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LEGAL PREPAREDNESS FOR PANDEMIC FLU

Protecting Employee Safety & Health: Cal/OSHA Compliance During A

Bioevent

Jeff Tanenbaum, Esq. Allyce Kimerling, Esq.Nixon Peabody LLP Staff Counsel, Cal/OSHA

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Overview Of This Session

• IIPP Obligations• EAP Obligations• Communicable Illness Guidelines/Regulations• Workplace Security Issues• Contingent Workforce Safety and Health• The Proposed Cal/OSHA Aerosol Transmittable

Disease Standard

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IIPP OBLIGATIONS(8 CCR § 3203)

• An Employer’s basic written safety program• De-facto “General Duty” Clause• Often interpreted by DOSH to require coverage of all

hazards in the work place – even though there is no specific standard governing the hazard (and sometimes when there is a standard on point)

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IPP OBLIGATIONS(8 CCR § 3203)

1. ID person or persons with authority and responsibility for implanting the program

2. System for ensuring employees comply with “safe and healthy” work practices

3. System for communicating with employees in a readily understandable way on occupational safety and health

4. Procedures for identifying and evaluating workplace hazards, including scheduled and periodic inspections

5. Procedure for investigating occupational injury or “occupational illness”

6. Methods and/or procedures for correcting unsafe or “unhealthy” conditions

7. Training and instruction

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PANDEMIC FLU IPP OBLIGATIONS?

1. ID the person or persons with authority and responsibility. 8 CCR § 3203(a)(1)

• Who will have authority and responsibility for a pandemic flu/communicable program

• Can be more than one person

• Must ID each

• Must be given authority

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PANDEMIC FLU IIPP OBLIGATIONS?2. System for ensuring employees comply with safe and healthy work

practices.

Substantial compliance includes:

– Recognition of employees who follow safe and healthful work practices

– Training/retraining

– Disciplinary action

– Any other means of ensuring compliance. 8 CCR § 3203(a)(2)

Questions

- What are healthful work practices in the context of pandemic flu?

- What training/retraining might be provided and how often?

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PANDEMIC FLU HEALTHFUL WORK PRACTICES

• Coughing protocols

• Respiratory health protocols

• Wiping down/decontaminating common work surfaces

• “Stay home” protocols

• Travel restrictions

• Following medical protocols

• Reporting of symptoms ?? (Warning! Beware the ADA and FEHA!)

• Others?

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PANDEMIC FLU IIPP OBLIGATIONS?3. Communicating with employees in a readily understandable form on

occupational health matters.

Substantial Compliance includes one or more of the following:

• Meetings

• Training Programs

• Postings

• Written communications

• System of Anonymous notification

• Labor/management-safety committees ?? (Warning: Beware the NLRA!)

• Any other means that ensures communications

• 8 CCR § 3203(a)(3)

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Pandemic Flu IIPP Obligations?

4. Procedures for identifying and evaluating workplace hazards including scheduled periodic inspections.

Inspections must be made:

a. When the program is first established

b. When a new hazard is introduced to the workplace

c. Whenever the employer is made aware of a new or previously unrecognized hazard

Question:

What should be included in an “inspection” for the hazard of pandemic flu?

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An “Inspection” Checklist for Pandemic Flu and “Inspections”

Has there been review of material from reputable resources

– Cal/OSHA, Fed/OSHA, CDC, WHO, Local Health Departments, etc.

Is the employer’s Bioevent Response and Recovery Plan Up-to-Date?

Are appropriate supplies available in the workplace?

– Hand washing facilities

– Waterless Cleansers

– Surface disinfectants

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An “Inspection” Checklist for Pandemic Flu and “Inspections” (Cont’d)

– First-aid kit supplies Decongestants Cough suppressants Throat Lozenges

– Tissues

– Are employees following coughing and respiratory health appropriate protocols?

Have all employees been trained?

Is the documentation of training complete?

Medical Screening? (Warning! Beware the ADA/FEHA!)

