There are now more than 46,000 confirmed cases across the globe, with the vast majority in mainland China, and 15 confirmed cases in the U.S. Many details about the virus are unknown, including its severity and how it spreads, leaving employers with many questions about how to appropriately respond.
New guidance is available for employers from the Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration (OSHA), and California’s Division of Occupational Safety and Health (Cal/OSHA).
On February 7, 2020, the CDC published Interim Guidance for Businesses and Employers to Plan and Respond to 2019 Novel Coronavirus (2019-nCoV), providing important information for non-healthcare employers to help prevent workplace exposures to COVID-19.
The CDC provides detailed steps for employers to take now. The CDC’s recommendations fall under six main areas:
1. Actively encourage sick employees to stay home. Employees with symptoms of acute respiratory illness should stay home and not come to work until they are fever-free and free from symptoms for at least 24 hours. The CDC encourages employers not to require employees who have an acute respiratory illness to present a doctor’s note to validate their illness or to return to work because the medical facilities may be overwhelmed. Although not legally required, employers should carefully consider whether this approach is appropriate in their workplaces.
2. Separate sick employees. Employees who appear to have acute respiratory illness symptoms (i.e., cough or shortness of breath) should be separated from other employees and sent home immediately.
3. Emphasize staying home when sick, respiratory etiquette, and hand hygiene by all employees. The CDC provides links to posters that encourage employees to stay home when sick, cough and sneeze etiquette, and hand hygiene and recommends that employers put posters at the entrance to the workplace and in other work areas. The CDC also encourages employers to provide tissues, no-touch receptacles, hand sanitizer, and instructions on handwashing and use of hand sanitizer.
4. Perform routine environmental cleaning. The CDC recommends routine cleaning of all frequently touched surfaces and that employers provide disposable wipes so that commonly used surfaces, such as doorknobs, can be wiped down by employees before each use. The CDC does not recommend any particular cleaning product or additional disinfection beyond routine cleaning at this time.
5. Advise employees to take certain steps before traveling. Everyone should check the CDC’s Traveler’s Health Notices for each country before traveling and not travel if they have symptoms of acute respiratory illness. Employers also should make sure that employees know what to do and who to contact if they become sick while traveling.
6. Additional Measures. The CDC recommends that employees who have a sick family member at home with COVID-19 “should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.”
The CDC has published an extensive guidance for conducting a risk assessment and provides associated recommendations in its Interim US Guidance for Risk Assessment and Public Health Management of Persons with Potential 2019 Novel Coronavirus (2019-nCoV) Exposure in Travel-associated or Community Settings.
Employers who are concerned that an employee may have been exposed to the virus should consult the CDC’s risk assessment. This guidance addresses various potential exposure scenarios and identifies four exposure risk categories: (1) High Risk; (2) Medium Risk; (3) Low Risk; and (4) No Identifiable Risk. Based on these exposure risk categories, the CDC provides recommendations for exposure risk management, including appropriate restrictions on public activities (including workplaces), medical evaluation, and travel restrictions depending on whether the individual has symptoms of COVID-19. The CDC has provided separate guidance for healthcare settings.
Employees who live in the same household as someone with confirmed COVID-19, for example, may fall under “High Risk” or “Medium Risk,” depending on the circumstances. Individuals who are “High Risk” but have no symptoms should be quarantined (voluntary or under public health orders) for 14 days. For employees who fall under the “Medium Risk” category, as long as they have no symptoms, the CDC generally recommends that they avoid areas where people congregate, which includes workplaces, for 14 days. However, the CDC says that employers may consider, case-by-case and in consultation with public health officials, whether these individuals may come to work without entering crowded locations. These complex decisions must be considered carefully in the context of the workplace and multiple layers of legal and other considerations.
If an employee is confirmed to have the COVID-19 infection, the CDC recommends that employers inform coworkers of potential exposure. Knowledge about potential exposure is certainly important, but employers should consider legal issues including confidentiality requirements under the Americans with Disabilities Act and state law.
