Emergency Planning

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By Adam R. Young and Craig B. Simonsen

Seyfarth Synopsis: New state and federal laws and rules require employers to have compliant phones systems for 911 direct dialing and E-911.

Most large employers maintain multiline phone systems at their workplaces.  Along with emergency action plans and evacuation procedures, employers must take affirmative steps to ensure that employee phones provide adequate safety protections in the event of an emergency.  Some jurisdictions impose numerous regulations on those systems and their ability to dial 911, requiring onerous notifications, procedures, labels, and 911 dialing features.  And those requirements are constantly evolving, as 2018 marked a seminal shift in 911 regulations.

The federal government has passed a new law requiring that phones dial 911 directly, and has directed the Federal Communications Commission to undertake a rulemaking on Enhanced 911 regulations, also called “E-911.”  These federal and state developments may require employers to take action to ensure compliance, and revamp their emergency safety equipment and procedures.

New Federal Law Requires Direct Dialing of 911

In recent years, nine states and New York City have adopted rules requiring phones to be able to directly contact 911.  This means that any caller who dials 9-1-1 will be connected with emergency services, without a prefix (such as dialing 9 first) or going through an operator.  In 2018, President Trump signed a bipartisan new law which requires any phone to be able to directly contact 911, 47 U.S.C. § 623(b).  The federal law applies to all types of newly installed multiline phone systems.  State and local laws may require existing systems to be revamped by a compliance date.  Accordingly, employers replacing their phone systems or installing new systems will need to comply with these requirements.  Employers who operate phone systems that require an operator or dialing to get an outside line should review their systems and ensure that they comply.

Federal E-911 Legislation May Be Forthcoming

Federal and state governments have begun to require Enhanced 911 services for employers who use multiline phone systems.  States have enacted Enhanced 911 or E-911 requirements to multiline phone systems.  E-911 means that the telephone system automatically will transmit  phone number information or specific location information (building, floor, office number) to emergency services when a caller dials 911.

These restrictions vary by state, but can require employers to notify employees regarding E-911 capabilities, train employees on 911 dialing procedures, and provide written instructions near phones.  Some also require that the phones provide E-911 capabilities in terms of number and/or location information.  The President signed H.R. 4986 § 506 (March 7, 2018), which requires the Federal Communication Commission to consider adopting rules that ensure a “dispatchable location” is conveyed with 911 calls.  The statute requires the FCC to conclude a proceeding to consider adopting rules E-911 location rules by September 23, 2019.  Employers should monitor this process closely, as it could result in another unfunded mandate for employers to comply with E-911.

Employers should begin work now to ensure that their phone systems comply, and that their employees are properly trained on the new and pending federal and state laws and regulations.  For additional information on workplace safety, emergency procedures, and emergency equipment, please follow our blog, or feel free to contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) or Workplace Policies and Handbooks Teams.

By Mark A. Lies, II, Benjamin D. Briggs, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  With Hurricane Florence bearing down on the East Coast, employers are looking at potentially huge liabilities, including employee injuries and fatalities, not to mention facility damage and rebuilding. Employers should have an Emergency Action Plan, and if they have one, they should follow it.  

Introduction

Authorities are closely monitoring the ongoing hurricane season as Hurricane Florence menaces the southeast coast of the United States.   For employers who are obligated to keep their employees safe during working hours, disaster preparedness is critical.  This blog contains an updated primer on (1) preparing for an emergency; (2) taking action during an emergency; and (3) cleaning up and resuming business after an emergency.

Preparing for an Emergency

29 C.F.R. 1910.38 requires all workplaces with more than 10 employees to develop a written Emergency Action Plan (EAP), when required by an OSHA standard, to identify and coordinate necessary employer and employee actions during an emergency.  At a minimum, the EAP must include the following elements:

  • Means of reporting emergencies (fires, floods, etc.);
  • Evacuation procedures and assigned exit routes;
  • Procedures to account for all employees following an evacuation;
  • Procedures to be followed by employees who must remain behind to attend to critical plant operations before evacuating;
  • Rescue and/or medical duties for employees who are assigned and trained to perform them; and
  • Names or job titles of people who can be contacted for more information about the plan.

In addition to these required elements, it is recommended that employers also consider including the following in the EAP:

  • The location of the nearest hospital or emergency medical center;
  • The type of alarm system used to notify employees of an emergency;
  • Procedures for protecting information including procedures for storing or maintaining critical documents and records;
  • The location and permissible uses of protective equipment such as portable defibrillators, first aid kits, dust masks, fire extinguishers, etc.; and
  • The location of televisions or radios for further information during a disaster.

