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OSHA and COVID-19: Workplace Exposures, Citations and Recording

Employer Safety & Health Recommendations, Potential Citations, and Recording Workplace Exposures

The Occupational Safety and Health Administration has issued guidance for protecting employees against workplace exposures to COVID-19.  Employers should also be aware of OSHA standards which may apply to workplace exposures and when a case of COVID-19 is OSHA recordable.

OSHA Guidance
OSHA has issued its Guidance on Preparing Workplaces for COVID-19.  The Guidance sets forth strategies for minimizing workplace exposures.  Note that the Guidance is not an OSHA standard or regulation and does not create new legal obligations on the part of employers.  However, it provides both practical advice for protecting employees and some insight as to when OSHA may issue a General Duty Clause citation in the event of a recordable case of COVID-19 (see Citations below).

OSHA recommends that employers assess the risk level for each job classification, taking into consideration an employee’s contact or close proximity with co-workers, the general public, and those at higher risk for infection, among other factors.  It is recommended that the employer then classify each job according to the following hierarchy:

Lower Exposure Risk (Caution):  Jobs that do not require contact with persons known or suspected to be infected, or frequent close contact (within 6 feet) with the general public.  Most employers will fall into this category.

Medium Exposure Risk:  Jobs that require frequent or close contact with persons who may be infected with the virus but are not known or suspected COVID-19 patients.  This category includes employees having frequent contact with international travelers or working in communities with ongoing COVID-19 transmission.

High Exposure Risk:  Jobs with high potential for exposure to known or suspected sources of COVID-19, such as healthcare workers.

Very High Exposure Risk:  Jobs with high potential for exposure to known or suspected sources of COVID-19 during specific medical, postmortem, or laboratory procedures.

For all employers, OSHA recommends, in order of effectiveness, various engineering controls, administrative controls, and personal protective equipment.  Additional proactive measures are recommended depending upon the risk classification.  Employers should also have contingency plans for workplace outbreaks.

OSHA Standards
Though no OSHA standard specifically covers COVID-19, there are a number of existing standards which may apply to mitigating workplace exposures, as follows:

Personal Protective Equipment:  Applicable PPE standards may include hand, eye, and face protection, as well as respiratory protection.  When respiratory protection is necessary to protect employees, a respiratory protection program must be implemented.  OSHA-mandated workplace hazard assessments should be reviewed and revised as necessary in light of employee exposure risks.

Bloodborne Pathogens:  This standard may apply to occupations where there is reasonably anticipated contact with human blood or “other potentially infectious materials.”  The latter term typically does not include general workplace exposure to others’ respiratory secretions (i.e., co-worker sneezes and coughs), but in such cases, the Bloodborne Pathogen Standard may provide additional guidance to employers for identifying exposure risks and implementing safety measures.

Hazard Communication:  Though perhaps not an ordinary concern for most employers, the Hazard Communication Standard may come into play for employees now using cleaners, sanitizers, or sterilizers for workplace mitigation of COVID-19 exposure.

General Duty Clause:  Section 5(a)(1) of the Occupational Safety and Health Act, better known as the General Duty Clause, requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm” to its employees.  The General Duty Clause is a catch-all requirement which provides OSHA with enforcement power when no specific safety or health standard applies to a given workplace hazard.

Note that 28 states have a state agency, as opposed to federal OSHA, which enforces workplace safety and health standards.  Most such states adopt the federal OSHA standards in whole (or close to it), but some, such as California, have adopted a broad range of standards unique to the state.  Employers in so-called “state-plan states” should keep abreast of state standards and guidance applicable to COVID-19.

Citations
A workplace injury or illness is not a prerequisite for the issuance of an OSHA citation, as an employer’s violation of any safety or health standard can lead to a citation.  However, as it applies to COVID-19, both an OSHA inspection and citation are unlikely absent extraordinary circumstances, such as an employer’s failure to undertake any precautions to protect against workplace exposures followed by a workplace outbreak of COVID-19.  In such a case, a citation alleging one or more violations of the standards identified above, and the General Duty Clause in particular, is possible.

Recording a COVID-19 Illness
Employers must record work-related illnesses on their OSHA 300 logs.  COVID-19 can be a recordable illness if an employee is infected during the performance of work-related duties.  However, the fact that an employee is diagnosed with COVID-19 and/or first experiences symptoms at work does not make the case recordable.  As with any injury or illness, the case is not recordable unless it is: (i) work-related; (ii) a new case; and (3) results in death, missed or restricted work, job transfer, or medical treatment beyond first aid, or constitutes “a significant injury or illness diagnosed by a physician or other licensed health care professional.”

