OSHA compliance, investigations and citation appeals

Process safety management of highly hazardous chemicals

By Brittany Covert and Eddie Lewis

On July 9, 2020, the Fifth Circuit affirmed an expansive interpretation of the mechanical integrity requirements under OSHA’s process safety management (PSM) Standard in Sanderson Farms v. Occupational Safety and Health Review Commission. The Court held that the PSM Standard’s mechanical integrity requirements apply to emergency stops that are only activated after an accidental release.

Sanderson Farms operates a chicken-processing plant in Waco, Texas. It uses anhydrous ammonia as a refrigerant to freeze processed chickens. In 2017, OSHA conducted an inspection of the facility and issued several citations. Two stood out: (a) “Sanderson did not ‘establish and implement written procedures to maintain the on-going mechanical integrity of the process’ with respect to safety cutouts, emergency stop testing procedures, and pressure vessel level control test procedures” in accordance with the PSM Standard and (b) “Sanderson ‘failed to perform inspections and tests on process equipment’ including three compressor cutouts and two emergency stop buttons,” in accordance with the PSM Standard.

Sanderson argued that the PSM Standard did not apply to its emergency stops because the stops only activate after another piece of equipment fails and causes a release. The Administrative Law Judge affirmed the citations and Sanderson appealed.

The Fifth Circuit affirmed, reasoning that “[t]he emergency shutdown equipment is process equipment because it works to minimize a hazard even if it acts after a release.” Therefore, the Fifth Circuit held that, as specified in the PSM Standard’s mechanical integrity provisions, Sanderson was required to inspect and test the emergency stops in accordance with recognized and generally accepted good engineering practices (RAGAGEP). While an employer has flexibility as to how to implement its inspection and testing program, as guided by RAGAGEP, mechanical integrity inspection and testing of such equipment is mandatory.

The Fifth Circuit’s decision has implications on the PSM Standard’s mechanical integrity requirements with respect to: (a) the type of equipment that might be required to comply with the mechanical integrity requirements (i.e. fire protection systems); (b) the methods of testing and inspecting equipment; and (c) the frequency and requirements of the inspections themselves.

Status updates

Federal OSHA issues new guidance on returning to work

By Kevin Mayer

The US Occupational Safety & Health Administration (OSHA) has issued its Guidance on Returning to Work. The document, which OSHA notes does not impose any new legal requirements on employers, provides a concise statement of best workplace safety principles in the COVID environment, as well as a summary of best practices to achieve them. OSHA also addresses the controversial issues of employee testing and medical monitoring in the workplace. It also discusses how to deal with positive tests and symptomatic workers, as well as recommendations for staging the various aspects of return to work practices.

California

By Josh Henderson and Jackie Karama

From the standpoint of Cal/OSHA obligations, the debate has shifted from whether to issue an emergency COVID-19 standard to what that standard should entail. The petition which teed up the debate contained several controversial requirements, including preparation of a "Compliance Action Plan" by someone "knowledgeable in infection control principles as they apply specifically to the facility, service or operation." The Cal/OSHA Standards Board heard from several concerned employers and their representatives that this requirement would impose a significant burden particularly on smaller employers. It is unclear whether this provision will be included in the now-anticipated emergency standard.

Ultimately, the standard may either give employers latitude in choosing what steps can be used to achieve compliance, or identify specific protective measures the employers must implement. Although the Board did not tip its hand at the hearing, it is significant that the Board voted in favor of having an advisory committee "for the purpose of establishing reasonable and necessary improvements required to avoid serious harm, as further guidance on the prevention of workplace transmission and exposure becomes available." In other words, the emergency standard will be subject to modification as our understanding of the virus, its transmission, and mitigation evolves. While it could be a prescriptive standard, it will not be set in stone.

The Board is asking for updates only on four-month intervals after passage of the emergency standard, so any change may not come quickly. We will know more in November 2020, and provide updates as we learn of them.

Maryland

By Troy Vancil

Maryland Occupational Safety & Health (MOSH) has adopted federal OSHA electronic reporting requirements beginning on September 8, 2020. The rule requires employers to report their occupational illnesses and injury data from their OSHA Log 300A Summary Form to OSHA's online Injury Tracking Application (ITA) website.

The rule applies to public and private sector employers in Maryland if the establishment: (a) had 250-plus employees during the prior calendar year; or (b) if the establishment had 20-plus employees the prior year and the employer is considered a high hazard industry under 29 CFR 1904.41(a)(2). Employers who fit these descriptions will be required to electronically submit their 2020 injuries between January 1, 2021, and March 2, 2021.

