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Mary M. Balaster

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The U.S. Chemical Safety Board (“CSB”), the federal agency created under the Clean Air Act Amendments of 1990 and charged with investigating industrial chemical releases, has announced that it will draw up a new board following a recommendation to do so by the Environmental Protection Agency (“EPA”) Office of the Inspector General (“OIG”). The CSB…

California continues to move forward with new proposals for regulation and enforcement of workplace hazards associated with COVID-19.  As the Division of Occupational Safety and Health (“Cal/OSHA”) continues to develop a draft permanent standard to address COVID-19 hazards in cooperation with an advisory committee of various stakeholder groups, state legislators have proposed a senate bill to increase enforcement of “willful” violations on a per-employee basis.

Emergency temporary standard and permanent rule

Earlier this month, Cal/OSHA convened an advisory committee to provide input on possible changes to the COVID-19 Emergency Temporary Standard (“ETS”).  Over the course of three days of public meetings, the advisory committee discussed and debated potential clarifications as well as broadening or narrowing the scope of certain requirements.  Although no decisions were made during the meetings, the following were areas of focus where we can expect to see some changes to the ETS:Continue Reading Cal/OSHA moves forward with development of permanent COVID-19 standard while legislature considers bill to increase enforcement

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,…

Just one week after the California Division of Occupational Safety and Health (“Cal/OSHA”) made its proposed COVID-19 Emergency Regulation (“COVID-19 Rule”) available, the Occupational Safety and Health Standards Board (“OSHSB”) responsible for approving such regulations unanimously passed it without revisions.  Cal/OSHA is the fourth state OSHA plan to promulgate a rule to address COVID-19, following Virginia, Oregon, and Michigan.  The Washington Department of Labor & Industries has made violations of emergency proclamations subject to workplace safety citations.

In response to OSHSB’s September granting of a labor advocacy group’s petition seeking COVID-19 regulation of employers, on November 11, 2020 Cal/OSHA issued a 21-page draft COVID-19 Rule along with a notice of emergency.  Although employers and workers in California were not provided the ordinary months of time usually associated with rulemakings to review and digest the draft COVID-19 Rule, participation in the OSHSB November 19, 2020 public meeting was significant.  With over 500 virtual participants, not including those on the phone or live streaming, and 150 verbal commenters, the public meeting lasted over ten (10) hours.  The Board Chair estimated that the meeting had four times the usual number of attendees, and technical challenges occurred throughout the discussion.  Commentary was wide ranging with employee and industry interests equally represented.  Individual workers and labor groups generally urged OSHSB to adopt the ETS immediately and to consider the addition of future anti-retaliation provisions, while employer and industry representatives expressed frustration with the lack of stakeholder input or engagement, questioned whether Cal/OSHA has the authority to regulate wage and leave issues, pointed to the effectiveness of existing orders, and identified implementation challenges and inconsistencies with other California laws regulating COVID-19 response that have yet to become effective (i.e., AB 685).Continue Reading California rapidly approves sweeping Cal/OSHA emergency COVID-19 regulation

Individual states’ safety agencies have undertaken the development of their own workplace safety rules in response to potential hazards from COVID-19 as the Occupational Safety and Health Administration (OSHA) has declined to promulgate specific standards and instead relied on existing regulations and guidance.  Specifically, Virginia recently published a temporary emergency COVID-19 rule, while Oregon has been holding stakeholder meetings to develop its own, similar emergency standard.  Washington, meanwhile, has created a trigger for direct enforceability of state-issued restrictions and prohibitions on employer operations by its workplace safety agency.
Continue Reading Racing toward a standard: How Virginia, Oregon, and Washington are moving to regulate workplace hazards of COVID-19

On July 9, 2020, the Fifth Circuit held that the mechanical integrity requirements of the Occupational Safety and Health Administration (OSHA) process safety management (PSM) standard for highly hazardous chemicals applies to emergency stops that would only be activated after a release. The case—Sanderson Farms v. Occupational Safety and Health Review Commission (OSHRC)—centered on the application of the PSM standard’s mechanical integrity element, 29 C.F.R. § 1910.119(j), specifically (1) whether that element applies to emergency shutdown equipment, and (2) the requirements to inspect and test such equipment. Petitioner, Sanderson Farms, Inc. (Sanderson), argued that the mechanical integrity requirements did not apply to emergency stops because they only activate after a release and are therefore responding to another component’s mechanical failure.
Continue Reading Fifth Circuit upholds OSHA’s interpretation of PSM standard

On May 18, the AFL-CIO filed a petition for a writ of mandamus in the U.S. Court of Appeals for the District of Columbia Circuit to compel the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard (ETS) protecting U.S. workers against COVID-19.  However, on June 11, the U.S. Court of Appeals…

On May 18, 2020, the American Federation of Labor and Congress of Industrial Organizations (the AFL-CIO) filed a petition against the U.S. Occupational Safety and Health Administration (OSHA) demanding that the agency issue an emergency temporary standard (ETS) to address the COVID-19 pandemic within 30 days. The case is In re: Am. Fed’n of Labor…

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