OSHA’s Enforcement Response Plan for COVID-19
In response to the current COVID-19 pandemic, OSHA has issued its interim enforcement response plan for COVID-19. This interim enforcement plan provides instructions and guidance to area offices and compliance officers for handling COVID-19-related complaints, referrals, and severe illness reports. This covers all inspections related to the potential workplace hazard of exposure to COVID-19. This interim plan is aimed to allow flexibility and discretion for OSHA field offices to maximize OSHA’s impact in securing safe workplaces for workers in the current environment.
It is imperative that each employer be aware of the following concerns raised by this interim plan.
OSHA will prioritize enforcement based on risk levels.
OSHA recently released guidance on preparing workplaces for the COVID-19 pandemic. This included an occupational risk pyramid that helps employers determine what level of risk their employees may be at to contract COVID-19. The levels are:
Very high exposure risk (healthcare, morgue workers): Jobs with a high potential for exposure to known or suspected sources of COVID-19 during specific medical, postmortem or laboratory procedures.
High exposure risk (healthcare delivery & support, medical transport, mortuary workers): Jobs with a high potential for exposure to known or suspected sources of COVID-19.
Medium exposure risk (schools, high population work environments): Jobs that require frequent/close contact with people who may be infected, but who are not known or suspected patients.
Lower exposure risk (minimal occupational contact with public and co-workers): Jobs that do not require contact with people known to be, or suspected of being, infected.
Complaints related to workplaces that have medium or lower exposure risk will not usually result in an inspection. Instead, OSHA will most likely use non-formal procedures to investigate alleged hazards. OSHA personnel will send a letter to employers signifying that OSHA has been notified of alleged workplace hazards related to COVID-19.
Employers are encouraged to respond to these letters, as failure to respond could result in an inspection from a compliance officer.
On-site inspections may also be modified to reduce the likelihood of exposure to COVID-19. Compliance officers are directed to modify inspection procedures to minimize their potential exposure to COVID-19-related hazards. This may include completing opening conferences by phone, electronically reviewing documents, and conducting interviews by phone.
Relevant OSHA Standards During an Inspection
Since OSHA does not have a specific COVID-19 standard, they have identified some standards that may apply during inspections: Recordkeeping (29CFR1904), PPE (29CFR1910.132-134), Sanitation (29CFR1910.141), Specification for Accident Prevention Signs and Tags (29 CFR1910.145) Access to exposure and medical records (29CFR1910.1020) and the General Duty Clause (Section 5(a)(1)). As we all know, the general duty clause requires that each employer furnish to each of its employees a workplace that is free from recognized hazards that are causing or likely to cause death or serious physical harm.
Compliance with CDC Recommendations May Remove General Duty Clause Violations
The OSHA interim enforcement plan directs compliance officers to consult the most recent CDC recommendations in order to evaluate workplace hazards and ensure the employer is properly protecting their workers. The CDC has provided numerous resources for employers to review in order to keep their workplace safe. Essentially, the OSHA interim enforcement plan directs compliance officers to consider current CDC guidance on safety measures to protect workers. Although the interim enforcement plan does not explicitly state it, compliance with CDC guidance may remove General Duty Clause violations. Therefore, employers should frequently review CDC recommendations and any other OSHA guidance that may apply to their circumstances.
COVID-19 Cases May Be Recordable and Reportable
OSHA suggests compliance officers review the employer's injury and illness records to identify any workers with recorded illnesses or symptoms associated with exposure to COVID-19. Employers are responsible for recording cases of COVID-19 if all of the following requirements are met:
- The case is a confirmed case of COVID-19, as defined by the CDC
- The case is work-related, as defined by 29 CFR § 1904.5
- The case involves one or more of the recording criteria set forth in 29 CFR § 1904.7 (e.g., medical treatment, days away from work)
We’ll continue to communicate updates as we receive them. If you have any OSHA or COVID-19 concerns, contact your safety advocate.
- Coronavirus Resources
- COVID-19 & the Potential Impacts on the Insurance Market
- New Amendments for Illinois Workers’ Compensation Adopted in Response to COVID-19
- Video: 3 Steps to an OSHA Inspection
ABOUT THE AUTHOR