OSHA Issues Enforcement Guidance on Conducting COVID-19 Inspections and Announces Flexibility on Completing Annual Safety Requirements

More than 3,000 workers have filed complaints with OSHA since January 2020, alleging concerns over potential exposure to COVID-19, according to Freedom of Information Act records analyzed by the Washington Post. In the complaints, employees largely alleged they were exposed to COVID-19 hazards due to a lack of personal protective equipment (PPE), unsanitary conditions, and working in close proximity with others.  With the onslaught of OSHA complaints already starting, and the push to reopen, employers should make sure to review OSHA’s guidance on coronavirus preparation and response, and implement safeguards to protect employees from exposure to COVID-19. 

OSHA Sets Plans and Priorities for COVID-19 Responses

On April 13, 2020, OSHA issued an interim enforcement memo that details how the agency will handle the flood of complaints, referrals, and illness reports related to COVID-19.  OSHA notes in the memo that the complaints received from employees may deal with:

• Lack of PPE, including respirators, gloves, and gowns;
• Failure to provide training on applicable safety standards; and,
• Failure to provide information on possible COVID-19 illnesses in the workplace.

The memo further explains that OSHA will prioritize those complaints from health care and emergency response employees, and that the agency will consider whether to conduct “Rapid Response Investigations” in lieu of onsite visits for fatality reports, hospitalizations, and other work-related incidents involving exposure to COVID-19.

In light of the scale of the COVID-19 outbreak, and OSHA’s limited resources, the agency will initiate inspections by taking into account worker exposure risk levels. Workplaces with higher risks of exposure to COVID-19, including hospitals treating suspected and confirmed COVID-19 patients, will be priorities for inspections. OSHA will also minimize in-person interactions and conduct inspection activities remotely to the maximum extent possible.

For employees in the low and medium exposure risk categories, the agency will typically not conduct an onsite inspection.  Rather, it will likely conduct a “non-formal phone/fax investigation” through notices of alleged hazards, in the form of “Attachment 2” to the interim enforcement memo.  In these notices, OSHA alerts the employer about the alleged hazards and requests a response with supporting documentation confirming that appropriate action has been taken or that no hazard exists.

OSHA Focuses on Employers’ Good Faith Efforts to Comply with Standards in Face of COVID-19 Challenges 

In addition, on April 16, 2020, OSHA issued another enforcement memo, in which the agency recognizes that due to business closures and the limited availability of consultants and contractors that provide safety training and other services, it will exercise discretion with respect to annual or recurring training, audit, and other requirements that would be difficult or impossible to comply with during the COVID-19 pandemic.  OSHA will evaluate employers’ good faith efforts to comply with applicable safety standards, such as conducting training remotely or promptly re-scheduling annual training or audits once business operations resume.  

The agency also listed the below examples of areas in which annual or periodic requirements will be relaxed if employers demonstrate good faith:

• Annual audiograms;
• Annual process safety management (PSM) requirements;
• Hazardous waste operations training;
• Respirator fit tests and training; and,
• Construction crane operator certification.

Foley has created a multi-disciplinary and multi-jurisdictional team, which has prepared a wealth of topical client resources and is prepared to help our clients meet the legal and business challenges that the coronavirus outbreak is creating for stakeholders across a range of industries. Click here for Foley’s Coronavirus Resource Center to stay apprised of relevant developments, insights and resources to support your business during this challenging time. To receive this content directly in your inbox, click here and submit the form.