COVID-19 Workplace Standards Update: State OSHA Agencies Continue Development of Regulations to Protect Workers During the Pandemic

An increasing number of U.S. States are developing workplace health and safety standards requiring employers to implement specific COVID-19 workplace protections and controls to safeguard workers during the pandemic.

Here’s a round-up of recent state COVID-19 regulatory activity to help you understand your requirements, maintain compliance and protect your most valuable assets…your workers.

Virginia

In July 2020, the Commonwealth of Virginia became the first US state to adopt an occupational safety and health standard for COVID-19 protective measures, which was administered by the Virginia Department of Labor and Industry’s Occupational Safety and Health Program (VOSH). This “emergency temporary standard” was to remain in place until the Commonwealth’s COVID-related state of emergency expired, or until the state issued a permanent standard.

The state has now issued a proposed permanent standard, with an effective date of no later than January 27, 2021. The draft standard, like the emergency standard, applies to all employers in the Commonwealth covered under VOSH jurisdiction, which includes most private employers, as well as all state and local employees.

The proposed permanent standard continues requirements established within the temporary standard. According to the standard, all covered employers must:

• Conduct an assessment of the workplace for “hazards and job tasks that can potentially expose employees to … COVID-19” and “classify each job task as ‘very high,’ ‘high,’ ‘medium,’ or ‘lower’ risk levels of exposure” as defined by federal OSHA’s guidelines
• Develop and implement policies and procedures for employees to report their experience of symptoms consistent with COVID-19 when no alternative diagnosis has been made (e.g., a positive test for influenza)
• Prohibit employees or other persons known or suspected to be infected with COVID-19 from reporting to or remaining at work until cleared for return to work through a symptom-based or test-based strategy
• Establish a system to receive positive COVID-19 test reports from employees, subcontractors, contract employees and temporary employees and notify certain individuals of the positive tests
• Notify the Virginia Department of Health within 24 hours of discovering a COVID-19 positive case
• Notify the Virginia Department of Labor and Industry within 24 hours of the discovery of three or more employees present at work “within a 14-day period testing positive for [COVID-19] during that 14-day time period”
• Ensure that employees observe social distancing (i.e., staying at least six feet from other persons or separated by a permanent, solid, floor-to-ceiling wall) while on the job and during paid breaks on the employer’s property
• Comply with “mandatory requirements of any applicable Virginia executive order or order of public health emergency”
• Provide appropriate respirators and personal protective equipment (PPE) to employees when social distancing is not feasible given the nature of the employee’s job

There are additional requirements within the standard for some employers based on whether they are in “medium,” “high” or “very high” risk levels. These additional requirements include conducting a PPE assessment verified by written certification, ensuring air handling systems are effective for reducing exposure to COVID-19, and implementing administrative and work practice controls. Employers with 11 or more employees at the “medium” risk level and all employers in the “high” and “very high” levels must develop and maintain written Infectious Disease Preparedness and Response Plans and provide training to their workers on the practices.

Michigan

In April 2020, Governor Gretchen Whitmer of Michigan began issuing a series of executive orders establishing protective measures against COVID-19, basing her authority to do so on the Emergency Powers of the Governor Act of 1945. But on October 2, 2020, the Michigan Supreme Court issued an opinion invalidating those orders, finding them to represent an unconstitutional delegation of power by the legislative branch to the administrative branch. This decision nullified over 100 executive orders issued by Whitmer between April and October.

Following this decision, the Michigan Occupational Safety and Health Administration (MIOSHA) issued emergency rules pursuant to Section 48 of Michigan’s Administrative Procedures Act of 1969, which  allows an agency to adopt an emergency rule without following notice and participation procedures if it finds “that preservation of the public health, safety, or welfare requires promulgation of an emergency rule.” The purpose of the emergency rules is to codify protective measures that had been present in the recently invalidated executive orders.

