Seyfarth Synopsis: California Department of Industrial Relations’ (DIR) Occupational Safety and Health Standards Board adopted a California OSHA emergency temporary standard regarding COVID-19. The emergency temporary standard will go into effect after it is reviewed and approved by the California Office of Administrative Law, which may be as soon as November 29, 2020. It brings with it new documentation, COVID-19 testing, wage payment, and reporting obligations affecting most companies.

If you’ve been following our blogs, you know that Cal/OSHA’s draft emergency standard was the topic of the Standards Board’s November 19, 2020 meeting. The meeting, which began at 10 a.m. PST and went well into the evening, concluded with the Board unanimously voting to approve the COVID-19 Emergency Temporary Standard (ETS) as drafted by Cal/OSHA, despite its many flaws. The Board acknowledged that the standard has flaws, and consequently requested that Cal/OSHA (a.k.a. the Division of Occupational Safety and Health) convene an Advisory Committee meeting in December to work on improvements with stakeholders. Representatives from labor and management, and other occupational safety and health professionals, will be invited to participate on the Committee. But in the meantime, employers can expect the ETS to become effective as soon as November 29, 2020, depending on when the Office of Administrative Law (OAL) approves the standard and submits it to the Secretary of State. The public will have an opportunity to comment on the standard before the OAL makes a decision, but the general belief is that OAL will also approve the standard as written.

Concerns about the ETS are numerous. Generally, the regulation has been criticized as redundant of already existing state and local requirements, as well as Cal/OSHA’s Injury Illness Prevention Program (“IIPP”) standard, which the Division has been using throughout the pandemic to enforce COVID-19 safety and health at workplaces throughout California. In fact, the Standard Board’s own staff recommended against an ETS for that very reason. Comments from Board members during the November 19, 2020, meeting implicitly confirmed, however, the tremendous pressure felt by the Board in the face of a public health calamity. Despite the near certainty that the ETS will add complexity and confusion to an already difficult regulatory landscape with, at best, minimal improvement to workplace safety and health, the Board wants a clear conscience.

What Are The Biggest Developments For Our Company To Watch Out For?

The ETS will not apply to employees that are already covered under the Cal/OSHA Aerosol Transmissible Diseases standard, employees working from home, and single-employee employers who do not have contact with others.

For employers not excepted, some of the provisions of the ETS that are already causing heartburn and confusion are:

  • Whenever there has been a COVID-19 case at a workplace, employers must “offer COVID-19 testing at no cost to employees during their working hours to all employees who had potential COVID-19 exposure in the workplace.”
  • The ETS notification provisions that apply within one business day when a COVID-19 case has been identified in the workplace are not the same as what’s required under AB 685 (which goes into effect January 1, 2021), addressed in our blog here. For example, AB 685 requires the notice to be written and the ETS does not. AB 685 requires notification to “employers of subcontracted employees,” whereas the ETS also requires notification to independent contractors who were present at the workplace. Other inconsistencies exist too, seemingly just semantic. For example AB 685 refers to a COVID-19 “infectious period” whereas the ETS refers to a “high-risk exposure period,” both apparently in reference to the relevant time period employers must use when evaluating who may have had a COVID-19 exposure. These periods are defined essentially the same under AB 685 and the ETS.
  • Employers will be required to track and record all COVID-19 cases with the employee name, contact information, occupation, location where the employee worked, the date of the last day at the workplace, and the date of a positive COVID-19 test. The information must be made available to employees and authorized employee representatives (with personal identifying information removed). It’s foreseeable that employees and unions may use this information to question employer’s analysis of whether certain COVID-19 infections are “work-related.”
  • Employers will be required to “evaluate the need for respiratory protection in accordance with [the Cal/OSHA Respiratory Protection Standard, 8 CCR 5144] when the physical distancing requirements…are not feasible or are not maintained.” The physical distancing requirement is that employees must be separated by 6 feet, and although there are exceptions for momentary or incidental exposures while employees are moving around and where employers can demonstrate that six feet of separation is not “possible,” the ETS has the potential to bring many employers under the Respiratory Protection Standard. Notably, and quite concerning, is Cal/OSHA’s use of “possible,” which is seemingly more difficult to avoid than “feasible.”
  • In what has been criticized as a staggering Cal/OSHA over-reach, the ETS mandates that when employees are excluded from work for certain COVID-19 related reasons, “employers shall continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits, including the employee’s right to their former job status.” While some current paid sick leave laws, like the California Supplemental Paid Sick Leave law (which we blogged about here), provide that an employee may choose to use up to 80 hours of paid sick time to replace earnings while they are kept out of work due to concerns about spreading COVID-19, the new Cal/OSHA ETS mandates that employers pay for this time and provides no cap on the amount of earnings that must be continued if employees are excluded from work. This eviscerates the cap on paid time set forth in Labor Code 248 and 1, as well as the 500 employee threshold imposed by the statewide law. The only bright spots for employers are that benefit payments from public sources may be considered in maintaining earnings, and the provision does not apply where there employer demonstrates the COVID-19 exposure is not work related.
  • Despite already existing requirements for employers when there are COVID-19 workplace “outbreaks,” the ETS includes additional testing, investigation, correction, and notification requirements, and creates two categories for when these requirements attach: “Multiple COVID-19 Infections and COVID-19 Outbreaks” and “Major COVID-19 Outbreaks.”
  • For employers that provide housing and transportation to employees, there are special requirements such as ensuring housing units are cleaned at least once a day, providing 6 feet of distancing in dormitories, and providing private spaces for exposed employees to isolate.
  • The proposed standard also includes various other requirements, such as creation of a written COVID-19 Prevention Program, which appears to be nearly duplicative of an IIPP.

