oronavirus law update presented by: osha, nlrb, eeoc, … 3030 april 2020 slides.pdf · (view the...
TRANSCRIPT
Presented by:
Manesh K. RathPartner
Javaneh NekoomaramAssociate
CORONAVIRUS LAW UPDATE:OSHA, NLRB, EEOC, CDC, FDA, EPA,
WHITE HOUSE, STATES
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April 22, 20201001 G Street NW, Ste. 500 W,
Washington, D.C.
www.khlaw.com
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An audio recording and slide deck will be provided post-webinar on www.khlaw.com/osha3030
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3Copyright © 2020
MANESH K. RATH
Manesh Rath is a partner in Keller and Heckman’s litigation and OSHA practice groups. He has been the lead amicus counsel on several cases before the U.S. Supreme Court including Staub v. Proctor Hospital and Vance v. Ball State University.
Mr. Rath is a co-author of three books in the fields of wage/hour law, labor and employment law, and OSHA law. He has been quoted or interviewed in The Wall Street Journal, Bloomberg, Smart Money magazine, Entrepreneur magazine, on "PBS's Nightly Business Report," and C-SPAN.
Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business Legal Center. He served on the Society For Human Resources (SHRM) Special Expertise Panel for Safety and Health law for several years.
He was voted by readers to Smart CEO Magazine's Readers' Choice List of Legal Elite; by fellow members to The Best Lawyers in America 2016, 2017 and 2018; selected by Super Lawyers 2016 – 2017, 2017 – 2018; and by corporate counsel as the 2017 Lexology winner of the Client Choice Award.
Manesh RathPartner
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Javaneh Nekoomaram is an associate in the environmental and workplace safety and health (OSHA) practice groups at Keller and Heckman. Ms. Nekoomaram practices in all areas of environmental law as well as occupational health and safety law, and chemical control law. She routinely advises clients on a broad range of environmental health and safety compliance issues.
Prior to joining Keller and Heckman, Ms. Nekoomaram served for three years as Counsel for the American Coatings Association. She provided regulatory compliance and advocacy on a number of issues on behalf of the coatings industry including TSCA, Prop 65, hazard communication and labeling, state chemical regulation, hazardous waste, air and water quality, occupational health and safety, and chemical safety regulations. She also served as Advocacy Counsel for the Graffiti Resource Council, an organization supported by the aerosol coatings industry that provides anti-graffiti strategies for cities across the country.
JAVANEH S. NEKOOMARAM
Javaneh NekoomaramAssociate
202-434-4176
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This program is based on agency guidance published as of the date of this presentation. This information is relevant to the time in which the information was published by the agency. This program is intended to be a summary of some key
points from agency COVID-19 policies and the information presented should not be relied upon in isolation or construed as legal advice.
Agency policies continue to evolve throughout the COVID-19 pandemic. Consult legal counsel and continue to review agency updates to stay current on the latest
COVID-19 guidelines.
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The entire library of priorOSHA 30/30s at:
www.khlaw.com/OSHA3030
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OSHA EEOCNLRBCDC FDA EPA
StatesWhite House Workers
CompensationWhat Employers
Should Do
TOPICS TO BE DISCUSSED
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• OSHA enforcement discretion policy (April 16, 2020)
• Discretion to penalize companies that make good faith efforts to comply with OSHA standards
–Inspectors to consider interim alternative protections employer has implemented to protect employees
–Employer must document attempt to comply with OSHA standard
OSHA
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• Enforcement discretion policies on use of respirators
–Temporary enforcement guidance - healthcare respiratory protection (March 14, 2020)
–Temporary enforcement guidance - all industries (April 8, 2020)
–Enforcement guidelines for respiratory protection and N95 shortage (April 3, 2020)
–Enforcement guidance for use of respirators certified under standards in other countries (April 3, 2020)
OSHA
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OSHA interim enforcement response plan for COVID-19 (April 13, 2020)• Area Directors must evaluate risk level of exposure to COVID-19
prior to inspection of a workplace– Maximize use of electronic means of communication
– If determined inspection is warranted and workplace has potential for high exposure, coordinate with regional office and contact Office of Occupational Medicine and Nursing (OOMN) - can facilitate in obtaining worker medical records from employers
• Hazard alert letters from Area Offices
• General Duty Clause
• Recordkeeping – enforcement discretion (April 10, 2020)
OSHA
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April 9, 2020: “What You Should Know”
• Discrimination laws continue to apply, but do not interfere with CDC guidelines or state/local authorities
• CDC and state/local guidance changes over time
Medical inquiries, temperature checks permitted under pandemic
• Confidentiality requirement applies
Requiring employee to stay home = permitted because of CDC guidance
ADA permits employer to require a certificate for fitness to return to duty
EEOC
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NLRB suspended representation elections (including mail ballots)
• From March 19 through April 3, 2020
NLRB resumed conducting elections beginning April 6, 2020
NLRB
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Interim recommendations for facilities with suspected or confirmed COVID-19
Close off areas visited by ill persons (24 hours or for as long as practical) before disinfecting • Consider size of room and ventilation when deciding how long to
close off work areas before disinfection
Clean and disinfect all areas used by ill persons
Follow manufacturer’s instructions on disinfectants (contact time, PPE, directions for use)
Cleaning staff should clean hands after removing gloves
CDC - CLEANING
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Stocking supplies (soap, disinfectant, cleaning materials, masks, gloves, etc.)