The rules contain provisions common to all employers covered by Michigan’s Occupational Health and Safety Act, including requirements to:

• Conduct job hazard assessments and develop and maintain COVID-19 preparedness and response plans
• Adopt basic infection prevention measures, as specified, for all employees
• Conduct a daily entry screening for all employees or contractors entering the workplace, and outlines minimum requirements for such screenings, as well as reporting requirements when the employer learns of an employee, visitor, or customer with a known case of COVID-19
• Designate one or more COVID-19 safety coordinators, and ensure that the coordinators are present at that site at all times employees are present
• Implement social distancing and face covering requirements, such as providing non-medical grade face coverings to employees at no cost.
• Provide employees with the types of PPE necessary and appropriate to the exposure risk associated with the job
• Provide employees with on COVID-19 and outlines the elements required to be covered in the training, including ways to avoid exposure
• Maintain records of COVID-19 training, screening, and required notifications. The rule specifically requires that employers maintain a record of screening for each employee or visitor entering the workplace, and maintain the records for one year from the time of generation.

In addition, the rule contains more specific requirements for a variety of industries and worksites, including construction; manufacturing retail, libraries and museums; restaurants and bars, health care, in-home services, personal-care services, public accommodations, sports and exercise facilities, meat and poultry processing, and casinos.

Oregon

Oregon OSHA has also recently implemented a Temporary Rule to address the risks of COVID-19 to workers in the state. The rule’s provisions went into effect November 16, 2020 and will remain in effect until May 4, 2021, unless revised or repealed before that date.

Below, we’ve summarized the key requirements of the Temporary Rule to help set businesses in Oregon on the path to compliance and optimum workplace safety.

Basic Requirements for Employers

The rule affects all workers and workplaces in Oregon OSHA’s jurisdiction, and imposes several mandatory requirements, which include:

• Physical distancing – Employers must ensure that work activities and workflow are designed to maintain a distance of at least 6 feet between workers unless the employer determines and can demonstrate that physical distancing is not feasible for certain activities.
• Mask, face covering, or face shield requirements – Employers must ensure that all individuals at the workplace or other premises subject to the employer’s control wear a mask, face covering, or face shield in accordance with the requirements of the Oregon Health Authority’s Statewide Mask, Face Covering, Face Shield Guidance. Employers must provide face coverings for employees, and maintain the option to allow workers to provide their own.
• Cleaning and sanitation – The employer must regularly clean or sanitize all common areas, shared equipment, and high-touch surfaces as defined by this rule that are under its control and that are used by employees or the public. Cleaning and sanitation must be performed:
  • At least once every 24 hours if the workplace is occupied less than 12 hours a day; or
  • At least every 8 hours while in use, if the workplace is occupied more than 12 hours a day.
  • Employers must provide employees with the supplies (soap and water) and the reasonable time necessary to clean or sanitize more frequently than would otherwise be required if the worker chooses to do so.
• Posting requirements – The “COVID-19 Hazards Poster,” must be posted in a conspicuous manner in a central location where workers can be expected to see it. Employees working remotely must be provided with a copy of the COVID-19 Hazards Poster.
• Ventilation requirements – No later than January 6, 2021, the employer must optimize the amount of outside air circulated through its existing heating, ventilation, and air conditioning (HVAC) system(s), to the extent the system can do so when operating as designed, whenever there are employees in the workplace and the outdoor air quality index remains at either “good” or “moderate” levels.
• Exposure risk assessment – No later than December 7, 2020, all employers must conduct a COVID-19 exposure risk assessment, without regard to the use of personal protective equipment, masks, face coverings, or face shields. There are a number of specific considerations that must be incorporated into employers’ exposure risk assessments. These considerations are listed in the Rule at Section (3)(g)(A-C)
• Infection control plan – No later than December 7, 2020, all employers must establish and implement an infection control plan based on the risks identified in subsection (3)(g). The infection control plan must specify the elements listed in Section (3)(h)(A-B)
• Employee information and training – No later than December 21, 2020, employers must provide workers with information and training regarding COVID-19. Employee information and training must address the topics and controls specified at Section (3)(i)(A-J)
• COVID-19 infection notification process – Excluding settings where patients are hospitalized on the basis that they are known or suspected to be infected with COVID-19, the employer must establish a process to notify exposed employees. Notification procedures must include the elements listed in Section (3)(j)(A-B)
• COVID-19 testing for workers – The employer must cooperate by making its employees and appropriate space available at no cost to the workers whenever a local public health agency or Oregon Health Authority indicate that COVID-19 diagnostic testing within the workplace is necessary.
• Medical removal – Whenever the Oregon Health Authority, local public health agency, or medical provider recommends an employee be restricted from work due to quarantine or isolation for COVID-19, such as through identification during contact tracing activities, the affected worker(s) must be directed to isolate at home and away from other non-quarantined individuals.