What Happens If Our Company Isn’t In Compliance With The ETS?

Non-compliance with the new ETS can result in a fine in accordance with the Division’s penalty structure. Different penalties attach to the different classifications of citations, which are Regulatory, General, Serious, Repeat, and Willful. Regulatory penalties typically attach to posting and recordkeeping requirements, General is typically for violations having some non-serious relationship safety and health, and Serious may attach if there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation.

Given the seriousness of COVID-19, many if not most, alleged violations in connection with COVID-19 would likely be classified as Serious. If any violation under any classification is found by Cal/OSHA to be substantially similar to a violation issued in the five years prior, it can be classified as Repeat. And a Willful citation is issued if Cal/OSHA determines the employer either knew what it was doing was a violation, or was aware of an unsafe condition, and made no reasonable effort to eliminate it.

Penalty amounts run the gamut, with the maximum penalty for Regulatory or General being $13,277, the maximum for Serious being $25,000, and the maximum for Repeat or Willful being $132,765.

Is There Any Light At The End Of The Tunnel?

If reading this is causing you to sweat, perhaps find comfort in words Cal/OSHA’s Chief and Deputy Chief offered during the Board meeting. These top officials said there “might” be delayed enforcement to allow employers to come into compliance. They also assured the regulated community that Cal/OSHA would publish a model COVID-19 Prevention Program, FAQs, and guidance, though they made no indication of when this might occur. And on the issue of wage continuation, they assured employers that the Division’s counsel confirmed this was within their authority.

Workplace Solutions

This is a rapidly developing area that we are closely tracking. We will update our readers as additional guidance or legal challenges develop with the new ETS. 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) or COVID-19 Task Force Team.

By Brent I. Clark, Mark A. Lies, II, Benjamin D. BriggsJames L. CurtisA. Scott HeckerPatrick D. Joyce, and Adam R. Young

Seyfarth Synopsis: As the prospects of a likely Biden administration develop a key question becomes what should employers expect from OSHA under Biden? A COVID-19 Emergency Temporary Standard, aggressive enforcement, and a shift in priorities.

We predict OSHA’s priorities in a Biden administration based on campaign talking points, the Democratic House’s actions in the past two years, and experience from the Obama administration.

COVID-19 Emergency Temporary Standard

Employers can expect OSHA under Biden to direct resources to issuing a COVID-19 Emergency Temporary Standard (ETS). Most OSHA jurisdictions do not have a specific COVID-19 standard. However, some states have promulgated COVID-19 specific standards. State-plan OSHA agencies in Virginia, Oregon, and Michigan have each adopted COVID-19 standards that are likely to provide a good indication of what requirements a federal OSHA ETS might include:

  • developing and implementing a preparedness and response plan;
  • social distancing;
  • screening;
  • practicing proper hygiene and other infection control measures;
  • assessing exposure risks;
  • masking;
  • notifying public health departments about positive employee tests;
  • recordkeeping; and
  • training.

