By Brent I. Clark, Benjamin D. Briggs, Mark A. Lies, IIAdam R. YoungIlana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: Cal/OSHA announced that it has cited eleven employers for not protecting employees from COVID-19 exposure during inspections of industries where workers have an elevated risk of exposure. The industries include food processing, meatpacking, health care, agriculture and retail. The employers were cited for various violations including some classified as serious, with proposed penalties ranging from $2,025 to $51,190.

Cal/OSHA’s Chief Doug Parker said in the announcement that “we have identified these industries as priorities in our strategic enforcement efforts to make sure employers have adequate COVID-19 infection prevention procedures in place.” “These are industries where workers have been disproportionately affected, and these citations are the first of many to be issued in the coming weeks and months.” Emphasis added.

The notice indicates that “the inspections were opened after notification of serious illnesses, complaints of workplace hazards and after proactive joint enforcement efforts.”

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 Brent I. ClarkMark A. Lies, IIAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: With Hurricane Laura drenching the Gulf Coast, employers are facing daunting emergencies, safety and health risks, property damage, employee disruption, and re-building.  

Introduction

Authorities are closely monitoring the ongoing hurricane season as Hurricane Laura 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:

  • Procedures for protecting employees from COVID-19 during the emergency;
  • 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. The OSHA Region 4 Administrator had 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 COVID-19 hazards,
  • Exposure to hazardous materials such as asbestos, mold, lead, or chemicals;
  • Downed power lines and trees;
  • Heat illness, including the complications of wearing face masks in the muggy August climate;
  • Confined spaces;
  • Blood borne diseases or other contagions;
  • Mosquito borne diseases; and
  • Structural destabilization.

OSHA’s website provides a Hurricane eMatrix 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 Brent I. Clark, Mark A. Lies, IIAdam R. Young, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The CDC published guidance aimed at assisting retail and service companies in limiting workplace violence against or involving their employees that may be associated with enforcing face mask mandates and other COVID-19 precautions.

On March 30, 2020, the United States Centers for Disease Control and Prevention (CDC) modified its guidance to recommend that all Americans who are able wear face masks in public places should do so to reduce the likelihood of disease transmission. Shortly thereafter, federal OSHA issued its COVID-19 Guidance for Retail Workers, in which the agency recommends that retailers “allow workers to wear masks over their nose and mouth to prevent them from spreading the virus.”  Since that time, the majority of state and local jurisdictions have recommended or mandated face masks for individuals in retail stores, including both employee and customers. Many state agencies have begun patrolling retailers and threatening enforcement based on customers and employees observed flouting face mask and social distancing requirements.

Masks are not the only COVID-19 protections that state and local jurisdictions have mandated or recommended in retail settings. Other protections include: required social distancing, cleaning and disinfecting protocols, capacity requirements, and others. All of these are aimed at allowing retailers to remain operational while attempting to protect both employees and customers from infection.

Retailer policies mandating the use of face masks and other requirements set forth by state and local jurisdictions, and attempts to enforce those policies, have resulted in workplace violence incidents against retail employees. According to media reports, customers refusing to wear masks have wiped their nose on an employee’s clothing, coughed or sneezed on employees or other customers, broken an employee’s arm, and fatally shot an employee, among other incidents. See, e.g., https://abcnews.go.com/US/incomprehensible-confrontations-masks-erupt-amid-covid-19-crisis/story?id=70494577; https://www.cnn.com/videos/us/2020/05/12/target-store-mask-fight-orig-mg.cnn; https://www.nytimes.com/2020/05/08/us/coronavirus-masks-dollar-store-shooting-flint-Michigan.html.

Under the Occupational Safety and Health Act’s General Duty Clause, employers have a duty to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). State-plan OSH agencies have similar provisions in their state-specific OSH Act. Type II workplace violence, directed at employees by a customer or client, is a recognized hazard in the retail industry. See https://www.osha.gov/workplace-violence. Further, the Occupational Safety and Health Administration enforces employers’ duty to protect employees against workplace violence, through citations and litigation before the Occupational Safety and Health Review Commission.

The CDC issued non-mandatory guidance with strategies to limit violence towards workers that may occur when businesses put in place policies and practices to help minimize the spread of COVID-19 among employees and customers. Specifically the CDC references its Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19) for general business guidance on preventing COVID-19.

