By Adam R. Young, A. Scott Hecker, and Craig B. Simonsen

Seyfarth Synopsis: The Federal Motor Carrier Safety Administration (FMCSA), an agency of the Department of Transportation (DOT), today published a notice of proposed rulemaking (NPRM) (FMCSA–2022–0028), that would maintain non-emergency hours of service requirements during labor strikes and other economic emergencies.

FMCSA regulations have strict Hours of Service limitations, generally restricting property-carrying DOT drivers to 11 hours of driving and 14 hours of “on-duty” time.  Further, drivers may not drive after 60/70 hours on duty in 7/8 consecutive days.  The current regulations provide an exception for declared “emergencies,” where employers can allow DOT drivers to work for longer periods.  For example, a declared emergency would allow DOT drivers to rush supplies to hurricane relief efforts.  The FMCSA has proposed a new rule to limit the definition of “emergency.”  The new rule would clarify that “emergency regulatory relief under § 390.23 generally does not apply to economic conditions that are caused by market forces, including shortages of raw materials or supplies, labor strikes, driver shortages, inflation, or fluctuations in freight shipment or brokerage rates, unless such conditions or events cause an immediate threat to human life and result in a declaration of an emergency.”  NPRM at 75207.  This language would exclude emergencies driven by economic needs, and limits available exception to only declared emergencies that threaten lives.

So, the FMCSA seeks to limit employers’ and truckers’ ability to move additional freight and drive additional hours during economic emergencies.  The FMCSA ostensibly is looking to improve road safety by limiting the number of fatigued drivers on the road.  But in the current environment of supply chain issues and driver shortages, the FMCSA’s new rule could lead to additional economic logjams and higher prices for consumers.  Importantly, for the traditional labor interests which may have motivated the new rule, the limited definition of “emergency” appears to give labor unions more power to pressure employers with strikes by shutting down vital shipping lifelines.  Disallowing longer hours of service would require additional truckers on the road, which would likely increase driver wages.

Comments submitted on the proposal must be received on or before February 6, 2023, and interested stakeholders should consider making their voices heard.  Our workplace safety group’s Transportation practice routinely assists employers who employ DOT drivers with hours-of-service, fatigue, and other FMCSA compliance issues.

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

By James L. Curtis, Adam R. Young, Erin Dougherty Foley, and Craig B. Simonsen

The U.S. Department of Labor has blogged about the safety of workers during the busy holiday season, indicating an area of potential enforcement for OSHA in the coming weeks.

In fact OSHA has a Holiday Workplace Safety page to learn more. Crowd management has always been a holiday concern. If large crowds are expected for holiday shopping events, employers should plan ahead and take steps to protect employees. OSHA has a crowd management guidance to help employers prevent worker injuries during crowded shopping events.

In addition, for those employers hiring new or temporary workers for the holidays, it’s important to “train them for the risks they may encounter on the job“ – including how to reduce exposure to the coronavirus. Importantly, be sure to know the rules that apply to teen workers if employing anyone under 18. DOL also stresses that it is imperative that every worker is trained in a language they can understand and be encouraged to raise any health or safety concerns to their supervisor without fear of retaliation.

This is also the season for office holiday parties! As companies across the country are busy planning their annual parties, keep in mind that too much holiday cheer can sometimes result in employer liability. Particularly when alcohol is involved and inhibitions are down, employers can be a target for litigation if things go awry.  

Even when attendance is not mandatory, company sponsored parties are generally considered extensions of an employee’s job, and potential claims can arise involving allegations of sexual harassment, workers’ compensation, and negligence if an employee is injured during or after the event.

While you should think twice about hanging mistletoe, there’s no need to pack up the holiday decorations. Company parties provide a great opportunity to let your employees know they’re appreciated. They can also increase morale and help build camaraderie among team members. 