Workplaces at Exceptional Risk

Oregon’s COVID-19 Rule creates additional requirements for “workplaces at exceptional risk” who must implement supplemental controls to protect workers who perform certain job duties specifically listed in the Rule, including:

• Direct patient care;
• Environmental decontamination services in a healthcare setting;
• Aerosol-generating healthcare or postmortem procedures;
• Direct client service in residential care or assisted living facilities;
• Emergency first responder activities;
• Personal care activities that involve very close contact with an individual, such as toileting or bathing; or
• Handling, packaging, cleaning, processing, or transporting human remains or human tissue specimens or laboratory cultures collected from an individual known or suspected to be infected with COVID-19.

The requirements for these workplaces are listed at Section (4) of the Rule.

There are also a number of important appendices to the Rule which likely affect your workplace. We recommend that ALL employers in Oregon review the Rule to evaluate your applicability and determine how the new requirements impact your business.

Oregon OSHA has also published a variety of helpful guidance documents that can help you better understand and meet your requirements under the Temporary Rule.

Click Here to Access Oregon OSHA’s COVID-19 Information Page

California

On November 19, 2020, the California Occupational Safety and Health Standards Board voted and approved an emergency COVID-19 regulation governing employers and workplaces. That regulation went into effect on November 30, 2020.

The emergency standards will remain in effect for 180 days unless renewed, withdrawn or replaced by a permanent standard. However, reasonably safe to assume that Cal/OSHA will move forward with adopting a permanent COVID-19 standard in the coming months.

California’s Rule does not apply to workplaces already covered under Cal/OSHA’s §5199 Aerosol Transmissible Diseases Standard, nor does it apply to places of employment with one employee who does not have contact with other persons, or employees who work from home.

For covered employers, the following requirements apply:

