By James L. CurtisPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The Occupational Safety and Health Administration (OSHA) has released a series of frequently asked questions and answers regarding the use of masks in the workplace to assist the regulated community.

Right up front, the FAQs settles once and for all the question of whether OSHA considers cloth or makeshift face coverings to be regulated PPE: they are not. The FAQs also outline the differences between cloth face coverings, surgical masks, and respirators, and notes that cloth face coverings “may be commercially produced or improvised (i.e., homemade) garments, scarves, bandanas, or items made from t-shirts or other fabrics.” The FAQs remind employers not to use surgical masks or cloth face coverings when respirators are necessary and if respirators are required, a proper respiratory protection program should be in place. In addition, the FAQs note the need for social distancing measures, even when workers are wearing cloth face coverings, and recommends following the Centers for Disease Control and Prevention’s guidance on washing face coverings.”

In the news release accompanying the FAQs, OSHA Administrator Loren Sweatt recognized that “as our economy reopens for business, millions of Americans will be wearing masks in their workplace for the first time,” and “OSHA is ready to help workers and employers understand how to properly use masks so they can stay safe and healthy in the workplace.”

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: OSHA issued its first COVID-19 citation to a Georgia nursing home. The citation alleges a failure to report within 24-hours a work-related incident resulting in hospital admissions.

As discussed in our prior blog, OSHA has issued new enforcement procedures for COVID-19 cases going forward. OSHA has indicated that its “efforts to address COVID-19 have been its top priority since February. Our world changed with the arrival and spread of the coronavirus. Although the pandemic has changed the way OSHA completes its mission, it has never faltered in its commitment to ensure employers provide a workplace free of hazards. OSHA quickly pivoted to focus intensely on giving employers and workers the guidance they need to work safely in this rapidly changing situation; where appropriate, OSHA has also enforced safety and health requirements. Never before has OSHA staff been so focused on a single health risk. Throughout this crisis, the incredible men and women of OSHA have remained committed to carrying out their mission to keep America’s workers safe and healthy.”  See Testimony of Principal Deputy Assistant Secretary Loren Sweatt before the House Education and Labor’s Workforce Protections Subcommittee on OSHA’s efforts to protect workers from COVID-19.

OSHA continued, saying that it “has existing standards that serve as the basis for its COVID-19 enforcement. Those standards include rules regarding respiratory protection, personal protective equipment (PPE), eye and face protection, sanitation, and hazard communication. In addition to those existing authorities, OSHA also has the ability to take appropriate action against employers under the OSH Act’s ‘general duty clause’.”

BNA reported that the “First Virus-Related OSHA Citation Goes to Georgia Nursing Home.” The May 18, 2020, citation was issued to the Windsor Nursing Inc., and included one Other-than-Serious item: “29 CFR 1904.39(a)(2): The employer did not report within 24-hours a work-related incident resulting in in-patient hospitalization, amputation or the loss of an eye. On 5/5/2020, the employer reported six hospitalizations that occurred as early as April 19th, 2020 but did not inform USDOL-OSHA of the hospitalizations until May 5th, 2020 at 7:14 am.”

Employers have a duty to report work-related hospitalizations due to an illness acquired at work. Work-relatedness requires a case-by-case inquiry, addressed in our prior blog. Because of widespread community transmission of the virus, most employee COVID-19 cases will not be considered work-related. Further, under the regulations (29 CFR 1904.39(b)(6)), employers need only report an in-patient hospitalization if it “occurs within twenty-four (24) hours of the work-related incident.” In the COVID-19 context, this means that employers only have a duty to report hospitalizations that they know occur within 24 hours of a workplace COVID-19 transmission. Employers normally lack information regarding the precise source of an infection and COVID-19 symptoms take 2-14 days to manifest. From a legal and factual perspective, it is virtually impossible or an employer to be aware of a COVID-19 hospitalization within 24 hours of a workplace transmission. Accordingly, employers generally will have no legal duty to report a COVID-19 hospitalization. Reporting a hospitalization could result in an onerous OSHA inspection and citations, as were issued here.

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. OlsonAndrew H. PerellisPatrick D. Joyce, Rebecca A. Davis, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: Last week, the U.S. Environmental Protection Agency (EPA or Agency) initiated the first phase of a two phased approach to address ethylene oxide (EtO) emissions, announcing final amendments to the Miscellaneous Organic Chemical Manufacturing National Emission Standards for Hazardous Air Pollutants (NESHAP), known as MON.

