OSHA’s Interim Enforcement Plan for COVID-19

Pillsbury Winthrop Shaw Pittman LLP

OSHA provides its compliance officers with instructions for conducting COVID-19-related investigations and inspections arising from complaints, referrals, and reports of employee hospitalizations and fatalities.

TAKEAWAYS

  • Sites with a high/very high exposure risk (e.g., health care facilities) will be prioritized for on-site inspections.
  • Violations resulting from inspections conducted pursuant to this guidance will normally be classified as serious.
  • COVID-19 inspections are to be treated as novel cases and the Directorate of Enforcement Programs must be notified of all proposed citations that relate to COVID-19 exposure.

Although the Occupational Safety and Health Administration (OSHA) issued “Guidance on Preparing Workplaces for COVID-19” on March 9, 2020, critics noted the guidance is “advisory in nature” and does not create “new legal obligations.” After issuing four memoranda specific to respiratory protection and the N95 facepiece, OSHA is now turning its attention to enforcement in a response plan designed to address reports of COVID-19-related workplace hazards.

The April 13, 2020, memorandum addresses the safety of OSHA’s own compliance officers and inspectors, provides a roadmap for COVID-19-related workplace inspections, document requests, witness interviews and the basis for potential citations. If on-site inspections are necessary, OSHA will “maximize the use of electronic means of communication” by conducting interviews and conferences by phone and video and by transmitting documents for review by email. Compliance officers will be familiar with CDC guidelines and trained to handle the settings they will be inspecting. Inspectors will be provided with necessary personal protective equipment (PPE) and decontamination supplies for cleaning any equipment and materials brought on site. And, of course, inspectors are to follow safety practices (e.g., social distancing, contamination reduction techniques) to limit exposure.

While inspections will prioritize very high and high exposure risk environments in the health care and emergency response industries, the guidance is helpful to employers in all exposure risk levels in that it sets forth applicable OSHA standards, describes documents inspectors would likely request and review, and provides insight on potential citations that may issue.

Applicable OSHA Standards

Although the applicability of standards depends on the specific facts and circumstances of the workplace, inspectors will likely look to the following standards to determine whether there has been a violation. The list is “not exhaustive,” and notably, violations cited under this guidance “will normally be classified as serious.”

  • 29 CFR § 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.
  • 29 CFR § 1910.1030, Bloodborne Pathogens.
  • Section 5(a)(1), General Duty Clause of the OSH Act.

Inspection and Document Review

Compliance officers are expected to follow standard inspection procedures, which may include an opening conference, program and document review, and walkaround. Many of these protocols—for example, the opening conference and witness interviews—may be performed remotely or even by telephone between inspectors and employers/employees while on site. Employers preparing for an inspection will likely be asked to produce the following documents:

  • A written pandemic plan as recommended by the CDC;
  • Procedures for hazard assessment and protocols for PPE use;
  • Laboratory procedures for handling specimens and procedures for decontamination of surfaces;
  • Medical records related to worker exposure incident(s) and OSHA-required recordkeeping;
  • Respiratory protection program and any modified respirator policies;
  • Employee training records;
  • Provisions made to obtain and provide appropriate and adequate supplies of PPE;
  • Information concerning the use of air pressure monitoring systems and any periodic testing procedures;
  • Procedures for assigning/transferring patients and limiting access to isolation rooms/areas; and
  • Documentation (photos or design specifications) of hierarchy of controls for worker protection.

Potential General Duty Clause Citations

The general duty clause is often seen as the backstop or “last resort” source of citations. The memorandum dictates that compliance officers will terminate the inspection and leave the facility “[w]here no violations of OSHA standards, regulations, or the general duty clause are observed or documented.” Further, inspectors are not to issue a general duty clause citation unless there is evidence of the following four required elements:

  1. The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
  2. The hazard was recognized;
  3. The hazard was causing or was likely to cause death or serious physical harm; and
  4. There was a feasible and useful method to correct the hazard.

According to the memorandum, if all four elements cannot be proven, the OSHA office is instructed to issue a “hazard alert letter” recommending the implementation of protective measures (engineering controls and administrative controls), a workplace hazard assessment to determine appropriate PPE, and additional training and education.

If all four elements can be demonstrated, the proposed citation “shall be reviewed with the Regional Administrator and the National Office prior to issuance.” (emphasis in original). The guidance provides a sample alleged violation description for a general duty clause citation, which is copied below:

Section 5(a)(1) of the Occupational Safety and Health Act: The employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees, in that employees were not protected from the hazard of contracting the virus, SARS-CoV-2 (severe acute respiratory syndrome coronavirus 2), the cause of Coronavirus Disease 2019 (COVID-19).

(a) (LOCATION) (DATE) (IDENTIFY SPECIFIC OPERATION/TASK(S) AND DEPARTMENTS, DESCRIBE CONDITIONS, INCLUDING EXPOSURE LEVELS) In the emergency room staffed with 35 employees, on 4/3/20: Three employees, a physician, nurse, and nursing assistant, were providing direct patient care performing a routine endotracheal intubation procedure - to a patient who was previously confirmed to be infected with SARS-CoV-2. The employer did not ensure that appropriate and available engineering controls were used to protect against infective respiratory droplets and aerosols, in that an available isolation room was not used for the procedure, thereby exposing adjacent unprotected workers to SARS-CoV-2.

Again, we note that only sites with a high or very high risk of COVID-19 exposure (i.e., health care organizations and first responders) will be prioritized for an on-site inspection. The memorandum acknowledges that formal complaints from medium or lower exposure risk workplaces “will not normally result in an on-site inspection.” However, “inadequate responses” to a phone/fax investigation “should be considered for an on-site inspection.” To that end, medium or lower exposure risk workplaces should take any virtual inspections seriously.

[View source.]

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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