States that have implemented a COVID-19 ETS have mandated that employers provide training, signage, and other types of employee communications in languages common to employee populations, and OSHA could follow suit. Biden appointed a COVID advisory commission on November 9, and a Biden administration OSHA will likely hit the ground running on January 20, 2021 working toward an ETS.

Aggressive Use of Citations and Enforcement

We expect OSHA to push for more egregious cases (i.e., instance-by-instance willful citations resulting in $500,000 or more in penalties), with support from DOL’s Solicitor’s Office in coordinating and pursuing these matters. Even with an enhanced focus on allegedly egregious, high-dollar cases, we anticipate a Biden administration to expand the term “bad actor.”  OSHA might be better served following data to pursue the most problematic employers, but the agency can sometimes lose focus in labeling all employers “bad.” Aligned with this more aggressive enforcement approach, we expect to see:

  • more inspections, more citations, more willful and repeat citations;
  • increased use of the multi-employer citation doctrine;
  • skepticism about employer safety incentive programs; and
  • reduced use of cooperative programs and partnerships with employers (like OSHA’s Voluntary Protection Programs).

We anticipate expanded efforts to encourage whistleblowers to report perceived violations through a streamlined process, supplemented with increased resources. OSHA enforces more than 20 federal whistleblower laws, so its reach in this area goes beyond just the OSH Act.

A Biden administration may also look to wrest federal control from the states that have been active in areas where federal OSHA either has not shown interest or has not gained traction. We expect that OSHA will continue to turn to the General Duty Clause as its enforcement catchall while these more specific standards wind their way through the rulemaking process. We expect aggressive enforcement in the areas of heat illness and infectious disease, for instance.

Recordkeeping and Public Shaming

More stringent recordkeeping requirements and increased use of employer records in enforcement are likely under a Biden OSHA. “Publicity as deterrence” is something Dr. Michaels, the head of OSHA under Obama, talked about often, and the Trump administration’s efforts to limit publication of violations will likely disappear. Biden’s OSHA may reverse course, publicizing citations to shame employers into compliance. Beyond recordkeeping and an ETS, implementation of workplace violence and heat illness standards could be among the Biden administration’s initial regulatory priorities.

Filling Leadership Roles

President Trump governed for his entire administration without a political head of OSHA (Assistant Secretary of Labor), as the Senate never voted on the nomination. Assuming President Biden is able to get an Assistant Secretary nominee confirmed by the Senate, the mere appointment of politically confirmed leadership in OSHA’s Assistant Secretary role will differ from the Trump administration. OSHA’s current Principal Deputy, Loren Sweatt, has been at the controls for years, but given her acting role, she has been circumscribed in implementing her agency vision. OSHA’s Director of Enforcement role has also been filled on an acting basis for an extended period. Finding permanent personnel to execute these roles will likely provide more political heft behind OSHA’s policy-making decisions. Appointing someone aligned with former Assistant Secretary Dr. David Michaels – like Dr. Michaels’ former deputy Jordan Barab – could drastically change OSHA’s enforcement approach. Unions will certainly have more and bigger seats at the table in a Biden OSHA, and with them Union priorities may be increasingly incorporated into OSHA policy.

Budget Dependent?

It is yet to be seen whether OSHA’s budget will be increased. However, it is clear that many significant policy and enforcement decisions will be affected by the budget allotted to 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, Ilana R. Morady, and Patrick D. Joyce

Seyfarth Synopsis: Last month we blogged about the Cal/OSHA Occupational Safety and Health Standards Board’s unanimous vote for a COVID-19 temporary emergency standard and a permanent infectious diseases standard. Cal/OSHA was tasked with drafting proposed text for the temporary emergency standard by the Standard Board’s November 19, 2020 meeting, and it did so last week, bringing the regulated community one step closer to contending with yet more COVID-19-related Cal/OSHA requirements.

The draft emergency standard will be presented and discussed at the Board’s November 19, 2020 meeting, which interested parties can attend via video conference. Before the Standards Board can adopt the temporary emergency standard, there will be a brief notice and comment period, after which the Standard Board will approve the standard. The Office of Administrative Law will also need to approve the temporary standard, and once the temporary standard is filed with the Secretary of State, it will become effective immediately. After this process has completed, employers can expect to see the temporary emergency standard effective by the end of the year. A permanent infectious diseases standard is a longer way off.

