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COVID-19 update: OSHA, NCCI, and more

OSHA: National Emphasis Program (NEP) for COVID-19 revised, Interim Enforcement Response Plan (IERP) updated, and mask guidance issued

In March, OSHA launched a COVID-19 NEP that focused enforcement efforts on companies that put the largest number of workers at serious risk of contracting the coronavirus. The directive created three lists of covered workplaces: high-risk healthcare establishments, high-risk non-healthcare establishments, and supplemental industries for non-healthcare in essential critical infrastructure. At least five percent (approximately 2,000, excluding State Plans) of inspections will be COVID-19 NEP inspections.

The revised NEP, issued July 7, significantly reduces the number of target industries identified as being most at risk for COVID-19 exposure. Industries covered by the program still include healthcare and some non-healthcare industry segments considered higher risk as identified in the original NEP:

Targeted Healthcare Industries by 2017 NAICS Code:

Targeted Non-Healthcare Industries by 2017 NAICS Code:

*Establishments within the Temporary Help Services (NAICS 561320) industry should not be automatically included in the targeting list for programmed inspections. Although this industry has been among the top industries with OSHA enforcement activities related to COVID-19, this has primarily occurred where services occurred at host healthcare facilities and other high-hazard workplaces. Therefore, to effectively address SARS-CoV-2 hazards for Temporary Help Services, where OSHA is conducting an inspection for other purposes, a COVID-19-related inspection shall be opened for all hazardous conditions observed in plain view (such as, for example, temporary employees working in high exposure areas without adequate PPE).

However, the revised NEP removes an appendix to the agency's March directive that contained a long list of secondary target industries, which presumably will no longer be subject to the NEP. These included agriculture, forestry, fishing and hunting; construction of buildings; heavy and civil engineering construction; specialty trade contractors; food manufacturing; beverage manufacturing; wood product manufacturing; paper manufacturing; other petroleum and coal products manufacturing; chemical manufacturing; plastics and rubber product manufacturing; nonmetallic mineral product manufacturing; primary metal manufacturing; and asphalt paving, roofing, and saturated materials manufacturing.

The new NEP also incorporates the ETS for COVID-19 in healthcare, which was released in June. For inspections in healthcare, the revised NEP refers compliance safety and health officers (CSHOs) to the directive, DIR 2021-02 (CPL 02), Inspection Procedures for the COVID-19 Emergency Temporary Standard, issued on June 28, 2021.

Inspections in non-healthcare establishments will follow procedures outlined in the Updated Interim Enforcement Response Plan published July 7, 2021. The updated interim enforcement response plan (IERP) replaces the memorandum dated March 12, 2021, and includes:

On August 13, OSHA issued new guidance, aligning with CDC's position that vaccinated individuals need to wear face masks in areas of high virus transmission and all individuals, regardless of vaccination status, should be tested three to five days following a known exposure to COVID-19 and wear a mask in public settings for 14 days or until a negative test result. It also clarifies recommendations to protect unvaccinated workers and other at-risk workers in manufacturing, meat and poultry processing, seafood processing and agricultural processing.

NCCI will treat COVID-19 as catastrophic comp event

The National Council on Compensation Insurance (NCCI) will treat the COVID-19 pandemic as a catastrophic event in workers' compensation loss cost/rate filings. It has begun submitting annual jurisdiction-specific loss cost/rate experience filings with proposed effective dates ranging from November 2021 to August 2022 and will exclude COVID-19 claims from the determination of loss costs and rates because they are "not expected to be predictive of the loss experience that may arise during the upcoming loss cost and rating filings' prospective periods." However, it will evaluate each state on its own and consider whether any departures from its standard ratemaking methodologies are necessary.

It also addressed future catastrophic exposures on workers' comp systems that can impact ratemaking and is proposing that any event exceeding $50 million in losses be excluded from the data used to set rates, including future pandemics. For more information.

