Concerns over workplace safety have come into sharper focus during recent weeks as global efforts to slow the spread of COVID-19 continue. For many employers, these curve-flattening precautions mean working remotely. But for many essential businesses, such safety measures are not feasible, and employers are faced with questions of how best to protect employees — and customers — and what to do if a worker becomes infected.
The Occupational Safety and Health Administration (OSHA) issued an Interim Enforcement Response Plan to address rising concerns about investigations and inspections related to the COVID-19 pandemic, impacting both employment and environmental safety practices. Employers with such concerns should take note of OSHA’s Response Plan as it contains important changes to enforcement guidelines and record-keeping requirements. These changes include an expansion of OSHA’s discretion to enforce pre-existing standards, in particular the Respiratory Protection Standard. The plan also adjusts portions of OSHA’s Field Operations Manual (FOM), which details the agency’s investigation procedures.
OSHA has reported an increase in complaints related to COVID-19. Most common among these are a failure to carry out preventative measures, such as a lack of personal protective equipment (PPE) and overcrowding, as well as a lack of COVID-19 hazard training. With an increase in complaints, employers should be prepared for OSHA spot checks to monitor social distancing and PPE compliance. Employers can prepare for such inspections by updating their written safety policies in light of COVID-19, including detailed cleaning measures and recording distribution of and training on protective equipment.
According to the Response Plan, OSHA will give priority to “high-risk” worksites, including hospitals and other medical facilities, and will perform fewer on-site investigations. Much like the existing procedures for non-formal complaints, if an employer provides a satisfactory response, OSHA will close the complaint and not proceed to an on-site inspection. When an “on-site” investigation does take place, however, the Response Plan directs Area Offices to “maximize the use of electronic means of communication (remote video surveillance, phone interviews, email correspondences, facsimile and email transmittals of documents, video conferences, etc.).” OSHA will assess whether the employer is making a “good-faith effort” to provide appropriate protection and hazard training to its workers.
In line with its prioritizing inspections in the health care and emergency responder sectors, OSHA has suspended its injury and fatality reporting requirements related to COVID-19 for non-health care industry employers. Under the Response Plan, unless there is “objective evidence” that a COVID-19-related infection or fatality is work-related and such evidence was “reasonably available” to the employer, the injury or fatality is not reportable. Reportable cases include infection “clusters” that emerge among workers near one another with no other explanation for the grouped infection.
COVID-19 has forced many employers to alter their standard working conditions, including by requiring employees to use disinfecting chemicals. Under OSHA law, employers must inform workers about the hazardous chemicals to which they are exposed through a hazard communication program, labels and other forms of warning.
Employers should also take note that the new guidance “is intended to be time-limited to this current public health crisis.” Lawyers in our employment and environmental practice groups regularly advise clients on OSHA matters and will stay abreast of these developments.
Please contact Stephanie Poucher, David Topping or Phelps’ Labor and Employment and Environmental Law teams if you have any questions or need compliance advice and guidance. For more information related to COVID-19, please also see Phelps’ COVID-19: Client Resource Portal.