Of CDC, OSHA, & Cal/OSHA Matters – Fully Vaccinated People Can Now Gather Indoors Without a Mask (With Limitations)

Newsletter Highlights:

  1. CDC Changes Effective May 13, 2021
  2. Vaccine Mandates in the Workplace
  3. CAL/OSHA Changes Effective June 17, 2021
  4. Respirator Obligations for Employers
  5. Vaccine Documentation (CA)

CDC CHANGES: The CDC has announced an update regarding fully vaccinated people. If you have been fully vaccinated, you can gather indoors with other fully vaccinated people without a mask. You can also gather indoors with unvaccinated people from one other household without masks UNLESS any of those people or anyone they live with are at higher risk for severe illness from COVID-19. If you are vaccinated and exposed to someone with COVID-19, you do not need to quarantine or get tested unless you have symptoms.

Who is Considered Fully Vaccinated: According to the CDC, people are considered fully vaccinated: 2 weeks after their second dose in a 2-dose series or2 weeks after a single-dose vaccine

The CDC says that, for now, if you’ve been fully vaccinated:

  • You will still need to follow guidance at your workplace and local businesses.
  • If you travel, you should still take steps to protect yourself and others.
  • Masks are required on planes, buses, trains, and other forms of public transportation traveling into, within, or out of the United States and in U.S. transportation hubs such as airports and stations. CDC recommends that travelers who are not fully vaccinated continue to wear a mask and maintain physical distance when traveling.
  • You should still watch out for symptoms of COVID-19, especially if you’ve been around someone who is sick. If you have symptoms of COVID-19, you should get tested and stay home and away from others.
  • People who have a condition or are taking medications that weaken the immune system, should talk to their healthcare provider to discuss their activities. They may need to keep taking all precautions to prevent COVID-19.

COVID-19 vaccines are effective at preventing COVID-19 disease, especially severe illness and death. COVID-19 vaccines reduce the risk of people spreading COVID-19.

What We’re Still Learning

  • How effective the vaccines are against variants of the virus that causes COVID-19. Early data show the vaccines may work against some variants but could be less effective against others.
  • How well the vaccines protect people with weakened immune systems, including people who take immunosuppressive medications.
  • How long COVID-19 vaccines can protect people.

VACCINE MANDATES IN THE WORKPLACE

Employers are likely to mandate vaccines at the workplace as soon as the Pfizer and Moderna vaccines obtain full regulatory approval.  Full licensing approval is likely to come by this fall or winter. The showdowns between employee and employer largely occur along the lines that the vaccines have not been approved.  Concerns around vaccine efficacy will be diminished upon FDA approval.  Employers will still have to provide accommodations to employees under the ADA guidelines. EEOC has stated that employers must make accommodations for employees who decline vaccine for health conditions or religious beliefs.  Even though the litigious elements of the vaccination will wane, legal input on your vaccination policy is a must.  Union workforces will require a collaborative process as well.

Storing vaccine records may be another challenge to employers. EEOC, which enforces civil rights laws, states that employee vaccination status must be kept confidential under the ADA confidentiality requirements.  The vaccination records therefore must be kept separate from personnel files.  Personal record breaches can trigger confidentiality claims that can cost thousands of dollars. State requirements for the time period that employee records are retained must be followed as well.  California mandates vaccination status be documented. See CA specific guidance below.

Fed-OSHA has noted that adverse reaction to vaccines under employer mandate is not considered a workplace injury or illness. https://www.osha.gov/coronavirus/faqs#vaccine

CAL/OSHA WHAT CHANGED:

  • Fully vaccinated employees without symptoms do not need to be tested or quarantined after close contact with COVID-19 cases unless they have symptoms.
  • Unvaccinated persons are required to wear face coverings and physically distance indoors.
  • No face coverings are requiring outdoors (except during outbreaks), regardless of vaccination status, though workers must be trained on CDPH recommendations for outdoor use of face coverings.
  • Employers may allow fully vaccinated employees not to wear face coverings indoors, but they must document employee vaccination status. There are some settings where CDPH requires face coverings regardless of vaccination status. During outbreaks, regardless of vaccination status, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained.
  • Upon request, employers must provide unvaccinated employees with approved respirators for voluntary use when working indoors or in a vehicle with others.
  • Employers may not retaliate against employees for wearing face coverings.
  • There are no physical distancing or barrier requirements regardless of employee vaccination status, with the following exceptions:
    • Employers must evaluate whether it is necessary to implement physical distancing and barriers during an outbreak (3 or more cases in an exposed group of employees)
    • Employers must implement physical distancing and barriers during a major outbreak (20 or more cases in an exposed group of employees)
  • No physical distancing requirements whatsoever in the employer-provided housing and transportation regulations.
  • Where all employees are vaccinated in employer-provided housing and transportation, employers are exempt from those regulations. 
  • Employers must evaluate ventilation systems to maximize outdoor air filtration, increase filtration efficiency, and evaluate the use of additional air cleaning systems.

CAL/OSHA WHAT DID NOT CHANGE

Employer requirements for the following have not changed:

  • An effective written COVID-19 Prevention Program.
  • Effective training and instruction to employees on the employer’s prevention plan and their rights under the ETS.
  • Notification to public health departments of outbreaks.
  • Notification to employees of exposure and close contacts.
  • Offer testing after potential exposures.
  • Responding to COVID-19 cases and outbreaks.
  • Quarantine and exclusion pay requirements.
  • Basic prevention requirements for employer-provided housing and transportation.

Barriers (CA):

  • Nothing in the revised ETS prevents employers from implementing additional protective measures than are required, including the use of physical distancing and barriers.
  • Employers are under an ongoing requirement to assess workplace hazards and implement controls to prevent transmission of disease. There may be circumstances in which employers determine that physical distancing is necessary in their workplace.

EMPLOYER RESPIRATOR OBLIGATIONS (CA)

Q:  What is an employer’s obligation to provide respirators?

A:  An employer must provide respirators in two scenarios: (1) to any unvaccinated employee who works with others indoors or in a vehicle and who requests one and (2) where there is a major outbreak, to any employees in the exposed group for voluntary use. The respirator must be the right size, and the employee must receive basic instruction on how to get a good “seal,” or fit.

Q:  What does it mean to “provide respirators upon request”?

A:  An employer must be able to provide the respirator upon request. Initially, an employer may either stock respirators and offer them to employees or may poll workers to determine which employees wish to be provided a respirator before obtaining them. However, once an employer has established that it has employees who wish to wear respirators, it should have enough on hand of the correct size and type to fulfill reasonably foreseeable requests upon demand. If an employee prefers to select and purchase their own respirator, an employer may permit this alternative, as long as the employer reimburses the employee in a timely manner.

In a major outbreak, respirators must be offered to employees regardless of vaccination status and without waiting for a request from the employee. The employer must offer respirators immediately upon determining a major outbreak is underway.

An employer is under a continuing obligation to provide respirators to eligible unvaccinated employees at any time they communicate to the employer their desire to wear one.

Q: How soon does a respirator need to be provided after an employee requests it?

A: After initial implementation as described above, employers should provide requested respirators to unvaccinated employees as soon as possible.

Q: What if more employees request respirators than the employer anticipates and the employer runs out of respirators? Will Cal/OSHA cite the employer?

A: Cal/OSHA will not cite employers who make a good faith estimate and effort to provide respirators as soon as possible to employees that request them. If an employer runs out of respirators, they should order more respirators immediately. Cal/OSHA lists some but not all vendors that sell N95 respirators in large quantities (vendors able to fulfill orders of more than 100,000 units) at https://www.dir.ca.gov/dosh/wildfire/List-of-N95-Vendors.pdf. There are many vendors who have N95s available in smaller quantities.

Q:  Why is Cal/OSHA requiring respirators be offered to unvaccinated persons? Is this different from CDC and federal OSHA guidance?

A:  Under CDC and federal OSHA guidance, unvaccinated persons are required to wear face coverings and physically distance indoors. Cal/OSHA is requiring voluntary respirators since California is phasing out physical distancing; a well-fitting respirator reduces the risk of infection better than physical distancing alone and respirators are readily available. The ETS provides this as alternative protection for unvaccinated employees.

Q:  How often must an employer provide an employee with a new respirator?

