OSHA Rescinds and Revises Guidance for Enforcement and COVID-19 Recording

McNees Wallace & Nurick LLC

McNees Wallace & Nurick LLC

The Occupational Safety and Health Administration (“OSHA”) is taking steps to resume pre-COVID-19 inspection and response procedures.  On May 19, 2020, OSHA released two enforcement guidance documents that lay out OSHA’s revised interim response to the current status of the COVID-19 pandemic and business reopenings.  Effective May 26, 2020, OSHA’s Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) (“Recording Guidance”) and Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) (“Enforcement Guidance”) rescind the similarly titled guidance documents previously issued by OSHA in April 2020.

COVID-19 Recording and Reporting Requirements
As noted in our April 13, 2020 alert, the previous version of OSHA’s Recording Guidance relaxed enforcement of OSHA’s recording and reporting standard, focusing on the difficult question of whether a COVID-19 case is “work-related.”  Except for employers engaged in healthcare or emergency response, OSHA indicated it would not require employers to make work-relatedness determinations for cases of COVID-19 absent the employer having reasonably available objective evidence that a case is work-related.  OSHA’s revised Recording Guidance similarly acknowledges that work-relatedness determinations remain difficult, yet it now requires all employers to, in good-faith, make work-relatedness determinations for confirmed cases of COVID-19 to “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.”

At the same time, OSHA does not expect employers “to undertake extensive medical inquiries” or infringe upon individual privacy. Rather, the revised Recording Guidance describes basic investigative procedures (contact tracing) and provides several examples of evidence that employers should consider in making work-relatedness determinations.

OSHA’s Revised Enforcement Response Plan
As certain geographic areas are experiencing a decline in community transmission of COVID-19, OSHA’s updated Enforcement Guidance details enforcement response protocols for prioritizing inspections.  The updated Enforcement Guidance includes separate response plans tailored to reflect the level of community transmission and individual workplace risk levels.  Where community spread of COVID-19 has “significantly decreased,” OSHA intends to resume pre-COVID-19 inspection planning procedures under the Field Operations Manual for low- and medium-risk workplaces, including onsite inspections.  Alternatively, in high-risk workplaces or where elevated community transmission of COVID-19 persists, OSHA will continue to prioritize COVID-19 fatalities and imminent danger exposures for inspections and may utilize non-formal procedures (e.g., phone/fax investigations) to address alleged hazards at low- and medium-risk workplaces.

While businesses across the country begin to reopen and ramp up production, OSHA’s current enforcement guidance strongly suggests an intent to resume pre-COVID-19 enforcement procedures and on-site inspections as community transmission decreases.  During this transitional period, employers should carefully review OSHA’s latest enforcement guidance and tailor their policies and procedures accordingly.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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