The guidance offers Resources and Trainings on Workplace Violence, including:

The guidance also recommends employee training for warning signs and response. It suggests that “employee training on workplace violence [] cover[] definitions and types of violence, risk factors and warning signs for violence, prevention strategies, and ways to respond to threatening, potentially violent, or violent situations.” The guidance specifically recommends de-escalation training for employees.

The guidance also provides several illustrations, with one related to action that can be taken to prevent workplace violence, and the other regarding basic dos and don’ts for employees to prevent workplace violence:

Image from CDC

This guidance is non-mandatory, but may be helpful for employers addressing the issue of face-mask mandates, other COVID-19 prevention measures, and aggressive enforcement positions from state agencies.

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

Seyfarth Synopsis: Commission’s approval of undocumented training provides blueprint for employee misconduct claims for employers going forward.

In a July 28, 2020, Occupational Safety and Health Review Commission (OSHRC) decision, Angel Brothers Enterprises, Ltd., (Docket No. 16-0940), the Commission upheld Administrative Law Judge (ALJ) Heather A. Joys’ decision affirming a willful OSHA citation, rejected Angel Brothers Enterprises, Ltd. (Angel’s) unpreventable employee misconduct (UEM) affirmative defense, and assessed a $35,000 penalty.

Angel is a construction contractor that digs over 1,000 excavations each year. On December 8, 2015, Angel began working on the installation of a concrete drainage pipe alongside a road in LaPorte, Texas. The following day, an OSHA compliance officer (CSHO) arrived at the worksite to conduct an inspection. During the inspection, the foreman admitted to the CSHO that he had allowed an employee to work in the excavation, which was no longer benched and lacked a trench box. The Agency issued a willful violation under the trenching construction regulation.

The Company argued that the violation was the result of employee misconduct, including the difficult-to-prove area of supervisory misconduct. To establish employee misconduct, an employer must be able to show that it had (1) a safety rule in place addressing the hazard, (2) effective training on that safety rule, (3) adequate supervision of employees for compliance with that safety rule, and (4) effective enforcement of violations of the safety rule. Supervisory misconduct requires a further showing of unforeseeable conduct on the part of the supervisor.

As to the UEM element requiring effective enforcement of safety rules, the ALJ held that Angel did not effectively enforce its safety rules upon discovering violations. Specifically, the ALJ focused on the employer’s failure to identify or correct an employee’s answers to three questions about cave-in protection on a “Pre-Task Plan” form for the project on three consecutive days. ALJ Joys considered this three-day pattern analogous to the facts in Dana Container, Inc., 25 BNA OSHC 1776 (No. 09-1184, 2015), aff’d, 847 F.3d 495 (7th Cir. 2017), in which the Commission found that a consistent failure to correct errors on “entry permit” forms demonstrated a lack of enforcement.

Though the Commission affirmed that the employer had not proved UEM, the Commission provided helpful guidance on the elements required for proving the UEM defense. Judge Joys held that Angel could not prove adequate communication of the safety rule, because its training was on-the-job, verbal, not fully documented, and contradicted by other testimony. The Commission instead found the evidence “more than sufficient to meet Angel’s burden of proving adequate communication,” despite the lack of documentation. The Commission relied on testimonial evidence of toolbox talks, orientation training sessions, competent person training, and Spanish-language instruction for Spanish-speaking employees.

Employee misconduct is the most common defense to OSHA citations. Employers should be aware that many citations are defensible and should be contested or appealed, particularly where they result from incidences of employee misconduct. Though OSHA is a document-driven agency, the Commission has confirmed that training documentation cannot and need not exist in a written form for all safety training that takes place. Employers should consult with counsel to develop any defense to OSHA citations.

For more detail as to other steps an employer must take based upon the specific risk level identified during the initial exposure assessment, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Jeryl L. Olson, Patrick D. JoyceKay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis: On August 5, 2020, the U.S. Environmental Protection Agency (EPA or Agency) released a final memorandum on “Guidance on Plantwide Applicability Limitation Provisions Under the New Source Review Regulations.”

The guidance memorandum is, according to EPA, intended to increase the use of an air permitting option little-used by, but potentially favorable to industry, by improving understanding of PAL by stakeholders. According to EPA, confusion caused by previous guidance has led to a relative low adoption rate in the 17 years PALs have been in existence; from industry’s prospective however, the process for obtaining a PAL is formidable, particularly because state permitting agencies have little or no experience with PALs and are reluctant to take the “leap of faith” necessary to make PALs attractive to industry.

