Continuing its recent trend to update employers on COVID-19 safety, on April 13, 2020, the Occupational Safety and Health Administration (OSHA) issued an Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) (“the Plan”), providing specific guidance to all OSHA Regional Administrators and State Plan Designees on how to investigate potential COVID-19 hazards.  The guidance addresses how OSHA offices should allocate resources for protecting workers across all industries.

Purpose

Over the last month and a half, employers have received an increasing number of complaint letters from OSHA alleging a failure to protect employees from exposure to COVID-19. Many of the complaints relate to lack of personal protective equipment (PPE), such as respirators, gloves and gowns, and lack of training related to COVID-19 hazards.  The Plan highlights that “OSHA should investigate complaints, referrals, and employer-reported fatalities and hospitalizations to identify potentially hazardous occupational exposures and to ensure that employers take prompt actions to mitigate hazards and protect employees.”  The Plan, however, further states that “[i]n most cases, Area Offices should process complaints from non-healthcare and non-emergency response establishments” through “non-formal complaint and referral procedures” as opposed to OSHA’s “formal-complaint” procedures.  This distinction is important, as response procedures differ for non-formal and formal complaints, with the latter mandating prompt processing by compliance safety and health officers (CSHO), and an increased possibility of on-site inspections. 

Significantly, the Plan expressly modifies portions of the Field Operations Manual (FOM) that detail how OSHA will process and handle investigations.  The Plan makes clear that OSHA will conduct significantly fewer on-site investigations, handling most through the informal process of calling employers followed by faxing or emailing an informal complaint.  In line with existing procedures for non-formal complaints, if an employer provides a sufficient response, OSHA will close the complaint and not proceed to an on-site inspection.  With that end in mind, employers can benefit from the assistance of legal counsel in drafting a sufficient response.  Even if an “on-site” investigation does occur, the Plan directs that Area Offices “maximize the use of electronic means of communication (remote video surveillance, phone interviews, email correspondences, facsimile and email transmittals of documents, video conferences, etc.).”  Additionally, OSHA will prioritize enforcement related to healthcare and emergency response sectors, with the Plan providing significant detail on how CSHOs are to conduct those investigations.

Workplace Risk Levels

The Plan brackets workplace risk exposure into three categories: (1) high/very high; (2) medium exposure; and (3) low exposure.

• High/very high exposure jobs center on the medical community where employees have a high potential for exposure to known or suspected cases of COVID-19 “that occurs during specific medical, postmortem, or laboratory procedures.”  The reason for the heightened risk in these jobs is due to an increased exposure during “aerosol-generating procedures,” which require the proper use of PPE.

• Medium exposure jobs “include those with frequent and/or close contact with, i.e., within 6 feet, of people who maybe (but are not known to be) infected with” COVID-19.  Workers in this category have contact with the general public, and include employees “in schools, high-population-density work environments, and some high-volume retail settings.”  The inclusion of high-population density and high-volume retail work environments is important.  Last week, OSHA added retail operations to its list of industries with workers that have an increased risk of exposure, and provided guidance on mitigating exposure.  We should anticipate that OSHA may provide additional guidance for high-population-density operations in the coming days.

• Low exposure jobs include those workers that “have minimal occupational contact with the public and other coworkers.”

The Plan’s enforcement procedures should be followed, and analyzed, with these three categories in mind.

Complaint Processing

As noted above, OSHA is drawing a distinct line between healthcare and emergency responder sectors, and the rest of industry.  Formal complaints alleging unprotected exposures to COVID-19 for workers with a high/very high risk of transmission – i.e., healthcare organizations and first responders – will get top CSHO priority for investigation along with the possibility of an on-site inspection.  All other complaints, whether formal or non-formal, “will not normally result in an on-site inspection” and will be processed in the ordinary course, but with new procedures focused on minimizing in-person contacts.  This approach does not mean, however, that OSHA will not take all complaints seriously and continue to conduct on-site inspections.  Additionally, the Plan reiterates that OSHA will continue to refer cases to other government agencies based on facts it learns while processing complaints and conducting investigations. 

Inspections, Standards, and Citations

Consistent with the Plan’s theme, the portion of the Plan discussing the CSHO inspection process focuses exclusively on healthcare facility inspections – e.g., hospitals, emergency medical centers, and emergency response facilities.  The Plan supplements the FOM by detailing who the CSHO should speak to and what documents should be reviewed.  There are a number of items that employers should expect OSHA to request, if applicable, in the course of investigating a complaint, namely: a written pandemic plan, infection control plan, protocols for PPE use, records of employee infections or exposures, and training records related to COVID-19 hazards. 

OSHA has determined that the following standards, among others, may apply, depending on the circumstances of the case:

• 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.

The Plan states that COVID-19 related citations will likely be classified as Serious.  Also noteworthy is that all such citations will be treated the same as “novel cases,” which require more scrutiny and may result in fewer citations being proposed and issued.  Again, the Plan notes, that the above “standards should be evaluated for high to very high occupational exposure risk.”  That being said, if circumstances warrant, employers in the medium and low exposure categories can expect OSHA to evaluate similarly.

Where an investigation reveals no violation of a standard, regulation, or the General Duty Clause, CSHOs are directed to terminate an inspection and not issue citations.  Importantly, the Plan expressly discusses COVID-19 related injuries under the General Duty Clause, stating that unless all four of the elements for a violation¹ are met “the Area Office should issue a hazard alert letter (HAL) recommending the implementation of protective measures that address SARS-CoV-2 hazards.”  Employers should anticipate OSHA to issue HALs as a means to put them on notice of hazards the Agency contends exist.  Employers should be aware that if OSHA conducts an investigation subsequent to issuing a HAL on an alleged hazard, theoretically they could issue a General Duty Clause citation and point to the HAL as evidence of employer knowledge of the alleged violation.  

Of particular note is the Plan’s recommendation that CSHOs “exercise enforcement discretion” when issuing citations under respiratory protection standards.  OSHA directs CSHOs to consider other methods implemented by employers that reduce the need for respiratory protection including, but not limited to 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 Plan also directs CSHOs to determine whether good faith efforts have been made to obtain alternative respiratory protection and whether the employer has “monitored their supply of N95s and prioritized their use according to CDC guidance.”

Finally, the Plan explicitly calls out the interplay with the recommendations provided by the U.S. Centers for Disease Control and Prevention (CDC).  The Plan specifically provides 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.  Where the protective measures implemented by an employer are not as protective as those recommended by the CDC, the CSHO should consider whether employees are exposed to a recognized hazard and whether there are feasible means to abate that hazard.

All employers, regardless of industry, should take this provision of the Plan seriously – employers should regularly check updated CDC guidelines to assess whether they are meeting or exceeding those guidelines in protecting their employees.

Next Steps

While the majority of the Plan focuses on the high/very high exposure sectors, employers in the medium and low exposure sectors should heed the Plan’s procedures, and refer to it for guidance regarding how OSHA will process complaints and conduct investigations.  Employers should review the Plan carefully to determine what procedures may be appropriate to ensure OSHA compliance, and may wish to consult experienced counsel with specific questions, particularly if they receive a complaint.