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Throughout the COVID-19 pandemic, the Centers for Disease Control and Prevention has issued constantly changing guidance for employers that many view as complex, confusing, and impractical. In its perplexing web of guidelines, the CDC recommends that companies take several actions to protect workers from contracting COVID-19, like self-isolating sick employees, quarantining exposed employees, screening employees for symptoms prior to work, and installing partitions to protect public-facing employees.
Given their complexity, some of these directives are often not fully understood by companies. Further complicating matters, many of the recommendations have never been previously undertaken by employers, leading to misapplication. Worst of all, other guidelines are simply not feasible for some employers, leaving them with the tough decision of not following the CDC directive in order to stay in business.
Unfortunately, ignoring or misunderstanding these confusing guidelines, like the four commonly misinterpreted guidance listed below, could lead to legal risks for your company.
1. Returning Exposed Employees To Work Too Early After A Negative Test
Of the innumerable companies that have sought our assistance during the COVID-19 pandemic, the most common misunderstanding of CDC guidance we see involves returning to work employees who have been directly exposed to COVID-19 too early following a negative test. Employers falling under the CDC’s general business guidance (not critical infrastructure employers) should quarantine employees for 14 days since their last direct exposure to a confirmed or suspected COVID-19 case, defined as being within 6 feet of the infected person, for 15 minutes or more, within the 48 hours prior to the sick individual showing symptoms, until the infected person is released from self-isolation (“6-15-48”).
Critically, the 14-day quarantine period cannot be cut short by a negative test due to the lengthy incubation period of COVID-19. This is an often-misunderstood CDC guideline, which even the agency has recognized:
Note that recommendations for discontinuing isolation in persons known to be infected with SARS-CoV-2 could, in some circumstances, appear to conflict with recommendations on when to discontinue quarantine for persons known to have been exposed to SARS-CoV-2. CDC recommends 14 days of quarantine after exposure based on the time it takes to develop illness if infected. Thus, it is possible that a person known to be infected could leave isolation earlier than a person who is quarantined because of the possibility they are infected.
Thus, an exposed employee cannot return to work during the 14-day quarantine period following a negative COVID-19 test received on, for example, day three, seven, or 12 of that period. Returning exposed employees too early due to a negative test could lead to preventable COVID-19 infections if co-workers are exposed to individuals who should be quarantined and develop the virus after a negative test.
2. Miscalculating The Appropriate Quarantine Period For Those Exposed To An Infected Household Member
Along those same lines, employers often misunderstand CDC guidance when calculating the length of the quarantine period for a worker who has been exposed to an infected spouse or household member. The key here is that the 14-day quarantine period does not begin until the last day the employee was directly exposed, using the 6-15-48 analysis above, to the spouse or household member prior to the infected person being released from self-isolation. Thus, if the employee is directly exposed to the spouse or household member on days one through 10, the quarantine period does not begin until day 10.
Accordingly, the worker may ultimately miss 24 days of work, instead of 14, if directly exposed to the spouse or household member every day until the spouse is released from self-isolation. The CDC addresses this confusing guidance here, noting that the exposed employee should stay home until 14 days have elapsed after the last exposure.
3. Not Notifying Employees Of A Confirmed COVID-19 Case In Your Workplace
The Fisher Phillips COVID-19 litigation tracker has been following closely the number of lawsuits filed with COVID-19-related claims. The prevalence of claims relating to an employer’s failure to notify employees of a confirmed case of COVID-19 in the workplace is a troubling trend. Throughout the pandemic, transparency by employers has been a critical tool in maintaining positive employee morale. Failure to do so can lead to negative consequences, including not only lawsuits, but Occupational Safety and Health Administration (OSHA) complaints and employees refusing to work, as well.
Although it may not be clear to some employers, the CDC recommends not only informing directly exposed employees (6-15-48) of a confirmed COVID-19 case in the workplace, but also to inform other “employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA).” The CDC defines “possible exposure” to COVID-19 as those who do not meet the 6-15-48 parameters. Thus, when a confirmed COVID-19 case occurs in your workplace, remember to inform those employees who worked near the infected worker (e.g., the same hallway, area, or corridor), even though they weren’t directly exposed.