• Written COVID-19 Prevention Program – Employers shall establish, implement and maintain an effective, written COVID-19 Prevention Program. The written elements of a COVID-19 Prevention Program shall include:
  • Communication systems to ensure employees can readily report, without fear of reprisal, COVID-19 symptoms, possible COVID-19 exposures, and possible COVID-19 hazards in the workplace.
  • Procedures or policies for accommodating employees with medical or other conditions that put them at increased risk of severe COVID-19 illness.
  • Information about access to COVID-19 testing
  • Information about COVID-19 hazards and the employer’s COVID-19 policies and procedures
• Identification and evaluation of COVID-19 hazards – Employers must thoroughly assess the workplace for COVID-19 exposure hazards. This assessment must include:
  • Participation of employees or their representatives
  • A process for screening employees and responding to employees who show COVID-19 symptoms (e.g. medical screenings & questionnaires)
  • Policies and procedures to respond to (i.e. isolate and/or remove) individuals who exhibit symptoms of COVID-19, or who have been identified as a potential risk of transmission
  • Identification of areas, activities, processes, equipment, and materials that could potentially expose employees to COVID-19 hazards
  • Methods for maximizing quantity of outdoor airflow into indoor workplaces, and increasing filtration efficiency of indoor air to the highest level compatible
  • Processes for evaluating effectiveness of existing COVID-19 prevention controls at the workplace and the need for different or additional controls
  • Periodic inspections as needed to identify potential COVID-19 exposure risks, and to ensure compliance with Cal/OSHA requirements and employer prevention policies
• Investigation and response to COVID-19 cases – Employers must establish procedures to investigate positive cases of COVID-19 cases in the workplace, including verification of case status, receiving test results, and identification and recording of cases. These procedures must include:
  • Recording time & date when COVID-19 symptoms are first reported, cases/positive COVID-19 diagnoses are identified, and infected workers are last present in the workplace
  • Identification of who may have had a COVID-19 exposure, and under what circumstances and in which locations exposure may have occurred
  • Notification to all workers present in the workplace who may have been exposed, within one (1) business day
  • Offering no-cost testing during work hours for employees who may have been exposed in the workplace
  • Investigating whether workplace conditions may have contributed to COVID-19 exposure, and how those exposure hazards can be reduced or eliminated
• Medical records and personally identifiable information (PII) – Employers must ensure employee medical records and other PII are kept CONFIDENTIAL unless the employee provides written consent to release.
• Control of COVID-19 Hazards – Employers must implement policies and procedures for correcting unsafe or unhealthy conditions, work practices, policies and procedures in a timely manner based on the severity of the hazard. This includes, but is not limited to, corrective actions and controls identified through the required COVID-19 workplace hazard evaluation.
• Training and instruction – Employers must provide training and instruction to all workers which includes:
  • The employer’s COVID-19 policies and procedures for protecting employees from COVID-19 hazards
  • Information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws
  • Modes of COVID-19 transmission
  • Physical distancing practices
  • Proper use of additional preventive methods (e.g. masks, personal hygiene, etc.)
  • COVID-19 symptoms, and procedures for self-isolation and testing when a worker experiences them
• Physical distancing requirements – Employers must ensure all workers are separated by a distance of at least six (6) feet during performance of work duties, except during momentary periods when workers are moving throughout the workplace, or where the employer can demonstrate that physical distancing is not feasible.
• Face coverings – Employers must provide face coverings (i.e. masks) when employees are indoors, and when outdoors within six feet of others. Employers must ensure face coverings are worn and in clean, undamaged condition. Face shields DO NOT qualify under the Cal/OSHA definition of face coverings. Specific exemptions from this requirement are listed at subsection (c)(7)(A-F) of the Rule
• Engineering and administrative controls, and personal protective equipment (PPE) – Employers must install or implement the following hazard controls as dictated below:
  • At fixed workstations where physical distancing is not possible, employers must install cleanable solid partitions to reduce aerosol transmission
  • For buildings with mechanical or natural ventilation, or both, employers shall maximize the quantity of outside air provided to the extent feasible
  • Establish cleaning and disinfecting procedures, with emphasis on high-touch surfaces and high-traffic areas of the workplace. Employees must be notified of cleaning and disinfection protocols
  • Prohibiting the sharing of PPE and limiting to the greatest extent possible, sharing of other personal contact items such as phones, headsets, desks, keyboards, writing materials, instruments and tools. Sharing of vehicles (e.g. fleet vehicles) should be minimized, and surfaces such as steering wheels, door handles, seatbelt buckles, armrests, dash controls, etc. shall be disinfected between users
  • Installing additional handwashing facilities and providing hand sanitizer to accommodate increased use, as necessary
  • Evaluate the need for PPE including gloves, eye protection, face shields, respirators and other respiratory protection with respect to other hazard identification and control requirements of this Rule.
• Reporting, recordkeeping and access – Employers must:
  • Report information about confirmed COVID-19 cases to local health departments as required by law
  • Report any COVID-19-related serious illnesses or death
  • Maintain records of the steps taken to implement the written COVID-19 Prevention Program as required in this Rule
  • Make available the written COVID-19 Prevention Program to employees, authorized employee representatives, and to representatives of Cal/OSHA immediately upon request
  • Record and track all COVID-19 cases including employee name, contact info, job role/position, the location where employee worked, date of last presence in the workplace, and date of positive COVID-19 test
• Exclusion of COVID-19 cases – To limit transmission of COVID-19 in the workplace, employers shall Ensure COVID-19 cases are removed from the workplace for 14 days after last known exposure, and the return-to-work criteria in subsection (c)(11) are met. Employees removed from work for COVID-19 exposure must receive earnings, seniority, and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job.

So far, we have covered the basic requirements of the Cal/OSHA Rule. There are several additional requirements stemming from the aforementioned obligations which may be triggered in cases of multiple workplace COVID-19 cases (i.e. outbreak), for workplaces where there exists employer-provided worker housing or transportation, or where local or state health officers or representatives of Cal/OSHA deem necessary. These may impose additional testing, investigation, cleaning and disinfection, exposure control, recordkeeping and reporting, and worker isolation requirements on employers. We advise reviewing the entire Rule to fully understand your obligations in these scenarios.