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OSHA Guidance Marks Dramatic Shift in Enforcement Focus Amid COVID-19 Pandemic

April 20, 2020

The Occupational Safety and Health Administration has issued a new guidance allowing field offices flexibility in handling COVID-19-related matters, including complaints. The guidance focuses on highly affected industries, such as healthcare and first responders and prioritizes inspections in areas of imminent danger of exposures and fatalities. Enforcement for other industries is likely to shift from primarily on-site inspections to informal complaints and whistleblower actions.

Introduction

On April 13, the Occupational Safety and Health Administration (OSHA) issued an interim enforcement response plan for COVID-19, which allows field offices flexibility and discretion in handling COVID-19 related complaints, referrals, and illness reports. As OSHA notes in its new interim plan, the agency has received numerous complaints throughout the COVID-19 pandemic on a lack of personal protective equipment and training, as well as possible outbreaks in workplaces. Under its plan, OSHA will prioritize COVID-19 inspections where there is an imminent danger of exposures and fatalities. In addition, OSHA is focusing on the industries most impacted by the outbreak—first responders and the healthcare industry—and will use enforcement discretion for certain non-high risk industries.

Interim Enforcement Response Plan (April 13, 2020)   

Under its new plan, OSHA is now prioritizing COVID-19 related complaints above all others, particularly in high-risk exposure settings such as healthcare organizations and emergency first response. The plan also updates procedures to protect OSHA compliance officers from exposure to the virus, including avoiding on-site inspections wherever possible and using protective measures recommended by the Centers for Disease Control (CDC) when on-site inspections are required.

The response plan also provides compliance officers with enforcement discretion for certain standards. Specifically, OSHA will avoid citations under its:

  • Respiratory Protection Standard (think N95 face mask respirators). OSHA has reaffirmed earlier guidance published in March and April that eased requirements on use of expired respirators and respirator reuse. This guidance aligns with the CDC’s goal of making more facemasks and respirators available to the general workforce.
  • Injury and Illness Recordkeeping and Reporting Standard. OSHA reemphasized that it is exercising enforcement discretion for recording of COVID-19 cases outside the healthcare industry, emergency responder organizations, and correctional institutions in certain situations. Normally, OSHA regulations require employers to report and record certain “work-related” injuries and illness. This move acknowledges the difficulty in most industries of determining whether an employee’s exposure to the virus occurred at work.

To ensure coordination under the plan, the OSHA national office and OSHA regional administrator will review all citations issued based on exposure to COVID-19 before they are issued.

The plan includes several useful tools and documents, including:

  • A sample informal “phone/fax” complaint letter from OSHA to employers relaying allegations related to COVID-19. This is the type of letter employers should expect to receive in cases where no onsite inspection is warranted. The letter explains that OSHA does not plan to perform an on-site inspection if the employer conducts its own investigation and reports back to OSHA. In addition, OSHA warns that for complaints related to lack of personal protective equipment (PPE), employers should provide documentation showing their efforts made to obtain PPE.
  • A sample hazard alert letter (HAL) asking the employer to fix issues identified during an inspection. The sample hazard alert letter lists precautions it recommends for various workplaces, such as engineering controls, administrative controls, PPE, and appropriate training and communication.
  • A sample alleged violation description for a citation issued under the general duty clause. OSHA could copy this language into future citations against employers issued under Section 5(a)(1) of the OSH Act, the so-called general duty clause. This sample shows that OSHA will consider issuing general duty clause citations for inadequate engineering controls (for example, barriers and ventilation) in the healthcare setting.

In short, the new interim enforcement plan shows that OSHA will focus its resources on industries where workers are at the highest risk of exposure to COVID-19. Otherwise, it will use enforcement discretion in situations in which employers can demonstrate that they have taken steps to minimize exposure risk through training, written pandemic and social distancing plans, engineering controls, and PPE.  

Specific Guidance for COVID-19 Enforcement

OSHA’s interim plan also includes specific guidance for COVID-19 enforcement, which further explains and provides examples of workplaces with varying levels of risk during the pandemic. Jobs with high and very high exposure risk include work involving laboratory, postmortem, and medical procedures. This includes medical facilities, nursing homes, and biomedical laboratories. Jobs with medium exposure risk comprise those in which workers have recurring exposure and/or close contact (within 6 feet) with individuals who may have COVID-19. These medium exposure risk jobs may include, for example, schools and high-volume retail establishments. Finally, jobs with lower exposure risk are those in which contact with individuals who are known or suspected to be infected is not required, and jobs which do not require frequent close contact with the public.