4. Incorrectly Believing That Wearing Face Coverings Trumps The 6-15-48 Analysis
When analyzing whether an employee has been exposed to an infected co-worker, employers often misconstrue the impact of wearing face coverings to prevent the spread of the virus. Although the CDC recommends wearing masks to slow the spread of COVID-19, whether employees are wearing masks while directly exposed (6-15-48) to an infected person does not change that analysis. The determination of whether someone should be quarantined for 14 days does not change if the individuals at issue are wearing masks, another point of confusion specifically clarified by the CDC:
Note: This is irrespective of whether the person with COVID-19 or the contact was wearing a mask or whether the contact was wearing respiratory personal protective equipment (PPE).
To ensure the safety of your workers, remember to quarantine all employees who meet the 6-15-48 analysis, even if they were wearing a face covering while exposed.
Legal Risks For Not Following CDC Guidelines
Although CDC guidance is not a law or regulation, such guidelines can be construed by OSHA and the courts as the legal standard that defines what actions a company should take to protect its workers during this unprecedented time. In fact, the Assistant Secretary for the U.S. Department of Labor has already indicated that OSHA could rely upon the general duty clause, which the agency can enforce in the absence of a standard on point, to enforce the CDC’s guidelines for employers on COVID-19.
If your company fails to follow a CDC guideline, it could receive a citation under OSHA’s general duty clause and, if classified as willful (e.g., reckless disregard for, or deliberate indifference towards, employee safety), the maximum penalty for each citation would be $134,937. Keep in mind that state OSHA plans, not regulated by the federal government, can adopt emergency COVID-19 regulations, which have the same impact as any other OSHA regulation, and enforce those against employers who fail to comply with them. Virginia recently became the first state adopt such a regulation, which includes notification requirements that vary from those of the CDC.
Although it is an evolving area of the law, claimants’ counsel will argue to courts that the violation of a CDC guideline is evidence of negligence, willfulness, or intent on behalf of the employer. Plaintiffs’ counsel will assert that the CDC guideline has established the level of care or duty owed to an employee or other claimant, and that the duty was breached by the company.
This argument will be made regardless of the jurisdiction, venue, or type of claim, including workers’ compensation claims, claims filed directly by an employee seeking recovery above and beyond workers’ compensation benefits, and those filed by third-parties (e.g. visitors, employee spouses) against companies. To protect your company from such claims, remember to follow these steps to minimize your exposure.
With employees returning to work and companies reopening their doors to customers, employers are looking for ways to limit liability related to potential COVID-19 cases contracted in the workplace. To do so, many are considering waivers for not only their employees, but also for customers. Such waivers, however, are somewhat limited in their effectiveness and employers should consider the pros and cons before attempting to implement them. You may also want to consider an alternate strategy that may offer you some of the assurances you seek without many of the negatives associated with waivers.
No waiver or other attempt at limiting liability can replace the need to maintain a safe workplace. You should start by ensuring you are in strict compliance with local orders, state regulations, and guidance from government agencies like the Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), Equal Employment Opportunity Commission (EEOC), and local health authorities.
What Are Waivers?
The term waiver has more than one meaning. In this context, employers may look to a waiver and releases of liability agreement consisting of a series of contractual provisions to mitigate certain risks of liability. Such an agreement not only includes a waiver clause, but also includes additional protective provisions like clauses for assumption of risks, covenants not to sue, and identification. If enforceable, they would eliminate liability for the risks discussed within.
Waiver agreements between employers and employees are traditionally disfavored due to the unequal bargaining power between them, as employers typically have superior bargaining power. In most states, such waivers do not apply to gross negligence or willful, intentional, or wanton conduct, as employers cannot waive such liability.
Employee waivers are even further limited due to workers’ compensation statutes, where states generally require medical expenses, lost wages, and rehabilitation costs be provided to employees injured in the course and scope of their employment. For work-related injuries, employees generally cannot waive their worker’s compensation claims. Although it may be difficult for employees to prove they contracted COVID-19 at work, some states (like California) have created a rebuttable presumption that workers who contract COVID-19 are presumed to have a workplace injury covered by the workers’ compensation system.
