OSHA watch

COVID-19

Federal

For more COVID-19 information

Cal/OSHA

  • Temporary changes to guidance that health care workers be provided certified respirators in light of N95 mask shortages. Employees are permitted to use reusable respirators certified by the National Institute for Occupational Safety and Health instead of disposable filtering facepiece respirators and to wear their own respirator if it complies with Cal/OSHA requirements.

Michigan OSHA

  • The Department of Labor and Economic Opportunity has launched a state emphasis program aimed at ensuring health care employers are providing workers who care for COVID-19 patients with the personal protective equipment they need.

Oregon OSHA

  • The Department of Consumer and Business Services is proposing a temporary rule that would combat the spread of coronavirus in all workplaces by requiring employers to implement risk-reducing measures.

OIG report on whistleblower complaints

In response to the rising number of whistleblower cases since the pandemic outbreak, the U.S. Office of Inspector General (OIG) conducted an audit and found that there are too few investigators to handle the volume of complaints, creating long delays. OIG found that in the first quarter of the year, it took an average of 279 days for OSHA to close an investigation, which is nearly double the amount of time the agency took to close cases in 2010. The report recommended that OSHA develop a caseload management plan to evenly distribute whistleblower complaints among investigators, hire whistleblower investigators to fill the current vacancies, and consider extending its current pilot program on expediting whistleblower screenings to all regions.

Final beryllium standard for construction and shipyards published

The final rule amends the following paragraphs in the beryllium standards for construction and shipyards: Definitions, Methods of Compliance, Respiratory Protection, Personal Protective Clothing and Equipment, Housekeeping, Hazard Communication, Medical Surveillance, and Recordkeeping. The Hygiene Areas and Practices paragraph from the final standards was removed because existing standards for sanitation provide the necessary protection. The effective date of the revisions is September 30.

Reminder: resources available on disaster response

Hurricanes

Tornedos

Floods

Cal-OSHA reminds employers to protect workers from wildfire smoke

Employers near wildfires need to comply with the emergency wildfire smoke regulation, which took effect in July 2019 and has been extended to early 2021.

Recent fines and awards

California

  • Investigated because of an accident, Monterey Mushrooms, Inc. of Royal Oaks initially faces $69,635 in penalties.
  • Food manufacturer Overhill Farms Inc. and its temporary employment agency Jobsource North America Inc. were fined more than $400,000 in combined penalties for failing to take steps to protect workers from coronavirus infection at two frozen food plants in Vernon.

    Eleven other employers have also been cited for not protecting employees from COVID-19 exposure during inspections of industries where workers have an elevated risk of exposure. Proposed penalties range from $2,025 to $51,190.

Florida

  • U.S. Corrections LLC, headquartered in Melbourne, was ordered to reinstate an employee for reporting personal and commercial motor vehicle safety concerns plus pay more than $70,000 in back wages, $30,000 in punitive damages, $7,341 in compensatory damages, $30,000 in emotional distress damages and reasonable attorney’s fees under the whistleblower provisions of the Surface Transportation Assistance Act.
  • T S & C Construction Services Of Florida, LLC, based in Orlando, faces $75,567 in fines for failure to protect employees from cave-ins in excavations.
  • Roofing Pioneers of Parrish faces $47,229 in penalties for a repeat violation of failure to provide fall protection.

Georgia

  • Harris Tire Company of Atlanta faces $51,274 in penalties following an inspection initiated by a complaint.

Illinois

  • DS Containers, Inc. of West Chicago faces $42,411 in penalties relating to hazardous energy control.
  • Chicago Aerosol, LLC of Coal City faces $67,470 in penalties for process safety management.
  • Environmental Remediation And Recovery, Inc. of Mounds faces $156,065 in penalties for 13 serious violations and two willful violations, including permit-required confined spaces violation.

Massachusetts

  • Bob’s Tire Company of New Bedford was cited for one repeat and two serious health violations with proposed penalties of $58,178. The company was the subject of two inspections in response to complaints.
  • Dollar General in Dracut was cited for five willful and one serious violation and initial penalties are $628,411 for willful violations related to exits, fire extinguishers, and handling of materials.

Missouri

  • Schrimpf Landscaping, a subcontractor on a construction site in Jefferson City, was cited for two serious violations after a retaining wall collapsed killing a worker. The company faces $18,892 in fines for failing to protect employees from struck-by and crushed-by hazards and to properly train employees.
  • Dyno Noble Inc of Carthage faces penalties of $32,890 related to fall protection.

North Carolina

  • KMS Roofing/Sheet Metal, L.L.C. of Greensboro faces $105,000 in penalties for two willful and one serious violation related to fall protection, training, and ladders.

Tennessee

  • Hankook Tire Manufacturing Tennessee, LP of Clarksville faces $75,750 following an inspection initiated by a complaint.

Wisconsin

  • Lincoln Industries Of Wisconsin, LLC of New Berlin faces $40,482 in penalties related to lockout/tagout and hazard communications.

For additional information.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA Watch 2

Guidance to ensure uniform enforcement of Silica Standards

compliance directive was issued, designed to ensure uniformity in inspection and enforcement procedures when addressing respirable crystalline silica exposures in general industry, maritime, and construction. The directive provides compliance safety and health officers with guidance on how to enforce the silica standards’ requirements and provides clarity on major topics, such as alternative exposure control methods when a construction employer does not fully and properly implement Table 1, variability in sampling, multi-employer situations, and temporary workers.