Until now, most employers have been appropriately focused on limiting potential exposure from individuals who had recently traveled to Hubei or other areas in mainland China. If this outbreak continues to grow across the U.S. or in certain geographic areas, employers will be forced to manage the risk of employees potentially bringing the virus to work as a result of exposures at home or otherwise in their own communities. Employers should develop strategies now that are appropriate for their workplaces, including communications to employees.
In its Guidance for Businesses and Employers, the CDC also recommends that all employers plan for a potential outbreak of COVID-19 in the U.S. and be prepared to implement strategies to protect their workforce while ensuring continuity of operations. Planning for a potential outbreak includes identifying and communicating objectives, such as “(a) reducing transmission among staff, (b) protecting people who are at higher risk for adverse health complications, (c) maintaining business operations, and (d) minimizing adverse effects on other entities in their supply chains.” Among other things, the CDC recommends that employers now consider whether, when faced with an outbreak of the illness, they could have employees telecommute or stagger shifts to create physical distance among employees and whether they have the infrastructure to support those efforts. The CDC also recommends that employers consider plans to minimize exposure between employees and the public (if public officials call for social distancing) and prepare for increased absenteeism.
All employers should review the CDC’s complete Guidance for Businesses and Employers. The CDC’s guidance is not a legal mandate for employers. OSHA and many state laws, however, impose a general duty on all employers to provide workers with work environments free from recognized hazards. Federal and state mandatory requirements may apply, particularly in higher risk industries, to prevent occupational exposure to COVID-19.
OSHA has published detailed information on hazard recognition, medical information, potentially applicable OSHA standards, control and prevention, as well as additional resources and information about workers’ rights. As OSHA explains, without sustained human-to-human transmission, most U.S. workers remain at low risk of exposure and infection. However, OSHA identifies important but common sense practices for all workers and employers to help prevent worker exposure to COVID-19: proper handwashing including the use of alcohol-based rub (hand sanitizer), avoid touching eyes, nose, or mouth with unwashed hands, and avoid close contact with sick people.
Certain groups of workers, especially those in healthcare, are at a higher risk for potential exposure and employers and workers must take additional precautions. OSHA provides additional guidance for groups of workers with increased risk of exposure, including:
The CDC also has published guidance for healthcare professionals and laboratories.
Cal/OSHA also issued guidance on requirements to protect healthcare workers from COVID-19. The guidance covers the safety requirements when providing care for suspected or confirmed patients of the respiratory disease or when handling pathogens in laboratory settings. COVID-19 is an airborne infectious disease covered by Cal/OSHA’s Aerosol Transmissible Diseases (ATD) standard, which requires employers to protect workers from diseases and pathogens transmitted by aerosols and droplets. The ATD standard applies in healthcare facilities, laboratories, public health services, police services, and other locations where employees are reasonably anticipated to be exposed to confirmed or suspected cases of aerosol transmissible diseases. The ATD standard requires employers to have an ATD Exposure Control Plan that includes procedures to identify COVID-19 cases, provision of appropriate personal protective equipment, among other things. Employers also must provide training for their employees covering many items related to COVID-19, such as the signs and symptoms, modes of transmission, methods to prevent exposure, and personal protective equipment.
Employers should continue to monitor information coming from state and local health departments and promptly report any suspected cases of COVID-19 to the local health department. Healthcare employers should consult guidance from OSHA, the CDC, and other relevant agencies. This is a rapidly evolving situation and all information in this update is subject to change. For the latest information, please review the relevant agency communications.
Article Courtesy of Jackson Lewis
All OSHA 300A logs must be posted by February 1st in a visible location for employees to read. The logs need to remain posted through April 30th.
Please note the 300 logs must be completed for your records only as well. Be sure to not post the 300 log as it contains employee details. The 300A log is a summary of all workplace injuries and does not contain employee specific details. The 300A log is the only log that should be posted for employee viewing.