The draft standard is already being criticized by employers as being unnecessary, given all of the infection prevention measures that are already in place under existing laws, executive orders, and guidance from Cal/OSHA and public health authorities, as well as local directives. One requirement under the proposed standard is a written COVID-19 Prevention Program, which appears to be largely redundant of Cal/OSHA’s Injury Illness Prevention Program requirements. The proposed standard also includes various other requirements, such as notification requirements that share some similarity with but are different from the requirements of AB 685 (see our blog covering AB 685), a requirement to implement recordkeeping of all COVID-19 cases in the workplace regardless of work-relatedness or where exposure occurred, a requirement to offer no cost testing to employees who have had a potential exposure, and various other requirements such as infection prevention measures, training, and return to work criteria.

Stay tuned for a summary of the standard’s requirements once the temporary emergency standard is adopted and approved.

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. BriggsPatrick D. Joyce, and Craig B. Simonsen

Seyfarth SynopsisThe Centers for Disease Control and Prevention (CDC) has updated its original recommendation for all people to wear cloth face coverings when in public and around other people, now acknowledging that face coverings not only protect others, but also protect the wearer. 

On November 9, 2020, the CDC updated its guidance to explicitly recognize that not only do face coverings provide source control, they also create a barrier that provides some level of filtration protection to the wearer.

CDC’s original April 3, 2020 guidance noted that “masks are recommended as a simple barrier to help prevent respiratory droplets from traveling into the air and onto other people when the person wearing the mask coughs, sneezes, talks, or raises their voice.” This is known as “source control,” and was presented by CDC as a method to protect others from potentially infected respiratory droplets exhaled from the wearer of the mask.

In its newly published Brief on “Community Use of Cloth Masks to Control the Spread of SARS-CoV-2,” CDC now suggests that “masks also help reduce inhalation of these droplets by the wearer (filtration for personal protection).” The Brief the outlines several studies showing a filtration benefit to the wearer, and concludes that “studies demonstrate that cloth mask materials can also reduce wearers’ exposure to infectious droplets through filtration, including filtration of fine droplets and particles less than 10 microns.”

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. CurtisAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: Oregon became the first state to decriminalize the personal possession of illegal drugs, including cocaine, heroin, oxycodone, and methamphetamine.

Oregon voters passed Measure 110 last week by a wide margin. The ballot measure reclassified possession of small amounts of a list of hard drugs as a Class E civil violation, similar to a traffic offense. A violator can avoid the associated $100 fine by agreeing to participate in a health assessment.  Possession of larger quantities of drugs will still be criminal acts, most classified as misdemeanors.  Selling and manufacturing drugs remain criminal.  The state decriminalization provisions take effect on February 1, 2021.  Of course, the hard drugs decriminalized in Oregon are still criminally enforceable by federal authorities under the federal Controlled Substances Act.

The Oregon decriminalization follows similar efforts in some European countries who have addressed minor drug possession from a public health perspective, rather than criminal justice.  Depending on changing societal attitudes towards drugs and the perceived success of the Oregon program, this new approach may be adopted by other states in the coming years.

If state legalizations of recreational marijuana provide any guide, Oregon’s Measure 110 also may lead to increased positive drug tests and workplace impairments by hard drugs, at least in the short term.  Employers may and should still prohibit the possession of and impairment by these drugs in the workplace.  Anticipating laxer attitudes towards hard drugs in Oregon, employers would be wise to train managers on reasonable suspicion factors and retrain employees on workplace zero tolerance policies, particularly for employees in safety sensitive positions.  For assistance in updating your drug policies and training employees to comply with changing state law, contact outside counsel.

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. OlsonRebecca A. Davis, and Patrick D. Joyce

Seyfarth Synopsis: As the potential for a Presidential administration change moves closer to reality, another dramatic agenda swing is possible in the environmental regulatory world, from an anti-regulation Trump administration to a pro-enforcement Biden administration. While the past four years have been about easing restrictions on businesses the next four will likely be an attempt to promote an environmental protection agenda.

Shortly after the 2016 Presidential election, we predicted a rapid and dramatic shift in environmental policies under a Trump administration including regulatory reform, energy deregulation, a 180-degree shift on climate change, and a shift in the U.S. Environmental Protection Agency’s National Enforcement Initiatives. Many of these predictions came true and some are currently in the works. Four years later, what can we expect to see under a potential Biden administration?