Trenching webinar

A webinar on trench safety hosted by the agency and the American Society of Safety Professionals is available free online.

Recent fines and awards

Florida

  • Inspected under the Regional Emphasis Program for Falls in Construction, CJM Roofing Inc., based in West Palm, was cited for exposing employees to fall and other hazards at three residential worksites in Jensen Beach and Port St. Lucie. The contractor faces penalties totaling $199,711.
  • Inspected under the Regional Emphasis Program for Falls in Construction, Action Roofing Services, Inc., based in Pompano Beach, was cited for exposing employees to fall hazards at a worksite in Boca Raton, Florida. The roofing contractor faces $51,952 in penalties.
  • Two construction contractors, CMR Construction & Roofing LLC of Panama City, and Modern Construction Experts LLC of Stuart, were cited for failing to protect employees from fall hazards at a construction worksite in Panama City. The two companies face $126,169 in penalties. An employee fatally fell 84 feet while working on the roof of a hotel.
  • After receiving notice of an employee hospitalized after a trench collapse, an inspection was initiated at Florida Progress LLC, operating as Duke Energy Florida LLC. The Charlotte, North Carolina-based electric power distributor faces $53,976 in penalties for exposing employees to excavation hazards at a Zephyrhills, Florida, worksite.

Georgia

  • Norfolk Southern Railway Corp. has been ordered to reinstate and pay more than $150,000 in back wages for whistleblower violations after terminating an employee for reporting an on-the-job injury at its Atlanta facility, and also filing an alleged violation report with the Federal Railroad Administration (FRA). The company was also ordered to pay the employee $75,000 in punitive damages, $10,000 in compensatory damages, and attorney’s fees.
  • Inspected under the National Emphasis Program on Trenching and Excavation, Construction Management & Engineering Services Inc. was cited for exposing employees to excavation hazards at a Duluth worksite. The Norcross-based construction contractor faces $134,937 in penalties.

Illinois

  • Grain firm Farmers Elevator Co., Manteno, received citations for two willful and three serious violations and a fine of $205,106 after a worker died at its Grant Park facility when he fell into a grain bin. The company was placed in the Severe Violator Enforcement Program.

Nebraska

  • A federal appeals court confirmed a serious citation issued to Jacobs Field Services North America Inc. for failing to ensure “appropriate” personal protective equipment was worn by an electrician who was seriously burned. While the company argued that the work area was “deenergized” and fell under an “Electrically Safe Work Condition,” as well as unpreventable employee misconduct, the judge found the company had violated the standard requiring PPE when “there are potential electrical hazards.”

For additional information.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA Watch 1

New resources – COVID-19

 

California becomes first state to adopt standard to protect agricultural employees working at night

A new workplace safety standard to protect agricultural employees who work at night became effective July 1 and will be enforced by Cal/OSHA. It’s designed to protect agricultural workers who harvest, operate vehicles, and do other jobs between sunset and sunrise.

Judge rejects AFL-CIO lawsuit calling for emergency temporary standard on infectious disease

The U.S. Court of Appeals for the District of Columbia Circuit on June 11 rejected an AFL-CIO lawsuit calling on the Department of Labor and OSHA to issue an emergency temporary standard on infectious diseases.

Virginia is creating COVID-19 emergency workplace standard

The state’s Safety and Health Codes Board voted June 24 to create an emergency temporary standard, which essentially requires employers to follow CDC guidelines or face fines. The proposed standards are expected to go into effect July 15.

DOL Inspector General review of OSHA actions during pandemic

Faced with mounting criticism about the agency’s response to the pandemic, the Department of Labor Office of the Inspector General issued a three-page report on June 17. The report notes responding to the “significant increase” in worker and whistleblower complaints during the COVID-19 pandemic, along with completing inspections and investigations, all in a timely manner, are among the challenges facing OSHA and the Mine Safety and Health Administration, given the limited resources available. OSHA has six months to issue a citation and proposed penalties.

Employers’ injury, illness data is public information

Data from Form 300A is not confidential and there are no restrictions on its dissemination according to a court ruling from the U.S. District Court for the Northern District of California. The ruling stemmed from a lawsuit made by the nonprofit news organization Center for Investigative Reporting under the Freedom of Information Act, seeking information from OSHA Forms 300A, 300 and 301 forms. The agency no longer collects information from Forms 300 and 301.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA watch (part 2)

Heat illness prevention

new video on heat hazard recognition and prevention is available.

Cal/OSHA issued a news release reminding employers to protect outdoor workers from heat illness.

Construction safety

A virtual stand-down to prevent struck-by incidents in construction is now available to view.

Recent fines and awards

Florida

  • Jax Utilities Management Inc. was cited for exposing employees to cave-in hazards at a Jacksonville worksite. Inspected as part of the National Emphasis Program on Trenching and Excavation, the construction contractor faces $56,405 in penalties.
  • Two contractors, Prestige Estates Property Management LLC of North Miami and Jesus Balbuena of Miami, face $44,146 in penalties for failure to protect employees from fall hazards at a construction worksite in North Miami. The investigation followed an employee’s 20-foot fall from an aerial lift that led to fatal injuries.
  • Flat Glass Distributors Inc. was cited for exposing employees to unguarded machinery, failure to implement and have a written lockout/tagout program, and electrical hazards at the Jacksonville fabrication and distribution facility. Inspected as part of the National Emphasis Program on Amputations, the custom glass shaping and cutting distributor faces $121,446 in penalties.
  • Crown Roofing LLC was cited for exposing employees to fall hazards at a residential worksite in Tamarac. The Sarasota-based contractor faces penalties of $134,937. The inspection was initiated under the Regional Emphasis Program for Falls in Construction after inspectors observed employees working on roofs without fall protection.

