In response to the continuing COVID-19 epidemic, the United States Coast Guard, Centers for Disease Control and Prevention, U.S. Equal Employment Opportunity Commission, and U.S. Customs and Border Protection have issued a series of administrative guidelines or regulations broadly affecting international maritime commerce. In addition to this agency action, the AWO and other sectors of the maritime industry have voluntarily formulated several response plans aimed at protecting the nation’s vital maritime commerce during this public emergency. We have reviewed these guidelines and regulations, and have organized them into general topics of common questions in our industry.
I. How Should I Change My Operations during the Pandemic? What Changes Should I Make to Employee Operations?
On March 13, 2020, The American Waterways Operators (AWO) issued a COVID-19 Contingency Planning Guide for Towing Vessel and Barge Operators, which recommends, among other items, that marine employers implement an employee questionnaire process to include the following possible questions to be answered prior to vessel crew change or shift change for land-based employees:
- Do you have a fever (100.4˚ F/37.8˚ C or above), feel feverish, or have any other signs or symptoms of acute respiratory illness (cough, difficulty breathing or shortness of breath)?
- Have you traveled to an area experiencing ongoing community spread of COVID-19?; and
- Have you had close contact with (provided direct care to, worked in close proximity to, shared a room with, traveled with, lived in the same household as) a person confirmed or suspected to have COVID-19?
The AWO Guide contains general information on COVID-19 symptoms and best practices to prevent or slow transmission of the Coronavirus, particularly including: a recommendation to “defer non-essential boarding by non-crewmembers or consider phone or videoconference communications as alternatives,” noting that “if boarding is necessary,” a “procedure for screening non-crewmembers boarding the vessel” should be established.
In addition to the crewmember questionnaire recommended above, the AWO suggests that marine operators develop and deploy a questionnaire for non-crewmembers prior to embarkation, and employ policies to request that non-crewmembers practice respiratory etiquette and hand hygiene and maintain a distance of 3 feet from crewmembers to the extent practicable. Finally, the AWO recommends the development of a “written outbreak management plan” that contains information to track and identify suspected cases and the locations of sick crewmembers, cleaning procedures, etc.
The AWO held a public webinar on March 19, 2020, regarding the novel Coronavirus and the COVID-19 it causes, and has made the video of that webinar available to the public. AWO has provided a central repository of links to various resources on its site, including a template letter to identify marine towing employees as essential critical infrastructure personnel– which can be reproduced on company letterhead, and the RCP Standards Board memorandum regarding internal audit extension requests due to COVID-19.
The EEOC Has Authorized Employers to Take Employees’ Temperatures, among Other Measures to Slow Covid-19 Pandemic.
On its official website, the U.S. Equal Employment Opportunity Commission shared a handy factsheet for U.S. employers and issued guidance to several common questions. Included in this guidance were the following items:
- The EEOC gave specific approval for ADA-covered employers “to ask employees if they are experiencing symptoms of the pandemic virus.” Employers must, however, still maintain all information about employee illness as a confidential medical record in compliance with the ADA;
- Although measuring an employee’s body temperature qualifies as a medical examination, the EEOC guidance states that “employers may measure employees’ body temperatures” because “the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions;”
- Employers may require employees to have a return to work authorization signed by a physician before returning to work, “either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees.” The EEOC does note that, “as a practical matter,” however, “doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation;”
- Employers may screen for COVID-19 during the hiring process;
- Employers may delay the start date of employees with COVID-19 symptoms or positive results; and
- Employers may withdraw a job offer to a recently hired employee that tests positive for the novel coronavirus.
The EEOC also updated its standing document, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act to reflect this new guidance.
II. Has the USCG Provided Guidance that Could Affect My Business?
Yes, the U.S. Coast Guard Has Announced a Series of Requirements and Operational Changes through Marine Safety Information Bulletins.
A. What Do I Do if a Crewmember on My Vessel Gets COVID-19?
On March 13, 2020, the USCG issued Marine Safety Information Bulletin (MSIB) 06-20: Vessel Reporting Requirements for Illness or Death, mandating notification to USCG and the Center for Disease Control in the event a crewmember contracts COVID-19. MSIB 06-20 draws on USCG authority as stated in 33 C.F.R. § 160.216v and 42 C.F.R. § 71.21, regulations which require the master of a ship calling at a U.S. port to report “immediately” if a crewmember falls ill or dies within 15 days prior to the vessel’s U.S. arrival (for coastwise trade, within the time since the vessel’s last U.S. port of call).