Waiver agreements with employees do not protect employers from OSHA complaints or enforcement action when a workplace is dangerous. However, the president recently signed an executive order directing federal agencies, like OSHA, to make exceptions for employers who attempt in good-faith to follow agency regulations during the COVID-19 pandemic, which may ease some concerns about agency actions.
Practically speaking, waivers may discourage employees from returning to work and hinder restarting operations as a result. They may also result in negative reactions and publicity concerns, as has occurred in several instances across the country already.
But due to the COVID-19 pandemic, it remains unclear whether courts and states will allow employers to enforce waiver agreements in this unprecedented time. Regardless of whether you decide to institute COVID-19 waivers to your returning workforce, you should develop return-to-work plans including steps to train employees on any exposure danger, how to eliminate those dangers, and best practices to stay safe.
Waivers for your customers may limit your company’s liability associated with COVID-19, but they may also hurt your business. Employers must carefully decide if the benefits of liability waivers for customers outweigh their drawbacks for their business. Some positives aspects of customer waivers include that they:
However, customer waivers have downsides too, as they:
Evaluating how a waiver will affect your business requires you to look at your industry, business, and geographic area, as well as how your customers or the public will react. Customers generally do not expect to sign a waiver before shopping or dining in a restaurant. But waivers are common in potentially dangerous activities, like extreme sports, where adding a COVID-19 clause may go unnoticed. Overall, customer waivers could impact businesses in more ways than simply mitigating their liability, so businesses must first consider potential unintended consequences.
Other Strategies: Notices And Questionnaires
Alternate routes to limiting liability may be more beneficial than waivers for many businesses. Businesses may avoid the potentially ominous effect of forcing customers to sign waivers by using questionnaires or notices.
A questionnaire asks entrants to the premises questions about whether they have any of the symptoms of COVID-19 or were exposed to it. A questionnaire could also communicate the employer’s reasonable actions to comply with government guidelines for sanitation, social distancing, mask wearing, and other efforts that the employer uses to keep their guests and employees safe. This strategy could allow the employer to show it took affirmative steps to exclude sick people from its workplace.
But businesses still need to consider how their customers will react to such a questionnaire. Implementing a questionnaire may deter some customers who find it an impediment or feel it invades their privacy, while others may feel safer coming to your business because you screen everyone who enters.
Notices provide a more streamlined approach, communicating the same information as a questionnaire about the business’ steps to keep its premises safe, without requiring the individual to physically sign away any perceived rights. Communicating the rules and restrictions without asking questions or for a signature, notices require fewer steps from employers and customers than waivers and questionnaires.
Either approach requires employers to provide a handout or post signage at all entrances to the building that broadcast safety information and reasonable actions and prohibit sick or exposed persons from entering the building. These strategies allow people to feel safer and accept the risks when they enter the workplace.
Choosing A Strategy
Waivers have limited but potentially valuable benefits if enforceable. Employers should weigh those benefits against the potential impact on their business and carefully consider all their options, such as questionnaires or notices that communicate information and allow guests to assume risk.
No strategy can eliminate a company’s obligation to take reasonable actions to protect its employees and customers. The CDC, OSHA, and state or local authorities publish guidelines and guidance that businesses should follow. Demonstrating you followed such guidance will be the best proof your company acted reasonably in responding to COVID-19 risks.
Whether an employer institutes employee or customer waivers, they should develop written plans to reopen that include training for their employees on these guidelines and that document their efforts to comply. Ignoring these guidelines will make workplaces less safe and potentially expose employers to civil suits and government enforcement actions.
What Should Employers Do?
As you begin the process of reopening, you should familiarize yourself with several alerts from a national labor law firm: 5 Steps To Reopen Your Workplace, According To CDC’s Latest Guidance. You should also keep handy the 4-Step Plan For Handling Confirmed COVID-19 Cases When Your Business Reopens in the event you learn of a positive case at your workplace. For a more thorough analysis of the many issues you may encounter from a labor and employment perspective, we recommend you review our FP BEYOND THE CURVE: Post-Pandemic Back-To-Business FAQs For Employers and our FP Resource Center For Employers.