Instead, consider these tips to minimize your organization’s exposure to legal liability and, more importantly, prevent an undesirable incident from occurring at your office holiday party:

  • Prior to the party, circulate a memo to reiterate your company’s policy against sexual and other forms of harassment.
  • Remind employees in the memo that the policy applies to their conduct at company parties and other social events, and they should act in a professional manner at all times.
  • Set a tone of moderation by reminding employees of the company’s policy against the abuse of alcohol and zero tolerance with respect to the possession, use, or sale of illegal drugs.
  • Ensure your dress code prohibits any form of revealing or provocative attire, and remind employees that the policy applies at company-sponsored events.
  • If appropriate, allow employees to invite a spouse or their children to the party. Many employees might think twice about their actions if spouses and/or children are present.
  • Consider limiting the number of alcoholic drinks or the time during which alcohol will be served. In either case, stop serving alcohol well before the party ends.
  • Serve food at the party so employees are not consuming alcohol on an empty stomach.
  • Make sure there are plenty of non-alcoholic alternatives available.
  • Host the party at a restaurant or hire a caterer. Remind bartenders that they are not permitted to serve anyone who appears to be impaired or intoxicated and to notify a particular company representative if anyone appears to be impaired.
  • Attempt to include indemnification/hold harmless clauses in your contract with the restaurant, caterer or other venue that they will indemnify your company in the event of an action by a third party that is brought in connection with the party.
  • Remind managers to set a professional example, and designate several managers to be on the lookout for anyone who appears to be impaired or intoxicated.
  • Anticipate the need for alternative transportation and don’t allow employees who have been drinking heavily to drive home. If an employee appears to be heavily intoxicated, have a manager drive the employee home or ride with the employee in a cab to ensure he/she gets home safely.
  • Check your insurance policies to ensure they cover the company adequately, including any accidents or injuries that arise out of a company party or event.
  • Promptly investigate any complaints that are made after the party, and take any necessary remedial action for conduct that violates company policy.

Holiday parties provide an opportunity to give thanks, show appreciation for your employees’ hard work throughout the year, and recognize past achievements. Plan ahead with these tips to minimize any post-party headaches and ensure your office holiday party is a success.

We have blogged before on this and similar topics before: Ho, Ho, Health and Safety! Keeping Workers Safe and Merry this Holiday Season, OSHA Guidelines for Retailers on Holiday Shopping and Crowd Management Safety, Have Yourself a Safe, Undistracted, and Accident Free Holiday, and Don’t Let Too Much Eggnog Ruin Your Office Holiday Party: Tips to Limit Employer Liability at Company Parties.

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

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By Adam R. Young, A. Scott Hecker, Patrick D. Joyce, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: OSHA requires employers to upload certain information to its Injury Tracking Application (ITA) each year by March 2. This year, OSHA is transitioning employer login information from individual accounts to “login.gov” and all employers must connect their accounts prior to March 2.

For employers that are required to use the OSHA ITA, OSHA recently transitioned its login procedure to utilize one single account to access all applications: Login.gov. All current and new account holders must connect their ITA account to a Login.gov account with the same email address to access the application for the 2023 collection of Calendar Year 2022 Form 300A data. Before proceeding, entities are encouraged to review the guidance on how to connect your accounts. OSHA has a history of citing employers who fail to timely upload their Form 300A data by March 2, so ensure your account access is up to date before that date.

OSHA provides the secure ITA website that offers three options for injury and illness data submissions. Users may manually enter data, upload a CSV file to add multiple establishments at the same time, or transmit data electronically via the API (application programming interface).

As we previously blogged, in late-2021, OSHA proposed restoring the Obama-era requirement for all covered employers to submit full OSHA Form 300s (Log of Work-Related Injuries and Illnesses) and OSHA Form 301s (Injury and Illness Incident Report). However, this proposed revision has not yet become effective.

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

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By Adam R. Young, A. Scott Hecker, Patrick D. Joyce, Brent I. Clark, and Craig B. Simonsen

Seyfarth Synopsis: Powered Industrial Trucks (forklifts) are the focus of a new OSHA Regional Emphasis Program (REP). The program covers Colorado, Montana, North Dakota, and South Dakota—the federal-OSHA states in Region 8.

As we noted in a previous blog, Another Year In The Books – OSHA’s Top Ten Safety Violations for Fiscal Year 2022, forklifts came in at number 7! As we previously blogged, OSHA Region 3 issued a Regional Emphasis Program for Warehousing and Logistics on August 3, 2022 that included forklifts as one of the key inspection topics.

Following Region 3, on August 22, 2022, Region 8 issued a Regional Emphasis Program for inspections of employers utilizing forklifts. Region 8 started REP inspections on November 23, following a three-month education effort. This Region 8 REP reflected OSHA’s consistently high number of forklift inspections and forklift-related citations

OSHA uses national and regional emphasis programs to target aggressive enforcement efforts against specific industries and workplace hazards. Federal OSHA continues to shift enforcement towards warehousing, logistics, and e-commerce. In discussing its recent Region 3 emphasis program on warehousing and logistics, OSHA explained that “with the rapid growth of e-commerce, the warehousing industry has significantly expanded.” The further augmentation of OSHA’s forklifts REPs continue this enforcement re-orientation.

