Audit, Compliance and Risk Blog

The Environmental Protection Agency (EPA) has completed a long review, and reaffirmed the primary National Ambient Air Quality Standards (NAAQS) for particulate matter (PM), including those for PM-10 (particulates with an aerodynamic diameter less than or equal to 10 microns) and PM-2.5 (less than or equal to 2.5 microns; also call “fines”). On December 4, EPA announced it would retain the PM standards set in 2013, despite comments presenting recent scientific evidence – including evidence that higher pollution levels exacerbate harm from COVID-19 -- and seeking tighter standards.

During President Trump’s term, the Environmental Protection Agency (EPA) has taken a number of steps to narrow benefit-cost analyses (BCAs), reversing expansive approaches used during the Obama Administration and thereby reducing the calculated benefits of environmental and health regulations. EPA announced what will probably be the last such step on December 4, by adopting a new Part 83 in Title 40 of the Code of Federal Regulations (CFR) entitled “Increasing Consistency and Transparency in Considering Benefits and Costs in Clean Air Act Rulemaking Process.” (I wrote about less formal guidance in a May 2019 memorandum from EPA Administrator Wheeler to his Assistant Administrators HERE.)

Now that vaccinations against COVID-19 infections are becoming available, employer responses to the pandemic will include when to recommend, support, or even require employee vaccinations. While workplace safety considerations might support all these efforts, the Equal Employment Opportunity Commission (EEOC) has just issued a reminder that the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 require employers to craft their vaccination policies in ways that won’t violate anti-discrimination provisions. The remainder of this note discusses EEOC guidance published on December 16, 2020.

The US Occupational Safety and Health Administration (OSHA) requires employers to ensure workplace air quality, as part of the agency’s broad mission to protect workers’ safety and health. Instead of a single comprehensive standard, OSHA incorporates air-related issues into standards requiring employers to consider whether workplace conditions might require respiratory protections (which I discussed HERE), and additional standards addressing routine workplace air contaminants (which I discussed HERE), and special hazards of confined spaces (which I discussed HERE). OSHA also applies specific ventilation standards in workplaces that involve abrasive blasting; grinding, polishing, and buffing operations; and spray finishing operations.

The US Occupational Safety and Health Administration (OSHA) requires that employees wear personal protective equipment (PPE) necessary to help protect them against identified workplace hazards. This equipment may protect against physical hazards—hard hats, safety glasses, tinted goggles, steel-toed shoes—or may protect against health hazards—respirators, self-contained breathing apparatus, gloves. OSHA does not formally consider cloth facemasks to be PPE, but does consider them “source control” that may prevent an infected person from spreading the virus – which means that they do provide protection to co-workers. OSHA and most other health and safety agencies therefore do at least recommend masks, and some require them in specified settings. The remainder of this note discusses agencies’ formal provisions regarding masks.

Since surfacing in Québec, COVID-19 has had its share of drawbacks for workers and employers, and continues to impose numerous human resource management and administration challenges. Employer obligations and responsibilities regarding occupational health and safety have increased significantly. These include stricter hygiene and maintenance measures in the workplace, social distancing, and wearing masks, among others.

The upsurge in COVID-19 cases seen recently is an unfortunate reminder of its high rate of contagion and its virulence among at risk populations. The global scientific community has been working hard to develop effective vaccines, and for many, such vaccines are the long-awaited solution. In this context, several legal issues arise. For example, could an employer require employees to be vaccinated against COVID-19?

The Clean Air Act (CAA) directs the Environmental Protection Agency (EPA) to define “hazardous air pollutants (HAPs)” that may pose acute health hazards, and to impose regulations to reduce those hazards. EPA requires permits for “major sources” of HAPs based on “Maximum Achievable Control Technologies (MACT),” and lesser controls for non-major “area sources.” During President Trump’s term, EPA has pursued several initiatives to make it easier for sources to reclassify from “major” to “area” in order to reduce their regulatory responsibilities.

The Occupational Safety and Health Administration (OSHA) generally requires employers to ensure that employees (and other occupants of your workplace) have adequate and safe routes to leave work areas during fires and similar emergencies. OSHA presents these requirements in its Exit Routes Standard (29 CFR 1910.36 – 1910.37), with tie-ins to its emergency action plan and fire prevention plan standards (29 CFR 1910.38 and 1910.39). The following discussion summarizes the Exit Routes Standard.

California’s Department of Toxic Substances Control (DTSC) established waste management rules for solar photovoltaic (PV) modules, to become effective on January 1, 2021. These rules are adopted under the state Hazardous Waste Control Law (HWCL), applying “universal waste” authority permissible under the federal Resource Conservation and Recovery Act (RCRA) and Environmental Protection Agency (EPA) RCRA regulations. EPA defines five universal waste categories, and also allows states to define additional categories (I wrote about this HERE). The remainder of today’s blog summarizes these universal waste PV requirements (which include dozens of revisions to proposed state rules I discussed HERE).

During the COIVD-19 pandemic, there have been many reports of angry arguments between people who don’t want to wear masks or practice social distance and retail staff members trying to enforce local requirements. Some of these confrontations escalate to violence. The US Centers for Disease Control and Prevention (CDC) provide formal guidelines to retail businesses, offering ways for protecting workers by “Limiting Workplace Violence Associated with COVID-19 Prevention Policies in Retail and Services Businesses.” The remainder of this note describes CDC’s latest guidance.