As businesses gradually begin to ramp up and bring employees back to work, you may soon need to figure out what to do when employees who are receiving unemployment benefits refuse to return to work. After all, they may be reluctant or disincentivized to return to the job, especially if they can turn down your offer and still collect robust unemployment benefits.
As with all unemployment issues, the solution may differ from state to state – and employee to employee. But while the answers will vary depending on your workplace and individual employee circumstances, you can take steps now to put yourself in the best position to respond to such situations. We recommend an individualized 10-step plan of action to minimize your return-to-work headaches.
With the enactment of the CARES Act, employees qualifying for unemployment benefits are in line to receive an additional $600 benefit payment over and above the regular unemployment payment. This benefit is courtesy of the federal government program and continues through July 31, 2020. In many situations, however, the additional $600 benefit has created a disincentive for employees to return to work. This phenomenon has caused a dilemma for many employers (and employees) as businesses start to reopen.
At the lower end of the economic scale, many workers are receiving more from unemployment than they would earn from their regular wages. However, to remain eligible for unemployment benefits in all but a few circumstances, individuals who have been placed on a temporary layoff related to the COVID-19 pandemic must return to work if called back. And since most state unemployment agencies require or request that you notify them when you call an employee receiving unemployment back to work, the agency will likely deny ongoing benefits unless the employee can demonstrate good cause for refusing the offer.
The determination as to what constitutes good cause for the job refusal, however, will be viewed in light of the COVID-19 pandemic and will be subject to agency review. The U.S. Department of Labor and many states have emphasized that an unreasonable fear over the risk of contracting the virus in the workplace is not enough to constitute good cause, and state agencies will likely deny unemployment claims if this is the only reason offered.
Several states, however, including Washington, Colorado, Alaska, and Texas, have already adopted rules outlining when an employee’s refusal to return to work may rise to the level of good cause. These rules generally protect unemployment benefits for “high risk” or “vulnerable” employees, such as workers over 65 or with underlying medical conditions.
For example, Texas Governor Abbott has directed the Texas Workforce Commission to continue providing benefits even when the employee refuses an offer of suitable employment where (1) the employee is 65 or older or at higher risk for getting very sick from COVID-19; (2) the employee has a household member at high risk; (3) the employee or a household member has been diagnosed with COVID-19 (and not recovered); (4) the employee is under quarantine due to close contact or exposure to COVID-19; or (5) the employee has child care responsibilities and the school or daycare is closed (and employee has no available alternatives).
Given the complicated issues created by the COVID-19 pandemic, you should be careful to consider the best approach for your workplace and employees. A thoughtful and transparent return-to-work process will help ensure employee safety and boost morale. Here is a 10-point plan you should implement to ensure a smooth return-to-work for your organization.
What Else Should Employers Do?
As you begin the process of reopening, you may want to familiarize yourself with several alerts courtesy of Fisher Phillips LLP :
Florida Governor Ron DeSantis just extended his Safer At Home Order for the State of Florida but announced his plan to gradually re-open the state pursuant to a new Order that will go into effect just after midnight (at 12:01 am) on the morning of May 4, 2020. The new Order initiates the first of three phases to re-open every county in Florida except for Miami-Dade, Broward and Palm Beach counties. Additionally, local governments in Florida will also be able to have more restrictive policies in place if they desire. What do Florida employers need to know?
Essential And Non-Essential Businesses Are Permitted To Operate Pursuant To CDC And OSHA Guidelines
The new Order permits all services and activities currently allowed under the previous Safer-at-Home Order. Any non-essential businesses that were not previously permitted to be open can reopen as long as they also follow CDC and OSHA guidelines. However, The Order contains the following industry specific restrictions:
Every business is required to continue to follow guidelines issued by the CDC and OSHA. These guidelines include:
The CDC also recommends that businesses only reopen after they have implemented safeguards for the ongoing monitoring of employees, including:
Senior Citizens And Individuals With Significant Underlying Medical Conditions
The Order strongly encourages individuals who are older than 65 and those with significant underlying medical conditions to stay at home. They should take all measures to limit the risk of exposure to COVID-19 such as wearing masks during face-to-face interactions. Additionally, the Order encourages individuals to avoid socializing in groups of more than 10.