Ensuring the development of an effective EAP also requires the employer to train employees to understand their roles and responsibilities under the plan.  When conducting this training, the employer must address literacy, language, and cultural barriers to ensure that the training is effective.  Employers also must document the training.

OSHA has posted links and recommendations on its website to help employers prepare for hurricanes.  The website includes tips regarding how to create evacuation plans and assemble emergency supply kits.  The Environmental Protection Agency also has provided tips related to hurricane preparedness on its website.

Responding to an Emergency

Communication during an emergency is critical to maintain organization and prevent panic and injuries.  For example, not all emergencies require an evacuation of the workplace.  In some cases, such as flooding, storms, or the release of biological or chemical agents, staying indoors is safer for employees.  The first questions most people ask during an emergency is “should I stay or should I go?”  Employers can guide employees as to the appropriate course of action by having an alarm system that emits a different signal for “evacuate” emergencies than for “stay put” emergencies.  Alternatively, the alarm system could be programmed to give specific verbal instructions following the initial alert.  Employers must consider the needs of disabled employees (e.g. those who are hearing or visually impaired) in selecting any alarm system.

Employers should have an effective means of communicating with employees about the following during an emergency:

  • Whether to evacuate or stay put;
  • How and where to get information about the emergency itself;
  • What areas of the building to avoid;
  • How and when it is safe to return to the work area; and
  • How and when it is acceptable to contact family members and loved one.

Picking Up the Pieces

Once the proverbial dust settles after an emergency, hazards to employees can still remain.  For example, downed power lines in a flooded parking lot can injure or kill employees leaving the building after the storm passes.  Hazards are even greater for employees who are tasked with cleaning up after an emergency.  OSHA Region 4 Administrator Kurt Petermeyer recently indicated that “workers involved in storm cleanup can face a range of safety and health hazards…. Risks can be minimized with knowledge, safe work practices, and personal protective equipment.  Cleanup work after the storm may involve hazards related to restoring electricity and communications, debris cleanup, roof repair, and tree trimming.  Only those with the proper training, equipment, and experience should conduct cleanup activities.”  Employees who are actually performing clean-up work after a flood, storm, earthquake, or other disaster may be exposed to one or more of the following hazards:

  • Exposure to hazardous materials such as asbestos, mold, lead, or chemicals;
  • Downed power lines and trees;
  • Heat illness;
  • Confined spaces;
  • Blood borne diseases or other contagions;
  • Mosquito borne diseases such as Zika virus; and
  • Structural destabilization.

OSHA’s website provides a Hazard Exposure and Risk Assesment Matrix for Hurricane Response and Recovery Work, outlining the most commonly performed duties during hurricane response and recovery work, and the hazards employees could face.  OSHA has developed specific standards to address many of these hazards.  For example, OSHA’s Hazardous Waste Operations and Emergency Response standard, 29 C.F.R. § 1910.120, applies to employees who are performing clean-ups of hazardous waste or other hazardous materials.  OSHA’s asbestos and lead standards require employers to evaluate the level or exposure to employees, provide appropriate protective equipment, and, in some cases, conduct regular monitoring of air quality in the work area.

In addition to these specific standards, other more general requirements will also come into play.  For example, OSHA’s welding and cutting Lockout/Tagout, confined space entry, and fall protection programs may come into play, even if no OSHA standard specifically addresses the type of clean-up activity taking place.  Finally, as always, OSHA’s General Duty Clause requires employers to provide a workplace free from recognized hazards.  Accordingly, even if no OSHA standard applies to a particular activity or hazard, employers may still face citation liability if the hazard is reasonably likely to cause serious injury or death and there is a feasible means of abatement to correct the hazard.  Before allowing employees to commerce any kind of clean-up work then, the employer must conduct a job hazard analysis (JHA) to identify and address potential hazards.

Multi-Employer Worksite Doctrine

It is important to note that even employers who hire outside contractors to clean up after a disaster must recognize their obligations for worker safety.  OSHA’s “multi-employer worksite” doctrine allows the agency to issue citations not only to the employer whose employees are actually performing the clean-up work, but also to other employers who either control the means and methods of work of the employees.  Accordingly, employers may be liable for the safety precautions provided to employees who are brought onto their worksites following a natural disaster.

