As federal OSHA has remained without a COVID-19 specific or infectious disease rule to enforce, some state plan OSHA agencies have stepped in to fill the void … as have some state officials in federal OSHA jurisdictions. Even municipalities have gotten into the act. This raises the potential for missteps by employers who operate in multi-state environments. As this is written, there are 14 states that now have some enforceable rules governing COVID-19 and workplace safety and health. This is a fluid situation, and more regulations may come on line so this requires regular monitoring.
A “one-size-fits-all” program may no longer protect employers from civil penalties issued by state agencies, and could even give rise to tort liability exposure in workplace situations where non-employees, such as temporary workers from staffing agencies or subcontractors, are present. For those workers, the host employer may find that worker’s compensation does not apply and claims can be brought for personal injury or wrongful death if COVID is acquired while in the premises.
The state and municipal laws set a standard of care for these legal actions. Moreover, plans and programs developed and implemented in states with strict COVID workplace safety and health requirements can be deemed feasible, and be used to issue general duty clause citations to employers in other jurisdictions IF they did not roll out similar protections in those environments.
Moreover, insurance carriers are arguing that COVID-19 losses are not covered under commercial property liability policies, as well as under environmental insurance policies (arguing that COVID-19 is not a “pollutant”). This may leave employers in a no-man’s-land when it comes to insurance coverage for a variety of COVID-related claims, including third party illness actions.
In related news, however, a federal district court judge in NY rejected Amazon workers’ suits over violations of New York State’s COVID-19 regulations, arguing that federal OSHA has “primary jurisdiction” over the issue, which raises the issue of how these non-OSHA regulations could be enforced against employers in federal OSHA states going forward. The workers had argued that enforcing the state requirements for more frequent breaks, social distancing and other pandemic protections was not an attempt to enforce federal OSHA law, but rather state policies and state common law.
The US District Court ruling in NY, holding that primary jurisdiction applies to state policies outside of the federal OSH Act, is not binding on other federal courts although it could be viewed as persuasive authority, and it could still be appealed to the US Court of Appeals. The November 2, 2020, decision does, however, provide a context to defenses that can be raised against actions brought under the state laws below, outside of those in “state plan states” (which do have authority to promulgate and enforce more stringent rules than does federal OSHA).
The “Big Four”
In terms of enforceable OSHA-type standards for the protection of employees, the “big four” are those OSHA “state plan states” with newly adopted emergency temporary standards (ETS) that can result in civil penalties of up to $134,937 per affected worker: Virginia, Michigan, Oregon and California.
The Law Office has previously discussed the complex Virginia OSHA (“VOSH”) rule in an earlier newsletter, and the state is also considering a permanent standard that would take effect after the ETS expires in February 2021 (unless extended).
The Michigan standard, enforceable by its state plan agency “MIOSH,” took effect on October 14, 2020, for a six-month period. This can be extended by the state, and it applies to all businesses. There are specific requirements for certain industries, including: construction, manufacturing, retail, health care, sports, exercise facilities, and restaurants and bars.
Employers in Michigan must establish an exposure determination for employees, evaluating both routine and anticipated tasks to determine potential COVID-19 exposure. As with the earlier VOSH rule, MIOSH also stratifies workplaces into “lower,” “medium,” “high,” and “very high” exposure risk categories, with most workplaces falling in the medium category, except for workers whose work tasks do not require contact with the public or other workers (lower) or those in health care, law enforcement, death care, laboratories, nursing homes, dental, and EMS (high or very high, depending on task).
MIOSH requires creation of a written COVID-19 preparedness and response plan that includes exposure determination and detailed measures the employer will take to reduce worker exposure: engineering controls such as barriers; administrative controls such as staggered work schedules, telework and social distancing; hand hygiene and environmental surface disinfection; personal protective equipment (an N95 respirator is requires for those with frequent or prolonged close contact with known or suspected cases of COVID-19); health surveillance (screening protocols at start of shift, employee reporting of symptoms); and worker training.
California has instituted two new laws impacting how employers respond to COVID-19. SB 1159 created a rebuttable presumption that employees who test positive for COVID-19 contracted the virus at work for workers’ compensation purposes. These employees are eligible for “full hospital, surgical, medical treatment, disability indemnity, and death benefits.” AB 685 increased reporting obligations for workplaces with COVID-19 exposure. This bill requires employers who have notice of a potential COVID-19 exposure to provide written notice to employees who were at the worksite at the same time as a potentially infected person. For more on these bills, see our Oct. 28, 2020 blog post.
Oregon OSHA also adopted a temporary rule addressing COVID-19 in all Oregon workplaces. The rule, which took effect November 16, 2020, requires employers to carry out a comprehensive set of risk-reducing measures. The temporary rule’s requirements include:
Employers must ensure six-foot distancing between all people in the workplace through design of work activities and workflow, unless it can be shown it is not feasible for some activities.
Employers must ensure that all individuals – including employees, part-time workers and customers – at the workplace, or other establishment under the employer’s control, wear a mask, face covering, or face shield in line with the Oregon Health Authority’s statewide guidance.
Employers must provide masks, face coverings, or face shields for employees free of cost.
Employers must maximize the effectiveness of existing ventilation systems, maintain and replace air filters, and clean intake ports providing fresh or outdoor air.
Employers must conduct a risk assessment – a process that must involve participation and feedback from employees – to gauge potential employee exposure to COVID-19, including addressing specific questions about how to minimize such exposure.
Employers must develop an infection control plan addressing several elements, including when workers must use personal protective equipment and a description of specific hazard controls.
Employers must provide information and training to workers about the relevant topics related to COVID-19. They must do so in a manner and language understood by workers.
Employers must notify affected workers within 24 hours of a work-related COVID-19 infection.
The Oregon rule is expected to remain in effect until May 4, 2021.
