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States, Localities Filling Federal Void With Virus Safety Rules

Aug. 7, 2020, 1:30 PM

Federal safety officials aren’t issuing a national coronavirus exposure rule, so state and local governments are taking matters into their own hands by enacting Covid-19 workplace protection mandates.

They’re using a range of agencies—from state safety inspectors to city health and building departments—to enforce the hodgepodge of executive orders, state laws, and local ordinances created in the absence of federal Occupational Safety and Health Administration regulatory action.

The mixture of requirements means employers must carefully follow frequently changing orders and guidance.

“It can be huge task just to keep up with, understand, and track all the changes at those different levels,” said attorney Michael Eckard, a managing shareholder at Ogletree Deakins P.C.’s Charleston, S.C., office.

The law firm’s spreadsheet of mandates across the nation for wearing masks and checking workers’ temperatures is 128 pages long.

Bloomberg Law also tracks state and local Covid-19 regulations and lists 439 regulations related to workplaces.

Follow the CDC

Atlanta-based attorney Benjamin Briggs, co-chair of Seyfarth Shaw L.L.P.’s Workplace Safety & Environmental Practice Group, said that for the most part state and local mandates use guidance from the federal Centers for Disease Control and Prevention as their baseline.

Employers with sites across the country should ensure their policies line up with the CDC guidance and closely follow state and local agencies where the sites are located, Briggs said.

The state and local requirements may be slow to incorporate changes to CDC guidance, Briggs said.

For instance, in mid-July, the CDC revised part of its criteria for when workers who test positive for Covid-19 can return to work from “at least 72 hours” to “at least 24 hours” having passed since last fever without the use of fever-reducing medications. State and local regulators may decide to keep the 72-hour mandate as part of their return-to-work requirements, Briggs said.

At first, many of the state and local mandates covered checking workers’ temperatures before allowing them into a work site, Eckard said.

Since the pandemic began, requirements have morphed to include face masks, evaluating workers for Covid-19, and businesses notifying public health officials when a worker tests positive for the coronavirus, even in cases where the workplace wasn’t the likely source of the infection, he added.

Eckard cited New Mexico’s Occupational Safety and Health Bureau issuing a rule change on Aug. 5 mandating that employers notify the agency of any worker’s positive Covid-19 test within four hours of learning the result.

One recent trend in state and local regulations is specifying acceptable mask substitutes in cases where a worker for medical reasons can’t wear a face mask, Briggs said.

The 22 states with their own workplace safety and health agencies covering private employers often use the agencies to enforce state Covid-19 rules and executive orders.

Washington’s Division of Occupational of Occupational Safety and Health announced on Aug. 5 that it had cited eight gyms and a tanning a salon for violating the state executive orders by reopening too soon and proposed fines totaling more $86,000.

Also on Aug. 5, the Oregon Occupational Safety and Health Administration said that since March it had conducted over 5,000 spot checks of businesses, initiated more than 60 inspections based on virus-related complaints, and issued 14 citations plus five “Red Warning Notices” requiring business to close.

States without their own workplace safety agencies may use health departments to check for violations of state regulations.

When a health department is checking a business for compliance, Briggs said, the inspectors usually treat the first visit as a consultation and don’t issue citations. Health citations could be issued if a second visit still finds alleged violations.

In addition, employers depending on licenses and permits issued by state and local governments may be subject to virus regulations enforced by such agencies as building departments and alcohol control boards, Briggs said.

Michigan Mandates

Michigan employers are subject to executive orders enforced by the Michigan Occupational Safety and Health Administration as well as state and local public health mandates.

The state decided to use executive orders instead of enacting a rule in order to keep pace with the evolving methods of preventing infections, said Sean Egan, Michigan’s Covid-19 workplace safety director and a deputy director at the Department of Labor and Economic Opportunity.

If a business isn’t adhering to the executive orders, Michigan’s OSHA can cite the employer using the state’s general duty clause, Egan said. Like the federal clause, the state provision requires employers to provide workplaces free of known hazards that could kill or leave a worker seriously ill.

Michigan cities and counties are also free to enact their own public health rules, which can affect workers, if the local requirements are stricter than state requirements, he said.

The Michigan agency has initiated two emphasis programs—one for hospitals and the other for businesses that are open to the public such as stores, restaurants, and bars.

Much of the hospital program’s emphasis is on helping them deal with shortages of protective gear.

“We’re certainly working with employers to identify needs and gaps in their programs. Our intention is to educate, not necessarily cite,” Egan said.

The state is taking a tougher stance with stores and restaurants.

“Employers will have the opportunity to abate any potential issues they are having and make corrections before we would issue a severe penalty,” Egan said. “For those employers where it is clear they are not really complying at all or skirting the rules, there certainly can be a citation issued.”

In addition to Michigan’s OSHA, state and local public health agencies and the Michigan Liquor Control Commission have a hand in enforcing orders that bridge between worker health and public health, he said.

An immediate focus are college towns where newly arriving students could soon try to crowd eateries and bars that had been quiet during the summer, Egan said.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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