The Biden Administrations Environmental Agenda

Since the November 3, 2020 election, presumed President-Elect Biden has wasted no time reiterating his plans for a significant overhaul, if not a complete reversal, of Trump-era initiatives. In no uncertain terms, the Biden administration affirmed its commitment to aggressively combat climate change and its plans to re-engage with the international community to achieve these goals. One of the first expected acts of the Biden administration will be to re-join the Paris climate agreement, which was passed in 2015 as a pledge to limit global warming to well below two degrees Celsius above pre-industrial levels and ideally to 1.5 degrees Celsius. If it rejoins the agreement on January 20, 2021, the U.S. would officially be back in 30 days later.

While we will know more details in the coming months, a potential Biden administration has already telegraphed goals that include executing sweeping executive orders to address:

  • Achievement of a 100% clean energy economy, reaching net-zero emissions no later than 2050;
  • Improvement of infrastructure so that buildings, water, transportation and energy technology work to prevent, reduce and withstand a changing climate;
  • Ramping up global initiatives and incorporate combating climate change into foreign policy, national security and approaches to trade;
  • Protecting vulnerable and low-income communities from pollution; and
  • Protecting communities that rely on jobs created through oil, gas and coal.

What do these strategies mean to business, and what can we expect from a legal standpoint?

  1. Not only has Biden promised that the United States will immediately rejoin the Paris agreement, he has espoused his desire for the United States to take a larger role in global initiatives to combat climate change. Thus, we can anticipate a push toward more international cooperation and new rules and regulations, including new environmental laws targeting imports and exports.
  2. The Biden administration will focus on reducing air emissions, and likely rollback recent federal rules and policies (some as recent as from October 2020), which under the Trump administration allowed “major source” facilities to expand and upgrade without undergoing certain of the complex and time-consuming historic New Source Review procedures that previously had been a source of roadblocks to industrial expansion.
  3. Support for the United States Environmental Protection Agency (USEPA) and environmental sections of the Department of Justice will increase through increased budgets and employment opportunities. Similar to other agencies, we will likely see an increase in hiring, which will be followed by an increased number of federal inspections.  In connection with the increased quantity and frequency of inspections, the USEPA is also likely to expand the scope of enforcement actions, resulting in a more stringent regulatory environment.
  4. Penalty policies are likely to become more stringent and aggressive, and the Biden administration could force the death knell for the use of “Supplemental Environmental Projects” historically used by businesses to offset monetary penalties in enforcement settlements.
  5. Permitting may become more stringent, and businesses can expect to see increased scrutiny on permit applications for new and modified emissions sources in all areas of the country, but particularly in environmental justice areas. There also will be a tightening of regulatory limits on air emissions and water discharges across a wide range of industries.
  6. Business can expect to see continued, and even more aggressive, scrutiny of new chemicals and products or new uses of existing chemicals and products under TSCA and FIFRA.
  7. The Trump-era relaxation on wetlands permitting rules that stimulated real estate development will likely be reversed, and Obama-era rules re- implemented.
  8. Tax breaks for corporations, especially gas, oil, and coal companies, will likely be reduced or eliminated. However, we likely will see new policies and initiatives to promote renewable energy, including wind and solar power. Similar renewable resource and energy efficiency initiatives are expected for the automotive and airline industries.
  9. Enhanced protections and rehabilitation of greenspaces are expected, and oil and gas exploration and production will likely see heavier regulation. While fracking may not be banned, it may become more limited. Monetary penalties and other compensatory measures for natural resource damages stemming from the oil and coal industries will likely be increased and enhanced.
  10. To combat climate change, environmental regulations will likely overlap with, and may even be built into, other rules and regulations in the areas of trade, national policy, housing and urban development, transportation, national security and other areas. Thus, businesses will need to evaluate their standard procedures, contracts and policies to confirm compliance with new laws.

What will happen to ongoing litigation?

The Trump administration has not yet been able to work all of its policies and rollbacks of Obama-era environmental policies though the courts. We anticipate that a Biden Justice Department will abandon ongoing litigation pursued by the Trump administration, which will grind to a halt and go unresolved.

One aspect of environmental litigation that the Biden administration will have to pay attention to is the new 6-3 Conservative majority in the Supreme Court. The administration will seek to tailor new or revamped regulations to avoid legal challenges designed to appear before the Supreme Court, but such scrutiny may be inevitable.

Many outstanding questions on the scope of USEPA’s regulatory power are still ongoing from Obama-era polices such as the Clean Power Plan and the Clean Water Rule. We can expect new litigation if the Biden administration attempts to reinstate Obama-era policies or craft its own new policy.