PALs are an optional, flexible permitting mechanism that involves the establishment of a plantwide emissions limit, (in tons per year), for specific pollutants. Once established, changes to facility operations that affect that pollutant can forego New Source Review (“NSR”),  a costly and time consuming process for industry. The PAL provides a permittee the ability to manage process changes (modifications) without triggering major NSR and the need to conduct project-by-project major NSR applicability analyses. To qualify a PAL, EPA’s regulations require a source to conduct monitoring, recordkeeping and reporting of the actual emissions of a PAL pollutant on a 12-month rolling basis (which most sources do already).

While industry is generally familiar with the option, EPA’s guidance appears to be  intended to address specific concerns raised by non-permittee “stakeholders” on the PAL provisions and to generally improve the understanding of PALs by the public. According to EPA, particular concerns raised by stakeholders are addressed in the guidance, and include discussions of : (1) PAL Permit Reopening, (2) PAL Expiration, (3) PAL Renewal, (4) PAL Termination, (5) Monitoring Requirements for PALs, (6) Emission Factor Adjustment, (7) Validation Testing, (8) Missing Monitoring Data, (9) Baseline Actual Emissions for Replacement Units, and (10) General Advantages of PALs and Other Considerations.

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

Seyfarth Synopsis: Today we will begin posting a monthly summary of our Workplace Safety and Environmental blogs posted over the month, as a way to keep you connected and aware of the latest thought leadership. As always, readers are encouraged to reach out to our authors with and comments or questions raised from the blogs.

First Employer Cited For Violating Washington’s Safe Start Order

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

EPA Ends Enforcement Discretion Policy for COVID-19 Pandemic on August 31

Seyfarth Synopsis: On June 29, 2020, U.S. Environmental Protection Agency (EPA) issued a memorandum regarding termination of the COVID-19 temporary enforcement policy. EPA has selected August 31, 2020 as the termination date for its temporary enforcement policy. Also updated were EPA’s Frequent Questions About the Temporary COVID-19 Enforcement Policy.

OSHA Updates FAQs on Face Masks in the Workplace

Seyfarth SynopsisThe Occupational Safety and Health Administration has updated its frequently asked questions and answers to advise employers about the use of face masks in the workplace.

EPA Proposes Amendments to Air Toxics Standards for Industrial, Commercial, and Institutional Boilers and Process Heaters NESHAP

Seyfarth Synopsis: The U.S. Environmental Protection Agency has released a pre-publication copy of its proposed amendments to the Air Toxics Standards for Industrial, Commercial, and Institutional Boilers and Process Heaters at Major Source Facilities, 40 CFR Part 63. The proposed rules establish new emissions limits for a large number of chemicals, and impose significant obligations on affected parties utilizing a variety of boilers.

Virginia Adopts Emergency Workplace Safety Regulations

Seyfarth Synopsis: In late May, Virginia Governor Ralph Northam directed the state’s Department of Labor and Industry to develop emergency temporary standards to prevent workplace exposure to COVID-19. Those rules were adopted on July 15, 2020.

By Benjamin D. BriggsPatrick D. Joyce, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: In late May, Virginia Governor Ralph Northam directed the state’s Department of Labor and Industry (DLI) to develop emergency temporary standards to prevent workplace exposure to COVID-19. Those rules were adopted on July 15, 2020. 

Federal OSHA has only issued guidance related to COVID-19 compliance, proceeding with enforcement under existing regulations and the General Duty Clause. 22 states, including Virginia, operate State Plans that enforce safety standards against private employers and have the authority to issue their own safety regulations.

Governor Northam, in a July 15, 2020, news release, announced the adoption of statewide emergency workplace safety standards in response to the Novel Coronavirus (COVID-19). “These first-in-the-nation safety rules will protect Virginia workers by mandating appropriate personal protective equipment, sanitation, social distancing, infectious disease preparedness and response plans, record keeping, training, and hazard communications in workplaces across the Commonwealth.”

The Virginia Department of Labor and Industry’s 14-member Safety and Health Codes Board voted to approve an emergency temporary standard (ETS) on infectious disease prevention. The ETS will remain in effect for six months and sunsets either six months after its effective date (which was July 27, 2020), or when it is superseded by a permanent rule.