With the widespread transmission of COVID-19 and the many non-work related avenues for exposure, it is unlikely that an isolated case or two of COVID-19 in a workplace could be fairly characterized as “work-related” (the first of the above three criteria).  Thus, it is unlikely that the employer would have to record the case on its OSHA 300 log.  By contrast, if there is a workplace outbreak among several or more employees who are in close contact with each other, OSHA may consider the cases to be work-related and, therefore, recordable if the second and third criteria are also met.

As a final point, a COVID-19 case is not recordable unless it is a “laboratory-confirmed” case.  The Centers for Disease Control and Prevention (CDC) has developed a classification system for reporting and tracking the virus, as follows:

Person Under Investigation (PUI):  Having sufficient symptoms to cause a healthcare provider to conduct testing.

Presumptive Positive:  At least one respiratory specimen that tested positive for the virus that causes COVID-19 at a state or local laboratory.

Laboratory Confirmed:  At least one respiratory specimen that tested positive for the virus that causes COVID-19 at a CDC laboratory.

If an employer’s case is not a “laboratory-confirmed” case, the employer need not inquire further whether the case is recordable – it is not.

For questions or more information, please contact Stephen Matasich at sematasich@bmdllc.com or 330.253.9146, or any member of the BMD Employment & Labor group.

Explosive Growth in Pot of Gold Opportunity for Bank (and Other) Cannabis Lenders Driving Erosion of the Barriers

Our original article on bank lending to the cannabis industry anticipated that the convergence of interest between banks and the cannabis industry would draw more and larger banks to the industry. Banks were awash in liquidity with limited deployment options, while bankable cannabis businesses had rapidly growing needs for more and lower cost credit. Since then, the pot of gold opportunity for banks to lend into the cannabis industry has grown exponentially due to a combination of market constraints on equity causing a dramatic shift to debt and the ever-increasing capital needs of one of the country’s fastest growing industries. At the same time, hurdles to entry of new banks are being systematically cleared as the yellow brick road to the cannabis industry’s access to the financial markets is being paved, brick by brick, by the progressively increasing number and size of banks that are now entering the market.

2021 EEOC Charge Statistics: Retaliation & Impact of Remote Work

The U.S. Equal Employment Opportunity Commission (EEOC) released its detailed information on workplace discrimination charges it received in 2021. Unsurprisingly, for the second year in a row, the total number of charges decreased as COVID-19 either shut down workplaces or disconnected employees from each other. In 2021, the agency received a total of approximately 61,000 workplace discrimination charges - the fewest in 25 years by a wide margin. For reference, the agency received over 67,000 charges in 2020, and averaged almost 90,000 charges per year over the previous 10 years.

Ohio’s Managed Care Overhaul Delayed – New Implementation Timeline

At the direction of Governor Mike DeWine, the Ohio Department of Medicaid (ODM) launched the Medicaid Managed Care Procurement process in 2019. ODM’s stated vision for the procurement was to focus on people and not just the business of managed care. This is the first structural change to Ohio’s managed care system since the Centers for Medicare & Medicaid Services' (CMS) approval of Ohio’s Medicaid program in 2005. Initially, all of the new managed care programs were supposed to be implemented starting on July 1, 2022. However, ODM Director Maureen Corcoran recently confirmed that this date will be pushed back for several managed care-related programs.

Laboratory Specimen Collection Arrangements with Contract Hospitals - OIG Advisory Opinion 22-09

On April 28, 2022, the Department of Health and Human Services, Office of Inspector General (“OIG”) published an Advisory Opinion[1] in which it evaluated a proposed arrangement where a network of clinical laboratories (the “Requestor”) would compensate hospitals (each a “Contract Hospital”) for specimen collection, processing, and handling services (“Collection Services”) for laboratory tests furnished by the Requestor (the “Proposed Arrangement”). The OIG concluded that the Proposed Arrangement would generate prohibited remuneration under the federal Anti-Kickback Statute (“AKS”) if the requisite intent were present. This is due to both the possibility that the proposed per-patient-encounter fee would be used to induce or reward referrals to Requestor and the associated risk of improperly steering patients to Requestor.

Property Owner Protection from Tax Valuation Challenges

New legislation provides significant new protections for commercial property owners against challenges to valuation primarily by local school boards and prohibiting side agreements to avoid tax valuation changes. The Ohio Legislature has approved House Bill 126 which will go into effect July 2022 but will effectively apply to the 2023 tax valuation year.