This environmental legal whiplash has frustrated many businesses and legal practitioners. Businesses should remain cautious in their environmental endeavors and carefully consider Biden new administration policies in their business plans.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Environmental Team.

By A. Scott Hecker, Brent I. ClarkPatrick D. Joyce, and Adam R. Young

Seyfarth Synopsis: Oregon OSHA finalized its COVID-19 temporary rule, OAR 437-001-0744, Addressing COVID-19 Workplace Risks, on November 6, 2020, with most provisions effective as of November 16, 2020; the rule sunsets on May 4, 2021.  The temporary rule applies to all workplaces and includes additional requirements for workplaces with exceptional risk.  Oregon OSHA also included a series of mandatory, industry-specific directives.

Oregon OSHA’s temporary rule includes a number of anticipated requirements for all employers, such as: physical distancing; masks, face coverings, or face shields; cleaning and sanitation; posting signage; notifying exposed and affected employees; cooperating when a public health agency indicates that testing in the workplace is necessary; removing affected workers; allowing affected workers to perform their duties remotely; returning quarantined or isolated workers to return to work without adverse action; and making return to work decisions based on public health and medical provider guidance.

No later than November 23, 2020, building operators must ensure the standard’s sanitation requirements are met and post signs where masks are required; and no later than January 6, 2021, employers must optimize the amount of outside air circulated through existing HVAC systems.

Some of the heavier, more specific lifts required by Oregon’s emergency rule include:

  • Exposure Risk Assessment: No later than December 7, 2020, employers must conduct a COVID-19 exposure risk assessment, without regard to the use of PPE, masks, face coverings, or face shields.
  • Infection Control Plan: No later than December 7, 2020, employers must establish and implement an infection control plan based on identified risks. The plan must contain:
  • A list of all assignments or tasks requiring the use of PPE (including respirators);
  • Procedures to ensure an adequate supply of masks, face coverings, or face shields, and PPE (including respirators);
  • A list of specific hazard control measures that the employer installed, implemented, or developed;
  • A description of the employer’s COVID-19 mask, face covering, and face shield requirements;
  • Notification procedures regarding an employee’s COVID-19 exposure, including to individuals identified through contact tracing and the workplace at large; and
  • Procedures to provide workers with required information and training.
  • Employee Information and Training: No later than December 21, 2020, employers must provide information and training in a manner and language understood by the affected workers, and must allow for employee feedback. Training must include:
  • Physical distancing requirements;
  • Mask, face covering, or face shield requirements;
  • Sanitation requirements;
  • Infection signs and symptom reporting procedures;
  • Infection notification processes;
  • Medical removal;
  • Characteristics and methods of transmission;
  • Symptoms of COVID-19;
  • The ability of pre-symptomatic and asymptomatic COVID-19 persons to transmit the virus; and
  • Safe and healthy work practices and control measures.

Mandatory Appendix A provides industry-specific directives for 19 different industries.

Additional requirements apply to workplaces at exceptional risk, e.g., those involved in direct patient care, environmental decontamination services in a healthcare settings and aerosol-generating healthcare or postmortem procedures, among many others. The additional requirements address infection control training and plans; sanitation; healthcare PPE; ventilation systems; and, in healthcare settings, barriers, partitions, and airborne infection isolation rooms, screening, and medical removal provisions.

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. BriggsAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: A new report from the National Safety Council (NSC), State of the Response: Employer Actions to Address the Pandemic, provides an overview of how employers have been responding to the COVID-19 pandemic.

The NSC survey sought to understand which COVID-19-related safety practices were being implemented in different organizations across different industries and operations types. The NSC created a list of 23 pandemic-related safety precautions that were recommended through its SAFER effort and included many best practices recommended by the CDC and other public health organizations. The safety practices included cleaning and hygiene-related precautions, testing and tracing precautions, and human resources and communications tools to prevent the spread of the coronavirus in the workplace.  Based on the NSC survey of hundreds of employers, organizations spent $5,208 per employee on various safety practices – from making remote work possible to providing PPE and hand sanitizer. The NSC also provided an infographic for a summary of its findings.

According to the NSC survey, participants indicated whether they had finished implementing, started to implement, planned to implement or did not consider implementing each of the 23 COVID-19 related safety practices. Overall, the most commonly implemented safety practices were “making hand sanitizers available throughout facilities; requiring mandatory face masks, shields, and/or other PPE; and requiring workers to clean and sanitize workstations before and after use (see Report Figure 7 (shown here below) for list of top 10 implemented practices).”