For additional information.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA watch

Guidance on distancing

Recent guidance focuses on strategies to implement social distancing in the workplace. Spanish version. It urges employers to isolate workers showing symptoms of coronavirus until they can go home or seek medical care, establish flexible worksites and work hours, stagger breaks and rearrange seating in common areas to maintain social distance, mark social distancing with floor tape where customers are present and reposition work stations and install plastic partitions to create more distance. It also issued new procedures to make it easier for federal workers in high-risk industries to obtain workers compensation for COVID-19.

Coronavirus alerts: Industry specific recommended practices

In May, recommended business practices were released for food service, nursing homes and long-term care facilities, dental practitioners, retail pharmacies, and rideshare, taxi and car services. All business guidances released to date can be found here in English and Spanish.

COVID-19 Quick Tips Videos

New animated videos provide quick tips to keep workers safe from COVID-19:

For all the quick tip videos released related to coronavirus, including Spanish versions, go here.

Eight ways to protect meat processing workers from COVID-19

Principal Deputy Assistant Secretary Loren Sweatt outlined eight ways to protect meat processing workers from COVID-19.

Guidance is now available in English and Spanish.

COVID-19 Q & A: Social distancing in meat and poultry facilities

Q. In some areas of meat and poultry processing facilities, social distancing at 6 feet of distance may not be feasible in order to maintain continued operation at the maximum capacity possible. In these areas, are other controls, based on the hierarchy of controls outlined in the CDC/OSHA guidance (e.g., personal protective equipment) acceptable in order to maintain safe operations at the maximum capacity possible?

A. Employers should use the hierarchy of controls to control hazards and protect workers, including by first trying to eliminate hazards from the workplace, then implementing engineering controls followed by administrative controls and safe work practices, and finally, using personal protective equipment (PPE). When engineering controls, such as physical barriers, are not feasible in a particular workplace or for a certain operation, other types of controls, including PPE, may be considered in accordance with the hierarchy.

Poster and video show right way to put on, take off respirator

A poster and video detail seven steps to properly put on and remove a respirator at work.

English version of poster

Spanish version of poster

Guidance and resources from state OSHA programs

California

Indiana

Michigan

Minnesota

North Carolina

Tennessee

Virginia

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA changes course again on recording of COVID-19 cases and increases onsite inspections

OSHA’s shifting guidance has employers’ heads spinning. For the third time since the onset of the pandemic, OSHA has issued guidance about recording COVID-19 cases. In March, it sent a memo reminding employers that COVID-19 diagnoses are recordable events, but in April it backtracked, significantly limiting the reporting requirements. Specifically, only cases related to health care workers, first responders, and correctional institution employees had to be recorded. All other employers were exempt except in cases in which “objective evidence” existed that a COVID-19 infection was work-related or the evidence was “reasonably available” to the employer.

New guidance announced on May 19 overrides the April guidance.Essentially, the new guidance requires an individualized work-relatedness analysis for all industries.

Effective May 26, COVID-19 cases are recordable if the illness is confirmed as COVID-19, the illness is work-related as defined by 29 CFR 1904.5 and the case involves at least one of the general recording criteria listed in 29 CFR 1904.7. The criteria include death, days away from work, medical treatment “beyond first aid,” loss of consciousness, and restricted work or transfer to another job. The revised enforcement policy directs that employers “make reasonable efforts” to investigate confirmed cases of coronavirus in the workplace to determine if they were more likely than not work-related.

Recognizing employee privacy concerns, OSHA indicates that employers are “not expected to undertake extensive medical inquiries” and may rely only “on the information reasonably available to the employer at the time it made its work-relatedness determination.” According to Conn Maciel Carey LLP, an OSHA/MSHA Workplace Safety, Labor and Employment Boutique Law Firm, it will be sufficient in most cases for employers to:

  1. Ask the employee how he believes he contracted the COVID-19 illness
  2. Discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and
  3. Review the employee’s work environment for potential SARS-CoV-2 exposure (which should be informed by any other instances of workers in that environment contracting COVID-19 illness).

During the investigations, employers need to consider workers’ privacy and refrain from disclosing the names of those who have tested positive for the virus to others in the workplace and should document all aspects of the investigation. OSHA notes, “If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.”

To assist employers in identifying work-relatedness, OSHA describes the types of evidence that may weigh in favor of or against work-relatedness. For instance, OSHA says, COVID-19 illnesses “are likely work-related” if:

  • Several cases develop among workers who work closely together and there is no alternative explanation;
  • The illness is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation; and
  • Job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

The guidance also indicates that an employee’s COVID-19 illness likely is NOT work-related if:

  • Only one worker in a general vicinity in the workplace contracts COVID-19;
  • Job duties do not include having frequent contact with the general public, regardless of the rate of community spread;
  • Outside the workplace, the infected employee associates closely and frequently with a non-coworker (e.g., a family member, significant other, or close friend) who has COVID-19.

As Conn Maciel Carey LLP points out, the biggest differences between the April 10 guidance and the May 19 guidance are:

  1. There is no exemption from conducting case-by-case work relatedness analyses for medium and low-risk exposure workplaces; and
  2. The new memo expands the examples of the type of objective evidence of likely work-relatedness from just a cluster of positive cases, to also include cases where someone contracts the illness after a lengthy exposure at work or has job duties that involve frequent, close exposure to the general public.