Conclusion and Recommendations

It is imperative that employers develop and implement organized and clearly communicated procedures for responding to a disaster.  A well-planned and executed emergency response program will help prevent panic, thereby minimizing employee injuries and damage to property.  We recommend that employers consider the following:

  • Develop an EAP that covers a wide variety of potential emergencies and gives employees clear guidance on what to do in each scenario;
  • Be cognizant of hazards employees may face even after the immediate danger has passed;
  • Train employees in evacuation plans and other emergency response procedures;
  • Conduct a job hazard analysis and review applicable OSHA standards before assigning any employees to perform clean-up work; and
  • Evaluate the safety record of any independent contractor hired to perform clean-up work, including investigating the contractor’s worker’s compensation history, its OSHA logs, and its history of citations from OSHA.

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, Adam R. Young, and Craig B. Simonsen

bottleSeyfarth Synopsis: In a challenge brought by trade associations for the farm supply and fertilizer industries, the D.C. Circuit vacates OSHA memorandum narrowing the retail exemption from the PSM standard.

The U.S. Court of Appeals for the District of Columbia Circuit recently ruled against OSHA on a Petition for Review of an OSHA interpretative memorandum in Agricultural Retailers Ass’n & Fertilizer Inst. v. United States Department of Labor, No. 15-1326 (D.C. Cir. Sept. 23, 2016).

In this case, the Agricultural Retailers Association and the Fertilizer Institute sought review of a July 22, 2015 OSHA memorandum and interim policy interpretation that had significantly narrowed the Retail Facilities Exemption to the Process Safety Management of Highly Hazardous Chemicals (PSM) standard, 29 C.F.R. § 1910.119.   The challenged interpretation had a dramatic effect on agricultural retailers that provide fertilizers to end users in the agricultural industry.  In that regard, the interpretation swept in many previously-exempt fertilizer and farm supply retailers into coverage under the onerous PSM standard.

OSHA issued the interpretation after a 2013 explosion at a West, Texas fertilizer supplier left 15 people dead and many others injured. Under the interpretation, OSHA retreated from the so-called “50 percent test” for determining whether a seller of highly hazardous chemicals qualified for the retail exemption.  Under that test, an establishment was exempt from PSM coverage if it “derived more than 50 percent of its income from direct sales of highly hazardous chemicals to the end user.”  Application of this test meant that fertilizer suppliers typically fell within the exemption despite having large quantities of highly hazardous chemicals at their establishments.  The challenged interpretation applied a different, much narrower, test to determine applicability of the exemption.  Under that test, retail facilities included only those “organized to sell merchandize in small quantities to the general public” as set forth sectors 44 and 45 of the NAICS Manual.  This definition precluded employers that sold or distributed large, bulk quantities of highly hazardous chemicals (i.e., farm and fertilizer supply businesses) from relying upon the retail exemption.

The thrust of the petitioners’ challenge to OSHA’s memorandum was that it was actually an OSHA standard, not an interpretation, and that, in turn, OSHA was required to follow rulemaking procedures, including notice-and-comment requirements. OSHA admittedly did not follow these procedures.  OSHA contended that rulemaking procedures did not apply because its action was a mere interpretation of a standard, and that its memorandum did not issue or modify a “standard.”  The D.C. Circuit rejected OSHA’s argument and agreed with petitioners.  In so doing, the court held that the memorandum amounted to a “standard within the meaning of the OSH Act” because its purpose was to correct “a particular significant risk,” rather than guide general enforcement.  Given that determination and OSHA’s admitted failure to follow rulemaking procedures, the court granted the petition and “vacated” OSHA’s memorandum.

For the time being, this means that employers (including agricultural retailers) may once again rely on the “50 percent rule” for determining applicability of the retail exemption to the PSM standard. How long that reprieve lasts remains to be seen given OSHA’s apparent commitment to this issue, but one thing is clear — any future change to the retail exemption will afford stakeholders the opportunity to be heard through notice-and-comment procedures.

In the meantime, we will continue to monitor and keep you updated on this issue as it develops.

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

By Andrew H. Perellis and Craig B. Simonsen

Power Lines and Pulp Mill PollutionThe U.S. Government Accountability Office (GAO) has just issued a report on Critical Infrastructure Protection with a finding that Department of Homeland Security (DHS) action is needed to verify chemical facility information and to better manage its compliance process. Report to Congress, GAO-15-614 (July 2015).

Risk Level for Facilities

The Report states that since 2007, DHS has identified and collected information from approximately 37,000 chemical facilities under the Chemical Facility Anti-Terrorism Standards (CFATS) program, and categorized approximately 2,900 of those as high-risk based on the collected data. The Report indicates, though, that DHS had used unverified and self-reported data to categorize the risk level for facilities evaluated for a toxic release threat. DHS defined a toxic release as one where if released, the chemicals could harm the surrounding populations.