Michigan

By Kevin Mayer

Governor Gretchen Whitmer issued two Executive Orders on September 25, 2020, addressing a gradual reopening of the state and workplace health and safety protective measures.

In Order 183, Governor Whitmer announced an incremental approach where certain activities and venues will be permitted to reopen before others, commencing on October 9, 2020. The list of affected businesses include theaters and cinemas, athletic and recreational facilities, and other performance venues. Most non-residential indoor venues will be permitted to operate as long as they maintain fewer than 20 people per 1,000 square feet and require facial coverings. Stadiums will be permitted to operate at 20 percent capacity, not to exceed 500 people. Outdoor gatherings will be allowed so long as limited to less than 30 people per 1,000 square feet, or 30 percent capacity, up to 1,000 people (for larger spaces).

Order 184 requires workplace safeguards for all businesses. Any business that requires employees to leave home for work must develop a COVID-19 preparedness and response plan consistent with federal OSHA's Guidance on Preparing Workplaces for COVID-19. The plan must be made available to employees, labor unions and customers. The order also addresses requisite employee training on relevant infection control, personal protective equipment, and sanitation issues, as well as necessary procedures for addressing sick employees.

Minnesota

By Jackie Karama

On October 7, 2020, Governor Tim Walz issued Executive Order 20-92 extending the state's COVID-19 Peacetime Emergency through November 12, 2020. The Executive Order is effective immediately and will remain in effect until it is rescinded by proper authority, or terminated by a majority vote of each house of the Legislature pursuant to Minnesota Statutes 2019, section 12.31, subdivision 2(b), whichever occurs earlier.

The Peacetime Emergency allows state officials to quickly respond to pandemic needs, such as protecting workers from unsafe working conditions and retaliation, providing expedited procurement power for personal protective equipment (PPE) and other gear, and requiring Minnesotans to wear face coverings to prevent the spread of COVID-19.

Further, Governor Walz and Lieutenant Governor Peggy Flanagan announced that the state would open a COVID-19 saliva testing site on October 14, 2020, in Winona. Semi-permanent saliva testing sites will open in Moorhead on October 17, 2020, and Brooklyn Park on October 20, 2020. Later in October, the Minnesota Department of Health (MDH) will open two additional sites in greater Minneapolis and four more in the metro area. Details on those locations will be announced when available. Testing is free to all Minnesotans who believe they need to be tested for COVID-19, including those who do not have any symptoms.

Nevada

By Jeffrey Webb

The Nevada Occupational Safety and Health Administration (NV OSHA) has issued a series of guidance for businesses operating in Phase 2 of the Governor's Nevada United: Roadmap to Recovery plan. The most recent updated guidance was issued on July 29, 2020.

Phase 2 requires that: "All essential and non-essential businesses opening or continuing operations in Phase 2 must adopt measures promulgated by the [NV OSHA] to minimize the risk of spread of COVID-19, including social distancing and sanitation measures, and abide by all other guidance promulgated pursuant to the Phase 2 directive." On June 24, 2020, the Governor issued Declaration of Emergency #024, which requires businesses operating during Phase 2 to ensure that all patrons, customers, patients, or clients utilize face coverings. The measures contained within NV OSHA's guidance are recommended ("should") or required ("must") of each business operating during Phase 2 and should be applied to all employees of the business.

There are several points of guidance related to face coverings, including that the employer must provide them for employees assigned to serving the public and must require these employees where them; employers should require employees to wear them in any space visited by the general public even when no one else is present; employers must require employees to wear them in any space where food is prepared, packaged, sold, or distributed; and businesses must, except for certain delineated exceptions, mandate the use of them by patrons, customers, patients, and clients and notify same of the requirement prior to their entry into the business. Importantly, NV OSHA does not recognize face shields as an alternative to or as an effective face covering. Additional sections of guidance pertain to issues such as social distancing during breaks, lunches/dinners, and other slack periods.

Any NV OSHA guidance will be enforced by NV OSHA. Any mandatory measures in the guidance will be deemed by NV OSHA to be enforceable if not specifically addressed in previously published guidance, regulations, or memorandums.

Oregon

By Kyle DeCamp and Josh Henderson

On October 13, 2020, Oregon OSHA released a revised draft of a COVID-19 Temporary Standard. This draft proposes rules by which Oregon employers must abide to curtail the spread of COVID-19 and to handle employee exposure. Oregon OSHA intends to adopt this rule on October 21, 20202, with an effective date of November 1, 2020.

