OSHA Issues Updated Enforcement Guidance Addressing COVID-19

On Monday, April 13, 2020, the Occupational Safety and Health Administration (OSHA) issued its “Interim Enforcement Response Plan for Coronavirus Disease (COVID-19)” (the Interim Plan) which outlines how the agency will address COVID-19-related complaints, referrals and employer-reported hospitalizations and fatalities. While focusing primarily on health care and other higher risk employers, the Interim Plan also provides guidance applicable to other businesses, outlines temporary procedures to protect its compliance safety and health officers (CSHOs) from the coronavirus, and allows field offices some flexibility and discretion in the enforcement of OSHA standards during the pandemic.

The Interim Plan uses the workplace “risk level” framework identified in OSHA’s previous Guidance on Preparing Workplaces for COVID-19. That framework recognizes three risk levels. High and very high exposure jobs are in workplaces known to have high exposure to known or suspected sources of COVID-19, such as hospitals, nursing homes, laboratories, medical transport and other, similar high risk facilities. Medium exposure risk jobs are positions that involve frequent and/or close (within 6 feet) contact with the general public or co-workers, and include high volume retail settings, high-population-density workplaces and schools. Lower exposure risk jobs are those that do not require close contact with others.

OSHA will focus its inspection activities on COVID-19-related complaints/referrals and employer-reported illnesses involving facilities with high and very high exposure risk jobs. Fatalities and imminent danger exposures will be prioritized for inspections. To limit the risk to its own personnel, the Interim Plan urges CSHOs to conduct as much of the formal inspection as possible remotely and without accessing the site of suspected or confirmed COVID-19 exposure. For example, the plan suggests opening conferences be conducted by telephone, and documents be produced and reviewed online. CSHOs should have appropriate personal protective equipment for entering and inspecting the site.

Recognizing the shortages of respirators, surgical masks, and fit-testing supplies and equipment throughout the United States, OSHA provides specific enforcement flexibility for CSHOs enforcing the Respiratory Protection standard, 29 CFR 1910.134, in healthcare and other higher risk workplaces during the pandemic. Thus, CSHOs should exercise discretion when considering potential citations under 29 CFR 1910.134(d) and/or the equivalent respiratory protection provisions of other health standards, as long as the employer demonstrates a good faith effort to obtain appropriate or alternative equipment.

Complaints concerning employees engaged in medium or lower exposure risk jobs will not result in onsite inspections. Instead, OSHA will use its non-formal procedures to investigate those alleged hazards. This generally will involve a letter (a form of which is included in the Interim Plan as Attachment 2) requesting the employer immediately investigate the allegations, and provide documentation of any findings and any corrective action taken or, if no hazard exists, a statement and explanation to that effect. Failure to respond may result in an inspection.

While OSHA has no COVID-19 specific regulations or formal standard, the form letter identifies a list of regulations that may apply to COVID-19 issues in a medium or low risk workplace depending upon the allegations and the work site, including OSHA’s standards on Recording and Reporting Occupational Injuries and Illnesses; General Requirements-Personal Protective Equipment; Eye and Face Protection; and Sanitation.

The form letter also notes the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act, which imposes upon employers a “general duty” to provide a workplace free of known health and safety hazards. The form letter directs the recipient to prior non-binding guidance from the Centers for Disease Control and Prevention (CDC) and OSHA on COVID-19 in the workplace. That guidance recommended preventative measures such as social distancing, flexible work schedules, and additional workplace cleaning, and included guidelines for responding to employees with COVID-19 symptoms, strongly suggesting that OSHA expects employers to comply with and keep up with—CDC and OSHA non-binding advice on protecting workers from the pandemic, and raising the potential down the road for General Duty citations based on a failure to do so.

Finally, employers must remember that COVID-19 may be a recordable illness where: (1) the case is confirmed, as defined by the CDC; (2) the case is work-related, meaning an event or exposure in the work environment either caused or contributed to the resulting condition; and (3) the case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (such as resulting in days away from work, medical treatment, and/or work restrictions). The Interim Plan also reminds employers of their obligation to report work related (including COVID-19 related) fatalities within 8 hours and hospitalizations within 24 hours of becoming aware of the fatality or hospitalization.

Ballard Spahr’s Labor and Employment Group is closely following COVID-19 legislation and other developments related to COVID-19 as they impact the workforce. If you have questions, please contact any member of the Labor and Employment Group for advice about your situation.

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