Nearly all OSHA regions have some form of REP in place with respect to forklift operations:


10/1/2019 – Region 1 – CPL-04-00-023G [CPL-04-00-023F] – Local Emphasis Program for Powered Industrial Trucks
8/3/2022 – Region 3 – 2022-01 (CPL 04) – Regional Emphasis Program (REP) for Warehousing Operations
10/1/2020 – Region 4 – CPL 21/07 (CPL 04) – Regional Emphasis Program (REP) for Powered Industrial Trucks
10/1/2018 – Region 5 – CPL 04-00 (LEP 002) – Emphasis Program for Powered Industrial Vehicles
10/1/2019 – Region 7 – CPL 2-15-01F [CPL 2-15-01E] – Regional Emphasis Program (REP) for Powered Industrial Trucks and Other Material or Personnel Handling Motorized Equipment in Construction, General Industry, and Maritime
8/22/2022 – Region 8 – CPL 2022-03 – Regional Emphasis Program for Powered Industrial Vehicles
10/1/2019 – Region 10 – 21-09 (CPL 04) – Local Emphasis Program for Powered Industrial Trucks

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

By: Adam R. Young, Daniel R. Birnbaum, A. Scott Hecker, and Craig B. Simonsen

Seyfarth Synopsis: Recent data continues to show material disparities in serious injury and fatality rates among employees of differing races or ethnicities, with African-Americans and Hispanics showing considerably higher rates.

The National Safety Council has published its Injury Facts® report tracking and analyzing national data from the Bureau of Labor Statistics on workplace injuries and illnesses. The NSC’s analyses highlight significant disparities in the occupational fatality rates of workers based on their race or ethnicity. While new data shows that White workers are killed the most (61%), followed by Hispanic or Latino workers (23%), Black or African-American workers (11%), and Asian workers (3%), the death rates of each group provide a stronger indication of those at risk. The absolute figures are misleading, as Black and Hispanic/Latino employees are killed at higher rates than whites working in similar industries. White workers experienced a death rate of 3.3 per 100,000 workers, compared to Black workers’ rate of 3.5, and to Hispanic or Latino workers’ even higher death rate of 4.5.

These disparities reflect long-standing trends in fatal injury detail.  The pandemic disrupted life in 2020 and led to a fewer number of hours worked. Because of this, all groups experienced fewer occupational deaths in 2020 compared to 2019.  In 2020, death rates decreased significantly for White (-12.1%), Black or African-American (-14.7%) and Asian (-17.1%) workers. The change for Hispanic or Latino workers, however, was minimal, with a drop of only 1.5%.

Causation for these disparities in fatality rates is hotly debated and open to interpretation.  Federal OSHA has prioritized enforcement efforts on “vulnerable populations,” which they define to include racial and ethnic minorities, women, and LGBTQ+ employees.  OSHA’s mission is, in part, driven to correct these types of injury and illness disparities.  OSHA’s ongoing efforts include interviewing non-English speaking workers during inspections, the Temporary Worker Initiative, heat illness and workplace violence enforcement through the General Duty Clause, pending regulatory rulemakings addressing these issues, and ongoing efforts to regulate COVID-19 in health care with a permanent standard based on OSHA’s prior emergency temporary standard for health care.

To help mitigate risk and to work toward reducing fatality rates for minorities, employers should confirm that their safety programs are made available to employees in a way each worker can comprehend.  For example, rules, training, discipline, and other safety-related documents should be provided in a language and at a reading level understandable to each worker.  If any workers are illiterate, then a safety program and its related documents should be communicated to those workers orally to ensure they can understand safety expectations, policies, and protocols.  For more information on this or any related topics, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Group.

By James L. Curtis, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: With a larger base of compliance officers, OSHA has significantly increased its ability to conduct on-site inspections and reorient its enforcement strategies.

OSHA’s budget was essentially flat during the Trump Administration.  As health care costs increased and compliance safety and health officers retired, OSHA struggled to recruit and hire replacements.  Times have changed.  BNA is now reporting that the number of OSHA inspectors grew 19% in fiscal year 2022, ending several years of minimal growth or losses, according to agency data.