Social Distancing And Other Guidelines
Additionally, all persons in Florida should practice social distancing, avoid nonessential travel, and adhere to guidelines from the CDC regarding isolation for 14 days following travel on a cruise or from any international destination and any area with significant presence of COVID-19. The Order also extends Governor DeSantis’ Orders regarding airport screening and isolation of individuals traveling to Florida. Notably, there is an exception for these orders for persons involved in military, emergency, health or infrastructure response or involved in commercial activity.
A violation of the Order is a second-degree misdemeanor which is punishable by imprisonment not to exceed 60 days, a fine not to exceed $500.00 or both.
What Does This Mean For Employers?
Employers with operations in Florida should review the CISA guidance and Miami-Dade County Emergency Order 07-20, and its amendments, to determine if they are deemed essential or non-essential.
Before reopening, you should have a thorough plan in place to establish a safe and healthy workplace and share that plan to provide employees peace of mind. You should also be prepared to address concerns from older employees and those with underlying significant health conditions regarding whether or not they must come in to work. You should also carefully assess the availability of telework for these employees.
As you begin the process of reopening, you should familiarize yourself with some useful info:
The Department of Labor’s Occupational Safety and Health Administration issued guidance for enforcing OSHA’s recordkeeping requirements for COVID-19 cases. OSHA recordkeeping requirements mandate covered employers record certain work-related injuries and illnesses on their OSHA 300 log.
According to the guidance, COVID-19 is a recordable illness, and must be recorded on an employer’s OSHA 300 log if:
Recognizing the difficulty in determining whether COVID-19 was contracted while on the job, OSHA will not enforce its recordkeeping requirements that would require employers in areas where there is ongoing community transmission to make work-relatedness determinations for COVID-19 cases, except where:
This waiver of enforcement does not apply to employers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting and law enforcement services), and correctional institutions in areas where there is ongoing community transmission. These employers must continue to make work-relatedness determinations.
This new guidance provides employers with one fewer issue to worry about in their response efforts to an employee with a confirmed case of COVID-19. Employers should continue to focus on minimizing the risk of transmission in the workplace.
There are now more than 46,000 confirmed cases across the globe, with the vast majority in mainland China, and 15 confirmed cases in the U.S. Many details about the virus are unknown, including its severity and how it spreads, leaving employers with many questions about how to appropriately respond.
New guidance is available for employers from the Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration (OSHA), and California’s Division of Occupational Safety and Health (Cal/OSHA).
On February 7, 2020, the CDC published Interim Guidance for Businesses and Employers to Plan and Respond to 2019 Novel Coronavirus (2019-nCoV), providing important information for non-healthcare employers to help prevent workplace exposures to COVID-19.
The CDC provides detailed steps for employers to take now. The CDC’s recommendations fall under six main areas:
1. Actively encourage sick employees to stay home. Employees with symptoms of acute respiratory illness should stay home and not come to work until they are fever-free and free from symptoms for at least 24 hours. The CDC encourages employers not to require employees who have an acute respiratory illness to present a doctor’s note to validate their illness or to return to work because the medical facilities may be overwhelmed. Although not legally required, employers should carefully consider whether this approach is appropriate in their workplaces.
2. Separate sick employees. Employees who appear to have acute respiratory illness symptoms (i.e., cough or shortness of breath) should be separated from other employees and sent home immediately.
3. Emphasize staying home when sick, respiratory etiquette, and hand hygiene by all employees. The CDC provides links to posters that encourage employees to stay home when sick, cough and sneeze etiquette, and hand hygiene and recommends that employers put posters at the entrance to the workplace and in other work areas. The CDC also encourages employers to provide tissues, no-touch receptacles, hand sanitizer, and instructions on handwashing and use of hand sanitizer.
