A Paradigm Shift: Work, COVID-19 & OSHA

A Paradigm Shift: Work,
COVID-19 & OSHA
An Update - September 2021
Originally Done September 2020
A Webinar Presented by
The Chamber of Manitowoc County and Safety Fitz LLC
Prepared by
Tom Fitzgerald MS PHR

What has Changed Since September of 2020?
September 19, 2021
Wisconsin, 771,872 Confirmed Cases, 8703 Deaths
Manitowoc County, 10, 008 Confirmed Cases, 99 Deaths
September 18, 2021
148, 252 7-Day Average Active Cases*
69,983 Reported Cases
USA
September 19, 2020
41,872 7-Day Average Active Cases*
36,356 New Cases
*
*
Source: NY Times
Source NBC News

 December 14, 2020, first Pfizer-BioNTech COVID-19 FDA vaccination
made to a New York, NY, nurse
 January 9, 2021, Hit Peak of Pandemic, 253, 946 7-Day Active Cases
and 251,919 New Cases
 January 20, 2021, New Administration comes into office. President
Biden issues order for all to wear masks where he has authority and
issues EO to rejoin the World Health Organization (WHO).
 Vaccinations ramp up, and early goals are achieved. Trend Flattens
September 18, 2021 - USA
1 Dose 211,489.242 63.3%*
Fully Vaccinated 181,035,022 55.2%
*Note: “Herd or Population Immunity” not
yet exactly known for Covid. Best medical
guess is in the 70-85% range of population.
Polio is 80%. One interesting quote, “We
will get there one way to the other!”
Wisconsin 3,230,000 fully vaccinated 55.5%

 June 21, 2021, - OSHA Issues following Emergency Temporary Standards
(ETS) Granted by Subpart U of the OSHA Act:
 1910.502 Healthcare
 1910.503 Mini Respirator Program
 1910.504 Serviceability
 1910.505 Incorporation by Reference
 June 28 and July 7, 2021 - OSHA Issues two Compliance Documents
for enforcement of Standards documents 1910.502 thru 1910.505
 DIR 2021-02 (CPL 02) June 28, 2021
 DIR 2021-03 (CPL 03) July 7, 2021

 Conduct a hazard assessment and implement a COVID-19 plan for each workplace. Engage employees
in the development of the plan.
 Designate workplace safety coordinator(s), knowledgeable in infection control principles and
practices, with authority to implement, monitor, and ensure compliance with the plan.
 Limit and monitor points of entry to settings where direct patient care is provided; screen and triage
patients, clients, residents, delivery people and other visitors and non-employees entering the setting
for symptoms of COVID-19; and implement patient management strategies.
 Develop and implement policies and procedures to adhere to Standard and Transmission-Based
Precautions in accordance with Centers for Disease Control (CDC) guidelines.
Continued on next page
As part of OSHA’s commitment to protect workers and deliver stronger worker safety protections, the
agency has issued a COVID-19 Healthcare ETS that establishes new requirements to protect workers
from exposure to COVID-19 in all settings, with some exceptions, where any employee provides
healthcare or healthcare support services. The ETS requires employers to:
Overview of COVID-19 ETS (29 CFR 1910.502)

 Provide and ensure employees wear facemasks when indoors and when occupying a vehicle with
other people for work purposes; provide and ensure employees use respirators and other personal
protective equipment (PPE) for exposure to people with suspected or confirmed COVID-19 and for
aerosol-generating procedures (AGPs) on a person with suspected or confirmed COVID-19; and
provide respirators and other PPE in accordance with Standard and Transmission-Based Precautions.
 Perform AGPs on persons with suspected or confirmed COVID-19 in an airborne infection isolation
room, if available; limit employees present to only those essential; and clean and disinfect surfaces
and equipment promptly after the procedure is completed.
 Keep employees at least 6 feet apart from others when indoors, unless not feasible for a specific
activity (e.g., hands-on medical care).
 Install cleanable or disposable solid barriers at fixed work locations in non-patient care areas where
employees are not separated from other people by at least 6 feet.
 Follow standard practices for cleaning and disinfection of surfaces and equipment in accordance with
CDC guidelines in patient care areas, resident rooms, and for medical devices and equipment or in all
other areas when a person who is COVID-19 positive has been in the workplace in the last 24 hours; in
all other areas, clean high-touch surfaces and equipment at least once a day; and provide alcohol-
based hand rub that is at least 60% alcohol or provide readily accessible handwashing facilities.
Continued on next page

