OSHA Issues COVID-19 Guidance for the Construction Industry

By Conn Maciel Carey’s COVID-19 Task Force

Federal OSHA just issued new COVID-19 guidance focused on the construction industry.  It does not tread a lot of new ground, but here is a summary of it.

Most construction projects and tasks will be in the Lower or Medium risk exposure category in OSHA’s COVID-19 risk matrix (those categories require much less in the way of engineering and administrative controls than healthcare and manufacturing facilities. Social distancing and physical barriers continue to be the principal method to control infection recommended by OSHA. With respect to separating employees at construction sites, OSHA recommends:Construction Guidance

  • Using closed doors and walls, whenever feasible, as physical barriers to separate workers from any individuals experiencing signs and/or symptoms consistent with COVID-19; and/or
  • Erecting plastic sheeting barriers when workers need to occupy specific areas of an indoor work site where they are in close contact (less than 6 feet) with someone suspected of having or known to have COVID-19.

OSHA also recommends gathering certain information (and provides sample questions) about projects before sending workers to perform construction activities in an indoor environment that may be occupied by a homeowner, customer, worker, or another occupant.

The new guidance includes a large section on “Face Coverings in Construction,” consistent with OSHA’s general movement towards a consistent expectation that employers will provide and require face coverings in workplaces whenever and wherever social distancing cannot be assured.  The Face Covering section in this construction guidance explains that: Continue reading

COVID-19 Exposure Control and Response Plan: What Is It and Why Does Every Employer Need One?

By Conn Maciel Carey’s COVID-19 Task Force

As states across the country begin to loosen or lift stay-at-home and shutdown orders, many workplaces that had been idled, have just begun to or will soon resume operations.  Many states and localities are setting as a precondition for reopening, a requirement that they develop and implement a written, site-specific COVID-19 Exposure Control and Response Plan.

Regardless of any state or local requirement to develop such a plan, any business that operates without an Exposure Control Plan will be potentially exposed to a number of legal or business risks, such as an OSHA citation, being shutdown by a state or local health department, and/or becoming a target for a wrongful death action brought by families of employees, temporary workers, customers, vendors and/or guests. They should also plan to deal with a workforce that is scared and anxious about the company’s response to the COVID-19 pandemic, which may result in employees refusing to work (which would disrupt and complicate scheduling) and/or making regular and frequent complaints to OSHA about the purported unchecked hazard in your workplace.  Responding to these complaints will take time and cost money, distracting your business from its mission.  Retaliation claims under Section 11(c) of the OSH Act is another foreseeable consequence of a scared workforce.  Without an Exposure Control Plan in place, the legal vulnerabilities will be real and are potentially significant.

We focus below on five key reasons employers must develop a written COVID-19 Exposure Control and Response Plan.  But first, what is an exposure control plan?

What is an Exposure Control and Response Plan?

When OSHA identifies a serious safety or health hazard, it usually requires employers to develop a written program including the measures employers will take to counteract the hazard.  For example, OSHA requires written lockout/tagout programs to protect against hazardous energy; respiratory protection programs and process safety management programs to protect against hazardous chemical exposures; and emergency action plans to protect against the risk of fires in the workpalce.  Simply put, a COVID-19 Exposure Control Plan is a written safety plan outlining how your workplace will prevent the spread of COVID-19, covering issues such as:

  • How you will facilitate social distancing in your workplace;
  • What engineering or administrative controls you will implement when workers cannot remain at least 6′ apart;
  • The steps that you will take to ensure employees comply with personal hygiene practices;
  • What types of protective equipment you will provide for various tasks and operations;
  • What enhanced housekeeping protocols will be implemented for frequently touched surfaces, tools, and machines;
  • What you are doing to prevent/screen sick workers from entering the workplace;
  • How you will respond to confirmed or suspected cases among your workforce; and
  • How you will communicate with and train your workforce on these mitigation measures.

Five Reasons to Develop a Written COVID-19 Exposure Control Plan

First, whether you have remained open because you are an essential business or plan to reopen soon, you may soon find yourself required to adopt such a plan by virtue of an executive order issued by the governor of a state in which you operate, or in some cases, pursuant to orders issued by city or county officials. Continue reading

BREAKING: OSHA Issues Enforcement Policy Relaxing Regulatory Compliance During the COVID-19 Crisis

By Conn Maciel Carey’s COVID-19 Task Force

The Coronavirus pandemic has created unprecedented challenges for employers that are attempting to meet OSHA regulatory obligations – such as annual training, auditing, testing, medical surveillance requirements, and the like – without creating greater risk of exposure to COVID-19 for their employees.  This evening (April 16, 2020), OSHA issued a new Enforcement Memorandum acknowledging that reality.  The enforcement memo, entitled “Discretion in Enforcement when Considering an Employer’s Good Faith Efforts During the Coronavirus Disease 2019 (COVID-19) Pandemic,” provides enforcement relief for employers who exercise good faith in the context of this extraordinary health crisis.