One key input for determining a facility’s toxic release threat is the “Distance of Concern” that facilities report. That distance would be the area in which exposure to a toxic chemical cloud could cause serious injury or fatalities from short-term exposure. DHS required facilities to calculate the distance using a web-based tool and by following DHS guidance.

Following the DHS guidance and using a generalizable sample of facility-reported data in the DHS database, the GAO “estimated that more than 2,700 facilities (44 percent) of an estimated 6,400 facilities with a toxic release threat misreported the distance.” GAO suggests that by verifying that the data DHS used in its risk assessment, it could better ensure it has identified the high-risk chemical facilities.

Chemical Facilities Compliance Implementation

While DHS began conducting compliance inspections in September 2013, according to the GAO, it did not have a documented processes and procedure for managing the compliance of facilities that had not implemented planned measures outlined in their site security plans. As a result, GAO found that almost half (34 of 69) of facilities inspected as of February 2015 “had not implemented one or more planned measures by deadlines specified in their approved site security plans and therefore were not fully compliant with their plans.”

Additionally, GAO found variations in how DHS addressed 34 facilities, such as how much additional time the facilities had to come into compliance and whether or not a follow-on inspection was scheduled. While the variations may have corresponded with the DHS’s case-by-case approach, GAO suggested that having documented processes and procedures would ensure that DHS could manage noncompliant facilities and close security gaps in a timely manner. Also, because DHS still needed to inspect about 2,900 facilities, having documented processes and procedures could provide DHS with a “more reasonable assurance that facilities implement planned measures and address security gaps.”

By Jeryl L. Olson, Meagan Newman and Craig B. Simonsen

112rEnforcementThe U.S. Environmental Protection Agency has just released an Enforcement Alert on accidental releases of chemicals, including anhydrous ammonia at refrigeration facilities, under the Clean Air Act’s (CAA) Chemical Accident Prevention Program.

This Enforcement Alert comes in seeming coordination with the EPA’s recent news release about several anhydrous ammonia Emergency Planning and Community Right-to-Know Act (EPCRA) settlements where the alleged violators have “agreed to follow federal requirements when it comes to reporting the storage, handling, and accidental release of hazardous chemicals.”

The Agency noted in the Enforcement Alert that “recent” chemical releases stemming from CAA 112(r) violations at nine different refrigeration facilities have resulted in “property damage, numerous injuries and hospitalizations and several deaths.” As a result, EPA has imposed over $8.4 million in civil penalties and companies will spend approximately $10 million on supplemental environmental projects, including “purchasing equipment and providing training for emergency responders as well as converting refrigeration equipment to safer technologies.”

To assist regulated facilities in compliance, the Enforcement Alert highlights these relevant aspects of the Chemical Accident Prevention Program:

  • The Risk Management Program (RMP) Regulations, 40 CFR Part 68;
  • The General Duty Clause;
  • Industry Standards; and
  • Enforcement Focus on Accident Prevention.

The Enforcement Alert provides discussion and analyses on each on these highlighted aspects. Also provided is a “Lessons Learned” section.

Regulated facilities would do well to review company policies, systems, procedures, and training programs to assess their levels of compliance with the law in this area. You may be sure that if an EPA inspector arrives at your facility, she may be doing so as well.

By Brent I. Clark, Kerry M. Mohan, and Craig B. Simonsen

The Pipeline and Hazardous Materials Safety Administration (PHMSA) has issued a Safety Advisory, 79 Fed. Reg. 64646 (October 30, 2014), to provide guidance on the U.S. Department of Transportation’s Hazardous Materials Regulations (HMR), 49 CFR, parts 171–180, for persons who prepare, offer, and transport materials contaminated or suspected of being contaminated with the Ebola virus.

The Advisory indicates that to “transport materials contaminated or suspected of being contaminated with the Ebola virus, a special permit may be necessary to allow for a variance of the HMR packaging requirements to handle the larger volume of contaminated waste generated during the treatment of Ebola patients.” PHMSA had recently issued a non-site specific special permit (Special Permit DOT–SP 16279) to certain waste haulers, which authorizes the transportation in commerce of waste contaminated with or suspected of being contaminated with the Ebola virus for disposal.

The Advisory highlights these guidance documents and resources for Ebola handlers, transporters, and disposers:

Note that waste generated from the treatment of a patient contaminated or suspected of being contaminated with the Ebola virus transported by a Federal, state, or local government employee to a disposal facility is not subject to the HMR. “DOT, however, recommends that Federal, state, or local governments comply with appropriate safety requirements provided in the HMR to ensure the safe transportation of waste contaminated or suspected of being contaminated with the Ebola virus.”