Notably, the Emergency Rule includes a provision that protects employers who comply with guidance from the Centers for Disease Control and Prevention (CDC) related to mitigation of COVID-19 in the workplace. To the extent employers in Virginia comply with CDC guidelines that are as stringent as or more stringent than the provisions in Virginia’s Emergency Rule, they will be deemed in compliance with the Emergency Rule.

The Emergency Rule requires employers to analyze job tasks on a task-by-task basis (not on an employee-by-employee basis as originally proposed). Similar to Federal OSHA’s Guidance on Preparing Workplaces for COVID-19, the Emergency Rule breaks exposure risk levels into four categories: “very high,” “high,” “medium,” and “lower.” “Very High” risk jobs include activities that involve aerosol-generating procedures or working with known COVID-19 patients or specimens. “High” risk jobs include activities in the healthcare, first responder, medical transport, and mortuary services industries. “Medium” risk jobs are those that involve working in close-quarters with others or those with regular contact with the public such as educational settings, grocery stores, correctional settings, personal care, fitness, public transportation, and healthcare settings where exposure to COVID-19 is not expected. “Lower” risk jobs are those that do not fit into one of the other categories.

Employers with job tasks classified as “Very High” or “High,” as well as employers with greater than 10 employees with job tasks classified as “Medium” must prepare an Infectious Disease Preparedness and Response Plan, as outlined in the Emergency Rule.

Employers with job tasks at all risk levels must conduct an exposure assessment, notify employees of risks associated with COVID-19, notify employees that they should not report to work if they have or are suspected to have COVID-19, educate employees on how to prevent exposure to COVID-19 as well as the signs and symptoms of the illness, inform employees how to report to the employer of COVID-19 symptoms or that they have been confirmed positive with COVID-19. The Emergency Rule also contains provisions related to flexible sick-leave policies and notifying contractors and building owners of confirmed COVID-19 cases. Finally, all employers must prepare return to work policies and procedures including methods to identify COVID-19 cases, conduct workplace disinfection, and implement other measures that are protective of employee safety and health.

Virginia is leading the State Plan states (and federal OSHA) with its complex and comprehensive COVID regulations.  The Washington State Department of Occupational Safety and Health issued its own temporary emergency rule in late-May, though it is not as complex or comprehensive as Virginia’s Emergency Rule.

For more detail as to other steps an employer must take based upon the specific risk level identified during the initial exposure assessment, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Jeryl L. Olson, Rebecca A. DavisAndrew H. PerellisPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Environmental Protection Agency (EPA or Agency) has released a pre-publication copy of its proposed amendments to the Air Toxics Standards for Industrial, Commercial, and Institutional Boilers and Process Heaters at Major Source Facilities, 40 CFR Part 63. The proposed rules establish new emissions limits for a large number of chemicals, and impose significant obligations on affected parties utilizing a variety of boilers.

The current version of the national emission standards for the control of hazardous air pollutants (NESHAP) were finalized with amendments in 2013 for the purpose of controlling hazardous air pollutants (HAP) at major sources from new and existing industrial, commercial, and institutional boilers and process heaters. The currently proposed amendments are EPA’s response to three separate remands from decisions of the United States Court of Appeals for the District of Columbia Circuit.

The first two remands both arise out of the 2016 case of U.S. Sugar Corp. v. EPA. In the first remand, the Court sought further explanation for emission standards for subcategories of boilers where it determined EPA had improperly excluded certain units in calculating maximum achievable control technology (MACT) floor emission limits. In the second remand, the U.S. Sugar Corp. Court also remanded for EPA to provide further explanation regarding its decision to use carbon monoxide (CO) as a surrogate for organic HAP emissions. The third remand was from March 2018 where, in the case of Sierra Club, et al. v. EPA, the Court remanded for “further explanation EPA’s decision to set a limit of 130 ppm CO as a minimum standard for certain subcategories of boilers.”

To address the first remand the amendments propose 34 recalculated MACT emission limits for certain subcategories of boilers. To resolve the other two remands, the proposed amendments provide the Court with an explanation on available control technologies to reduce organic HAP emissions without involving CO, and to address whether the best performing boilers might be using alternative control technologies to reduce organic HAP. The proposed amendments also explain “EPA’s decision to establish 130 parts per million (ppm) as the lowest (i.e., most stringent) emission limit for CO consistent with the requirements of the Clean Air Act.”