MSIB 06-20 threatens the full range of USCG enforcement action in order to ensure compliance, including (unscheduled) civil penalties, vessel detentions, and criminal liability.” Interestingly, the Bulletin explains that the illness of a person onboard a vessel “that may adversely affect the safety of a vessel or port” is a “hazardous condition per 33 CFR 160.216,” and the presence of COVID-19 has specifically been named a hazardous condition.
MSIB 06-20 defines an “ill person” using the criteria of 42 CFR 71.1, which lists: a measured temperature of 100.4°F [38 °C] or greater; or feeling warm to the touch, a fever that has persisted for more than 48 hours, acute gastroenteritis, etc.
In addition to making a report to the USCG, a CDC report must also be filed, pursuant to 42 C.F.R. 71.1. The process for filing a CDC report is available here.
On February 18, 2020, the Centers for Disease Control and Prevention (CDC) issued a revised Interim Guidance for Ships on Managing Suspected Coronavirus Disease 2019. Among the measures urged by the CDC are recommendations to:
- Postpone travel when sick;
- Self-isolate and inform the onboard medical center immediately if a crewmember develops a fever (100.4oF / 38oC or higher), begins to feel feverish, or develops other signs or symptoms of sickness;
- Use respiratory, cough, and hand hygiene;
- Advise passengers and crew of the importance of covering coughs and sneezes with a tissue;
- Dispose used tissues immediately in a disposable container (e.g., plastic bag) or a washable trash can;
- Remind passengers and crew members to wash their hands often with soap and water, especially after coughing or sneezing. If soap and water are not available, they can use a hand sanitizer containing 60%-95% alcohol);
- Identify and isolate passengers and crew with possible symptoms of COVID-19 as soon as possible; and
- Obtain a detailed travel history and assess for any other potential exposures to a person with confirmed COVID-19 infection.
The CDC also recommends that any COVID-19 confirmed crewmember wear a facemask (a surgical mask, not N-95) as soon as they are identified, and to evaluate such patients in a private room with the door closed, ideally an airborne infection isolation room, if available. Finally, the CDC recommends that masters deny boarding to any passenger or crew member suspected to have COVID-19 infection, based on signs and symptoms plus travel history in China or other known exposure at the time of embarkation.
After a confirmed COVID-19 case, the CDC recommends that vessels:
- Isolate passengers or crew onboard who are suspected of having COVID-19 infection in a single-occupancy cabin with the door closed until symptoms are improved. Discontinuing isolation precautions is made on a case-by-case basis, in consultation with CDC;
- Because it is unknown how long the coronavirus survives in the air, it is important to wait at least two hours before entering the cabin of a quarantined crewmember without respiratory protection;
- Clean all “high-touch” surfaces in the sick person’s room (for example, counters, tabletops, doorknobs, light switches, bathroom fixtures, toilets, phones, keyboards, tablets, and bedside tables) according to instructions described for the above EPA-registered product;
- Wear disposable gloves and gowns during cleaning activities;
- After cleaning is completed, collect soiled textiles and linens in sturdy leak-proof containers; these can be laundered using conventional processes following standard operating procedures. PPE should be removed and placed with other disposable items in sturdy, leak-proof (plastic) bags that are tied shut and not reopened. The bags of used PPE and disposable items can then be placed into the solid waste stream according to routine procedures;
- Have the sick crewmember wear a facemask before leaving their cabin; and that
- Passengers and crew members who have had high-risk exposures to a person suspected of having COVID-19 be quarantined in their cabins, with a single person giving care and meals to the sick person.
The CDC reminded mariners that, for ships on international voyages, if an illness occurred on board, the vessel must complete the Maritime Declaration of Health and send the Declaration to the competent authority.
B. How Should I Change My Operations at Port?
The US Customs and Border Protection issued Trade Notice 20-023: Temporary Restrictions on Crew Shore Leave, in which all crew aboard vessels are remanded to their vessels without shore leave “until further notice.” The Notice did allow that “CBP will work with carriers on a case-by-case basis on temporary shore leave requests for such reasons as but not limited to humanitarian, shore side business critical to the safe operation of the vessel, legal, medical, etc.”
