A Kinder Gentler OSHA?

COVID-19 is not immune from the scrutiny of the Occupational Safety and Hazard Administration (OSHA). Whether implicated under specific OSHA regulatory standards or the general duty clause, COVID-19 and an employer’s protocols for protecting its employees from contracting the disease are on OSHA’s radar and its inspection regimen. Securing a safe workplace for workers remains the mission of OSHA especially in this current crisis.

GOOD FAITH STANDARD

OSHA has recently issued new guidance to its Area Directors and compliance safety hazard officers (CSHOs) regarding the handling of complaints and employer reports of severe illness related to work-place hazards regarding COVID-19. With respect to inspections relating to COVID-19 concerns, OSHA recognizes that employers may face difficulties complying with OSHA standards in light of the current environment brought on by the virus. Therefore, OSHA, for this interim period of the public health crisis, will give strong consideration to whether an employer has made attempts to comply in good faith with applicable OSHA standards when determining whether to cite an employer for a violation of the OSH Act. That good faith attempt may be manifested by (i) how well the employer thoroughly explored all options to comply with the applicable standards, (ii) the implementation of any interim alternative protections to protect employees, (iii) an employer’s efforts to comply with standards that require annual or recurring audits, reviews, training, or assessments, and (iv) in situations where compliance was not possible, efforts made to ensure that employees were not exposed to hazards from tasks, processes, or equipment for which they were not prepared or trained.

INTERIM INSPECTION PROTOCOL AND RISK ASSESSMENT

Complaints to OSHA have included concerns over the availability or quality of personal protective equipment, lack of training on appropriate OSHA standards, and possible presence of the COVID-19 virus in the workplace. During this interim period, OSHA has indicated that the decision to conduct an on-site inspection will be determined by the seriousness of the complaint and the workplace classification identified below. Less serious or urgent complaints may be handled by telephone and in writing.

Upon receipt of a complaint or report by an employer, OSHA will classify the workplace risk level as one of three levels of seriousness based on the job:

1. High and every high exposure risk: This risk level will include those jobs with high potential for exposure to known or suspected sources of the COVID-19 virus that occurs during medical, postmortem, or laboratory procedures. Impacted workplaces are likely to include hospitals treating patients with COVID-19, nursing homes, hospice centers, emergency response facilities and workplaces that handle human remains, biomedical laboratories, medical transport, and those locations using aerosol-generating procedures.
2. Medium exposure risk: These jobs include those with frequent or close or contact with people who may have contracted COVID-19 such as those workers who have contact with the general public on a regular basis. They include workers in schools, high volume retail, and those who have contact with travelers.
3. Lower exposure risk: This risk level includes those jobs that generally do not require contact with people known or suspect to be sick with COVID-19 nor frequent close contact with the general public.

Depending on the nature of the complaint, OSHA will determine the need for an on-site inspection. Priority for inspection shall be given to formal complaints of fatalities and imminent danger of exposure related to COVID-19 with particular attention given to healthcare organizations and first responders. Also included as a priority possibly warranting an inspection, will be formal complaints alleging unprotected exposures to COVID-19 for workers with a high risk of transmission while performing aerosol-generating procedures without adequate PPE in a hospital.

Formal complaints involving medium or lower exposure risks will not generally result in an on-site inspection. Rather, OSHA will use the non-formal procedures for investigating reported hazards which utilize the phone or fax. If the employer does not adequately respond to a phone or fax investigation OSHA may advance it to an on-site inspection. Similarly, non-formal procedures in lieu of an on-site inspection will be used for non-formal complaints. Non-formal complaints are those made by current employees via the telephone. Only upon signature to a writing will such a complaint be elevated to a formal complaint. Employer reported hospitalizations will be subjected to OSHA’s rapid response investigations (RRI) in most cases. Under RRI protocol, the employer conducts its own investigation and reports back to OSHA.

