Cal/OSHA promptly published a "Frequently Asked Questions" document ("FAQs"), a one-page summary of the ETS, and a Model Prevention Plan. These documents shed additional light on the ETS and how it might be enforced.
Below is an overview of the key takeaways from the new ETS and subsequent Cal/OSHA publications.
Basic Elements of the COVID-19 Prevention Program
The central feature of the ETS is the requirement that all employers implement a written COVID-19 prevention plan. At a high level, the prevention plan must include the following:
- Communication to employees about the employer's COVID-19 prevention procedures;
- Screening of employees for COVID-19, although employees may be asked to evaluate their own symptoms before coming to work;
- Identification, evaluation, and correction of COVID-19 hazards;
- Physical distancing of at least six feet unless it is not possible;
- Use of face coverings, with only limited exceptions;
- Use of engineering controls, administrative controls, and personal protective equipment as required to reduce transmission risk;
- Procedures to investigate and respond to COVID-19 cases in the workplace, including to verify cases and receive information on test results and symptom onset;
- COVID-19 training to employees;
- Testing of employees who are exposed to a COVID-19 case, and in the case of multiple infections or a major outbreak, implementation of regular workplace testing for employees in the exposed work areas;
- Exclusion of COVID-19 cases and exposed employees from the workplace until they are no longer an infection risk!manbext网页版and
- Maintenance of records of COVID-19 cases and reporting of serious illnesses and multiple cases to Cal-OSHA and local health departments.
Closer Look: Training Requirements
The ETS requires employers to provide training and information on the following topics:
- The employer's COVID-19 policies and procedures;
- Information regarding COVID-19-related benefits;
- The fact that COVID-19 is an infectious disease that can be spread through the air when an infectious person talks, vocalizes, sneezes, coughs, or exhales, that COVID-19 may be spread through surface contact, and that an infected person may have no symptoms;
- Methods of physical distancing at least six feet apart and the importance of face coverings;
- The fact that particles containing the virus can travel more than six feet, especially indoors, so other controls, including face covers and hand hygiene, must also be used;
- The importance of frequent hand washing with soap and water for at least 20 seconds and the proper use of hand sanitizer;
- Proper use of face coverings and the fact that face coverings are not respiratory protective equipment!and
- COVID-19 symptoms, and the importance of obtaining a COVID-19 test and not coming to work if the employee has symptoms.
Closer Look: Investigation of COVID-19 Cases and Notification of Exposure
The ETS contains strict requirements for investigating COVID-19 cases in the workplace. Employers must determine the day and time the COVID-19 positive individual was last present and, to the extent possible, the date of the positive diagnosis or appearance of symptoms. Employers must determine which employees may have had a COVID-19 exposure by evaluating the activities of the COVID-19 case and all locations in the workplace the individual visited during the "high-risk exposure period." The ETS defines the "high-risk exposure period" as either (1) from two days before they first develop symptoms until 10 days after the symptoms have first appeared, and 24 hours have passed with no fever, or (2) from two days before until ten days after the specimen for the individual's first positive test for COVID-19 was collected.
Within one business day, the employer must notify all employees who may have had COVID-19 exposure (and any authorized representatives, such as their union), as well as any independent contractors or other employers present at the workplace during the high-risk exposure period.manbext网页版Importantly, the notice must not reveal the identity of the employee with COVID-19. The FAQs clarify that notification is required only to employees who were potentially exposed by being within 6 feet of a COVID-19 case for at least 15 minutes over a 24-hour period during the high-risk exposure period.
Employers also must offer the potentially exposed employees free testing during working hours, and the FAQs confirm that the time an employee spends being tested (including during outbreaks as described below) is compensable work time. Employers must also provide these employees with information on benefits to which the employee may be entitled (such as workers' compensation, paid sick leave, leave under the federal Families First Coronavirus Response Act, company leave benefits, or benefits under a collective bargaining agreement).
Closer Look: Exclusion of COVID-19 Cases and Return to Work
The ETS requires employers to exclude employees with COVID-19 until they meet specified return to work criteria. Furthermore, all exposed employees must be excluded for at least 14 days after the last known exposure to a COVID-19 case. However, if permitted by a local health department, an employee may be temporarily reassigned to work where they do not have contact with other persons until they meet the return to work criteria. A negative test result cannot be required as a condition of returning to work.
