By Brent I. ClarkPatrick D. JoyceIlana 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.