ON-SITE INSPECTION PROTOCOL

OSHA has also modified its general inspection protocol for COVID-19 related complaints for high risk exposure jobs. Generally, on-site inspections begin with an opening conference with the employer at the worksite to discuss the particulars of the complaint and scope of the inspection and walkaround. For COVID-19 complaints, the opening conference will be conducted by telephone or other means to avoid accessing a location of suspected or confirmed COVID-19 virus exposure. If the opening conference must be on-site, then it should be conducted in an uncontaminated administrative area.

Similarly, the typical document review should be conducted electronically before attempting the walkaround inspection.

Document review will include, but not be limited, to the following:

1. Determination of whether the employer has a written pandemic plan as recommended by the Centers of Disease Control;
2. Review of the employer’s procedures for hazard assessment and protocols for use of PPE with suspected or confirmed COVID-19 patients;
3. Review of laboratory procedures for employers that have handled specimens or evaluated or treated suspected or confirmed COVID-19 patients;
4. Review records material to worker exposure;
5. Review of the respiratory protection program and assess compliance with OSHA standards;
6. Review of employee training records including those related to COVID-19 exposure prevention or in preparation for a pandemic;
7. Determine if the facility has airborne infection isolation rooms and review procedures for their use and testing;
8. Determine whether the employer has considered or implemented controls for worker protection such as engineering controls, work practices and PPE.

PPE CONSIDERATIONS

Use of PPE is paramount to protecting workers from contracting COVID-19 or further contaminating the workplace with the virus. For example, healthcare and emergency protection is required for all healthcare personnel providing direct care for patients with suspected or confirmed cases of COVID-19 and its use must be evident. OSHA will review the employer’s policies for implementation and use of PPE.

Whereas OSHA will be looking at whether sufficient PPE is in place, the Public Readiness and Emergency Preparedness Act may provide some limited immunity for claims of loss caused by, arising out of, relating to, or resulting from the distribution, administration, and use of PPE. Recently, the Secretary of Health and Human Services issued a declaration of public emergency and providing liability immunity to certain individuals and entities, which may include employers and their administrators that provide guidance, assistance or administration in the provision and use of PPE. Details of the Secretary’s Declaration can be found at 85 FR 15198-15203.

CITATIONS

Violations of OSHA standards cited during an inspection shall normally be classified as ‘serious.’ If OSHA standards do not address the deficiencies noted in the inspection and such deficiencies are addressed by other available guidance such as that published by the CDC, then OSHA will consider citing a violation of the general duty clause. However citation is only appropriate if (i) the employer failed to keep the workplace free of a hazard to which employees were exposed, (ii) the hazard was recognized by the employer, (iii) the hazard was causing or likely to cause death or serious physical harm, and (iv) there was a feasible and useful method to correct the hazard. Otherwise OSHA will issue a hazard alert letter recommending implementation of protective measures that will address the COVID-19 related hazards.

EMPLOYER RECORDING AND REPORTING

Employers are required to record all work-related injury and illness. Although there is an exception for the common cold and seasonal flu, COVID-19 is not included in that exception. However, except for certain healthcare facilities, emergency responders and correctional institutions, OSHA is extending enforcement discretion for the recording of COVID-19 cases. Employers are responsible for recording cases of COVID-19 only if all of the following requirements are met:

• The case is a confirmed case of COVID-19 as defined by the CDC;
• The case involves death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness; and;
• There is objective evidence that a COVID-19 case may be work related which includes e.g. a number of cases developing among workers who work closely together without an alternative explanation, which evidence is reasonably available to the employer.

When required to record a COVID-19 incident, it shall be coded as a respiratory illness.

Make no mistake, OSHA is committed to worker safety and investigating COVID-19 complaints. As of the end of April it had received over 2,880 complaints and resolved approximately forth-six percent so far.

If you or your business need help navigating through OSHA inspections and other concerns over COVID-19 related matters, please do not hesitate to call Maribeth Meluch in our Business Practice Group or any of our other experienced attorneys.