The firm also notes the importance of the term “no alternative explanation.” Where there is widespread community spread, it is important to document if an employee acknowledges such interactions away from work.

When determining whether an employer has complied with the revised policy, OSHA instructs compliance officers in a memo issued the same day to apply these considerations:

  • The reasonableness of the employer’s investigation into whether the COVID-19 case was work-related
  • The evidence available to the employer
  • The evidence that COVID-19 was contracted at work

Consistent with existing regulations, employers with no more than 10 employees and certain employers in “low-hazard industries” do not have an obligation to report COVID-19 cases unless a work-related illness results in death, in-patient hospitalization, amputation, or loss of an eye.

It is important to remember that even if a COVID-19 is recordable, it does not mean that it will be compensated by workers’ comp. OSHA recordability does not impact workers’ comp determinations and vice versa.

What employers should do now

For employers to prove a reasonable and full faith inquiry, Dustin Boss, a fellow Certified WorkComp Advisor offers this advice:

  • Implement preventive measures and methods for contact tracing as employees return to the workplace
  • Develop procedures to respect employee privacy during investigation into work-relatedness of a confirmed case of COVID-19
  • Update 2020 OSHA records and retrain staff members responsible for tracking injuries (if late, submit 2019 data which was due March 2)
  • Focus on minimizing the risk of transmission in the workplace and develop procedures to investigate the circumstances surrounding employees who test positive for COVID-19

Beyond the recording requirements, employers are exposed to the possibility of OSHA citations. As the fear of contracting the novel coronavirus permeates the workplace, thousands of employees have complained to OSHA regarding the insufficiency of their employers’ protection against COVID-19. In the same news release announcing the new enforcement guidelines, OSHA announced that it is increasing in-person inspections at all types of workplaces. “The new enforcement guidance reflects changing circumstances in which many non-critical businesses have begun to reopen in areas of lower community spread. The risk of transmission is lower in specific categories of workplaces, and personal protective equipment potentially needed for inspections is more widely available. OSHA staff will continue to prioritize COVID-19 inspections, and will utilize all enforcement tools as OSHA has historically done.”

Boss points out that enforcement of COVID-19 issues falls under the catch-all General Duty Clause that employers will provide a place of employment free from recognized hazards that are likely to cause death or serious harm to his employees. He notes that citations for COVID-19 exposure will rely on guidance the employer did not meet, including OSHA’s.

Both OSHA and the CDC recommend employers adopt exposure control plans. (see post for more detail)

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA watch

Recent fines and awards

Florida

  • Cathcart Construction Company-Florida LLC was cited for exposing employees to excavation hazards at worksites in Orlando and Winter Garden. The general contractor faces $303,611 in penalties.
  • Skanska-Granite-Lane, a joint venture operating as SGL Constructors, was cited for exposing employees to safety hazards at the I-4 Ultimate Improvement Project worksite in Orlando. One worker suffered fatal injuries and another was hospitalized. The contractor faces $53,976 in penalties.

Georgia

  • Creative Multicare Inc., a carpet restoration, plumbing, and resurfacing contractor based in Stockbridge, was cited for exposing employees to safety and health hazards after a fatal incident at a worksite in Perry. The company faces $183,127 in penalties for failure to properly manage the handling and labeling of hazardous chemicals.
  • Martin-Pinero CPM LLC, a construction contractor based in Atlanta, was cited for exposing employees to fall hazards after a fatal incident at a highway construction project in Atlanta. The company faces $170,020 in penalties. The inspection was conducted in conjunction with the Regional Emphasis Program on Falls in Construction.

Illinois

  • Three employers, Northwestern University, Hill Mechanical Corp., and National Heat & Power Corp., were cited for exposing workers to permit-required confined space hazards associated with underground steam vaults. Northwestern University was cited for failing to provide required information to contractors and coordinate activities, identify and evaluate high-pressure steam as a hazard, isolate steam energy, perform air monitoring, provide required signage, complete entry permits, evaluate their confined space hazard program and ensure the ability to rescue employees from a confined space. It faces penalties of $105,835. Hill Mechanical Corp. was cited for failing to obtain information from the host employer and coordinate activities, identify and evaluate hazards of the space, isolate steam energy, perform air monitoring, complete entry permits, provide required confined space training and ensure the ability to rescue employees from a confined space. The company faces penalties of $105,835. National Heat & Power Corp., the contractor brought in to complete the repairs, faces penalties of $24,292 for four serious violations involving failing to obtain information from the host employer, adequately isolate steam energy, provide required confined space training, and complete entry permits.

Missouri

  • Skinner Tank Company, based in Yale, Oklahoma, was cited for lack of fall protection after an employee constructing a storage tank suffered fatal injuries in a 50-foot fall at a Missouri agricultural facility. The company faces $415,204 in penalties for two willful and 11 serious safety violations and has been placed in OSHA’s Severe Violator Enforcement Program.

Virginia

  • A $5,000 citation against a naval contractor that trains sea lions to detect trespassers was upheld after the Occupational Safety and Health Review Commission determined that a failure to mitigate drowning hazards led to the death of an employee. The Reston-based Science Applications International Corp was cited under the General Duty Clause.

Wisconsin

  • MODS International Inc., a fabrication company that converts shipping containers into commercial and residential structures, was cited for exposing employees to multiple hazards at their facility in Appleton. The company faces penalties of $216,299 for seven repeat and seven serious safety and health violations. The company is contesting the citations.

