On July 20, 2020, the U.S. Centers Disease Control and Prevention (“CDC”) made major revisions to its COVID-19 “discontinue home isolation” guidance, upon which employers may rely to determine when it is safe for employees to return to work. This comes only a couple months after CDC made major revisions to the same guidance document when, on May 3, 2020, it extended the home isolation period from 7 to 10 days since symptoms first appeared for the symptom-based strategy in persons with COVID-19 who have symptoms, and from 7 to 10 days after the date of their first positive test for the time-based strategy in asymptomatic persons with laboratory-confirmed COVID-19.
In its most recent update, CDC has determined that a test-based strategy is no longer recommended to determine when to discontinue home isolation, except in certain circumstances. It has also modified its symptom-based strategy in part by changing the number of hours that must pass since last fever without the use of fever-reducing medication from “at least 72 hours” to “at least 24 hours.” CDC’s revisions should trigger employers to immediately revise their COVID-19 preparedness, response, and control plans to account for the latest changes. In light of the recent COVID-19 regulation that Virginia promulgated almost at the same time that CDC decided to update its guidance, the revisions also demonstrate that COVID-19 is not the type of hazard easily subject to a regulatory standard.
To start, it is important to understand the major changes that CDC has just made. As you know, prior to CDC’s most recent changes, CDC offered individuals with COVID-19 who had symptoms two options for discontinuing home isolation: Read More
On Wednesday, August 19, 2020 at 1 PM Eastern, join Conn Maciel Carey and special guest Richard Fairfax, former Deputy Assistant Secretary at the Occupational Safety and Health Administration, for a webinar regarding “OSHA and Labor & Employment Law Issues Associated with Employee Discipline.”
Disciplining employees, a critical tool in enforcing workplace rules, has the potential to create problems, especially when relationships deteriorate and emotions run high. Even in situations where an employer is disciplining for the right reason, if it is handled incorrectly, a lawsuit or labor grievance could turn out to be costly. But in circumstances that warrant discipline, employers cannot just sit back. Productivity, employee morale, workplace culture, employee safety and health, and meeting goals are just some of the many considerations impacted by an effective employee discipline program. Consistent employee discipline can also benefit employers in litigation, union grievances, and inspections and investigations by the EEOC and OSHA. At the same time, employers are often confused on how to effectively and legally implement safety incentive and disincentive programs without running afoul of OSHA’s guidelines.
This webinar will give you a blueprint to lawfully discipline employee and mitigate the risk of future litigation. Participants in this webinar will learn about: Read More
As we previously reported, in late May, Cal/OSHA issued a new set of COVID-19 Recordkeeping and Reporting FAQs that represented a serious departure from federal OSHA’s guidance on that same subject. Throughout the pandemic, federal OSHA has maintained that employers need only record and report COVID-19 cases that are:
Cal/OSHA’s May 27th guidance, however, breaks from both of those key requirements for COVID-19 recordkeeping, rejecting the need for a confirmed case and flipping the burden of establishing work-relatedness on its head, establishing instead a presumption of work-related if any workplace exposure can be identified, even if the cause of the illness is just as likely to be attributable to a non-work exposure.
Aside from being bad policy that will result in many illnesses being recorded on 300 Logs only in California that were not actually COVID-19 cases, and/or that were not caused by exposures in the workplace, Cal/OSHA’s unique COVID-19 recording criteria are not permitted by law.
More COVID-19 cases on your logs can create significant risk of liability. For example, Read More
California increased its efforts to combat COVID-19 over the July 4th holiday weekend by deploying multi-agency strike teams to visit or otherwise make contact with businesses to evaluate and enforce compliance with and/or educate them about the State’s numerous COVID-19 orders, directives, and guidance.
The “Strike Force” includes representatives from at least ten different state agencies. Approximately 100 agents are from the Alcohol Beverage Control agency and the rest from the Division of Occupational Safety and Health (Cal/OSHA), the California Highway Patrol, the Board of Barbering & Cosmetology, Consumer Affairs, Food and Agriculture, Labor Commissioner’s Office, the Governor’s Office of Business and Economic Development, and other state licensing entities.
Ahead of the July 4th holiday, Governor Newsom ordered bars, indoor restaurants, movie theaters and more to close in a number of counties on a state watch list. The state monitoring list is ever changing and represents counties with a need for more support and/or enforcement.
Over the holiday, hundreds of state inspectors fanned out across California to enforce health orders related to Coronavirus.
