The Occupational Safety and Health Administration (OSHA) issued an Updated Interim Enforcement Response Plan on May 19 for enforcing OSHA’s requirements with respect to coronavirus (COVID-19) and a Revised Enforcement Guidance for Recording Cases of COVID-19, walking back positions that the agency expressed just one month ago in its first interim response plan and recordkeeping enforcement guidance for COVID-19.
The revised response plan announces that instead of focusing on specific industries and relying on informal complaint letters, OSHA will look to increase in-person inspections at all types of workplaces because more businesses are now reopening, the risk of transmission has been lowered in certain categories of workplaces, and personal protective equipment (PPE) is more widely available. Similarly, OSHA’s recordkeeping guidance also has shifted – now requiring employers in all industries to analyze whether a COVID-19 case is work-related to determine if the recordkeeping criteria are met. Still, the agency’s guidance should be viewed in light of President Donald Trump’s executive order on regulatory relief to support economic recovery, which focuses on combatting the economic consequences of COVID-19.
The Updated Interim Response Plan (the Plan) went into effect on May 26, 2020 and rescinds OSHA’s April 16, 2020 Interim Response Plan. The Plan contains much of the same information covered by the April plan, with some significant changes. OSHA notes from the outset that eliminating hazards from COVID-19 remains a top priority for the agency, but that current conditions warrant changes in enforcement. Specifically, OSHA points to declining infection rates, hospitalizations, and deaths and reopening workplaces, distinguishing between geographic areas where community spread of COVID-19 has significantly decreased and areas with sustained or increased community spread. At least in certain parts of the United States, OSHA no longer has the same heightened level of concern regarding risk to its own inspectors.
For those areas with significantly decreased community spread, OSHA will return to the inspection planning policy outlined in its 2020 Field Operations Manual to prioritize inspections, except that:
For those areas with sustained rates of transmission or a resurgence of transmission, area directors must exercise their discretion to continue prioritizing COVID-19 fatalities and imminent danger exposures for inspections, particularly in high-risk workplaces such as hospitals, other healthcare providers, and workplaces with high numbers of complaints or known COVID-19 cases. In the face of insufficient resources, the agency will initiate remote inspections or, if neither onsite nor remote inspections can occur, the agency will investigate these events using a rapid response investigation to identify hazards, provide abatement assistance, and confirm abatement. OSHA will also utilize so-called “phone-fax” informal investigations instead of onsite inspection in industries where doing so can address the relevant hazards.
The agency makes it clear that it anticipates increased COVID-19 complaints from employees in nonessential industries as areas of the country begin to reopen. OSHA is committed to a return to normal procedures, with minor modifications only, so long as community transmission has significantly decreased and complaints or referrals come from workplaces with medium or low risk. OSHA states that “imminent danger reports and life-critical programmed activities (e.g., falls, struck-by, caught-in/between, or electrocutions)” and COVID-19 complaints will result in onsite inspections where conditions allow it and resources are available for it. In short, the Plan aims at a resumption of normal agency practices where feasible to do so.
The Plan also suggests that requirements for citing employers under Section 5(a)(1) of the OSH Act, the so-called “general duty clause,” will be stringent and closely scrutinized. The agency cautions against general duty clause citations unless the case file evidence establishes all four elements: (1) the employer failed to keep the workplace free of a hazard to which employees of that employer were exposed; (2) the hazard was recognized; (3) the hazard was causing or was likely to cause death or serious physical harm; and (4) there was a feasible and useful method to correct the hazard. Otherwise, the area office should issue a hazard alert letter (HAL) recommending the implementation of protective measures that address COVID-19 hazards. And, in all cases where the area director determines that a condition exists warranting a general duty clause citation, the proposed citation must be reviewed with the regional administrator and the national office prior to issuance, and regional offices must consult with their regional solicitor. These levels of approval will serve as a deterrent for widespread issuance of general duty clause citations.
Finally, additional changes to the Plan include:
In its May 19, 2020 Revised Enforcement Guidance for Recording Cases of COVID-19 (the Revised Recording Guidance), OSHA also changed course on employer requirements for recording COVID-19 cases. Reversing its recent position, the agency now states that all employers must investigate employee COVID-19 diagnoses to determine if they are work-related and are responsible for recording cases of COVID-19 if:
An employer’s investigation following an employee COVID-19 diagnosis should include reviewing the employee’s work environment, engaging in some form of contact tracing to track whether illnesses are clustered among groups of employees, and discussing with each employee the circumstances of their infection while respecting employee privacy.
OSHA recognizes that it “remains difficult to determine whether a COVID-19 illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace.” The agency notes that recording a COVID-19 illness does not, in and of itself, mean that an employer has violated any OSHA standard, and directs CSHOs to apply certain considerations in the exercise of enforcement discretion. These include:
Employers should consider certain factors when making their work-relatedness determinations, including:
OSHA notes that, after engaging in the inquiry, if an employer still cannot determine whether it is more likely or not that an employee’s illness is work-related, the employer should not record the illness. If an employer does record a COVID-19 case, it should be coded as a respiratory illness on OSHA’s Form 300.
The Revised Recording Guidance does not go into detail regarding reporting requirements for COVID-19 employee illnesses that result in a fatality, in-patient hospitalization, amputation, or loss of an eye. Still, employers should assume that – just as they would for recording – they must now undertake a work-related determination for reporting as well.
The agency’s guidance was released on the same day that President Trump issued an executive order directing federal agencies to rescind, modify, waive, or provide exemptions from regulations and other requirements that may inhibit economic recovery. The executive order requires all agencies, including the US Department of Labor and OSHA, to “identify regulatory standards that may inhibit economic recovery” and take appropriate action to “temporarily or permanently rescind, modify, waive, or exempt persons or entities from those requirements, and to consider exercising appropriate temporary enforcement discretion . . . with respect to those requirements, for the purpose of promoting job creation and economic growth.”
The executive order further directs agencies to consider adopting policies of enforcement discretion, including declining enforcement against entities that have attempted in reasonable good faith to comply with applicable statutory and regulatory standards. In many respects, OSHA has already developed policies in line with the policy goals of the executive order, formalizing policies of enforcement discretion with respect to the Respiratory Protection Standard, Training and Audits, and the Revised Recording Guidance discussed above. The Plan also arguably adopts a policy of enforcement discretion with respect to general duty clause violations. The executive order requires that OSHA identify any standards that may pose hardships to reopening businesses and consider temporary waiver of standards and/or adopting policies for enforcement discretion. In response, the agency will likely release additional guidance in the coming weeks.
As rates of infection are declining and businesses start to reopen, OSHA’s guidance signals that enforcement is likely to shift back to onsite inspections. Employers should be prepared. During the inspection, employers should be mindful of local requirements pertaining to face coverings and social distancing, and they should ensure that employees are following best practices. Whether or not the inspection is related to COVID-19, inspectors are sure to take notice of the social distancing measures in place.
Further, the new recordkeeping guidance represents another shift back to status quo in that all employers must now engage in a good-faith work-relatedness determination for COVID-19 illnesses, including reviewing an employee’s work environment, engaging in some form of contact tracing to track whether illnesses are clustered amongst groups, and discussing with each employee the circumstances of their infection while respecting employee privacy. However, OSHA remains committed to exercising enforcement discretion with respect to recordkeeping citations and other areas. The agency also may release yet additional guidance to further implement the pro-business executive order. Employers should continue to monitor OSHA’s guidance documents, as the agency continues to adapt to the changing landscape of COVID-19.
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Jonathan L. Snare
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Jason S. Mills