For more information.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Coronavirus and OSHA: important updates

Backtracks on recordability of COVID- 19

Interim guidance reversed previous guidance that COVID-19 transmission in the workplace would be considered a recordable injury. Under the new guidance, the recordability of COVID-19 for non-frontline employers will be enforced only if there is objective evidence that the case may be work-related without an alternative explanation and the evidence was reasonably evident to the employer.

Employers in areas where there is ongoing community transmission “other than those in the health care industry, emergency response organizations (e.g., emergency medical, firefighting and law enforcement services) and correctional institutions” generally will not be required to record COVID-19 cases because they “may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work.”

The non-exempt employers must continue to make work-relatedness determinations and record on their 300 logs positive cases of COVID-19 likely to have been acquired on the job that result in death, days away from work, restricted work, or medical treatment beyond first aid.

 

Enforcement relief of many regulatory obligations for employers demonstrating “good faith efforts”

In an April 16 memo area offices and inspectors were given the discretion to assess an employer’s good-faith efforts to comply with standards that require annual or recurring audits, reviews, training or assessments, and take such efforts “into strong consideration” before issuing a citation during the current pandemic. Inspectors are directed to evaluate if employers:

  • Explored all options to comply with applicable standards (e.g., use of virtual training or remote communication strategies)
  • Implemented interim alternative protections, such as engineering or administrative controls
  • Rescheduled required annual activity as quickly as possible

The memo lists examples of situations in which area offices should consider enforcement discretion, including annual audiograms, hazardous waste operations training, construction crane operator certification, and periodic evaluation for respirator use.

 

Guidance for manufacturing sector

Guidance for the manufacturing sector offering strategies to prevent the spread of coronavirus was recently released. The guidance recommends that manufacturing companies stagger shifts, maintain distances of six feet between employees if possible, allow workers to wear masks, and provide training on the proper donning and doffing of personal protective equipment and clothing. Manufacturers are also urged to promote personal hygiene and provide alcohol-based hand rubs of at least 60% alcohol if handwashing access is not available and provide disinfectants and disposable towels for employees to clean work surfaces. The guidance is available in English and Spanish.

 

New safety alerts: retail sector, construction, package delivery workers

new safety alert provides nine tips for employers and workers at pharmacies, supermarkets, big-box stores, and other retail establishments to help reduce the risk of contracting and spreading COVID-19. The guidance is also available in Spanish.

A new safety alert provides guidance to help protect construction workers from exposure to coronavirus. It is available in English and Spanish.

Tips to protect package delivery workers are addressed in a new safety alert. English Spanish

 

Guidance for meatpacking and processing industries

coronavirus-related interim guidance developed with the CDC for meatpacking and meat processing workers and employers, including those involved in beef, pork and poultry operations, has been released. The interim guidance includes information on cleaning of shared meatpacking and processing tools, screening employees for the coronavirus before they enter work facilities, managing workers who are showing symptoms of the coronavirus, implementing appropriate engineering, administrative, and work practice controls, using appropriate personal protective equipment and practicing social distancing at the workplace.

 

Worker exposure risk chart

To help determine workers’ risk level for exposure to COVID-19, a chart of a four-tiered hierarchy based on occupational risk was developed. It shows what measures to take to protect workers based on industry and contact with others. The levels are:

Very high: Health care and morgue workers performing aerosol-generating procedures on or collecting/handling specimens from potentially infectious patients or bodies of individuals known to have, or suspected of having, COVID-19 at the time of death.

High: Health care delivery and support, medical transport, and mortuary workers exposed to confirmed or suspected COVID-19 patients or bodies of individuals known to have, or suspected of having, COVID-19 at the time of death.

Medium: Individuals who may have contact with the general public, including anyone employed in schools, high-population/density work environments, and some high-volume retail settings. This category also includes workers returning from locations with widespread COVID-19 transmission.

Lower (caution): Individuals who have minimal occupational contact with the public and other co-workers.

 

Inspectors prioritizing health facilities over other sites during coronavirus crisis

Recent guidance directs inspectors to focus on inspecting hospitals, nursing homes, laboratories, and other “high-risk” settings that are the subject of complaints by workers. Fatalities and imminent-danger exposures related to the pandemic will take priority for onsite inspections. So many employee complaints have been made that letters requiring a response are no longer sent, but employers are sent a letter notifying them about a complaint and directing them to agency guidance and additional resources on how to address COVID-19 risk. On the other hand, Cal/OSHA and other state plans are sending out traditional letters requesting a response within five working days.

 

Employers reminded of whistleblower protections for COVID-19 complaints

The number of coronavirus-related whistleblower complaints prompted a press release reminding employers they cannot retaliate against workers who report unsafe working conditions. The press release lists forms of retaliation, including firings, demotions, denials of promotion or overtime, and reductions in pay or hours. Reports are that there have been thousands of COVID-19-related inquiries and complaints.

 

Further easing of regulations related to respiratory protection

On April 3, two interim enforcement guidance memos were issued regarding the Respiratory Protection Standard (1910.134) and certain other health standards. The reuse of N95 respirators and the use of expired N95s will be allowed if certain conditions are met.

The second memo allows for the use of filtering facepiece respirators and air-purifying elastomeric respirators certified by other countries or jurisdictions, under certain performance standards. The enforcement guidance applies to all industries, especially workplaces where respiratory protection is impacted by the shortage and health care personnel are exposed to suspected or confirmed COVID-19 patients.

third memo was released on April 24 providing guidance on reusing disposable N95 filtering facepiece respirators (N95 FFRs) that have been decontaminated.

