As the transition in presidential administration draws closer and COVID-19 cases continue to increase in certain parts of the country, it appears increasingly likely that the Occupational Safety and Health Administration (“OSHA”) will undertake a rulemaking relating to COVID-19. Additionally, state plan OSHA agencies continue to revise and issue guidance relating to their own rules, including in Virginia, Oregon, California, and Michigan. (Washington state separately issued a regulation allowing enforcement of public health orders under its worker safety standards.) These developments are described below.
With the upcoming change in administration and Biden’s stated focus of aggressively combating the coronavirus pandemic in the first 100 days, it is increasingly likely that an OSHA COVID-19 rulemaking is be on the horizon. To date, OSHA has declined to promulgate COVID-19 restrictions. However, since March OSHA has received numerous employee complaints regarding COVID-19 exposure and pressure from lawmakers and union groups to implement protective requirements. In further support of a potential rulemaking being developed sooner rather than later, the Biden team announced that David Michaels, head of OSHA during President Obama’s administration and known for his development of expansive worker safety policies, is included on Biden’s COVID-19 task force.
Virginia issues permanent standard and reporting guidance
The Virginia Department of Labor and Industry (“VOSH”) issued its Emergency Temporary Standard (“ETS”) on July 27, 2020 as the first state to do so and is currently readying a permanent version of the standard. An initial draft of VOSH’s Proposed Permanent Standard was issued the same day as and was identical to the ETS. On December 10, 2020, VOSH issued a revised version of the Proposed Permanent Standard and is accepting comments through an online public forum through January 9, 2021. The revisions include:
- including a statement that enforcement action will not be brought against employers for failure to provide personal protective equipment (“PPE”) if it is not readily available on commercially reasonable terms,
- removing the requirement to report single cases to the Virginia Department of Health and instead including a requirement to report outbreaks of two or more cases,
- clarifying that face shields are not a substitute for other face coverings,
- adding and clarifying various definitions,
- correcting consistencies with the Centers for Disease Control (“CDC”) guidance,
- changing the return to work requirements to be more prescriptive, and
- revising the ventilation requirements for high or very high exposure risk employers.
Consistent with one of the changes above, on December 8, 2020, VOSH also issued updated guidance to employers that it is no longer requiring that the Virginia Department of Health be notified of individual cases of COVID-19. However, after the initial report of an “outbreak” (two or more cases), employers must continue to report all cases to VDH until the local health department notifies the business that the outbreak has been closed.
Cal/OSHA issues updated rule guidance and begins stakeholder meetings
California’s emergency COVID-19 rule was approved by the Office of Administrative Law on the evening of November 20, 2020, and became effective immediately. There were no substantive changes to the draft requirements that had been published only weeks earlier and were rapidly approved by the standards board, which we previously alerted here. Since then, Cal/OSHA has since released FAQs on the new emergency rule, which includes a model plan for use by California employers. Additionally, Cal/OSHA announced that it is convening a stakeholder meeting on December 18, 2020, at 12:00 p.m., to receive input on the emergency rule, to explain key provisions of the regulations to the public, and to establish a focused agenda for a future Advisory Committee meeting to consider amendments to the regulations.
Oregon OSHA offers online training
Oregon OSHA’s temporary rule became effective on November 16, 2020, with phased implementation dates for certain requirements. In response to difficulties some employers have expressed with meeting the requirements, Oregon OSHA has recently launched a free online course to address the employer COVID-19 training requirements. This is the latest in an ongoing roll out of resources to help Oregon employers comply with the rule. Other resources, including template policies and plans and required posters that have been provided by Oregon OSHA are available here.