Reed Smith issues guide for UK employers preparing to reopen workplaces post-COVID-19

Following recent announcements by the UK government on how the UK economy will gradually re-open, we are pleased to share a short publication with you that highlights some of the key health, safety and workplace management topics that UK employers may need to consider as we get businesses up and running again.

In addition to key considerations for UK employers, this publication, entitled “Preparing for a post-COVID-19 return to the workplace” also includes a high-level re-opening checklist and useful links to UK government guidance.

First published on our sister blog, Employment Law Watch, this publication is based on a review of the government guidance as at 18 May 2020 and does not serve as legal advice. Rather, our aim is to offer analysis and opinion on HR and health and safety considerations for UK employers as you start to plan ahead to re-establish and maintain your businesses. We hope that you find this helpful and would love to hear your thoughts.

Some considerations on suspension of regulated activities at all or part of a facility

In the context of COVID-19, many companies are downsizing operations or, in some cases, completely eliminating product lines or shuttering facilities. The considerations that go into such a decision are difficult and complicated, in part because the effects may be felt long into the future. However, if you are faced with such a decision, here are a few points to consider with regard to your environmental obligations.

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EPA’s self-guidance for participation in bankruptcy proceedings

The uncertainty surrounding the COVID-19 pandemic has rocked the global economy, and companies of all types and sizes are feeling the impacts. In recent weeks, certain high-profile retailers filed for Chapter 11 bankruptcy protection. Some airlines are expected to enter bankruptcy as well, and even farmers are feeling the pinch. Overall, data suggest that bankruptcies will increase almost 25 percent from last year.

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OSHA announces changes (again) to how COVID-19 cases are recorded

With most states starting to reopen after the lockdown, attention is focused on the process for getting back to work safely, and when and how employers must record COVID-19 cases as a work related illness. In response to this, OSHA has issued a revised recordkeeping enforcement memorandum outlining the applicable requirements. This comes into effect on May 26 2020, replacing a more relaxed version issued in April 2020. Accompanying this revised memorandum is an updated Interim Enforcement Response Plan for Coronavirus, which, among other things, indicates that OSHA will step-up in-person inspections across all categories of workplace.

In this sister blog post on Reed Smith’s Employment Law Watch, we provide an overview of how, and to whom, the new recordkeeping requirements will apply, as well as of the factors OSHA will consider when assessing compliance and enforcement.

EPA updates ‘small manufacturer’ definition for reporting and recordkeeping under TSCA section 8(a)

A new EPA rule finalizes amendments to the definition of “small manufacturer” in accordance with the Toxic Substances Control Act (TSCA). Changes to the small manufacturer definition impact certain reporting and recordkeeping requirements established under TSCA. The final rule is effective 30 days after publication in the Federal Register.

The final rule, made public May 12, updates EPA’s 1984 definition of entities that must file production volume and other information under existing regulations, including the Chemical Data Reporting rule.

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Keeping it Clean: OSHA, CDC, and state-agency guidance explains how employers can help stop spread of COVID-19

Many businesses are reopening their doors as states lift closure orders. While a plan to reopen will look different for each company, all employers should ensure they are taking appropriate cleaning and safety measures to reduce possible exposure to the virus that causes COVID-19.

The Occupational Safety and Health Administration (OSHA) has recommended several measures that employers can implement to protect workers from COVID-19, and developed interim guidance for specific worker groups. One such group is environmental, or janitorial, services.

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Proposed NEPA rulemaking would accelerate environmental reviews

Earlier this year, the Council on Environmental Quality (CEQ) issued a notice of proposed rulemaking recommending extensive changes to the governing regulations of the National Environmental Policy Act (NEPA).  NEPA is a broad national policy aimed at preventing or eliminating damage to the environment.  Under this policy, whenever “major federal actions” – including projects that receive federal funding – will significantly affect the environment, federal agencies must incorporate certain environmental impacts into their decision-making processes and allow public participation.

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European Commission launches consultation on TEN-E Regulation

The European Commission launched a public consultation on its review of Regulation 347/2013 on guidelines for trans-European energy infrastructure (the TEN-E Regulation) on 18 May 2020. The public consultation is accompanied by a targeted, more technical consultation aimed at stakeholders with specialist knowledge of the TEN-E Regulation. Both consultations will be open for eight weeks, with submissions due by 13 July 2020.