 

Poster aimed at reducing workplace exposure to the coronavirus

A new poster listing steps all workplaces can take to reduce the risk of exposure to coronavirus is available in twelve languages.

 

COVID-19 quick tips videos

Three new animated videos provide quick tips on social distancing, disinfecting workplaces, and industry risk factors to keep workers safe from COVID-19:

Social distancing

Disinfecting workplaces

Industry risk factors

For OSHA updates visit https://www.osha.gov/SLTC/covid-19/ .

 

Cal/OSHA new guidance on COVID-19 in the workplace

Industry-specific guidance and ATD model plans have been released. The industry-specific guidance includes:

As general guidance, Cal/OSHA’s website also includes interim guidelines for general industry.

 

Guidance and resources from state OSHA programs

California

Indiana

Michigan

Minnesota

North Carolina

Tennessee

Virginia

For additional information and resources on Coronavirus, go to the Duncan Financial Group COVID-19 Resource Center Online

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

 

OSHA watch

National Emphasis Program to reduce or eliminate worker exposure to silica extended in Pennsylvania, Delaware, West Virginia, and District of Columbia

An initiative to increase the focus of inspections in maritime, construction, and general industries on identifying, reducing, or eliminating worker exposures to respirable crystalline silica has been launched. The NEP on respirable crystalline silica targets specific industries in each area that are expected to have the highest numbers of workers exposed to silica. It also focuses on enforcement of two new silica standards, one for the general and maritime industries, and one for the construction industry. Compliance assistance is available until May 3, 2020, after which inspections under the NEP will begin.

National Safety Stand-Down to Prevent Falls postponed

The 7th annual National Stand-Down to Prevent Falls in Construction, originally scheduled for May 4-8, 2020, was postponed due to the COVID-19 pandemic. The event will be rescheduled this summer.

National Safety Stand-Down to Prevent Falls webinar

The National Safety Stand-Down to Prevent Falls will conduct an April 16 webinar on fall prevention practices.

Whistleblower protections public meeting

public meeting on May 13 will solicit comments on the whistleblower protection laws. The public will also be able to participate in the meeting by telephone.

Voluntary Protection Programs manual revised

The Policies and Procedures Manual for the Voluntary Protection Programs was recently revised.

Recent fines and awards

Florida

  • Turnkey Construction Planners Inc., based in Melbourne was cited for exposing employees to fall hazards at two worksites in Port Saint Lucie. The roofing contractor faces $114,294 in penalties.

Illinois

  • Monahan Filaments LLC., based in Arcola, was cited for violations of machine safety standards after an employee suffered severe injuries. The manufacturer of synthetic filaments for brushes and brooms faces $258,271 in penalties and was placed in the Severe Violator Enforcement Program (SVEP).

Massachusetts

  • In response to a complaint, Dollar Tree Stores in Boston was cited for exit and storage hazards and faces $523,745 in penalties. The national retailer received two willful and three repeat violations.

Missouri

  • R&R Contracting Services Inc. was cited after an employee suffered fatal injuries when he was crushed by a powered industrial truck at the company’s O’Fallon facility. The portable restroom service provider faces nine serious violations and proposed penalties of $52,626.

Nebraska

  • Interstate Commodities, based in Troy, New York, faces $228,592 in penalties for grain handling violations after an employee was fatally engulfed in a grain bin at the company’s Fremont facility. The company was cited for seven repeat and 10 serious safety and health violations involving hazards associated with grain handling, falls, respiratory protection, powered industrial trucks and electrical safety. It was placed in the SVEP.

Pennsylvania

  • In response to a complaint, Dollar Tree Stores in Bethlehem was cited for exit and storage hazards and faces $296,861 in penalties.

Wisconsin

  • Dollar Tree Stores was cited for exit, storage, and fire hazards at its Marinette location. The national discount retailer faces $477,089 in penalties.

For additional information.


For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit 
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Coronavirus: Workers’ Compensation and OSHA considerations

Worker’s Compensation

Compensability

Occupational disease law is written with the intent to cover diseases that arise in the course and scope of employment and have an exposure that is elevated from the exposure of the general public. An ailment does not become an occupational disease simply because it is contracted on the employer’s premises. A common disease that the public is exposed to is generally not covered under the occupational disease category, such as the flu and common colds. Furthermore, the National Council on Compensation Insurance (NCCI) notes that that many state workers’ comp statutes exclude “ordinary diseases of life.”

Therefore, in most situations, it would be difficult to prove that coronavirus resulted from a risk at work, as community spread has made the risk prevalent outside of the workplace and the incubation period can be anywhere from 2 to 14 days.

However, there are exceptions, notably healthcare providers and first responders caring for patients diagnosed with the coronavirus. Here employees are at a substantially greater risk of contracting coronavirus than the risk experienced by the general public.

Washington state, which operates a monopoly workers’ comp system, issued a directive providing workers’ compensation coverage for health care workers and first responders who are quarantined by a physician or public health officer. However, it also noted in most cases, exposure and/or contraction of COVID-19 is not considered to be an allowable, work-related condition, and will be reviewed on a case-by-case basis. North Dakota has issued a similar directive. Other states may follow suit, so it is important to stay up-to-date.

Of course, claims will still be filed and will be determined on a case-by-case basis. Claim adjusters will look to see if employees can prove that they contracted the virus after an exposure at work, the exposure was unique to the workplace, there are no alternative means of exposure, and they can provide medical evidence to support the claim.

