On April 13, 2020, OSHA issued instructions and guidance to Area Offices for handling COVID-19-related complaints, referrals and severe illness reports (“Plan”). The Plan’s objective is to ensure safe conditions for workers while also taking measures to protect its own personnel. The Plan sets forth interim procedures that allow flexibility and discretion for its field offices in an evolving environment.
The Plan provides General Enforcement Guidance as follows:
- So far COVID-19 related complaints have focused primarily on lack of personal protective equipment (“PPE”) and lack of training on appropriate standards and risks.
- Once an employer or its agent learns that the reportable event was the result of a work-related incident, a report to OSHA must be made within:
- 8 hours for a fatality; or
- 24 hours for an inpatient hospitalization, amputation or loss of an eye.
- Employers must also report any fatality that occurs within 30 days of the work-related incident.
- After OSHA receives such an employer report, the Area Director will determine whether to conduct a standard inspection or a Rapid Response Investigation intended to quickly identify any hazards, provide abatement assistance and confirm abatement.
- Top priorities for enforcement are fatalities and imminent danger exposures related to COVID-19, with particular attention given to health care organizations and first responders.
- OSHA personnel should maximize the use of electronic means of communication, wherever possible. During on-site inspections, OSHA personnel should take precautions to limit possible exposure to themselves, and take care to avoid interference with the provision of ongoing medical services.
- The Plan incorporates by reference all prior enforcement guidance memoranda issued by OSHA related to COVID-19.
- The Plan took effect immediately and is meant to be “time-limited” to the current crisis.
Beyond this general guidance, OSHA provided more Specific Enforcement Guidance in various areas, including the following: inspection procedures, good faith and reporting to OSHA based on work-relatedness.”
Inspection Procedures
Inspections will start with an Opening Conference, conducted by phone if possible, followed by a Program and Document Review (conducted remotely) which may include the following:
- Employer’s written pandemic plan;
- Emergency preparedness plan and/or infection control plan;
- Procedures for hazard assessment;
- Protocols for using PPE;
- Laboratory procedures for handling specimens;
- Procedures for decontamination of surfaces;
- Medical and other records related to worker exposure incidents;
- OSHA-required recordkeeping;
- Respiratory protection program;
- Modified respirator policies related to COVID-19;
- Employee training records (especially training related to COVID-19);
- Documentation of efforts to provide supplies of PPE;
- Airborne infection isolation rooms/areas (including air pressure monitoring);
- Procedures for assigning or transferring patients;
- Interviews with employer representatives and employees; and
- Any other pertinent information.
After the Program and Document Review, OSHA officials will use professional judgment in determining which areas of the facility may need to be physically inspected (e.g., emergency rooms, respiratory therapy areas, bronchoscopy suites and morgue).
Good Faith
The Plan allowed compliance officers to exercise discretion regarding the shortage of PPE, such as masks and respirators, that the country is experiencing amid the pandemic. OSHA officials “should assess whether the employer is making a good-faith effort to provide and ensure workers use the most appropriate respiratory protection available” for exposure to COVID-19, applying the following criteria, in order of priority:
- Implementing the hierarchy of controls in an effort first to eliminate workplace hazards;
- Using engineering controls, administrative controls and safe work practices to prevent worker exposures to respiratory hazards;
- Efforts to acquire and use equipment:
- Best Option–National Institute for Occupational Safety and Health-certified;
- Middle Options–Various gradations of equipment quality based on shelf life and certification level; and
- Last Resort Option–homemade masks or improvised mouth and nose covers only as a last resort with various gradations of priority in between.
- Training workers: (1) to perform a user seal check each time they don a respirator; and (2) what to do if the check fails;
- Training workers to understand that if the structural and functional integrity of any part of the respirator is compromised, it should be discarded;
- Training employees on the proper sequence of procedures for donning/doffing to prevent self-contamination; and
- Avoiding co-mingling products from different categories of equipment.
Reporting to OSHA Based on Work-Relatedness
In a separate April 10, 2020, interim guidance OSHA temporarily eased enforcement on recordkeeping/reporting requirements in situations where there is ongoing community transmission of COVID -19, making work-relatedness determinations difficult. OSHA’s intent is to help employers focus their response efforts on implementing good hygiene practices in their workplaces and otherwise mitigating COVID-19’s effects, rather than on making difficult work-relatedness decisions.
However, reporting requirements are not eased for employers in the health care industry, emergency response organizations and correctional institutions. These employers are still responsible for recording cases of COVID-19, if the case:
- Is confirmed as a COVID-19 illness;
- Is work-related as defined by 29 CFR 1904.5; and
- Involves one or more of the general recording criteria in 29 CFR 1904.7, such as medical treatment beyond first aid or days away from work.
The guidance further stated that COVID-19 should be coded as a respiratory illness on OSHA Form 300, if an employee voluntarily requests that their name not be entered on the log, the employer must comply.
Practical Takeaways
It is good news for health care employers that OSHA’s standard recognizes the complexity involved in an overwhelming pandemic and gives its officials “enforcement discretion” when assessing potential violations of respiratory standards to evaluate situations on a case-by-case basis.
Updating policies and making good faith efforts to comply with current CDC and OSHA guidance is important, but the reality may be more complicated. Employers should just do the best they can under difficult circumstances and, hopefully, that will be good enough for OSHA.
Some legislators have criticized OSHA for: (1) its primary focus on the safety of health care workers and first responders and for failing to include other “essential” businesses, like food delivery and grocery workers; and (2) failing to clearly define employer responsibility and accountability to protect workers from COVID-19. There have been threats of possible congressional action to require OSHA to impose a clearer and broader standard, so stay tuned for further developments. OSHA updates can be found here.
If you have any questions or would like more information on this topic, please contact:
- Mark Sabey at (303) 801-3538 or marksabey@wp.hallrender.com; or
- Your regular Hall Render attorney.
Hall Render’s attorneys and professionals continue to maintain the most up-to-date information and resources at our COVID-19 Resource page, through our 24/7 COVID‑19 Hotline at (317) 429-3900 or by contacting your regular Hall Render attorney.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