We had previously reported that in 2021 OSHA FY 2021 Congressional Budget Anticipates More Inspections to Come, which noted that in FY 2020 OSHA would receive an additional $12.7 million in funding that it will use to increase its Compliance Safety and Health Officer ranks by fifty from current staffing levels.  That effort has now born fruit and OSHA’s staffing levels are higher now than they have been in decades. 

The influx of compliance officers coincides with OSHA ratcheting up its enforcement priorities, including increasingly aggressive enforcement and increased penalties.  We anticipate some growing pains as new OSHA compliance officers gain experience in enforcing the OSH Act and identifying workplace violations.  Given the increase in inspectors, there is increased risk for on-site inspections.  Employers should make sure that they are “inspection ready” and should work with OSHA counsel to ensure that on-site inspections are opened on a lawful basis, then limited and focused. 

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

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

Seyfarth Synopsis: OSHA is beginning to review work related stress as a workplace hazard falling under its jurisdiction.

OSHA, citing a Centers for Disease Control and Prevention July 2018 publication on Mental Health in the Workplace, has released a Safety and Health Topics bulletin addressing workplace stress and mental health hazards. According to OSHA, these workplace hazards have a range of potential consequences, including related to:

  • Job performance
  • Productivity
  • Work engagement and communication
  • Physical capability and daily functioning

OSHA concludes that “[s]tress can be harmful to our health and increase mental health challenges. Mental health challenges can include clinical mental illness and substance use disorders as well as other emotions like stress, grief, feeling sad and anxious, where these feelings are temporary and not part of a diagnosable condition. While there are many things in life that induce stress, work can be one of those factors. However, workplaces can also be a key place for resources, solutions, and activities designed to improve our mental health and well-being.”

OSHA’s concern for the mental health of the American workforce is generally supported by the regulated community. But OSHA has no regulations that address workplace stress and generally does not regulate mental health hazards, even to the extent they could be work-related. For purposes of OSHA record-keeping, mental illnesses generally do not need to be recorded on the OSHA Form 300 log, absent an opinion on work-relatedness from a physician or other licensed health care practitioner.

Workplace stress, to the extent OSHA could regulate it, would be enforced under the OSH Act’s General Duty Clause. To prove a citation relating to workplace stress, OSHA would need to show a recognized hazard of workplace stress specific to the worksite, that the employer was aware of the recognized hazard (or should have been), that the employer had a “feasible or useful” means of addressing the hazard, and that the efforts the employer undertook to address the hazard were insufficient.

OSHA currently has no procedures in place for a workplace stress inspection and has no standards in place indicating what would be considered a violation of the general duty clause and what types of abatement would be feasible or useful. Accordingly, OSHA may not yet be equipped to inspect for hazardous levels of workplace stress or craft a General Duty Clause citation. Therefore, we anticipate the probability of enforcement to be remote in the short term absent an unusual event, such as stress induced workplace violence.  However, workplace stress is clearly on OSHA’s radar screen and we can anticipate further activity as OSHA comes up to speed on the issue.

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

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By Ilana Morady, Patrick D. Joyce, Coby Turner, Liz Watson and Juan Rehl-Garcia 

Seyfarth Synopsis: Two big changes are on the horizon for California employers:
(1) changes to the COVID-19 general exposure notification requirements and (2) a proposed “permanent” Cal/OSHA COVID-19 standard to take effect January 1, 2023-2025.

The fall season signals change between the warmth and sun of summer and the cold and wet of winter. This year, fall also includes upcoming changes to the regulatory landscape in California as it pertains to COVID-19. Specifically, the passage of AB 2693 in late September and a recent round of edits to a proposed permanent Cal/OSHA COVID-19 standard have given employers new things to consider. Both of these new provisions are set to be effective January 1, 2023.

General Exposure Notice Changes

Methods of Notification

As California employers are well aware, legislation enacted early in the pandemic requires that written general exposure notification be provided to employees who were at the same worksite at the same time as a person with COVID-19, advising them that they “may have been exposed” to COVID-19, providing information about available benefits, and providing information the employer’s cleaning and disinfection plan. That legislation was set to expire at the end of 2022. However Governor Newsom just signed a new bill—AB 2693—which extends the general exposure notification requirement until January 1, 2024.

But there’s good news too: AB 2693 significantly reduces the burden on employers by allowing an option for the notice of potential exposure to be posted at the worksite, or on an employee portal if other workplace notices are posted on the portal. Like the notice required under the current legislation, it must be posted within one business day from when the employer learns of the COVID-19 case, and remain posted for at least 15 calendar days.

