OSHA watch

COVID-19
New Q & A addresses reporting and recording requirements.

The revised guidance represents a significant change and is more in keeping with the existing reporting and recording requirements for hospitalizations and deaths and a pullback from the broad interpretation issued in July. To be reportable, a hospitalization (in-patient admission, not a visit to the ER or outpatient treatment) due to COVID-19 must occur within 24-hours of exposure to the virus at work. The employer must report the hospitalization within 24-hours of knowing the employee has been hospitalized with a work-related case of COVID-19.

The reporting requirement for deaths from a work-related COVID-19 infection is triggered when an employee dies within 30 days of being exposed to COVID-19 at work. From the time it learns of the death and knows that the cause of death was a work-related case of COVID-19, the employer will have eight-hours to report it.

It also cleared up confusion about the timing of a COVID-19-related 'work-related incident' that triggers reporting requirements. The new Q & A's make it clear that the reporting time frames are triggered by an exposure to COVID-19 at work, rather than a diagnosis. It defines a "work-related incident" as "an exposure to SARS-CoV-2 in the workplace."

The time limits on reporting hospitalizations and fatalities don't apply to recording. Employers are still expected to record all work-related confirmed cases of COVID-19. While the definition of a 'work-related incident' as "an exposure to SARS-CoV-2 in the workplace" is helpful and more reasonable than earlier approaches, making the work-related determination remains a struggle for employers.

State requirements can differ and often are more restrictive. In California, a COVID-19 case does not have to be confirmed through testing to be deemed recordable. A case must be recorded if it meets the definition of a "serious injury or illness," irrespective of when a potential exposure may have occurred. The case may also need to be recorded even if the work-relatedness determination is uncertain. Also, employers must report any serious injury/illness or fatality as soon as practically possible but not longer than eight hours after the employer knows or with diligent inquiry would have known of the serious injury or illness. A serious illness includes, among other things, any illness occurring in a place of employment or in connection with any employment that requires inpatient hospitalization for other than medical observation or diagnostic testing.

In Virginia, similar to the federal requirements, cases need to be confirmed positive through testing and determined to be work-related to be recorded. There is also a requirement that provides that employers must report positive cases to VOSH (to the Virginia Dept. of Labor and Industries) within 24-hours of discovering that three (3) or more employees who, within a 14-day period, were present at the workplace and tested positive for the SARS-CoV-2 virus in the same way they would report a work-related fatality or in-patient hospitalization. The rule does make a distinction between work-related cases and non-work-related cases, other than a requirement that the three employees who have tested positive had also been in the workplace within 14-days of each other.

New Q & A on respirators and particle size

Aiming to dispel "incorrect claims" about the efficacy of N95 respirators to protect wearers against COVID-19 infection, a section on respirators and particle size has been added to the FAQs on protecting workers from exposure to the coronavirus.

New resources on recommended practices

• In-home repair - English Spanish
• Restaurants resuming dine-in services - English Spanish
• Cleaning staff - English Spanish
• Posters on processing and packaging safety for meat and seafood are now available in additional languages Meat Seafood
• COVID-19 response summary provides up-to-date information on complaints, referrals, inspections, and closed cases. As of October 27, there were 9,782 federal complaints, 1,305 referrals, 31,239 state complaints, and 4,181 state referrals. A total of 9,245 federal cases and 24,585 state cases were closed.

For more COVID-19 information

Cal OSHA updates guidance for several industries and return to work

Cal/OSHA updated five of its industry-specific coronavirus disease 2019 (COVID-19) infection protection guidelines for agriculture, child care, construction, grocery stores and logistics.

The agency revised its guidelines to update criteria for returning to work after a COVID-19 diagnosis and add a reference to the California Department of Public Health's (CDPH) Guidance on Returning to Work or School Following COVID-19 Diagnosis. Individuals who test positive for SARS-CoV-2 and who have had symptoms may return to work or school when:

• At least 10 days have passed since symptoms first appeared
• At least 24 hours have passed with no fever without the use of fever-reducing medications
• Other symptoms have improved

Michigan becomes second state to adopt COVID-19 standard, Oregon to soon follow

When the Michigan Supreme Court struck down the Governor's emergency order MIOSHA quickly responded with a series of COVID-19 Emergency Regulations. The rules, which mostly mirror the previous emergency order, require all employers to conduct COVID-19 hazard assessments, to have a written COVID-19 preparedness and response plan, adopt workplace controls and safe work practices, conduct daily entry screenings for all employees or contractors entering the workplace, and designate one or more COVID-19 safety coordinators, and that such coordinator(s) must remain on-site at all times when employees are present on site. Employers must also provide "thorough training to their employees that covers, at a minimum, workplace infection-control practices, the proper use of personal protection equipment, steps workers must take to notify the business or operation of any symptoms of COVID-19 or a suspected or confirmed diagnosis of COVID-19, and how to report unsafe working conditions."

