Throughout April 2020, the United States Department of Labor Occupational Safety and Health Administration (OSHA) released guidance and alerts regarding its enforcement efforts during the COVID-19 pandemic. These documents, coupled with recent comments made during a presentation made by Principal Deputy Assistant Secretary of Labor Loren Sweatt to the Pittsburgh Technology Council, provide important insights as essential businesses strive to operate safely and while other businesses begin planning for reopening and operational expansion.

Complaints, Injuries, and Fatalities Involving Healthcare Workers and First Responders Are Prioritized as Other Industries Receive Some Leeway

An OSHA Memorandum published on April 13, 2020 provides guidance regarding the “handling of COVID-19-related complaints, referrals, and severe illness reports.” The Memorandum acknowledges that complaints received during the initial months of the pandemic relate to a lack of personal protective equipment (PPE) and related training. In most cases where the complaint originates from non-healthcare and non-emergency-response establishments, the non-formal complaint and referral procedures will be followed. Enforcement action for issues early in the pandemic is unlikely, given the widespread scarcity of PPE (specifically respirators/masks), the suddenness of the pandemic’s onset across the nation, and the prompt shutdown of most nonessential businesses once the severity of the pandemic became understood.

Nonetheless, complaints and injuries related to COVID-19 will be prioritized for inspection – with particular attention given to healthcare workers and first responders. The Memorandum also divides prioritizing OSHA enforcement activities according to the risk levels of:

• “high and very high” (workplaces with high potential for exposure to known or suspected sources of COVID-19 during specific medical, postmortem, or laboratory procedures);
• “medium” (jobs that include frequent or close contact with people who may be infected with COVID-19); and
• “low” (workers with minimal occupational contact with the public and other co-workers).

Worker fatalities and imminent exposures related to COVID-19 are to be prioritized. Formal complaints alleging unprotected exposures to COVID-19 for workers in the high- or very high-risk job category may warrant an on-site inspection. Many other industries—even where OSHA has published COVID-19 alerts advising of best practices—are more likely to be subject to virtual inspections and given leeway on implementing major changes (such as reconfiguring facilities to keep workers six feet apart when construction and other vendors may not be available to immediately assist).

Ms. Sweatt stated that, through mid-April 2020, OSHA has received about 3,000 complaints related to COVID-19. Half of these complaints have been closed. OSHA has issued specific alerts (often in the form of one-page checklists) for employers in the restaurant, retail, delivery, meatpacking, manufacturing, and construction industries. These checklists are helpful in covering common issues and offering points for consideration, but OSHA has stopped short of mandating that these specific recommendations each be implemented in full before continuing or reopening operations.

Instead, Labor Secretary Eugene Scalia has stated that OSHA enforcement action will take place under existing regulations regarding general safety, PPE, sanitation, and hazard communication. Indeed, despite the re-prioritization to focus on healthcare employers, Ms. Sweatt was clear to articulate that OSHA is still engaging in enforcement with regard to all regulations, stating that OSHA has “not shut down…where we find dramatic failures, we are going to enforce. Nothing has changed regarding our standards and what is required [of employers].” ¹

A Good Faith Standard Governs an Employer’s Effort to Comply With OSHA Regulations

In OSHA’s April 16 Memorandum, OSHA Area Offices were provided guidance on enforcing OSHA regulations during an inspection. In such instances, inspecting Offices should “evaluate whether the employer made good faith efforts to comply with applicable OSHA standards.” Further, “in situations where compliance was not possible, [inspectors should] ensure that employees were not exposed to hazards from tasks, processes, or equipment for which they were not prepared or trained.”

Defining this “good faith” standard, the memorandum advises that Area Offices should consider whether the employer “explored all options to comply with the applicable standards.” Examples of such good faith efforts would include the use of virtual training or remote communication. Additionally, using expired PPE or past-service-life PPE (in lieu of no PPE because of extensive backorders) likely would be considered a good faith effort to comply.

In such instances where training or other requirements cannot be met in the current environment (or is otherwise prohibited due to mandated closures), a good faith effort must be taken to meet the requirement as soon as the business reopens. The memorandum offers a number of examples where annual testing or training is delayed due to restrictions on travel or the closure of a business. In these examples, the memorandum states that the employer would not be cited as long as it demonstrates an effort to use an alternative protective measure and reschedule the testing or training once the suspensions are lifted.

Notably, the COVID-19 guidance from the Centers for Disease Control and Prevention (CDC) is being cited by OSHA in its own Memorandum and used to train and guide its own inspectors. Additionally, OSHA has issued joint alerts with the CDC addressing some industries where COVID-19 has created particular problems, such as the meatpacking industry. Therefore, businesses should expect that training and adherence to previously obscure practices such as a six-foot distance between workers and the availability of video/telecommuting equipment where possible will be assessed in the coming days—in addition to already standard PPE requirements and related safety measures in certain industries. As the practical impossibilities of compliance begin to fade with the passage of time and the resumption of ordinary operations, the CDC guidance and OSHA alerts may take on more significance—eventually even becoming regulation if necessary.

Once state and local governments begin allowing non-essential businesses to reopen, Ms. Sweatt indicated that further guidance will be issued. However, she did emphasize that regulations regarding respirators and protective equipment should be reviewed to ensure proper training is in place.

What OSHA Inspectors Will Look for in COVID-19 Cases

The April 16 Memorandum provides a clear checklist of what OSHA inspectors will be assessing. Though inspections may be more reliant on remote visits or advanced technology, businesses will be expected to:

• Have a written pandemic plan (either standing alone or as part of a broader emergency preparedness plan)
• Implement procedures for hazard assessment and PPE use
• Make all good faith efforts to obtain PPE appropriate for the risks and environments at issue
• Document potential sources of COVID-19 (to facilitate tracking and contact notification if a positive test occurs)
• Continue to adequately document all injury/illness instances in the workplace consistent with both longstanding and pandemic-specific guidance
• Have appropriate sanitation procedures and equipment available for the level of risk to be encountered
• Provide and track training administered to employees about relevant workplace safety initiatives
• Follow all additional nuanced guidance applicable to quarantining and treating patients if the employer is a healthcare entity
• Assist OSHA personnel in conducting appropriate inspection (using videographic or photographic means as necessary)

Takeaways

During the COVID-19 pandemic, OSHA is prioritizing workplaces related to healthcare workers and first responders, even if inspections occur by video relay and interview/collection processes take place electronically. However, all businesses where high- or very high-risk workers have experienced injuries related to COVID-19 may be subjected to prioritized inspection. Though OSHA may forgo citing a business that has been unable to comply with certain requirements due to the pandemic, such employers must demonstrate a good faith effort to abide by such requirements. Often that good faith can be demonstrated in a particular industry by making all reasonable efforts to address each point in the one-page checklist that targets that industry (or a relatively similar industry). Despite this guidance, Ms. Sweatt’s comments indicate that OSHA will continue to enforce all regulations and inspect worksites when and where it is appropriate. Specific tracking and coding of COVID-19 issues will continue, and businesses will need to adapt both to protect workers and facilitate inspections as science continues to provide more information about the pandemic, its causes, and its effects.