  • Provide handwashing facilities and alcohol-based hand sanitizer with at least 60 percent alcohol throughout facilities;
  • Regularly clean and disinfect shared equipment and frequently touched surfaces in resident rooms, staff work stations, and common areas;
  • Use hospital-grade cleaning chemicals approved by the Environmental Protection Agency (EPA) from List N or EPA-approved, hospital grade cleaning chemicals that have label claims against the coronavirus;
  • Ensure workers have and use any personal protective equipment (PPE) they need to perform their jobs safely;
  • Continually monitor personal protective equipment (PPE) stocks, burn rate, and supply chains. Develop a process to decontaminate and reuse PPE, such as face shields and goggles, as appropriate. Follow CDC recommendations for optimization of PPE supplies;
  • Train workers about how to protect themselves and residents during the pandemic; and
  • Encourage workers to report any safety and health concerns.

These recommendations are consistent with OSHA’s general guidances for employers and likely also apply to private duty aides employed by residents’ families.  By following these guidances, where feasible, employers can demonstrate compliance with OSHA’s General Duty Clause to maintain a workplace free from any recognized hazard.  Compliance will also demonstrate the employer’s adoption of the standards of care to reduce liability for state tort claims.

In addition, the Governors of New York and Texas have recently directed that nursing home workers be tested for COVID-19. While in Texas such testing is to be carried out by State agencies, in New York, preliminary indications are that the facilities will be responsible.

Implementing these guidances and directives raises a myriad of additional legal considerations.  In developing a COVID-19 workplace safety and testing program, facilities should not overlook both general and COVID-specific issues such as immunity from liability, informed consent, employee accommodations, resident rights and information privacy.

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 Robert B. Milligan, Mark A. Lies, II, Adam R. Young, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: A new California State guidance provides direction for dine-in restaurants, brewpubs, craft distilleries, breweries, bars, pubs, and wineries to provide a healthy and clean environment for workers and customers. 

The State COVID-19 industry guidance site indicates that “as California moves into stage 2 of our Resilience Roadmap, every business should take steps to reduce the risk of COVID-19 and create a safer environment for workers and customers.” The Cal/OSHA and Health Department guidance is intended for dine-in restaurants that are permitted to re-open pursuant to county health rules.

Workplace Specific Plan for Dine-In Restaurants

The guidance provides an outline for a written, worksite-specific COVID-19 prevention plan for every location, by performing a comprehensive risk assessment of work areas and designating a point person at each establishment to implement the plan. The key bullets for the plan include:

  • Identify contact information for the local health department where the restaurant is located for communicating information about COVID-19 outbreaks among employees or customers.
  • Train and communicate with employees and employee representatives on the plan.
  • Regularly evaluate the establishment for compliance with the plan and document and correct deficiencies identified.
  • Investigate any COVID-19 illness and determine if any work-related factors could have contributed to risk of infection. Update the plan as needed to prevent further cases.
  • Identify close contacts (within six feet for 15 minutes or more) of an infected employee and take steps to isolate COVID-19 positive employee(s) and close contacts.
  • Adhere to the training and other related guidelines below.

Topics for Employee Training

The dine-in restaurants should provide employee training on:

  • Information on COVID-19, how to prevent it from spreading, and which underlying health conditions may make individuals more susceptible to contracting the virus.
  • Self-screening at home, including temperature and/or symptom checks using CDC guidelines.
  • The importance of not coming to work if employees have a frequent cough, fever, difficulty breathing, chills, muscle pain, headache, sore throat, recent loss of taste or smell, or if they or someone they live with have been diagnosed with COVID-19.
  • To seek medical attention if their symptoms become severe, including persistent pain or pressure in the chest, confusion, or bluish lips or face. Updates and further details are available on CDC’s webpage.
  • The importance of frequent handwashing with soap and water, including scrubbing with soap for 20 seconds (or using hand sanitizer with at least 60% ethanol or 70% isopropanol when employees cannot get to a sink or handwashing station, per CDC guidelines).
  • The importance of physical distancing, both at work and off work time.
  • Proper use of face coverings.

Restaurants should consult this guidance, prepare a plan, and appoint a key point person to guide re-opening efforts. They should consult with outside counsel on necessary policies, protocols, and precautions to protect the health and safety of employees, as well as secure the confidence of customers.

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

By James L. Curtis, Brent I. Clark, Mark A. Lies, II, Adam R. Young, Matthew A. Sloan, and Craig B. Simonsen

Image from CDC.

Seyfarth Synopsis: In Rural Community Worker’s Alliance et al v. Smithfield Foods, Inc. et al., No. 5:20-cv-6063 (W.D. Mo. May 5, 2020), Western District of Missouri Judge Greg Kays granted Smithfield’s motion to dismiss RCWA’s request for emergency relief that would have required the Company to implement additional safety measures to combat COVID-19.  The order demonstrates that even during a public health emergency, courts will defer to the expertise of OSHA on occupational safety issues.