Ethylene oxide, a flammable, colorless gas used to make other chemicals that are used in manufacturing a range of products, including antifreeze, textiles, plastics, detergents and adhesives, is also used to sterilize equipment and plastic devices that cannot be sterilized by steam, such as medical equipment. The Agency recently updated its controversial risk value for ethylene oxide (criticized by industry as significantly overstating the risks associated with and safe levels of EtO). As a result, EPA determined it had become necessary to develop rulemaking to reduce EtO emissions consistent with the risk values. Last week’s MON rule contains the “technology-based” standards for monitoring and controlling EtO via Maximum Achievable Control Technology (MACT) standards.

Among the requirements of the new standards are controls and operational limits for storage tanks, process vents, transfer racks and heat exchange systems. The operational requirements  and work practice standards include leak control requirements and control of emissions from wastewater streams. There are also new monitoring and control requirements for flares used to control EtO emissions.

Despite the imposition of new control, operational limits, and work practice standards, EPA has estimated that compliance with the standards will reduce EtO emissions by only 0.76 tons per year nationwide. That is, the efforts to be borne by industry are estimated to reduce EtO by only de minimis amounts.

The Final Rule was released on May 29, 2020.  EPA has made a Fact Sheet  on the Final Rule available. It should be noted that this rule will largely only affect miscellaneous specialty chemical production; USEPA has not yet developed specific standards for EtO from commercial sterilizers.

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

By James L. Curtis, Mark A. Lies, II, Adam R. Young, Daniel R. BirnbaumPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The Occupational Safety and Health Administration (OSHA) has adopted a Revised Enforcement Guidance for Recording Cases of COVID-19. Under the OSHA regulations and the revised guidance, most cases of COVID-19 will not be definitively “work-related” and will not be recorded or reported to OSHA.

OSHA is revising its previous enforcement policy for recording cases of coronavirus (Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019, May 19, 2020). Under OSHA’s recordkeeping requirements, coronavirus is a potentially recordable illness, and employers are responsible for recording cases of the coronavirus, if the case:

Work related cases that result in an employee fatality must be reported to OSHA by phone or online. Because of the difficulty in determining whether this widespread virus was actually contracted at the worksite, OSHA has stated that it will focus on an employers’ reasonable, good faith efforts in making work-related determinations.

In determining whether an employer has complied with this obligation and made a reasonable determination of work-relatedness, Compliance Officers will consider the following:

  • The reasonableness of the employer’s investigation into work-relatedness.
  •  Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area.
  • It is sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness, (1) to ask the employee how they believe they contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee their work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee’s work environment for potential SARS-CoV-2 exposure. The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.

Accordingly, OSHA continues to recognize the difficulty in determining work-relatedness for an illness that exists in the community and may be contracted from numerous sources and will assess employers’ reasonable efforts in making work-related determinations. In making the work-relatedness determination, employers need to consider the effect of numerous safety and health procedures that the employer has implemented to control and minimize the risk of possible infection within the workplace.

The employer’s safety program should be following the guidance of the CDC and OSHA regarding COVID-19. These precautions, when considered individually and collectively, effectively reduce and control the possible risk that the COVID-19 virus will be present and/or transmitted to another worker in the workplace. For example, by ensuring that employees are staying home and not at work when they have symptoms that might be COVID-19 the employer would be eliminating the possibility that a worker who is symptomatic with COVID-19 is at work. Further, by following key safety precautions, such as social distancing and wearing masks and face coverings, the employer is eliminating or significantly reducing the chance that an associate will be in “close contact” with someone who may have COVID-19.

If an employer makes a reasonable and good faith inquiry but cannot determine whether it is more likely than not that exposure in the workplace caused a worker to contract COVID-19, OSHA says that the employer does not need to record the case or to report a hospitalization or fatality.

The employer’s individual work-relatedness reasonable inquiry for each COVID-19 case can be short and focused on whether an employee had close contact with other individuals at work (15 minutes or more of contact, within six feet, without face masks or barriers). Cases are not recordable without close contact at work with a known or suspected COVID-19 case. Such contact is necessary but insufficient by itself, because the probability of transmission is low and there is often an alternative explanation of community transmission.

Seyfarth OSHA practice attorneys have sample questions for several industries that can help guide employers in how to best conduct this inquiry for each case.