A:  For voluntary use, respirator replacement varies with use and environment. Filtering facepiece respirators are disposable respirators that cannot be cleaned or disinfected. They must be replaced if they get damaged, deformed, dirty, or difficult to breathe through. A best practice is to replace filtering facepiece respirators at the beginning of each shift. Employers should follow the manufacturer’s instructions. CDC recommends replacing a disposable filtering facepiece respirator, such as an N95, after it has been taken on and off five times. Filtering facepiece respirators may not fit correctly after repeated use.

FACE COVERING REQUIREMENTS (CA)

Q:  Who has to wear face coverings?

A:  Face coverings are required indoors and in vehicles for unvaccinated employees. Employees in certain indoor settings must wear a face covering regardless of vaccination status, if required by CDPH order.

Though face coverings are not required outdoors, employers must communicate to workers that face coverings are recommended for unvaccinated persons outdoors where six feet of physical distancing cannot be maintained. Employers must provide face coverings to unvaccinated persons and make them available to vaccinated persons upon request. Last but not the least, customers may demand that the dealership employees wear a mask while moving their cars on the lot.  Employees will have to wear a mask then as well.

Q:  Are there exceptions to wearing face coverings indoors?

A:  Yes. The most common exceptions for unvaccinated persons are:

  • When alone in a room or vehicle
  • When eating and drinking
  • When an accommodation is required
  • When job duties make a face covering infeasible or create a hazard

Q:  Are workers protected from retaliation if they choose to wear a face covering, even if not required to do so?

A:  Yes. Employers cannot retaliate against workers for wearing face coverings, including when the worker is wearing a face covering voluntarily.

Training memo on the Usage of N95 Disposable Facepiece Respirators, CDC Guidance on Putting Disposable Respirators On & Off is being sent to all CSI Clients via separate email and is available on the eLearn Training Portal.

VACCINE DOCUMENTATION (CA)

Q:  Is documentation required for a fully vaccinated employee to work without a face covering indoors?

A:  Yes. Vaccination status must be documented. Use this Vaccine Status Questionnaire. The revised ETS does not specify a particular method. The employer must record the vaccination status for any employee not wearing a face covering indoors and this record must be kept confidential. Acceptable options include:

  • Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy.
  • Employees provide proof of vaccination and the employer maintains a record of the employees who presented proof, but not the vaccine record itself.
  • Employees self-attest to vaccination status and employer maintains a record of who self-attests.

Nothing in the revised ETS prevents an employer from requiring all employees to wear a face covering instead of having a documentation process.

Q. What if the employee declines to state their vaccination status?

A:  Under the ETS, an employer is not obligated to require employees to submit proof of being fully vaccinated. Absent such a requirement, an employee has the right to decline to state if they are vaccinated or not. In that case, the employer must treat the employee as unvaccinated and must not take disciplinary or discriminatory action against the employee.

Disclaimer: The contents of this newsletter are merely for informational purposes only and are not to be considered as professional advice. Information from CDC, Fed-OSHA and Cal/OSHA was used to prepare part of this newsletter.  Employers must consult their lawyer for legal matters and safety consultants for matters related to safety.  The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers comply with EPA & OSHA regulations since 1987.  Sam received his BE (1984) and MS (1986) in Chemical Engineering followed by a J.D. from Southwestern University School of Law (1997).  Our newsletters can be accessed at www.epaoshablog.com.  Your comments/questions are always welcome.  Please send them to sam@cellyservices.com.

California Used Oil Recycling Program

Just imagine this as someone taking your empty soda cans to the recycling center for money. Now imagine your used oil, which is being taken away for recycling, has a refund associated with it. All you have to do is sign up as a California Used Oil Recycling Center and then we at CSI file this claim for you as part of our service. The money is 16 cents per gallon of used oil or about $3000 per year (based on 18,000 gallons of used oil). All you have to do is deposit the check the state sends you every quarter!

Frequently Asked Questions and answers are available on the state website,  https://www.calrecycle.ca.gov/UsedOil/Generators/

For a full list of responsibilities, see the CCC program home page, which summarizes and links to the Operator’s Guide

Frequently Asked Questions

What forms do I need to complete to get certified?

Celly Services will complete all forms that you need to get certified. https://www.calrecycle.ca.gov/usedoil/forms

What if the oil looks contaminated?

You can decline the acceptance of contaminated used motor oil or other waste given to you. Instructions are listed here:

 https://www.calrecycle.ca.gov/UsedOil/CertCenters/#Contaminated

Ask them to take it to a facility as provided by the state.  https://www.calrecycle.ca.gov/UsedOil/Handling/Contaminated/https://www.calrecycle.ca.gov/usedoil/handling/contaminated/procedures

Do I need to keep any special/extra paperwork as part of the program?

No. Your used oil pickup receipts are obtained by us from your used oil hauler.

What is the maximum amount of oil that a person can bring?

You can set a limit where you may not accept more than 5 gallons from a person.

How does this affect my image as a new car dealer?

The fear that unsightly homeless in pajamas will show up with a gallon of used oil in your driveway is unfounded. No dealership in the program (CSI client) has ever seen them in the drive with oil.


What paperwork needs to be posted?

The Certificate of a Used Oil Recycling Center (8.5 x 11 sheet of paper) needs to be posted. Also, a Used Oil Recycling Center sign (provided by the state at no cost) needs to be posted in your driveway where customers can see as they enter your facility.


Do I need to pay the public?

Offer the public 40 cents per gallon of used oil. No paperwork is needed.


Is there a long-term contract with the state?

No, you can get off the program with a simple letter to the state.


What if my oil gets contaminated?

You may keep a 16-gallon drum separately for storage of used oil from the public and keep suspected oil in that drum. If taking oil from the public contaminates your oil, the state will reimburse you for incremental costs for disposal due to the contamination, presuming the source of contamination was public oil (up to a maximum of $5,000 per year). Signs are available, from the state at no cost, to remind both employees and customers not to mix anything with used oil or pour contaminated used oil into storage tanks.


How do I get the gallons of new Oil + ATF purchased per quarter needed for the claim?

Contact your bulk oil supplier for the number.

Additional resources: Certified Collection Center Operators Guide – https://www2.calrecycle.ca.gov/Publications/Details/1523 and SB 546 Lowenthal eff. January 1, 2010.
If you need further details or wish to have the copy of the application, please contact sam@cellyservices.com.

DISCLAIMER: The contents of this newsletter are merely for informational purposes only and are not to be considered as legal advice.  Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers in Arizona, California, Hawaii, Idaho, Nevada, New Mexico, New York, Texas, and Virginia comply with EPA and OSHA regulations for over 34 years. Sam is Certified Safety Professional (No. 16515) certified by National Board of Certified Safety Professionals. Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997).

OSHA Top Citations for 2020

FED-OSHA TOP 10 citations issued for 2020 are as follows:



1. Fall Protection:  Falls, primarily from ladders and roofs, accounted for 384 fatalities in 2016. Any time a worker is at a height of 4 feet or more (30 inches or more in CA), the worker is at risk and needs to be protected.
2. Hazard Communication: Employers are required to provide a written Hazard Communication Program, label hazardous chemicals, provide a Safety Data Sheet for each chemical, and document employee training.
3. Respiratory Protection: Body shop employees need specific training on policies (written) and practices involving the use of respirators during auto refinishing operations. Training on respiratory protection, fit testing, user seal check, and respiratory cleaning procedures are mandatory, and so is the OSHA Respirator Medical Evaluation Questionnaire. When an employee wears a respirator, even when it is not required under the regulation, information on proper usage, including limitations, must still be provided.
4. Scaffolding: Primarily applicable to the construction industry.
5. Ladders: Limit ladder use to trained and experienced staff only. Secure ladders with a chain to prevent usage by untrained staff.
6. Lockout/Tagout: Specific procedures and practices safeguard employees from the unexpected energization or startup of machinery and equipment. A written program and employee training is mandatory (annually). Employees working on automobiles must comply by isolating energy to the engine to prevent inadvertent movement during repair or service. A lockout kit including locks should be available.
7. Powered Industrial Trucks (Forklifts): The high number of fatalities associated with forklifts and high number of violations associated with powered industrial truck safety tell us that many workers are not properly trained to safely drive potentially hazardous equipment. OSHA compliance requires training in these specific activities: forklift operations, loading and unloading, and vehicle maintenance. Evaluating an operator every three years is also mandatory.