Return to work protocols?

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PANDEMIC FLU IIPP OBLIGATIONS?

5. Procedures to investigate occupational illnesses. ( 8 CCR § 3203(a)(5))

What should be included?• Determine if employee has a communicable illness• Protocols to determine the route of exposure• Integration with workers compensation process

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PANDEMIC FLU IIPP OBLIGATIONS?6. Methods and/or procedures for correcting

unhealthy conditions, practices or procedures in a timely manner (based on severity of the hazard):

a. When observed or discovered and

b. “When an imminent hazard exists which cannot be abated without endangering employees, . . . Remove all exposed personnel from the area except those necessary to correct the condition”. Those correcting must be provided with “necessary safeguards”. 8 CCR § 3203(a)(6).

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PANDEMIC FLU IIPP OBLIGATIONS?7. Training and Instruction:

a. When the program is first established

b. To all new employees

c. To all new employees given new job assignments for which they have not previously been provided TRAINING

d. Whether a new substance is introduced into the workplace that represents a new hazard

e. Whenever the employer is made aware of a new or previously unrecognized hazard

f. For supervisors.

Question: What training must be provided?

8 CCR § 3203(a)(7)

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TRAINING “SUGGESTIONS” FROM THE CAL/OSHA BLOODBORNE PATHOGENS STANDARD

8 CCR § 5193• Training must include:

– Explanation of the standard

– Epidemiology and symptoms

– Mode of Transmission

– The terms of the employers exposure control plan

– Identify risks

– Methods of compliance

– Decontamination methods

– Personal protective equipment

– Vaccination information and right to decline

– Steps to take in the event of an emergency

– Reporting of exposures

8 CCR § 5193(g)(2)(G)

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PANDEMIC FLU IIPP OBLIGATIONS?

8. Recordkeepinga. Documentation of scheduled and periodic inspections

b. Documentation of safety and health training

8 CCR § 3203(b)

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EAP OBLIGATIONS8 CCR § 3220

Employers must have a written plan to ensure employee safety in an emergency

including:

1. Emergency evacuation procedures2. Procedures to be followed by

employees who remain for critical operations

3. Procedures to account for all employees after emergency evaluation

4. Rescue and medical duties for those employees who are to perform them.

5. The preferred means for reporting emergencies

6. Names of persons to contact for further information or explanation of duties

7. Alert/notification system8. Training

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The New “Guidelines” For An Employer’s Response to Pandemic Flu

• The California State Pandemic Flu Plan– www.dhs.ca.gov

• NFPA 1600 Standard on Disaster/Emergency Management and Business Continuity Programs 2004– www.nfpa.org

• The Federal Government Pandemic Flu Webpage– www.pandemic.gov

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Workplace Security Issues and Pandemic Flu

• Evacuation Issues• Limiting access to the workplace• Potential quarantine in place• Information security – employee medical and

exposure records

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Information Security: Employee Medical and Exposure Records

8 CCR § 3204

• Purpose: To provide access to relevant information to employees and DOSH.

• But does not change other legal obligations to protect the confidentiality of medical information

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Information Security: Employee Medical and Exposure Records

8 CCR § 3204• The basic rules: Employee or designated representative

has access to the employee’s own exposure records, or if such records don’t exist, exposure records for similarly situated employees

• Employee and DOSH have access to the employee’s own medical records

• Employee representative has access to an employee’s own medical records if the employee has granted written permission

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Employee Information Security: Medical and Exposure Records

8 CCR § 3204

• Analysis using employee medical or exposure records:– Personal identification can be removed prior to access

– Except if DOSH seeks personal identification there are set procedure to first follow

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Contingent Workforce Safety & Health

• Who is responsible for training temps and contractors?

• When will this training occur?• Medical screening? (Warning! Beware the

ADA/FEHA!)

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The Proposed Cal/OSHAAerosol Transmittable Disease Standard

• Status• Overview• Next Steps

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Thank You!

Jeff & Allyce