Binge-Watching the Clean Water Act Cases and Rules

This week we are pleased to have a guest post from Robert S. Melvin, a member of Robinson+Cole’s Environmental, Energy + Telecommunications Group. Attorney Melvin has over 20 years of experience counseling clients on environmental, health, and safety compliance, sustainability, emergency response efforts, site remediation, and development projects. A wide range of clients benefit from his services, including aerospace and other manufacturers, stone and aggregate producers, metal finishers, municipalities, educational institutions, and water and wastewater utilities.

In these days of working from home and managing countless other demands on our time, we offer this post to help you decide whether to add the latest Clean Water Act (CWA) cases and rules to your must-see legal watch list. Since its 1972 inception, the Clean Water Act has prohibited any unpermitted “discharge,” defined as “any addition of any pollutant to navigable waters from any point source.” For more than four decades, agencies and courts have struggled with this CWA liability trigger in various circumstances, as well as the CWA’s vague definition of “navigable waters” as “waters of the United States” (WOTUS). Continue Reading

Price-Gouging 101 for Suppliers

Below in an excerpt from an article authored by Robinson+Cole Business Litigation Group lawyers Kendra L. Berardi and Edward J. Heath that was published in Industry Week.

“When demand for an item or service increases in a free market, the price tends to increase accordingly. This can seem particularly true in times of crisis – just ask anyone who recently paid $20 for a small bottle of hand sanitizer. Unfortunately for those entrepreneurs following Winston Churchill’s maxim to ‘Never let a good crisis go to waste,’ raising prices on essential items during a public emergency may be violation of state law, as well as a federal crime pursuant to a recent presidential executive order.

In addition to the new U.S. Department of Justice Task Force investigating hoarding and related price increases on essential items, the attorneys general of many states have launched numerous enforcement investigations around COVID-19. The laws under which federal and state authorities are acting vary among jurisdictions, but they generally apply to all participants in the manufacturing chain – including suppliers – and provide for not only restrictive court orders and fines but also the potential for imprisonment of company owners and employees.” Read the full article.

How Will COVID-19 Impact M&A?

I wanted to share this recent Coronavirus Response Team legal update on M&A authored by Frank W. Eucalitto, Eric M. Kogan, and Leslie J. Levinson from our Business Transactions Group, which includes a short summary of some key areas that buyers and sellers may want to consider addressing. 

It is readily apparent that the COVID-19 pandemic has had an impact on transactional activity—at least in the short term—for both buyers and sellers across a range of industries. Whether parties are still moving forward with their transactions, placing them on hold until markets stabilize, or initiating them during the continuing COVID-19 crisis, both buyers and sellers may want to carefully review deal terms and consider what might need to be updated to properly account both for this pandemic and for similar events in the future. There are many provisions commonly found in M&A transactions that stand out as requiring careful consideration going forward, in light of market conditions. Read the full update.

When Manufacturers Say, “Welcome Back”

While a recent headline-grabbing Forbes article may have caused some concern (“Researchers Say Social Distancing To Prevent Coronavirus May Need To Continue Until 2022”), many manufacturers are now planning to return to “Business as (the New) Normal.”  During the last two months, I have been fielding calls from essential manufacturers on how to conduct business and meet ever-changing standards and directives.  More recent calls focus on non-essential manufacturers planning for their eventual return.

While we may not know precisely when manufacturers will return to work in large numbers, we know that will happen in the not-so-distant future.  But because mandated safety rules currently differ by state, resuming business may be complicated.  Assembly lines and processes may have to be redesigned.  PPE and face-masks may have to be distributed to all workers.  Distribution streams may have to be adjusted.  Re-inventing these tasks may take a good deal of planning.  Given the rapidly evolving standards, and the reality that a manufacturer’s actions will be judged in the perfect vision of 20-20 hindsight, bringing workers back safely may be one of the more complicated tasks.

The Governors of California, New York and Connecticut, along with the Center for Disease Control and Prevention, have publish some good materials on worker and public safety which may be looked on with favor down the road.  You may access them here:  California, New York, Connecticut and the CDC (How to Protect Yourself and Others and  Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19).

I am an eternal optimist, so I believe manufacturers may wish to start thinking about the ramp-up and return to normal now.  One positive first step would be to form planning committees composed of key stakeholders:  business officials, loss prevention managers, human resources experts and qualified legal counsel.