The least implemented COVID-19-related safety practices included increasing pay for frontline workers and instilling coronavirus testing either at home or at the worksite.

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 Eric Janson and Adam R. Young

Seyfarth Synopsis: While the votes continue to be tallied in the Presidential election, one thing is certain – it was a BIG night for cannabis in America with five new states approving ballot measures to legalize recreational or medical marijuana. 

With these new laws, nearly 110 million Americans (or over 1/3 of the country) will now live in a state where marijuana is legal for adult use.  In New Jersey, by a nearly 2-1 margin, voters passed Public Question No. 1 – a constitutional amendment to legalize the use and possession of marijuana for persons age 21 and older and legalize the cultivation, processing, and sale of retail marijuana.  Advocates believe this may now raise the stakes for neighboring states like New York, Connecticut and Pennsylvania to similarly take up legalization bills pending in their state legislatures out of concern for losing tax revenues to what is expected to now be one of the largest marijuana markets in the country.

Meanwhile in Montana, voters narrowly passed Initiative 190 and Initiative 118 which collectively will permit the use, production and sale of marijuana to adults ages 21 or older.  In addition, persons serving marijuana-related sentences that are no longer crimes under these Initiatives may request that their convictions be expunged or may request they be resentenced if they are still incarcerated.

After a failed attempt at adult use legalization in 2016, voters in Arizona finally passed Proposition 207 — also known as the Smart and Safe Act — which permits the possession and use of marijuana for adults ages 21 years or older and permits individuals to grow up to six marijuana plants in their residences.  Importantly for Arizona employers, the new law does not restrict the rights of companies to maintain a drug-free workplace or establish workplace policies restricting the use of marijuana by employees or prospective employees.  See Section 36-2851(1).  Likewise, employers are also not required to allow or accommodate the use, consumption, or possession of marijuana on the job.  See Section 36-2851(2).

South Dakota also became the first state to legalize cannabis for medicinal and adult use purposes on the same day, overwhelming passing Constitutional Amendment A which legalizes the possession, use, transport, and distribution of marijuana and marijuana paraphernalia by people age 21 and older.  Initiated Measure 26 also establishes a medical marijuana program for individuals with a “debilitating medical condition” which includes those with “a chronic or debilitating disease or medical condition…that includes severe, debilitating pain; severe nausea; seizures; or severe and persistent muscle spasms, including those characteristic of multiple sclerosis.”

In Mississippi, voters also overwhelmingly passed Initiative 65 which allows doctors in the state to prescribe medical marijuana for patients with at least one of 22 specified qualifying conditions including cancer, epilepsy or seizures, Parkinson’s disease, post-traumatic stress disorder (PTSD), Crohn’s disease, HIV, and more.  Patients can also possess up to 2.5 ounces of medical marijuana at one time.

Finally, others states took considerable steps in relaxing other drug laws, with voters in Oregon passing ballot measures decriminalizing possession of small amounts of drugs, including cocaine, heroin, methamphetamine and another legalizing the therapeutic use of psilocybin mushrooms (aka “magic mushrooms”).  Washington, D.C., also approved measures aimed at decriminalizing psilocybin mushrooms and other psychedelic plants.

While state governments will now be tasked with establishing the various regulatory frameworks needed to implement these new adult use and medicinal marijuana programs, it is undisputed that proponents of legalized marijuana had a very big Election Day and with these new ballot measures, adult use cannabis is now legal in 15 states (and the District of Columbia) and medicinal use of cannabis is legal in 35 states (and D.C.).

We have previously blogged, according to highly-respected safety professionals, employees who are impaired by cannabis present a safety risk in the workplace, particularly if they work in positions that are “safety-sensitive,” where an impairment will put the employee, coworkers, clients, or third parties at a risk of serious physical harm or death. On account of the risks to occupational safety and health posed by workplace cannabis use, the National Safety Council advises that employers adopt a zero tolerance policy for cannabis use in safety-sensitive positions.

While 15 states will soon permit the recreational use of marijuana, employers may maintain a range of restrictions on employee possession, use, and impairment by marijuana, cannabis, and related products. Employers may also continue pursuing drug testing options, particularly for safety-sensitive employees, to address the hazard and ensure that no employees work under the influence of drugs.

