Since the COVID-19 pandemic first hit the United States in early 2020, the US Occupational Safety and Health Administration (OSHA) has been issuing COVID-19 guidance to employers on appropriate ways to address the pandemic, as we previously discussed here, here, and here. The guidance has mirrored recommendations coming from the Centers for Disease Control and Prevention (CDC) and the White House, and builds upon past guidance OSHA has offered to employers when dealing with other (not so) similar pandemics.
OSHA’s most recent (and perhaps most telling) guidance was issued on April 13, 2020, in the form of a memorandum to OSHA regional administrators and state plan designees, entitled Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) (the IERP). Although aimed to guide field offices and OSHA inspectors dealing with and investigating COVID-19-related issues in the workplace, the guidance provides particularly useful insight for employers into the agency’s safety, health, and enforcement priorities as we all struggle to meet the challenges presented by the COVID-19 pandemic.
OSHA begins the memorandum by confirming it “will continue to ensure safe and healthy conditions for America’s working men and women by enforcing standards during this health crisis,” but also quickly clarifies that there will be “heightened attention” to the risks posed by COVID-19. To this end, OSHA area offices have been directed to use their resources to “fulfill mission essential functions and protect workers,” while also taking the necessary measures to protect OSHA personnel in the course of their duties. Accordingly, OSHA clarified that the plan will allow “flexibility and discretion” to field offices to maximize OSHA’s impact during the COVID-19 pandemic.
The IERP proceeds to outline OSHA’s “general enforcement guidance,” directing inspectors to investigate complaints, referrals, fatalities, and hospitalizations in order to (1) identify potentially hazardous workplace exposures due to COVID-19 and (2) to ensure that employers take prompt actions to mitigate hazards and protect employees. Notably, OSHA confirms up front that complaints to date have mostly involved concerns regarding a lack of proper PPE and appropriate training, as discussed further below, alluding to the likelihood that these will be key areas of focus for the agency.
While focusing on general industry as a whole, the IERP clearly shows a priority for healthcare and emergency response establishments, directing that any complaints outside of these industries (and with medium to lower exposure risk) will not normally result in an on-site inspection and should be processed with the lower-priority, non-formal procedures in OSHA’s Field Operations Manual. Attachment 1 to the IERP also clarifies that it is the more formal complaints alleging unprotected exposures in the high or very high risk categories (i.e., healthcare and emergency workers) that may warrant an on-site inspection. Importantly, however, OSHA also specifically states that it will be forwarding complaint information deemed appropriate to other federal partners with concurrent interests in dealing with COVID-19 (without making any such limitation), a tacit warning to employers that complaints in any workplace could end up before multiple enforcement agencies.
Rounding out the plan, OSHA (1) reiterated its guidance from April 10, 2020 regarding the reportability and recordability of COVID-19-related incidents; (2) gave directions to area directors to prioritize resources and evaluate the risk level of exposure to COVID-19 at all workplaces prior to any inspections in order to determine if an on-site inspection is even necessary; (3) directed inspectors to maximize electronic communications and avoid interference with ongoing medical services; and (4) mandated coordination between OSHA officials and offices. On the last point, OSHA is explicitly requiring that the Directorate of Enforcement Programs (DEP) must be notified of all proposed citations and federal notices related to COVID-19 exposures and that state plan inspectors must report the same to the Regional Office. This may prove to be a significant challenge for the DEP and Regional Offices.
Attached to the memorandum are specific enforcement procedures for potentially-applicable standards—describing when to use enforcement discretion (Attachment 1); a sample employer letter for COVID-19 activities (Attachment 2); a sample hazard alert letter (Attachment 3); a sample alleged violation description for a citation under the general duty clause, Section 5(a)(1), of the Occupational Safety and Health (OSH) Act (Attachment 4); and additional references, including OSHA’s prior COVID-19-related enforcement memoranda, which are incorporated by reference into the plan (Attachment 5).
These attachments all contain important information regarding OSHA’s enforcement priorities that are worth employers’ review. Perhaps most importantly, however, Attachment 1 outlines the primary areas to which inspectors should pay attention during any COVID-19 inspection:
- Whether the employer has a written pandemic plan as recommended by the CDC;
- Review the employer’s hazard assessment procedures and PPE protocols;
- Review medical records related to worker exposure incidents, OSHA-required recordkeeping, and any COVID-19 related exposures or infections;
- Review respiratory protection programs and/or modified respirator policies;
- Review employee training records, including training specifically related to dealing with and protecting against COVID-19;
- Review efforts made by the employer to obtain and provide adequate PPE;
- Determine whether the employer has considered and/or implemented a hierarchy of controls for worker protection, i.e., engineering controls, administrative controls, work practices, or PPE; and
- (Specific to healthcare) whether there are isolation rooms, air pressure monitoring systems, periodic testing procedures, proper transfer procedures, and proper placements of confirmed and suspected COVID-19 patients in the preceding 30 days.
The attachment also sets forth the primary standards that OSHA shall consider during its inspections, including the following (with a notable special emphasis on the General Duty Clause):
- 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.
Through this memorandum, OSHA has thus acted as cartographer for employers of all kinds—mapping out exactly which areas they should focus on to avoid agency scrutiny when dealing with COVID-19 in the workplace (and, ideally, as they put together and implement their “Infectious Disease and Preparedness and Response Plans.”) Indeed, OSHA has signaled where it is headed during this unprecedented time, and employers would be wise to trust and follow this guidance. Please reach out with any questions, and be sure to check back frequently with our Employment Law Worldview and frESH Law blogs for continued regulatory updates as the pandemic continues to unfold.