 Ensure adequate ventilation in accordance with the ETS, if the employer owns or controls buildings or
structures with an existing HVAC system(s) and/or existing AIIR(s).
 Screen employees before each work day and shift for COVID-19 symptoms; require each employee to promptly
notify the employer when the employee is COVID-19 positive, has been told by a licensed healthcare provider
that they are suspected to have COVID-19, or experiencing certain symptoms; and notify potentially exposed
employees within 24 hours when a person who has been in the workplace is COVID-19 positive.
 Remove any employee who is COVID-19 positive or has been told by a licensed healthcare provider that they
are suspected to have COVID-19, certain COVID-19 symptoms, or have had close contact with a person who is
COVID-19 positive in the workplace; in some cases, provide pay and benefits to employees removed from the
workplace.
 Provide paid time off for vaccinations and vaccine side effects.
 Train employees on workplace policies and procedures regarding COVID-19 in accordance with the ETS.
 If an employer has more than 10 employees on the effective date of this ETS, record all employee cases of
COVID-19 on a COVID-19 log without regard to occupational exposure.
 Report work-related COVID-19 fatalities to OSHA within 8 hours of employer knowledge and in-patient
hospitalizations within 24 hours of employer knowledge.

 The ETS exempts fully vaccinated employees from the requirements for PPE,
physical distancing, and physical barriers in well-defined areas where there is
no reasonable expectation that any person with suspected or confirmed COVID-
19 will be present.
 In order for an employer to be exempt from providing these controls in a well-
defined area based on employees’ fully vaccinated status, the COVID-19 plan
must include policies and procedures to determine employees’ vaccination
status.
 [Employers: If allowing this exemption in your workplace, identify the well-
defined areas where there is no reasonable expectation that any person with
suspected or confirmed COVID-19 will be present, and describe the policies and
procedures that will be used to determine employees’ vaccination status.]
For Fully Vaccinated Employees
Much more info maybe found on:
OSHA https://osha.gov
NIOSH & CDC https://www.cdc.gov/niosh/index.htm
Others like https://www.healthaction.org/quick-start-guide
Or Contact Manitowoc Health Department and/or Local Medical Providers

Examples Helpful Documents on OSHA.gov

 August 9, 2021, All Federal Employees, including US Armed Services will
be vaccinated by November 22, 2021.
 August 10, 2021 - President Biden notifies all Federal Contractors
requirement for vaccination of all employees
 September 9, 2021 - President Biden Issues Vaccine Mandate for
employers of >100 employees. OSHA given order to prepare an ETS to
that affect. Rumor has it that OSHA had as much notice as the rest of us
did. (Although in hindsight…..)
 As of September 19, 20210 - OSHA still working on ETS on vaccinations.
Controversy erupts over EO.

Is There Legal Precedent for President Biden’s EO?
First, at the heart of the OSHA Act of 1970 is Section 5A, commonly called
OSHA’s General Duty Clause:
29 U.S.C. § 654, 5(a)1: Each employer shall furnish to each of his
employees employment and a place of employment which are free
from recognized hazards that are causing or are likely to cause
death or serious physical harm to his employees."
Section 5A has been used for infectious diseases like tuberculosis spread
in the workplace, heat-related illness, ergonomic illness, chemical hazards,
and many other health issues not expressly covered in OSHA Standards for
over 50 years. The General Duty Clause has been challenged in court
hundreds of times and so far, US Federal Courts have withheld Section 5A
when it is applied by OSHA. Note the common cold and influenza are
excluded by Standard 1904, OSHA Recordkeeping (1904.5(b)(2)(iii)).
Second, OSHA will attempt to defend the EO and their ETS by saying Covid is
a restriction to Interstate Commerce.

