OSHA will take enforcement action against noncompliant employers. In earlier COVID-19-related publications, OSHA took the position that its interim guidance was advisory in nature and created no legal obligations for which employers could be held liable. This latest publication, however, suggests a shift to enforcement of workplace safety standards, including those standards that may rely in part on previously published COVID-19-related interim guidance. OSHA has identified several standards that may apply during the course of its inspections, such as the general duty standard of the Occupational Safety and Health (OSH) Act and regulations related to personal protective equipment. Moreover, the newest interim guidance announces that OSHA will cite all COVID-19-related violations as “serious,” and that all such citations will be classified as “novel.” In effect, this means that COVID-19-related citations, while infrequent, may carry larger penalties. This includes a fine of up to $10,000 and imprisonment of up to six months for individuals who knowingly make false representations to OSHA.

Reduction of on-site inspections of workplaces not considered high or very high risk environments. OSHA ordinarily enforces its workplace safety mandates by conducting on-site inspections. But social distancing guidelines, by definition, complicate OSHA’s reliance on physical procedures such as on-site inspections. Building off of previous guidance, OSHA in the interim guidance announces that complaints against employers not in high or very high risk environments — in effect, employers outside of the healthcare field — will be processed through OSHA’s non-formal “phone and fax method,” which we discuss in more detail below. In keeping with social distancing guidelines, OSHA also encourages the remote investigation of even employers in high risk work environments wherever feasible. In practice, this suggests a piecemeal approach to inspections of employers in high and very high risk environments. By way of example, opening conferences for on-site inspections that would traditionally be held in person may now take place over the phone. So too may employee interviews. When visits to an employer’s premises cannot be avoided, OSHA’s interim enforcement plan prescribes safety standards that its compliance officers must follow.

Employers should carefully draft responses to non-formal complaints. At first blush, the use of the phrase “non-formal procedures” suggests that OSHA intends to adopt a hands-off approach to its enforcement of safety standards, but the sample documents included in the agency’s interim guidance point to a different conclusion. Under OSHA’s non-formal complaint procedures, the agency informs employers about a complaint against them by letter. That letter then directs employers to demonstrate observance of workplace safety standards — those demonstrations can include employer-conducted investigations, the results of which must be made available to OSHA. If an employer’s response demonstrates full adherence to safety standards, then the investigation will be closed. Conversely, an inadequate response could trigger an on-site inspection or a citation. Accordingly, employers should pay special attention, and provide extra emphasis, to their written responses provided as part of a “non-formal” procedure.