OSHA Issues New Enforcement Response Plan for COVID-19 With Guidance on Its Use of the General Duty Clause for Enforcement
On May 19, 2020, OSHA announced its Updated Interim Enforcement Response Plan for COVID-19 ("Updated Plan"). On May 26, 2020, OSHA will rescind its April 13, 2020 Interim Enforcement Response Plan and the new Updated Plan will go into effect, which is time-limited to the current COVID-19 health crisis. As non-essential businesses re-open, OSHA is returning to its inspection planning policy prior to the start of the COVID-19 pandemic in areas where community spread is decreasing, but will continue to prioritize COVID-19 cases. Also, facilities having high and very high-exposure risk jobs, such as hospitals, emergency medical centers, and emergency response facilities, will frequently be the focus of inspection activities in response to COVID-19-related complaints and employer-reported illnesses. The Updated Plan additionally highlights that OSHA will rely on the Occupational Health and Safety Act’s general duty clause to enforce violations if employers do not comply with COVID-19 mitigation measures.
1. Areas Where Community Spread Has Significantly Decreased
In geographic areas where community spread of COVID-19 has significantly decreased, OSHA will return to the inspection planning policy that it relied on prior to the start of the COVID-19 health crisis, as outlined in the OSHA Field Operations Manual, CPL 02-00-164, Chapter 2, when prioritizing reported events for inspections, except that:
a. OSHA will continue to prioritize COVID-19 cases; and
b. OSHA will use non-formal phone/fax investigations or rapid response investigations in circumstances where it has historically performed such inspections (e.g., to address formal complaints) when necessary to assure effective and efficient use of resources to address COVID-19-related events.
2. Areas Where Community Spread is Sustained or Increasing and Jobs With High Risk of COVID-19 Exposure
In geographic areas experiencing sustained elevated, or a resurgence in, community transmission of COVID-19, OSHA Area Directors are directed to exercise their discretion, to continue prioritizing COVID-19 fatalities and imminent danger exposures for inspection. However, the Updated Plan highlights prioritizing on-site inspections for high-risk workplaces, such as hospitals and other healthcare providers treating patients with COVID-19, as well as workplaces with high numbers of complaints or known COVID-19 cases.
3. OSHA Enforcement Under the General Duty Clause, Section 5(a)(1), of the Occupational Safety and Health Act of 1970
If deficiencies, not addressed by OSHA standards or regulations, are discovered in the employer's preparedness for controlling elevated occupational exposure risk for SARS-CoV-2, and guidance is available (such as guidance from the CDC), OSHA inspectors are directed to obtain evidence of a potential general duty clause violation(s), including the four required 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. If all four elements of the general duty clause are met warranting issuance of a 5(a)(a) violation for an occupational exposure to COVID-19, the Updated Plan directs that proposed citations shall be reviewed with the Regional Administrator and the National Office before issuance.
4. During Inspections, What is OSHA Looking For Related to Potential COVID-19 Exposure?
A. Adherence to CDC Guidance
During inspections, OSHA is looking for employers to consult the most current CDC guidance in assessing potential workplace hazards and to evaluate the adequacy of an employer's protective measures for workers. OSHA states that "[w]here the protective measures implemented by an employer are not as protective as those recommended by the CDC, the [health and safety officer] should consider whether employees are exposed to a recognized hazard and whether there are feasible means to abate that hazard."
Information that OSHA is seeking from an employer during inspections, include, among other records:
- Whether the employer has a written pandemic plan
- The facility's procedures for hazard assessment and protocols for PPE use related to exposure to COVID-19
- Medical records and OSHA-required recordkeeping related to worker exposure, and any other records to determine if employees have contracted COVID-19, have been hospitalized due to COVID-19, or have been placed on precautionary isolation
- Training records related to COVID-19 exposure prevention
- Personal Protective Equipment/Respiratory Protection — records or provisions made by the employer to obtain and provide "appropriate and adequate supplies of PPE." As for respiratory protection, OSHA reiterated that its enforcement discretion policies for 29 CFR 1910.134 are still in effect during the current COVID-19 pandemic. The Updated Plan summarizes OSHA's respiratory protection enforcement discretion policies and key items inspectors are checking during inspections
B. Injury and Illness Records
OSHA is of the position that cases of COVID-19 are not considered a common cold or seasonal flu, and therefore the work-relatedness exception at 29 CFR 1905.5(b)(2)(viii) for recordkeeping does not apply. For facilities not exempt from recordkeeping, OSHA directs that 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; and
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)."
OSHA's May 19, 2020 Updated Interim Enforcement Response Plan for COVID-19 is available at https://www.osha.gov/memos/2020-05-19/updated-interim-enforcement-respon...
Saul Ewing Arnstein & Lehr attorneys can help employers navigate these changes and ensure compliance with state and federal guidance and requirements. For questions about how this change affects your business, please contact the author or the attorney with whom you regularly communicate.