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, Benjamin D. BriggsBrent I. Clark, Mark A. Lies, II, Adam R. YoungPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The federal Occupational Safety and Health Administration (OSHA) has adopted an Updated Interim Enforcement Response Plan for Coronavirus Disease (ERP). Now, as states begin reopening their economies, the revised ERP will “ensure employers are taking action to protect their employees.”

Federal OSHA has faced recent lawsuits from traditional labor relating its regulatory response to the pandemic, including its decision not to issue new regulations to address COVID-19. On May 19, 2020, OSHA issued a new enforcement guidance (Updated Interim Enforcement Response Plan for Coronavirus Disease 2019, May 19, 2020) acknowledging that many non-critical businesses have begun to reopen in areas of lower community spread, and then numerous other businesses will be reopening in coming weeks. The risk of transmission is lower in specific categories of workplaces, and personal protective equipment potentially needed for inspections is more widely available for OSHA staff. According to OSHA, it will “continue to prioritize COVID-19 inspections, and will utilize all enforcement tools as OSHA has historically done.” In the areas of lower risk, OSHA will return to doing more onsite inspections, which have largely been limited to fatality inspections during the pandemic.

According to the ERP, OSHA will continue to prioritize COVID-19 cases. The agency acknowledged that it will continue to target healthcare employers, who historically have not been a primary target of OSHA enforcement. During an inspection, the ERP instructs compliance officers to examine whether employees “who are expected to perform very high and high risk exposure tasks are using respirators (i.e., N95 or better).” The ERP states in bold text that “appropriate respiratory protection is required for all healthcare personnel providing direct care for patients with suspected or confirmed cases of COVID-19.” Area Directors will continue to evaluate potential on-site inspections for COVID risks to OSHA personnel and will not send compliance officers where they perceive a hazard.

Enforcement against employers will be largely through the General Duty Clause. The ERP provides a sample citation (Attachment 4), again focused on healthcare employment and precautions during the treatment of COVID-19 patients.

Attached to the Updated Interim Enforcement Response Plan are specific enforcement procedures (Attachment 1); a sample employer letter for COVID-19 activities (Attachment 2); a sample hazard alert letter (Attachment 3); and additional references, including OSHA’s prior COVID-19-related enforcement memoranda (Attachment 5).

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, Helen M. McFarland, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The State of Washington’s Division of Occupational Safety and Health (DOSH) just enacted Emergency COVID-19 Safety Rules on “Prohibited Business Activities and Conditions for Operations.”

In a first-of-its-kind emergency rulemaking, DOSH enacted an emergency rule that, on its face, allows the agency to cite Washington employers who fail to follow the patchwork of rules and guidance related to COVID-19, as set out by the State of Washington and associated safety and health authorities. According to DOSH, the purpose of the emergency rulemaking is to ensure employers are adequately implementing safety and health rules for responding to the COVID-19 pandemic.

The emergency rule requires employers to cease prohibited business activities and come into compliance with requirements under the State’s Stay Home, Stay Healthy Proclamation, and amendments under RCW 43.06.220 (Emergency Proclamation), including provisions:

  • Prohibiting employees from working where a business activity is prohibited by an emergency proclamation; and
  • Requiring employers to comply with all conditions for operation required by the Emergency Proclamation, Governor Inslee’s Safe Start phased reopening plan and related guidance.

Effective May 26, 2020, the emergency rule renders all guidance related to business operations during COVID-19 mandatory. According to DOSH, the emergency rule is intended to “clarify that restrictions and conditions on business activities” under the Stay Home, Stay Healthy order, are “also health and safety requirements and that employers can be subject to a citation and monetary penalties for violations.”

The emergency rule is set to expire on September 23, 2020.

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 Daniel B. Klein, Adam R. YoungPatrick D. Joyce, and Craig B. Simonsen

Image from CDC.

Seyfarth Synopsis: In the last two weeks, the CDC has updated the list of symptoms for COVID-19 on several occasions, eliminating the “two or more” list and adding “less common” symptoms and emergency warning signs.

The CDC has cautioned that individuals with COVID-19 can be asymptomatic, have mild symptoms, or have severe illness.  Symptoms may appear 2-14 days after exposure to the virus.  As of May 26, 2020, CDC lists common COVID-19 symptoms as:

  • Fever or chills
  • Cough
  • Shortness of breath or difficulty breathing
  • Fatigue
  • Muscle or body aches
  • Headache
  • New loss of taste or smell
  • Sore throat
  • Congestion or runny nose
  • Nausea or vomiting
  • Diarrhea

The CDC has also cautioned there are other possible symptoms that are not included on the current list. The CDC has been regularly updating and modifying the list.

