OSHA Issues Updated COVID-19 Enforcement Plan and Guidance for Employers

COVID-19 Update

Date: May 21, 2020

Key Notes:

  • On May 19, OSHA issued an Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) and Revised Enforcement Guidance for Recording Employee Cases of COVID-19.
  • The effective date for the Enforcement Response Plan and Enforcement Guidance is May 26.

On May 19, as many employers around the United States planned to reopen, OSHA issued an Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19), which includes instructions and guidance for OSHA Area Offices on how to address COVID-19-related complaints, referrals and severe illness reports at employers. Also on May 19, OSHA issued Revised Enforcement Guidance for Recording Cases of COVID-19. On May 26, OSHA’s previous guidance on these topics will be rescinded and the new Updated Interim Enforcement Response Plan and Enforcement Guidance will go into and remain in effect until further notice.

Updated Interim Enforcement Response Plan for COVID-19

As outlined in its Updated Interim Enforcement Response Plan for COVID-19, eliminating hazards from COVID-19 remains a top priority for OSHA. As workplaces reopen, it will continue to ensure safe and healthy conditions for America’s workers based on the following framework:

  • In geographic areas where communityspreadofCOVID-19 has significantly decreased,OSHA will return to the inspection planning policy that it relied on prior to the startoftheCOVID-19 health crisis, except that
    • it will continue to prioritize COVID-19 cases at employers, and
    • it will utilize non-formal phone/fax investigations or rapid response investigations (RRIs) in circumstances where it has historically performed such inspections (e.g., to address formal complaints) when necessary to ensure effective and efficient use of resources to address COVID-19-related events.
  • In geographic areas experiencing either sustained elevated community transmission or a resurgence in communitytransmissionofCOVID-19,OSHA Area Directors will exercise their discretion, including consideration of available resources, tocontinueprioritizingCOVID-19 fatalities and imminent danger exposures at workplaces for inspection. Particular attention for on-site inspections will be given to high-risk workplaces, such as hospitals and other health care facilities treatingpatientswithCOVID-19, as well as workplaces with high numbers of complaintsorknownCOVID-19 cases.
    • Where resources are insufficient to allow for on-site inspections, OSHA will remotely initiate inspections for these types of reported events, with an expectation that an on-site component will be performed if/when resources become available to do so.
    • Where resource limitations are such that neither an on-site nor remote inspection is possible, OSHA will investigate these types of reported events using an RRI to identify hazards, provide abatement assistance and confirm abatement.
    • OSHA will develop a program to conduct monitoring inspections from a randomized sampling of fatality or imminent danger cases where inspections were not conducted due to resource limitations.
    • OSHA will utilize non-formal phone/fax investigations instead of on-site inspections in industries where doing so can address the relevant hazard.

OSHA also notes that several of its standards may apply to its inspections of workplaces triggered by COVID-19, including:

  • Section 5(a)(1), General Duty Clause of the Occupational Safety and Health (OSH) Act of 1970
  • 29 CFR Part 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
  • 29 CFR § 1910.1030, Bloodborne Pathogens

Consistent with 29 CFR § 1904.39, employers must report work-related fatalities to OSHA within eight hours and work-related in-patient hospitalizations, amputations or losses of an eye within 24 hours. Employers must also report fatalities that occur within 30 days of a work-related incident, and they must report in-patient hospitalizations, amputations or losses of an eye that occur within 24 hours of a work-related incident. These employer obligations apply to work-related cases of COVID-19 among employees.

Revised Enforcement Guidance for Recording Cases of COVID-19

OSHA’s Revised Enforcement Guidance for Recording Cases of COVID-19 outlines, consistent with the requirements of 29 CFR Part 1904, that COVID-19 is a recordable illness and employers are responsible for recording cases of employees with COVID-19, if

  • the case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention;
  • the case is work-related as defined by 29 CFR § 1904.5, namely that an employer must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness, subject to certain exceptions, and
  • the case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7, namely that an employer must consider an injury or illness to meet the general recording criteria, and therefore to be recordable, if it results in any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid or loss of consciousness. An employer must also consider a case to meet the general recording criteria if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid or loss of consciousness.

Until further notice, for all employers subject to its recordkeeping requirements, OSHA will enforce the recordkeeping requirements of 29 CFR Part 1904 as they relate to COVID-19 according to the following guidelines:

  • The reasonableness of the employer’s investigation into whether or not an employee’s contraction of COVID-19 was work-related. It is sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness, to ask the employee how (s)he believes (s)he contracted the COVID-19 illness; to discuss with the employee the work and out-of-work activities that may have led to the COVID-19 illness, while respecting employee privacy; and to review the employee’s work environment for potential SARS-CoV-2 exposure.
  • The evidence available to the employer. The evidence that a COVID-19 illness was work-related should be considered based on the information reasonably available to the employer at the time it made its work-relatedness determination. If the employer later learns more information related to an employee’s COVID-19 illness, that information should be taken into account as well in determining whether an employer made a reasonable work-relatedness determination.

The evidence to consider in determining that a COVID-19 illness was contracted at work may include:

  • COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely work-related if his/her job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely not work-related if (s)he is the only worker to contract COVID-19 in his/her vicinity and his/her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
  • An employee’s COVID-19 illness is likely not work-related if (s)he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other or close friend) who has COVID-19, is not a coworker and exposes the employee during the period in which the individual is likely infectious.
  • Any evidence of causation pertaining to the employee’s contraction of COVID-19, as provided by medical providers, public health authorities or the employee him or herself.

All employers should be mindful of OSHA’s updated guidance and enforcement plan as they consider COVID-19’s effects on their legal obligations. Compliance with OSHA’s legal standards governing safe workplaces is critical to reducing the risk of workplace COVID-19 exposures for employees and others and mitigating the associated risk of liability claims.

FOR MORE INFORMATION

For more information, please contact:

Nancy M. Barnes
216.566.5578
Nancy.Barnes@ThompsonHine.com

John Wymer
404.407.3669
John.Wymer@ThompsonHine.com

M. Scott Young
513.352.6617
202.263.4134
Scott.Young@ThompsonHine.com

or any member of our Labor & Employment group.

Additional Resources

We have assembled a firmwide multidisciplinary task force to address clients’ business and legal concerns and needs related to the COVID-19 pandemic. Please see our COVID-19 Task Force page for additional information and resources.

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