- On April 21, 2020
By: Paula E. Pitrak
On April 20, 2020, the Department of Labor’s Wage and Hour Division announced the expiration of the Families First Coronavirus Response Act’s (“FFCRA”) temporary non-enforcement period, and the DOL’s Occupational Safety and Health Administration—among other federal and state agencies—has dramatically expanded its outreach effort and resources to further assist America’s workforce with navigating this pandemic.
Department of Labor
Wage and Hour Division
In announcing the end of the FFCRA’s non-enforcement period, the WHD issued a News Release explaining its tireless efforts to answer the public’s questions and its intention to continue offering extensive guidance and educational outreach efforts. According to WHD Administrator Cheryl Stanton, it has “taken hundreds of complaints and [is] working to resolve them as soon as possible.” Employers should take heed of the WHD’s guidance, new releases, and posters (now available in eleven languages) and continue referencing the WHD’s Coronavirus Resources page for questions on compliance with the FFCRA and COVID-19’s effects on wages and hours worked under the Fair Labor Standards Act and job-protected leave under the Family and Medical Leave Act.
Occupational Safety and Health Administration
OSHA has dramatically expanded its resources in the last two weeks by releasing enforcement memoranda that take immediate effect, standards, and other compliance assistance efforts to keep American workers safe during the pandemic.
Specifically, on April 10, 2020, OSHA issued Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19)—explaining that COVID-19 is a recordable illness under OSHA’s recordingkeeping requirements but, in areas where there is ongoing community transmission, employers other than those in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting and law enforcement services), and correctional institutions may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work. Accordingly, until further notice, OSHA explained it will not enforce its recordkeeping requirements to require these employers to make work-relatedness determinations for COVID-19 cases, except where: (1) There is objective evidence that a COVID-19 case may be work-related; and (2) The evidence was reasonably available to the employer.
On April 13, 2020, OSHA issued its Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19)—providing instructions and guidance to Area Offices and compliance safety and health officers (CSHOs) for handling COVID-19-related complaints, referrals, and severe illness reports. In addition to prior COVID-19 related enforcement memoranda, the enforcement memorandum also includes the following four attachments: 1) special enforcement procedures; 2) sample employer letter for COVID-19 activities; 3) sample hazard alert letter; and 4) sample alleged violation description for a citation under the general duty clause, Section 5(a)(1), of the Occupational Safety and Health (OSH) Act. In most cases, OSHA Area Offices should process complaints from non-healthcare and non-emergency response establishments as “non-formal phone/fax,” following the non-formal complaint and referral procedures in the Field Operations Manual. Railroad employers should reference this enforcement memorandum and its attachments for potentially applicable standards and other important information.
In addition, it published OSHA Fact Sheet: Protecting Workers During a Pandemic—setting forth in part guidance on what information employers should ensure its employees understand, control measures, and risk communication. OSHA’s COVID-19 Hazard Recognition page further explains the four risk exposure levels: very high, high, medium, and lower risk, and sets forth a non-exhaustive list of specific job duties that may affect workers’ exposure risk levels.
On April 16, 2020, OSHA issued another enforcement memorandum: Discretion in Enforcement when Considering an Employer’s Good Faith Efforts During the Coronavirus Disease 2019 (COVID-19) Pandemic—explaining that, in instances where an employer is unable to comply with OSHA-mandated training, audit, assessment, inspection, or testing requirements because local authorities required the workplace to close, employers should demonstrate a good faith attempt to meet the applicable requirements as soon as possible following the re-opening of the workplace. OSHA further sets forth its intended assessment of employers when determining an employer’s efforts to comply with required standards during the pandemic and issuance of citations.
On its COVID-19 Standards page, OSHA highlights its standards and directives that may apply to worker exposure to the novel coronavirus, SARS-CoV-2, that causes Coronavirus Disease 2019 (COVID-19). Importantly, OSHA sets forth a reminder that there are 28 OSHA-approved State Plans—which are required to have standards and enforcement programs that are at least as effective as OSHA’s and may have different or more stringent requirements. Employers that reside in a state with an OSHA-approved State Plan should review its State OSHA’s policies on the pandemic to ensure compliance.
Railroad employers with additional questions should reference OSHA’s Help for Employers page.
Centers for Disease Control and Prevention
The CDC recently issued Interim Guidance for Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19—explaining how critical infrastructure workers may be permitted to continue work following potential exposure, provided they remain asymptomatic and additional precautions are implemented to protect them and the community. Railroads have been deemed critical infrastructure, so they are encouraged to implement the CDC’s interim guidance to help prevent and slow the spread of COVID-19 in the workplace.
Federal Railroad Administration
The Department of Transportation’s Coronavirus (COVID-19) Information from the FRA page sets forth the FRA’s COVID-19 information, including its responses to certain emergency waiver requests and position statements.
On April 10, 2020, the FRA issued its Reply Letter to the request of SMART Transportation Division and Brotherhood of Locomotive Engineers and Trainmen seeking an emergency order “to standardize and define the best protocols across the [railroad] industry for mitigation of the spread of the virus and the protection of both passengers and employees” and to ensure railroads maintain sufficient staffing levels for the duration of the COVID-19 public health emergency. The FRA responded that, while it believes many safety precautions included in the petitions could constitute best practices that should be applied in the railroad industry, FRA does not believe that an emergency order is justified.
The FRA explained that, while COVID-19 presents challenges to ensure that railroad employees and passengers are protected from the spread of the virus, those challenges are not unique to the railroad industry, and thus not the type of rail safety issue where FRA would typically exercise its emergency order authority. In short, the FRA “stands ready to work with both railroads and railroad employees to ensure the continuity of railroad operations and the safety and health of railroad employees and the traveling public during this critical time.”
On April 13, 2020, it issued FRA Position on the Reportability of COVID-19 Employee Illnesses Under 49 CFR Part 225—stating that the FRA will exercise enforcement discretion under Part 225 and will not require the reporting of any confirmed case of COVID-19 where there is no reasonably available, objective evidence that the confirmed case resulted from a work-related exposure.
Equal Employment Opportunity Commission
The EEOC continues to update its technical assistance questions and answers: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. As recent as April 17, 2020, the EEOC updated this guidance to include information on navigating reasonable accommodations; pandemic-related harassment due to national origin, race, or other protected characteristics; furloughs and layoffs; and return to work during the COVID-19 pandemic.
For more information regarding your company’s compliance with the FFCRA, the CARES Act, and other applicable federal, state, and local employment laws regarding COVID-19, contact Fletcher & Sippel’s Labor & Employment Group.