Under this temporary standard, every employer and building operator in Oregon must meet the following requirements:

• Ensure that 6-foot distancing between all individuals in the workplace is implemented by designing the workplace and work activities such that coworkers need not ever be within six feet of another individual to perform their job duties. If such a reconfiguration is not possible, employers must ensure that all affected workers are wearing a face covering.
• Ensure that all individuals (including customers, vendors, and patrons) five years of age and older and not actively eating, drinking, or smoking at the workplace, are wearing a mask or a face shield.
• No later than November 8, 2020, those employers who operate or otherwise control buildings where the employees of other employers work must ensure that sanitation requirements are met and post signs saying that masks or face shields are required.
• No later than November 21, 2020, establish and implement an infection control plan that is specific to the type of work performed by employees on a facility-by-facility basis.
• No later than November 21, 2020, perform an exposure risk assessment, answering a number of questions and seeking employee feedback, and maintain a record of the assessment.
• Identity and target all common areas accessible to employees or the public for regular cleaning or sanitation within 24 hours of use.
• Post the "COVID-19 Hazards Poster" provided by Oregon OSHA in a central location.
• No later than December 21, 2020, maximize the amount of outside air circulated through its existing heating, ventilation, and air conditioning systems, to the extent the system is capable of doing so, whenever there are employees in the workplace.
• Designate at least one individual who will be responsible for assisting the employer in managing distancing, COVID-19 procedures, and face covering rules.
• Set up an infection notification process to inform employees of a potential work-related exposure.

Additionally, Oregon OSHA has more rules for workplaces designated as being as "exceptional risk." These workplaces are considered to be at higher risk for employee exposure to COVID-19, such as facilities providing direct patient care or that engage in aerosol-generating activities.

Exceptional risk workplaces have additional "Infection Control Plan" requirements, including frequent reevaluation of the plan and assessment of the protective measures used. Additionally, workplaces involving indoor healthcare settings must have enhanced ventilation systems (which may include portable air purifiers with HEPA filters) that supply enough air to facilitate 12 air changes per hour (ACH).

Finally, employers must consult the "mandatory appendix" accompanying the new standard to determine if industry-specific guidance in the appendix supplements or supersedes provisions in the temporary standard. The appendix lists 19 specific industries and workplace activities, ranging from restaurants and retail establishments to construction and higher education.

Utah

By Jamila Mensah

On September 19, 2020, Governor Gary Herbert issued a new executive order extending the state of emergency previously declared in Utah as a result of the COVID-19 pandemic. The order allows Department of Alcoholic Beverage Control licensees to maintain their licenses even if they close down for a period of time; suspends some requirements for using telehealth; suspends requirements that parole hearings be open to in-person participation; and allows flexibility to retired employees who have not been separated from employment from a public employer for one year to return to work on COVID-19 related issues without jeopardizing their retirement benefits.

The government is also planning to issue phased health guideline changes and mask mandates as public health orders under the Utah Department of Health. Current state guidelines for private employers require employees working with the general public to wear masks. There is no similar mandate for private employers who do not work with the general public.

Of note, the Utah Occupational Safety and Health Division recently issued an inspection report for JBS Beef Plant in Hyrum, Utah, which shows that 441 employees had tested positive for COVID-19 as of June 16, and that one employee died as a result of the virus. The plant had 1,495 workers at the time of the inspection. No fines were issued to JBS as a result of the outbreak.

Virginia

By Mario Barrera

Virginia became the first state to enact an emergency temporary standard (ETS) specifically targeted to limit the risks of COVID-19 in the workplace. The ETS covers nearly all private and non-federal public employers and went into effect on July 27, 2020.

The state's Safety and Health Codes Board received many negative comments from different business sectors about the ETS, but ultimately rejected virtually all of them.

Under the ETS, employers are required to conduct a hazard assessment of each job task or group of job tasks in the workplace and label the risk as "lower," "medium," "high" or "very high." In addition, unless the assessed exposure risk is low, employers are required to provide employee training that covers the ETS' requirements as well as the characteristics of COVID-19 transmission, physical distancing and disinfection requirements and the use of PPE. This training was required to be completed by August 26, 2020.

Employers with "high" or "very high" exposure risks are required to prepare an infectious disease preparedness response plan and do so by September 25, 2020, regardless of the number of employees they have. Only those employers with a "medium" exposure risk who have at least 11 employees must do so by the same date.

Finally, the ETS prohibits any form of retaliation against employees who exercise their rights under the standard.