Key Points: 

• OSHA updated its guidance on inspections related to COVID-19 and on recordkeeping for COVID-19 cases on May 19.
• OSHA has extensive guidance on other aspects of protecting employees from the novel coronavirus.
• Employers should check the OSHA website regularly for updates to OSHA guidance.

The coronavirus pandemic has created unprecedented challenges for employers across every industry. To help employers navigate these challenges, OSHA has posted guidance on topics ranging from workplace preparedness to recommended controls and safe work practices to OSHA enforcement. Similar to the pandemic, this guidance continues to evolve, as evidenced by the recent issuance of revised guidance on OSHA’s enforcement response plan and recordkeeping obligations. Employers should stay up-to-date on OSHA’s evolving guidance and incorporate it into their pandemic planning and response efforts.

OSHA’s Revised Enforcement and Recordkeeping Guidance

On May 19, OSHA announced revisions to its enforcement response plan and its enforcement guidance for recording cases of COVID-19. This new guidance will go into effect on May 26 and remain in effect until further notice. The existing enforcement and recordkeeping guidance, issued April 13 and April 10 respectively, will remain in effect through May 25. 

The Updated Interim Response Plan for Coronavirus Disease 2019 (COVID-19):

• Announces that OSHA will be increasing in-person inspections in areas of lower community spread. As in-person inspection activity increases, OSHA will continue to prioritize inspections related to COVID-19. In areas experiencing elevated community spread or resurgence in community spread, OSHA will continue to prioritize COVID-19 fatalities and imminent danger exposures for inspection.
• Continues to identify the following as applicable standards that inspectors will be evaluating during inspections:
  • 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
• Reiterates that OSHA will rely on the General Duty Clause to address deficiencies not addressed by OSHA standards. In a notable change from its prior enforcement guidance, OSHA indicates that the first criterion for a General Duty Clause citation can be met where there is potential exposure to the virus in the workplace. Previously, OSHA had said that there needed to be “clear evidence that an employee was exposed to the virus in the workplace.”
• Reiterates that violations cited under that Response Plan “will normally be classified as serious.”

The Revised Enforcement Guidance for Recordkeeping: 

• Reiterates that COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19, if: (1) the case is a confirmed case, (2) the case is work-related, and (3) the case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.
• Provides additional guidance on the circumstances in which a COVID-19 case would be considered to be work-related. Under this new guidance:
  • 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 contracted shortly after lengthy, close exposure to a particular 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 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 she is the only worker to contract COVID-19 in her vicinity and 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 he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19, (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.
• Reduces the scope of OSHA’s enforcement discretion with respect to work-relatedness. Previously, OSHA stated that it would not enforce 29 C.F.R. § 1904.5 to require employers outside of the healthcare industry, emergency response organizations, and correctional institutions to make work-relatedness determinations unless there was objective evidence that a COVID-19 case was work-related and that evidence was reasonably available to the employer. Under the new guidance, OSHA will only exercise that enforcement discretion “[i]f, after the reasonable and good faith inquiry [into the scenarios] described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19.”
• Stresses the importance of “examin[ing] all COVID-19 cases among workers and respond[ing] appropriately to protect workers, regardless of whether a case is ultimately determined to be work-related.”

Additional Guidance and Resources

In addition to the guidance discussed above, employers should be aware of numerous OSHA guidance documents and resources related to COVID-19 available at www.osha.gov.

