In the absence of an enforceable federal per- and polyfluoroalkyl substances (“PFAS”) drinking water standard, many states have embarked on the process of regulating PFAS compounds in drinking water.  The result is a patchwork of regulations and standards of varying stringency which presents significant operational and compliance challenges to impacted industries.  This client alert surveys the maximum contaminant levels (“MCLs”), as well as guidance and notification levels, for PFAS compounds – typically perfluorooctane sufonic acid (“PFOS”) and perflurooctanic acid (”PFOA”)  – in drinking water that have been enacted or proposed at the state level.

1. Federal Health Recommendations and Advisory

The United States Environmental Protection Agency (“EPA”) has issued a Lifetime Drinking Water Health Advisory Level of 70 ppt for PFOS and PFOA.  EPA’s Health Advisory is non-enforceable and non-regulatory, but is intended to provide technical information to state agencies and other public health officials on health effects, analytical methodologies,

On May 13th the Centers for Disease Control and Prevention (“CDC”) announced that “[f]ully vaccinated people can resume activities without wearing a mask or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”

In the wake of the CDC announcement, states and other agencies have had varied reactions.  Some have lifted face covering mandates while others have advocated caution, further underscoring the need for businesses to review state and local requirements.  For example, on May 17th the Occupational Safety and Health Administration (“OSHA”) acknowledged the new guidance from the CDC and indicated that it would update its guidelines accordingly, but in the meantime, indicated that businesses should “refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.”

The reduced restrictions are both a positive indicator for the Country’s overall path to recovery, and a

Governor Pritzker has announced that on Friday, May 14, 2021, the state of Illinois will enter the “Bridge Phase” of the Restore Illinois Plan, which will increase occupancy limits for many industries.  In addition, Illinoisans who can provide proof of full vaccination – defined as 14 days after receiving a final vaccine dose – or a negative COVID-19 test 1-3 days prior to an event do not count against a business’ capacity limits.

The Governor and Department of Public Health determined that the transition to the Bridge Phase was warranted based on the state reaching 70% vaccination of all residents 65 years and older, and so long as COVID-19 metrics remain stable over a 28-day monitoring period.

New Occupancy Limits for Specific Industry Sectors

Dining

• The changes only impact standing areas; seating area requirements have not changed.
• 30% capacity indoors and 50% capacity outdoors (increase from 25% capacity
  

Texas’ Governor marked the state’s Independence Day on March 2, 2021, by issuing an Executive Order that eliminates the statewide face covering mandate, and allows all businesses in Texas to operate at full capacity beginning on March 10, 2021.  Governor Abbott said that the decisions were based on the vaccine rollout and falling infection rates.

Deaths, new cases, and hospitalizations are down; in fact, hospitalizations in Texas are at the lowest levels since October 2020.  Despite interruptions caused by the severe weather over the last few weeks, 6.8% of Texans have been vaccinated, leading Governor Abbott to join others in asserting that the attempts at controlling this virus are improving.  The news comes only a day after the Director of the CDC warned about the possibility of a fourth wave of the virus, especially in light of the spread of several variants.

Key takeaways for businesses:

As part of President Biden’s first executive actions, on January 21, 2021, the president ordered the federal Occupational Safety and Health Administration (“OSHA”) to issue new science-based guidance to protect workers and enhance workplace health and safety during the Covid-19 pandemic. In compliance with this executive order, on January 29, 2021, OSHA issued new guidance to help employers better identify risks of being exposed to and/or contracting COVID-19 and to ascertain appropriate control measures employers can implement to address those risks. The guidance, titled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” (“Guidance”) contains advisory recommendations and reinforces already existing mandatory safety and health standards. This Alert provides an overview of this new federal Guidance and highlights important considerations for employers.

Legal Obligations of Employers in Responding to COVID-19

Throughout the Covid-19 pandemic, OSHA has referenced and leveraged the Occupational Safety and Health Act

In late 2020, many states enacted stay-at-home orders or issued new lockdowns in an effort to curb a perceived risk of elevated infection rates during the holiday season.  With the holidays behind us, and as hospitalizations rates begin to decline, and ICU capacity increases, some states have begun the process of rolling back their more stringent holiday restrictions.

The following is a summary of the steps that California and New York are taking to ease their restrictions.

California

The Governor announced on Monday, January 25th, that the Regional Stay at Home Order, which went into effect in early December, was being lifted.  The state now goes back to the Blueprint for a Safer Economy Plan that was in place before the Regional Stay at Home Order went into effect.

With the exception of four counties, the entire state is in the Widespread Tier under the plan, which is the most restrictive.

As with many other places across the country, St. Louis County is experiencing a surge of COVID-19 cases, and has enacted a new round of restrictions as a result. As of November 13, 2020, there were 38,620 total confirmed cases of COVID-19 in St. Louis County, with 900 new cases reported on November 12th alone. St. Louis County’s positivity rate reached a staggering 15.1%, the highest since April of 2020.  Hospitalizations due to COVID-19 are on the sharp rise.

In response, the St. Louis County Executive, Dr. Sam Page, announced a series of new restrictions:

• Restaurants and bars will close indoor service but not outdoor dining, curbside, delivery, and take-out service;
• All businesses will be reduced to 25 percent of their occupancy limits (currently at 50 percent);
• Gatherings will be reduced to a maximum of ten people (currently at 49 people);
• Residents should only leave their homes for specified reasons
  

26 states have either passed or proposed regulations regarding per- or polyfluoroalkyl (“PFAS”) based Class B Aqueous Film-Forming foams (“AFFF”) used for firefighting.  These regulations typically involve restrictions in four general areas:

While the specific regulations are listed in the chart below, BCLP wants to begin by providing an overview

On October 21, 2020, the Centers for Disease Control and Prevention (“CDC”) broadened the definition of “close contact” for purposes of COVID-19 contact tracing and quarantining requirements.

Since many state and local government COVID-19 orders rely on the CDC definition of “close contact” to determine who should stay home, monitor, and be tested, the expanded definition will have repercussions across the country.  Businesses may need to re-train their employees so that they follow the correct contact tracing protocols, and additionally, businesses may need to re-write COVID-19 protocols and standard operating procedures to reflect the new definition.

Contacts Are Now Cumulative Over a 24-Hour Period

Originally, the CDC defined a “close contact” as a person who spent 15 consecutive minutes within six feet of an infected person starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test speciment collection) until the time the patient is

The United States had hoped that industries (and life in general) would be “back to normal” by now after being impacted by COVID-19.  Society has endured this global pandemic for over six months, and while there have been improvements and efforts to allow certain businesses to reopen, there is no clear end in sight.

Current Events

Recent trends confirm that the impacts from COVID-19 will continue.  While death rates in states like New York[1] and Arizona[2] are decreasing, states like Georgia[3] and Florida[4] are seeing climbing infection rates.  Local hotspots like Danbury, Connecticut, have emerged,[5] and eight states (thus far) have had spikes in cases caused by the large Sturgis motorcycle rally in South Dakota.[6]  In response, some states and local governments are implementing controls.  For example, Illinois is taking some preventative safety measures,[7] and Oahu, Hawaii issued a two-week lockdown to address increasing infection rates.[8] 

The important