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) or Cannabis Law Practice Teams.

By James L. CurtisMatthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis: The 15-day statutory deadline to contest federal OSHA citations has been the subject of recent litigation in the 5th and 11th Circuits and before the Occupational Safety and Health Review Commission. In those cases, after having their contests to the citations dismissed for failure to contest by the statutory deadline or failure to satisfy court deadlines, employers have asked for a second look, citing confusion, miscommunication, and staffing-related issues.  During a global pandemic, the risk of such issues arising and causing missed deadlines is exacerbated. While the courts and the Commission might exhibit some additional leeway, employers in pending inspections or OSHA-related litigation should take steps now to ensure critical deadlines are not missed.

After receiving a citation from federal OSHA, an employer has 15 working days from receipt of the Citation and Notification of Penalty to file a written Notice of Contest to the citations. 29 U.S.C. § 659(a).  We have previously blogged on this very important topic. See Fifth Circuit Provides New Grounds for Employers to Pursue Late Notices of Contest to OSHA Citations, and Don’t Be Late — Review Commission Law Judge Finds Notice of Contest Filed Late Was Inexcusable Neglect. Failure to contest the citations, without excusable neglect, can result in the citations becoming a final order. And even after filing a Notice of Contest, failure to meet court deadlines can result in default judgment being entered against the employer and the Notice of Contest being dismissed.

Recently, however, some employers have received reprieve in cases in which they missed deadlines. For example, in Secretary of Labor v. Arch-Tech Construction, an employer missed several deadlines and telephonic conferences with the OSHRC administrative law judge during the early months of the pandemic, and the ALJ dismissed the employer’s Notice of Contest as a consequence. The employer asked the Commission to review, averring confusion over the virus-related shutdown of courts in Massachusetts in March and miscommunication between the business owner and Department of Labor attorneys led the owner to believe OSHA had dropped the citations or legal actions were on hold.

The Commission agreed that it was appropriate for the ALJ to “impose the sanction of default for Respondent’s repeated failure to participate in Commission proceedings.” However, as the Commission noted, “[i]t is well established . . . that the Commission favors deciding cases on their merits, and the circumstances alleged in Respondent’s petition for discretionary review—namely, those surrounding the ongoing COVID-19 pandemic, the owner’s apparent confusion as to who should be contacted to ascertain the status of the case, and the alleged failure of the Regional Solicitor’s office to respond to the Respondent’s telephone calls—warrant remanding to the judge for him to consider these proffered reasons for Respondent’s failure to participate in these proceedings.” (internal quotations omitted).

In another recent case, PetSmart v. Secretary of Labor, the employer got a second chance in an appeal filed two-and-a-half years after the citation was delivered to a Vero Beach, Florida, store in October 2017. The ALJ initially rejected PetSmart’s late appeal, but all three Commission members in a remand order vacated the ALJ decision and sent the appeal back for reconsideration. PetSmart claims its Phoenix-based managers weren’t aware of the 2017 Vero Beach citation until a debt collection agency contacted corporate headquarters earlier this year, and that OSHA should have sent the citation and penalty notice to PetSmart’s Phoenix office.  PetSmart also says its corporate safety manager in 2017 had requested OSHA refer all questions to company headquarters. “Under these circumstances,” explained the Commission, “we find that an opportunity for the parties to present evidence is warranted.”

These two recent orders from the Commission might signal a preference that cases be decided on merits, rather than procedural default, when possible. This could have greater import during the COVID-19 pandemic, during which time OSHA and the Commission may have to make additional allowances for slow responses that can be attributed to virus-related issues.

Still, employers involved in ongoing OSHA inspections and litigation can take steps now to mitigate against the risk of default and other procedural issues, particularly during the pandemic, including:

  • Confirming with OSHA representatives during the inspection the specific address where citations should be sent if issued;
  • Confirming during the inspection the contact information of the OSHA inspector(s) and Area Office (phone, fax, and email);
  • Recording when citation documents are received and calculating the Notice of Contest deadline immediately;
  • Confirming with the Area Office the specific address where the Notice of Contest should be sent, and considering sending the Notice of Contest via fax and/or email to the Area Office;
  • Ensuring the correct contact information of the lead employer representative(s) are listed in the Notice of Contest;
  • After filing a Notice of Contest, monitor for emails from attorney(s) with the Department of Labor; and
  • Calendaring deadlines from the ALJ’s pre-trial schedule order.

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.