OSHA Memorandums on COVID-19 OSHA Enforcement

In the last week or so OSHA has issued two important memorandums related to their enforcement policies and procedures.

Richard Fairfax
May 28, 2020

Both documents are important and should be reviewed in their entirety. The first document – Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19)- provides interim enforcement guidance and is primarily written for the OSHA field offices as it addresses the conduct of inspections and issuing citations during this time period.

NOTE: I have seen a number of responses to this document stating that OSHA will only inspect if the situation presents an imminent danger or there has been a fatality which are OSHA’s first category for inspection priority. In reading the document, I did see in this document where this is alluded to. The document clearly states that OSHA should investigate complaints, referrals, and employer-reported fatalities and hospitalizations to identify potentially hazardous occupational exposures and to ensure that employers take prompt actions to mitigate hazards and protect employees. While the document refers to imminent danger, it is not the sole area where OSHA will conduct an on-site inspection. Be aware that if an OSHA Area Office receives a formal complaint alleging incidents of COVID-19 with no protection, the OSHA Area Director has the authority to initiate an inspection. This could include packaging and shipping operations or grocery stores for example.

I believe the key points in the document are the classification by the Agency of COVID-19 related hazards into three RISK categories as follows:

High and very high exposure risk jobs

High and very high exposure risk jobs are those with high potential for exposure to known or suspected sources of SARS-CoV-2 that occurs during specific medical, postmortem, or laboratory procedures. Workplaces considered to have job duties with high risk of exposures to COVID-19 include, but are not limited to, hospitals treating suspected and/or confirmed COVID-19 patients, nursing homes, emergency medical centers, emergency response facilities, settings where home care or hospice care are provided, settings that handle human remains, biomedical laboratories, including clinical laboratories, and medical transport. Aerosol-generating procedures, in particular, present a very high risk of exposure to workers. The aerosol-generating procedures for which engineering controls, administrative controls, and personal protective equipment (PPE) are necessary include, but are not limited to, bronchoscopy, sputum induction, nebulizer therapy, endotracheal intubation and extubation, open suctioning of airways, cardiopulmonary resuscitation and autopsies.

Medium exposure risk jobs

Medium exposure risk jobs include those with frequent and/or close contact with, i.e., within 6 feet of, people who may be (but are not known to be) infected with SARS-CoV-2. Workers in this risk group may have frequent contact with travelers returning from international locations with widespread COVID-19 transmission. In areas where there is ongoing community transmission, workers in this category, include, but are not limited to, those who have contact with the general public (e.g., in schools, high-population-density work environments, and some high-volume retail settings). And …

Lower exposure risk jobs

Lower exposure risk jobs are those that do not require contact with people known to be, or suspected of being, infected with SARS-CoV-2, nor frequent close contact with, i.e., within 6 feet of, the general public. Workers in this category have minimal occupational contact with the public and other coworkers.

OSHA then describes in the memorandum the enforcement related strategies as follows:

  • Fatalities and imminent danger exposures related to COVID-19 will be prioritized for inspections, with particular attention given to healthcare organizations and first responders. During this outbreak, formal complaints alleging unprotected exposures to COVID 19 for workers with a high/very high risk of transmission such as a fatality to COVID 19 for workers with a high/very high risk of transmission such as a fatality that is potentially related to exposures to confirmed or suspected COVID-19 patients while performing aerosol-generating procedures without adequate PPE in a hospital, may warrant an on-site inspection.
  • All other formal complaints alleging SARS-CoV-2 exposure, where employees are engaged in medium or lower exposure risk tasks (e.g., billing clerks), will not normally result in an on-site inspection. In such cases, Area Offices will use the non-formal procedures for investigating alleged hazards. Inadequate responses to a phone/fax investigation should be considered for an on-site inspection in accordance with the FOM.
  • Non-formal complaints and referrals related to COVID-19 exposures will be investigated using non-formal processing to expedite employers’ attention to alleged hazards.
  • Employer-reported hospitalizations will be handled using the rapid response investigation (RRI) in most cases. (OSHA Memorandum on RRIs dated March 4, 2016)

