On April 13, 2020, the Occupational Safety and Health Administration (OSHA) issued an Interim Enforcement Response Plan (available here) to guide area offices and compliance safety and health officers (CSHOs) in prioritizing and conducting investigations of COVID-19-related workplace hazards. OSHA’s plan is intended to focus the agency’s resources on protecting workers at the highest risk of exposure, while also taking precautions to protect CSHOs in the course of conducting inspections, including mandating remote inspection procedures wherever possible. In short, OSHA has adopted a hands-off approach, electing to utilize Rapid Response Investigations (RRI) via written correspondence in the vast majority of COVID-19-related cases, except for employers with workers at a high or very high risk of exposure, such as healthcare providers and first responders. This guidance comes just days after OSHA substantially relaxed requirements for non-healthcare and non-emergency response employers to record employees’ COVID-19 infections on OSHA 300 logs or to report to OSHA COVID-19-related fatalities or hospitalizations. Our summary of these relaxed requirements is available here.
OSHA instructed area offices to consider conducting on-site inspections of COVID-19-related complaints or referrals only for employers whose workers are at a high or very high risk of exposure to COVID-19, with a focus on “fatalities and imminent danger exposures” and “with particular attention given to healthcare organizations and first responders.” Even in such cases, and where it is alleged that employees are not adequately protected from exposure to confirmed or suspected COVID-19 patients, OSHA’s position is that such cases “may warrant an on-site inspection.” Area directors still retain discretion to conduct an RRI, as opposed to an on-site inspection, even for high-risk employers based on the nature of the complaint and available agency resources. All other COVID-19 complaints or referrals involving medium or lower exposure risks will not result in an on-site inspection absent unusual circumstances, such as an employer’s failure to respond to OSHA’s written inquiries.
OSHA defines “high and very high risk exposure jobs” as “those with high potential for exposure to known or suspected sources of SARS-CoV-2 — the virus causing the disease known as COVID-19 — that occurs during specific medical, postmortem, or laboratory procedures.” Such workplaces include hospitals treating suspected or confirmed cases, nursing homes, emergency medical centers and response facilities, home care and hospice providers, handlers of human remains, biomedical and clinical laboratories, and medical transporters. Among the highest risk processes in any such workplace are “aerosol-generating procedures,” such as bronchoscopy, sputum induction, nebulizer therapy, endotracheal intubation and extubation, open suctioning of airways, cardiopulmonary resuscitation and autopsies. OSHA emphasizes the necessity for employers to implement effective protective measures for any employees performing such tasks.
When an on-site inspection is deemed necessary, OSHA instructed area directors to maximize electronic or remote means of investigation and communication with employers and their employees, including virtual opening and closing conferences, remote video surveillance of the workplace, phone interviews, email correspondence, and electronic transmission of documents. When going on-site, CSHOs must be equipped with at least the following personal protective equipment (PPE): a fit-tested half-mask elastomeric respirator with at least an N95 filter, goggles, disposable gloves, disposable gowns or coveralls, as well as any other PPE requirements imposed by the employer.
OSHA also reiterated the subset of standards that may apply in COVID-19-related investigations, which include: 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; and Section 5(a)(1), General Duty Clause of the OSH Act. Although OSHA’s Bloodborne Pathogens standard (29 CFR § 1910.1030) typically does not apply to respiratory secretions that many contain SARS-CoV-2 —unless visible blood is present — OSHA noted that “the provisions of the standard offer a framework that may help control some sources of the virus, including exposures to body fluids (e.g., respiratory secretions) not covered by the standard.”
OSHA instructed that for any COVID-19-related alleged violation of any standard or the General Duty Clause deemed appropriate by an area director, “the proposed citation shall be reviewed with the regional administrator and the national office prior to issuance.” This signals the agency’s effort to apply its standards consistently to the quickly-evolving COVID-19 global pandemic, which will require consideration of OSHA’s other enforcement guidance relaxing and allowing enforcement discretion under the above-referenced standards. That other guidance is also discussed and summarized in the COVID-19 Interim Enforcement Response Plan.
With respect to General Duty Clause violations, OSHA states that “the most current CDC guidance should be consulted in assessing potential workplace hazards and to evaluate the adequacy of an employer’s protective measures for workers.” Thus, CDC guidance will be central to OSHA’s ability to prove the four necessary elements for a General Duty Clause violation, which are: (1) employees were exposed to a hazard (2) that was recognized and (3) was causing or likely to cause death or serious physical harm and (4) there was a feasible and useful method to correct the hazard.
Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus.