4.17.20

Earlier this week, we encouraged employers to refer to three recently issued Guidance Documents as sources to use in developing and implementing their COVID-19 pandemic plans:

The Occupational Safety and Health Administration has now issued an Interim Enforcement Response Plan for Coronavirus Disease (COVID-19), which provides guidance to its Area Offices and Compliance Officers about how to handle COVID-19-related complaints and inspections. Knowing what OSHA is telling its enforcement people provides employers with guidance in developing mitigation efforts and responding to both employee complaints and OSHA requests for information following reported hospitalizations and fatalities.

As with most of the guidance provided by OSHA on COVID-19 to date, the Agency distinguishes between 1) health care and jobs with high or very high risks of exposure, and 2) the vast majority of other jobs, with what OSHA describes as medium or lower exposure risk. The Interim Enforcement Response Plan provides that “fatalities and imminent danger exposures related to COVID-19 will be prioritized for inspection, with particular attention given to healthcare organizations and first responders.”

Although OSHA’s practice has been to conduct an on-site inspection whenever a formal complaint (a complaint signed by an existing employee) is filed, under the new Enforcement Response Plan, even a formal complaint alleging “unprotected exposures” of workers with high or very high risk of transmission “may warrant” an on-site inspection.  If, for example, the complaint alleges “inadequate PPE due to supply issues,” only a “phone and fax” investigation may result.  For the vast majority of employers (with medium and lower exposure risk jobs), formal complaints “will not normally result” in an on-site investigation. Instead, the employer will be advised of the alleged deficiency by telephone and asked to provide a written response. Even if an employer reports that an employee has been hospitalized as a result of COVID-19, this will generate only what OSHA refers to as a Rapid Response Investigation, which similarly asks the employer to provide a written response. If a satisfactory written response is provided, there ordinarily will not be an on-site inspection.

Although not specifically addressed in the Enforcement Response Plan, in response to some COVID-19-related complaints, OSHA has also begun to send employers what it refers to as an Advisement Letter. These letters advise employers about specific complaints that have been communicated to OSHA, but do not request a written response. Instead, OSHA simply directs the employer to the websites of OSHA and the Centers for Disease Control and Prevention for relevant guidance and advises the employer to resolve the matter internally.

If an OSHA inspection occurs, and as noted this will typically be at a health care facility or other high-risk workplace, attempts will be made to conduct the inspection remotely, or at least in a manner intended to protect the Compliance Officer. These inspections will focus, among other things, on the following types of documents or information:

  • A written pandemic plan, or in a hospital, an infection control plan.

  • Procedures for hazard assessment and protocols for PPE use.

  • A Respiratory Protection Plan.

  • Training records regarding COVID-19.

  • Efforts made to obtain and provide appropriate PPE.

  • Efforts to implement hierarchy of control measures.

Lessons learned

The COVID-19 pandemic presents difficult challenges because of the still-uncertain modes of transmission of the virus. Interactions within six feet are exceptionally difficult to eliminate while still operating a business. The guidance provided by OSHA and the CDC give employers information and a framework from which to design a mitigation plan that works for a given worksite. With OSHA’s new Interim Enforcement Response Plan, employers are now being told how OSHA will respond to complaints, referrals, and employers’ reported hospitalizations or fatalities.  The thoroughness and quality of the responses to OSHA will determine whether an on-site inspection occurs and should therefore be carefully prepared.

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