The CBP clarified that “[a]t this time, crew sign-offs (D-2) will still be reviewed and granted if the crewmember has direct and continuous travel out of the United States, the crewmember is not exhibiting symptoms of COVID-19, the crewmember has valid travel documents, and there is no other restriction on the crewmember’s travel.”
C. What Changes Have Been Made to the Pilot Procedure at the Port of New Orleans as a Result of the Pandemic?
USCG Regulations Have Been Implemented.
On March 17, 2020, USCG issued MSIB XX Issue 035: COVID-19 Vessel Precautions. The Bulletin implements a hygiene and disease transmission awareness protocol, with specific requirements, as follows:
- In the hour prior to Pilot boarding, mariners must wipe down the entire bridge with a 5% solution of bleach water. (Chart table, instruments, chairs, helm, entire console, windows, etc.)
- Any crew member entering the bridge must thoroughly wash their hands and face prior to entering the bridge, and their hands again immediately upon entering.
- Pilots may bring their own sanitizing materials, but these should also be provided by the ship and made available for all bridge team members to use frequently.
- Throughout the transit, Pilots onboard are encouraged to regularly wipe down any surface they come into contact with, such as pens/pencils, binoculars, radar control panels, ECDIS control panels, PPUs, VHF radios, etc.
- Close contact should be avoided at all times.
- If the Pilot is in a non-critical area of navigation and feels that they may need to cough or sneeze then they are encouraged to step to the bridge wing or exterior of the wheelhouse and do so in an open environment away from other individuals. If the area of navigation or layout of wheelhouse does not permit this action then the individual shall cover their mouth/nose and orient themselves in a direction away from other individuals. When safe to do so, they shall proceed with wiping down of the surfaces in their immediate vicinity.
- Every member of the bridge team should sanitize their hands immediately after touching their face, Pilot included. Pilots should make this awareness a part of Master-Pilot Exchange (MPX).
- Please only allow essential personnel in the wheelhouse.
- Eating while on the bridge should be avoided when possible.
Louisiana Pilots Have Enacted Contingency Plans.
For its part, the Associated Branch Pilots of the Port of New Orleans on March 20, 2020, issued Target Zero: A Coronavirus Risk Management and Safety Measures Plan, in which it stated that, “due to the critical nature of their work, the members of the Associated Branch Pilots are taking a rigorous approach towards preventing the infection of Coronavirus in its pilots and employees with a target of zero infections.”
This approach involves a change in the Pilots’ scheduling policies, for both pilots and employees, to minimize the number of on-facility personnel, and to increase the watch terms to two weeks from one week, in order to decrease the influx of new people into the pilot stations. Pilots are also requested not to leave the station once there.
Because “the pilot stations at Southwest Pass and in Venice, Louisiana serve as communal living facilities for both pilots and employees,” there are to be no face-to-face meetings held in the offices or stations, and the official guidance is to conduct any meetings with “outsiders, vendors, etc.’ with Microsoft Teams, Skype, or Zoom. Pilots have officially prohibited “handshaking, fist bumps, hugs, and elbow bumps,” and ordered pilots and employees to maintain a suggested distance of six feet away from others in case of a sneeze or cough, avoid congregating with others, and avoid shipboard common areas. Pilots and employees are directed to wash their hands frequently with soap and warm water for at least 20 seconds and “to be obsessive about it.”
The Pilots have also mandated that “anyone involved in food preparation or serving, in addition to normal food safety procedures, shall wear a face mask and gloves,” and that all pilot stations are kept clean with sanitizing wipes or cleaner. Besides the usual requirement that employees alert the Pilots if they are unwell so that they may not infect others, the Pilots explain that pilots and employees are to self-quarantine for 14 days if they “have been exposed to the Coronavirus, such as close contact with a suspected/confirmed case, or . . . are at risk of coming down with the Coronavirus due to suspected contact,” and mention that “a return to work authorization from the company doctor may be required before returning.”
The Crescent River Port Pilots have enacted a “remarkably similar” plan to that of the ABP.
D. Must Masters Still Hand-Deliver the Declaration Directly to the USCG? How Else Has the USCG Minimized Face-to-Face Contact between it and vessels?