8. Fall Protection Training Requirements: This moved up a notch from the 2017 number 9 spot. Dealerships must protect employees working on 2nd floor of parts while loading/unloading parts at the mezzanine edge.

9. Eye & Face Protection: Essentially reinforce your Person protective Equipment (PPE) policy and ensure all your employee wear eye and face protection, as necessary.

10. Machine Guarding: Moving machine parts has the potential to cause severe workplace injuries, such as crushed fingers or hands, amputations, burns, or blindness. Safeguards, including anchoring machinery, are essential for protecting workers from these preventable injuries. Any machine part, function, or process that may cause injury must be safeguarded. When the operation of a machine or accidental contact with the machine may injure the operator or others in the vicinity, hazards must be eliminated or controlled. Moving parts in automobiles, grinders, and brake lathes are all subject to this regulation.

COMPLETE OSHA TRAINING ON THE WEB AT YOUR OWN PERIL

OSHA has stated repeatedly and consistently in its training-related interpretation letters that online or computer-based training is acceptable as part of an overall training program that includes hands-on, site-specific information and work practices where it is needed to meet workplace safety goals.  Many online courses may not be legitimate.  In many instances, the training company clearly states that the training does not meet any local, state, or federal standards.  The awakening happens when OSHA audits the workplace and finds the employer short on hands-on, site-specific information and work practices.

We discuss the hand-on element of some of the hands-on training requirements as follows:

1. Fall Protection:  Employees must have hands-on training on using fall protection equipment such as harnesses.  Also, the lanyards which automatically limit free fall distance are to be marked according to the actual edge.  In summary, the training is hands-on and site-specific.

2. Forklift Training:  Many employers are under the false assumption that the online training is sufficient for employees operating the forklift.  Completing merely online training and allowing one to operate a forklift is akin to driving an automobile after passing a written test.  We all know that hands-on proficiency is to be shown before an actual driver’s license is granted.  Some trainers in fine print state that hands-on training is necessary and some do not mention at all. An experienced trainer must provide training on the operation of the actual hoist and evaluate the employee on proficiency prior to providing an operator certification.

3. Lockout/Tagout:  A written program and employee training is mandatory along with the hands-on portion of lockout.  An effective Lockout program requires that the employee must be able to show to the certifier that he possesses the tools and has procedural knowledge to effectively lockout the equipment, i.e., a faulty hoist.

4. Respiratory Protection:  The employee must be fit tested for the specific respirator to be worn by the employee.  Respirator selection must be done by the employer based on the hazard exposed.  The employee should then be given training on the respirator that must be worn during the work shift.  The SDS for the chemical being used must be utilized in the selection process.

OSHA PENALTIES ARE UP AGAIN

Type of ViolationPenalty
Generalup to $13,653 per violation
Serious$975 – $13,653 per violation
Failure to Abate$13,653 per day beyond abatement date
Posting Requirementsup to $13,653 per violation
Willful or Repeated$9,753 – $136,532 per violation

Note:  The penalties are now automatically adjusted for inflation on an annual basis.

DISCLAIMER:  The contents of this newsletter are merely for informational purposes only and are not to be considered as legal advice.   Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers in Arizona, California, Hawaii, Idaho, Nevada, New Mexico, New York, Texas, and Virginia comply with EPA and OSHA regulations for over 34 years.  Sam is Certified Safety Professional (No. 16515) certified by National Board of Certified Safety Professionals. Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997).  Our newsletters can be accessed at www.epaoshablog.com.  Your comments/questions are always welcome.  Please send them to sam@cellyservices.com.

FOR YOUR EYES ONLY

Current OSHA regulations require that emergency eyewash stations be provided whenever employees may come into contact with chemicals that can cause corrosion, severe irritation, or permanent tissue damage. See Title 8 CCR 5162 (CA) or 29 CFR 1910.151(c) (Fed). Battery charging, battery filling, used battery storage (when the electrolyte may be released due to the condition of the battery), use or dispensing of corrosive chemicals or irritants (often occurring in detail) are processes that require the installation of an eyewash station. Courts have often upheld ANSI standards in enforcement actions.    

OSHA regulations refer to ANSI standards for greater detail in standards and in opinion letters, require employers to refer to ANSI standards regarding eyewash stations.  OSHA inspectors also rely on ANSI standards during enforcement when OSHA regulations fall short on detail. ANSI revised the eyewash standard in 2014 and all eyewash manufacturers follow the latest 2014 standard Z358.1-2014.  This standard is a widely accepted guideline for the proper selection, installation, operation, and maintenance of emergency eyewash station equipment. An interesting discussion on legal implications of ANSI standards is found here https://www.lomont.com/documents/Dembystandardsarticle3-21-2006.pdf. In summary, an employer is well served by complying with ANSI standards. 

ANSI standards should be referred by all employers https://www.gesafety.com/downloads/ANSIGuide.pdf.  This newsletter does not cover all necessary elements of the standard.  We merely summarize some important elements as follows: 

Note 1:     Water hoses, sinks, faucets, showers, and eyewash bottles (sometimes included in first-aid kits) do not comply with Cal/OSHA eyewash standards.  

Note 2:     If there is a water line available in the shop area, then the plumbed unit is preferred as the wall mounted tank requires more maintenance and is expensive to maintain.  Also, if a tech uses the wall mounted unit at 9am, the tech requiring it at 10am goes blind!!! 

Note 3:     The eyewash units should have proper drain available to address the water draining from the unit.  If the unit cannot be plumbed to the shop drain, a 5-gallon plastic bucket can be placed under the eyewash station and disposed of periodically. 

Note 4:     In certain cases, a door opening in the direction of the walking person may be allowed. However, if the chemical hazard is caustic or corrosive such as battery acid in the automobiles, or battery acid in parts departments, then the eyewash station should be directly available and not through a door. 

Note 5:     The handheld drench units support plumbed and self-contained emergency eyewash stations but cannot replace them. In other words, drench hoses are intended only as supplemental units. 

Note 6:     Water temperature delivered shall be tepid (60-100F). 

Note 7:     Use an eyewash tester to ensure water flow covers eyes at no more than 8” above the spray heads. https://cdn.shopify.com/s/files/1/0320/3232/5768/files/Speakman_SE-952_Spec-Sheet.pdf 

All employers must use a checklist to ensure proper operation of the eyewash and an annual performance check (akin to a preventive maintenance) on the eyewash.  The checklist as summarized from ANSI is as follows: 

  • Inspection Frequency: Activate all eyewash stations at least weekly. Inspect all eyewash units annually for compliance with the ANSI Z358.1 standard. 
  • Location: The eyewash station must be located within 10 seconds from the hazard, approximately 55 feet from the hazard. The eyewash station must be located on the same plane as the hazard, and the travel path to the eyewash station must be unobstructed (no doors with handles to open; see Note 4).  
  • Identification: The area around the eyewash station must be well lit, and the unit must include a highly visible sign.
  • The eyewash station washes both eyes simultaneously, and the water flow allows the user to hold the eyes open without exceeding 8 inches above the spray heads. See Note 5. 
  • Spray heads are protected from airborne contaminants. Covers are pushed open by water flow. 
  • The eyewash station delivers at least 0.4 gallons of water per minute for 15 minutes and should have a minimum tank capacity size of 6 gallons. 
  • The water flow pattern should be 33 to 53 inches from floor level and at least 6 inches from the wall or nearest obstruction.   
  • The equipment should stay hands-free with a stay open valve that activates in one second or less. Please note that any valves placed on the supply line to the eyewash station must have their handles removed so no one accidentally shuts down the water supply to the eyewash station. 