The ETS also contains an exemption from the exclusion requirements for circumstances in which "removal of an employee would create undue risk to a community's health and safety," provided this does not violate a local or state health order for isolation or quarantine.The employer must request such an exemption from Cal/OSHA, and if granted, the employer must implement effective additional controls, including isolation of the employee or use of respiratory protection.
The ETS specifies that COVID-19 cases with symptoms may not return to work until: (1) at least 24 hours have passed since a fever of 100.4 or higher has resolved without use of fever-reducing medications, (2) symptoms have improved, and (3) at least 10 days have passed since symptoms first appeared. COVID-19 cases who tested positive but never developed symptoms may not return until a minimum of 10 days have passed since the specimen collection date of their first positive COVID-19 test.
For employees excluded from work but who are otherwise able and available to work, the employer is required to continue and maintain the employee's earnings, seniority, and all other rights and benefits.This does not apply, however, to any period of time when the employee is unable to work for reasons other than protecting others at the workplace from possible COVID-19 transmission, or when the employer can demonstrate that the exposure was not work related.
Multiple COVID-19 Infections and Outbreaks
If a local health department identifies a place of employment as the location of a COVID-19 outbreak, or when there are three or more cases in an "exposed workplace" within a 14-day period, the ETS requires employers to provide free COVID-19 testing during working hours to all employees. At a minimum, all employees must receive an initial test and a follow-up test one week later. The employer must also provide continuous testing at least once per week until there are no new cases in a 14-day period. The FAQs explain that the testing requirement for outbreaks triggered by three or more cases is not based on three or more cases in the "entire building," but rather in the "exposed workplace." The FAQs further clarify that areas where masked workers momentarily pass through the same space without interacting or congregating are not part of the "exposed workplace," and that the "exposed workplace" only includes "the areas of the building where the COVID-19 cases were present during the ‘high-risk exposure period.'"
In the event of a COVID-19 outbreak, the employer is required to notify the local health department immediately, but no later than 48 hours after the employer knows, or should have known, of three or more COVID-19 cases within a 14-day period. Additionally, the employer must immediately investigate and determine the possible workplace-related factors that contributed to the outbreak.
Major COVID-19 Outbreaks
The ETS defines a "major" COVID-19 outbreak as 20 or more COVID-19 cases in an exposed workplace over a 14-day period. In the event of a major outbreak, employers must provide testing twice per week, exclude all COVID-19 cases, investigate workplace illnesses, and take steps to eliminate any COVID-19 hazards. Employers are also required to report major outbreaks to the local health department within 48 hours. Employers must comply with the major outbreak requirements under the ETS standards until no new COVID-19 cases are detected in the workplace for a 14-day period.
COVID-19 Prevention in Employer-Provided Housing and Transportation
The ETS requires that employer-provided housing allow for six feet of physical distancing, including appropriately spacing beds to allow for six foot spacing in all directions. Employers also must ensure that housing units, kitchens, bathrooms, and common areas are disinfected and cleaned at least once per day, maximize outdoor airflow and increase air filtration efficiency, provide face coverings and COVID-19 testing, and isolate exposed residents.manbext网页版These standards apply to all housing, including hotels and motels, but do not apply to housing provided for emergency response purposes.
The ETS also sets out requirements for employer-provided transportation. Employers must screen employees prior to boarding, separate employees by at least three feet in all directions in the vehicle, provide face masks and hand sanitizer and enforce their usage, and clean the vehicle's high-contact surfaces before each trip. Additionally, vehicle windows must be kept open, with limited exceptions for hot and cold weather, and the employer must ensure that the ventilation system maximizes outdoor air. The employer-provided transportation standards do not apply to transportation necessary for emergency response, or when the driver and all passengers are from the same household outside of work.
Looking Ahead
Because the ETS standards are now in effect, employers will need to immediately review and update their COVID-19 protocols to ensure compliance!万博体育app手机登录Cal/OSHA可能向Cal/OSHA投诉和/或对雇主实施ETS规定措施的挑战时,Cal/OSHA可能在未来数周发布更多指导帮助雇主更好地了解并遵守其培训、通知、雇员排除、测试和其他义务
EPA recently released a compliance advisory addressing UV lights that make claims to mitigate the novel coronavirus (or other viruses or bacteria), which the agency regulates as pesticidal devices under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). While the advisory largely reiterates past guidance relating to pesticidal devices, which this blog previously discussed, it does underscore that EPA is particularly focused on UV lights, and contains three important cautions for companies making claims that their UV light products kill the coronavirus or other microbes.