In explaining the need for this enforcement relief, OSHA recognized that:

“Widespread business closures, restrictions on travel, limitations on group sizes, facility visitor prohibitions, and stay-at-home or shelter-in-place requirements” have strained the “availability of employees, consultants, or contractors who normally provide training, auditing, equipment inspections, testing, and other essential safety and industrial hygiene services,” as well as the opportunity for “employee participation in training even when trainers are available.”  Similarly, “access to medical testing facilities may be limited or suspended.”

To address these very real challenges to achieving full compliance with various annual and other regulatory requirements, OSHA issued a temporary enforcement policy based on the agency’s enforcement discretion to relax enforcement of many existing regulatory obligations if complying with these obligations is not feasible or if doing so would pose an unreasonable risk of virus transmission among the employer’s workforce.  Today’s enforcement policy applies broadly to employers in all industry sectors, takes effect immediately, and will remain in effect indefinitely throughout the current public health crisis.

The heart of the new enforcement policy is this: Continue reading

COVID-19 OSHA FAQs about Respirators, Face Masks, and Face Coverings

By Conn Maciel Carey’s COVID-19 Task Force

During the COVID-19 pandemic, MSHA has published limited guidance for mine operators, while OSHA continues to push out a steady stream of industry guides and interpretations. While OSHA does not regulate the country’s mines, in this unprecedented situation their materials can be educational and informative for mine operators. However, it is imperative to remember that MSHA regulations are still the law in the event OSHA guidance and MSHA regulations contradict one another.

As concerns about the spread of COVID-19 grow, many employees working in essential businesses have sought to provide or require some form of respirator, face mask, or face covering for employees.  Now, the CDC and White House are recommending that everyone wear some form of face covering any time in public to help reduce community spread of COVID-19.  So, it is important to be aware of the OSHA guidelines and obligations regarding respirators and face coverings in the workplace.  Depending on the type of face mask used, and whether it is required by the employer or permitted for voluntary use, there are certain requirements that employers must follow under OSHA’s respiratory protection standard, 29 C.F.R. 1910.134 and perhaps by other regulatory requirements.

As a starting point, let’s level-set the type of equipment we are talking about.  N95 masks, although they are called masks and look like masks, are actually considered by OSHA to be respirators.  Of course, anything more substantial than an N95 mask, such as half or full face tight-fitting face pieces with a filtering medium, are also considered by OSHA to be respirators.  That type of equipment, whether it is required by the employer or permitted for voluntary use, triggers some requirements of OSHA’s respiratory protection standard that we will discuss below.  Simple paper or cloth masks, like dental or non-N95 surgical masks, on the other hand, are not considered to be respirators, and do not trigger any requirements under 1910.134. Continue reading

Preparing for and Managing MSHA Inspections – [Webinar Recording]

On March 26,  2020, Nick Scala of Conn Maciel Carey’s national MSHA Practice, presented the second webinar event in the 2020 MSHA Webinar Series which covered Preparing for and Managing MSHA Inspections.March 2020 Webinar Snip

Knowing how to conduct yourself while engaging with MSHA during inspections or investigations can serve to make the process more efficient, and also help operators avoid misunderstandings with MSHA personnel, which can make visits from the Agency spiral. This webinar served to give operators, and their representatives, a set of guidelines for how to conduct themselves when MSHA is on site. Continue reading

MSHA Posts Guidance for Operations During COVID-19

By: Nicholas W. Scala

Since the outbreak of 2019 Novel Coronavirus – now called “COVID-19” began in the United States, state and the federal government departments and agencies started posting guidance, best practices, and requirements for the continued operations of businesses. Until now, MSHA has remained relatively silent on the matter, with little other than a short posting granting some relief on training deadlines for operators in a Department of Labor resources page. That is until last week, when MSHA published its Response to COVID-19.

The contents of MSHA’s responses are rather minimal, especially when compared to its sister agency OSHA, which has published in depth materials on several occasions, including OSHA’s Guidance on Preparing Workplaces for COVID-19.COVID

MSHA’s Response to COVID-19 begins by recommending operators adhere to Centers for Disease Control (CDC) guidelines, including recommendations that operators enforce social distancing, clean and disinfect surfaces, encourage the proper washing of hands, and have employees stays home if they are sick. Practices that most, if not all companies nationwide have hopefully been implementing for some time already.

As for MSHA specific action, the agency unsurprisingly reaffirmed that it will continue to conduct mandatory inspections along with serious accident and injury investigations and/or hazard complaint investigations. Specifically it mentions that it will investigate complaints which detail an Imminent Danger or “serious in nature” hazards – both terms which grant MSHA significant deference to to decide when, or when not, to perform an investigation. Continue reading

What Do State and Local Stay-At-Home/Shelter-In-Place Orders Mean For Employers?