Other Important Items: 

  • Clearance: To ensure eyewash units are not obstructed, it is highly recommended that a “Do Not Block” parameter is established. The use of hazard tape can facilitate proper clearance.  
  • Training: All employees who may be exposed to potential eye/face injuries from hazardous material should be trained on the operation of the eyewash unit. This includes where to locate the nearest eyewash unit and the importance of keeping the path to the unit obstruction free.
  • The eyewash station must have clearance 48 inches from the back wall or obstruction and 30 inches total (on sides) with the eyewash station present in the center.  27 inches knee clearance below the unit.
  • The ANSI standard requires that employers provide an accessible workplace to all employees. The eyewash stations must meet wheelchair accessibility requirements as well.
  • A single step up into an enclosure where the equipment can be accessed is not considered to be an obstruction. Additionally, installers should allow for adequate overhead clearance to accommodate the presence of cabinets over a counter or faucet-mounted emergency eyewash so as not to create an additional hazard that could be encountered when using the device. 
  • Purchasing equipment that is manufactured according to ANSI standards and maintenance and inspection of the equipment according to ANSI standards should be considered mandatory to all employers
  • OSHA considers violation of this standard to be a “Serious Violation.”  Penalty is $13,653.  Cost of an eyewash on Amazon is $120 (for wall mounted tank) and $200 for a plumbed unit.  No cost benefit analysis needed here. 

Does Parts Need an Eyewash:  The answer is yes according to CA OSHA Appeals Board (COSHAB) decision.  See Dockets 11-R3D2-1929 through 1931.  A big box warehouse store with multiple outlets in California was cited by Cal/OSHA for failure to have eye wash stations.  The employer appealed to COSHAB stating that the eye wash standard does not apply as the chemicals are merely unloaded, unboxed and placed on shelves in sealed containers by employees.  COSHAB held that the employees can be exposed to leaks and spills from packages damaged in transit and when employees unpack these cases.  Employees involved in cleanup in the warehouse where there is a spill have the potential to an eye injury from corrosive and irritating chemical, hence the requirement of an eyewash in the warehouse.

DISCLAIMER:  The contents of this newsletter are merely for informational purposes only and are not to be considered as legal advice. Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers in Arizona, California, Hawaii, Idaho, Nevada, New Mexico, New York, Texas, and Virginia comply with EPA and OSHA regulations for over 34 years.  Sam is Certified Safety Professional (No. 16515) certified by National Board of Certified Safety Professionals. Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997).  Our newsletters can be accessed at www.epaoshablog.com.  Your comments/questions are always welcome.  Please send them to sam@cellyservices.com.

California Proposition 65: Signs and Details

Proposition 65 has been a requirement for employers and retailers for many years. In 2018, the signs and notifications were changed to include language that notified the public of chemical hazards they had the potential to get exposed to. In the recent few days, we have received a few questions regarding the signs, the size requirements, and the posting requirements.  We must note that there are no new regulations here. This newsletter is merely a review of the changes that took effect in 2018. 

California’s Proposition 65, also called the Safe Drinking Water and Toxic Enforcement Act, was enacted in 1986. It is intended to help Californians make informed decisions about protecting themselves from chemicals known to cause cancer, birth defects, or other reproductive harm. The law had certain nuances not normally seen in toxic chemical regulations. The specific ones that catch our attention are as follows:

  • No Harm Requirement: Most of the regulations require that an actual harm be done before damages be awarded. In this case, the absence of mere warning was sufficient cause for dealers to cough up big money. A penalty of $2500 per day!
  • Standing: In order to litigate, a plaintiff must allege some connection to and actual or potential harm. Under this unique law, without harm but the mere absence of notice was sufficient cause for payment to plaintiff lawyers.
  • Bounty Hunter Clause: Proposition 65 is enforced entirely through litigation. While California’s AG is vested with principal enforcement, Proposition 65 also allows any individual or organization “acting in public interest” to sue for violations. The individuals or organizations can potentially collect attorney fees and 25% of any penalties assessed. Reportedly, 20,000 businesses have paid more than $600 million in penalties since 1987. This makes the case to use your $200 sign kit even stronger!

What Are the Most Significant Changes to the Proposition 65 Warnings For Consumer Products?

Since the original warning requirements took effect in 1988, most Proposition 65 warnings simply stated that a chemical is present that causes cancer or reproductive harm, but they did not identify the chemical or provide specific information about how a person may be exposed or ways to reduce or eliminate exposure to it. New OEHHA regulations, which take effect in August 2018, change the safe harbor warnings which are deemed to comply with the law in several important ways. For example, the new warnings for consumer products will say the product “can expose you to” a Proposition 65 chemical rather than saying the product “contains” the chemical. They will also include:

  • The name of at least one listed chemical that prompted the warning
  • The Internet address for OEHHA’s new Proposition 65 warnings website, http://www.P65Warnings.ca.gov, which includes additional information on the health effects of listed chemicals and ways to reduce or eliminate exposure to them
  • A triangular yellow warning symbol “ ” on most warnings

What Are Other Highlights of the New Warnings System?

The new warning regulation also:

  • Adds new “tailored” warnings that provide more specific information for certain kinds of exposures, products, and places.
  • Provides information for website warnings for products purchased over the Internet
  • Provides information for warnings in languages other than English in some cases
  • Clarifies the roles and responsibilities of manufacturers and retailers in providing warnings.

What is the Purpose of the New Proposition 65 Warnings (effective 2018) Website?

People who read Proposition 65 warnings and want to learn more can go to the website to find additional information about chemicals and best practices for reducing or eliminating exposures. The website contains fact sheets about Proposition 65 chemicals and specific types of exposure, anything from furniture products to enclosed parking facilities. It also answers frequently asked questions about Proposition 65 and includes a glossary of Proposition 65 terms.

Will Businesses Be Required to Provide the New Warnings?

Using the safe harbor warnings is an effective way for businesses to protect themselves against Proposition 65 enforcement actions. Businesses that use the safe harbor warnings are deemed compliant with the law’s requirement for clear and reasonable warnings.

What Circumstances Will Require Warnings in Languages Other Than English?

When a consumer product sign, label or shelf tag used to provide a warning includes consumer information in a language other than English, the warning must also be provided in that language in addition to English. Facilities that provide signage in non-English languages would also have to provide any required warnings in those languages, in addition to English.

For Internet purchases, warnings can be provided by including a clearly marked hyperlink using the word WARNING on the product display page.

What Are the Warning Responsibilities for Manufacturers and Retailers?

The new system clarifies that manufacturers have the primary responsibility for providing Proposition 65 warnings. Manufacturers can choose whether to put warning labels on their products or to provide notices to their distributors, importers or retail outlets that a product may cause an exposure to a listed chemical that requires a warning provide warning signs or other warning materials. Manufacturers can also enter written agreements with retailers to modify this allocation of responsibility as long as the consumer receives a clear and reasonable warning before her or she is exposed to a Proposition 65 chemical.

Retailers must confirm that they received the notice and must use the warning signs or other materials provided by the manufacturer. We attach information related to proposition 65 signs as they may apply to your facility. If you have any questions, please do not hesitate to contact us.

1. Label: Environmental Exposure
Where to Post: All Public Entrances to Showroom.
Size/Font: 72 font
Language Warning: English and in any other language used on other signage at the facility.
2. Label: Food Facilities
Where to Post: Waiting areas or any other areas that sells/serves food
Size/Font: 28 font 8.5”x11”
Language Warning: English and in any other language used on other signage or menus provided at the facility.
3. Label: Smoking Area(s)
Where to Post: Smoking area(s)
Size/Font: 22 font 8.5”x11”
Language Warning: English and in any other language used on other signage in the affected area.
4. Label: Vehicle Exposure Warnings
Where to Post: Driver’s side window of all new and used passenger vehicles for sale
Size/Font: No font size required but 12 font is recommended
Language Warning: No foreign language requirement, but include warning labels on the vehicle in other languages if the vehicle has sale signs in other languages.
5. Label: Vehicle Repair Facilities
Where to Post: All public entrances to service department
Size/Font: 32 font (enclosed in a box)
Language Warning: English and in any
other language used on other signage at the facility.
6. Label: Service Stations & Gas Pumps
Where to Post: Each gas pump
Size/Font: 22 font (enclosed in a box)
Language Warning: English and in any other language used on other signage at the facility.
7. Label: Occupational Exposure
Where to Post: Employee break area(s)
Size/Font: No font size required
Language Warning: English and in any other language used on other signage at the break area.
8. Label: Enclosed Parking Facilities
Where to Post: All entrances to parking structures that have an enclosed ceiling
Size/Font: 72 font
Language Warning: English and if other permanent entrance signage is provided in
any other language at the facility.
9.Label: Lead and Lead Compounds
Where to Post: Parts Counter at front and back.
Size/Font: 32 font
Language Warning: English and in any other language used on other signage at the facility.