First, EPA has emphasized that the efficacy of UV lights can vary based on "a variety of factors including, but not limited to, the device's duration of use, distance of the light from the surface intended to be treated, the UV wavelength, the specific pest being targeted, the strength or wattage of the UV light bulb, the age of the UV light bulb, shadow areas or other factors." Accordingly, companies making pesticidal claims for their UV lights should ensure that they are providing appropriate directions for use, and that the efficacy data they generate in support of their claims is generated consistent with those directions for use as well as the other characteristics of the product. Companies may also wish to generate efficacy data in a variety of contexts (e.g., with aged bulbs, on different types of surfaces) to ensure that there are efficacy data supporting the claims for the life of the product, and in the various contexts in which it may be used.
Second, EPA has noted that it "has been receiving complaints that UV light devices may be in violation of FIFRA.EPA继续关注这些装置并声明打算采取执法行动,因此制造或分发紫外线灯的公司应考虑审查它们的主张、营销材料和辅助数据,以确保其产品与FIFRA兼容性。
归根结底,如同早先的咨询意见一样,EPA没有澄清哪种效果数据足以为UV灯或其他杀虫剂装置提供corona病毒索赔。For the first time ever, EPA has approved a pesticide making residual antiviral claims under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The approval may be a significant boon in the fight against COVID-19, but it also raises several key questions about EPA's broader approach to combatting the novel coronavirus.
EPA's Historic Approach to Residual Antiviral Products
Products that are sold with antiviral claims must typically be registered as pesticides under Section 3 of FIFRA, which can take 18-24 months. EPA has historically declined to approve products making residual antiviral claims (i.e., claims that a product remains effective against viruses hours, days, or longer after its application), and during the current pandemic has informed applicants that they must develop their own testing protocol in support of such products. Development of such testing protocols can be a lengthy and expensive process, with EPA taking a year to review the protocols alone. Once such a protocol is approved, an applicant would then need to generate efficacy data and submit a registration application.While this process helps ensure that robust efficacy data underlies such registrations, it can also limit innovation and hinder EPA's ability to react rapidly to developments like the COVID-19 pandemic.
The Granted Exemptions & Their Significance
In a shift away from its historic approach, on August 24, EPA issued two public health emergency exemptions to the Texas Department of Agriculture. The exemptions allow Texas to permit an airline and a orthopedics clinic to use a new surface coating that inactivates coronaviruses like SARS-CoV-2 for up to seven days. The exemptions last one year. The exemptions were issued pursuant to Section 18 of FIFRA, which authorizes EPA to grant state and federal agencies emergency exemptions for unregistered uses of pesticides to address emergency conditions. Section 18 exemptions allow applicant agencies to oversee the limited use of an unregistered pesticide in defined geographic areas for a finite time. Only federal and state agencies can apply for Section 18 emergency exemptions.
Unanswered Questions
This unprecedented use of emergency exemptions creates more questions than answers about EPA's long-term strategy to combat COVID-19 and its plan for residual disinfectant products, including:
How will EPA evaluate data about a residual antiviral product's efficacy? Texas submitted data demonstrating the coating's success against an EPA approved surrogate coronavirus and bacteria. However, EPA has not released a summary of such data, a description of the protocol used to generate the data, or an explanation of the standard by which such data will be measured. Accordingly, what EPA will require for future applicants remains unclear.
How will this impact EPA's issuance of regular registrations for products making residual antiviral claims? EPA has also not explained how the efficacy data requirements it applied to this Section 18 emergency exemption differed from those applicable to standard Section 3 registrations, other than to explain that the submitted data for this product do not "qualify for registration under section 3." What additional research is necessary to qualify this surface coating (or similar products) for registration under Section 3 of FIFRA? Will registration occur on an accelerated timeline, or will EPA continue granting emergency exemptions until the standard registration process is completed? EPA has indicated that it will provide information on at least some of these issues "in the coming weeks."
What about treated articles? This emergency exemption addresses only a surface coating that is designed to be regularly re-applied. To date, EPA has not addressed what efficacy data might be required for articles treated with antiviral products that are designed to last for months or even years. Will EPA develop an approach for evaluating and registering such products? EPA's Science Advisory Board found in June that such products could "have high potential in reducing or eliminating exposure to SARS-CoV-2," and thus should be a "high priority area to investigate."
The Federal Energy Regulatory Commission ("FERC") has announced plans to hold a two-day technical conference on July 8-9, 2020 regarding the ongoing impacts that the emergency conditions caused by COVID-19 are having on the United States' energy industry. FERC's stated objective is to ensure the continued functioning of energy markets, electricity transmission, transportation of natural gas and oil and energy infrastructure reliability.