For a primer on the Ebola with a discussion of the Federal employment laws that may be impacted, see our previous blog on this topic, Ebola and Employer Liability Issues.

On Friday, October 24th at 12:00 PM CT, Brent Clark, James Curtis, Mark Lies, Meagan Newman, and William Schurgin will present the webinar: Ebola: Workplace Liability Challenges.

There is no doubt that U.S. employers are affected by the recent news of Ebola infections within our borders.  There is also no doubt that anxiety among employers and employees has risen along with that of the general public.  In this webinar our safety and health lawyers will offer insight and guidance regarding the impact of Ebola—covering the real workplace safety and health impacts as well as employment law issues and associated liability concerns including:

  • OSHA and CDC Guidance
  • EEOC and ADA Issues
  • Workers Compensation
  • FMLA
  • Civil Liability

While there is no cost to attend this program, registration is required.

By Mark A. Lies II, Kerry M. Mohan, and Brent I. Clark

By now, the worldwide health authorities and media have publicized the Ebola hemorrhagic virus (EHV) (sometimes called Ebola Virus Disease, or EVD) (the “virus” or “disease”) that has been reported throughout western Africa. Although the United States has only experienced several cases of the virus, as the outbreak in Africa spreads it is possible more cases will arise throughout the country. Given high density areas of human contact such as mass transportation systems, schools, hospitals and the workplace, the potential is great for this widely circulating virus to spread from human-to-human in a short period of time.

What is Ebola?

EHV is a hemorrhagic virus originating from the African continent. It derives its name from the Ebola River which is in the vicinity of where the virus was first identified. An individual infected with EHV will often suffer the following, worsening systems:

  • Fever (greater than 101.5°F);
  • Severe headache;
  • Muscle pain;
  • Weakness;
  • Diarrhea;
  • Vomiting;
  • Abdominal pain;
  • Unexplained hemorrhaging (bleeding or bruising); and
  • Death.

Though an individual’s symptoms may appear anywhere from 2 to 21 days after exposure to the virus, the average is 8 to 10 days. The virus has a mortality rate in certain areas well in excess of fifty percent of individuals who become infected.

How is EHV Transmitted?

Unlike other diseases, such as influenza, measles, and the norovirus, EHV is NOT easily transmitted. An individual who has been exposed is not contagious until an infected individual shows symptoms of the disease.

EHV is transmitted through direct contact, either broken skin or mucous membranes, with an infected individual’s:

  • Blood or bodily fluids, such as urine, saliva, feces, vomit, semen; and
  • Objects that have been contaminated with the virus (i.e., needles and syringes).

Though EHV is not readily transmitted by coughing or sneezing, it is possible that an infected individual could transmit the virus if his or her saliva or mucous from a cough or sneeze comes into contact with another individual’s eyes, nose, or mouth. It is possible that the virus could contaminate a surface (e.g., desk, arm rest, chair, table, bedding, clothing, etc.) and another individual could come in contact with the virus through normal daily activities. Moreover, EHV is able to live outside of the body in blood or other bodily fluids for up to several days. The virus can remain infectious in human semen for several months.

What are the Legal Ramifications that Employers Should Consider?

There are several employment and other laws which may be directly involved with this disease and must be considered by employers. These are as follows:

Occupational Safety and Health Act: General Duty Clause

Under the Occupational Safety and Health Act (“Act” or “OSHA”), the employer has a legal obligation to provide a safe and healthful workplace. One of the agency’s enforcement mechanisms is the ability to issue citations with monetary penalties to employers. The “General Duty Clause” (Section 5(a)(1)) of the Act requires an employer to protect its employees against “recognized hazards” to safety or health which may cause serious injury or death.

Given that OSHA does not have a specific regulation which deals with EHV, the Occupational Safety and Health Administration (the “Agency”) will utilize the General Duty Clause. In order to determine the scope of the employer’s obligation under the General Duty Clause, OSHA is empowered to utilize outside nationally recognized consensus standards or other authoritative sources. In this case, OSHA would rely upon recommendations issued by the Centers for Disease Control (“CDC”), the National Institute for Occupational Safety and Health (“NIOSH”), the World Health Organization (“WHO”) or other similar resources. If the Agency can establish that employees at a worksite are reasonably likely to be “exposed” to the EHV (e.g., serving as healthcare providers, emergency responders, transportation workers, etc.), OSHA will require the employer to develop a plan with procedures to protects its employees.