Ventilation
Social distancing• Notify supervisor, stay at home
• Telework
• Liberal leave
• Flex hours
• Separate employees, partitions
• Inform employees if a co-worker had possible exposure or confirmed case
Educate employees
Assess essential functions (postpone, eliminate, downsize)
Communicate with suppliers, co-located employers
CDC
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Return to work only when criteria to discontinue home isolation are met
• IF test Positive and have symptoms:– No testing: 72 hours since recovery (no fever, no fever medication) AND
improvement in respiratory symptoms AND 7 days since symptoms first appeared
OR– Testing: Resolution of fever without medication, improvement in respiratory
symptoms AND two negative tests more than 24 hours apart
• IF test positive, and have no symptoms:– 7 days since first positive test
– Plus no subsequent illness and remains asymptomatic
– For three additional days, 6 feet plus facemask
CDC
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FDA
• Issued Emergency Use Authorization letter permitting NIOSH -approved disposable filtering facepiece respirators to be used in healthcare settings
• Issued guidance on hand sanitizers
TTB
• Issued guidance providing exemptions and waivers to distilled spirits permittees to produce hand sanitizers
• Extension of TTB hand sanitizer guidance through Dec. 31, 2020
FDA AND TTB
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EPA issued guidance on making emerging viral pathogen claims for EPA-registered surface disinfectants
EPA “List N”
• All products that meet EPA’s criteria for use against SARS-CoV-2, the virus that causes COVID-19
• Products demonstrate efficacy against a harder-to-kill virus or efficacy against another type of human coronavirus similar to SARS-CoV-2
EPA (FIFRA)
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42 states have issued work-from-home orders
Exempt essential or critical businesses
• Some states adopt CISA guidance on essential critical infrastructure and others have variations
Important to monitor states as stay at home orders go into effect and duration of orders
STATES
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All critical infrastructure businesses
All “life sustaining retail”
As needed to conduct “minimum basic operations”• Activities necessary to maintain the value of the business’s inventory,
preserve the condition of plant and equipment, ensure security, payroll and benefits, facilitate telecommuting
EXAMPLE: KENTUCKY
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PA. Dept. of Health FAQs
• Slight difference in language used to define “probable” cases
Critical Infrastructure
• Initially, not identical to CISA list, revised subsequently
EXAMPLE: PENNSYLVANIA
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For employers:
• Implement policies for social distancing, PPE, temperature checks, testing, isolating, sanitation, workforce tracing following a positive test, disinfection, and travel
Phase 1- Encourage telework, return to work in phases, close common areas, minimize non-essential travel, make accommodations to vulnerable populations
Phase 2 - Non-essential travel can resume
Phase 3 - Resume unrestricted staffing of worksites
WHITE HOUSE: GUIDELINES FOR OPENING UP AMERICA
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“Thousands of complaints” have been filed with US OSHA (per Washington Post)
• Alleging failure to:
–Implement distancing
–Issue face masks and gloves
–Forced to work with others who appear sick
–Inadequate protective gear – makeshift coveralls or facemasks, lack of soap or sanitizer
CDC GUIDANCE USED IN EMPLOYEE COMPLAINTS
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Wal-Mart claim in Cook County, Illinois
• Two employees died of COVID-19 and others experienced symptoms
• Estate of one deceased employee brought suit alleging wrongful death, negligence, and willful and wanton misconduct for allegedly failing to adhere to CDC and OSHA guidelines
• Alleged failures:
– Cleaning failures
– Social distancing
– Failures in Providing PPE
– Failure to warn employees of other symptomatic employees
– Infection prevention measures
TORT LITIGATION AND WORKERS COMPENSATION
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When you implement a policy, record the date and the agency source As guidance changes, dates become important Follow CDC and OSHA guidance re:
• disinfecting • PPE• separation and isolation• return to work• notification• essential operations
Document basis for role in critical infrastructure or emergency relief Document logistics or supply chain process and how they may impact
control measures Document efforts to comply with OSHA standards
WHAT SHOULD EMPLOYERS DO
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MORE FROM THE OSHA 30/30:
Listen as a Podcast:The OSHA 30/30 is now available as a Podcast!Find it at:• Khlaw.com/osha3030• Or on any podcast streaming service (iTunes,
Soundcloud, Spotify)
Catch Manesh Rath on Twitter:
@RathManesh
Connect with us on LinkedIn:1. Manesh Rath, David Sarvadi, Larry
Halprin, Javaneh Nekoomaram, John Gustafson
2. Keller and Heckman Workplace Safety and Health
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May 20, 2020www.khlaw.com/OSHA3030
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Wednesday, May 13th, 2020www.khlaw.com/TSCA-3030
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Javaneh NekoomaramAssociate
Manesh RathPartner
Thank you!
Keller and Heckman LLP1001 G Street NW
Suite 500 WestWashington, DC 20001
(202) [email protected]
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