Disclaimer:  There is no warranty implied or direct or whatsoever as to the completeness or applicability of these signs presented here.  The dealership must use the Proposition 65 Handbook published by California New Car Dealers Association to stay compliant.  The new CNCDA Proposition 65 Handbook is available upon login in the CNCDA Publications.  Guidance on Proposition 65 from California Office of Environmental Health Hazard Assessment (OEHHA) is available at https://oehha.ca.gov/proposition-65 and must be reviewed to ensure compliance.

Foot Protection Requirements

BACKGROUND: Safety inspections of the shop and parts department have revealed that many employees are not wearing appropriate footwear that can adequately protect them from foot injuries caused by crushing or falling objects, such as a rotor or a battery.  Sharp objects left on the shop floor can also penetrate the shoe and injure the foot. Footwear in the shop area must be slip resistant to protect employees should they encounter slippery surfaces (slip hazards are common due to accidental spills of lubricants in the shop).  The porters are subject to abnormally wet locations (car wash) and as such, their shoes must provide traction.  Recently, an automobile dealer was cited for failure to provide safety shoes.  A penalty of $5850 was assessed by Cal/OSHA for this serious violation.  California Court of Appeals has also upheld a citation against employers not providing proper safety footwear. See Home Depot U.S.A., Inc. v. Cal. Occupational Safety & Health Appeals Bd., E070417 (Cal. Ct. App. Oct. 17, 2019)

 

WHAT DO THE CALIFORNIA REGULATIONS SAY:

The Cal/OSHA regulation (T8CCR3385) is stated as follows:

  1. Appropriate foot protection shall be required for employees who are exposed to foot injuries from electrical hazards, hot, corrosive, poisonous substances, falling objects, crushing, or penetrating actions, which may cause injuries or who are required to work in abnormally wet locations.
  2. Footwear which is defective or inappropriate to the extent that its ordinary use creates the possibility of foot injuries shall not be worn.
  3. (1) Protective footwear for employees purchased after January 26, 2007 shall meet the requirements and specifications in American Society for Testing and Materials (ASTM) F 2412-05, Standard Test Methods for Foot Protection and ASTM F 2413-05, Standard Specification for Performance Requirements for Foot Protection which are hereby incorporated by reference.  The ASTM standard as quoted in the OSHA standard has been updated.  See note below.

 

Note 1: ASTM F2412-18a and ASTM F2413-18 are the most current standards in the industry. ASTM F2413-18 contains basic requirements to evaluate footwear, which include: Impact resistance (I), Compression resistance (C), Metatarsal protection (MT), and Conductive properties (CD) to limit static electricity buildup. In addition to these requirements, this standard requires labeling on the safety footwear to identify specific protections.

Note 2:  Cal/OSHA regulations, as mentioned above, state that footwear that creates the possibility of foot injuries shall not be worn and hence, any shoes that may cause injuries from ordinary use in the shop area should not be used.

WHAT DO THE FEDERAL REGULATIONS SAY: 

Federal Regulation as stated in CFR 1910.136(a) is as follows:  The employer shall ensure that each affected employee uses protective footwear when working in areas where there is a danger of foot injuries due to falling or rolling objects, or objects piercing the sole, or when the use of protective footwear will protect the affected employee from an electrical hazard, such as a static-discharge or electric-shock hazard, that remains after the employer takes other necessary protective measures.

Note 3:  The criteria for protective footwear is listed in 1910.136(b)(1)(i) where the footwear must meet the ASTM F-2412-2005, “Standard Test Methods for Foot Protection,” and ASTM F-2413-2005, “Standard Specification for Performance Requirements for Protective Footwear,” which are incorporated by reference in § 1910.6.  As noted above the ASTM regulations have been updated in 2018 and should be used for selection of footwear.

 

BEST PROTECTION:  Shoes for staff must meet ASTM standard as listed in Note(s) above.  The shoe must have metatarsal protection with a skid resistance sole. Metatarsal protectors consist of a guard that fits over the instep protecting the top of the foot from heavy items and are normally manufactured from aluminum, steel, or lightweight composites.  The car wash staff and any staff that encounter slippery surfaces must also wear shoes with soles that provide slip resistance and good traction.

HAZARD ASSESSMENT: OSHA regulations require that the employer conduct a workplace hazard assessment and provide PPE for protection from physical and health hazards present at the workplace.  If the hazard assessment of parts and service employees indicates the possibility of a foot hazard injury from falling objects, PPE should be provided.  See Title 8 California Code of Regulations Section 3380.  Fed-OSHA requirements on Hazard Assessment and Personal Protective Equipment selection are listed under CFR 1910.132 (a-d).

 

WHO PAYS-CA: The California Labor Code requires employers to “furnish and use safety devices and safeguards…” (Labor Code § 6401). The term “safety device” includes “any practicable method of mitigating or preventing” danger. Protective footwear is covered as a safety device. The Labor Code also requires employers to “provide and use safety devices and safeguards reasonably adequate to render the employment and place of employment safe.” (Labor Code § 6403).  Legal opinion on this matter has been made clear by the California Supreme Court. The Court has ruled that the words “provide” and “furnish” mean that the employer both supplies and pays for the personal protective gear.  (See Bendix Forest Products Corp. v. Division of Occupational Safety & Health (1979) 25 Cal. 3rd 465, 471-473).

 

WHO PAYS-Federal:  The shoes with metatarsal protection and slip resistant shoes are considered specialty footwear and require the employer to pay for the protective footwear.  OSHA has exempted employers from payment when the safety shoes are non-specialty type.

 

PROTECTIVE SHOE POLICY & ENFORCEMENT: The employer must provide shoes to each employee subject to foot injury hazards. Since shoes must be fitted for size and comfort, it is practical to seek help from a professional shoe supply company. Replacement upon wear and tear of the PPE is also the responsibility of the employer, along with instructions on proper usage, care, cleanliness, and maintenance. A written protective footwear policy should be adopted and distributed to all employees, and employee acknowledgment should be retained in files. Enforcement of policy, along with disciplinary action against employees violating the policy must also be put into effect.

 

SUMMARY: Proper footwear for certain employees is not an option but is a requirement under the law. Employees with their feet protected are less likely to be injured from falling objects. Shoes with good traction help mitigate slip and fall hazards. Fewer injuries translate to fewer workers’ compensation claims and a reduction in related premiums. Improved productivity, better employee morale, and increased shop efficiency are also a given. 

DISCLAIMER:  The contents of this newsletter are merely for informational purposes only and are not to be considered as legal advice.   Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers comply with EPA and OSHA regulations since 1987.  Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997).  Our newsletters can be accessed at www.epaoshablog.com.  Your comments/questions are always welcome.  Please send them to sam@cellyservices.com.

POST YOUR INJURY LOG (300A) ON EMPLOYEE NOTICE BOARD 2-1-21 TO 4-30-21 LOG 300, 300A & 301 REQUIRED FOR AUTO DEALERS

POST YOUR INJURY LOG (300A) ON EMPLOYEE NOTICE BOARD

2-1-21 TO 4-30-21

LOG 300, 300A & 301 REQUIRED FOR AUTO DEALERS

 

Background: Cal/OSHA and Fed-OSHA require auto dealers and other employers to keep a record of occupational injuries and illnesses using OSHA Log 300 and to post a summary on the employee notice board from February 1 to April 30, 2021

 

Forms & Guidance to Fill: Fed-OSHA and Cal/OSHA forms are identical in nature.

 

California Forms: https://www.dir.ca.gov/dosh/DoshReg/ApndxA300Final.pdf (Fillable Form)

Cal/OSHA exempts certain industries: https://www.dir.ca.gov/t8/14300_2.html

 

Federal-OSHA: https://www.osha.gov/recordkeeping/RKforms.html

·        OSHA Form 300 – Log of Work-Related Injuries & Illnesses

·        OSHA Form 300A – Summary of Work-Related Injuries & Illnesses

·        OSHA Form 301 – Injury & Illness Incident Report

Fed-OSHA exempts certain industries: https://www.osha.gov/recordkeeping/ppt1/RK1exempttable.html

 

Posting Requirements: Form 300A (Summary of Work-Related Injuries & Illnesses) for 2020 must be posted on the employee notice board from February 1, 2021 to April 30, 2021. ONLY Form 300A needs to be posted. Disclosing injured employee name on the notice board is a big no-no.