OSHA Multi-Employer Worksite

Under the Act, the host employer may also have additional legal obligations to the employees of another employer who may come to the host employer workplace and may potentially be exposed to the hazard (in this case to EHV carriers). OSHA can utilize its authority under the “multi-employer workplace doctrine” to issue citations to the host employer when personnel of another employer are exposed. In these instances, citations can be issued by the Agency to the host employer if another employer’s staff members are exposed or if the host employer created the hazard or exposed the other employees to the hazard. The host employer or the controlling employer at the site will ultimately be held responsible to correct the hazard.

OSHA Response Plan

OSHA will expect the responsible employer to develop a program based upon a “hazard assessment” of potential exposure at the worksite (hygiene and decontamination), including:

  • Conduct employee awareness training regarding the hazard;
  • Develop procedures requiring the issuance and use of personal protective equipment (PPE) (e.g., masks, gloves) if necessary to prevent infection and transmission;
  • Develop a means of reporting infection and providing medical surveillance for employees who contract the disease;
  • Maintain appropriate documentation of the foregoing actions;
  • Preserve medical records;
  • Record on the OSHA 300 Log any illnesses which are occupationally related.

Whistleblower Protection

Because of the significant health hazards associated with this disease, it is possible that an employee could refuse to work because s/he believes that his/her health is in imminent danger at the workplace due to the actual presence or reasonable probability of the disease at the workplace. An employee who makes such a complaint is engaging in “protected activity” under Section 11(c) of the Act and is not subject to adverse action by the employer for refusal to work until the employer can establish through “objective” evidence that there is no hazard or that the employer has developed a response plan that will reasonably protect the employee from exposure to the disease.

Worker’s Compensation – Disability Benefits

In the event that an employee contracts EHV as a result of occupational exposure, (in other words, the illness “arises out of and in the course of employment” which the employee must prove with competent medical evidence), the employee is entitled to receive temporary total disability benefits in lieu of wages, reasonable and necessary medical treatment and an award for any resulting permanent disability (e.g., reduced respiratory capacity, etc.). An employer should evaluate whether it has adequate worker’s compensation insurance coverage and coverage limits that include occupational diseases.

If an employee contracts the disease and it is not occupationally related, the employee may be entitled to disability benefits if the employer provides such benefits. Again, the extent of such benefits and any exclusions should be carefully evaluated by the employer. The employer must consider that EHV is going to involve significant medical issues, such as determining (1) whether the employee is infectious, (2) what type of treatment is necessary, (3) whether the employee presents a health risk to others and, (4) when the employee can safely return to work. Therefore, it is essential that the employer identify a competent medical professional with expertise in infection control who can advise it on all medically-related issues, including worker’s compensation.

Family and Medical Leave Act

Under the Family and Medical Leave Act (“FMLA”), employers who have more than 50 employees are required to provide up to twelve (12) weeks of unpaid leave to a qualified employee who has a “serious health condition.” An employee is also eligible under the FMLA in the event of a “serious health condition” affecting its spouse, child or parent(s).

If an employee contracts EHV, this disease will most likely be considered a “serious health condition” under the FMLA warranting the unpaid leave. Similarly, if an employee’s parent, spouse or a child contracts the disease, this will likely be a qualifying event entitling the employee, with physician’s documentation, to utilize leave time to care for such an immediate family member.

It is certain that issues may arise if the employee contracts the disease but is able to continue working while potentially exposing other employees to infection. Since the CDC appears to recommend removal of such individuals from the workplace during the incubation period of the disease (2-21 days) to prevent transmission of the disease, the employer may have to consider placing the employee on an FMLA leave or providing some other form of leave despite the employee’s desire to continue working.

If the employee exhausts the entire twelve weeks of FMLA leave, and is unable to return to work at that time, the employer may wish to consider additional unpaid leave for the employee, although such leave would be outside of the FMLA required reinstatement rights.

Americans with Disabilities Act

The Americans with Disabilities Act (“ADA”) provides certain protections to employees who may have physical, mental or emotional “disabilities” but who are otherwise qualified to perform the essential functions of their jobs. Typically, a disability is an impairment which substantially limits one or more of the major life activities of an individual (e.g., breathing, working, speaking) which is chronic in nature. Because of the fact that EHV has resulted in a significant mortality rate, even though it is temporary in nature, it is very conceivable that it would be considered to qualify as a “disability”.

The ADA may become a factor, however, if an employee develops a disability as a result of the disease and cannot return to their former work duties because of such impairment. The employer must then be prepared to engage in an “interactive process” with the employee which involves a case-by-case dialogue regarding the employee’s ability to return to work, any work restrictions, what accommodations may be available which do not cause undue hardship to the employer or whether the employee’s disability presents a direct threat to the health or safety of the employee or other employees. Again, it is recommended that employers engage competent medical advice regarding any accommodations which may be warranted as a result of the long term effects of this disease.