I’ll share more thoughts on this complex topic in the weeks to come.


Additional OSHA Guidance on COVID-19

OSHA previously issued guidance on preparing workplaces for COVID-19, which we covered on the blog a few weeks ago. The agency has been busy issuing additional materials to guide employers through these uncharted waters. A few recent developments are summarized below:

Recordkeeping and Reporting Requirements

OSHA has confirmed that COVID-19 can be a recordable work-related illness that must be documented on an employer’s OSHA 300 log in certain circumstances. OSHA advised employers to consider the following three factors in making that determination:

1.  The case is a confirmed case of COVID-19,

OSHA advised employers to consult CDC guidelines to determine whether a case is considered confirmed, but for the purpose of recording requirements, an employee must have a positive, laboratory-confirmed case of COVID-19.

2.  The case is work-related, as defined by 29 CFR 1904.5; and

This question is likely to be the most difficult one for an employer to answer. OSHA has discussed a number of things employers should consider as they attempt to identify potential sources of exposure. According to OSHA, employers should rely on identification of employees with symptoms of COVID-19 and/or a history of travel to heavily impacted areas. Employers should also consider whether employees may encounter someone infected with COVID-19 in the course of their duties. OSHA’s previously issued guidance on preparing workplaces for COVID-19 may help employers as they navigate this question.

3.  The case involves one or more of the general recording criteria set  forth in 29 CFR 1904.7 (e.g., medical treatment beyond first-aid, days away from work).

Finally, it is important to note that, if an employer determines that a confirmed case of COVID-19 is work-related, any in-patient hospitalization or death is reportable to OSHA in accordance with 29 CFR 1904.39.

Respiratory Protection Guidance

OSHA has issued a number of guidance documents in light of the current shortage of certain personal protective equipment, namely, respirators. A few weeks ago, OSHA issued temporary enforcement guidance on respiratory protection fit testing requirements for healthcare employers. The purpose of the guidance was to ensure that respirators are being used where they are needed most. Yesterday, it expanded that guidance to apply to all workplaces where the use of respirators is required. The guidance provides that OSHA will “exercise enforcement discretion” regarding the annual-fit testing requirements as long as employers:

  • Make a good-faith effort to comply,
  • Use only NIOSH-certified respirators,
  • Implement CDC and OSHA strategies for optimizing the supply of N95 filtering respirators and prioritizing their use,
  • Perform initial fit tests for each employee with the same model, style, and size respirator that the employee will be required to wear for protection against COVID-19,
  • Inform workers that the employer is temporarily suspending the annual fit testing of N95 filtering respirators to preserve and prioritize the supply of those respirators for use in situations where they are required to be worn,
  • Explain to employees the importance of performing a user seal check each time a respirator is worn,
  • Conduct a fit test if the employer observes visual changes in an employee’s physical appearance that could affect respirator fit, such as changes in body weight or facial scarring, and
  • Remind employees that they should inform their supervisor if the integrity and/or fit of their N95 filtering respirator is compromised.

Given the shortage of respirators, OSHA has also indicated that it will exercise additional enforcement discretion if an employer switches to an equivalent-fitting make, model, size, or style filtering respirator without first performing an initial fit test. OSHA reminded employers that most respirator manufacturers produce multiple models in the same or similar sizes and encouraged employers to consult with those manufacturers to find a suitable alternative in the event of a shortage.

OSHA also issued additional enforcement guidance specific to the potential for respirator shortages. This guidance states that, in the event that extended use or reuse of N95 filtering respirators becomes necessary, the same worker may reuse his or her respirator so long as the respirator maintains its structural and functional integrity and the filter material is not damaged, soiled, or contaminated (for example, with blood, oil, or paint). However, employers must address the circumstances under which a respirator will be considered contaminated in its Respiratory Protection Program. OSHA’s guidance further notes a preference for extended use as opposed to reuse due to the risk or contact transmission. OSHA will also exercise enforcement discretion with regard to the use of expired N95 filtering respirators in certain situations and subject to testing requirements, so long as the employer has made a good faith effort to acquire other respirators.