Long COVID can be disability under the ADA

The Department of Justice (DOJ) and the Department of Health and Human Services (HHS) jointly published guidance on how "long COVID" can be a disability under the ADA, Section 504 of the Rehabilitation Act, and Section 1557 of the Affordable Care Act.

Injured workers saw no treatment delay in early 2020: WCRI

The pandemic had no noticeable impact on medical treatment for injured workers who filed non-COVID-19 claims, according to a report by the Workers Compensation Research Institute (WCRI). The study found that the average number of days from injury to treatment changed less than 1.5% for nearly all types of treatment when the second quarter of 2020 was compared with the same quarter in 2019.

Vaccine mandate debate rages

As the debate over vaccine mandates intensifies, some states and municipalities are taking action to require vaccines, while others have filed bills to ban vaccine mandates.

A common question surrounding the right to mandate vaccines is the vaccine's emergency use authorization (EUA).The DOJ's Office of Legal Counsel issued an opinion that the law "does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to EUAs." It only addresses the obligation that certain information be passed on to potential vaccine recipients.

Recently, the federal government, the U.S. Department of Veterans Affairs, California, and New York City announced they would require some or all of their government employees to produce proof of immunization or be tested weekly. The California directive extends to healthcare facilities in both the private and public sectors, as well as congregate settings such as jails, homeless shelters, and senior living homes. In Pennsylvania, the Governor vetoed legislation that would have forbidden any government entity or higher education institution in the state from asking for proof of a COVID-19 vaccination or to electronically track vaccination status.

In the private sector, more health care employers are requiring workers to get vaccinated for COVID-19, a trend experts say is spurred by rising case numbers and the recent dismissal of a federal lawsuit, Jennifer Bridges, et al. v. Houston Methodist et. al, challenging a vaccination mandate. Corporations have also begun to take a harder line on vaccines, including Walmart, Disney, BlackRock, Morgan Stanley, and Facebook.

California: WCIRB payroll reporting rules changes with end of emergency order

The lifting of the stay-at-home order means changes in certain COVID-19 payroll reporting rules according to the Workers' Compensation Insurance Rating Bureau (WCIRB). The section allowing employers to classify those working from home as clerical office staff expired Aug. 10. The section excluding from payroll any payments made to those who weren't working during the pandemic expired July 11.

California law creates COVID-19 presumption for disability retirement

A.B. 845 creates a rebuttable presumption that public safety, firefighters, and medical workers who are disabled or died from COVID-19 have access to public retirement system benefits, including pension, disability, and death benefits. The presumption, which takes effect immediately, will end Jan. 1, 2023.

California COVID-19 claims more than twice what WCIRB projected

Projected COVID-19 workers' compensation claim costs for accident years 2020 and 2021 in California are projected to be more than $1 billion and coupled with declining premium levels, have put the estimated combined loss and expense ratio over 100% for the first time in nearly a decade, according to a report by the WCIRB.

August 5 deadline for New York Infectious Disease Plan

On July 6, 2021, the New York State Department of Labor, in consultation with the New York State Department of Health, published an Airborne Infectious Disease Exposure Prevention Standard and a Model Airborne Infectious Disease Exposure Prevention Plan and industry-specific templates for agriculture, construction, delivery services, domestic workers, emergency response, food services, and manufacturing. Employers had 30 days to adopt a written exposure plan, either following the NYSDOL's model plan or creating their own following NYSDOL standards. The plan must be communicated to employees and posted in a visible location. However, the precautions under the plans only go into effect when state public health authorities make a "highly contagious communicable disease" declaration, which has not been made.

South Carolina plans to write infectious disease rule for workers

SCOSHA has decided to create an alternative infectious disease standard to replace the federal OSHA emergency COVID-19 standard. The standard will place significant focus on employer assessment and allow flexibility as the pandemic has proven to be unpredictable, according to SCOSHA Deputy Director Kristina Baker. The timeline was not announced.