Coalition to Comment on Cal/OSHA’s Emergency COVID-19 Rulemaking
By Conn Maciel Carey’s COVID-19 Task Force
On September 17, 2020, the Standards Board voted to grant a Petition filed by the worker advocacy group WorkSafe to promulgate a general industry emergency COVID-19 regulation. This
emergency temporary standard will almost certainly be followed by the development of a permanent infectious disease standard. The intent of the rulemaking is to set specific, enforceable requirements and prohibitions for California employers, whose employees may be exposed to COVID-19 in the workplace, but who are not covered by Cal/OSHA’s existing Aerosol Transmissible Diseases (ATD) standard (generally applicable to healthcare operations).
Serious Concerns About the Likely Proposed Emergency Regulation
Although Cal/OSHA has not yet published a proposed standard, the WorkSafe petition included a proposed rule that sets specific requirements for identifying and evaluating COVID-19 workplace hazards, responding to COVID-19 exposures, and conducting employee training, among numerous other requirements. The scuttlebutt we are hearing suggests the Standards Board is likely to follow the WorkSafe’s proposed model for both this emergency rule and a follow-up permanent infectious disease standard.
Regardless of the approach the Standards Board follows, it will be imperative for the employer community to have its voice heard in the rulemaking process, with a set of robust comments and other advocacy. But if the agency does try to run with a proposal like the one WorkSafe designed, we have already identified numerous potential concerns for employers, including: Read More
Important COVID-19 Update: “Close Contact” Redefined to Mean 15 Cumulative Minutes
By Conn Maciel Carey’s COVID-19 Task Force
We want to alert you to a significant COVID-19 development out of the CDC yesterday. Specifically, the CDC just announced a material revision to its definition of “Close Contact.” The new definition makes it explicit that the 15-minute exposure period (i.e., within 6-feet of an infected individual for 15 minutes) should be assessed based on a cumulative amount of time over 24 hours, not just a single, continuous 15-minute interaction.
Here is the new definition included on the CDC’s website:
Close Contact – Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period* starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.
* Individual exposures added together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 minutes). Data are limited, making it difficult to precisely define “close contact;” however, 15 cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation. Factors to consider when defining close contact include proximity (closer distance likely increases exposure risk), the duration of exposure (longer exposure time likely increases exposure risk), whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding), if the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting), and other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors). Because the general public has not received training on proper selection and use of respiratory PPE, such as an N95, the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE. At this time, differential determination of close contact for those using fabric face coverings is not recommended.
CDC’s revised view of what constitutes a Close Contact is based on an exposure study at a correctional facility. Here is the CDC’s public notice about the correctional facility analysis. The analysis apparently revealed that virus was spread to a 20-year-old prison employee who interacted with individuals who later tested positive for the virus, after 22 interactions that took place over 17 minutes during an eight-hour shift.
An important consequence of this revision is the impact it will have on employers’ ability to maintain staffing because it establishes a much lower threshold trigger for required quarantine. Recall that
OSHA Publishes Employer Injury and Illness Data Collected Under the E-Recordkeeping Rule
By Eric J. Conn, Dan C. Deacon, and Beeta B. Lashkari
As the world continues to focus its attention on all things COVID-19 related – especially as the Centers for Disease Control and Prevention learns more and more about the virus and updates its guidelines — earlier this month, OSHA quietly published a treasure trove of employer injury and illness data as part of its Tracking of Workplace Injuries and Illnesses Rule (aka the “E-Recordkeeping Rule”). The move comes after numerous attempts by OSHA under the Trump Administration to delay and narrow the requirements set forth in the original E-Recordkeeping Rule 
promulgated by OSHA in May 2016 during the final year of the Obama Administration, and also attempts by Trump’s OSHA to withhold from disclosure, even pursuant to FOIA requests, the injury and illness data collected pursuant to the Rule since 2016.
History of E-Recordkeeping Rule
The current version of the E-Recordkeeping Rule has undergone some changes and revisions, and indeed, as we previously posted here on the OSHA Defense Report, the Rule has had a long and tortured history. Before promulgation of the E-Recordkeeping Rule, unless OSHA opened an enforcement inspection at an employer’s workplace or the Bureau of Labor Statistics requested an employer’s participation in its annual injury data survey, employer injury and illness recordkeeping data was maintained internally by employers. In a major policy shift, on May 11, 2016, President Obama’s OSHA enacted the E-Recordkeeping Rule, requiring hundreds of thousands of workplaces to submit injury and illness data through OSHA’s Injury Tracking Application (“ITA”). At that time, the Rule also included a provision in which employer injury and illness data would be made available to the public on a searchable online database without scrubbing employer names or location details.