Force Majeure both for Contracts/Suppliers, Cancellation of Trade Shows

Fellow Manufacturing Industry Team member, Taylor Shea and I had the pleasure of presenting the first program in the “Coronavirus Special Topic Conference Calls Series” offered by the U.S. Department of Commerce and the Connecticut District Export Council on March 18, 2020. The session was on “Force Majeure both for Contracts/Suppliers, Cancellation of Trade Shows” and covered some of the basics surrounding force majeure clauses and how companies can plan for and react to the current health emergency.

During the program, we described what force majeure is, outlined the criteria that must be satisfied to claim an event as force majeure, and offered insight on whether or not COVID-19/coronavirus is considered one. “‘It depends on the contract language. Some (but probably not many) contracts will specifically include pandemics, epidemics, diseases or health crises as force majeure events. If this is the case, it is very likely that COVID-19 will qualify as a triggering event. However, the majority of contracts will not have a specific reference to pandemics or the like. In that case, you will need to evaluate whether COVID-19 qualifies under one of the events that are enumerated in your contract (e.g. an “Act of God,” a governmental action, etc.)” The resource material and audio from the program are available.

In addition, the webinar was used as a resource for the article “Refunds, Closure, Coronavirus and the Law for Business and Consumers in Connecticut” published by CT Examiner on April 1, 2020. Read the full article.



Employment Issues Related to Teleworking

I recently presented a program on “Employment Issues Related to Teleworking” as part of the free Coronavirus Special Topic Conference Call Series hosted by the U.S. Department of Commerce in partnership with the Connecticut District Export Council. Below are some key takeaways from the program that affect many manufacturers. .

  • While not normal, the social and economic disruption is not “unprecedented.” The employment decisions made by business executives will be judged by the perfect 20/20 vision of hindsight months in the future. For that reason, do not assume that you can use COVID-19 as a rationale for making employment decisions that you normally would not make in tranquil settings.
  • Be mindful of which groups are allowed to telework versus which groups required to work on site.  Perceptions of fairness, unfavorable or risky exposure can create human resources and litigation issues later.
  • It is important to have written policies during times of disruption, including but not limited to, on the following topics:
    • Temporary nature of work from home assignments; importance of protecting business secrets (data security, co-mingling of personal data; shredding of printed copies when crisis over); preservation of work product; responsibility for payment of costs associated with telework.
  • Wage and hour requirements still apply to telework. Exempt employees paid on a “salary basis,” performing exempt duties. Non-exempt employees recording of hours worked, pay for all hours worked, payment of minimum wage and overtime.
  • OSHA and workers compensation apply to home work. OSHA distinguishes between “home office” and “home manufacturing.”  Workers compensation will cover workplace accidents (even if in home).
  • New federal and state leave laws complicate telework arrangements. Track leave even for employees teleworking.

For the full audio of the program, visit the Connecticut District Export Council’s website.

OSHA Issues COVID-19 Guidance for Workplaces

Last week, the Occupational Safety and Health Administration (OSHA) issued guidance on preparing workplaces for COVID-19. The guidance provides recommendations to help employers plan for the impact of COVID-19 on their businesses, workers, customers, and the public. While a number of states have implemented orders affecting certain workplaces, this guidance remains important for all employers to consider.

The guidance provides a number of recommendations applicable to all employers. First and foremost, OSHA recommends that employers develop an infectious disease preparedness and response plan if they don’t have one already. The plan should consider occupational exposure, non-occupational risk factors, individual risk factors of workers, and controls necessary to address the identified risks. The plan should include basic hygiene and infection-control practices, policies for identifying and isolating sick employees, and the implementation of flexible policies to accommodate sick employees and their family members.

OSHA developed an Occupational Risk Pyramid to help employers determine if there is a very high, high, medium, or lower risk of exposure in their workplace. High risk jobs tend to be in the medical, laboratory, and morgue fields. Medium risk jobs require frequent close contact with people, but have no obvious connection to COVID-19 (schools, high-volume retail). Lower risk exposure jobs are ones that do not require frequent close contact and have no suspicion of exposure to COVID-19.

Some of OSHA’s recommendations are broken down by the risk categories defined in the Occupational Risk Pyramid. For the high and very high risk categories, OSHA recommends engineering controls, like appropriate air handling systems, personal protective equipment (PPE), and administrative controls, such as enhanced medical monitoring, training, signage, and psychological and behavioral support.