• Workplace Preparedness:  On March 9, OSHA, in collaboration with the CDC, issued Guidance on Preparing Workplaces for COVID-19. This publication provides employers across all industries with guidance on how to prepare for the risks associated with COVID-19 and address those risks. OSHA recommends that every employer develop an infectious disease preparedness and response plan that assesses the risk associated with each worksite and job task, and then address those risks based on the following hierarchy of controls (listed from most effective to list effective): engineering controls, administrative controls, safe work practices, and personal protective equipment (PPE). Additionally, OSHA stresses the importance of implementing basic infection prevention measures, effective communications, and maintaining flexibility to adapt to evolving circumstances.
• Respiratory Protection: OSHA has issued several guidance documents to address concerns over N95 respirator shortages.
  • Annual Fit Testing: On March 14, OSHA issued temporary enforcement guidance for Healthcare Respiratory Protection Annual Fit-Testing for N95 Filtering Facepieces During the COVID-19 Outbreak. This guidance directs OSHA inspectors to exercise enforcement discretion with respect to the annual fit testing requirement in 29 C.F.R. § 1910.134(f)(2), as long as employers make good faith efforts to comply with 29 C.F.R. § 1910.134; use only NIOSH-certified respirators; implement strategies to optimize the supply of N95 respirators; perform initial fit tests with the same model, style and size respirator that the worker will be required to wear; inform workers that annual fit testing is temporarily suspended; explain the importance of performing a user seal check; conduct a fit test if they observe visual changes in the employee’s physical condition that could affect respirator fit; and remind workers to inform their supervisor or respirator program administrator if the integrity and/or fit of their respirator is compromised. OSHA expanded this guidance to all industries on April 8. 
  • Reuse of and Expired Respirators:  On April 3, OSHA issued Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the Coronavirus Disease 2019 (COVID-19) Pandemic. It permits the extended use or reuse of N95 respirators, as well as the use of N95 respirators that are beyond the manufacturer’s recommended shelf life in cases where the employer has made a good faith effort to obtain alternative respirators; the employer has monitored its supply of N95s and prioritized their use according to CDC guidance; surgical masks and eye protection have been provided as an interim measure to protect against splashes and large droplets, and other feasible measures have been implemented to reduce the need for respiratory protection. 
  • Respirators Approved by Other Countries:  On April 3, OSHA also issued Enforcement Guidance for Use of Respiratory Protection Equipment Certified under Standards of Other Countries or Jurisdictions During the Coronavirus Disease 2019 (COVID-19) Pandemic. This guidance permits the use of respirators that are certified under certain standards of other countries or jurisdictions in circumstances where the employer has implemented other feasible measures to reduce the need for respiratory protection; the employer has made a good faith effort to obtain other appropriate respirators, including NIOSH-certified equipment or equipment that was previously NIOSH-certified but has since expired; in healthcare settings, the employer has monitored its supply of N95s and prioritized their use according to CDC guidance; and surgical masks and eye protection have been provided as an interim measure to protect against splashes and large droplets.
  • Decontamination of Respirators:  On April 24, OSHA issued Enforcement Guidance on Decontamination of Filtering Facepiece Respirators in Healthcare During the Coronavirus Disease 2019 (COVID-19) Pandemic. This guidance identifies acceptable methods for decontaminating N95 respirators that are subject to re-use and outlines employer obligations for the re-use of respirators that have been decontaminated through these methods.
• Annual or Recurring Audits, Reviews, Training, or Assessments:  On April 16, OSHA issued guidance entitled Discretion in Enforcement when Considering an Employer's Good Faith Efforts During the Coronavirus Disease 2019 (COVID-19) Pandemic. This guidance indicates that OSHA will exercise enforcement discretion with respect to numerous training, audit, assessment, inspection, and testing requirements where an employer has made good faith effort to comply but has been unable to due to the COVID-19 pandemic.  Examples of the requirements subject to this discretion include annual audiograms, annual PSM requirements, HAZWOPER training, respirator fit testing and training, construction crane operator certification, and medical evaluations for health standards.
• Industry-Specific Resources: OSHA has issued guidance and resources for several industries that are facing unique challenges due to COVID. These resources are available at the following links:  

Conclusion

OSHA has issued several resources and guidance documents that help to clarify employers' compliance obligations and address the unique challenges that employers are facing due to the evolving pandemic. As OSHA’s most recent guidance demonstrates, OSHA’s guidance is continuing to evolve as the nature of the pandemic evolves. Therefore, it is important that employers be aware of the guidance that is currently in place and regularly check the OSHA website for developments.

This alert was prepared with the assistance of Raven Hayes.