On April 13, 2020, the Occupational Safety and Health Administration (“OSHA”) announced an Interim Enforcement Response Plan for Coronavirus Disease 2019 (“COVID-19”) related complaints, referrals, and severe illness reports. While OSHA has issued several enforcement memorandums on COVID-19 related issues in recent weeks, this guidance is specifically directed to OSHA’s Area Offices on conducting investigations and inspections involving potential exposures “to the workplace hazard of SARS-CoV-2 (severe acute respiratory syndrome coronavirus 2), which is the virus causing the current COVID-19 pandemic.”
In issuing the Interim Enforcement Response Plan, OSHA states that “heightened attention” will be given to COVID-19 risks, but leaves OSHA with flexibility and discretion to determine a fact-based enforcement approach. The Interim Enforcement Response Plan also indicates that OSHA should fully investigate complaints, referrals, and employer-reported fatalities and hospitalizations to ensure employees are sufficiently protected from risks of exposure to COVID-19. However, because non-healthcare and non-emergency response establishments, are likely to have a lower risk of exposure, the Interim Enforcement Response Plan directs OSHA to process complaints for these types of organizations on a more informal basis. Further, the Interim Enforcement Response Plan instructs OSHA to use Rapid Response Investigations (“RRI”) to the extent possible to evaluate potential COVID-19 hazards.
The Interim Enforcement Response Plan goes on to state that OSHA Area Directors should take special precautions for COVID-19 related inspections. Where possible, OSHA should use electronic means of communication as well as avoid actions that would interfere with medical services. Inspectors are also instructed to work closely with their supervisors, regional office, the Office of Occupational Medicine and Nursing, and relevant public health authorities when the inspection involves a potentially high-risk exposure to COVID-19. Moreover, because the agency is considering COVID-19 inspections to be novel cases, the agency will be coding and tracking COVID-19 matters moving forward.
While OSHA’s Interim Enforcement Response Plan makes clear that most work environments have a low risk of exposure to COVID-19, it also emphasizes that the agency views infection control practices and social distancing measures as a type of general duty obligation to protect employees from potential COVID-19 exposure. OSHA may therefore pursue enforcement against employers who it believes have inadequate infection control procedures or social distancing measures under the Occupational Safety and Health Act’s General Duty Clause. OSHA’s Interim Enforcement Response Plan also provides for OSHA inspectors to pay close attention to employer compliance with OSHA standards on injury and illness recordkeeping, bloodborne pathogens, sanitation, personal protective equipment, and respiratory protection when conducting COVID-19 related investigations or inspections.
If you have questions regarding how best to address respiratory protection in the current work environment, please reach out to Jackson Lewis’ Coronavirus Task Force at firstname.lastname@example.org.