4. Perform routine environmental cleaning. The CDC recommends routine cleaning of all frequently touched surfaces and that employers provide disposable wipes so that commonly used surfaces, such as doorknobs, can be wiped down by employees before each use. The CDC does not recommend any particular cleaning product or additional disinfection beyond routine cleaning at this time.
5. Advise employees to take certain steps before traveling. Everyone should check the CDC’s Traveler’s Health Notices for each country before traveling and not travel if they have symptoms of acute respiratory illness. Employers also should make sure that employees know what to do and who to contact if they become sick while traveling.
6. Additional Measures. The CDC recommends that employees who have a sick family member at home with COVID-19 “should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.”
The CDC has published an extensive guidance for conducting a risk assessment and provides associated recommendations in its Interim US Guidance for Risk Assessment and Public Health Management of Persons with Potential 2019 Novel Coronavirus (2019-nCoV) Exposure in Travel-associated or Community Settings.
Employers who are concerned that an employee may have been exposed to the virus should consult the CDC’s risk assessment. This guidance addresses various potential exposure scenarios and identifies four exposure risk categories: (1) High Risk; (2) Medium Risk; (3) Low Risk; and (4) No Identifiable Risk. Based on these exposure risk categories, the CDC provides recommendations for exposure risk management, including appropriate restrictions on public activities (including workplaces), medical evaluation, and travel restrictions depending on whether the individual has symptoms of COVID-19. The CDC has provided separate guidance for healthcare settings.
Employees who live in the same household as someone with confirmed COVID-19, for example, may fall under “High Risk” or “Medium Risk,” depending on the circumstances. Individuals who are “High Risk” but have no symptoms should be quarantined (voluntary or under public health orders) for 14 days. For employees who fall under the “Medium Risk” category, as long as they have no symptoms, the CDC generally recommends that they avoid areas where people congregate, which includes workplaces, for 14 days. However, the CDC says that employers may consider, case-by-case and in consultation with public health officials, whether these individuals may come to work without entering crowded locations. These complex decisions must be considered carefully in the context of the workplace and multiple layers of legal and other considerations.
If an employee is confirmed to have the COVID-19 infection, the CDC recommends that employers inform coworkers of potential exposure. Knowledge about potential exposure is certainly important, but employers should consider legal issues including confidentiality requirements under the Americans with Disabilities Act and state law.
Until now, most employers have been appropriately focused on limiting potential exposure from individuals who had recently traveled to Hubei or other areas in mainland China. If this outbreak continues to grow across the U.S. or in certain geographic areas, employers will be forced to manage the risk of employees potentially bringing the virus to work as a result of exposures at home or otherwise in their own communities. Employers should develop strategies now that are appropriate for their workplaces, including communications to employees.
In its Guidance for Businesses and Employers, the CDC also recommends that all employers plan for a potential outbreak of COVID-19 in the U.S. and be prepared to implement strategies to protect their workforce while ensuring continuity of operations. Planning for a potential outbreak includes identifying and communicating objectives, such as “(a) reducing transmission among staff, (b) protecting people who are at higher risk for adverse health complications, (c) maintaining business operations, and (d) minimizing adverse effects on other entities in their supply chains.” Among other things, the CDC recommends that employers now consider whether, when faced with an outbreak of the illness, they could have employees telecommute or stagger shifts to create physical distance among employees and whether they have the infrastructure to support those efforts. The CDC also recommends that employers consider plans to minimize exposure between employees and the public (if public officials call for social distancing) and prepare for increased absenteeism.
All employers should review the CDC’s complete Guidance for Businesses and Employers. The CDC’s guidance is not a legal mandate for employers. OSHA and many state laws, however, impose a general duty on all employers to provide workers with work environments free from recognized hazards. Federal and state mandatory requirements may apply, particularly in higher risk industries, to prevent occupational exposure to COVID-19.
OSHA has published detailed information on hazard recognition, medical information, potentially applicable OSHA standards, control and prevention, as well as additional resources and information about workers’ rights. As OSHA explains, without sustained human-to-human transmission, most U.S. workers remain at low risk of exposure and infection. However, OSHA identifies important but common sense practices for all workers and employers to help prevent worker exposure to COVID-19: proper handwashing including the use of alcohol-based rub (hand sanitizer), avoid touching eyes, nose, or mouth with unwashed hands, and avoid close contact with sick people.