FERC has taken some actions recognizing the impact of the COVID-19 pandemic on jurisdictional entities. Generally, these actions relaxed administrative burdens, such as extending non-statutory deadlines and waiving certain regulations. Depending on the information gained by the upcoming conference, FERC could take more substantive actions.
The conference will be organized around four panels of energy stakeholders to discuss issues in four broad categories.
System Operations and Planning Challenges. This panel will address how electricity, natural gas, and oil companies are handling operating challenges during the pandemic and how they plan to address potential resurgences of the pandemic. More specific issues include:
- Emergency restoration for seasonal events such as hurricanes or wildfires
- Impacts of deferred maintenance activities and delayed project completion
- Supply chain disruptions
- Cyber security threats and vulnerabilities
Electricity Demand and Transmission Planning. The uncertainty surrounding the impacts of COVID-19 may make it more difficult to accurately forecast demand over the longer-term planning horizon. The issues for this panel include:
- How transmission providers intend to manage increased uncertainty in their resource planning processes
- Whether FERC's transmission planning regulations provide sufficient flexibility for utilities
- The likely effect of the COVID-19 emergency on the current and future power generation mix
- Whether previous forecasts about changes to the resource mix change as a result of the COVID-19 emergency
Natural Gas and Oil Demand. This panel will explore the impacts of the COVID-19 emergency on natural gas and oil supply, demand, transportation, and infrastructure planning. Specific issues include:
- The impacts on supply and demand patterns and pipeline flows
- How changes in natural gas and oil production would affect pipeline flows utilization rates
- The potential impact on LNG exports from existing and planned terminals and the economic impact in the short-, mid- and long-term
- Whether FERC's regulations have sufficient flexibility for regulated entities to adapt to unanticipated changes in natural gas and oil demand caused by the COVID-19 emergency
Access to Capital – Credit, Liquidity, and Return on Equity. This panel will address how risk factors created by the COVID-19 emergency, such as decreased demand, lower commodity prices, reduced access to credit and reduced market liquidity, are affecting the ability of electric utilities and natural gas and oil pipelines to access sufficient capital and whether those risks may impact return on equity (ROE). Specific issues include:
- Identifying the most acute risk factors
- How the emergency has affected counterparty risk
- The potential impact of credit downgrades on energy markets
- Whether FERC should act to mitigate cash flow or ROE issues
- How COVID-19 is affecting the ability of the international customers of U.S.LNG终端继续守约 并如何影响美国LNG公司继续推进运营或能力实施基础项目
会议将由专员主持电子化会议,关于小组讨论问题的补充细节和访问会议指令见
EPA recently released a compliance advisory addressing pesticidal products that make claims to mitigate the novel coronavirus. While the advisory largely reiterates past guidance relating to pesticides, EPA has increased its emphasis on pesticidal devices, such as UV lights and ozone generators, which are subject to their own distinct set of regulations.
Most notably, EPA has emphasized that device marketers must have adequate data to support any claims they make to kill or mitigate the coronavirus. EPA advises that "[m]aking false or misleading labeling claims about the safety or efficacy of a pesticidal device may result in penalties under FIFRA.万博体育app手机登录Please note that ozone generators, UV lights and other pesticide devices may not be able to make claims against coronavirus where devices have not been tested for efficacy or safety for use against the virus causing COVID-19 or harder-to-kill viruses." (emphasis in original). The guidance also reminds manufacturers that devices must be produced in an EPA-registered establishment. Other requirements not mentioned in EPA's guidance, such as the need to maintain proper records and comply with requirements to import devices, also apply to pesticidal devices.
EPA has in the past brought significant enforcement actions against device manufacturers. For example, in 2013, EPA obtained a $2.68 million penalty relating to the production and sale of pesticidal devices.
The ongoing pandemic raises the question whether EPA should consider developing additional guidance to device manufacturers—potentially in the form of "safe harbor" guidance—describing efficacy data that the agency would regard as presumptively sufficient. Notably, the recent EPA Science Advisory Board draft report on COVID-19 issues observed that "[t]here are ample studies showing that UV, ozone, and heat (steam) are effective for virus inactivation at well described doses (e.g., temperatures)...万博体育app手机登录. the SAB recommends that the EPA include[] this issue in[] a guidance document." The report also observed that UV disinfection within HVAC systems could be a potential method of mitigating coronavirus transmission indoors.