More specifically, the 2016 E-Recordkeeping Rule required: Read More
CDC Guidance for Retail and Service Industries on Workplace Violence Associated with COVID-19 Policies
By Conn Maciel Carey’s COVID-19 Task Force
In recent months, we have heard too many stories and seen too many viral videos about retail clerks and restaurant employees facing violent attacks and threats from belligerent anti-mask customers who have been refused service or otherwise asked to adhere to the mask mandates issued by the Governors or Health Departments in their states. This includes the tragic tale of the store security guard who was shot and killed in Michigan after telling a customer at a discount store to wear a state-mandated face mask.
Responding to the surge in workplace violence faced by retailers and others in the service industries, on September 1, 2020, the CDC issued guidance on Limiting Workplace Violence Associated with COVID-19 Prevention Policies in Retail and Services Businesses. The new guidance covers how to manage the threat of violence from customers or others who are asked to comply with Governors’ or Health Department mandates or the businesses’ own infection control policies, such as requiring masks to be worn by customers, asking customers to follow social distancing rules, and setting limits on the number of customers allowed inside at one time. Specifically, the guidance discourages retailers from Read More
Update on Cal/OSHA’s Wildfire Smoke Rule
By Andrew Sommer and Fred Walter
In May of this year, Conn Maciel Carey’s OSHA Practice submitted comments to the Cal/OSH Standards Board on behalf of the Wildfire Smoke Rule Industry Coalition about the agency’s effort to make permanent what had been Emergency Temporary Standard to protect workers from the respiratory hazards of California wildfires.
Last month, the Cal/OSH Standards Board issued a 15-day Notice of Proposed Modifications to what would become the permanent wildfire smoke rule. The proposed changes are not major, mostly clarifying that one of the methods for determining the Air Quality Index for particulate matter 2.5 is the Interagency Wildland Fire Air Quality Response Program.
Another change to be expected in the final rule is a revision to the Appendix B training instructions to address cleaning and maintenance of reusable respirators, purportedly to address critical shortages of N95 respirators exacerbated by the COVID-19 pandemic. While anything that extends the supply of N95 masks is welcome, that change alone is not nearly enough to solve a massive compliance problem created by the rule. With the Wildfire Smoke Rule, DOSH requires workers exposed to wildfire smoke be supplied with N95 respirators, and it does not consider surgical masks to be acceptable substitutes. DOSH concedes that N95 respirators are generally not available to any but medical workers right now, but they have no recommended substitutes.
That was one of the primary points of emphasis in our coalition’s comments — the rule needed to include some flexibility around the requirement for employers to supply N95 respirator masks for all potentially affected workers. There were already problems with N95 shortages even before the COVID-19 pandemic, but now, the shortage is extreme, and with the CDC’s and OSHA’s recommendations that all supplies of N95s should be reserved for the healthcare industry obviously makes compliance with a a rigid N95 requirement for wildfire smoke protection impossible for most employers. Now in the midst of another wildfire season in California, employers are continuing to experience N95 shortages. Read More
CDC Revises its COVID-19 Return-to-Work Criteria, Again
By Conn Maciel Carey’s COVID-19 Task Force
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.
Revised Guidance
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
[Webinar] OSHA and Labor & Employment Law Issues Associated with Employee Discipline
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
Coalition for Uniformity in COVID-19 Recordkeeping Advocates for Cal/OSHA to Realign its Requirements
By Conn Maciel Carey’s COVID-19 Task Force
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:
- Confirmed by a positive laboratory test of a respiratory specimen; and
- “More likely than not” the result of a workplace exposure, based on reasonably available evidence, and the absence of any alternative (non-work) explanation for the employee’s illness.
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 Governor Deploys COVID-19 “Strike Force” Over Holiday Weekend to Enforce Workplace Restrictions
By Conn Maciel Carey’s COVID-19 Task Force
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
OSHA Issues COVID-19 FAQs about Respirators, Face Masks, and Face Coverings
By Conn Maciel Carey’s COVID-19 Task Force
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
Authors
Ashley D. Mitchell
Beeta B. Lashkari
Eric J. Conn
Rachel L. Conn
Megan Shaked
Samuel Rose
Theresa Green
Conn Maciel Carey’s Other Blogs:
OSHA Inspection Toolkit