Third, The statue says OSHA may only create and implement an ETS when
there is “GRAVE DANGER!” The big legal test will be what is Grave Danger?”
Fourth, Several Republican State Attorney Generals are threatening legal
action. Fourth, If you are a US Federal Contractor there is even more legal
precedent for you to mandate vaccinations to your employers! In my opinion,
you will certainly be required to mandate vaccinations! Most of us that have
dealt with OFCCP know OSHA and EEOC are kitty cats compared to them!
Sixth, the question is not as much the legality of the Vaccine Mandate. The
very interesting thing will be how will OSHA enforce the ETS? They are
already stretched very thin with the ETS to the Health Care Industry and
their other duties.
Fifth, Legal scholars offer a myriad of opinions on whether the EO and ETS will
hold up in court. However, my research shows that by a small majority of
scholars feel the EO and ETS will stand. If the Supreme Court would rule
against OSHA ability to issue ETS and Section 5A it could threaten the entire
OSHA Act.

Finally, today OSHA just does not have the manpower to merely come out
and do plant inspections to find employees that are not vaccinated. They
will find you when you must call and report a recordable where an
employee, or worse more than one, is in the hospital for Covid. They will put
you in their RRI (Rapid Response Investigation) Process. If you have more
than 100 employees, they will ask if the employee is vaccinated. If not, they
will want to know why and come for a visit.
This will make the job of preventing your employees from getting Covid
even more critical! If you have not already done so, you may want to
implement all the Covid Controls you can, including:
 Full Covid Response Plan
 Masks and other PPE
 Social Distancing
 Testing
 Training

1. Yes, the Vaccination ETS will only cover
private employers with over 100 employees.
2. But not so fast, if you have <100 employees
you are NOT immune from protecting your employees, including
Vaccinations! There is still General Duty! OSHA can still come after you
for failure to follow General Duty!
“Ha, Ha, I have < 100
employees, I do not have to
worry about vaccinations!”
Who will pay for all this?
3. Likely the employer will pay for all the
vaccinations, testing, and time off from
work. However, the Feds may assist
with funding in some manner.

1904.7(a)
Basic requirement. You must consider an injury or
illness to meet the general recording criteria, and
therefore to be recordable, if it results in any of the
following: death, days away from work, restricted work
or transfer to another job, medical treatment beyond
first aid, or loss of consciousness. You must also
consider a case to meet the general recording criteria
if it involves a significant injury or illness diagnosed by
a physician or other licensed health care professional,
even if it does not result in death, days away from
work, restricted work or job transfer, medical treatment
beyond first aid, or loss of consciousness.

Further:
1904.5(b)(3)
How do I handle a case if it is not obvious whether the precipitating event or exposure
occurred in the work environment or occurred away from work? In these situations, you
must evaluate the employee's work duties and environment to decide whether or not one
or more events or exposures in the work environment either caused or contributed to the
resulting condition or significantly aggravated a pre-existing condition.

From Last Year’s Presentation These Points Still Critical!
 Are you in a High Risk Industry, as example Health Care?
 Are other employees becoming sick for the same illness?
 What kind of contact with each other do employees have?
 Have you performed Risk/Hazard Assessments and with these
results what “hazard controls” have you put in place? As an
example PPE.
 Are the employees complying with the controls you have put in
place?
 What kind of exposures has the employee(s) had outside of work?
 What are worker’s individual risk factors? Examples, Age &
Chronic Health Problems
 What are the risks for the illness in the community in general? Are
incident rates on the rise in the community?
 Has the employee recently traveled outside the community?
 Has a doctor or medical practioner made a determination of how
the employee’s health condition occurred? Has a doctor said it
was “Work-Related”?
 Some employers have a screening questionnaire.
You Must Consider!
The Paradigm Shift Has Occurred! Gone forever are the days to just discount a “virus” as not work-related!

