OSHA Updates Enforcement Guidance and Enforcement Response Plan for COVID-19

One of the most important measures in preventing the spread of COVID-19 is ensuring that employers are taking the proper precautions to protect their workers. OSHA has revised two of its enforcement policies to assess an employer’s actions as economies begin to reopen.

The new memoranda take effect May 26, 2020, at which time the previous memoranda will be rescinded. These new memoranda will remain in effect until further notice.

Revised Enforcement Guidance for Recording Cases of COVID-19

OSHA’s updated guidance provides compliance safety and health officers (CSHOs) direction on enforcing the requirements of 29 CFR Part 1904 with respect to the recording of occupational illnesses, specifically cases of COVID-19.

Under OSHA's recordkeeping requirements, COVID-19 is a recordable illness so employers are responsible for recording cases of COVID-19, if:

1. The case is a confirmed case of COVID-19, as defined by CDC;
2. The case is work-related as defined by 29 CFR 1904.5; and
3. The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7.

OSHA acknowledges that it can be difficult to determine if a COVID-19 case is work-related, particularly if an employee has potentially been exposed both in and out of the workplace. Therefore, the agency is exercising enforcement discretion to assess an employer’s efforts in making work-related determinations.

CSHOs should consider three factors to determine if an employer has complied with this obligation and made a reasonable determination of work-relatedness of COVID-19 cases:

1. Reasonableness of the employer's investigation into work-relatedness
2. Evidence available to the employer
3. Evidence that a COVID-19 illness was contracted at work

If an employer cannot determine whether it is likely that exposure in the workplace played a causal role in a particular COVID-19 case, the employer does not need to record the COVID-19 illness. Regardless of any work-related determination, OSHA advises employers to examine all COVID-19 cases among workers to protect their health and safety, as well as that of the public.

The guidance reminds employers that recording a COVID-19 illness does not, by itself, mean that they have violated any OSHA standard. Furthermore, pursuant to existing regulations, employers with 10 or fewer employees and certain employers in low-hazard industries have no recording obligations; and need only report work-related COVID-19 illnesses that result in a fatality or an employee's in-patient hospitalization, amputation or loss of an eye.

Updated Interim Enforcement Response Plan for COVID-19

OSHA’s Updated Interim Enforcement Response Plan offers guidance to area offices and CSHOs on handling COVID-19-related referrals, complaints and severe illness reports. As states across the country reopen their economies, OSHA will use the following framework to ensure the health and safety of workers:

• In geographic areas where community spread of COVID-19 has significantly decreased, OSHA will return to the inspection planning policy that OSHA relied on prior to the start of the COVID-19 health crises, as outlined in the OSHA Field Operations Manual (FOM), CPL 02-00-164, Chapter 2, when prioritizing reported events for inspections, except that:
  
  • OSHA will continue to prioritize COVID-19 cases;
  • OSHA will use non-formal phone/fax investigations or rapid response investigations in circumstances where OSHA has historically performed such inspections (e.g., to address formal complaints) when necessary to assure effective and efficient use of resources to address COVID-19-related events; and
  • In all instances, the area director (AD) will ensure that CSHOs use the appropriate precautions and PPE when performing inspections related to COVID-19.
• In geographic areas experiencing either sustained elevated community transmission or a resurgence in community transmission of COVID-19, ADs will exercise their discretion, including consideration of available resources, to:

• Continue prioritizing COVID-19 fatalities and imminent danger exposures for inspection. Ads will focus on high-risk workplaces, such as hospitals and other healthcare providers treating patients with COVID-19, as well as workplaces with high numbers of complaints or known COVID-19 cases.
  
  
  • Where resources are insufficient to allow for on-site inspections, the inspections for these types of reported events will be initiated remotely with an expectation that an on-site component will be performed if/when resources become available to do so.
  • Where limitations on resources are such that neither an on-site nor remote inspection is possible, OSHA will investigate these types of reported events using a rapid response investigation (RRI) to identify any hazards, provide abatement assistance, and confirm abatement.
  • OSHA will develop a program to conduct monitoring inspections from a randomized sampling of fatality or imminent danger cases where inspections were not conducted due to resource limitations.
• Use non-formal phone/fax investigation instead of an on-site inspection in industries where doing so can address the relevant hazard(s).
• Ensure that CSHOs use the appropriate precautions and PPE to protect against potential exposures to COVID-19.

Prior to any COVID-19-related inspections, ADs should evaluate the potential risk level of exposure to SARS-CoV-2 at the workplace and prioritize resources. When the AD determines an on-site inspection is warranted under this revised plan, CSHOs must evaluate potential hazards, limit any possible exposure(s) and avoid interference with the provision of ongoing medical services and critical work efforts.

When CSHOs identify a workplace with potential exposure to SARS-CoV-2 and determine that an inspection is warranted under this plan, they should immediately coordinate with their supervisors and regional office.

CSHOs who believe they may have been exposed to SARS-CoV-2 during an inspection must report the potential exposure to their supervisor and/or AD. In addition, the directorate of enforcement programs must be notified of all proposed citations and federal agency notices that relate to a COVID-19 exposure. State plan designees should report any COVID-19 inspections to their regional office.

Find further information and resources about COVID-19 on OSHA’s coronavirus webpage.

Related Links
COVID-19: Return-to-Work Strategies
CDC Issues Guidance for Cleaning and Disinfecting Workplaces
Three Keys to Addressing COVID-19 in the Workplace
10 Ways to Reduce Worker Exposure to COVID-19