 

Cal/OSHA Guide on Completing Forms: http://www.dir.ca.gov/dosh/dosh_publications/reckeepoverview.pdf

 

Fed-OSHA Guide on Completing Forms: https://www.osha.gov/recordkeeping/tutorial.html 

 

Tutorial for Completing Forms: A tutorial is available to assist in completing the forms at https://www.osha.gov/recordkeeping/tutorial.html 

 

Recordkeeping Questions & Answers: See https://www.osha.gov/recordkeeping

 

First-Aid Not Recordable on Log 300: First-aid is https://www.osha.gov/recordkeeping/firstaid_list.pdf​.

 

Serious Injury: Call your local OSHA office to report serious injury. Cal/OSHA’s phone number is on the employee labor law poster. Fed-OSHA reporting line is 1-800-321-6742 (OSHA). California and Federal definitions of serious injury differ. California Code on reporting serious injury is https://www.dir.ca.gov/title8/342.html.  

 

Commentary: The forms are provided as a tool for the employer to document injuries, inform employees of accidents at the facility and allow OSHA inspectors to obtain a quick summary of accidents in the workplace. 

Employers must use this log as a management tool to gauge the nature and frequency of injuries in order to determine corrective measures for accident elimination and counsel employees who show up on the accident log on a repeated basis. Certain highlights of the forms are as follows:

·     Requires records to include any work-related injury or illness resulting in one of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first-aid, loss of consciousness, or diagnosis of a significant injury or illness by a physician or other licensed health care professional. 

·     Requires a significant degree of aggravation before a preexisting injury or illness becomes recordable.

·     Requires employers to record cases when injured or ill employees are restricted from their “normal duties,” which are defined as work activities employees regularly perform at least once per week.

·     You may stop counting days of restricted work activity or days away from work once the total of either or the combination of both reaches 180 days.

·     Focus on days away or days restricted or transferred. Rules rely on calendar days instead of workdays!

·     Requires employers to establish a procedure for employees to report injuries and illnesses and to tell their employees how to report. Employers are prohibited from discriminating against employees who report. Employee representatives will have access to those parts of OSHA Form 301 relevant to the employees they represent.

 

Cal/OSHA Reporting Guidelines: An employee trips in the service driveway of your dealership during normal course of business and seeks medical treatment. Employee comes back to work the next day but continues treatment of physiotherapy and medication. After 6 months, the MD states that only surgery can cure the knee problem and the employee proceeds with knee replacement surgery. The issue is whether this knee accident is now Cal/OSHA reportable as a serious injury accident. Yes, the accident must be reported to Cal/OSHA under the serious injury reporting statutes (Section 342). Employers are required to report incidents within 8 hours to Cal/OSHA as follows:

·     Any fatality.

·     Any inpatient hospitalization for work related injury or illness, for anything other than medical observation or diagnostic testing must be reported.

·     An amputation, the loss of an eye, or any serious degree of permanent disfigurement, but does not include any injury or illness or death caused by an accident on a public street or highway, unless the accident occurred in a construction zone.

 

Fed-OSHA Reporting Guidelines: Employers have to report the following events to Fed-OSHA:

·     All work-related fatalities

·     All work-related in-patient hospitalizations of one or more employees

·     All work-related amputations

·     All work-related losses of an eye

Employers must report work-related fatalities within 8 hours of finding out about it.

For any in-patient hospitalization, amputation, or eye loss employers must report the incident within 24 hours of learning about it.

Only fatalities occurring within 30 days of the work-related incident must be reported to OSHA. Furthermore, for an inpatient hospitalization, amputation or loss of an eye, then incidents must be reported to OSHA only if they occur within 24 hours of the work-related incident.

 

Questions Asked During Reporting:

1.  Time and date of accident/event

2.  Employer’s name, address and telephone number

3.  Name and job title of the person reporting the accident

4.  Address of accident/event site

5.  Name of person to contact at accident/event site

6.  Name and address of injured employee(s)

7.  Nature of injuries

8.  Location where injured employee(s) was/were taken for medical treatment

9.  List and identity of other law enforcement agencies present at the accident/event site

10.  Description of accident/event and whether the accident scene or instrumentality has been altered.

 

Electronic Recordkeeping Submission: Establishments with 250 or more employees that are currently required to keep OSHA injury and illness records must electronically submit information from OSHA Forms 300 — Log of Work-Related Injuries and Illnesses, 300A — Summary of Work-Related Injuries and Illnesses, and 301 — Injury and Illness Incident Report. See https://www.osha.gov/Publications/OSHA3862.pdf.

 

 

 

 

 

DISCLAIMER: The contents of this newsletter are merely for informational purposes only and are not to be considered as professional advice. Information from www.osha.gov was used to prepare part of this newsletter. Employers must consult their lawyer for legal matters and safety consultants for matters related to safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers comply with EPA & OSHA regulations since 1987. Sam received his BE (1984) and MS (1986) in Chemical Engineering followed by a J.D. from Southwestern University School of Law (1997). Our newsletters can be accessed at www.epaoshablog.com. Your comments/questions are always welcome. Please send them to sam@cellyservices.com.

Cal/OSHA Emergency Temporary Standard (ETS) Effective December 1, 2020 to October 2, 2021

California has enacted regulations that require employers to comply with a series of employee health & safety and workers’ comp regulations.  The regulations are lengthy and complex. This newsletter highlights Cal/OSHA Emergency Temporary Standard (ETS) and COVID-19 ETS FAQ. The ETS is currently effective till October 2, 2021 and may be readopted twice thereby extending the effective life of this regulation.  Legal challenges to ETS by employer trade groups are pending in LA County and San Francisco Courts and a possible adverse ruling to the ETS may provide relief to employers.

Key Definitions:

  1. “COVID-19” means coronavirus disease, an infectious disease caused by the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).
  2. “COVID-19 case” means a person who:
    1. Has a positive “COVID-19 test” as defined in this section;
    2. Is subject to a COVID-19-related order to isolate issued by a local or state health official; or
    3. Has died due to COVID-19, in the determination of a local health department . . .
  3. “COVID-19 exposure” means being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period.
  4. “COVID-19 hazard” means exposure to potentially infectious material that may contain SARS-CoV-2
  5. “Exposed workplace” means any work location, working area, or common area at work used or accessed by a COVID-19 case during the high-risk period.
  6. “COVID-19 Outbreak” means three or more COVID-19 cases in an exposed workplace within a 14-day period. The employer shall contact the local health department immediately but no longer than 48 hours after the employer knows of three or more COVID-19 cases for guidance on preventing the further spread of COVID-19 within the workplace.

The COVID-19 Prevention Program: To comply with the ETS, an employer must develop a written COVID-19 Prevention Program. The employer must implement the following:

  1. Communication to employees about the employer’s COVID-19 prevention procedures
  2. Identify, evaluate, and correct COVID-19 hazards
  3. Physical distancing of at least six feet unless it is not possible
  4. Use of face coverings
  5. Use engineering controls, administrative controls and personal protective equipment as required to reduce transmission risk
  6. Procedures to investigate and respond to COVID-19 cases in the workplace
  7. Provide COVID-19 training to employees
  8. Provide testing to employees who are exposed to a COVID-19 case, and in the case of multiple infections or a major outbreak, implement regular workplace testing for employees in the exposed work areas
  9. Exclusion of COVID-19 cases and exposed employees from the workplace until they are no longer an infection risk
  10. Maintain records of COVID-19 cases and report serious illnesses and multiple cases to Cal/OSHA and the local health department, as required.
  11. Return to work criteria.

 

COVID-19 ETS FAQ:

Q: What is the criteria for an employee exposed to a COVID-19 case in the workplace to return to work?
A: Employees with COVID-19 exposure may return to the workplace 14 days after the last known COVID-19 exposure.