Employers still have the option to provide written notice to covered workers, and the employers of subcontracted workers, if they prefer. But, employers must still provide a written notice to the exclusive representative, if any, of the COVID-19 case(s) and any employees who had close contact.

Records of the written notices provided and a log of the dates of the notices posted must be maintained for 3 years.

Content of the Notice

The information required in the notice is also changing. Now, employers do not need to notify employees or other workers on site that “they may have been exposed.”

Rather, the new version of the notice has been streamlined, and now requires the following be included:

  1. The dates on which an employee, or employee of a subcontracted employer, with a confirmed case of COVID-19 was on the worksite premises within the infectious period.
  2. The location of the exposures, including the department, floor, building, or other area, but the location does not need to be so specific that it would allow individual workers to be identified.
  3. Instead of providing detailed information on the specifics, employers now only need to provide contact information for where employees may receive information regarding COVID-19-related benefits they may be entitled under applicable federal, state, or local laws, as well as antiretaliation and antidiscrimination protections of the employee.
  4. As a reminder, these benefits may include categories such as workers’ compensation, COVID-19-related local or emergency leave, company sick leave, state-mandated leave, recently extended COVID supplemental sick leave (which we recently blogged about here), or negotiated leave provisions.
  5. As a best practice, companies should ensure that their HR, Safety, or designated management personnel are prepared to provide this information upon request and are familiar with the local options for both paid and unpaid leave.
  6. Likewise, employers now only need provide contact information for where employees may receive the cleaning and disinfection planthat the employer is implementing per the guidelines of the CDC and the Cal/OSHA standards.
  7. Note: Workplace cleaning and disinfection plans are not currently part of CDC guidelines or Cal/OSHA requirements, so many employers will likely refer to their normal cleaning and/or disinfection protocols that may be independent of COVID-19 mitigation measures.

AB 2693 also requires the notice to be in English and the language understood by the majority of the employees.

Proposed Permanent COVID-19 Cal/OSHA Standard

Another major change is looming in the horizon. On January 1, 2023, a new 2-year “permanent”, or “non-emergency”, COVID-19 standard will likely replace the existing Emergency Temporary Standards which we have extensively written about in the past.

Several variations on the proposed rules have already been circulated ahead of a December 15th CAL/OSHA public meeting, during which the Cal/OSHA Standards Board is widely expected to pass the new standard in advance of the December 31, 2022 expiration of the current ETS.

Much of the ETS has carried over into the new proposed standard, but there are also some major changes that employers should be aware of.