The Workers’ Compensation Insurance Rating Bureau of California is partnering with other work comp organizations around the country to create unique codes to identify COVID-19 claims. The new codes will allow the costs of the claims to be tracked, measured, and properly used for pure premium ratemaking and experience rating.

On-site employees: manufacturers, construction, retail

Industries such as manufacturing, construction, and retail face the reality that employees must work onsite. The challenge to keep workers safe in these environments becomes more daunting every day. It’s important to recognize that the uncertainty created by the spread of the virus is a major distraction and distractions can lead to accidents. Safety efforts must adapt to current realities and be the number one priority.

The CDC recommends that employers “actively encourage sick employees to stay home.” To identify high-risk employees, some employers have instituted temperature screening upon entering work, which requires training and protecting the worker who is taking temperatures.

Others have encouraged self-identification and relaxed paid leave policies to urge those with symptoms or those who live with individuals with symptoms to remain at home. Responsible employers have trained managers and supervisors to identify symptoms of possible infection in coworkers and encourage reporting, as well as train employees on responsible behavior, such as handwashing, social distancing, sharing cups, utensils, etc.

Staggering shifts, break and lunch times, adding night or weekend shifts to help with family obligations are other actions employers are taking to keep workers safe. Other steps include installing barriers or creating “zones” to limit employee interaction, cross-training employees, restricting visitors, increasing frequency of sanitizing effort, providing sanitary wipes throughout the facility, and urging employees to follow CDC guidance. Identifying key personnel and creating schedules to isolate them can help keep the facility open.

For construction, the Center for Construction Research and Training (CPWR) has released guidance and offered resources for employees and employers on safety protocols in both English and Spanish.

In retail, it’s important to recognize that even “essential” shopping can endanger low-paid workers who are not trained in pandemic preparedness. Grocery stores are ramping up efforts at disease control, cleaning surfaces and carts more aggressively, providing hand sanitizers, encouraging frequent handwashing, and limiting occupancy and controlling access to checkout lines to ensure social distancing. Some have lifted restrictions on wearing gloves and masks, reduced operating hours, installed sneeze guard barriers at checkout, and increased pay. Even with these efforts, the stores are often busy and understaffed, and employees feel anxious and vulnerable. Educating employees on how to stay safe and letting them know they are valued goes a long way.

The CDC has published an Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19) with helpful information on what to do if there is a confirmed or suspected case in the workplace.

Telecommuting

The increase in telecommuting opens up another exposure for employers who are not used to having their workers work from home. Even those telecommuters who already know the drill about ensuring safe workspaces are facing different situations with children at home. Everyone is in an environment that is emotionally stressful. It’s good to periodically remind workers that they shouldn’t be sitting on a soft couch working in an awkward posture all day…that they need to be focused on proper positioning of back, wrist, and feet, and that they shouldn’t be plugging in power cords wherever they can and creating trip hazards. Tips on maintaining safe home workplaces are helpful.

Another issue facing employers is how to handle requests by employees for equipment such as an office chair to be delivered to their home. The need to set up, properly train the employee on how to adjust the chair, consistent treatment of all employees, and what to do with the equipment when the worker returns to the office should be considered.

Further, if faced with telecommuting requests by employees with concerns of potential exposure when an office is still open or when offices reopen, it’s important to assess whether such concern is reasonable before refusing this accommodation.

Existing workers’ compensation claims

Access to non-urgent medical care has been greatly affected during this crisis. Expect delays and longer recovery periods. Staying in touch with the injured employee and offering support is critical. Many workers compensation courts have suspended hearings and in-person meetings, while others are allowing virtual or telephone hearing options.

One positive note is the increased use of telemedicine, which the industry has been slow to adopt. Texas relaxed its rules regarding telemedicine and no longer requires patients to visit a doctor’s office before qualifying for telemedicine services and Ohio relaxed its rules that previously restricted the use of the home for video-based screening.

Privacy

Employers must be vigilant in complying with the various labor and employment laws implicated by the virus and be extremely cautious about sharing any health information related to 2019-nCoV diagnosis. Employers can notify managers, supervisors, and other employees who may have been exposed to an employee who contracted the virus but should not reveal the name of the employee, and discourage gossiping and presumptions.

Remind employees of applicable policies and procedures for reporting concerns and requesting leaves of absence and other accommodations. Train supervisors and managers on how to respond to such requests. Everyone should refrain from offering medical opinions, but can encourage employees to speak with their physician, local health department, and to use telemedicine.

If an employer opts to take temperatures of workers, it is still considered a medical exam and protected by the ADA. Information must be kept private and in a confidential medical file.

Employee relations

This is a time of unprecedented anxiety and worry for everyone. Be patient with employees as they deal with the fear of being “essential” employees exposed to public interaction, learn “social distancing” at a manufacturing or construction site, adjust to working remotely, and worry about their economic future.

The fastest way to alienate employees is not to show respect for their safety. Anything employers can do to calm employees will help keep the operation going and build loyalty.

Set clear, reasonable guidelines and expectations. Allow employees to openly discuss their questions and concerns without fear of reprisal. Provide daily guidance on key topics like self-care and staying safe. Tell the workforce what the company is doing, how you’re doing it, and what is likely to happen next.

Employees want and need to feel valued and look to their executive team for confidence that there is a way forward. It will take their commitment and engagement to see the company through the crisis. The employer’s actions now will leave an indelible mark on the attitude, retention, and loyalty of employees.