Premises Liability

Under general common law principles in most jurisdictions, a landowner (sometimes the employer) who allows third parties to enter upon its premises for business or related purposes (such as clients, vendors, contract employees), owes these individuals a duty of “reasonable care” to protect them against hazards at the premises which are not “open and obvious.” In the case of EHV, if the landowner (for example, a healthcare provider, emergency responder, transportation related company) is (or should be) aware that there are infectious persons at the premises (whether its own employees or tenants) who may create a health hazard to these third party entrants, there may be a duty to warn such third parties, or to prevent access to certain facility areas. In the event that the building ventilation system or washroom facilities may become contaminated with EHV, the landowner may have an obligation to prevent such contamination through enhanced sanitation measures.

In many cases, the legal duty of the landowner for site security and sanitation will be defined by contractual documents, such as leases. The landowner should make sure to review such documents to confirm its obligations regarding third parties who may have access to the property.

Recommendations

It is recommended that employers become knowledgeable about this disease by accessing recognized sources of information (identified below). In addition, employers should determine, based upon a “hazard assessment,” whether an EHV response plan is required. For example, does the employer employ individuals:

  • In industries where exposure may be likely (healthcare, emergency response, transportation); or
  • Who have or are expected to travel to/from western Africa or other geographical areas where the disease has been identified.

If so, the employer may need to consider:

  1. Means and methods to protect employees from potential exposure;
  2. Means and methods to protect employees before they travel to areas known to have experienced the EHV disease; and
  3. What procedures will be followed when these employees return to the United States from such areas (e.g., possible quarantine, fitness for duty medical examination if the employee exhibits the symptoms of EHV). In some cases, the employer may be able to offer employees the option of remote work to isolate these employees from the general working populace during the incubation period.

Finally, in the event that the employer engages in activities where there is a possibility of employee infection, the employer should consider consulting with its local Department of Public Health to obtain guidance, as well as engaging with a medical provider who has particular expertise with infectious diseases of the magnitude of EHV.

Where Can I Find Additional Information on EHV?

Informational Websites and Call Numbers

OSHA Ebola Safety & Health Topics Page – www.osha.gov/SLTC/ebola/index.html

NIOSH Ebola Workplace Safety & Health Topics Page – www.cdc.gov/niosh/topics/ebola/

CDC Ebola Virus Disease Page – www.cdc.gov/vhf/ebola/

Center for Disease Control – www.cdc.gov/

U.S. Department of Health & Human Services – http://www.flu.gov/

The World Health Organization – http://www.who.int/

CDC Emergency Response Hotline for health employers – (770) 488-7100

Local Department of Public Health

By James L. Curtis and Craig B. Simonsen

The Department of Homeland Security (DHS) has published an Advance Notice of Proposed Rulemaking (ANPR) intended to “mature” the Chemical Facility Anti-Terrorism Standards (CFATS) program, and to identify ways to make the program more effective in achieving its regulatory objectives. 79 Fed. Reg. 48693 (August 18, 2014).

The CFATS program was intended to identify and regulate high-risk chemical facilities to ensure that they have security measures in place to reduce the risks associated with those chemicals. Many of the regulated facilities are part of the chemical sector – which employs nearly “one million people and earns revenues between $600 billion and $700 billion per year.” Other facilities with high-risk chemicals include “universities, oil and natural gas operators, and hospitals.”

This ANPR is part of an effort highlighted by a U.S. Environmental Protection Agency, U.S. Department of Labor, and the Department of Homeland Security recent publication of their first joint Report for the President, entitled “Actions to Improve Chemical Facility Safety and Security – A Shared Commitment,” published under the August 2013, Executive Order 13650. The EO was intended to enhance the safety and security at chemical facilities and reduce risks associated with hazardous chemicals to owners and operators, workers, and their neighboring communities. We previously blogged about the U.S. EPA’s Request for Information on its Clean Air Act Accidental Release Prevention Program, and about the U.S. DOL’s Request for Information on “Modernization” of OSHA’s PSM Standard. This CFATS program ANPR is the third prong action under the President’s EO.

In a recent blog, Caitlin Durkovich, the DHS Assistant Secretary for Infrastructure Protection, commented that “the CFATS program is an important part of our nation’s counterterrorism efforts as we work with our industry stakeholders to keep dangerous chemicals out of the hands of those who wish to do us harm. Since the CFATS program was created, DHS has actively engaged with industry to identify and work with high-risk chemical facilities to ensure they have security measures in place to reduce the risks associated with the possession of chemicals of interest. While there is still work to be done, DHS to date has approved nearly 1,000 facility site security plans and the pace to approve and inspect facilities continues to improve.”

