OSHA has to date also decided not to promulgate an Emergency Temporary Standard (ETS), which could be formulated within a faster timeframe than a rulemaking, but would establish temporary new mandatory workplace safety obligations and foreground for a permanent rule.包括某些工会、学者和政治家在内的某些人对该决定提出了批评,例如:
Virginia has taken the lead at the state level to develop its own COVID-19 ETS, which is currently proceeding through a series of revisions with the Virginia Safety and Health Codes Board before a final standard will be officially adopted.[2] If approved, the Virginia standard would be enforceable with monetary penalties that track other Virginia Occupational Safety and Health penalties, including a maximum $13,047 fine for "Serious and Other-than-serious" violations and $130,463 fine for "Willful and Repeat" violations.
The substance of the Virginia standard generally follows OSHA's guidance, such as the Guidance on Preparing Workplaces for COVID-19, grouping work tasks into risk levels and then providing requirements that apply uniformly within and across those levels.万博体育app手机登录Though echoing much of the federal guidance, the most recent draft of the Virginia standard also:
- Expressly prohibits employees who are "known or suspected to be infected with [the virus causing COVID-19]" from reporting to or remaining at a workplace.[3]
- Places additional emphasis on appropriate air-handling systems and prescreening of employees performing medium-risk tasks in addition to high-risk tasks.
- Expressly notes that contact tracing will not be required by the standard.
- Mandates (rather than suggests) infectious disease preparedness and response plan development for medium-risk tasks with eleven or more employees and for high-risk tasks (but not all risk levels).[4]
Oregon has announced a timeline for promulgating its own temporary and permanent rules, with a goal of adopting the former by September 1, 2020.万博体育app手机登录Washington adopted in May and revised in July an emergency rule to clarify, for example, that "employers can be subject to a citation and monetary penalties for violations" of the "restrictions and conditions on business under the emergency proclamations." It has also passed requirements protecting workers in temporary worker housing.
These state-level efforts are worth watching carefully, as they may provide a model for other states or for future rulemakings at the federal level.
Emily Hooker, a summer associate who is attending the University of Pennsylvania Law School, contributed to this blog post.
[1] For more information concerning steps taken by OSHA thus far, see our previous posts: OSHA Coronavirus Requirements and Guidance for Employers, Opening the Doors: Return-to-Workplace Considerations During COVID-19 (OSHA Reinstates Employers' Obligations to Record Work-Related COVID-19 Cases).
[2] The Board met most recently on July 7, 2020 to discuss the standard and various proposed amendments, but had not yet resolved all proposals and revisions as of the end of the meeting and recessed with plans to continue the discussions at a later date.7月7日2020年会议通过新句子.
/ahref4EPA and the CDC on April 29 provided updated guidance on steps employers and businesses should take to disinfect their premises, as part of the "Guidelines for Opening Up America Again." This provides important guidance for businesses to protect employees and members of the public, and to minimize potential liability arising out of coronavirus exposure in the workplace.
Most notably, the guidance urges businesses to develop plans setting forth "a cleaning and disinfecting strategy after reopening." Such plans should include:
- An evaluation of surfaces in the workplace, including those that need only normal routine cleaning, and those that are high-contact areas and so need more frequent cleaning.
- Identification of appropriate cleaning products for those surfaces, namely those on EPA's List N of products approved for use against the coronavirus.
- Use of appropriate personal protective equipment during the disinfection process.
Notably, EPA and the CDC have advised that surfaces "frequently touched by multiple people, such as door handles, desks, phones, light switches, and faucets, should be cleaned and disinfected at least daily." Other surfaces with more frequent contact, "such as shopping carts and point of sale keypads," should be disinfected before "each use."
While these guidelines are not mandatory, employers and businesses that do not follow them run the risk of potentially violating the Occupational Safety and Health Act's "General Duty" clause, which requires employers to provide a place of employment "free from recognized hazards that are causing or are likely to cause death or serious physical harm to … employees." 29 U.S.C.万博体育app手机登录§ 654(a)(1). Failure to disinfect in conformity with the guidance could also potentially give rise to other third-party claims that the business did not take sufficient steps to disinfect its premises. For example, family members who contract COVID-19 from an employee who is exposed at work may claim that the employer also owes them a duty of care, set in part by the guidance, and that failure to adhere to the guidance injured them. Or regular customers who visit the site but have otherwise isolated at home might bring a premises liability claim, arguing that inadequate disinfection that does not meet the standards set forth in the guidance caused them to contract COVID-19.
In guidance to its enforcement staff released on April 13, OSHA has re-emphasized the obligations of employers, particularly in the healthcare industry, to ensure workplace health and safety and to report illnesses and deaths relating to COVID-19 notwithstanding the pandemic. The guidance also recognizes shortages of N-95 masks and other PPE and other practical considerations that OSHA will take into account in determining whether to bring enforcement actions.
Key aspects of the guidance include:
- OSHA to Focus on High-Exposure Jobs, Especially Hospitals. OSHA has explained that, going forward, its enforcement activity relating to COVID-19 will prioritize "healthcare organizations and first responders," as well as other workplaces "with potential for high-risk exposure to SARS-CoV-2."
- Complaints Will Be Important Triggers for OSHA Investigations. For both healthcare facilities and other, lower-risk workplaces, OSHA notes that it may inspect facilities based on "complaints, referrals, and employer-reported fatalities and hospitalizations." OSHA indicates it will focus in particular on "formal complaints alleging unprotected exposures to COVID-19 for workers with a high/very high risk of transmission, such as a fatality that is potentially related to exposures to confirmed or suspected COVID-19 patients while performing aerosol-generating procedures without adequate PPE in a hospital." Lower risk facilities will likely have remote telephonic investigations, not on-site investigations.
- OSHA Continues to Rely on CDC Guidance.万博体育app手机登录While OSHA's guidance notes a number of OSHA standards and principles that apply to COVID-19, OSHA also makes clear that "[t]he most current CDC guidance should be consulted in assessing potential workplace hazards and to evaluate the adequacy of an employer's protective measures for workers." Accordingly, employers should strive to document good-faith efforts to comply with the CDC's evolving guidance.
- OSHA Acknowledges PPE Shortages and Enforcement Discretion. OSHA has acknowledged "shortages" of N95 respirators, as well as "of other disposable respirators, surgical masks, and fit-testing supplies and equipment." OSHA has thus provided specific guidance relating to use of such PPE, including relaxing certain requirements relating to use of expired equipment or equipment certified by other countries. In addition, OSHA indicates it may exercise enforcement discretion where there are "good faith" efforts to comply, including through use of engineering controls, administrative controls, and safe work practices. Again, employers should document their practices to demonstrate good-faith efforts maximize worker safety.
OSHA's enforcement plan builds on several other recent guidance documents discussed in the plan, including an April 10 memorandum addressing employers' obligations to record COVID-19 illnesses. That guidance generally exempted most employers from needing to record COVID-19 illnesses, unless there was "objective evidence" that was "reasonably available to the employer" that the COVID-19 case was work-related.万博体育app手机登录However, that exemption did not extend to healthcare facilities, emergency response organizations, and correctional institutions, which "must continue to make work relatedness determinations," even if the employer cannot definitively identify that COVID-19 was contracted on the job. OSHA has not yet provided specific guidance on when COVID-19 cases in these industries should be deemed work-related. The April 10 guidance also reiterates that, at the request of an employee, his or her name should not be entered on the OSHA log.
While not discussed in the guidance, employers should record and report illnesses even if they are unable to do so within the seven-day deadline that typically applies, or the 24-hour deadline that applies if an employee is hospitalized.