Another possibility would be for EPA to create a voluntary program that would allow device manufacturers to submit efficacy data to EPA, in exchange for being pre-approved to make anti-coronavirus claims. One potential model would be EPA's "Safer Choice" program, which is a voluntary initiative that allows pesticide registrants to submit safety and efficacy data for EPA to review, with qualifying products allowed to use the "Safer Choice" label.
Safe-harbor guidance or the creation of a voluntary program would arguably be consistent with Executive Order 13924, released last month, which directs agencies to "accelerate procedures" for regulated parties to obtain "pre-enforcement rulings" "with respect to whether proposed conduct in response to the COVID-19 outbreak … is consistent with statutes and regulations administered by the agency." Such guidance or program might allow for EPA to provide greater certainty to consumers and device manufacturers, while remaining within the scope of EPA's authority to regulate pesticidal devices, which is more limited than its authority to regulate pesticides. See 41 Fed.瑞格51 065万博体育app手机登录19, 1976) (noting differences between device and pesticide regulatory authority).
At the same time, such guidance could raise concerns. For example, if EPA were to effectively treat any such guidance as binding on device manufacturers, that could potentially run afoul of Executive Order 13892 (as well as the Administrative Procedure Act), which generally prohibits guidance documents from imposing "new standards of conduct" on regulated parties. Unduly prescriptive or narrow standards could also discourage innovation in the pesticidal device industry.
To date, EPA has not yet made clear whether it will provide additional guidance relating to pesticidal devices and COVID-19, and if so, what the nature and scope of such guidance might be. Interested parties should keep a close eye on further developments in this area.
Under EPA's 2016 Emerging Viral Pathogens policy, pesticide registrants can obtain EPA "pre-approval" for their product to make claims to kill emerging viral pathogens when the policy is "activated," so long as the pesticides have been approved for use on similar viruses. These include common household and workplace disinfectant products, which are generally regulated as pesticides by EPA. The policy was activated for the first time in response to the COVID-19 outbreak, allowing certain claims to mitigate the coronavirus to be made for certain registered pesticides approved under the policy. Several recent OSHA and EPA developments underscore the importance of pesticide registrants securing approval under the policy, as well as its limitations.
OSHA's recent guidance on COVID-19 urges employers to use pesticides approved under the policy, making plain the importance of securing such approval. Specifically, OSHA recommends that "all employers" should disinfect surfaces regularly, and "[w]hen choosing cleaning chemicals, employers should consult information on Environmental Protection Agency (EPA)-approved disinfectant labels with claims against emerging viral pathogens.万博体育app手机登录Products with EPA-approved emerging viral pathogens claims are expected to be effective against SARS-CoV-2 based on data for harder to kill viruses." OSHA's guidance is consistent with that of the CDC, which recommends use of "products with the EPA-approved emerging viral pathogens claims."
EPA has taken steps to speed approval of COVID-19 claims for products under the Emerging Viral Pathogens policy, announcing this week that it will expedite claims for currently-registered disinfectants that would satisfy the policy, so long as new efficacy data is not needed. Registrants that have not already done so will want to take advantage of this expedited process, which is reminiscent of the process EPA established in 2009 to allow registrants to make claims to control that year's H1N1 virus.
The COVID-19 pandemic is also likely to have broader implications for pesticide registrants. Most obviously, companies making unapproved claims to mitigate the coronavirus are likely to face a significant enforcement risk, given the public-health nature of those claims.
More subtly, EPA takes the view that even companies with approval under the Emerging Viral Pathogens policy are subject to a number of limitations on the claims they can make, and to whom they can be made. For example, EPA's guidance limits such claims to "the following communications outlets: technical literature distributed exclusively to health care facilities, physicians, nurses and public health officials, ‘1-800' consumer information services, social media sites and company websites (non-label related)," and prohibits the claims from being included on product labels. Registrants must bear these EPA restrictions in mind when formulating their marketing materials.
Finally, EPA may consider changes to the Emerging Viral Pathogens policy in light of its experience during the COVID-19 outbreak. For example, if consumers were unable to be fully informed of products' ability to be used to mitigate the coronavirus due to restrictions on the communications outlets where such claims could be made and the inability to include coronavirus claims on product labels themselves, EPA might revisit that issue. Registrants and other interested parties should thus focus not only on complying with the existing policy, but also consider what improvements could be made to help contain future emerging pathogens.