Initially DHS had issued CFATS as an interim final rule. 72 Fed. Reg. 17688 (April 9, 2007). In November 2007, the Department adopted as Appendix A to CFATS (72 Fed. Reg. 65396) a final list of over 300 “Chemicals of Interest” (COI) that were listed as posing “significant risks to human life or health if released, stolen or diverted, or sabotaged.” Publication of the Appendix A list of COI brought the CFATS interim final rule into “full effect.”

Under the rules facilities that were initially determined by DHS to be “high-risk” needed to complete and submit a Security Vulnerability Assessment (SVA). If DHS made a final determination that a facility was high-risk, then that facility would be required to submit a Site Security Plan (SSP) for DHS approval. DHS points out in a fact sheet that “more than 48,000 preliminary assessments [(Top-Screens)] were reviewed by DHS from facilities with Chemicals of Interest. 3,986 facilities are currently covered by CFATS….  1,838 Security Plans [are] authorized.” DHS has now notified more than 8,895 facilities that they have been initially designated as “high-risk” and are now required to submit SVAs.

Generally, through this ANPR, the DHS is inviting interested persons to submit written comments, data, or views on how the current CFATS regulations might be improved. Specifically, DHS is asking for comments on the following topics:

  1. The information submission processes (i.e., the Top-Screen, SVA, and SSP submissions) and associated schedules;
  2. The means and methods by which facilities claim a statutorily exempt status and whether or not commenters think that deletions, additions or modification to the list of exempt facilities should be considered;
  3. The use of Alternate Security Programs in lieu of SVAs and, in particular, the current limitation on the use of Alternate Security Programs in lieu of SVAs to Tier 4 facilities;
  4. The, scope, tier applicability and processes for submitting and reviewing SSPs and Alternate Security Programs;
  5. The processes for submitting and evaluating requests for redetermination by chemical facilities previously determined by DHS to be high-risk; and
  6. The issuance of orders and the regulatory enforcement process.

Written comments on the ANPR are due on October 17, 2014.

By Jeryl L. Olson and Craig B. Simonsen

The U.S. Environmental Protection Agency, in response to Executive Order 13650, Improving Chemical Facility Safety and Security (EO), is publically, through a Federal Register notice, requesting public comments on “potential revisions” to its Risk Management Program. 79 Fed. Reg. 44604 (July 31, 2014).

This request is part of an effort highlighted in a recent publication of the EPA, the U.S. Department of Labor, and the Department of Homeland Security’s first joint Report for the President, entitled “Actions to Improve Chemical Facility Safety and Security – A Shared Commitment,” published under the August 2013, Executive Order 13650. The EO was intended to enhance the safety and security at chemical facilities and reduce risks associated with hazardous chemicals to owners and operators, workers, and their neighboring communities.

The new information request by EPA follows an earlier December 2013 OSHA Request for Information on “Modernization” (which Request for Information was also a public request through a Federal Register Notice) of OSHA’s PSM Standard, also in response to Executive Order 13650. In its Request for Information, OSHA requested comments (78 Fed. Reg. 73756) both from regulated facilities specifically, but also generally from the public (including first responders, potentially impacted employees and their representatives, and neighboring communities). Information was requested on potential revisions to OSHA’s Process Safety Management (PSM) standard, its Explosives and Blasting Agents standard, its Flammable Liquids standard, its Spray Finishing standard, and potential changes to its PSM enforcement policies.

Now, nearly a year after the publication of the President’s EO, and half a year after OSHA’s Request for Information, comes EPA with its thirty page Request for Information directed both facilities that produce, handle, process, distribute, or store greater than a threshold quantity of any listed toxic or flammable extremely hazardous substance regulated under EPA’s Risk Management Program (section 112(r) of the Clean Air Act), but also generally from the public (including again, first responders and neighboring communities). EPA is asking for “information and data on specific regulatory elements and process safety management approaches, the public and environmental health and safety risks they address, and the costs and burdens they may entail.”

As with the OSHA RFI, although the EPA Request for Information is directed in part at specific entities, it is not being sent directly to specific companies; rather EPA is soliciting information though a Federal Register notice. The Agency indicates that it will consider the information it receives, and then decide what, if any, further action is necessary at that time.

Public comments and information submittals, in this Docket, EPA–HQ–OEM–2014–0328, are due on October 29, 2014.