Q: What training must an employer provide employees under the ETS?
A: Employee training must cover:

  • Employer policies and procedures to protect employees from COVID-19 hazards.
  • COVID-19 related benefit information, from either the employer or from federal, state, or local government, that may be available to employees impacted by COVID-19. Information on COVID-19 benefits such as paid sick leave and workers’ compensation benefits is posted on the Department of Industrial Relations’ Coronavirus Resources webpage.
  • The fact that COVID-19 is an infectious disease that can be spread through the air when an infectious person talks or vocalizes, sneezes, coughs, or exhales; that COVID-19 may be transmitted when a person touches a contaminated object and then touches their eyes, nose, or mouth, although that is less common; and that an infectious person may show no symptoms.
  • The importance of physical distancing and wearing face coverings.
  • The fact that particles containing the virus can travel more than six feet, especially indoors, so physical distancing must be combined with other controls, including face coverings and hand hygiene, to be effective.
  • The importance of frequent hand washing for at least 20 seconds and use of hand sanitizer when handwashing facilities are not available.
  • Proper use of face coverings, and the fact that they are not respiratory protection.
  • The symptoms of COVID-19 and the importance of not coming to work and getting tested if an employee has symptoms.

Q: What are the criteria for a COVID-19 case to return to work?
A: A COVID-19 case may return to work when any of the following occur:

  • For employees with symptoms all of these conditions must be met:
    1. At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications.
    2. COVID-19 symptoms have improved; and
    3. At least 10 days have passed since COVID-19 symptoms first appeared.
  • For employees without symptoms, at least 10 days have passed since the COVID-19 case’s first positive test.
  • If a licensed health care professional determines the person is not/is no longer a COVID-19 case, in accordance with California Department of Public Health (CDPH) or local health department recommendations.

Q: What engineering controls and administrative controls must an employer implement?
A: Requirements include:

  • Engineering controls
    • Install cleanable solid partitions that reduce the risk of aerosol transmission between fixed work locations where it is not possible to physically distance (such as Plexiglas barriers)
    • Maximize the amount of outside air to the extent feasible, unless there is poor outside air quality (an AQI of 100 or higher for any pollutant) or some other hazard to employees such as excessive heat or cold
  • Administrative controls
    • Implement effective cleaning procedures of commonly touched surfaces, such as doorknobs, elevator buttons, equipment, tools, handrails, handles, controls, bathroom surfaces, and steering wheels
    • Inform employees and employees’ authorized representatives of cleaning and disinfection protocols and planned frequency and scope of cleaning
    • Minimize to the extent feasible the sharing of tools, equipment and vehicles
    • If tools, equipment and vehicles must be shared, disinfect between users

Cal/OSHA has posted a Model COVID-19 Prevention Program on its website for employers fill out and use.

Reference: https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html; https://www.dir.ca.gov/dosh/coronavirus/ETS.html; dl 01052021

DISCLAIMER:  The contents of this newsletter are merely for informational purposes only and are not to be considered as legal advice.   Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers comply with EPA and OSHA regulations since 1987.  Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997).  Our newsletters can be accessed at http://www.epaoshablog.com.  Your comments/questions are always welcome.  Please send them to sam@cellyservices.com.

FAQ: Cal/OSHA Recording and Reporting Requirements for COVID-19 Cases

Frequently Asked Questions – RECORDING INJURIES ON LOG

  1. Do employers have to record COVID-19 illnesses on their Log 300?

Yes, California employers that are required to record work-related fatalities, injuries and illnesses must record a work-related COVID-19 fatality or illness like any other occupational illness. To be recordable, an illness must be work-related and result in one of the following:

    • Death.
    • Days away from work.
    • Restricted work or transfer to another job.
    • Medical treatment beyond first aid.
    • Loss of consciousness.
    • A significant injury or illness diagnosed by a physician or other licensed health care professional.

If a work-related COVID-19 case meets one of these criteria, then covered employers in California must record the case on their 300, 300A and 301 or equivalent forms.  For work-related criteria, see Question 3 below.

See California Code of Regulations, title 8, Chapter 7, Subchapter 1, Article 2, Employer Records of Occupational Injury or Illness for details on which employers are obligated to report and other requirements.

  1. Does a COVID-19 case have to be confirmed to be recordable?

Pursuant to recent federal OSHA guidance, a COVID-19 case should generally be confirmed through testing to be recordable. However, due to testing shortages and a variety of other reasons, not all persons determined to have COVID-19 have been tested.

Thus, while Cal/OSHA considers a positive test for COVID-19 determinative of recordability, a positive test result is not necessary to trigger recording requirements. There may be other situations in which an employer must make a recordability determination even though testing did not occur, or the results are not available to the employer. In these instances, the case would be still be recordable if it meets any one of the other general recording criteria from Section 14300.7 described above, such as resulting in days away from work. Cal/OSHA recommends erring on the side of recordability.

  1. How does an employer determine if a COVID-19 case is work-related for recordkeeping purposes?

For recordkeeping purposes, an injury or illness is considered work-related if an event or exposure in the work environment either caused or contributed to the resulting condition, or significantly aggravated a pre-existing injury or illness. An injury or illness is presumed to be work-related if it results from events or exposures occurring in the work environment unless an exception in section 14300.5(b)(2) specifically applies.

A work-related exposure in the work environment would include interaction with people known to be infected with COVID-19 working in the same area where people known to have been carrying COVID-19 had been; or sharing tools, materials or vehicles with persons known to have been carrying COVID-19. Given the disease’s incubation period of 3 to 14 days, exposures will usually be determined after the fact.

If there is not a known exposure that would trigger the presumption of work-relatedness, the employer must evaluate the employee’s work duties and environment to determine the likelihood that the employee was exposed during the course of their employment.  Employers should consider factors such as:

    • The type, extent, and duration of contact the employee had at the work environment with other people, particularly the public.
    • Physical distancing and other controls that impact the likelihood of work-related exposure.
    • Whether the employee had work-related contact with anyone who exhibited signs and symptoms of COVID-19.

See title 8 section 14300.5 for details and the exceptions.

  1. Is time an employee spends in quarantine considered “days away from work” for recording purposes?

No. Unless the employee also has a work-related illness that would otherwise require days away from work, time spent in quarantine is not “days away from work” for recording purposes.

Frequently Asked Questions – REPORTING INJURIES to Cal/OSHA

  1. When do employers have to report COVID-19 illnesses to Cal/OSHA immediately?

In addition to the recordkeeping requirements discussed above, California employers must also report to Cal/OSHA any serious illness, serious injury or death of an employee that occurred at work or in connection with work within eight hours of when they knew or should have known of the illness. (See section 342(a).) This includes a COVID-19 illness if it meets the definition of serious illness.  Failure to report carries a penalty of $5,000.

A serious illness includes, among other things, any illness occurring in a place of employment or in connection with any employment that requires inpatient hospitalization for other than medical observation or diagnostic testing. (See section 330(h).) This means that if a worker becomes ill while at work and is admitted as in-patient at a hospital — regardless of the duration of the hospitalization — the illness occurred in a place of employment, so the employer must report this illness to the nearest Cal/OSHA office. Reports must be made immediately, but not longer than eight hours after the employer knows or with diligent inquiry would have known of the serious illness.

 

 

Fed-OSHA Reporting Guidelines:  Employers have to report the following events to Fed-OSHA:

  • All work-related fatalities
  • All work-related in-patient hospitalizations of one or more employees
  • All work-related amputations
  • All work-related losses of an eye

Employers must report work-related fatalities within 8 hours of finding out about it. For any in-patient hospitalization, amputation, or eye loss employers must report the incident within 24 hours of  learning about it. Only fatalities occurring within 30 days of the work-related incident must be reported to OSHA. Further, for an inpatient hospitalization, amputation, or loss of an eye, then incidents must be reported to OSHA only if they occur within 24 hours of the work-related incident.

 

 

  1. What if the employee became sick at work but the illness is not work-related?

For reporting purposes, if the employee became sick at work, it does not matter if the illness is work-related. Employers must report all serious injuries, illnesses or deaths occurring at work without making a determination about work-relatedness. For some diseases such as COVID-19, associated respiratory symptoms such as difficulty breathing can be caused by a variety of occupational exposures. It is important for employers to report these cases to Cal/OSHA so that the Division can make the preliminary determination of work-relatedness.