Background

On 11 December 2019, the European Commission adopted the European Green Deal (the Green Deal), and presented its communication on the Green Deal to the European Parliament. The Green Deal sets out overarching objectives that will inform EU legislation and policy going forward. The objectives include achieving climate neutrality by 2050, mainstreaming sustainability and promoting “nature-based solutions”.

The Green Deal highlights the importance of smart infrastructure in the transition to climate neutrality, and identifies the need to review the regulatory framework for EU energy infrastructure, including the TEN-E Regulation, to ensure consistency with the 2050 climate neutrality objective. The revised framework should also address the policy ambition under the Green Deal of supplying clean, affordable and secure energy by integrating a significant increase in renewable energy in the European energy system, and prioritising energy efficiency.

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States sue EPA over COVID-19 enforcement policy

Following on from our recent post regarding Environmental Protection Agency (EPA) policy and the controversy surrounding it , on May 13, 2020, seven states brought an action in the Southern District of New York against the EPA to challenge the agency policy under which the EPA has stated it “will not” enforce a wide range of monitoring and reporting requirements under federal environmental laws. As we previously blogged, the EPA justified the “Temporary Policy on COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program” (non-enforcement policy), as a necessary response to the COVID-19 pandemic. The states bringing the suit argue that the non-enforcement policy gives parties free rein to self-determine when compliance with federal environmental laws is not practical because of COVID-19. They also claim the non-enforcement policy makes it optional for parties to report that noncompliance to the EPA, and to state and local agencies. The states bringing suit argue that the policy’s effective waiver of these requirements exceeds the EPA’s authority. The May 13, 2020 suit was lodged by the attorneys general of California, Illinois, Maryland, Michigan, Minnesota, Oregon, Virginia, and Vermont, as well as New York. Stay tuned here for updates.

Despite COVID-19 concerns, CARB continues to revise air emissions rules for the shipping industry

The California Air Resources Board (CARB) continues its efforts to expand the state’s existing Ocean-Going Vessels At-Berth Regulation to further reduce air emissions from ships docked in California. (See here for prior alert). CARB recently released draft modifications to the At-Berth Rulemaking Documents. The modifications would include:

  • Allowing use of an Innovative Concepts (IC) provision as a compliance option. The IC provision would enable regulated entities to use potentially lower-cost options to achieve earlier or equivalent (or greater) emissions reductions in port communities versus reducing emissions directly at berth. The IC provision would also provide a pathway for regulated vessel fleets to continue using fleet averaging methods to comply with the proposed regulation.
  • Expanding use of Vessel and Terminal Incident Events to new and expanding fleets to encourage new business at California ports.
  • Providing additional operational flexibility: by extending the time a vessel has to connect to shore power or another CARB-approved emissions control strategy (CAECS) from one hour to two hours; by extending the timeframe for reporting deadlines; and by expanding the remediation fund to ports and third-party CAECS operators.
  • Broadening the scope of the interim evaluation to include a review of public information provided to CARB, including terminal-specific engineering evaluations, logistical considerations, public engagement, and independent studies, to help inform the evaluation and implementation timeline.
  • Accelerating implementation dates for roll-on / roll-off and tanker vessels to achieve earlier public health benefits.

The resolution and all other regulatory documents for this rulemaking are available online here.

CARB notes that the proposed modifications “provide additional operational flexibility to achieve the necessary emissions reductions in California’s impacted port communities, while encouraging continued cleaner economic growth.” However, stakeholders are certain to see higher costs related to infrastructure and capital improvements.

COVID-19 has also altered transportation practices, and many stakeholders fear that enacting a regulatory change could complicate economic recovery. Maritime and port stakeholders have requested a delay in approving the At-Berth regulatory package in order to afford ports and port workers time to manage the COVID-19 outbreak and navigate its economic impacts.

Not extending the time to allow for economic recovery from the pandemic will likely make compliance more costly (in relative terms) or, as some stakeholders argue, “infeasible.”

CARB is currently reviewing and preparing responses to comments received on the record during the comment periods. CARB’s responses will be published with its Final Statement of Reasons report upon submittal to the Office of Administrative Law, which CARB expects to occur during Fall 2020. How it will respond to stakeholder comments, including COVID-19 concerns, is currently unknown.

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