Finally, the CDC cautions that individuals should seek immediate medical attention immediately if they have:

  • Trouble breathing
  • Persistent pain or pressure in the chest
  • New confusion
  • Inability to wake or stay awake
  • Bluish lips or face

Employers should be closely tracking CDC guidance and updating their screening tools to minimize the number of symptomatic individuals in the workplace, and prevent COVID-19 transmission.

Seyfarth has developed numerous Return to Work tools to help employers maintain healthy and safe workplaces.  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. OlsonAndrew H. PerellisPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: This U.S. Environmental Protection Agency (EPA) announced its final rule to add per- and polyfluoroalkyl substances (PFAS) to the list of chemicals required to be reported annually under the EPCRA Section 313 Toxics Release Inventory (TRI) reporting requirements, and established a 100-pound reporting threshold for these substances. TRI Reporters need to collect information beginning in 2020,  for the July 2021 report of 2020 releases. 

We had previously blogged that the National Defense Authorization Act (NDAA) Adds Per- and Polyfluoroalkyl Chemicals to TRI and about the EPA Advance Notice of Proposed Rulemaking on Per- and Polyfluoroalkyl Chemicals. In advance of the formal publication of the final rule in the Federal Register very soon, the Agency has published a pre-publication draft of the rule in a notice entitled:  EPA Takes Next Step to Implement PFAS Legislation,; the pre-publication notice lists the 172 PFAS that will shortly be subject to reporting under TRI.  Per- and polyfluoroalkyl substances are a group of man-made chemicals that includes PFOA, PFOS, and other chemicals. PFAS can be found in food, commercial household products, the workplace, drinking water, and in living organisms, including fish, animals, and humans.

While EPA estimates approximately 500 facilities nationwide will be required to report PFAs under the new rule, Seyfarth believes the impact is expected to be much, much larger because of the number of facilities in the affected NAICS codes which will be required to determine if they exceed the low 100 pound threshold trigger for reporting any of the individual PFAs. (The 100 pound threshold applies to manufacturing, processing or use of any of the listed PFAs, which are ubiquitous in industrial use). That is, many of our clients will need to carefully determine in 2020 whether they manufacture, process or use more than 100 pounds of any of the PFAs; the exercise of determining whether a facility has even met the threshold is itself a time-consuming process that must be done whether or not a facility must actually report the PFAs on its 313 form. To that end, the Agency notes that “TRI reporting requirements state that a facility should use readily available data collected pursuant to other provisions of law or, where such data are not readily available, reasonable estimates of the amounts involved.”

Under the rules,  Form 313 TRI reporting forms must be prepared for or include PFAS beginning July 1, 2021, for calendar year 2020 data.

For more information on the final rule, TRI reporting, the affected PFAs, or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety & Environmental Team.

By Jeryl L. OlsonAndrew H. PerellisPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: This U.S. Environmental Protection Agency (EPA) proposed rule would provide “procedures for developing and issuing guidance documents and to establish a petition process for public requests to modify or withdraw an active guidance document.”

We have previously blogged on agency guidance documents. See President Issues Executive Orders on Guidance Documents and Transparency; Still Business-Friendly Times – DOJ Limits the Use of Agency Guidance Documents in Civil Enforcement; and Business-Friendly Times – USDOJ Limits the Use of Agency Guidance Documents in Civil Enforcement.

The purpose of the EPA’s proposed rules are to ensure EPA guidance documents:

  • Are developed with appropriate review;
  • Are accessible and transparent to the public;
  • Are subject to public participation;
  • Meet standard elements established for guidance documents and “significant guidance documents”; and
  • Contain procedures for the public to request that an active guidance document be modified or withdrawn.

The proposed rule is intended to be consistent with Executive Order (EO) 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents” .

The proposed rulemaking will not necessarily change the utility of guidance documents; EPA guidance documents will continue to be  legally non-binding. The rule will however ensure that EPA works with stakeholders to develop guidance documents, provide opportunities for public review and comment on the draft guidance document, and announces the availability of final guidance documents. The proposed regulation will also establish a portal to allow the public to more easily identify Agency guidance documents.

The public comment period will end 30 days after publication of the proposed rule in the Federal Register; for assistance in providing comments or for more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety & Environmental Team.