Facilities identified as having high and very high exposure risk jobs, such as hospitals, emergency medical centers, and emergency response facilities, will typically be the focus of any inspection activities in response to COVID- 19-related complaints/referrals and employer-reported illnesses. Based on information received by an Area Office, a determination whether to conduct an on- site facility inspection or open remotely by making a phone call. If your site is inspected under this OSHA Guidance one can expect the compliance officer to ask for the following information:

  • Does the employer have a written pandemic plan as recommended by the CDC? If this plan is a part of another emergency preparedness plan, the review does not need to be expanded to the entire emergency preparedness plan (i.e., a limited review addressing issues related to exposure to pandemics would be adequate). The evaluation of an employer’s pandemic plan may be based upon other written programs and, in a hospital, a review of the infection control plan.
  • Review the facility’s procedures for hazard assessment and protocols for PPE use with suspected or confirmed COVID-19 patients. Determine whether the workplace has handled specimens or evaluated, cared for, or treated suspected or confirmed COVID-19 patients. This should include a review of laboratory procedures for handling specimens and procedures for decontamination of surfaces.
  • Review other relevant information, such as medical records related to worker exposure incident(s), OSHA-required recordkeeping and any other pertinent information or documentation deemed appropriate by the CSHO. This includes determining whether any employees have contracted COVID-19, have been hospitalized as a result of COVID-19, or have been placed on precautionary removal/isolation.
  • Review the respiratory protection program and any modified respirator policies related to COVID-19 and assess compliance with 29 CFR § 1910.134.
  • Review employee training records, including any records of training related to COVID-19 exposure prevention or in preparation for a pandemic, if available. Review documentation of provisions made by the employer to obtain and provide appropriate and adequate supplies of PPE.
  • Determine if the facility has airborne infection isolation rooms/areas, and gather information about the employer’s use of air pressure monitoring systems and any periodic testing procedures.[2] Review any procedures for assigning patients to those rooms/areas and procedures to limit access to those rooms/areas only by employees who are trained and adequately outfitted with PPE.
  • Review procedures in place for transferring patients to other facilities in situations where appropriate isolation rooms/areas are unavailable or inoperable. Also, review procedures for transferring COVID-19 patients from other facilities.
  • Establish the numbers and placements, i.e., room assignments or designated area (cohorting) assignments, of confirmed and suspected COVID-19 patients under isolation at the time of inspection.
  • Establish the pattern of placements for confirmed and suspected COVID-19 patients in the preceding 30 days.

Compliance Officers should not enter patient rooms or treatment areas while high hazard procedures are being conducted. Photographs or videotaping where practical should be used for case documentation, such as recording smoke-tube testing of air flows inside or outside an AIIR. However, under no circumstances shall CSHOs photograph or take video of patients, and CSHOs must take all necessary precautions to assure and protect patient confidentiality.

Lastly, Several OSHA standards may apply, depending on the circumstances of the case. CSHOs must rely on specific facts and findings of each case for determining applicability of OSHA standards.

  • 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.
  • Section 5(a)(1), General Duty Clause of the OSH Act.

The second key OSHA memorandum addressing enforcement discretion was issued on April 16th. This document is similar to the EPA enforcement discretion document and provides for OSHA discretion for employers that are making a good faith effort to comply with OSHA requirements but may not be able to fully do so. The memorandum focuses on:

  • Annual audiograms
  • Annual PSM requirements such as Process hazard Analysis
  • Hazardous waste operations training
  • Respirator fit testing and training
  • Maritime crane testing and certification
  • Construction crane operator certification\Medical Evaluation (surveillance)

There are two key issues in this memorandum related to OSHA enforcement related to OSHA discretion. 

  1. If an employer is unable to comply with OSHA standards requirements for annual, or periodic audits, training, reviews, testing, assessments, inspections because of COVID-19; as long as the employer has made a good faith effort or attempt to comply then OSHA will – take those efforts into consideration in determining whether or not to issue a citation. It will fall on the employer to document the efforts and the extent that they went to, to complete the requirement. So – document, document, and document.
  2. If OSHA arrives for an inspection and the employer cannot demonstrate a good faith effort, they have no documentation on what all the employer did to comply they will likely be subject to a citation.
Richard Fairfax

Richard Fairfax is a subject matter expert and principal consultant for NSC. Prior to that, he was director of enforcement programs and deputy assistant secretary for OSHA.

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