For the lower risk category, engineering controls and PPE are not recommended. Instead, OSHA recommends that lower risk employers monitor public health communications about COVID-19 and ensure that employees have access to that information. These employers should also collaborate with workers to determine and implement an effective plan for communicating COVID-19 risks to employees.

In the medium risk category, the recommendations leave a bit more to the employer’s discretion. These employers should consider offering face masks or shields to ill employees and customers until they are able to leave the workplace. They should also limit or restrict customer and public access to the workplace where appropriate, and consider ways to minimize face-to-face contact, such as telephone communication or remote work.

While there is no specific standard governing COVID-19 exposure, in the guidance, OSHA references both the PPE standard and the General Duty Clause as potentially applicable requirements for preventing occupational exposure. The guidance is intended to assist employers in providing a safe and healthy workplace, and employers should be familiar with the recommendations and consider whether any of their workplace plans or procedures should be updated.

Aerospace Suppliers Should Brace for Headwinds

Below is an excerpt of a contributed article published in Industry Week on March 12, 2020.

In case you missed it, a Boeing 747—the “Queen of the Skies”—recently set a record by flying across the Atlantic from New York to London in under 5 hours at over 800 mph. The record was set with the aid of a significant tailwind of approximately 200 mph.

Tier 1 and 2 aerospace suppliers (in both engine and airframe) also have benefited over the past several years from a significant OEM demand tailwind. Dozens of articles have been written about the record boom in the commercial airspace market due to the huge growth of global passenger travel.  The outlook remains strong, assisted by airline travel costs being lower due to industry innovation and productivity improvements.

There are clear signs from the OEMs, however, that headwinds are coming for suppliers–and these signs were occurring even before the coronavirus effects on the economy and air travel took hold.

Read the full article.

Unfolding Coronavirus Conditions Present Unprecedented Challenges For Manufacturers

The patchwork of federal, state and local laws addressing leaves of absence, protections of people with disabilities and a manufacturer’s general obligation to provide a safe workplace come head-to-head with public reports of an evolving situation.  Right now, the CDC admits that “[m]uch is unknown about how the virus that causes COVID-19 spreads.”  Manufacturers should be prepared to respond before an identified local outbreak.

As manufacturers face the complex issues presented by coronavirus, courts, legislatures and policy makers will address the legal challenges in greater detail.  Today, a manufacturer’s legal response will depend on (i) the location of the manufacturer’s facilities, (ii) the manufacturer’s current policies and practices, (iii) local and state legal obligations, (iv) the location of the customer or event, and (iv) the practical make-up of the specific manufacturer’s business.

The CDC has published Interim Guidance for Businesses, which can be found here.  Among other things, the CDC cautions that manufacturers should make sure that employment decisions are based on factors unrelated to the employee’s country of origin, race or ancestry, or other discriminatory criteria; encourage employees who are ill or may have been exposed to the coronavirus to work from home (if possible) or take leave; cancel business travel to areas of high infection or risk; and adopt cleaning and hygiene policies which can help stop the spread of disease generally.

It may also be wise for manufacturers to anticipate issues that may arise, train local managers and supervisors on appropriate responses and obtain prompt legal advice from skilled practitioners.  A list of issues that manufacturers may want to consider are set out below.

  • Does the manufacturer require an employee to report any trip outside the United States, to a level 2 or 3 infected area, or to an area which may have exposed the employee to a person who traveled outside the United States or to an infected area?
  • Does the manufacturer require employees traveling to a level 2 or 3 infected area to stay home from work on either paid or unpaid leave? If paid leave is available, what rates apply and does the exempt or non-exempt status of the employee matter?
  • Will the manufacturer require an employee returning to work after being ill or in self-quarantine to provide a “fitness for duty” examination or medical clearance?
  • Will the manufacturer permit employees who fear workplace exposure from others to work from home or take leave?
  • If a manufacturer refuses to allow an employee to work, must the manufacturer pay the employee for the time or can it allow the use of paid sick, vacation or personal leave?
  • Does the manufacturer have a contingency staffing plan in the event of a local outbreak and are protections in place to make sure contingency labor has been trained?
  • Have any union bargaining representatives been consulted about the manufacturer’s contingency planning?

Manufacturers should keep in mind that not only do state and local leave laws differ by jurisdiction, but the severity of the coronavirus situation may vary greatly as well.  Local managers should  be trained on the company’s policies and be given flexibility to quickly respond to local developments.