OHSA Cites Warehouse (Chicago) for Not Protection Employees from Covid

Remember!
 OSHA encourages your employees to call
them if they feel unsafe! Example the
OSHA Poster you have posted in a
“conspicuous” place!
 You must inform OSHA of all workplace
Hospitalizations (excluding ER visits),
amputations, and the loss of an eye,
within 24 hours for all workplace injuries
and/or illnesses.
 You must inform OSHA of all workplace
Fatalities within 8 hours.

What Else Is OSHA Up To?
What they Would like to Do If Only They Could!
 OSHA would like to catch up. They continue to struggle to keep up!
My customers experience significantly increased wait times as OSHA
goes through the investigation process on reported injuries.
 OSHA would like to concentrate on activities like updating the
Hazard Communication Standard (1910.1200) and update all the
related technical data on PELs (Permissible Exposure Limits) to
more modern PEL Tables.
 Increase Targeted Inspections, hands full with Covid and RRIs. “All
hands are on deck!”
 Fully Implement National Emphasis Program on Amputations and
other NEP and Local Emphasis Programs

National Emphasis Programs on:
1. Combustible Dust
2. Covid (Health Care- to date)
3. Amputations
4. Hexavalent Chromium
5. Lead
6. Primary Metals
7. Process Safety – Chemical Industry
8. Shipbreaking
9. Respirable Silica
10.Trenching (in Construction)
National Emphasis Programs

Local Emphasis Programs OSHA Region 5 on:
1. Building Renovation & Demolition
2. Fall Hazards (both General Industry and
Construction
3. Federal Agencies
4. Grain Handling
5. High Rise Building Construction –
Chicago
6. Maritime Industries
7. Powered Industrial Trucks
8. Wood Pallet Manufacturing
9. Noise Hazards in the Workplace
10.Tank Cleaning
Local (Regional)
Emphasis
Programs

National Emphasis Program on Amputations
If you have dangerous machines, you
should be aware of this CPL!

National Emphasis Program on Amputations
If your NACIS Code is on this list
and you report an amputation to
OSHA as required, you will almost
certainly have an OSHA
Inspection/Visit!
Some of the Industries:
1. Meat Processing
2. Miscellaneous Foods
3. Sawmills
4. Pallet Making
5. Corrugated Box Mfg.
6. Commercial Printing
7. Ready Mix Concrete
8. Nonferrous Metals
9. Powered Metals
10.Machine Shops
11.Farm Machinery
12.Motor Vehicle Mfg.
13.Industrial Furniture

Conclusion:
In general, I still think you should be OK and be able to
deal successfully with OSHA as-long-as you:
1. Always act in “GOOD-FAITH” with your employee’s health and safety
in mind.
2. Do on-going Risk Assessments and implement controls to
protect your employees.
3. Investigate all reported “on-the-job” injuries and illnesses. Implement
and Document Root Cause controls.
4. Document, Document, Document, …………….
5. Be transparent in your actions to your employees. Where passible
allow them to participate and allow, encourage, and use their input.
6. Train, Train, Train……….
7. Ask if you do not know. If you need help get it! There is lots and lots
out there! A good deal of it still free.
8. Network, Network, Network……
9. OSHA is extremely focused on Covid-19. To me currently they do not
appear to spending a lot of time on “traditional” safety issues.
10.Above ALL Talk and Act like your employees’ health and safety is an
Internal Essential Value!
11.If Safety Fitz LLC can assist you, please let us know. We offer a free
initial consultation.

Resources
 OSHA (Start with www.OSHA.gov)
However, don’t be afraid to call the Appleton OSHA
Office, 920-734-4521 especially for questions.
 CDC
 NIOSH
 Wisconsin Department of Health
Services
 Manitowoc or Sheboygan County
Health Departments
 Your Occupational Health Provider
 Your Insurance Companies or TPAs.
 Google and other search engines.
 Network, Network, Network……
 Connect with Phillip Russell on
LinkedIn! Attorney Ogletree, and
Deakins – OSHA Expert!
We will STILL beat
this TOGETHER!

A Paradigm Shift: Work, COVID-19 & OSHA

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A Paradigm Shift: Work, COVID-19 & OSHA