On May 19, 2020, the Occupational Safety and Health Administration (OSHA) issued an Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) (the Updated Plan), providing new guidance to all OSHA Regional Administrators and State Plan Designees on how to investigate COVID-19-related hazards as the transmission of COVID-19 slows and workplaces continue to reopen.  The new guidance takes effect Tuesday, May 26, 2020, and will supersede OSHA’s prior Interim Enforcement Response Plan from April 13, 2020.  Below are the critical takeaways.

The Updated Plan in General

Eliminating COVID-19-related hazards remains a top priority for OSHA.  As states lift COVID-19 restrictions and workplaces reopen, OSHA will continue to evaluate COVID-19 cases under one of two general frameworks:

• In geographic areas where community spread of COVID-19 has significantly decreased, OSHA will return to adhering to its typical inspection planning procedures, as outlined in its Field Operations Manual (FOM), when prioritizing reported events for inspections, except that:
  
  • OSHA will continue to prioritize COVID-19 cases;
  • OSHA will utilize non-formal phone/fax investigation or Rapid Response Investigation (RRI) in circumstances where OSHA 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.
• In geographic areas experiencing sustained elevated community transmission or a resurgence in community transmission of COVID-19, OSHA will exercise discretion, considering available resources, to:
  
  • Continue prioritizing COVID-19 fatalities and imminent danger exposures for inspection.  OSHA will be particularly attentive to on-site investigations for high-risk workplaces (i.e., workplaces in the medical community where there is greater risk for exposure to known or suspected cases of COVID-19 due to “aerosol-generating procedures”) and workplaces with high numbers of complaints or known COVID-19 cases.
    • Where resources are insufficient to allow for on-site inspections, OSHA will initiate remote inspections for these types of reported events, with the expectation that it will complete an on-site investigation if/when resources become available.
    • Where limitations on resources do not allow for an on-site or remote inspection, OSHA will investigate through RRI, identifying any hazards, providing abatement assistance, and confirming abatement.
    • OSHA will develop a program to conduct monitoring inspections from a random sample of fatality or imminent danger cases where it could not complete inspections due to resource limitations.
  • Use non-formal phone/fax investigations instead of on-site inspections in lower-risk exposure industries, where doing so can address the relevant hazard(s).

Workplace Risk Levels

The Updated Plan continues to bracket COVID-19 risk exposure into three categories: (1) high/very high exposure; (2) medium exposure; and (3) low exposure.

• High/very high exposure risk jobs center on the medical community where employees interact with people known to have or suspected of having COVID-19, especially those employees involved in treating patients who are receiving aerosol-generating procedures.
• Medium exposure risk jobs include those with frequent and/or close contact with others, i.e., employees whose jobs require them to come within six feet of others.
• Low exposure risk jobs include those workers that “have minimal occupational contact with the public and other coworkers.”

Drawing on these categories and the distinction between geographic areas with a resurgence versus a decline in COVID-19 transmission, the Updated Plan provides detailed procedures and guidance for how OSHA should handle COVID-19-related complaints, inspections, and citations during the COVID-19 pandemic.

Complaint Processing

OSHA received nearly 1,000 COVID-19-related complaints in one week and anticipates continuing to receive these complaints as more workplaces reopen. OSHA will handle these complaints as follows:

In geographic areas where community spread of COVID-19 has significantly decreased and complaints or referrals are received regarding medium- or low-risk workplaces, OSHA will follow the usual procedures outlined in its FOM, with minor modifications.  Fatalities, imminent danger reports, and life-critical events will likely result in on-site inspections.  Less serious COVID-19-related hazards will likely be handled as a written inquiry asking the employer to provide a written response.

In those high-risk workplaces or geographic areas experiencing a sustained, elevated or resurgence in community transmission, OSHA will adhere to modified investigatory procedures, including the following:

• Prioritize inspections of fatalities and imminent danger exposures related to COVID-19.  Area Offices will continue to prioritize resources and consider all relevant factors in determining whether to perform a non-formal, remote investigation in lieu of an on-site inspection, such as in cases where the complaint alleges inadequate PPE due to supply issues.
• Where resources are insufficient to allow an on-site inspection of a fatality or imminent danger event, inspections will be initiated remotely with an expectation that an on-site component will be performed if/when resources become available.  Where limited resources will not allow for an on-site or remote inspection, OSHA will use a remote RRI.
  
  • Note, where an Area Office utilizes an RRI to investigate a fatality or imminent danger case, OSHA plans on selecting a random sample of these cases and conducting an on-site inspection.  The Updated Plan provides no specifics about how this program will operate, but OSHA will have to act quickly as it only has six months in which to investigate and issue a citation.  However, OSHA will be reviewing current practices during these investigations. 
• COVID-19 complaints involving medium- or low-risk exposure tasks (e.g., non-medically related activities) are not likely to result in an on-site inspection where a non-formal inquiry can address the alleged hazards.  But, inadequate responses to an inquiry can lead to an on-site inspection.
• In most cases, OSHA will continue to use RRI to review employer-reported hospitalizations.
• OSHA will also continue to refer cases to other government agencies based on facts it learns while processing complaints and conducting investigations. 

Inspections, Standards, and Citations

The Inspection Process portion of OSHA’s Updated Plan focuses on healthcare facilities.  The Updated Plan supplements the FOM by identifying individuals to interview and documents to review.  Employers should expect to be asked for their written pandemic plan, infection control plan, protocols for PPE use, records of employee infections and exposures, respiratory protection program and any modified respirator policies, and training records related to COVID-19 hazards. 

OSHA determined that the following standards are most likely to apply in a COVID-19 investigation:

• 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 considering violations of these standards, OSHA is looking for elevated occupational exposure risks to the virus and expects COVID-19-related citations to be classified as Serious.  In addition, all such citations are treated as “novel cases” requiring more scrutiny from OSHA’s national office.  The increased scrutiny necessitates more time internally for citation approval, and may ultimately result in fewer citations being proposed and issued.

The Updated Plan explicitly states that where there is a lack of evidence of all four elements¹ of the General Duty Clause, “the Area Office should issue a hazard alert letter (HAL) recommending the implementation of protective measures that address SARS-CoV-2 hazards,” which OSHA will contend puts the employer on notice of the alleged hazard.  If OSHA conducts an investigation after issuing a HAL, a General Duty Clause citation is more likely with OSHA relying on the HAL as evidence of employer knowledge of the alleged hazard.  

The Updated Plan continues to recommend that compliance officers “exercise enforcement discretion” when issuing citations under respiratory protection standards.  OSHA will consider the methods the employer has adopted to reduce the need for respiratory protection, including the use of engineering controls, work practices, administrative controls, or “[o]ther feasible measures, such as using partitions, restricting access and cohorting patients (healthcare).”  The Updated Plan also directs compliance officers to determine whether good-faith efforts have been made to obtain alternative respiratory protection, whether the employer has “monitored their 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 potential hazards.

OSHA continues to remind employers that they should consult the U.S. Centers for Disease Control and Prevention (CDC) guidance in assessing potential workplace hazards and evaluating the adequacy of their protective measures for workers.  Where an employer’s protective measures are not as protective as those recommended by the CDC, the Updated Plan instructs OSHA to consider whether employees are exposed to a recognized hazard and whether there are feasible means to abate that hazard.  Accordingly, employers should regularly check updated CDC guidelines to ensure they are meeting or exceeding those guidelines in protecting their employees.

Next Steps

Whether employers will be subject to OSHA’s typical investigatory procedures will depend on whether they fall within the very-high/high-, medium-, or low-risk exposure category and/or whether the employer is in a geographic area experiencing a resurgence of COVID-19 transmission.  Even so, the Updated Plan provides critical guidance about how OSHA will process complaints and conduct investigations during COVID-19.  Employers should review the Updated Plan carefully to determine what procedures to implement to ensure OSHA compliance, and regularly consult counsel in the event they receive a COVID-19-related OSHA complaint.