If there is a known COVID-19 case of an employee, visitor, or customer, the employer must immediately notify the local public health department and notify, within 24-hours, coworkers, contractors, or suppliers who may have come into contact with the known case. Employers must also maintain records of training, screenings, and required notifications. The records must be kept for one year from the time of generation.

The rules also include 11 industry-specific requirements: construction, manufacturing, retail, libraries and museums, restaurants and bars, health care, in-home services, personal care services, public accommodations, sports and exercise facilities, meat and poultry processing, and casinos. Signed Oct. 14 and effective immediately, the regulations will remain in effect for six months.

On October 23, 2020, Oregon OSHA released the latest version of its proposed COVID-19 Emergency Temporary Standard (the "OR ETS"). It is anticipated that this will go into effect in early November. It includes one set of mandates for all workplaces and another set for what it defines as "workplaces of exceptional risk," including direct patient care, aerosol-generating or post-mortem procedures, in-home care and/or direct client service in residential care, or assisted living facilities.

DOL guidance memo directs agencies to stop publishing news releases about fines and penalties

The New York Times obtained a Department of Labor (DOL) guidance memo that advises enforcement agencies not to publish press releases, "absent extraordinary circumstances," about fines and penalties levied against employers for worker safety and health violations "before achieving a successful outcome." Employers have often complained that OSHA issues a release before companies have an opportunity to respond to the citations.

Recent fines and awards

COVID-19-related citations

Federal:

Given the rapidly escalating volume of COVID-19-related citations, weekly news releases are now being posted on the website. As of Oct. 22, 144 establishments employing more than 650,000 workers were cited for violations relating to coronavirus, resulting in proposed penalties totaling $2,025,431. 82 citations were issued in the first 22 days of October and included failure to implement a written respiratory protection program, provide a medical evaluation, respirator fit test, training on the proper use of a respirator and personal protective equipment, report an injury, illness, or fatality, record an injury or illness on OSHA recordkeeping forms; and comply with the General Duty Clause.

A list of all coronavirus-related issued citations can be found here.

Cal/OSHA

• Fined five Los Angeles-area grocery stores between $13,500 and $25,560 for failing to protect workers from exposure to COVID-19 because they did not update their workplace safety plans to properly address hazards related to the virus, allowed too many customers in the store, failure to install barriers between customers and workers, did not report a fatal COVID-19 case, and failed to properly train employees. All the stores are owned by Kroger and fines totaled $104,380.

Michigan OSHA(MIOSHA)

• MIOSHA has cited 35 companies for violations related to COVID-19 under its general duty clause. Fines range from $1,500 to $7,000.

Nevada OSHA

• Issued COVID-19 workplace safety-related citations to three event venues, including two related to a Sept. 12 rally in Las Vegas for President Donald Trump. Each of the violations, with fines ranging from $2,603 to $2,950, related to violations of the statewide limitations on gathering size. Since mid-March, 175 notices of citation and penalty related to violations of required COVID-19 health and safety measures have been issued. Its website provides a list of complaints, referrals, and inspections.

Non-COVID-19 related citations

• Target Corp. has agreed to correct exit access and storage hazards at 200 stores to improve worker safety. Citations had been issued to eight Target stores in Connecticut, Massachusetts, New Jersey, and New York which were initially contested. In a settlement, the retailer agreed to pay $464,750 in penalties and to abate exit path and storage safety issues at all Target stores in Connecticut, Massachusetts, New Jersey, and New York for the next two years.

Florida

• CSX Transportation Inc., headquartered in Jacksonville, was ordered to reinstate and pay more than $95,000 in back wages to an employee terminated by the company for reporting an unsafe customer gate and an on-the-job injury.

Illinois

• D & M Painting Corporation of Wheeling faces initial penalties of $53,977 for training and scaffolding violations.
• J & M Construction & Services, #1, Inc. of Clarendon Hills faces initial penalties of $40,077 for fall protection, ladder, and training violations.

Massachusetts

• Larochelle Construction, Inc. of Holyoke faces initial penalties of $53 975 for fall protection violations.
• J&R Carpentry Incorporated of Somerville faces initial penalties of over $44,000 for fall, eye, and face protection.

Minnesota

• Duke Aerial, Inc. dba Duke Rentals of Byron is contesting initial penalties of $75,000 for training and failure to provide protective equipment for employees working in areas where there are potential electrical hazards.

Tennessee

• The Occupational Safety and Health Review Commission (OSHRC) vacated a citation issued to the now-defunct Aerospace Testing Alliance for not properly guarding a machine that crushed the finger of an operator. The OSHRC found that the administrative judge improperly gave conclusive weight to the testimony of the injured worker that was contradicted by other employees and reversed the citation of $6,300.

For additional information.