While according to the Agency, the proposed changes will protect air quality and reduce emissions of HAPs, the Agency also admits the rules, if adopted, will only reduce HAPS by 244 tons per year, at a cost to industry of more than $21.5 million (that is, a cost of $88,000 per ton of reduction).

The Agency notes that if “anyone contacts us requesting a public hearing on or before [5 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER], it will hold a virtual public hearing. Comments may be submitted to Docket ID No. EPA-HQ-OAR-2002-0058, or by email to a-and-r-docket@epa.gov, Attention Docket ID No. EPA-HQ-OAR-2002-0058.

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

By James L. CurtisAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: The Occupational Safety and Health Administration (OSHA) has updated its frequently asked questions and answers to advise employers about the use of face masks in the workplace.

We had blogged previously about face masks at work. See DOL Issues FAQs About Face Coverings, Surgical Masks, and Respirators in the Workplace, Nothing Comes Close To The Golden Coast: California Requires Masks, New York Issues Executive Order Requiring Employers to Provide Essential Workers with Face Masks, and New CDC Face Mask Guidance Raises Liability Issues.

Now the OSHA FAQs indicate that “OSHA generally recommends that employers encourage workers to wear face coverings at work. Face coverings are intended to prevent wearers who have COVID-19 without knowing it (i.e., those who are asymptomatic or pre-symptomatic) from spreading potentially infectious respiratory droplets to others. This is known as source control.” Consistent with the Centers for Disease Control and Prevention (CDC) recommendation for all people to wear cloth face coverings when in public and around other people, “wearing cloth face coverings, if appropriate for the work environment and job tasks, conserves other types of personal protective equipment (PPE), such as surgical masks, for healthcare settings where such equipment is needed most.”  OSHA explains that:

Employers have the discretion to determine whether to allow employees to wear cloth face coverings in the workplace based on the specific circumstances present at the work site. For some workers, employers may determine that wearing cloth face coverings presents or exacerbates a hazard. For example, cloth face coverings could become contaminated with chemicals used in the work environment, causing workers to inhale the chemicals that collect on the face covering. Over the duration of a work shift, cloth face coverings might also become damp (from workers breathing) or collect infectious material from the work environment (e.g., droplets of other peoples’ infectious respiratory secretions). Workers may also need to use PPE that is incompatible with the use of a cloth face covering (e.g., an N95 filtering facepiece respirator).

OSHA concludes that where cloth face coverings are not appropriate in the work environment or during certain job tasks, “employers can provide PPE, such as face shields and/or surgical masks, instead of encouraging workers to wear cloth face coverings. Like cloth face coverings, surgical masks and face shields can help contain the wearer’s potentially infectious respiratory droplets and can help limit spread of COVID-19 to others.”

While OSHA offers face shields as an alternative where face coverings are not feasible, no federal agencies have certified face shields as an equally effective alternative means of protection.  The CDC explains that “it is not known if face shields provide any benefit as source control to protect others from the spray of respiratory particles. CDC does not recommend use of face shields for normal everyday activities or as a substitute for cloth face coverings.”

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

By Andrew H. PerellisJeryl L. OlsonPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: On June 29, 2020, U.S. Environmental Protection Agency (EPA) issued a memorandum regarding termination of the COVID-19 temporary enforcement policy. EPA has selected August 31, 2020 as the termination date for its temporary enforcement policy. Also updated were EPA’s Frequent Questions About the Temporary COVID-19 Enforcement Policy.

In support of the U.S. Government’s overall response to the COVID-19 pandemic, EPA previously issued a temporary enforcement discretion policy, COVID-19 Implications for EPAs Enforcement and Compliance Assurance Program (3/26/2020), that applied to civil violations during the COVID-19 outbreak. See our earlier blog, EPA Enforcement Discretion Policy for COVID-19 Pandemic, for detailed discussion of the temporary policy.

EPA has now announced that this temporary policy will terminate on August 31, 2020, and EPA will return to its pre-COVID enforcement guidelines. This means that the EPA will not base any exercise of enforcement discretion on this temporary policy for any noncompliance that occurs after August 31, 2020.

According to EPA, it is terminating its temporary policy because “new federal guidelines and directives have been issued to support both the public health response and economic recovery efforts, and many parts of the country have already taken steps to relax social distancing restrictions in parts or all of individual states, with the goal of returning to normal operations. As state and local restrictions are relaxed or lifted, so too may the restrictions that potentially impede regulatory compliance, reducing the circumstances in which the temporary policy may apply.”

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