Certain groups of workers, especially those in healthcare, are at a higher risk for potential exposure and employers and workers must take additional precautions. OSHA provides additional guidance for groups of workers with increased risk of exposure, including:
Cal/OSHA also issued guidance on requirements to protect healthcare workers from COVID-19. The guidance covers the safety requirements when providing care for suspected or confirmed patients of the respiratory disease or when handling pathogens in laboratory settings. COVID-19 is an airborne infectious disease covered by Cal/OSHA’s Aerosol Transmissible Diseases (ATD) standard, which requires employers to protect workers from diseases and pathogens transmitted by aerosols and droplets. The ATD standard applies in healthcare facilities, laboratories, public health services, police services, and other locations where employees are reasonably anticipated to be exposed to confirmed or suspected cases of aerosol transmissible diseases. The ATD standard requires employers to have an ATD Exposure Control Plan that includes procedures to identify COVID-19 cases, provision of appropriate personal protective equipment, among other things. Employers also must provide training for their employees covering many items related to COVID-19, such as the signs and symptoms, modes of transmission, methods to prevent exposure, and personal protective equipment.
Employers should continue to monitor information coming from state and local health departments and promptly report any suspected cases of COVID-19 to the local health department. Healthcare employers should consult guidance from OSHA, the CDC, and other relevant agencies. This is a rapidly evolving situation and all information in this update is subject to change. For the latest information, please review the relevant agency communications.
Article Courtesy of Jackson Lewis
All OSHA 300A logs must be posted by February 1st in a visible location for employees to read. The logs need to remain posted through April 30th.
Please note the 300 logs must be completed for your records only as well. Be sure to not post the 300 log as it contains employee details. The 300A log is a summary of all workplace injuries and does not contain employee specific details. The 300A log is the only log that should be posted for employee viewing.
Please contact our office if you need a copy of either the OSHA 300 or 300A logs.
In the last Regulatory Agenda, OSHA indicated that it was undergoing rulemaking to revise the Improve Tracking of Workplace Injuries and Illnesses regulation promulgated under the Obama administration. Specifically, OSHA noted it was considering deleting the requirement for employers with 250 or more employees at an establishment to electronically submit its 300 Log, 301 Forms along with the 300A Form. What was not clear at the time was what OSHA was going to require for submission in July since the agency has not yet issued a Notice of Proposed Rulemaking revising the standard.
Recently, OSHA made clear that it will not collect or require employers with 250 or more employees per establishment to submit the 300 Log or the 301 Forms. OSHA will require all employers covered by the regulation to only submit the 2017 300A Form by July 1, 2018. Beginning in 2019 and every year thereafter, the 300A Forms must be submitted by March 2.
Covered establishments with 250 or more employees are only required to provide their 2017 Form 300A summary data. OSHA is not accepting Form 300 and 301 information at this time. OSHA announced that it will issue a notice of proposed rulemaking (NPRM) to reconsider, revise, or remove provisions of the “Improve Tracking of Workplace Injuries and Illnesses” final rule, including the collection of the Forms 300/301 data. The Agency is currently drafting that NPRM and will seek comment on those provisions.
Also, last week we blogged about OSHA’s reversal in position regarding the electronic filing of 300A Forms by employers in state plans that have not adopted the Improve Tracking of Workplace Injuries and Illnesses requirements. OSHA is now requiring those employers to submit their 300A Forms using the Injury Tracking Application on OSHA’s website by July 1, 2018. However, an agency official recently clarified that since OSHA does not have jurisdiction in those states with state plans, it is prohibited from enforcing the regulation and can not issue citations to employers for failing to electronically submit the 2017 300A, and since those certain state plans have yet to adopt the regulation they are equally prohibited from enforcing the requirement and can not issue citations to employers. So while OSHA is requiring employers in state plans that have not yet adopted the regulation to submit their 2017 300A it has acknowledged that it has no enforcement authority for those employers who fail to do so.
Article courtesy of Jackson Lewis