Please contact our office if you need a copy of either the OSHA 300 or 300A logs.
In the last Regulatory Agenda, OSHA indicated that it was undergoing rulemaking to revise the Improve Tracking of Workplace Injuries and Illnesses regulation promulgated under the Obama administration. Specifically, OSHA noted it was considering deleting the requirement for employers with 250 or more employees at an establishment to electronically submit its 300 Log, 301 Forms along with the 300A Form. What was not clear at the time was what OSHA was going to require for submission in July since the agency has not yet issued a Notice of Proposed Rulemaking revising the standard.
Recently, OSHA made clear that it will not collect or require employers with 250 or more employees per establishment to submit the 300 Log or the 301 Forms. OSHA will require all employers covered by the regulation to only submit the 2017 300A Form by July 1, 2018. Beginning in 2019 and every year thereafter, the 300A Forms must be submitted by March 2.
Covered establishments with 250 or more employees are only required to provide their 2017 Form 300A summary data. OSHA is not accepting Form 300 and 301 information at this time. OSHA announced that it will issue a notice of proposed rulemaking (NPRM) to reconsider, revise, or remove provisions of the “Improve Tracking of Workplace Injuries and Illnesses” final rule, including the collection of the Forms 300/301 data. The Agency is currently drafting that NPRM and will seek comment on those provisions.
Also, last week we blogged about OSHA’s reversal in position regarding the electronic filing of 300A Forms by employers in state plans that have not adopted the Improve Tracking of Workplace Injuries and Illnesses requirements. OSHA is now requiring those employers to submit their 300A Forms using the Injury Tracking Application on OSHA’s website by July 1, 2018. However, an agency official recently clarified that since OSHA does not have jurisdiction in those states with state plans, it is prohibited from enforcing the regulation and can not issue citations to employers for failing to electronically submit the 2017 300A, and since those certain state plans have yet to adopt the regulation they are equally prohibited from enforcing the requirement and can not issue citations to employers. So while OSHA is requiring employers in state plans that have not yet adopted the regulation to submit their 2017 300A it has acknowledged that it has no enforcement authority for those employers who fail to do so.
Article courtesy of Jackson Lewis
As mass shootings have continued with regular frequency in the United States, our country remains deeply divided, not only with the cause of these tragic events, but also on how to stop them from occurring. Many have called for increased gun control, including a ban on assault-style rifles like the AR-15 and universal background check requirements for all firearms transactions. Others have called for fewer restrictions on law-abiding gun owners’ ability to carry concealed firearms at their places of work and on public property, arguing that additional guns on the scene often prevent unnecessary harm.
Employers are caught in the middle of this debate, as they often must resolve the issue of whether employees with concealed carry permits should be allowed to carry their firearms at work. Would doing so make workplaces safer or more dangerous? Are there potential legal liability issues to consider? In making this decision, you need to assess a constellation of legal and policy factors.
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All OSHA 300A logs must be posted by February 1st in a visible location for employees to read. The logs need to remain posted through April 30th.
Please note the 300 logs must be completed for your records only as well. Be sure to not post the 300 log as it contains employee details. The 300A log is a summary of all workplace injuries and does not contain employee specific details. The 300A log is the only log that should be posted for employee viewing.
Please contact our office if you need a copy of either the OSHA 300 or 300A logs.
This simple change in OSHA’s rulemaking requirements will improve safety for workers across the country. One important reason stems from our understanding of human behavior and motivation. Behavioral economics tells us that making injury information publicly available will “nudge” employers to focus on safety. And, as we have seen in many examples, more attention to safety will save the lives and limbs of many workers, and will ultimately help the employer’s bottom line as well. Finally, this regulation will improve the accuracy of this data by ensuring that workers will not fear retaliation for reporting injuries or illnesses.