By Conn Maciel Carey’s COVID-19 Task Force

COVIDGovernors across the nation have signed various “stay-at-home” or “shelter-in-place” orders in an increased effort to slow the spread of COVID-19.  Many cities and counties have also signed such orders as well, including in states with no statewide order in place.  These orders vary in their scope in the restricted activities and affected industries but they typically address: (1) the continued operations of critical businesses; (2) restrictions on non-essential businesses; (3) the activities individuals may continue to perform; and (4) other limitations on gatherings.

Spotlight: California

On March 19, 2020, California Governor Gavin Newsom signed an emergency order requiring all individuals living in California “stay home or at their places of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors.”  Californians may continue working for such critical infrastructure sectors and any other industries the governor designates as critical.  The emergency order cites to federal guidance on the federal critical infrastructure sectors, which identifies the 16 critical infrastructure sectors including critical manufacturing, food and agriculture, transportation, energy, healthcare and emergency services. Continue reading

March Update on How Employers Can Respond to COVID-19 with FAQs

By:  Kara M. Maciel and Beeta B. Lashkari

COVID

 

Since publishing our previous post last month, there have been a number of significant developments related to the 2019 Novel Coronavirus – now officially called “COVID-19.”  Notably, during the week of February 23, 2020, the U.S. Centers for Disease Control and Prevention (“CDC”) reported community spread of the virus that causes COVID-19 in California, Oregon, and Washington.  Community spread in Washington resulted in the first death in the U.S. from COVID-19, as well as the first reported case of COVID-19 in a health care worker, and the first potential outbreak in a long-term care facility.

Recent Developments and Federal Guidance

  • CDC has published an Interim Guidance for Businesses and Employers, cautioning employers to use the guidance to determine the risk of the Coronavirus, and not to use race or country of origin to make a determination. The guidance covers recommended strategies for employers to use, including: (1) actively encouraging sick employees to stay home; (2) separating sick employees; (3) emphasizing staying home when sick, respiratory etiquette and hand hygiene by all employees; (4) performing routine environmental cleaning; and (5) advising employees before traveling to consult CDC’s Traveler’s Health Notices and other CDC guidance.  Additionally, the guidance states that if an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace, but maintain confidentiality as required by the Americans with Disabilities Act (“ADA”).

Continue reading

MSHA 2019 in Review and 2020 Forecast – [Webinar Recording]

On February 11,  2020, Nick Scala of Conn Maciel Carey’s national MSHA Practice, presented the first webinar event in the 2020 MSHA Webinar Series which covered Our Annual MSHA Update: MSHA 2019 in Review and 2020 Forecast.

2020 webinars 1

As we move into 2020, the last year of the Trump Administration’s first term, a new MSHA is taking form. The Agency has undergone, and continues to undergo, significant changes with its personnel, structure, and priorities. In this webinar, we examined MSHA’s 2019 with respect to enforcement, rulemaking, and the One MSHA “blurring” of the Coal and Metal/Nonmetal divisions. We also explored the potential areas of emphasis for the upcoming year and outline several items mine operators and independent contractors should monitor during 2020.

During this webinar, participants learned about: Continue reading

How Employers Can Respond to the 2019 Novel Coronavirus Outbreak

From Conn Maciel Carey’s Labor & Employment Practice Blog, the Employer Defense Report

By Kara M. Maciel and Beeta B. Lashkari

The 2019 Novel Coronavirus (“2019-nCoV” or “coronavirus”) is a respiratory illness that, with its spread to the United States, is raising important issues for employers.  This guide explains the outbreak, the legal implications of it, and how employers should be responding now to employees who might have the virus, are caring for affected family members, or are otherwise concerned about their health in the workplace.

The Coronavirus Outbreak

First detected in Wuhan, Hubei Province, China, 2019-nCoV is a respiratory virus reportedly linked to a large outdoor seafood and animal market, suggesting animal-to-person spread.  However, a growing number of patients reportedly have not had exposure to animal markets, indicating person-to-person spread is occurring.  At this time, it is unclear how easily the virus is spreading between people.  Symptoms of coronavirus include fever, cough, difficulty breathing, runny nose, headache, sore throat, and the general feeling of being unwell.  The incubation period is approximately 14 days, during which time an individual may see no symptoms but may still be contagious. The Centers for Disease Control and Prevention (“CDC”) reports that an ongoing investigation to determine more about this outbreak is underway, that the situation is rapidly evolving, and that more information will be provided as it becomes available.

As of January 30, 2020, there have been approximately 8,100 confirmed cases of 2019-nCoV in many countries, including in the United States.  On January 30, 2020, the International Health Regulations Emergency Committee of the World Health Organization (“WHO”) declared the outbreak a “public health emergency of international concern.”  On January 31, 2020, Health and Human Services Secretary Alex M. Azar II declared a public health emergency for the United States to aid the country’s healthcare community in responding to 2019-nCoV.  Additionally, on the same day, the President of the United States signed a presidential “Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Persons who Pose a Risk of Transmitting 2019 Novel Coronavirus.”

Legal Implications for Employers

With the presence of coronavirus in the United States, employers must be vigilant in complying with the various labor and employment laws implicated by the virus. Continue reading