As COVID-19 spreads across the United States, employers are witnessing a surge of employee complaints about precautions and litigation related to illnesses and deaths.  Previously, we blogged about the specter of Section 11(c) whistleblower complaints where action is taken against employees who may have previously complained about COVID-19 safety or refused to work.  Some employees are going directly to the courts, seeking relief for alleged retaliatory discharge under state whistleblower statutes or based state common law retaliatory discharge principles.

A recent case out of the Western District of Missouri, Rural Community Worker’s Alliance et al v. Smithfield Foods, Inc. et al., presents a more novel claim: employees filing in federal court to enjoin their employer to implement additional safety measures to specifically combat the spread of COVID-19.  While a creature of these unprecedented times, and likely precedential, the outcome of the case is also a reminder of principles of deference to agency expertise.

On April 23, 2020, RCWA, on behalf of employees working at Smithfield’s Milan, Missouri meat processing plant, filed a federal court complaint against the Company, seeking a declaratory judgment “that Smithfield’s failure to implement appropriate worker protections during the COVID-19 crisis constitutes a public nuisance under Missouri law and a violation of the right to a safe work place under Missouri law.”  Additionally, RCWA moved for emergency injunctive relief that would have required Smithfield to implement specific safety measures and controls to address COVID-19, such as giving employees an opportunity to wash their hands while on the line; providing tissues; changing its leave policy to discourage individuals to show up to work when they have symptoms of the virus; giving workers access to testing; and developing a contact-tracing policy.

Smithfield moved the Court to dismiss the case on preemption grounds, claiming“[t]he workplace safety and public health concerns created by the novel coronavirus are both outside the conventional experience of judges and squarely within the technical and policy expertise of OSHA . . .”  Accordingly, Smithfield argued, the matter should be dismissed based on the common-law doctrine of primary jurisdiction, which is “is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties.” United States v. Western Pac. R.R. Co., 352 U.S. 59, 63 (1956).

The court agreed, granting Smithfield’s motion to dismiss based on OSHA’s “primary jurisdiction” and the agency’s ability to uniformly enforce its COVID-19 guidance for meat processing facilities.  The Court writes, “Due to its expertise and experience with workplace regulation, OSHA . . . is better positioned to make this determination than the Court is. Indeed, this determination goes to the heart of OSHA’s special competence: its mission includes ‘enforcing’ occupational safety and health standards.”

The court also highlighted the remedies — other than court intervention — that were available to the employees, including emergency relief from the Secretary of Labor under Section 662(a) of the Occupational Safety and Health Act.  Section 662(a) permits the Secretary of Labor to petition the court “to restrain any [dangerous] conditions or practices in any place of employment . . . which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by [the Act].”  The Court conceded that there might be some delay in the invocation of this procedure, but ultimately “following this procedure ensures the USDA and OSHA can take a measured and uniform approach to the meat-processing plants under its oversight.”

With COVID-19 continuing to spread and the likely proliferation of “hot spots” in certain work environments, novel lawsuits or tort claims for damages likely will become more common.  When defending tort claims and OSHA enforcement, however, employers have recognized defenses based on their appropriate policies, protocols, and precautions to address the COVID-19 hazards.  Employers should consult with outside counsel to ensure that their policies and procedures are lawful and compliant, and consistent with recognized industry practice.

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

By Benjamin D. Briggs, Brent I. Clark, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: The Cal/OSH Standards Board has adopted provisions that require employers to provide a copies of their IIPPs upon employee requests. 

If you’re a loyal reader of our blog, you’ve already seen our Reminder To All Employers With Establishments in California: You Are Required To Have An Injury and Illness Prevention Program — No Ifs Ands Or Buts and develop one if you didn’t have one already. You probably also saw our post earlier this year about: Cal/OSH Board to Vote on New Regulation to Allow Employees to Request Workplace Injury and Illness Prevention Program.

The latest and greatest is that the vote is in. Effective July 1, 2020, California employers will need to provide access to their IIPPs upon request of an employee, the employee’s authorized representative (e.g. an attorney), or the employee’s union representative. Previously there was no requirement under Cal/OSHA to provide access to IIPPs.

The new provision, located at 8 CCR 3203(a)(8) requires access to the IIPP to be given with 5 business days after the request for access is received. Employers are required to provide a printed copy unless the employees agrees to receive an electronic copy. (Don’t worry about the impact to your bottom-line however; employers can charge “reasonable, non-discriminatory reproduction costs” if more than one copy is requested). Alternatively, employers can provide access to IIPPs via a Company intranet or website subject to the access being “unobstructed.”

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

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

Seyfarth Synopsis: As we approach the heat of the summer season and as employers begin to re-open after months of COVID-19 quarantine, workers may be out of shape, out of practice on workplace safety procedures, and may have to rebreathe hot air through face coverings. As they focus on COVID-19 efforts, employer should remain aware of risks of safety rule violations, injuries, and heat illness.

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

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

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

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

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

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

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