Highlights from the Proposed Non-Emergency Standard

  • Definition changes. The proposed permanent standard makes changes to many of the definitions we have seen in the ETS. Some of the more significant changes include:
    • “Close Contact” – Instead of a single definition for close contact, the proposed standard distinguishes between two scenarios based on workplace size. (Note that this new definition already applies in workplaces covered by the ETS because it was changed by an Order issued by CDPH on October 13, 2022).
      • In indoor spaces of 400,000 cubic feet or less, a close contact results from sharing the same indoor space for 15 or more cumulative minutes within 24 hours during the infectious period. Here, six feet of distance does not matter.
      • In indoor spaces of greater than 400,000 cubic feet, a close contact results from being within six feet of a COVID case for a cumulative total of 15 minutes or more within 24 hours during the infectious period.
      • Importantly, each room with floor-to-ceiling walls makes up a distinct indoor space for purposes of this rule. Employees wearing a respirator during this time are not close contacts.
    • “Exposed Group” – The new standard makes a few changes here. Most importantly, places where individuals momentarily pass through without congregating, regardless of whether they are wearing a face covering, are not considered for the purpose of determining if a group has been exposed.
      • Under the current ETS, everyone in the space had to wear a face covering, even with respect to momentary exposures, or else they would be considered part of an exposed group.
    • “Infectious Period” – Under the proposed permanent standard, the definition of infectious period is less stringent and allows for a shorter time frame.
      • For symptomatic cases, the infectious period may now end five days (down from 10 days) after the arrival of symptoms if the individual tests negative on that day and has not had a fever for over 24 hours without medication.
      • For asymptomatic cases, the infectious period may also end five days after a positive test if a negative test is produced on the fifth day.
    • “Returned Case” – Instead of a 90-day period following the initial onset of symptoms or positive test, the proposed rules changes this to 30 days, after which time someone who returned to work following a COVID-19 related absence is no longer considered a returned case.
      • This shortened time period means that employers may be required to provide COVID-19 testing to a larger number of employees, as returned cases under the ETS are exempt from the requirement.
  • Exclusion pay. One of the most notable differences between the current ETS and the proposed permanent standard is the absence of exclusion pay.
    • Currently, employers must continue and maintain employees’ earnings, seniority, rights, and benefits if they have been excluded from the workplace due to COVID-19 exposure or illness contracted at work. Employers have to provide exclusion pay under the ETS before requiring employees to exhaust other forms of potential paid leave, like Supplemental Paid Sick Leave.
    • The proposed permanent standard eliminates this provision. Instead, employers must only provide information to confirmed cases and close contacts about COVID-19 benefits they may be entitled to under local and federal law.
  • Notice requirements. The notice requirements have also been somewhat streamlined.
    • The ETS requires employers to provide written notice to all employees present at a worksite during the infectious period of a COVID-19 case within one business day of when they learn of the case. Notice must also be sent to independent contractors and other employers whose employees were on the premises during this period.
    • The proposed permanent standard includes similar notice requirements, but changes the time frame for notice to “as soon as possible,” so long as the employer is able to meet any potential exclusion requirements. It also defers to Labor Code 6409.6 for the content and form of notice, which means employers would be allowed to do posting instead of providing notices in writing, in light of recent amendments mentioned above.
  • Reporting and recordkeeping. Reporting and recordkeeping requirements have changed to reflect increasing priorities on cases and large outbreaks, rather than exposures or isolated cases.
    • Employers no longer have to report information about workplace COVID-19 cases and outbreaks to their local health department. (Though employers need to be aware that local health departments may still promulgate their own requirements on reporting.)
    • Additionally, while employers must keep a record of COVID-19 cases for two years, they no longer have to keep records of close contacts.
    • The requirement that employers document the steps taken to implement a separate COVID-19 Prevention Program has also dropped away, meaning employers can generally rely on their standard Injury and Illness Prevention Program (IIPP), as long as the IIPP adequately addresses employee health and safety policies and procedures related to COVID-19.
    • The proposed permanent standard adds that in a major outbreak setting, employers must report the outbreak to Cal/OSHA. The proposed rule does not specify a time frame within which the report must be made.
  • Face coverings. In many ways, the rules remain the same. There are, however, some important distinctions:
    • Under both the current and proposed standards, employees who are exempted from a mandatory face covering requirement due to medical, disability, or mental health reasons must wear “an effective nonrestrictive alternative” if possible. But, if a face covering is not possible, the proposed permanent standard no longer mandates any sort of testing for these employees.
    • Employers are required to ensure employees wear face coverings when required by a CDPH regulation or order.
  • Outbreaks. Currently, the ETS outbreak rules come in play once three or more COVID-19 cases in an exposed group visit a work site during their infectious period within a 14-day window, and last until there are no new cases detected in a 14-day period. The proposed permanent standard contains various key changes to these rules. Most notably:
    • The provisions concerning outbreaks no longer apply once there have been one or fewer cases detected in an exposed group within a 14-day period. This change may slightly decrease the amount of time that an employer has to follow the more stringent procedures in the event of an outbreak.
    • Currently, during an outbreak employers must evaluate whether HEPA or other filtration units would reduce the risk of transmission. The proposed standard requires employers to utilize HEPA units upon an outbreak whenever ventilation is inadequate to reduce transmission.
    • Provisions on major outbreaks still apply when there are more than 20 cases detected in a 14-day period, and employers need to comply with those provisions as long as there is more than one case detected in the exposed group within a 14 day period.
    • Finally, and very importantly, during a major outbreak, employers must report the outbreak to the Division. This is not a requirement under the current emergency standard.
  • Return to work criteria. The criteria for when a COVID-19 case may return to work is largely the same, but under the proposed rule, there is no difference in the standard for those whose symptoms, other than a fever, remain. Thus, under the proposed permanent standard, the continued presence of symptoms is irrelevant if on the fifth day a negative test is produced, unless one of the symptoms is a fever.
  • Ventilation. Currently, employers are required to evaluate how existing ventilation systems may be modified to maximize ventilation with outdoor air. The proposed rule eliminates this language.
    • Instead, the proposed non-emergency standard obligates employers to “develop, implement, and maintain” a prevention plan that incorporates at least one of the following:
      • Maximizing outdoor air when ambient conditions do not pose a hazard.
      • Filtering circulated air through a MERV-13 filter or as much filtration as the existing ventilation system will permit.
      • Using HEPA filtration units in indoor spaces when ventilation is inadequate.
  • Employer-provided housing. Unlike the ETS, the proposed rule would not require employers to prioritize housing assignments in a particular order. Instead, it merely directs employers to consider distinct cohorts in housing assignments.
  • Employer-provided transportation. Many of the requirements of the ETS pertaining to transportation have been dropped. In their place, the proposed standard instructs employers to comply with the general provisions applicable to workplaces.