  1. What if an employee started to show symptoms outside of work?

Reportable illnesses are not limited to instances when the employee becomes ill at work. Serious illnesses include illnesses contracted “in connection with any employment,” which can include those contracted in connection with work but with symptoms that begin to appear outside of work. An employer should report a serious illness if there is cause to believe the illness may be work-related, regardless of whether the onset of symptoms occurred at work.

For COVID-19 cases, evidence suggesting transmission at or during work would make a serious illness reportable. An employer should consider factors similar to those described above in the answer to Question 3 under Recording:

    • Multiple cases in the workplace.
    • The type, extent, and duration of contact the employee had at the work environment with other people, particularly the public.
    • Physical distancing and other controls that impact the likelihood of work-related exposure.
    • Whether the employee had work-related contact with anyone who exhibited signs and symptoms of COVID-19.

Where there is uncertainty about whether an employee contracted COVID-19 at work, the employer should err on the side of reporting the illness to Cal/OSHA.  Reporting a serious injury will trigger an OSHA investigation that may lead to further penalties, an employer is well served to determine whether the injury is work related or not as soon as possible.

  1. Do I report an illness even if COVID-19 has not yet been diagnosed?

Yes, even if a suspected COVID-19 case has not been diagnosed by a licensed health professional, an employer should still report it to Cal/OSHA if the illness occurred in connection to any employment related issue as described above and if it resulted in death or in-patient hospitalization.

  1. Am I admitting to liability when I report a serious illness?

No. Reporting a serious illness is not an admission that the illness is work-related, nor is it an admission of responsibility.

  1. How does the Governor’s Executive Order on COVID-19 and workers’ compensation eligibility affect Cal/OSHA reporting and recording requirements?

Governor Newsom’s Executive Order N-62-20 addresses eligibility for workers compensation benefits. FAQs on the Order are available on Cal/OSHA’s website. The Order does not alter employers’ reporting and recording obligations under Cal/OSHA regulations.

Source: https://www.dir.ca.gov/dosh/coronavirus/Reporting-Requirements-COVID-19.html

DISCLAIMER:  The contents of this newsletter are merely for informational purposes only and are not to be considered as legal advice.   Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety.  Our newsletters can be accessed at www.epaoshablog.com.  Your comments/questions are always welcome.  Please send them to sam@cellyservices.com.

How to Handle OSHA Investigations

As of April 17, 2020, Cal/OSHA had received over 1,500 complaints about employers who allegedly failed to provide proper protection during the ongoing pandemic related to the COVID-19 crisis.  OSHA’s investigative powers are limited in their ability to fully investigate all these complaints.  Cal-OSHA Reporter noted that in the first quarter of 2019, OSHA had investigated only 488 complaints.  For 2020, the number of investigations will likely increase.

 

WHAT IS OSHA LOOKING FOR:  The regulations that allow OSHA to investigate COVID-19 related complaints at auto dealerships are as follows:

Personal Protective Equipment:  Personal Protective Equipment (PPE) requires using gloves, eye and face protection, and respiratory protection when job hazards warrant it.  When respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program in accordance with the Respiratory Protection standard.  Compliance requires an assessment of hazards and then proving proper PPE that addresses those hazards.  PPE must be provided at no cost and employees provided with training in proper usage.

Hazard Communication Program:  Employers must also protect their workers from exposure to hazardous chemicals used for cleaning and disinfection. Employers should be aware that common sanitizers and sterilizers could contain hazardous chemicals. Where workers are exposed to hazardous chemicals, employers, must comply with this standard.  Requirements include a written program, providing SDS, proper labels on containers and training on understanding the hazards related to chemicals in use.

General Duty Clause:  The clause requires employers to provide each worker “a place of employment, which [is] free from recognized hazards that are causing or are likely to cause death or serious physical harm.”  This is literally the catch-all provision that OSHA inspectors can use when no standard seems to be violated.

HOW TO HANDLE AN OSHA INSPECTION

Inspections are always conducted without advance notice.  As a matter of policy, it is considered acceptable that the OSHA inspector may be kept wait for 20-minutes prior to the inspection process beginning  Management can alert all responsible Managers on the premises regarding the presence of OSHA and possible involvement in the inspection process.

 

WHAT DOES THE INSPECTION PROCESS INVOLVE?

Inspectors’ Credentials: When the OSHA compliance officer arrives at the establishment, he or she displays official credentials and asks to meet an appropriate employer representative.  In the opening conference, the compliance officer explains how the establishment was selected and what the likely scope of the inspection will be. Take written notes during the opening conference and note the scope indicated by the inspector.

The compliance officer asks the employer to select an employer representative to accompany the compliance officer during the inspection. This person must stay with the inspector until departure from the company premises.

Limitation on OSHA Inspections:  OSHA has limitations on inspection authority when visiting a place of employment. OSHA officers may try to expand the scope of inspection during the visit and upon informed consent may proceed to collect evidence that can significantly increase the violations detected and related penalties. Therefore, it is critical that the employer only provides OSHA with access to the location that is related to the underlying cause of inspection.  Such boundaries must be established during the opening conference with the OSHA officer.

 

In a recent case, the US Court of Appeals limited the scope of inspection available to OSHA.  The case involved an employee who was injured while repairing an electrical panel.  See USA v. Mar-Jac Poultry, Inc., No. 16-17745 (11th Cir. 2018).  The employee was hospitalized triggering a report to OSHA under federal regulations. OSHA inspected the facility and was granted access by the employer to look at the electrical panel area. Upon request, OSHA inspectors were provided Injury Log 300 by the employer. Upon review of Log 300, OSHA filed for a search warrant to investigate other locations at the plant where the injuries as reported on the Log 300 had occurred. The search warrant was granted. Subsequently, the employer filed a motion to vacate the search warrant which was granted by the District Court. OSHA appealed the lower court’s decision to the 11th Circuit Court of Appeals.

 

The appeals court held that logs are merely records of injuries and not proof of OSHA violations. The mere existence of injuries, the court noted in this case, does not mean that injuries were caused by OSHA violations, nor do they justify the issuance of administrative warrant for gathering evidence of OSHA violations. Recordkeeping regulations as found in 29 CFR Part 1904 state that the recording of injuries on Log 300 does not mean that an employer is at fault or that an OSHA violation has occurred. This decision serves as guidance to employers to limit OSHA inspections to the complaint area. Unless the employer consents, a judicial warrant is required under the Fourth Amendment. If OSHA wishes to expand its search under information procured during initial inspection, the employer should seek legal counsel to limit the inspection as available under the current law.

Walk-Through: Do not allow the inspector to veer in a direction not agreed in the scope at the opening conference! The compliance officer will observe safety, health conditions, and practices.

When compliance officer finds a violation in open view, called the “plain view exception,” the scope of inspection now incorporates the plain view observation. The employer may shut down the area of the shop where the inspector will  walk-through.  The compliance officer may wish to interview employees to get their opinion of the accident at the workplace.

Closing Conference: At the conclusion of the inspection, the compliance officer conducts a closing conference with the employer.  The compliance officer gives the employer and all other parties involved a copy of Employer Rights and Responsibilities Following an OSHA Inspection for their review and discussion. The compliance officer discusses with the employer all unsafe or unhealthy conditions observed during the inspection and indicates all apparent violations for which he or she may issue or recommend a citation and a proposed penalty. The compliance officer will inform the employer of appeal rights.

The office will request documents related to the inspection be mailed to OSHA in a specified time.  Discuss the documents prior to submission with your counsel.  At times, documents may be held back for reasons of privacy or relevance.

CITATIONS & PENALTIES ?

Citations: OSHA citations inform the employer and employees of the regulations and standards alleged to have been violated and note the proposed length of time set to correct alleged violations. The employer must post a copy of each citation at or near the place a violation occurred for 3 days or until the violation is abated, whichever is longer.  Certain notable violations for general industry in California for 2010-2016 can be found at https://www.dir.ca.gov/dosh/citation.html

 

Sam Celly of Celly Services, Inc. has been helping automobile dealers comply with EPA and OSHA regulations since 1987.  Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997).  His newsletters can be accessed at www.epaoshablog.com.  Your comments/questions are always welcome.  Please send them to sam@cellyservices.com.