Additionally, the guidance notes that inspections will be prioritized in work situations presenting any imminent danger for exposures or fatalities related to COVID-19, particularly with respect to the healthcare industry and first responders. Inspections also will focus on high and very high exposure risk jobs, including hospitals and emergency response facilities. According to the guidance, allegations of COVID-19 exposure in medium or lower exposure risk jobs will typically not warrant on-site inspection, and will instead proceed through the non-formal procedures for investigating alleged hazards. Employer-reported hospitalizations generally will be handled through Rapid Response Investigations.

The guidance also identifies a number of OSHA standards that may be relevant to complaints related to COVID-19, which include the following:

  • 29 CFR § 1904, Recording and Reporting Occupational Injuries and Illness.
  • 29 CFR § 1910.132, General Requirements - Personal Protective Equipment.
  • 29 CFR § 1910.133, Eye and Face protection.
  • 29 CFR § 1910.134, Respiratory Protection.
  • 29 CFR § 1910.141, Sanitation.
  • 29 CFR § 1910.145, Specification for Accident Prevention Signs and Tags.
  • 29 CFR § 1910.1020, Access to Employee Exposure and Medical Records.
  • Section 5(a)(1), General Duty Clause of the OSH Act.

Beyond these standards, OSHA instructed its compliance officers to collect certain documents and programs during any COVID-19 onsite inspections in its Specific Guidance for COVID-19 Enforcement (Appendix 1). These include: (1) a written pandemic response plan as recommended by the CDC; (2) a hazard assessment for PPE to protected against COVID-19; and (3) employee training records related to pandemic preparedness and COVID-19 exposure prevention. While these onsite inspections largely will occur in the high hazard industries (such as healthcare), these requests provide an insight into the types of steps OSHA will evaluate in their enforcement generally.

OSHA also has referenced the following CDC recommendations that employers should consider, including:

  • actively encouraging sick employees to stay home;
  • accommodating employees through social distancing or telework if possible;
  • emphasizing respirator etiquette and hand hygiene by all employees;
  • performing routine environmental cleaning;
  • monitoring government websites for travel advisories; and
  • planning for infection disease outbreaks in the workplace. 

By specifically referencing these CDC recommendations, OSHA is signaling to the regulated community that all employers should consider implementing these steps to build a strong safety and health program in the wake of COVID-19 and avoid COVID-19 related enforcement.

PRIOR OSHA ENFORCEMENT GUIDANCE

On April 10, prior to issuing the interim enforcement response plan, OSHA also released interim guidance addressing the recordkeeping requirements at 29 CFR Part 1904 and COVID-19. OSHA clarified employee COVID-19 cases are recordable only if they are work-related and otherwise meet the recordkeeping criteria. OSHA stated that only the healthcare, emergency response and correctional institution industries would need to undertake the work-relatedness determination for recordkeeping purposes. Other industries will not need to make this determination unless there is clear evidence that illness was work-related, such as an outbreak amongst a group of employees closely working together, or other evidence that is “reasonably available to the employer.” This may include information employers receive from workers, or that employers learn in the ordinary course of business. OSHA is also exercising enforcement discretion with respect to recordkeeping obligations for industries other than correctional institutions and emergency response and healthcare organizations. Both the recordkeeping interim guidance and the COVID-19 interim response plan signal that OSHA will focus its COVID-19 enforcement efforts on the healthcare industry as well as emergency response and correctional institution industries, at least for the near term.

Finally, on April 8, OSHA issued a press release making it clear that employers may not retaliate against employees who report unsafe or unhealthful working conditions during the COVID-19 pandemic. The press release reminds employees that they still have the right to file whistleblower complaints if their employers retaliate against them in contravention of any of the more than 20 whistleblower protection laws that OSHA enforces. OSHA reiterated this point again in this interim enforcement response plan, noting that employees who report illness, request inspections, or report exposure to COVID-19 may be protected under whistleblower statutes.

Implications for Employers

Based on all of this, OSHA enforcement is likely to shift primarily from onsite inspections to informal complaints and whistleblower actions. As its April 13 plan states, OSHA area offices generally will respond to complaints from non-emergency response and non-healthcare workplaces with non-formal “phone/fax” complaints. This is consistent with the April 10 guidance on recordkeeping, in that both focus enforcement on employers in the healthcare and emergency response industries. These guidance documents highlight the methods and strategies OSHA will employ to conduct enforcement against employers, including informal complaints for most industries. Further, OSHA guidance indicates the potential for more detailed review—including onsite inspections—for healthcare and emergency responses industries, as well as the use of whistleblower authority to bolster enforcement efforts. Employers should continue to monitor OSHA’s guidance documents, as the agency continues to adapt to the changing landscape of COVID-19.

Coronavirus COVID-19 Task Force

For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. We also have launched a resource page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Washington, DC
Jonathan L. Snare
Alana F. Genderson

Los Angeles
Jason S. Mills