No. Declarations of Security and Inspection are now able to be submitted electronically after a remote visual conversation. The USCG issued MSIB 07-20: Novel Coronavirus – Port and Facility Operations on March 18, 2020. In MSIB 07-20, the USCG acknowledges that “the COVID-19 pandemic has resulted in a myriad of unique operating conditions that warrant special considerations,” including cruise ships mooring at facilities not approved for passenger operations, garbage removal, and facility and vessel crew interactions. These unconventional arrangements have required USCG to implement additional security guidelines. Although Declarations of Security are required, depending on the existing MARSEC level, USCG is allowing electronic communication to be used for the purposes of completing the DoS, however the USCG still requires a “conversation” between both the vessel and facility.
Similarly, Declarations of Inspection under 33 C.F.R. §156.150 can be completed over the radio, phone, or “at a safe social distance,” with required signatures being allowed in electronic form. MSIB 07-20 envisions the scenario in which ships of one type are being berthed at facilities not designed for them, noting:
If a situation arises where a facility will not be able to comply with the requirements of 33 CFR 105, the facility must contact the Captain of the Port (COTP) to request and receive permission to temporarily deviate from the requirements. Potential situations where this can be used are modified escort requirements in secure areas or mooring a cruise ship at a non-passenger terminal. This request should include any new measures or safeguards the facility plans to employ to mitigate any risk from the noncompliance with 33 CFR 105. While not discussed in 33 CFR 105, the facility operator should also evaluate and consider any safety risks that may be created from the non-compliance. For example, if a facility will receive a different type of vessel than they normally receive, the facility operator should consider if the dock is physically capable of handling that vessel, and any logistical issues that may arise such as movement of personnel from the vessel off the facility, any medical issues or personnel that may be introduced to the facility, supplies for the vessel, and waste removal from the vessel.
E. My MMC Expires Soon or Has Just Expired, and I Need to Undergo My Annual Physical. What Should I Do?
On March 19, 2020, the USCG issued MSIB 08-20: Novel Coronavirus – Mariner Credentials, in which it announced the USCG is closing its Regional Examination Centers and Monitoring Units “until further notice effective immediately.” Mariners are asked to reschedule any existing appointments by calling the relevant governmental office. In order to prevent a vacuum in licensure, however, the USCG also extended Merchant Mariner Credentials (MMC) and Medical Certificates (National Endorsements only) that expired between March 1, 2020 and July 31, 2020, until October 31, 2020. The USCG also directed that mariners who are actively working on expired credentials must carry the expired credential with a copy of MSIB 08-20. Finally, MSIB 08-20 announces the official non-enforcement of
46 U.S.C. § 7101(e)(3), which requires pilots to undergo an annual physical examination each year while holding a credential. The USCG announced in MSIB 08-20 that it “does not intend to enforce this requirement[,] given the current national emergency and the lack of medical care” while stressing that MSIB 08029 “ONLY relaxes the requirement for an annual physical and not the actual medical standards.”
F. My TWIC Expires Soon. Are the Enrollment Centers Still Open? What If the Enrollment Center I Am Supposed to Visit for My Renewal Closes?
The TSA has issued a FAQ Sheet called COVID-19 Impact – Enrollment Questions in which it announces that it intends to keep enrollment centers open “where possible,” and that although some have closed or reduced their hours, “many” centers remain open. Those who may have or have had their appointments cancelled as a result of these closings will be contacted with an opportunity to go to an alternate center. Overall, delays are not expected at this time. Application timelines for new credentials are also not impacted by the pandemic response.
III. How Has Port Traffic Been Affected by the COVID-19 Pandemic?
The Port of New Orleans has closed its Administration Building, but notes that its operators and functions are continuing unchanged and that the cargo operations at the Port “continue to function as normal.” The Port notes on its website that river cruises are cancelled until further notice and that international cruise ships have voluntarily entered a 30-suspension period as of March 14, 2020.
What Other National Guidance Exists?
All of these agency regulations and industry directives are, of course, in the context of the President’s Coronavirus Guidelines for America, issued March 16, 2020, which requests that groups limit themselves to no more than 10 people, to avoid discretionary travel, to not visit nursing homes, and to stay at home with your entire family if one of the family feels unwell.
The maritime team here at Liskow & Lewis stands ready to assist you as this pandemic continues. If you have any questions or concerns about how the novel coronavirus or the disease it causes (COVID-19) have or may affect your business, please do not hesitate to contact us.
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