Other State Workplace Safety Actions
Pennsylvania: On November 19, 2020, the Secretary of Health issued an updated order requiring individuals to wear a “face covering” – defined as covering of the nose and mouth with material secured to the head with ties, straps or loops over the ears, or wrapped around the lower face. It can be made from various materials or factory-made. While procedural and surgical masks intended for health care providers and first responders, such as N95 respirators, meet the PA state requirements, those specialized masks should be reserved for appropriate occupational and health care settings (including for workers exposed occupationally to respirable crystalline silica, who will not be protected by a basic face covering if they must wear an APF-10 respirator under the OSHA silica rule).
Pennsylvania is under federal OSHA, but the state Order can be enforced by police who can issue individual citations, and the state Health Department can also issue citations to businesses and facilities that do not comply. The order notes that while a face covering must be worn in the workplace, there is an exception if a person works alone and does not expect to be around others. Examples of “working alone” include: being inside an enclosed cab of construction equipment, a worker in an office with four walls and a door, a worker in a cubicle with three walls and a door if walls are high enough to block the breathing zone of all who walk by and no one will enter the worker’s space, or agricultural or others who work in open areas with no expected contact with others. When outdoors, one must wear a face covering when with others who are not members of the person’s household and if they are unable to maintain sustained physical distance (6 feet or more).
New Jersey: On October 28th, Governor Murphy signed Executive Order No. 192, which adopts a COVID-19 rule enforceable by the state health department. Public sector employees in NJ are already under a state plan, but the private sector is governed by federal OSHA. Effective November 5, 2020, all businesses including non-profits, schools and other governmental entities, are subject to the state rule, but religious institutions are exempt as are facilities under the US Government’s control (e.g., military bases and airports). The NJ Executive Order requires employers to maintain six-feet of distance, install barriers where possible, ensure all worker wear a mask provided by the employer at the business’ expense (with exceptions), and require customers and visitors to wear a mask in accordance with CDC recommendations, deny entry to employees who refuse to wear a mask except where the federal ADA or state anti-discrimination laws apply. Employers must also provide hand sanitizer that is at least 60% alcohol and sanitizing wipes approved by the EPA for virus control. Gloves may also need to be provided to certain workers at employer expense, and all high-touch areas must be routinely cleaned and disinfected in accordance with DOH and CDC guidelines. Employers must also conduct daily health checks of employees (temperature screening, visual symptom checking, self-assessment checklists or health questionnaires) and send home workers with symptoms (as defined by CDC). The New Jersey sick leave and family leave laws also apply and may offer workers greater leave protections than do the federal analogs. There is also a mechanism for the state Department of Labor, in consultation with the Department of Health, to support complaints from workers, investigate and develop a process for having employers address potential deficiencies. Counties and municipalities in NJ are barred from enacting or enforcing any orders or rules that conflict with the state order.
Including the states discussed above, the national Employment Legal Project (www.nelp.org) reports that 14 total states have adopted COVID-19 worker protections, as of November 2020. The other states with enforceable COVID-19 workplace rules are:
Illinois: Executive Orders pertain generally, with specific requirements for protein processing facilities and health care. The state also requires employees who have had contact with a co-worker or other persons diagnosed with COVID-19 to quarantine and see a test. All other employees should be alert for symptoms such as fever, cough, shortness of breath, and should take their temperatures. Illinois is a federal OSHA state but does enforce OSHA rules in public sector workplaces.
Kentucky: The state has adopted “Kentucky Healthy at Work” policies. Kentucky is a state-plan state but has declined to adopt an ETS.
Massachusetts: The state has issued guidelines for reopening, mandatory standards for workplaces, and protocols for reporting unsafe work conditions that are related to COVID-19.
Minnesota: The state has issued a number of policies, including rules specific to meat-packing operations, and protections for workers on the right to refuse unsafe work. Minnesota is a state-plan state but has not yet adopted a unique ETS.
Nevada: The governor has issued a series of emergency directives impacting the workplace, including reopening protocols. Nevada is a state-plan state but has not adopted a COVID ETS.
New York: The state has issued guidance for agriculture and also for some essential industries. NY is a federal OSHA state but does enforce OSHA rules in public sector workplaces.
Rhode Island: The state has developed a COVID-19 control plan template for employers, which can be filled in on-line, and also has reopening guidance for “vital workplaces.”
Washington State: Governor Inslee has adopted protections for farmworkers who may be exposed to COVID-19, as well as emergency rules for worker housing, and guidance for employer reopening (enforceable through Washington’s state OSHA agency, WISHA). WISHA has not adopted an emergency COVID rule at this time.
What About Maryland?
Maryland runs its own state OSHA program but so far has resisted efforts to promulgate an enforceable COVID-19 emergency standard. However, in October 2020, the Maryland Public Justice Center filed a complaint with federal OSHA, alleging that Maryland’s “MOSH” agency has not followed its own procedures on when to conduct workplace inspections. The action followed an outbreak at a manufacturing facility where over a dozen workers became ill, and several were hospitalized. The complainants alleged that masks were not provided, adequate sanitation facilities and equipment was not present, and workers were not told about the hazards of the sickness.
“MOSH has watched as a mere spectator as COVID-19 continues to spread through Maryland workplaces due to employer practices that violate CDC guidelines,” the complaint letter to OSHA stated. While the federal officials declined to respond, this issue could re-emerge once the Biden administration takes control of federal OSHA. MOSH has conducted relatively few inspectors and tends to forward COVID-related complaints to the local health departments. Out of nearly 500 COVID-related complaints received by Maryland OSHA between March and October 2020, MOSH only conducted inspections in 30 of the cases. Maryland contract tracers report that the “Number 1 high-risk location” noted in 42 percent of responses was a workplace outside the home.