By Chris DeMeo, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: CDC and OSHA issues specific guidance related to COVID-19 policies, administrative controls, engineering controls, personal protective equipment, and face masks for the nursing home industry.   

During the COVID-19 pandemic, nursing homes and care facilities have instituted significant precautions and protocols to address employee and resident safety.  The Centers for Disease Control and Prevention (CDC) and federal Occupational Safety and Health Administration (OSHA) have both recently published guidance documents to assist guide nursing home employers in their response. The CDC has issued Considerations for the Public Health Response to COVID-19 in Nursing Homes, (April 29, 2020). This guidance is intended to assist nursing homes and public health authorities with response in nursing homes. This guidance supplements but does not replace recommendations included in the CDC’s earlier Interim Additional Guidance for Infection Prevention and Control for Patients with Suspected or Confirmed COVID-19 in Nursing Homes. OSHA just issued a COVID-19 Guidance for Nursing Home and Long Term Care Facility Workers, (May 14, 2020), which employers can follow to help protect nursing home workers and long term care facility workers from exposure to the coronavirus.

The CDC advises that nursing homes should:

  • Act now to implement all COVID-19 preparedness recommendations, even before cases are identified in their community.
  • Address asymptomatic and pre-symptomatic transmission, implement source controlfor everyone entering a healthcare facility (e.g., healthcare personnel, patients, visitors), regardless of symptoms.
    • Cloth face coverings are not considered personal protective equipment (PPE) because their capability to protect healthcare personnel (HCP) is unknown. Facemasks, if available, should be reserved for HCP.
    • For visitors and residents, a cloth face covering may be appropriate. If a visitor or resident arrives to the facility without a cloth face covering, a facemask may be used for source control if supplies are available.
  • Dedicate an area of the facility to care for residents with suspected or confirmed COVID-19; consider creating a staffing plan for that specific location.

In its nursing home and long-term care facility workers news release and Alert, OSHA suggests the following measures that can help protect employees working in nursing homes and long term care facilities, including:

  • Encourage workers to stay home if they are sick;
  • Screen workers and residents regularly for signs and symptoms consistent with the coronavirus. Send sick workers home or to seek medical care;
  • Closely monitor and take additional precautions regarding employees and residents who may have been exposed to an individual with the coronavirus;
  • Follow CDC guidance on updating existing resident visitation policies;
  • Ask visitors to inform the facility if they develop a fever or symptoms consistent with the coronavirus within 14 days of their visit;
  • Maintain at least 6 feet between workers, residents, and visitors to the extent possible, including while workers perform their duties and during breaks;
  • Stagger break periods to avoid crowding in breakrooms;
  • Consider alternatives to in-person large group gatherings (e.g., staff meetings, resident activities);
  • Always follow good infection prevention and control practices. Consult OSHA’s COVID-19 guidance for healthcare workers and employers.
  • Provide handwashing facilities and alcohol-based hand sanitizer with at least 60 percent alcohol throughout facilities;
  • Regularly clean and disinfect shared equipment and frequently touched surfaces in resident rooms, staff work stations, and common areas;
  • Use hospital-grade cleaning chemicals approved by the Environmental Protection Agency (EPA) from List N or EPA-approved, hospital grade cleaning chemicals that have label claims against the coronavirus;
  • Ensure workers have and use any personal protective equipment (PPE) they need to perform their jobs safely;
  • Continually monitor personal protective equipment (PPE) stocks, burn rate, and supply chains. Develop a process to decontaminate and reuse PPE, such as face shields and goggles, as appropriate. Follow CDC recommendations for optimization of PPE supplies;
  • Train workers about how to protect themselves and residents during the pandemic; and
  • Encourage workers to report any safety and health concerns.

These recommendations are consistent with OSHA’s general guidances for employers and likely also apply to private duty aides employed by residents’ families.  By following these guidances, where feasible, employers can demonstrate compliance with OSHA’s General Duty Clause to maintain a workplace free from any recognized hazard.  Compliance will also demonstrate the employer’s adoption of the standards of care to reduce liability for state tort claims.

In addition, the Governors of New York and Texas have recently directed that nursing home workers be tested for COVID-19. While in Texas such testing is to be carried out by State agencies, in New York, preliminary indications are that the facilities will be responsible.

Implementing these guidances and directives raises a myriad of additional legal considerations.  In developing a COVID-19 workplace safety and testing program, facilities should not overlook both general and COVID-specific issues such as immunity from liability, informed consent, employee accommodations, resident rights and information privacy.

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.