Seyfarth Synopsis: The federal Occupational Safety and Health Administration (OSHA) has adopted an Updated Interim Enforcement Response Plan for Coronavirus Disease (ERP). Now, as states begin reopening their economies, the revised ERP will “ensure employers are taking action to protect their employees.”
Federal OSHA has faced recent lawsuits from traditional labor relating its regulatory response to the pandemic, including its decision not to issue new regulations to address COVID-19. On May 19, 2020, OSHA issued a new enforcement guidance (Updated Interim Enforcement Response Plan for Coronavirus Disease 2019, May 19, 2020) acknowledging that many non-critical businesses have begun to reopen in areas of lower community spread, and then numerous other businesses will be reopening in coming weeks. The risk of transmission is lower in specific categories of workplaces, and personal protective equipment potentially needed for inspections is more widely available for OSHA staff. According to OSHA, it will “continue to prioritize COVID-19 inspections, and will utilize all enforcement tools as OSHA has historically done.” In the areas of lower risk, OSHA will return to doing more onsite inspections, which have largely been limited to fatality inspections during the pandemic.
According to the ERP, OSHA will continue to prioritize COVID-19 cases. The agency acknowledged that it will continue to target healthcare employers, who historically have not been a primary target of OSHA enforcement. During an inspection, the ERP instructs compliance officers to examine whether employees “who are expected to perform very high and high risk exposure tasks are using respirators (i.e., N95 or better).” The ERP states in bold text that “appropriate respiratory protection is required for all healthcare personnel providing direct care for patients with suspected or confirmed cases of COVID-19.” Area Directors will continue to evaluate potential on-site inspections for COVID risks to OSHA personnel and will not send compliance officers where they perceive a hazard.
Enforcement against employers will be largely through the General Duty Clause. The ERP provides a sample citation (Attachment 4), again focused on healthcare employment and precautions during the treatment of COVID-19 patients.
Attached to the Updated Interim Enforcement Response Plan are specific enforcement procedures (Attachment 1); a sample employer letter for COVID-19 activities (Attachment 2); a sample hazard alert letter (Attachment 3); and additional references, including OSHA’s prior COVID-19-related enforcement memoranda (Attachment 5).