The rules highlighted here represent the most substantive differences between the ongoing ETS and the proposed permanent standard set to replace it at the start of 2023. The Division is accepting comments by email (oshsb@dir.ca.gov) on the most recent version of the proposed standard until October 31st. It remains possible that the proposed “permanent standard” that ultimately goes into effect may be different in some regards than what’s currently proposed.

Workplace Solutions

Stay tuned for updated guidance and developments on the workplace safety front in California. Seyfarth will be closely monitoring the outcome of the December 15 meeting on the proposed permanent standard, and will be updating our readers here. Don’t hesitate to reach out to your favorite Seyfarth attorney should you have any questions.

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

Seyfarth Synopsis: The National Safety Council (NSC) released an update to its annual list of OSHA’s top-ten cited standards. The list provides a starting point for employers to review their own safety programs on an annual basis. 

Patrick Kapust, deputy director of OSHA’s Directorate of Enforcement Programs, presented OSHA’s preliminary Top 10 most frequently cited workplace safety standards for fiscal year 2022. The list was presented during the 2022 NSC Safety Congress & Expo, and summarized by the NSC.

According to OSHA and NSC, Fall Protection – General Requirements remains at the top of the list for the 12th year in a row, followed by Hazard Communication and Respiratory Protection.

Introducing the topic, Lorraine Martin, NSC president and CEO, said that “despite advancements in workplace safety, we continue to see the same types of violations each year. It’s more important than ever employers seek education and resources to keep their workers safe.”

Drumroll please…

The NSC indicated that the Top 10 most frequently cited workplace safety standards for FY 2022 are:

1. Fall Protection – General Requirements (1926.501): 5,260 violations

2. Hazard Communication (1910.1200): 2,424

3. Respiratory Protection (1910.134): 2,185

4. Ladders (1926.1053): 2,143

5. Scaffolding (1926.451): 2,058

6. Lockout/Tagout (1910.147): 1,977

7. Powered Industrial Trucks (1910.178): 1,749

8. Fall Protection – Training Requirements (1926.503): 1,556

9. Personal Protective and Lifesaving Equipment – Eye and Face Protection (1926.102): 1,401

10. Machine Guarding (1910.212): 1,370.

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

By Hoorya Ahmad and Patrick Joyce

Seyfarth Synopsis: Washington State’s COVID-19 emergency declaration expires October 31, 2022 but the Health Emergency Labor Standards Act (HELSA) administered by the Washington State Department of Labor & Industries (L&I), and codified at WAC 296-62-602 to -609, will remain in place for the time being.

HELSA is triggered by an emergency declaration related to an infectious disease either (1) from the Governor of the State of Washington or (2) the President of the United States. Therefore, even though Governor Inslee’s declaration expires October 31, 2022, employers must continue to abide by HELSA’s notice and reporting requirements until President Biden rescinds the national public health emergency declaration, which is currently set to expire on March 1, 2023. It is unclear whether President Biden will end the declaration at that time or continue to extend it.

The Washington State Legislature passed HELSA, a temporary law, on May 11, 2021, to address the spread of infectious or contagious disease, such as COVID-19, during a declared public health emergency (state or national). Note that this law applies to any “infectious or contagious disease” subject to a state or national declaration and is not limited to COVID-19.

Under HELSA, Washington employers must continue to:

  • Provide Benefits. Provide workers’ compensation wage replacement and medical benefits to frontline workers, as defined in the law, who contract COVID-19, under a rebuttable presumption that exposure occurred on the job. Health care workers are also entitled to these benefits.
  • Report COVID-19 Cases to L&I’s Division of Occupational Safety and Health (DOSH). Employers with 50 or more employees must continue to report COVID-19 outbreaks to DOSH within 24 hours – when 10 or more employees test positive for the disease and were in the workplace during their infectious period – by calling 1-800-4-BESAFE (1-800-423-7233).
  • Notify Employees, Union Representatives, and Employees of Subcontracted Employees of Potential Exposures to COVID-19 at Work.
    • Non-health care employers must notify staff and others who were at the workplace at the same time as the infected individual of a potential exposure to COVID-19 within one business day.
    • Health care facilities must notify staff and others at the workplace about high-risk exposures within 24 hours.
  • Not Discriminate. Employers must not discriminate against high-risk employees for seeking accommodations or utilizing leave to protect against an infectious or contagious disease.

