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May 22, 2020
The U.S. Department of Labor, Occupational Safety and Health Administration (“OSHA” or “the Agency”) has issued an “Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19)” (hereinafter “Enforcement Update”). In this Enforcement Update, the Acting Director of Enforcement Programs provides instructions to Area Offices and compliance safety and health officers (“CSHOs”) for handling COVID-19-related complaints, referrals, and severe illness reports. Thousands of claims are being made to OSHA involving COVID-19. It remains to be seen whether the Enforcement Update will be revised in the future and/or will influence workers’ compensation benefits determinations or other employment-related liability. The Enforcement Update rescinds, starting May 26, 2020, prior guidance dated April 13, 2020 on this subject.
The Enforcement Update notes the progress being made in addressing COVID-19, and indicates that in areas where community spread of COVID-19 has significantly decreased, the Agency will be returning to inspection planning policy utilized prior to the start of the pandemic. However, there will continue to be a priority on COVID-19 cases. The Enforcement Update provides considerations for how to proceed with inspections under different circumstances. This includes guidance concerning what should be evaluated in areas that are experiencing “sustained elevated community transmission” or a “resurgence in community transmission of COVID-19.” This guidance includes how OSHA should address situations where inspections have been limited due to available resources. Enforcement Update at pages 1-2.
The Enforcement Update reports that as economies reopen and workers are returning to businesses, OSHA is receiving complaints from affected workers in non-essential businesses. The Enforcement Update accounts for this, and provides guidance on how investigations of certain complaints should proceed. The guidance reminds employers that:
Employers must report work-related fatalities to OSHA within eight (8) hours and work-related in-patient hospitalizations, amputations, or losses of an eye within twenty-four (24) hours. Employers must report fatalities that occur within thirty (30) days of a work-related incident, and must report in-patient hospitalizations, amputations, or losses of an eye that occur within twenty-four (24) hours of a work-related incident. After OSHA receives an employer report of a fatality, in-patient hospitalization, amputation, or loss of an eye as a result of a work-related incident, the AD will determine whether to conduct an inspection or a RRI [rapid response investigation].
Enforcement Update at page 3. OSHA offices are reminded that COVID-19 inspections will be treated as novel cases, that the Directorate of Enforcement Programs must be notified of all proposed citations and federal agency notices that relate to COVID-19 exposure and that state designees should report any COVID-19 inspections to their Regional Office.
The Enforcement Update includes attachments providing “specific inspection and citation guidance for potentially applicable standards, which describes when to exercise enforcement discretion, such as for the Respiratory Protection standard, 29 CFR § 1910.134.” Enforcement Update at page 3. The attached guidance documents include instruction on identifying risk levels for COVID-19 in workplace settings for purposes of prioritizing OSHA enforcement activities. Designations include jobs where COVID-19 exposure risk is “high and very high,” “medium,” and “lower.” Guidance is provided on how to proceed with complaints, referrals, and rapid response investigations depending on the exposure threat level. Training levels are addressed for CSHOs, with procedures for inspections, including an identification of OSHA standards and guidance sources that may be relevant to consider in a COVID-19 inspection. This provides a useful checklist for employers to consider. See Enforcement Update at Attachment 1, pages 7-16.
Attachments include a sample OSHA employer letter for COVID-19 activities. This letter includes discussion of OSHA priorities and the type of response an employer should expect to be requested to take in addressing an OSHA complaint, including example language on document requests. Reviewing the type of documentation that will be requested can be instructive in evaluating whether an employer is currently documenting the type of things that OSHA may expect it to address. See Enforcement Update at Attachment 2, page 1. OSHA identifies in this example letter potentially applicable OSHA requirements, and it includes links to sites the Agency identifies as having information addressing COVID-19, and also identifies a list of recommendations from CDC for preventing the spread of COVID-19.
Id. at page 3. Note OSHA requests that a complaint letter be posted where it will be “readily accessible for review by all employees …” In addition, OSHA requests that a compliant letter be provided to “a representative of any recognized employee union or safety committee that exist at your facility.” Failure to comply with these requests “may result in an on-site inspection.” Id.
A sample hazard alert letter for COVID-19 is included. See Enforcement Update at Attachment 3. The letter includes an idea of what OSHA may present to the employer if the evaluation of the workplace identifies “concerns about the potential for employee illness(es) related to exposure to SARS-CoV-2 (severe acute respiratory syndrome coronavirus 2), which is the virus causing coronavirus disease 2019 (COVID-19).” Id. at page 1. Recommended steps are likely to be included to “materially reduce” employee exposure. These measures could include consideration of engineering controls, administrative controls, personal protective equipment, and training and information, as appropriate. Id. at pages 1-4.
A sample alleged violation description is provided. See Enforcement Update at Attachment 4. The language is instructive in telling a CSHO how to use the general duty clause to apply the obligation in the COVID-19 setting. An example deficiency is provided where the employer allegedly failed to ensure that “appropriate and available engineering controls” were used to protect workers against exposure to COVID-19 in a health care setting. Attachment 5 of the Enforcement Update provides a useful reference to COVID-19 related references. See Enforcement Update at Attachment 5.
In conclusion, the latest OSHA Enforcement Update provides new information on how OSHA will prioritize and proceed with inspections related to COVID-19, and how the Agency will address enforcement actions this context. This guidance should be carefully considered in evaluating compliance efforts.
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