The new rule, which takes effect Jan. 1, 2017, requires certain employers to electronically submit injury and illness data that they are already required to record on their onsite OSHA Injury and Illness forms. Analysis of this data will enable OSHA to use its enforcement and compliance assistance resources more efficiently. Some of the data will also be posted to the OSHA website. OSHA believes that public disclosure will encourage employers to improve workplace safety and provide valuable information to workers, job seekers, customers, researchers and the general public. The amount of data submitted will vary depending on the size of company and type of industry. The electronic submission requirements do not change an employer’s obligation to complete and retain the injury & illness records.
OSHA will provide a secure website that offers three options for data submission. First, users will be able to manually enter data into a webform. Second, users will be able to upload a CSV file to process single or multiple establishments at the same time. Last, users of automated recordkeeping systems will have the ability to transmit data electronically via an API (application programming interface). OSHA is not yet accepting electronic submissions at this time. Updates will be posted to the OSHA website at www.osha.gov/recordkeeping when they are available.
The rule also prohibits employers from discouraging workers from reporting an injury or illness. The final rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by posting the already-required OSHA workplace poster. It also clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses. These provisions become effective August 10, 2016, but OSHA has delayed their enforcement until Dec. 1, 2016.
The new reporting requirements will be phased in over two years:
OSHA State Plan states must adopt requirements that are substantially identical to the requirements in this final rule within 6 months after publication of this final rule.
All OSHA 300A logs must be posted by February 1st in a visible location for employees to read. The logs need to remain posted through April 30th.
Please note the 300 logs must be completed for your records only as well. Be sure to not post the 300 log as it contains employee details. The 300A log is a summary of all workplace injuries and does not contain employee specific details. The 300A log is the only log that should be posted for employee viewing.
Please contact our office if you need a copy of either the OSHA 300 or 300A logs.
Many articles on handling OSHA inspections provide the same basic guidelines and little explanation of why employers should take certain steps. You may already know to take photos whenever the Compliance Officer (CO) takes shots and to take notes. But do you know why to take those photos and what to look for? What do you need to note in order to challenge citations when they are issued six months later?
Plan In Advance
Every company site should have a number of managers who know the basic steps to
take whenever any government investigator shows up. The most important step is
for site managers to know whom to call to obtain guidance. No executive or
in-house counsel will be pleased to learn of an investigation upon receipt of a
citation.
At most, site management can deal with evacuating and protecting employees, and dealing with first responders. The company needs a system in place so that with one call the site manager activates corporate support, including legal and risk management guidance, assistance to employees and families, and media management. Set up this system and practice response. Do not assume that you will never face a fatality or catastrophe. Tornadoes, vehicular accidents, and workplace violence can strike any employer.
Make sure that management takes an OSHA inspection seriously. Many employers are unprepared for the aggressive approach now dictated by the current administration. OSHA is a great organization, but even seemingly minor-sounding citations can harm the business. In some industries, a single citation classified as “serious” can harm bidding opportunities. Most of the recent six figure citations have involved repeat violations of routine items such as a missing electric cabinet switch label, a damaged extension cord, partially blocked electric cabinet, or one employee who missed his annual training.
Each violation can serve as the basis for a repeat violation of up to $70,000 per item at ANY company location in any Fed-OSHA state for five years. No inspection is minor. And by the way, OSHA’s improved IT system will allow the agency to better track your corporation’s performance, even when the company operates under many names.
Manage The Inspection
Step one is to ask “why” OSHA is present. Many inspections are triggered by a
complaint and OSHA must tell you the reasons. As of this January 2015,
employers in Fed-OSHA states must report to OSHA every hospitalization for more
than observation, as well as all amputations. An amputation can be as modest as
a tip of a finger. These focused responses increase the probability of an OSHA
visit.
In each of these circumstances, admit OSHA for the purpose of the complaint and limit the inspection to the scope of the complaint. OSHA will broaden the inspection if the officials observe hazards or if employees mention other hazards. But require OSHA to justify expanding the scope. Be courteous and professional with the Compliance Officer but know and exercise your rights. Always focus first on safety, but that attitude does not preclude making OSHA live by its own procedures.