Suggested resources:

CDC: Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19)

Bain : A CEO Plan for Coronavirus: Actions to Take Now

Gallup: COVID-19: What Employees Need From Leaders Right Now

National Institutes of Health: COVID-19 website featuring health and safety resources for workers who may be at risk of exposure to COVID-19.

Center for Construction Research and Training (CPWR): guidance and resources

The Scary Times Success Manual

OSHA

Dedicated webpage and guidance document

OSHA issued guidance on preparing workplaces for COVID-19, in both English and Spanish. It divides jobs into four risk exposure levels – very high, high, medium, and lower – and specifies what employers should do to protect workers based on their level of exposure. It also suggests employers review their procedures regarding contractors, visitors, and other third parties who access the workplace.

It also has a webpage providing information on hazard recognition, medical information, control and prevention, and additional resources.

Applicable standards

Although OSHA does not have a standard that covers the coronavirus (an infectious disease rule has languished for ten years), its webpage on COVID-19, notes that the General Duty Clause applies. This is a catchall the agency uses to cite employers where there is no standard that applies to the particular hazard. It requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Failure to take steps to protect employees in accordance with OSHA and CDC guidelines can result in enforcement action.

The Personal Protective Equipment (PPE) standard, 29 CFR 1910.132, (in general industry), which requires using gloves, eye and face protection, and respiratory protection also comes into play as does Respiratory Protection, 29 CFR 1910.134.

In California, 019-nCoV is 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 and the agency recently issued guidance on the requirements to protect workers.

 

Recording and reporting requirements

Recording

Although OSHA’s recordkeeping rule exempts common colds and flu, it has explicitly stated that COVID-19 is a recordable illness when a worker is infected on the job. According to OSHA’s website COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. However, employers are only responsible for recording cases of COVID-19 if all of the following are met:

  • The case is a confirmed case of COVID-19
  • The case is work-related, as defined by 29 CFR 1904.5; and
  • The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medical treatment beyond first-aid, days away from work).

With the exception of health care, it is going to be difficult to connect work-relatedness of individual cases as community spread has set in. It is going to be necessary to determine on a case-by-case basis, whether it is more likely than not that an event or exposure in the workplace caused or contributed to the illness. For example, if an employee diagnosed with coronavirus was in the workplace after exposure, and a cluster of employees he/she was in close contact came down with coronavirus, it may be work-related because if an exposure in the work environment caused or contributed to the illness, there is a presumption the illness is work related.

An employee reporting an illness to the employer and/or asserting it was contracted in the workplace does not make the case recordable. It is the employer’s responsibility to determine work-relatedness and to document the decision. Further, if the exposure occurred while the employee was working outside the U.S. it is not recordable. “Injuries and illnesses which occur while the employee is traveling in places where OSHA does not have jurisdiction do not need to be recorded on the company OSHA log.”

Reporting

The existing criteria for reporting severe injuries apply to COVID-19 cases, including work-relatedness. Employers must report any hospitalization of a worker if the employee is admitted to the in-patient service for treatment within 24 hours. Given the latency/incubation period between exposure/contraction of the virus, and the time symptoms appear or are significant enough to result in an in-patient hospitalization, it’s unlikely many hospitalization reports will be filed.

Employees must report a fatality to OSHA when it is work related, a confirmed diagnosis, and the employee succumbed to the illness within 30 days of the exposure that resulted in the COVID-19 diagnosis.

 

Relief for healthcare respiratory protection annual fit-testing

In an effort to preserve the supply of N95 filtering facepiece respirators during the COVID-19 pandemic, OSHA temporarily suspended its requirement for annual respirator fit testing in the health care industry. The temporary enforcement guidance will remain in place until further notice.

Voluntary use respirators

In many industries, employees are asking to wear respirators/masks. If employers permit “voluntary use” (not required by regulations), the employer still must meet certain obligations set forth by OSHA. Employers are also permitted to decline to allow employees voluntary use respirators including N95 masks, if a respirator is not required because of exposures levels in the workplace.

Telecommuting

Regulation on telecommuting is lax and the due diligence is up to employers. OSHA has repeatedly said that it will not investigate the safety of home offices.

However, there is clear guidance on recording injuries while working from home in regulation 29 C.F.R. § 1904.5(b)(7) : “How do I decide if a case is work-related when the employee is working at home? Injuries and illnesses that occur while an employee is working at home, including work in a home office, will be considered work-related if the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting.”

The regulation gives a few examples.

  • “If an employee drops a box of work documents and injures his or her foot, the case is considered work-related.”
  • “If an employee is injured because he or she trips on the family dog while rushing to answer a work phone call, the case is not considered work-related.”

Meeting regulatory deadlines

While it is anticipated that OSHA will cut some slack on enforcing regulatory deadlines, such as annual LOTO inspections and three-year PS audits, it’s important to document why the deadline was missed and undertake interim or alternative measures where feasible. Simply saying, there was a pandemic is not enough.

Retaliation when employees refuse to work

Co-workers of sick employees who refuse to work may be protected by OSHA’s anti-retaliation provisions. The worker must believe in good faith that there is an imminent danger in the workplace and insufficient time to eliminate the danger through regulatory enforcement. Experts suggest that when employees are being rotated into different positions and asked to do things they normally do not do with minimal training or when a group of employees feels their safety is threatened, the risk of successful retaliation suits is higher.

If the employer is following all recommended CDC guidance, communicating the practices may ease the anxiety. However, if the employee still refuses to work, termination could be a risk, if the fear is reasonable.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com