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California Adopts Non-Emergency COVID-19 Prevention Workplace Regulations

Robertson  Daniel   Feltman-Frank_Arie  By Daniel L. Robertson and Arie Feltman-Frank, Associate Attorneys

On December 15, 2022, the California Occupational Safety & Health Standards Board (Board) adopted COVID-19 prevention non-emergency COVID-19 Workplace Safety  workplace standards in a 6-1 vote. The standards will be in Title 8, Division 1, Chapter 4, Subchapter 7, of California’s regulations and, if approved by the Office of Administrative Law, will take effect in January 2023. The standards will sunset two years following their effective date, except for certain recordkeeping requirements that will remain in effect for three years.

Subchapter 7, titled “General Industry Safety Orders,” establishes minimum occupational safety and health standards that generally apply to all places of employment in California. In response to the COVID-19 outbreak, the Board previously approved emergency temporary standards (ETS) on COVID-19 prevention starting in November 2020, which were revised in June 2017, January 2022, and May 2022. However, the May 2022 ETS is set to expire on December 31, 2022.

Notable portions of the adopted non-emergency standards are summarized below.

    • Prevention Program: Employers are no longer required to maintain a standalone COVID-19 Prevention Plan but must still address COVID-19 in their written Injury and Illness Prevention Programs or other standalone documents that include measures to address COVID-19 transmission in the workplace. Further, employers are required to review applicable state and local health department guidance when determining measures to prevent and address COVID-19 transmission.

    • Screening and Exclusion: Employers will no longer have to perform daily screenings of employees, whether through questionnaires or otherwise. Employees instead are encouraged to report their own symptoms and stay home if ill. Time periods for exclusion have been shortened, and employees who are deemed close contacts do not necessarily have to be excluded if they test negative and meet certain other requirements.

    • Employee Accommodations: In perhaps the most contested development, employers will no longer have to provide paid time off to infected employees or close contacts ordered to stay home. Instead, those employees must rely on other existing benefits if they are unable to work due to COVID-19 infection or isolation. Employers must continue to provide respirators to employees upon requests, and employees must still wear masks at work for at least 5 days if exposed. Companies experiencing outbreaks, defined as three or more cases in a 14-day period, must make testing available to exposed employees immediately and provide tests twice a week.

    • Notice and Timing: Notice rules now only require notice to close contacts “as soon as possible” while simplifying the notice contents. However, employers should remain mindful of similar applicable rules that currently still require that the notice be given within one business day. Outbreaks no longer require “no new cases” to conclude and instead only require “one or fewer” new cases over a two-week period. A major outbreak, defined as 20 cases in a 30-day period, must be reported to the California Division of Occupational Safety and Health. While there will no longer be a requirement to report outbreaks to local public health agencies, employers should still be mindful of other local standards for reporting.

    • Close Contacts and Testing: The “close contact” definition continues to follow that used by the California Department of Public Health (CDPH), which defines a close contact depending on the size of the workspace and regardless of the use of face coverings.

      • A close contact occurs in an indoor workspace with floor space of 400,000 cubic feet or less when someone shares the same indoor airspace as an infected person for a cumulative total of 15 minutes or more over a 24-hour period during the infectious period.
      • A close contact occurs for larger indoor workspaces when someone is within 6 feet of the infected person for a cumulative total of 15 minutes or more during a 24-hour period during the infectious period.

Notably, this standard affirmatively states that any future amendments to the CDPH definition will take precedent over the Board’s adopted definition. Employers must also follow applicable CDPH guidance to improve ventilation and filtration. Further, employers will now only have to make testing available at no cost to employees who are considered close contacts of an infected coworker, versus previous requirements that testing be made available to all symptomatic employees.

  • Infectious Period: This definition also tracks that of CDPH and states that a person is considered infectious for two days prior to symptoms and 10 days after unless they test negative from the fifth day onward. For an asymptomatic person, these same timeframes apply based on the date of the first positive test.

The Board’s news release can be read here and the text of the adopted standards is available here. We will continue to monitor COVID-19 and other workplace health and safety developments in the Corporate Environmental Lawyer.

 

EPA Proposes Rule to Enhance Reporting of PFAS Data to the Toxics Release Inventory

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By:  Daniel L. Robertson, Associate Attorney

EPA Image2On December 5, 2022, the United States Environmental Protection Agency (USEPA) proposed a rule eliminating an exemption that currently allows facilities to avoid reporting the use of small concentrations of Per- and polyfluoroalkyl substances (PFAS).

PFAS chemicals, commonly referred to as “forever chemicals” due to their longevity, are commonly used in consumer products and industrial processes. The Biden administration has prioritized addressing PFAS as they apply to public health, as outlined in the USEPA’s PFAS Strategic Roadmap released in October 2021. That roadmap sets forth timelines by which the USEPA intends to act on various policies impacting public health, the environment, and accountability.

The 2020 National Defense Authorization Act (NDAA) added certain PFAS to the list of chemicals covered by the Toxics Release Inventory (TRI) for the 2021 reporting year. Under the current provisions, however, facilities that report to the TRI can disregard de minimis concentrations of TRI-listed PFAS in mixtures or trade name products (below 1% concentration, except for Perfluorooctanoic acid which is set at 0.1%).

The USEPA’s action follows a press release from earlier this year wherein the Agency expressed concern at the low number of reporting facilities, seemingly as a result of the existing exemption. The current proposal will add PFAS subject to reporting requirements under the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act (PPA) to the list of Lower Thresholds for Chemicals of Special Concern, eliminating the de minimis reporting exemption. Due to the low concentration of PFAS used in many products, the USEPA contends removing the existing “reporting loophole” will increase data collected for PFAS, thereby providing a clearer picture of PFAS releases and waste management quantities.

The proposal will also remove the de minimis exemption for purposes of the Supplier Notification Requirements for all listed Chemicals of Special Concern, which includes chemicals like lead and mercury. The USEPA states that doing so will ensure purchasers are informed of the presence of these chemicals in the products they purchase.

Parties that may be impacted by the proposal are those who manufacture, process, or otherwise use listed PFAS or any chemicals listed under 40 CFR 372.28. Anyone wishing to comment on the proposal must submit comments by February 2, 2023 through the Federal eRulemaking Portal using docket identification number EPA–HQ–TRI–2022–0270.

In related news, the USEPA on December 6, 2022 released a guidance memorandum providing states with directions on how to use the National Pollutant Discharge Elimination System (NPDES) permit program to protect against PFAS. According to the USEPA’s press release, the guidance “recommends that states use the most current sampling and analysis methods in their NPDES programs to identify known or suspected sources of PFAS and to take actions using their pretreatment and permitting authorities, such as imposing technology-based limits on sources of PFAS discharges.”

We will continue to monitor these and other federal PFAS developments on the Corporate Environmental Lawyer blog.