The State’s actions are likely authorized by Executive Order N-33-20, which generally directs all residents immediately to heed current State public health directives to stay home, except as needed to maintain continuity of operations of essential critical infrastructure sectors and additional sectors as the State Public Health Officer “may designate” as critical to protect health and well-being of all Californians. As for the crackdown, the actions taken are likely be based on recent state guidance documents relating to wearing masks, developing and implementing worksite COVID-19 response plans, etc.
Following the holiday weekend, Governor Newsom emphasized that enforcement efforts will continue to prioritize targeted counties on the monitoring list, known violators, and high-risk workplaces. Extra attention would be given to industries that should be operating outdoors or should be closed. Read More
As COVID Spring transitions to COVID Summer, wearing some form of face covering has become the new norm, especially in workplaces all across the country. Many employers operating essential businesses, as well as non-essential business that have begun to reopen, have sought to provide or require some form of respirator, face mask, or face covering for employees. Given OSHA’s particular emphasis on respiratory protection throughout the pandemic and for the foreseeable future, it is important for employers 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 mandated by the employer or merely 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 other regulations. Last week, OSHA issued a series of Frequently Asked Questions (FAQs) about face coverings to help employers navigate obligations amidst the COVID-19 pandemic.
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. Use of that type of equipment in the workplace, whether it is required by the employer or permitted for voluntary use, triggers numerous duties under OSHA’s respiratory protection standard that we will discuss below. On the other hand, simple paper or cloth masks, like dental or surgical masks, are not considered to be respirators, and do not trigger any requirements under 1910.134.
Let’s start this discussion with the more ubiquitous face coverings that are NOT considered to be respirators, Read More
By Conn Maciel Carey’s COVID-19 Task Force
As employers around the country grapple with the employment law and workplace safety implications of the 2019 Novel Coronavirus (“COVID-19”), Conn Maciel Carey formed a national, multi-disciplinary legal and regulatory task force dedicated to helping our clients across all industries manage the multitude of pandemic-related issues employers are facing and preparing them for the tidal wave of litigation that is waiting around the corner.
As part of our COVID-19 Task Force, the firm’s dedicated Workplace Safety, Labor and Employment, and Litigation attorneys have produced a comprehensive set of resources to guide employers through this uncharted territory and the unique workplace challenges presented by the presence of a new health hazard in our nation’s workplaces.
On behalf of a diverse coalition of employers, Conn Maciel Carey submitted written comments and presented key comments at the Cal/OSH Standards Board’s May 21, 2020 meeting concerning the proposed permanent rule on protection from wildfire smoke. The coalition raised a host of concerns about the rule, from the potentially broad application of the rule to the inflexible respiratory protection and hierarchy of controls requirements.
As background, the Cal/OSH Standards Board adopted an emergency regulation regarding hazards associated with wildfire smoke last summer at the urging of various interest groups. The regulation took effect on a temporary emergency basis on July 29, 2019.
Recently, the Board published a request for written comments and notice of a public hearing on its proposal to revise the emergency standard and make it permanent. The Board explained:
Current regulations are not sufficiently specific as to what employers are required to do during wildfire events. This results in confusion on behalf of both employers and employees, leaving many employees unprotected…. As wildfire seasons worsen, the proposed regulation will avoid a potential increase in debilitating and sometimes life-threatening illnesses faced by workers exposed to wildfire smoke.
The Emergency Standard
The emergency standard (which is still in effect) requires California employers to Read More
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? Read More
With no fanfare, California Governor Gavin Newsom issued the latest in his series of COVID-19-related executive orders on May 7, 2020. Executive Order N-63-20 extends by 60 days the time for Cal/OSHA to issue citations and for employers to file appeals, motions and petitions for reconsideration.
As rationale for extending these statutory, jurisdictional deadlines, Governor Newsom explained:
WHEREAS the COVID-19 pandemic, as well as physical distancing and
other public health measures undertaken in response to it, have affected
governmental agencies, workers, private businesses, and California residents, with associated impacts on adherence to certain statutory and regulatory
deadlines, as well as to workers’ efforts to vindicate their labor and employment
WHEREAS the COVID-19 pandemic, as well as physical distancing and
other public health measures undertaken in response to it, have also had
widespread impacts on state and local governments’ ability to perform certain
functions via in-person interactions, and such functions should be performed via
other means to the extent consistent with public safety and other critical public
As to the Cal/OSHA related deadlines specifically, the Order states: Read More