On May 19, OSHA issued two enforcement memos regarding COVID-19. The first of these memos revised OSHA’s requirements for employers as they determine whether individual cases of COVID-19 are work-related. The second enforcement memorandum OSHA issued on May 19 revised OSHA’s policy for handling COVID-19-related complaints, referrals, and severe illness reports. These two memos are summarized below.
Over the past week, OSHA has issued three separate enforcement-related guidance memos to its regional offices and field staff regarding how and when to bring enforcement actions against employers for failing to protect worker health and safety amidst the COVID-19 pandemic. The first guidance covers workplace reporting and recording of injury and illnesses associated with exposure to COVID-19, while the other two OSHA guidance documents provide a roadmap to employers on how the agency will enforce violations of the OSH Act.
Following on the March 19 internal memorandum from the Office of Land and Emergency Management (available here), and the March 26 COVID-19 Enforcement Discretion Policy from the Office of Enforcement and Compliance Assurance (see here for the Policy and Spencer Fane’s earlier alert), EPA today (April 10) issued guidance on field decisions for parties managing cleanups under CERCLA, RCRA, and other remediation programs. EPA’s interim guidance is available here.
The Minnesota Pollution Control Agency (“MPCA”) has announced a process for regulated entities seeking regulatory flexibility that may have an unavoidable noncompliance situation that is directly due to an impact from the COVID-19 Peacetime Emergency, declared by Governor Walz in Emergency Executive Order 20-01.
Consistent with Governor Kelly’s March 17, 2020, directive, the Kansas Department of Health and Environment (KDHE) offices are closed for the two weeks between March 23 and April 3, 2020, as part of the state’s response to COVID-19. KDHE continues its essential functions and the Bureau of Environmental Remediation (BER) has provided several updates for the regulated community. The agency has indicated it is uncertain that mail will be logged in daily and parties should expect some delay in communications. Electronic communications are preferred where possible.
Today the Environmental Protection Agency’s Enforcement and Compliance Assurance Program announced a temporary policy regarding EPA enforcement of environmental legal obligations during the COVID-19 pandemic. The policy is available here and is retroactive to March 13, 2020. EPA makes clear that the policy is temporary and the agency will give seven days’ notice before terminating the policy.
At a Wednesday, March 25, conference Missouri Department of Natural Resources (MDNR) division director Ed Galbraith said MDNR will take a flexible approach to enforcing environmental requirements during the COVID-19 outbreak. Galbraith also said that MDNR has discontinued environmental inspections for the time being and that he understands EPA Region 7 has done so, as well. MDNR is conducting certain field work, however.
Over the weekend and Monday morning, Missouri and the major local jurisdictions that comprise the St. Louis and Kansas City metropolitan areas issued emergency orders directing business and individual responses to the COVID-19 (coronavirus) outbreak by imposing social distancing requirements. Kansas had issued a statewide order on March 17, and Illinois had issued a statewide order on Friday, March 20. Generally speaking, these orders close schools except for distance learning, ban activities inside bars and restaurants, ban social gatherings of more than 10 people, and encourage social distancing. The Illinois state order and many of the city and county orders require businesses and organizations to close their workplaces and workers to stay home unless they are deemed “essential” or qualify for another exemption. Some businesses have been obtaining favorable determinations that they are “essential” from their local jurisdictions on a case-by-case basis. Grounds for exemptions can include food manufacturing and processing, manufacturing and supply chain services for other essential businesses, construction, services to help businesses comply with laws, and many others.
According to recent OSHA guidance, COVID-19 (i.e., the coronavirus) is subject to the agency’s Injury and Illness Recordkeeping and Reporting Requirements at 29 CFR 1904. This means that employers who are subject to the OSHA recordkeeping and reporting rules must include and log employee illnesses related to the coronavirus when an employee is infected on the job. So while the common cold and Flu are exempt from work-related exposures, the coronavirus is not.