Recognize that OSHA must establish: 1) an applicable standard; 2) a hazard; 3) employee exposure; and 4) that the employer knew of the violation or hazard, or should have known of it with the exercise of “reasonable diligence.” Make sure that a hazard exists. Measure fall distances, check guards, etc. The burden is on OSHA to prove these four elements, so check to see if OSHA can prove that any employees were exposed in the last six months or would reasonably be expected to be exposed in the normal course of business. Is the area isolated? Do employees work near the alleged hazard? How often do employees travel in that area? How long was the hazard present?
OSHA may not document the employer’s “knowledge” of a violation. Any supervising employee’s knowledge of a violation is “imputed” to the company, and even when OSHA cannot prove that a supervising employee knew of the issue, they can establish this element by showing that the employer should have known of the violation with the “exercise of reasonable diligence.”
So OSHA must prove that the employer didn’t enforce safety rules, training was inadequate or the employer made little effort to provide oversight. Show that the company did exercise this due diligence. Other important questions include how long a violation was present, when supervisory employees were last in the area, and whether the employer did any walk-arounds or inspections.
Take Your Time
Don’t be rushed and bullied about documents. Some documents such as OSHA Form
300s and MSDSs must be promptly provided, but you have the right to a
reasonable amount of time to provide other materials. Review them. Consider if
materials may be privileged or protected work product. Don’t volunteer
self-audits, insurance and consultant reports or other similar materials
without talking to counsel.
If documentation is weak, try to determine where on-the-job instruction occurred or where oral instructions were provided. Counsel may be able to use such information as defenses, to reduce the classification, or to build good will. Obtain legal guidance: remember that if you knew of a standard’s requirement and did not follow it, there is a possibility that OSHA might assert a “willful” classification.
In developing defenses dig, dig, dig. There are always more facts. Don’t delegate. Ask the questions yourself.
Exercise your right to sit in on or have counsel attend interviews of any employee who supervises employees because they can bind the company. If a fatality, project delay, or any ancillary legal matter is involved, explain to OSHA that an additional concern is with protecting the company in other legal arenas.
You have an absolute right to sit in with managers but you might as well show courtesy to the Compliance Officer. This is probably a time to involve outside counsel. You may also want to contact counsel about whether OSHA will define an employee as a supervisor. OSHA uses a broader definition than the NLRB, or the wage-hour division.
OSHA has the right to interview hourly employees in private, but you can briefly explain to the employees the reason that they are being interviewed, and that you appreciate their cooperation and to tell the truth. Sometimes it is okay to tell them the topics OSHA may discuss and that may allow a bit of briefing, but mainly encourage them to tell the truth. Ensure that employees know that you appreciate their cooperation with OSHA. OSHA is very sensitive to even a whiff of intimidation or threat of retaliation.
Multiemployer worksites present special challenges. When more than one employer is on site, OSHA can cite the employee’s employer (the “exposing employer”) and the “supervising” employer who was directing the work (such as at construction sites or for contingent workers) or the “creating” employer who generated the hazard, or the “correcting” employer who was responsible to address the hazard, or all of the above!
Unfortunately, it often seems that one employer on site will try to persuade OSHA of questionable facts and throw other employers under the proverbial bus. Be alert.
Push Back
Do go to the OSHA Informal Conference after citations are issued, and do
contest all citations if you have reasonable arguments. Remember that OSHA
focuses on safety and does not consider whether the Secretary can carry its
burdens before a Judge, but their attorneys do recognize this reality.
Negotiations may be fruitful, but don’t contest the matter if you have nothing
to back up your claims.
So long as you ensure OSHA knows that you will and are addressing any hazards, they will understand that your decision is dictated by business necessity and does not show a disregard for safety.
Finally. Do not miss the contest period! And be aware that many of the “State-OSHA plans” have different appeal processes.