On August 4, 2022, L&I filed an updated emergency rulemaking to refine the regulatory language implementing HELSA. The full rule can be found here. L&I has also prepared a FAQ, which can be found here.

The emergency rule expounds on, defines, interprets, and implements HELSA. The rule provides definitions such as who is considered a “covered employee”, what constitutes “test-confirmed,” and the method, content, and form of the notice to be issued to employees impacted by a potential exposure. The August 4, 2022 update slightly changed some definitions in the rule and clarified other confusing language, but did not alter the content of the ruleThe emergency rule expounds on, defines, interprets, and implements HELSA. The rule provides definitions such as who is considered a “covered employee”, what constitutes “test-confirmed,” and the method, content, and form of the notice to be issued to employees impacted by a potential exposure. The August 4, 2022 update slightly changed some definitions in the rule and clarified other confusing language, but did not alter the content of the rule.

According to DOSH, once the employer has reported an outbreak, no further reporting is required for that outbreak, even if additional cases occur. However, a new outbreak may occur after passing 28 days without a new case.

  • Employers with 50 or fewer covered employees at a particular worksite do not have to report outbreaks to DOSH. However, they are still required to notify employees (see below).
  • Notice. All employers are required to notify employees in writing of potential exposure. However, health care facility employers and non-health care employers have different requirements, including triggers for notification.
  • Non-health care employers – WAC 296-62-605. Each time an employer receives a notice of potential exposure, notice must be given within one business day to all employees who were on the premises at the same worksite on the same day(s) as a qualifying individual who may have been infectious or contagious. Notice must also be given to union representatives and temporary help service, employee-leasing service, or personnel supply service employers of a covered employee.
  • Form & Content of notice. The notice must be in English and in the language understood by the majority of employees (if they are different), and must be issued in the usual way in which the employer communicates with its employees. The notice must state that the covered employee may have been exposed to COVID-19. Employee names and personal identifying information must not be included.
  • Health care facility employers – WAC 296-62-606. Health care facility employers must notify any employee with known or suspected high-risk exposure to COVID-19 within 24 hours. With employee authorization, the employer must also notify the union representative of the employee’s known or suspected high-risk exposure to COVID-19 within 24 hours. Temporary help service, employee-leasing service, or personnel supply service employers of a covered employee must also be notified within this time period.
  • Form & Content of notice. The employer must provide written notice in a manner normally used to communicate employment-related information (i.e. personal service, email, or text message) where it is reasonably expected that it will be received within 24 hours. Written notification must be in both English and the language understood by the majority of the employees. The notice must state that the employee has had a known or suspected high risk exposure to COVID-19. If feasible, it must include information about the worksite location where the exposures are believed to occur. The notice must not include any employee names or personal identifying information. Notices may include information such as the program or area where the covered employee works as long as the information will not lead to the identity of the covered employee.
  • Use of Personal PPE – WAC 296-62-609. Employees and contractors must be permitted to voluntarily use PPE, but only after the employer has determined use:
    • will not create a safety or health hazard;
    • does not conflict with the related rules for PPE for that specific type of equipment established by DOSH; and
    • face coverings will not interfere with the employer’s security requirements;
    • note that, employers are not required to pay for PPE that is voluntarily used.
  • Employees are not required to disclose any medical condition or diagnosis to their employer.

Many employers were anticipating the end of HELSA’s requirements with the conclusion of Governor Inslee’s COVID-19 emergency declaration. Unfortunately, due to the triggering language in the Act and implementing regulations, these requirements will remain in effect until President Biden also rescinds the Administration’s COVID-19 emergency declaration.

It is important to keep in mind that HELSA will automatically return into effect during any future pandemics or other public health emergencies involving an infectious or contagious disease as declared by the President of the United States or by the Washington state governor. Even when the current COVID-19 emergency declaration is over at the state and national level, employers should review their infectious disease reporting, notice, and PPE policies on a regular basis to ensure they are prepared for a future health emergency.

[1]           Employers must also continue to report COVID-19-related workplace deaths and hospitalizations as required by WAC 296-27-031.