OSHA Issues Guidance Addressing Enforcement Procedures During COVID-19 Pandemic

On April 13, OSHA released an Interim Enforcement Response Plan for Coronavirus Disease 2019, which provides instructions and guidance to OSHA Area Offices and compliance safety and health officers (CSHOs) for handling COVID-19-related complaints, referrals, and severe illness reports. The agency affirmed that, despite the challenges of the current environment, it will continue enforcing OSHA standards throughout the pandemic and will be giving heightened attention to the safety and health risks posed by COVID-19. The guidance states that OSHA has already received complaints during the initial months of the outbreak expressing concerns regarding the availability of personal protective equipment (PPE), and a lack of training regarding the OSHA standards that may be applicable to COVID-19 illnesses in the workplace.

The Interim Enforcement Response Plan describes how OSHA will prioritize its enforcement activities, describes the procedures the agency will use to investigate complaints and conduct inspections and provides guidance to CSHOs regarding the OSHA standards under which employers may be cited for COVID-19-related safety and health violations.

First, the Interim Enforcement Response Plan states that OSHA will utilize the workplace risk levels contained in the agency’s Occupational Risk Pyramid in determining its enforcement priorities. The Occupational Risk Pyramid classifies workplaces as having a high and very high exposure risk to COVID-19, medium exposure risk, or lower exposure risk. High and very high exposure risk jobs typically include those in settings where employees treat suspected and/or confirmed COVID-19 patients—particularly where employees conduct aerosol-generating procedures like bronchoscopies—or where employees handle human remains. Medium exposure risk jobs include those where employees have frequent and/or close contact (within 6 feet) with travelers returning from international locations with widespread COVID-19 transmission, or with the general public in areas with ongoing community transmission. Lower exposure risk jobs are those where employees have minimal occupational contact with the public and other coworkers.

Second, the Interim Enforcement Response Plan states that complaints or referrals involving COVID-19-related fatalities or imminent danger exposures will be prioritized for inspections, with particular attention given to healthcare organizations and first responders. Formal complaints alleging unprotected exposures to COVID-19 for workers with a high/very high risk of transmission may warrant an on-site inspection, for example, where a fatality occurs that is potentially related to COVID-19 exposure as a result of performing aerosol-generating procedures without adequate PPE. Inspections of formal complaints alleging COVID-19 exposure that involve employees in medium or lower exposure risk categories will typically be conducted by phone/fax correspondence rather than on-site visits.

Third, the Interim Enforcement Response Plan advises Area Directors and CSHOs to conduct inspection-related procedures remotely where possible, including opening conferences and program and document reviews. Where a site walkaround is necessary, CSHOs are instructed to use judgment when determining which areas of an employer’s facility they will inspect. CSHOs are also advised to practice social distancing when interviewing affected employees and maintain good hand hygiene.

Finally, the Interim Enforcement Response Plan identifies the following standards for CSHOs to evaluate when determining whether to issue a citation for COVID-19-related hazards:

• 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.

In assessing whether an employer has implemented adequate protective measures for workers that are appropriate to their risk classification, CSHOs should consult the most current CDC guidance. On April 3, 2020, the CDC issued guidance recommending the use of cloth face coverings in public settings where other social distancing measures are difficult to maintain. With respect to the standards listed above, the Interim Enforcement Response Plan contains the following clarifications of how the agency will apply them to COVID-19-related hazards:

• Records concerning an employee’s work-related exposure to COVID-19 is an employee exposure record under 29 CFR § 1910.1020(c)(5), and a record of COVID-19 medical test results, evaluations, or treatment is considered an employee medical record under 29 CFR § 1910.1020(c)(6).
• For purposes of OSHA injury and illness recordkeeping, COVID-19 cases are not subject to the work-relatedness exception for the common cold or flu, meaning that employers must record confirmed COVID-19 cases that are work-related and involve one or more of the standard’s recording criteria. For medium and lower risk employers, OSHA will not enforce the recordkeeping requirements for COVID-19 work-related determinations except where (1) there is objective evidence that a COVID-19 case may be work-related (e.g., a number of cases developing among workers who work closely together without an alternative explanation); and (2) the evidence was reasonably available to the employer (e.g., the employer learns about its employees’ health and safety in the ordinary course of managing its business and employees).
• Because of the increased demand for N95 filtering facepiece respirators during the COVID-19 outbreak, and the resulting shortage, CSHOs are instructed to assess whether the employer is making a good-faith effort to provide and ensure workers use the most appropriate respiratory protection available. CSHOs should take into consideration whether other feasible measures (e.g., partitions) were implemented to protect employees, whether the employer made a good faith effort to obtain other appropriate, alternative respirators, whether the employer has monitored its supply of N95s and prioritized their use according to CDC guidance, and whether surgical masks and eye protection were provided as an interim measure to protect against splashes and large droplets. 
• Where a CSHO determines that there are deficiencies in an employer’s COVID-19-related precautions, but there is insufficient evidence to prove a violation of the OSH Act’s General Duty Clause, CSHOs should send the employer a hazard alert letter recommending the implementation of additional protective measures.

Additionally, on April 16, 2020, OSHA issued a memorandum instructing Area Offices to exercise enforcement discretion due to the difficulties employers may have complying with OSHA standards as a result of the ongoing health emergency and widespread business closures.

For example, the memorandum notes, the American College of Occupational and Environmental Medicine issued a recommendation that occupational spirometry testing be suspended because of concerns about spreading droplets containing the COVID-19 virus during spirometry maneuvers. In addition, the Council for Accreditation in Occupational Hearing Conservation issued a recommendation that audiometric evaluations be suspended until normal operations have resumed, in order to minimize the risk to healthcare workers and conserve personal protective equipment.

The memorandum instructs CSHOs conducting inspections to assess an employer’s efforts to comply with standards that require annual or recurring audits, reviews, training, or assessments, and evaluate whether the employer made good faith efforts to comply with applicable OSHA standards under the circumstances. Good faith efforts could include, for example, whether the employer considered virtual training or the use of remote communications to conduct the training. In situations where compliance was not possible due to the pandemic, the memorandum instructs CSHOs to evaluate whether the employer nonetheless took other appropriate steps to ensure that employees were not exposed to any hazards. In instances where an employer is unable to comply with OSHA-mandated training, audit, assessment, inspection, or testing requirements because local authorities required the workplace to close, the memorandum states that employers should demonstrate a good faith attempt to meet the applicable requirements as soon as possible following the re-opening of the workplace. If the employer can demonstrate good faith efforts to comply, then the OSHA Area Offices will take such efforts into strong consideration in determining whether to cite a violation.